1 HIGH COURT OF MADHYA PRADESH : INDORE BENCH, INDORE (S. B.: Hon'ble Mr Justice S.C. Sharma) W.P No.3334/2009(s) Dr. (Smt.) Usha Shrivastav Vs. State of M.P. & Ors. W.P No.3369/2009(s) Dr. Narendra Kumar Vs. State of M.P. & Ors. W.P No.9159/2009 (s) Madhya Pradesh Employees State Insurance Doctor Association Vs. State of M.P. & Ors. Shri A.K. Sethi Sr. Counsel with Shri Rahul Sethi and Shri M.I. Khan learned counsel for the petitioners. Shri Mukesh Parwal, learned counsel for the respondents State. Shri Vivek Sharan learned counsel for the respondent E.S.I. Corporation. O R D E R (28.11.2011) Regard being had to the similitude in the controversy involved in the matter, the above cases were heard analogously together and a common order is being passed. The facts of W.P. No.3334/2009(s) are being narrated as under : 2 2. The petitioner before this Court an employee of Employess State Insurance Services has filed the present petition claiming the pay scale at par with the doctors working in the Public Health and Family Welfare Department. The contention of the petitioner is that she was recruited as Assistant Surgeon on 3.5.79 in the Employees State Insurance Services and prior to 1978 the Employees State Insurance Services was a part of Public Health Department. The contention of the petitioner is that the initial qualifications for appointment of a doctor under the Public Health and Family Welfare Department and under the Employees State Insurance Services (Labour Department) are the same and, therefore, they are entitled for the same pay scale, which is being given to the doctors serving the the Public Health and Family Welfare Department. 3. Learned Sr. Counsel appearing for the petitioner has relied upon an order passed by the M.P. Administrative Tribunal in OA No.1941/92 in the case of A.K. Singhal Vs. State of M.P. and Others, wherein an Assistant Surgeon working under the E.S.I. Department was claiming senior scale as well as selection grade at par with the doctors serving the Public Health and Family Welfare Department. His contention is that the Original Application was allowed by the M.P. State Administrative Tribunal and the Civil Appeal preferred before the Apex Court by the State of Madhya Pradesh was dismissed i.e. Civil Appeal No.10868/96, State of M.P. & 3 Others Vs. Dr. A.K. Singhal. The Contention of learned Sr. Counsel is that the Administrative Tribunal as well as Apex Court after comparing the service conditions have allowed the claim of the doctors therein and based upon the aforesaid judgment, the petitioner is entitled for the same pay scale, which is being paid to the doctors serving the Public Health and Family Welfare Department. He has also relied upon an order passed by this Court in W.P. No.9142/2003 dated 28.4.2004 in case of a dental surgeon serving the Employees State Insurance Services, who was also claiming selection grade and senior scale. The contention of learned Sr. Counsel appearing for the petitioner is that the petitioner is entitled for the same pay scale, which is being paid to the doctors of Public Health and Family Welfare Department. 4. A reply has been filed on behalf of the respondents and the stands of the respondents is that the doctors serving Employees State Insurance Services are member of Labour Department and 87.5% of the financial burden is taken care of by the Employees State Insurance Services, New Delhi and rest of 12.5% financial burden is taken care of by the State Government. It has also been stated that the duties and responsibilities of doctor serving to the department i.e. the Employees State Insurance Services and the Public Health and Family Welfare Department are different and cannot be compared. It has also been stated that the doctors serving the Employees State Insurance Services are being paid non-practicing allowance and there is no provision for 4 medico legal cases for doctors serving the Employees State Insurance Services. The respondents have further stated that the working conditions of the doctors in two different departments are altogether different. The respondents have prayed for dismissal of the writ petitions. 5. Heard the learned counsel for the parties at length and perused the records. The matter is being disposed of with the consent of the parties at motion hearing stage itself. 6. In the present case, the service conditions of the petitioners are governed by the Rules framed by Governor State of Madhya Pradesh in exercise to Proviso conferred to Article 309 of the Constitution of India known as Madhya Pradesh Employees State Insurance Services (Gazetted) Recruitment Rules, 1981. The petitioner herself has filed the aforesaid Recruitment Rules and Scheduled-I appended to the aforesaid Rules provide for a particular pay scale in respect of doctors. Not only this, as earlier there was no provision for granting selection grade and senior scale, the same has been introduced under the Recruitment Rules keeping in view the order passed by the M.P. Administrative Tribunal affirmed by the Apex Court in the case of Dr. A.K. Singhal(supra). 7. This Court has carefully gone through the judgment delivered in the case of Dr.A.K. Singhal (supra) and in the aforesaid case, the Tribunal has granted the benefit of senior scale and selection grade 5 only because no such benefit was available to the doctor serving the Employees State Insurance Services. It is pertinent to note that a writ petition was preferred before this Court by the same petitioner Usha claiming parity in respect of age of retirement. The same was registered as W.P. No.9233/09(s) and the relief was sought in respect of age of retirement at par with the doctors serving the Public Health and Family Welfare Department. The petitioner therein has relied upon the judgment delivered by the Apex Court in the case of A.K. Singhal (supra).This Court after hearing the parties at length and keeping in view the recruitment rules governing the field in paragraph 12 to 20 has held as under :- “12. In the present case, the petitioner before this Court, an employee, serving in ESIS was appointed under the provisions of Madhya Pradesh Employees State Insurance Services (Gazetted) Recruitment Rules, 1981. It is true that the doctors in Public Health and Family Welfare Department are appointed as per the Madhya Pradesh Public Health and Family Welfare Recruitment (Gazetted) Service Recruitment Rules. The age of retirement in respect of doctors serving in Public Health and Family Welfare Department was enhanced by virtue of statutory provisions as contained in the Madhya Pradesh Shaskiya Sevak (Ardhvarshiki) Sanshodhan Adhiniyam by which Rule 56 1-C in the Fundamental Rules was inserted. No such amendment was introduced in the Fundamental Rules in respect of doctors serving the ESIS. The amendment was made effective vide notification dated 25.02.2007. 