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IN THE HIGH COURT OF MADHYA PRADESH
Sujoy Paul and Anil Verma,JJ.
Shashibala Chauhan (Smt.) v. State of M. P. & Others
Writ Petitions No. 19104 of 2020 and 3365 of 2014 (Indore); Decided on 7.10.2021
(1) Constitution of India -- Art. 14 -- permits legislation founded upon reasonable classification -- twin tests of permissible classification -- (1) classification must be based on intelligible differentia which distinguis hes category from other left out category -- (2) such differentia has rational nexus with object sought to be achieved by statute in question. [Para 24
(2) Shaskiya Sevak (Adhivarshiki-Ayu) Sanshodhan Adhiniyam, 2011 (M. P.) -- S.2 (1-e), 2 (1-j) -- Constitution of India -- Art. 14- notification dated 6.5.2011 -- explanation to proviso to sub-rule (1-e) and (1-j) -- amendment to Fundamental rule 56 -- retirement age of government nurses raised from 62 years to 65 years -- benefit not extended to nurses of Ayush department -- challenge to validity -- nurses of Ayush department put to comparatively disadvantageous position on basis of educational qualification -- difference of educational qualification at time of recruitment pales into in significance because nature of work performed by nurses of all departments is same -- petitioners' services were utilized in allopathic hospitals also -- thus, educational qualification cannot create any intelligible differentia -- impugned provisions of Adhiniyam arbitrary and discriminatory -- it is prerogative of employer to decide age of super annuation but employer cannot be permitted to undertake said exercise in arbitrary and discriminatory manner - cannot be permitted to divide a homogenous class and create class within the class for no valid reasons -- merely because nature of treatment in allopathic and Ayush department is different, staff nurses of Ayush department cannot be treated to be separate class -- not the case of department that service conditions/job nomenclature of staff nurses of Ayush department or their counterparts have under gone change after their appointments -- staff nurses of Ayush department are similarly situated qua staff nurses of other departments -- no justification at all to deprive them of age of super annuation -- explanationto proviso to sub-rule (1-e) and (1-j) of notification dated 6.5.2011 declared ultra vires -- petitioners shall be continued in employment till 65 years of age with all consequential benefits. Civil Appeal No.4578 of 2021 (SC), AIR 1955 SC 19, 1991 Supp. (2) SCC 565 followed. 2018 (2) JLJ 27 (FB) relied on. 2018(1) JLJ 529 (SC) , (2018) 4 SCC 372, (2018) 6 SCC 1, CRPF (2018) 7 SCC 656, (2018) 10 SCC 12018 (3) JLJ SN 1 (SC), (2020) 7 SCC 657, (2020) 12 SCC506, (2004) 9 SCC 755 and AIR 1951 SC 41 referred to. [Paras 20 to 23, 25 & 28 to 30
¼1½ Hkkjr dk lafo/kku && vuq&14 && ;qfDr;qDr oxhZdj.k ij vk/kkfjr foèkku vuqKkr && vuqKs; oxhZdj.k ds fy, nksgjk ijh{k.k && ¼1½ oxhZdj.k ,d oxZ dks vU; NksM+s x, oxZ ls izHksfnr djus okys cks/kxE; varj ij gh vk/kkfjr gks && ¼2½ ,sls varj dk iz'uxr dkuwu ds vHkh"V mís'; ls rkfdZd laca/k gksA ¼iSjk 24
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ORDER
1. Regard being had to the similitude of the questions involved, on the joint request of the parties, the matters were analogously heard and decided by this common order.
WP No.19104/2020 :--
2. The petitioner, a Staff Nurse, has challenged the constitutionality of explanations Fundamental Rule 56 to proviso to Sub-rule (1-e), (1-j) of Madhya Pradesh Shaskiya Sevak 3 WP No.19104/20 & WP No.3365/14 (Adhivarshiki-Ayu) Sanshodhan Adhiniyam, 2011 (Impugned Adhiniyam), whereby Fundamental Rules are amended and while extending the age of superannuation of every government nurse, explanations are appended which deprives the petitioner, a Staff Nurse working in the Ayush Department of the government.
3. Briefly stated, the relevant facts are that the petitioner underwent a mandatory 18 months training in nursing men, women and children and in Midwifery and in Community Health Nursing in a recognized institute and was declared qualified to practice vide certificate dated 10.11.1983.
4. The Competent Authority by order dated 3rd February 1999 appointed the petitioner as Staff Nurse at Govt. Ayurvedic College, Gwalior. The petitioner was transferred by order dated 31.5.2000 (Annexure P/4) to Mahatma Gandhi Hospital, Dewas which is an allopathic hospital. This fact is pleaded by petitioner to demonstrate that as and when it was required, the petitioner’s services were taken as Staff Nurse in Ayurvedic as well as in Allopathic Hospitals. The petitioner is professionally and educationally competent to discharge her duties as Staff Nurse in both the kinds of hospitals.
5. The Govt. of Madhya Pradesh promulgated Impugned Adhiniyam vide Gazette Notification dated 6.5.2011 whereby retirement age of government nurses was raised from an existing 62 years to 65 years. The Sub-rule (1-e) and (1-j) to F.R. 56 are framed in such a manner which deprives the petitioner to serve the department till 65 years of age.
WP No.3365/2014:-
6. The petitioner Smt. Pushpa Dubey was appointed by order of Joint Director, Public Health Services, Bhopal on 5.5.1977 (Annexure P/1). She was transferred on various occasions which is evident from transfer order (Annexure P/2). The petitioner although appointed in the Public Health Department was subsequently required to work as a Staff nurse in Ayush department. For this reason alone, the petitioner was not given the benefit of age of superannuation up to 65 years.
7. Shri Sumeet Samvatsar, learned counsel for the petitioner submits that before issuance of Impugned Adhiniyam, the age of retirement of petitioner i.e. Staff Nurses working in Ayush Department and their counter parts working in other Govt. departments was same i.e. 62 years. There is no change in the service conditions of the Nurses of all the departments and, therefore, the Adhiniyam is discriminatory and arbitrary to the extent it deprives the petitioner to serve up to 65 years of age.
8. The petitioner was a Covid Frontline Worker during the pandemic era and as per the Integrated Financial Management Information System of Govt. of Madhya Pradesh, the date of superannuation of petitioner was shown w.e.f. 31.12.2023. This document is filed as Annexure P/8. Thus, petitioner was under an impression that she will continue in employment till attaining the age of 65 years.
9. Criticizing the offending provisions of Adhiniyam/F.R. 56 as aforesaid, Shri Sumeet Samvatsar submits that there is no justification in not extending the same benefit of age of retirement to the Staff Nurses working in Ayush Department. The impugned Notification is violative of Article 14 of the Constitution and is discriminatory in nature. Reliance is placed on recent judgment of Supreme Court passed in Civil Appeal No.4578/2021 (North Delhi Municipal Corporation v. Dr. Ram Naresh Sharma & Ors.). It is contended that in the said case, the Department raised the age of superannuation for allopathic doctors but gave a discriminatory treatment to the AYUSH doctors. This provision of discri
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