Unreportable IN THE HIGH COURT OF DELHI AT NEW DELHI +WP(C) No.460, 557, 643 and 2115/2007 Date of Hearing: 13.12.2007 Date of Decision: 11.01.2008 #Dr. Asha Aggarwal ...Petitioner in WP(C) No.460/07 Dr.(Mrs.) Sushila Dhaon ...Petitioner in WP(C) No.557/07 Dr.P.B. Saxena ....Petitioner in WP(C) No.643/07 Dr. C.M. Mittal ....Petitioner in WP(C) No.2115/07 ! Through: Mr.Rajeev Sharma for the petitioner in WP(C) No.460/07 Mr.Dileep Tandon for the petitioner in WP(C) No.557/07 Mr.A.P. Dhamija for the petitioner in WP(C) No.643 Mr.S.P. Mehta for the petitioner in WP(C) No.2115/07. Versus $Union of India and Anr. ....Respondents ^ Through Mr.A.K. Bharadwaj with Mr.Shivender Chopra for the respondent/UOI in WP(C) Nos. 460, 557 and 643/07 Mr.Amit K. Paul for the respondent/ MCD in WP(C) No.2115/07. CORAM :- *THE HON'BLE MR.JUSTICE A.K.SIKRI THE HON'BLE MR. JUSTICE VIPIN SANGHI 1.Whether Reporters of Local papers may be allowed to see the Judgment? 2.To be referred to the Reporter or not? 3.Whether the judgment should be reported in the Digest? A.K. SIKRI, J. : 1.All the petitioners in these petitions constitute one homogeneous group and raise common grievance. They were working as General Duty Medical Officers (GDMO) with the Director General, Central Health Services, Ministry of Health and Family Welfare, Government of India. Their age of retirement was 60 years. In case of other three categories of doctors, namely, Teaching Specialists, Non-Teaching Specialists and Public Health Specialists, the Government (respondents) herein decided to enhance the age of superannuation to 62 years vide notification dated 16.11.2006. Since same benefit of increase in age was not extended to GDMOs, the respondents felt that they were discriminated against, as according to them, they broadly fall in the same group in which other three categories of doctors belong to inasmuch as, it is one service which is divided into four sub cadres and, therefore, the impugned action of the respondents suffered from vice of inequality and thus, violative of Articles 14 and 16 of the Constitution of India. All these petitioners filed separate application under Section 19 of the Administrative Tribunals Act before the Central Administrative Tribunal, Principal Bench, New Delhi. However, the Tribunal has not accepted their contention and all these applications are dismissed. The orders passed by the Tribunal are assailed in these petitions. 2.In view of commonality of the subject-matter as well as the legal principles involved, we heard all these petition together. Naturally, one common judgment would suffice to cover these writ petitions and we propose to proceed accordingly. 3.For the sake of brevity, facts of WP(C) No.460/2007 are taken note of. The Central Health Services (CHS) was constituted by the Government of India way back in the year 1960. It was declared a Class I Service in 1973. In 1982, this service was restructured by dividing into four categories, namely, General Duty Medical Officers, Teaching Specialists, Non-Teaching Specialists and Public Health Specialists. After initial recruitment into their respective cadres, there are separate channel of promotions up to Senior Administrative Grade (SAG level). Beyond that, for promotion to Higher Administrative Grade (HAG level) all the four cadres are treated as feeder cadres. Thus, the four tributaries merge at HAG level and thereafter flow in the same/common direction. The highest post in the CHS is that of Director General, which can be manned by any doctor belonging to these four categories. 4.The petitioner was appointed as GDMO on 24.3.1971. She was promoted as Senior Duty Medical Officer with effect from 25.11.1982 and then as CMO on 15.1.1989. Further promotion as Chief Medical Officer (NFSG) was accorded to her with effect from 1.1.1992. She was given SAG pay scale on 8.2.2005. 5.As mentioned above, as per the recruitment rules, the age of retirement for all the doctors belonging to the four cadres is 60 years. The Government of India felt concerned with high attrition rate of government doctors through voluntary retirement, resignation and foreign assignments. In order to diagnose the cause and to suggest the remedy/treatment for this aforesaid sickness, a High Power Committee was constituted. The purpose, thus, was to examine as to why an unusual number of government doctors were leaving their jobs to take employment in foreign countries/domestic private sector and to suggest measures to prevent abnormal attrition in government cadres. This High Power Expert Committee was headed by Sh.Javed A. Chawdhury, former Health Secretary, Government of India along with seven other members. 