VINOD BEHARI SIMLOTE Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The Appellant is a Medical Officer, who retired on reaching the age of superannuation on 28-2-2009 at the age of 58 from his service under the Employees State Insurance Scheme (E.S.I.S.), where he was working under the Health and Family Welfare Department of the State Government. While he was still in service, on 4-2-2009, the State Government increased the age of retirement from 58 to 62 of the scheduled cadre of Medical Officers by a resolution of that date, without including in the schedule the cadre of Medical Officers employed under E.S.I.S. Therefore, the Appellant approached this Court on 25-2-2009 with a petition under Article 226 of the Constitution, praying to remove the discrimination and direct the Respondent to rectify the mistake of not including the cadre of Insurance Medical Officers, Class-II in the Schedule to the aforesaid G.R. dated 4-2-2009. Pending that petition, in Civil Application No. 1719 of 2009 prayers were also made to permit the Petitioner to serve on the same post by way of interim/ad-interim relief. That petition, was however, finally heard and disposed by order dated 23-3-2009 by learned Single Judge only on the basis that learned A.G.P., under instructions from Joint Secretary, Health and Family Welfare Department, stated that proposal for enhancing the age of superannuation of Insurance Medical Officers from 58 to 62 years was under consideration with the State Government and papers were lying with the Finance Department for approval. The Court then directed the Respondent to take a final decision on the proposal within a period of three months. That decision came in the form of G.R. dated 11-6-2009 increasing the age at par with other Medical Officers, but that G.R. was stipulated to take effect prospectively. Thus, the Appellant was deprived of the benefit of G.R. dated 11-6-2009, as he had already retired on 28-2-2009. Therefore, second petition, being S.C.A. No. 8629 of 2009, came to be filed and it is disposed by the same learned Judge by the impugned order dated 10-9-2009 dismissing the petition.

(2.) The impugned order in the second petition is based on the premise that enhancing the age of retirement of an employee or a class of employees is a policy decision of the State Government, based on the proposal of Director, Medical Services (E.S.I.S.) dated 19-2-2009 in the present case; and the Appellant cannot claim that retrospective effect has to be given. The Court found no substance in the argument that discrimination between the Medical Officers working under the E.S.I.S. and other Medical Officers under the same department of the State Government was unreasonable and it was held that providing different cut-off dates was permissible. Ultimately, considering the overall facts and circumstances of the case, the Court found no substance in the petition.

(3.) Learned Counsel Mr. S. J. Gaekwad, appearing for the Appellant, vehemently argued that the Appellant was, as a matter constitutional right, entitled to be treated at par with other Medical Officers in the same cadre under the same department, just as parity in all other matters of employment was maintained within the same cadre, and therefore, the first G.R. dated 4-2-2009 was required to be applied in case of the Appellant. When the Government decided to remove the anomaly and discrimination and time of about four months was taken in rectifying the error, the subsequent G.R. dated 11-6-2009 was required to be given effect from the date of first G.R. dated 4-2-2009, it was not open for the Government to deprive the Medical Officers like the Appellant of the benefit of G.R. dated 4-2-2009 just by delaying its decision and making the G.R. dated 11-6-2009 prospective, according to the submission. He pointed out from the petition the Appellant's averments on oath stating that hospitals and dispensaries under the E.S.I.S. were administered and financially controlled by Health and Family Welfare Department of the State Government and the criteria for recruitment, other service conditions including pay, promotion, benefits of higher pay scale as per Tikku Pay Commission were all made applicable to Insurance Medical Officers. The appointing authority and the parent department of Medical Officers, Class-II under the Health and Medical Department and those for the Insurance Medical Officers appointed under E.S.I.S. were the same. Rule 10 of the Gujarat Civil Services (Pension) Rules, 2002 is also made equally applicable to all the employees serving under the Health Department and the age of retirement as prescribed in Rule 10(1) is also the same. He contended that, by the impugned G.R. dated 11-6-2009, the Government had perpetrated irrational discrimination between two sets of employees and even among the employees serving under E.S.I.S., and the Appellant was subjected to such hostile discrimination for no fault on his part.