13. It has also been brought to the notice of this Court that the State Government has later 6 on enhanced the age of doctors serving in Public Health and Family Welfare Department up to the age of 65 years and the teachers serving in medical colleges have also been extended the benefit of continuance in service up to the age of 65 years. However, no amendment has been done in respect of doctors serving the Directorate, ESIS under the Labour Department. 14. This Court has minutely gone through the order passed by Apex Court and the Apex Court was dealing with a situation in respect of grant of selection grade. The Apex Court has held that the doctors in Labour Department as well as in Public Health and Family Welfare Department were recruited by virtue of the same qualifications and were performing similar job and has upheld the grant of the benefit of selection grade, which was granted to the doctors of ESIS by the Tribunal as well as by High Court. 15. The Division Bench of this Court in the case of Shailu Mangal Vs. State of M.P. and others, W.P. No.6770 of 2008 vide order dated 29.04.2009 has also permitted the doctors serving the ESIS as Insurance Medical Officer/Assistant Surgeon to apply as in service candidate in respect of admission to the postgraduate medical courses as they are certainly the employees serving under the State of M.P. The Division Bench has also considered the order passed by the Apex Court in S.L.P No.10808 of 1996 in the case of State of M.P. Vs. Dr. A.K. Singhal. This Court has carefully gone through the order passed by the Apex Court and is of the considered opinion that the Apex Court while comparing the qualifications and duties was dealing with a case in respect of grant of selection grade. The State Government has considered the responsibilities and duties attached to the post in question in the Labour Department as well as in the Public Health and Family Welfare Department and has also considered other factors including service 7 conditions of doctors in Medical Colleges as well as doctors serving in the Urban Areas and has arrived at a conclusion that the doctors serving under the Labour Department cannot compare their case so far as their age of retirement is concerned, at par with the doctors serving with the Public Health and Family Welfare Department. 16. This Court is of the considered opinion that the State Government was justified in taking such a view in the matter. The State Government is the best judge in the matter of fixing the retirement age in respect of an employee of a particular department and once a statutory provision is in existence fixing the retirement age of a particular post and the same has been notified vide notification dated 25.02.2007, an employee has to retire keeping in view the statutory provisions who has attained the age of retirement as per statutory provisions. This Court does not have the power to enact a statute, it can only give an interpretation to a statute. Once the statute is in existence providing the retirement age of 60 years in respect of doctors serving the Labour Department and as the same is fixed on the basis of various factors considered by the State Government, the question of issuance of any direction to the State Government to review its policy decision does not arise in the peculiar facts and circumstances of the case. 17. Learned counsel has relied upon the judgment delivered in the case of Chandigarh Administration (supra), wherein the Apex Court has held that nature of work performed by an employee should be taken into account while deciding the age of retirement. The Apex Court was dealing with the case wherein an employee was superannuated on completion of 58 years of age and according to the employee, the right age of retirement was 60 years as provided under the in Fundamental Rule 56. The Tribunal while deciding the matter arrived at a conclusion that the employee therein should have been retained in 8 service up to the age of 60 years and being aggrieved by the order of Tribunal, the Chandigarh Administration has approached to the Apex Court against the order passed by Central Administrative Tribunal dated 28.03.1989 in O.A. No.280-CH of 1988. In those circumstances, the Apex Court remanded the matter back to the Tribunal to pass a fresh order. Keeping in view the nature of job performed by the employee therein. 18. In the present case, the statute clearly provides the age of retirement as 60 years and there is no ambiguity in the statute nor any doubt is in existence as was in existence in the case before the Apex Court. Resultantly, the judgment relied upon by the learned counsel for the petitioner is distinguishable on facts. 19. It has also been argued by the petitioner that the petitioner is being discriminated and his constitutional right guaranteed under Article 14 of the Constitution of India have been violated by respondents-State. This Court is of the considered opinion that the doctors serving the Labour Department under the ESIS form a class within themselves and, therefore, they cannot compare their cases in the matter of retirement age as a statutory provision is in existence and, therefore, the question of discrimination as well as violation of constitutional right guaranteed under Article 14 as argued by learned senior counsel does not arise. 20. This Court is of the considered opinion that once the retirement age has been fixed by the statutory provision and the State Government has taken a policy decision to retire employees serving under the Labour Department at the age of 60 years, the question of interference does not arise in the matter. The writ petition is dismissed.” 8. Keeping in view the judgment delivered in the aforesaid case 9 and the Recruitment Rules which are in existence providing a particular pay scale to the petitioner and also the provision for grant of selection grade and senior scale, the question of granting similar pay scale, which is being paid to the doctors of the Public Health and Family Welfare Department does not arise. The doctors serving the Labour Department under the Employees State Insurance Services form a class, therefore, they cannot compare their cases in the matter of grant of pay scale with the doctors serving under the Public Health and Family Welfare Department. Resultantly, this petition is dismissed. 17. The other identical petitions are also dismissed. 18. No order as to costs. ( S.C. SHARMA ) JUDGE skm