6.After an indepth analysis of the situation, the Committee submitted its report in May 2006. In its detailed report, various nuances and intricacies of the problem were discussed, including their causes and number of recommendations made. One of the recommendations was that the retirement age of CHS doctors be enhanced from 60 to 62 years. Justification for such a move was also given to which we shall advert to at the appropriate stage. This report was considered by the Government of India which resulted in issuances of notification dated 16.11.2006. However, vide this notification while the age of superannuation for doctors belonging to other three categories was fixed as 62 years, in so far as GDMOs are concerned, they were left out and such a benefit was not extended to them. 7.As mentioned above, the petitioners herein filed separate applications before the Tribunal challenging the notification dated 16.11.2006 as arbitrary, discriminatory and violative of the provisions of Articles 14 and 16 of the Constitution of India. There is a common judgment in the case of the petitioners in WP(C) No.460/2007, 557/2007 and 643/2007. In so far as the petitioner in WP(C) No.2115/2007 is concerned, he is a medical doctor in MCD and, therefore, he has directly approached this Court by filing petition under Article 226 of the Constitution of India for same relief on same grounds. 8.In a brief order dated 11.1.2007 passed by the learned Tribunal, the entire reasoning given for dismissing the application is contained in para- 6 alone and we reproduce the same to ascertain the mind of the Tribunal. 9.“6. The subject matter of the application relating to enhancement of the age of superannuation of a class/category of officers is a matter of policy, which the Government is competent to decide. In a catena of judgments of the Apex Court, it has been held time and again that courts should not interfere in policy matters. In the present case, again, the applicants have not been individually discriminated against in the impugned order of the Government. As stated by the applicants, the impugned order excludes an entire sub-cadre (GDMO). The applicants have also not established any mala fides. We, therefore, do not consider it necessary to interfere with the decision of the Government.” 10.The Tribunal, thus, perceived it as a matter of policy of the Government in not extending the benefit to GDMOs and on the premise that not few individuals, but the entire sub-cadre of GHMO is excluded and there is no mala fides, there is no reason to interfere with the decision of the Government. 11.Before we reproduce the legal submissions made by the learned counsel for the petitioners in these petitions, we may refer to one development which has taken place after the pronouncement of the impugned judgment by the Tribunal and during the pendency of these petitions. It is because of the reason that much sustenance in support of their arguments was sought to be drawn by the learned counsel for the petitioners from this event. 12.It is well known that the Central Government has already constituted the Sixth Pay Commission (in short 'Sixth CPC'), which, at present, is proceeding with the deliberations. The Ministry of Health and Family Welfare-CHS-V Section, Government of India, has addressed Office Memorandum dated 1.8.2007 to the Sixth CPC precisely on the same subject, namely, enhancement of superannuating age of the categories of officers to which the petitioners belong. This O.M. reads as under:- “Subject:-Proposal for enhancement of age of superannuation of General Duty Medical Officers of Central Health Service, from 60 to 62 years-reg. The undersigned is directed to forward herewith a proposal for enhancement of age of superannuation of General Duty Medical Officers of Central Health Service from 60 to 62 years, for consideration of 6th Central Pay Commission.” 13.Along with this memo, the proposal, which is forwarded, details the background and also highlights the problem of attrition of doctors from CHS. It traces out the history by pointing out the constitution of J.A. Chawdhury Committee and the decision to enhance the retirement age of the specialist doctors of CHS belonging to three sub cadres. What is important is that this proposal highlights the justification for increasing the age of superannuation of the doctors of GDMO sub cadre as well. It would be apt to reproduce that portion of the proposal in its entirety:- “5. JUSTIFICATION There is a strong case for increasing the age of superannuation of doctors of GDMO sub-cadre also. Some of the justifications for this have been discussed below:- (i) Imbalance among sub-cadres: The age of superannuation of CHS doctors of 3 sub-cadres, namely, (i) Teaching; (ii) Non-Teaching; and Public Health, has already been increased from 60 to 62 years. The Central Health Service consist of 4 sub-cadres including GDMOs. As the Doctors belonging to GDMO sub-cadre have been kept out of purview of the benefit of enhancement of retirement age, the action has created an imbalance