I.M. Quddusi, J.
1. These are four Writ Petitions filed by the Allopathy Medical Officers of Employees State Insurance (ESI) Scheme, Orissa to provide them the benefit of superannuation at the age of 60 years, which has been allowed to the Allopathy Medical Officers of the Department of Health & Family Welfare and for quashing of the impugned order passed by the Tribunal in their respective Original Applications.
2. At the very outset, it is necessary to mention here that Dr. Ganapati Pradhan, Petitioner in W.P.(C) No. 15979 of 2005 had filed O.A.No. 1376 of 2004 before the Orissa Administrative Tribunal for redressal of his grievances as mentioned above. As he was due to retire on 31.3.2005, he had moved Miscellaneous Application also for interim protection. When the same was not being considered by the Tribunal, he filed Writ Petition bearing number W.P. (C) No. 4212 of 2005 which was disposed of with the direction that the Petitioner shall be allowed to continue in service in full salary and emoluments apart from other benefits he is drawing till his Original Application is disposed of by the Tribunal or till he attains the age of 60 years whichever is earlier. Thereafter the State Government had filed the application for recalling of the said Order dated 29.3.2005. But the same was reaffirmed vide Order dated 19.8.2005 by this Court against which the State moved before the Hon'ble Supreme Court by filing SLP(C) No. 22762-63 of 2005 which was disposed of on 28.10.2005 with the following order.
Heard Learned Counsel for the Petitioner.
We are not inclined to interfere in the matter as the impugned order is an interim one. However, it would be in the interest of the parties if the concerned O.A. (O.A. No. 1376/2004) is decided expeditiously. We request the Orissa Administrative Tribunal to dispose of the O.A. by the end of December, 2005. We notice that the High Court itself has observed to that effect. It goes without saying that the observations made by the High Court on the controversy pending before the tribunal are tentative in nature for the purpose of dealing with the interim application and the tribunal shall decide the case on its own merits uninfluenced by the observations made by the High Court in the impugned order.'
3. Before the tribunal as well as this Court the Opp.Parties contested inter alia on the plea that the status of the Doctors in Labour & Employment and Health & Family Welfare Departments is not similar and comparable. In the reply filed by Opp.Party No. 3 before the Tribunal, the following paragraph in reply to Paragraph 22 of the petition before the Tribunal is liable to be perused which is quoted as under:
The Hon'ble Tribunal in several other cases have also viewed that Court should exercise great restraint in interfering with a policy decision of Government and such a decision can be interfered with only if it is arbitrary, not based on valid reasons, is against public interest or has visited the majority of employees that undue hardship. In this case policy decision of the Government is greater interest of the State and its people. The State Government is competent to take such decision also. In such cases personal interest is to be sacrificed for public interest.
4. The counter reply on behalf of Respondents 1 and 2 was filed by the Under Secretary to Government, Finance Department. Paragraphs 4 and 5 are relevant and are liable to be perused.
4. The Finance Department amends the Orissa Service Code reflecting the policy decision of Government taken in different Departments of Government from time to time for specific purposes of specific category of employees in the State. It has no general applicability to all category employees of the State Government.
Accordingly Finance Department have amended the Rule 71(a) of Orissa Service Code enhancing the superannuating age up to 60 years after the policy decision taken by the Government for specific category of employees i.e. Allopathic Doctors in the Health and Family Welfare Department in exigencies of public service and in the interest of public at large. It has no general applicability and not extended to Ayurvedic and Homeopathic doctors working under Health and Family Welfare Department.
5. That Secretary to Government, Labour and Employment Department i.e. Respondent No. 3 has been duly authorized by the above named Respondents to file the counter in this case on behalf of State.
5. The purpose of quoting the above paragraphs is that when this Court summoned the official record it was found that the things are quite different to the plea taken by the Opp.Parties. On perusal of Government File No. SS-ll(L) 2/2004, it appears that the Chief Minister and the Minister-in-Charge of the Department vide Order dated 14.1.2005 and 18.1.2005 respectively passed the following order:
The retirement age may be enhanced to 60 years in respect of Doctors under E.S.I. Scheme at par with Allopathy Doctors of H & FW Department.
Sd/ -Chief Minister, Orissa.
14.1.2005
Seal of Chief Minister, Orissa
Sd. Finance Minister, Orissa.
18.1.2005
Seal of Minister, Finance, Orissa.
