--- 1 --- HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE S.B.: HON'BLE MR. S. C. SHARMA, J WRIT PETITION NO. 10795 / 2010 SHOBHA SOLANKI W/O BHANWARSINGH Vs. STATE OF MP & 3 OTHERS A N D WRIT PETITION NO. 1912 / 2011 SMT. SHARDA RAJAPPAN W/O P.K. RAJAPPAN Vs. STATE OF MP & 3 OTHERS * * * * * O R D E R ( 01/12/2011) Regard being had to the similitude in the controversy involved in the present cases, the writ petitions were analogously heard and by a common order, they are being disposed of by this Court. Facts of Writ Petition No. 10795 / 2009 are narrated hereunder. The petitioner before this Court has filed this present writ petition claiming continuation in service upto the age of 65 years being a member of Nursing cadre. The contention --- 2 --- of the petitioner is that she was initially appointed as Lady Health Visitor in the pay scale of 120 – 240 by an order dt. 30/4/1974 and she was promoted as Sister Tutor in 1989. Petitioner has further stated that later on she was posted in the Regional Health & Family Welfare Training Centre as a Teacher. Petitioner has further stated that as she was performing the duties of a Teacher, she was entitled to continue upto the age of 62 years keeping in view the provisions of MP Shashkiya Sevak (Adhivarshiki Ayu) Adhiniyam, 1967 and therefore a writ petition was preferred by her claiming continuance upto the age of 62 years. The same was allowed by this Court and this Court in the case of Shobha Solanki Vs. State of MP & two others, decided on 26/8/08 has permitted the petitioner to continue upto the age of 62 years. The contention of the petitioner is that the respondents are now retiring her on completion of 62 years of age on 31st August 2010 and finally she has also been retired. However, she is entitled to continue upto the age of 65 years by virtue of subsequent amendment ie., MP Shashikya Sevak (Adhivarshiki Ayu) Sanshodhan --- 3 --- Adhiniyam, 2011. A reply has been filed in the matter and the stand of the State Government is that the petitioner was due for retirement on 31st August 2008, however, as being a Sister Tutor (Member of Nursing Cadre) and she was posted at Regional Health & Family Welfare Training Centre, and she was permitted to continue upto the age of 62 years on account of an order passed by this Court in WP NO. 3520 / 2008 (s). The respondents have stated that the subsequent amendment will not entitle the petitioner to continue in service upto 65 years because she is not a member of Nursing cadre and she is a member of Teaching cadre. Respondents have prayed for dismissal of the writ petition. It has also been stated in the return that the petitioner has completed the age of superannuation as a member of Nursing cadre on 31/8/08 whereas the amendment in the rules relating to superannuation has been made applicable w.e.f. 31/10/2009, she is not entitled for the benefit of continuance in service upto 65 years of age. Respondents have prayed for dismissal of the writ petition. --- 4 --- Heard learned counsel for the parties at length and perused the record. The matter is being disposed of at the admission stage itself with the consent of the parties. In the present case, the petitioner is holding the substantive post of Sister Tutor which is certainly a post under the Nursing Cadre as provided under Schedule I of the MP Public Health & Family Welfare Department (Directorate of Health Services, Class III Nurses Recruitment) Rules, 1989. The next promotional post of the petitioner is Sister Tutor (Nursing education). Not only this, the amendment notified by the State Government dt. 6/5/11 also caters to such a contingency and the Explanation to Section 2 reads as under : Explanation.- For the purpose of this clause a “Government nurse” means a Government servant by whatever designation called, appointed to a post mentioned under Group 'C' – Nursing Services in Schedule – I of the Madhya Pradesh Public Health and Family Welfare (Gazetted) Services Recruitment Rules, 2007 and under Schedule – I of the Madhya Pradesh Public Health and Family Welfare Department (Directorate of Health Services)Class III Nursing Service Recruitment Rules, 1989, for the --- 5 --- purpose of nursing in accordance with the recruitment rules applicable to such appointment, provided he holds a lien on a nursing post of an institution under the Public Health and Family Welfare Department. (b) The provision of clause (a) shall be deemed to have come into force from 31st October, 2009. The aforesaid explanation makes it very clear that a Government Nurse means a Government servant by whatsoever designation called, appointed to a post mentioned under group C under the schedule appended to the Recruitment Rules of 2007 or under the Rules of 1989, meaning thereby, a sister tutor who is posted even in the Regional Health & Family Welfare Training Centre is entitled to continue upto the age of 65 years. The amendment has come into force w.e.f. 31st August 2010 and it is an admitted fact that the petitioner was very much in service on 31/8/2010. Resultantly, as the petitioner was in service on 31st August, 2010 though on account of an order passed by this court permitting her to continue upto 62 years, the fact remains that on the date the law was made applicable to --- 6 --- sister tutors, she was very much in the service of the State Government and therefore by virtue of the amendment she is entitled to continue upto the age of 65 6ears. The petitioner, in the present case, has attained the age of 60 years prior to 31/10/2010 and all other identically placed employees (Government Nurses) who have completed 60 years of age on or before 31/10/2009 were superannuated by respondent State on completion of 60 years of age as there was no such amendment in force at the relevant point of time. It is a mere chance that the present petitioner, because she was posted in Regional Health & Family Welfare Training Centre was granted a relief by this Court to continue upto the age of 62 years by treating her as a Teacher and while she was continuing as a Teacher in the Regional Health & Family Welfare Training Centre, MP Shashikya Sevak (Adhivarshiki Ayu) Sanshodhan Adhiniyam, 2011 has been enacted and therefore this Court is of the considered opinion that in the peculiar facts and circumstances of the case, as the petitioner is now being permitted to continue upto the age of 65 years, she will not be entitled for backwages. --- 7 --- However, she sill be entitled to continue upto the age of 65 years as she was very much in Government service on 31st August 2010. Respondents are directed to reinstate the petitioner forthwith and the petitioner shall be entitled for all consequential benefits except backwages as she has not worked on the post in question during the pendency of the present petition. Resultantly, WP NO. 1912 / 2011 is also allowed. The respondents are directed to continue the petitioner upto 65 years and as she has already worked on account of an interim order passed by this Court, she will be entitled for salary also. (S. C. SHARMA) J U D G E KR