in the CHS cadre. Since the other service conditions of all doctors of CHS remain the same, it is desirable to remove the imbalance in the CHS cadre by extending the benefit of enhancement of the age of retirement of the doctors of left out sub- cadre, i.e. GDMO. As a matter of fact, when the proposal to enhance retirement age of teaching faculties was mooted in 2004, the Department of Personnel & Training had not agreed with the proposal as 'it was felt that it would not be possible to extend the age of superannuation in only one sub-cadre without disturbing the balance in the CHS cadre. It was also observed that condition of services, within the CHS cadre has to remain the same. (ii) Recommendation of J.A. Chawdhury Committee: As indicated earlier, the Ministry of Health had constituted an Expert Committee, after encountering the trend of government doctors leaving the public sector job for green pastures in private sectors, to suggest remedies to arrest the further outflow of doctors. The Committee consisting of former Health Secretary Sh. Javed A. Chawdhury as Chairman, former Secretary, Ministry of Urban Development, Smt. Kiran Agarwal, Dr. Ranjit Roy Chaudhury, Dr. K.P. Mathur, DGHS, Director (AIIMS), Director (PGIMER) or their nominees as member, considered various issues relating to service conditions of doctors in Government including CHS officers. After detailed deliberations, the Committee recommended enhancement of age of retirement of all CHS doctors irrespective of their sub-cadre, from 60 to 62 years as one of the recommendations. (iii) Supplementing the shortage of Specialists:- While the country is producing about 25,000 medical graduates every year, medical specialists continue to be in short supply for taking up assignments in Government, particularly in posts in rural or semi-urban areas. This holds true not only for the Central Health Services but also for States. Expansion of medical education institutions and a proliferation of super speciality hospitals in the private sector has further aggravated the shortage. In order to alleviate the problem of shortage of specialits, the Government has recently enhanced the age of retirement of Specialits doctors from 60 to 62 years. Though this action will help in retaining the Specialists and remove the shortage of doctors in specialized streams to a certain extent, it remains a fact that there would still be a shortage of Specialists due to their ever growing demands in private sector. This gap between demand and supply of Specialists is being plugged by utilizing the service of GDMOs who are in possession/acquire the Post Graduate degree. As per information available, some of the GDMOs are in possession of PG Degree and it is essential to retain them in the service for supplementing the endeavour of Government to provide quality health care to its citizens. (iv) Late entry in service:- From the findings of Javed Chawdhury Committee Committee, it has been observed that the average age of entry into service for GDMOs is around 29 years against 35 of Specialists. The CHS Rules, 1996 provide a maximum age of 32 years for appearing in the Combined Medical Service Examination, through which doctors are appointed to GDMO sub- cadre. Thus, doctors can join the service in the GDMO cadre by the age of 34-35 years after completion of requisite pre-appointment formalities. However, considering that the average age of entry is 29 years for GDMO, they are left with 31 years of pensionable service. It is therefore desirable that the benefit of increase of retirement age as has been given to Specialists is also extended to the officers belonging to GDMO sub-cadre of the same Central Health Service. (v) Growing need of Trained Health Manpower: With the increasing population, there is ever growing need of health manpower for delivering the health care facilities. The availability of specialists alone is not adequate to meet the growing demands. Further, the Government has announced increase of seats for general candidates to mitigate the effect of 27% reservation for OBC. This requires a huge expansion of infrastructural facilities in terms of physical as well as health manpower. This expansion of physical infrastructure would go side by side with increase in manpower for effective management and the services of the GDMOs can be utilized for endorsing the efforts put in by various medical personnel. (vi) Experience curve: In a scientific and technical field such as medicine, experience curve plays an important role. Unfortunately, in the case of doctors, by the time the experience curve can set in and h is efficiency reaches its peak, it is time for him to retire. As a result, the government loses an experienced hand. When the doctor is clinically fully mature and at his peak, his retirement age comes and at this stage the cream of Central Health Service is absorbed by the private sector and international agencies. This all had led to the recent trend wherein the benefit of the experienced doctors is consumed by the leading private hospitals and nursing homes like Escorts, Apollo, Fortis, Max etc. surely at the cost of Government sector.” 