IN THE HIGH COURT OF JUDICATURE AT PATNA C. W. J. C. NO. 17768 OF 2008 Dr. Sureshwar Sati Prasad, son of Late Shiva Sati Prasad, residing at E-2/1, Indira Gandhi Institute of Medical Sciences Residential Campus, Sheikhpura, P.S. Shastri Nagar, District-Patna. -Versus- 1. The State of Bihar through its Chief Secretary, Old Secretariat, Patna. 2. Indira Gandhi Institute of Medical Sciences, Patna through its Director, P.S.- Shastri Nagar, Patna. 3. The Director, Indira Gandhi Institute of Medical Sciences, Patna through its Director, P.S.- Shastri Nagar, Patna 4. The Secretary, Department of Health, Government of Bihar …………… ……….. Respondents. Counsel for the petitioner: (1) Mr. Shashi Anugrah Narain (2) Mr. Chakradhari Sharan Singh Counsel for IGIMS: Mr. Pushkar Narain Shahi & Partha Sarthy Counsel for the state: Mr. P.K. Sharan, A.C. to AAG-11 17.03.2010 Petitioner was working as Professor and Head of G.I. Surgery in Indira Gandhi Institute of Medical Sciences, Sheikhpura. Attaining the age of 62 years, he has superannuated on 31.12.2007. In view of petitioner’s contribution to the institution as well as in the interest of the institution, he was given extension by the Chairman of IGIMS, by different orders w.e.f. 01.01.2008, which continued up to 31.03.2009. Initially, the writ application was filed by the petitioner for a direction to the respondents No. 2 & 3 to enhance his age of superannuation from 62 to 65 years, in tune with the retirement age of the teaching faculty of All India Institute of Medical Sciences, New Delhi (AIIMS), in view of Govt. order dated 10.10.1991 (Annexure-1). Annexure-1 is the decision of State Government taken u/S 24 of Indira Gandhi Institute of Medical Sciences Act, 2 1984, communicated to the Director, IGIMS that the condition of services applicable to the employees of All India Institute of Medical Sciences, New Delhi shall apply mutatis mutandis in case of the employees of IGIMS. The State Government had taken this decision as there was no regulation framed u/S 27 of the IGIMS, Act, regulating the tenure of office and other conditions of service of its employees which also included superannuation. The issue relating to application of the service conditions of AIIMS New Delhi, in the matters of age of superannuation, maternity and paternity leave, accumulation of leave etc. was considered in the case of Smt. Clara Ainda Vrs. the State of Bihar & Ors. reported in 2005(4) PLJR 691 wherein it is stated that the words – “Other conditions of service” would also include the age of superannuation. Writ application was filed by the petitioner as the Board of Governors of All India Institute of Medical Sciences, vide its memorandum dated 30.11.2008 proposed amendment of Regulation 30 of AIIMS, Regulation, 1999; with respect to enhancement of age of superannuation of the members of teaching faculty from 62 years to 65 years. The proposed amendment was subject to the approval of the Govt. of India as the memorandum dated 30.12.2008 in its proposed amendment relating to enhancement of age of superannuation of the medical teaching faculty from 62 to 65 years, also included those who were on extension in service. Amendment was made effective with immediate effect. The Ministry of Health and Family Welfare, Govt 3 of India vide office memorandum dated 22.07.2008 approved the proposal for enhancing the age of superannuation from 62 years to 65 years in respect of medical teaching faculty in AIIMS, New Delhi, by amending regulation 30 of AIIMS Regulation, 1999 but applicability of proviso to regulation 30(2) in respect of persons, on extension in service, whether amended provisions be prospective or retrospective and whether amended provisions will apply in case of persons holding administrative post were certain points, still under consideration of Government. Finally, the Govt of India came out with Notification dated 2nd December, 2009 which indicate that the benefit of this amendment relating to enhancement of age of superannuation from 62 to 65 years will be prospective, coming into force w.e.f. 22.07.2008 Regulation 30 (2) along with its proviso, will apply only in case of a member of teaching faculty. This provision shall not apply in the case of a person who is on extension in service.” Counsel appearing for the petitioner as well as IGIMS, Sheikhpura, Patna has submitted that, after publication of notification, now the Govt. cannot take decision contrary to the statutory regulations. The Notification is very much specific that the provision of enhancement of retirement age from 62 to 65 years is applicable w.e.f. 22.07.2008. Petitioner has superannuated on 31.12.2007, as such, he will not be benefited of this amendment. Secondly, this provision shall not 4 apply in the case of a person who is on extension in service. On 22.07.2008, the petitioner was on extension in service. On this count also, he will not get any benefit of the amendment relating to enhancement in age of superannuation. Mr. Shashi Anugrah Narayan has made an additional submission that admittedly there is no statutory provision on the basis of which petitioner can claim enhancement in age of superannuation considering continuity in service, on equitable grounds, his case can be considered in a positive manner. I do not find that equity can play any role in this case. The petitioner superannuated on 31.12.2007, much before 22.07.2008, i.e. the date amended provision for enhancement of age of superannuation came into force. On 22.7.2008, he was on extension in service. His case comes within regulation 30(2) proviso which debars person on extension in service, from benefit of amendment. The stay order passed in favour of the petitioner on 30.03.2009 is vacated. This writ application is dismissed. AKV/ (Mridula Mishra,J.)