6. The above direction of the Hon'ble Chief Minister, Orissa had been concealed by theOpp. Parties before the Tribunal as well as before this Court and perhaps before the Hon'ble Supreme Court in the above mentioned SLPs and fought the matter tooth and nail for the reasons best known to them. Further it appears that Special Secretary to Government, Finance Department as well as the Principal Secretary to Government, Finance Department have made theirnothings on 6.12.2004. The Principal Secretary to Government, Finance Department approving the noting of the Special secretary mentioned in his note that in the light of the reasons indicated in the notes from 30/N, there is absolutely no justification nor necessity to increase the age of retirement of Allopathy doctors in ESI establishment. There is earlier note that instead of increasing retirement age for an indefinite period, Labour & Employment Department may consider grant in extension of service to such Doctors who are interested in continuing in service till such time as the shortage of Doctors lasts. It may not be desirable to increase the retirement age. The Chief Secretary made a note below the same on 13.12.2004 on the suggestion of the Special Secretary, Finance Department marked as A to the effect that 'A' may be taken as a solution and for a specified period initially for 5 years. But the Hon'ble Chief Minister passed the above quoted orders below that and perhaps because of this theOpp. Parties contested the matter concealing the order of the Chief Minister.
7. Article 163 of the Constitution of India provides that there shall be a Council of Ministers with the Chief Minister as the head to aid and advise the Governor in the exercise of his functions, except in so far as he is by or under this Constitution required to exercise his functions or any of them in his discretion.
8. Article 166 provides for the Conduct of business of the Government of a State. According to Clause-3 of the same the Governor shall make rules for the more convenient transaction of the business of the Government of the State, and for the allocation among Ministers of the said business in so far as it is not business with respect to which the Governor is by or under this Constitution required to act in his discretion.
9. The Governor of Orissa in exercise of his power under Article 166 has made the Orissa Government Rules of business, which were published on 14th December, 1956. The order of the Chief Minister was to be given effect to by bureaucrats. But instead of implementing the decision and instead of bringing it to the knowledge of the Court/Tribunal, they concealed the same and contested the case as if it is not a fit case to enhance the superannuation age of Allopathy Medical Officers working in E.S.I. Learned Government Advocate has at a later stage submitted that the decision of the Chief Minister dated 14.1.2005 was to be put before the Cabinet for approval. This Court is unable to understand as to why the decision of 14th of January, 2005 was not put before the Cabinet for its decision. However, under Rule 7 of the Rules of Business, it has been provided that the Council shall be responsible for all executive orders issued in the name of the Government in accordance with these rules whether such orders are authorized by an individual Minister or Minister of State on a matter appertaining his Port folio or as a result of discussion at a meeting of the Councilor of the Cabinet or howsoever otherwise.
10. Second Proviso to Rule 8 of the Government Rules of Business is relevant for the purpose of taking the decision by the Chief Minister. Rule 8 along with its proviso are quoted as under:
8.(1) All cases referred to in the Second Schedule shall be brought before the Cabinet by the direction of:
(i) the Chief Minister, or
(ii) the Minister in-charge or the Minister of State in-charge of the case with the consent of the Chief Minister.
(iii) Cases shall also be brought before the Cabinet by the Chief Minister by the direction of the Government underClause (c) or Article 167:
Provided that no case in regard to which the Finance Department is required to be consulted under Rule 10 shall, save in exceptional circumstances under the direction of the Chief Minister, be discussed by the Cabinet unless Finance Minister has had opportunity for its consideration.
Provided further that the Chief Minister may anticipate approval of the Cabinet in cases of emergency, if the meeting of the Cabinet is likely to be delayed. Such cases shall have to be placed before the next meeting of the Cabinet as and when held.
11. In the instant matter, the Finance Department including the Finance Minister was consulted and a decision was taken by the Chief Minister, which was later on signed by the Finance Minister also.
12. Further on the query made by this Court, the Director, Employees State Insurance Scheme, Orissa has filed his affidavit indicating the Allopathy Medical Officers of Medical and Health Department working in the E.S.I. Scheme since last several years for which the Opposite Parties taken a plea that they are on deputation, but the maximum period of permissible deputation is only six years. The details of some of those Medical Officers who are working in the E.S.I. Scheme and belonging to Medical Department are given hereunder:
Sl. Name of the Medical Date of Joining Period Spent under ESI
No. Officer belonging to under E.S.I. Scheme till 17.1.2006
Health & Family Scheme
Welfare Department.