14.So much so, this proposal also outlines the benefits and additions, which would be advantageous in case the retirement age of GDMOs is increased to 62 years. According to the proposal, following are going to be the beneficial effect of increasing the retirement age from 60 to 62 years:- “i) Deferment of retirement benefits by two years apart from reduced amount of gratuity as the factor for calculating gratuity is linked to the age and keeps on reducing with advancement in age. ii) Service delivery would improve as GDMOs including those possessing P.G. Qualification would be available for longer periods to fill in gaps created by shortage of Specialists. iii) GDMOs who supplement specialists would become available for a longer period. iv) Discontentment vis-a-vis specialists would be eliminated and thus the GDMOs would supplement and assist specialist in a cordial atmosphere. v) Central Health Service will be attractive and more doctors would opt for the same. vi) Experienced manpower would be available for a longer period.” 15.Based on the aforesaid, first argument of Mr.Rajeev Sharma, learned counsel appearing for the petitioner in one of the petitions, was that when the Government itself recognizes the need to increase the age of retirement and has itself made out “a strong case for increasing the retirement age of the GDMOs from 60 to 62 years on the lines of special doctors in the same CHS and is submitted for consideration of the Sixth CPC”, there was no reason to exclude GDMOs from this benefit, in the first instance, when recommendations of the J.A. Chawdhury Committee were implemented. He further submitted that reading of the report of the high-power committee headed by Sh. Chawdhury would reveal that exercise was done for all the sub-cadres of CHS including GDMOs and there was no reason or occasion to exclude the GDMOs while conferring the benefit upon the other three sub-cadres. Mr.Sharma took us to the relevant passages of the said report highlighting the reasons which prevailed with the Committee in recommending the increase in age. Therefore, according to the learned counsel, it was a totally irrational and arbitrary decision not to extend the benefit to the categories of the petitioners. On legal front he submitted that such a decision was clearly violative of Articles 14 and 16 of the Constitution as it was discriminatory in nature by treating the GDMOs differently from other three categories, though they were at par in so far as the objective behind the move to increase the retirement age is concerned. He further submitted that the reasons, which were sought to be given by the respondents in the counter affidavit denying the extension of benefit of the said action to the petitioner, were totally illusory and make-belief. He also submitted that all four sub-cadres were part of the main cadre of CHS and there could have been no discrimination between these sub-cadres as it was not open to the Government to create separate class within the class. He referred to certain judgments of the Apex Court to butress his legal submissions. These are:- i) Union of India and Ors. Vs. K.T. Shastri, (1990) 1 SCC 509. ii) T.S. Thiruvengadam Vs. Secretary to Government of India, 1993) 2 SCC 174. 16.Other counsel adopted the aforesaid arguments. In addition, submission was made that because of the fact that these GDMOs entered the service at the average age of 29 years, with age of retirement as 60 years, they are not able to complete 33 years of service, which is needed to earn maximum pension and that in itself is a justification for enhancing the age of retirement to 62 years. Reference was also made to para-20 of the judgment of the Supreme Court in the case of B. Prabhakar Rao & Ors. Vs. State of Andhra Pradesh and Ors., 1985 (Suppl.) SCC 432, which reads as under:- “20. In the course of our narration, we have already stated our conclusions on several of the questions at issue, both factual and legal. The final situation that emerges is that almost immediately after the age of superannuation was reduced from 58 to 55 years, it was realised by the Government of Andhra Pradesh that they had taken a step in the wrong direction and that serious wrong and grave injustice had been doneto their employees. A decision was very soon taken to redress the wrong by reversing the decision but an unfortunate rider was added that they should wait till the pronouncement of the judgment of the Supreme Court, which was perhaps expected to be pronounced shortly. As the judgment was not pronounced for long, it became imperative for the Government to implement their decision of their own accord and so they passed Ordinance No. 24 of 1984 and Act No. 3 of 1985, amending Act No. 23 of 1984 by substituting 58 years for 55 years. While doing so, unfortunately again, those that had suffered most by being compelled to retire between 28.2.83 and 23.8.84 were denied the benefit of the legislation by Clause 3(1) of the Ordinance and Section 4(1) of Act No. 3 of 1985. Now if all effected employees hit by the reduction of the age of superannuation formed a class and no sooner than the age of superannuation was reduced, it was realised that injustice had been done and it was decided that steps should be taken to undo what had been done, there was no reason to pick up out a class of persons who deserved the same treatment and exclude from the benefits of the beneficent treatment by classifying them as a separate group merely because of the dealy in taking the remedial action already decided upon. We do not doubt that the Judge's friend and counsellor, 'the common man', if asked, will unhestitatingly respond that it would be plainly unfair to make any such classification. The common sense response that may be expected from the common man, untramelled by legal lore and learning, should always help the judge in deciding questions of fairness, arbitrariness etc. Viewed from whatever angle, to our minds, the action of the Government and the provisions of the legislation were plainly arbitrary and discriminatory. The principle of Nakara clearly applies. The diversion of Government employees into two classes, those who had already attained the age of 55 on 28.2.83 and those who attained the age of 55 on 28.2.83 and 23.8.84 on the one hand, and the rest on the other and denying the benefit of the higher age of superannuation to the former class is as arbitrary as the division of Government employees entitled to pension in the past and in the future into two classes, that is, those that had retired prior to a specified date and those that retired or would retire after the specified date and confining the benefits of the new pension rules to the latter class only. Legislations to remedy wrongs ought not to. exclude from their purview persons a few of the wronged persons unless the situation and the circumstances make the redressal of the wrong, in their case, either impossible or so detrimental to the public interest that the mischief of the remedy outweighs the mischief sought to be remedied. We do not find that there is any such impossibility or detriment to the public interest involved in reinducting into service those who had retired as a consequence of the legislation which was since thought to be inequitable and sought to be remedied. As observed in Nakara, the burden of establishing the reasonableness of a classification and its nexus with the object of the legislation is on the State. Though no calamitous consequences were, mentioned in any of the counter-affidavits, one of the submissions strenuously urged before us by the learned Advocate-General of Andhra Pradesh and the several other counsel who followed him was the oft-repeated and now familiar argument of 'administrative chaos'. It was said that there would be considerable chaos in the administration if those who had already retired are now directed to be reinducted into service. We are afraid we are unable to agree with this submission. Those that have stirred up a hornet's nest cannot complain of being stung. The argument about administrative chaos has been well met by Lord Denning M.R. in Bredburry and Ors. v. London Borough of Enfield [1967] 3 All E.R. 434, where the Master of Rolls in his characteristic and forceful way observed: It has been suggested by the Chief education officer that, if an injunction is granted, chaos will supervene. All the arrangements have been made for the next term, the teachers appointed to the new comprehensive schools, the pupils allotted their places, and so forth. It would be next to impossible, he says, to reverse all these arrangements without complete chaos and demage to teachers, pupils and public. I must say this: if a local authority does not fulfil the requirements of the law, this court will see that it does fulfil them. It will not listen readily to suggestions of "chaos". The department of education and the council are subject to the rule of law and must comply with it, just like everyone else. Even if chaos should result, still the law must be obeyed; but I do not think, that, chaos will result. The evidence convinces me that the "chaos" is much over-stated.... I see no reason why the position should not be restored, so that the eight schools retain their previous character until the statutory requirements are fulfilled. I can well see that there may be a considerable upset for a number of people, but I think it far more important