______________________________________________________________________
1 Dr. Prasanna Kumar 18.7.1988 17 yrs 6 months 00
Patel days.
2 Dr.(Mrs.) Sabita 11.11.1988 17 yrs. 2 months 06
Patel days.
3 Dr. (Mrs.) Shyama 01.08.1989 16 yrs. 5 months 17
Nayak days.
4 Dr. (Mrs.) Satyabhama 07.04.1992 13 years 9 months
Behera 11 days.
5. Dr. Parameswar 18.11.1993 12 years 2 months
Mishra 00 days
Sl. Name of the Medical Date of Joining Period Spent under ESI
No. Officer belonging to under E.S.I. Scheme till 1 7.1.2006
Health & Family Scheme
Welfare Department.
______________________________________________________________________
6. Dr. Chandrika Prasad 30.09.1996 9 years 3 months 18
Das days
7 Dr. (Mrs) Prativa 15.02.1997 8 years 11 months
Pradhan 03 days.
8 Dr. (Mrs) Gitanjali 19.03.1997 8 years 9 months 29
Kar days.
9. Dr. (Mrs) Saraswati 07.05.1997 8 years 8 months 11
Das days.
10 Dr. Malaya Kumar 01.07.1997 8 years 6 months 17
Gharei days.
11 Dr. Manoj Kumar Pati 07.07.1997 8 years 6 months 11
days.
12 Dr. Namita Sharma 10.07.1997 8 years 6 months 08
days.
13 Dr. Anup Minz 12.7.1997 8 years 6 months 06
days.
14 Dr. Gurudatta Das 14.07.1997 8 years 6 months 04
days.
15 Dr. Sanatan Panda 15.07.1997 8 years 6 months 03
days.
16. Dr. Ranjita Patnaik 22.09.1997 8 years 3 months 27
days.
17 Dr. Rajlaxmi Panda 31.10.1997 8 years 2 months 18
days.
______________________________________________________________________
13. The Director, ESI has filed a list of 27 medical officers belonging to Medical & Health Department and working in ESI out of which some Medical Officers have been shown as permanently absorbed in the ESI. The reason to enhance the age of superannuation of the Allopathy Medical officers from 58 to 60 years, working in Medical and Health Department was mentioned that there was paucity of Medical Officers in the Medical and Health Department. But from the perusal of the chart enclosed as annexure to the above mentioned additional affidavit of the Director, it is clear that a large number of Medical Officers belonging to Medical and Health Department are working in the ESI since last about seventeen years and, therefore, it cannot be said that there is no dearth of doctors in ESI also. As mentioned in the notings also this fact has been mentioned by the Special Secretary, Finance.
14. In view of the above mentioned facts and circumstances, perhaps the Chief Minister and the Finance Minister have come to the conclusion that the age of superannuation of the Allopathy Doctors working in ESI scheme should be at par with the Allopathy Doctors working in the Health and Family Welfare Department, as quoted above. But we are surprised to see that the decision taken by the Chief Minister and the Finance Minister was concealed and the Officers contested the claim of the Petitioners on the ground that the Allopathy Doctors working in the Health and Family Welfare Department cannot be kept at par with the Allopathy Doctors working in the ESI Scheme and, thus, they have mislead the Tribunal, this Court and perhaps the Hon'ble Apex Court also taking such plea in earlier Writ Petition W.P.(C) No. 4212 of 2005 and the S.L.P (C). No. 22762-63 of 2005 which was disposed of on 28.10.2005 by the Apex Court.
15. However, considering the facts and circumstances of the case, as discussed above, we are of the opinion that the Petitioners who are going to be superannuated much after the decision of the Chief Minister and the Finance Minister should be liable to get benefit of the decision and they are liable to be superannuated at the age of 60 years.
16. In view of the above mentioned facts and circumstances, all the Writ Petitions are allowed. The impugned Judgment and order passed by the Orissa Administrative Tribunal is quashed and a writ of mandamus is issued commanding theOpp. Parties to allow the Petitioners to work till the age of 60 years treating their age of superannuation as 60 years giving parity with theAllopathic doctors of the Medical and Health Department working in that department as well as in the ESI scheme.
There shall be no order as to costs.
Pradip Mohanty, J.
17. I agree