Dr. Dhirendra Srivastava vs Director General Of ESIC

L. Narasimha Reddy, J

The applicant was initially appointed as Dean of Employees' State Insurance Corporation (ESIC) Dental College & Hospital on 11.03.2010, on contractual basis, for a period of one year. This was followed by memorandum dated 30.12.2010, through which he was appointed on regular basis in Pay Band - 4 with Grade Pay of Rs. 10000/-.

The Government of India amended F.R.56 through a Notification dated 11.08.2018 whereby clause (bb) was added. It is to the effect that the age of superannuation of the Doctors in the Central Health Service (CHS) and other allied Organizations, shall be 62 years, unless they exercise option of posting to Teaching, Clinical, Patient Care and other programmes, in which case it shall be 65 years. In consonance with this, the ESIC issued Office Memorandum (O.M.) dated 17. 10.2018 requiring its Doctors to exercise their option in terms of F.R. 56. This O.A. is filed challenging the O.M. dated 17. 10.2018 as well as clause (bb) of F.R. 56.

The applicant contends that he joined the service of the respondents on the assumption that he would continue up to the age of 65 years but the amendment to the F.R.56 was made and the resultant O.M. was issued reducing the age of superannuation to 62 years. It is also stated that if he is compelled to exercise such option, it would reduce his rank, and the same is contrary to law.

Reliance is placed upon the judgment of this Tribunal in Dr. Jagdish Prasad v. Union of India & others (O.A. No. 494/2017) decided on 05.04.2018.

We heard Mr. Alok Shukla, learned counsel for applicant at some length and perused the records.

On account of the shortage of experienced Doctors in the Government hospitals and other allied institutions, the Government decided to extend the age of superannuation from 62 to 65 years. However, most of the Doctors, who reached the age of 62 years, were holding the administrative positions and when they were sought to be assigned the medical and other allied duties, after the age of 62 years, they approached this Tribunal and High Court, challenging the very amendment and consequential steps. Relief was granted to them directing that they shall not be disturbed from the administrative positions. Accordingly, the Government had to amend the F.R. 56 more than once, and ultimately clause (bb) was added through Notification dated 11.08.2018. It reads as under:-

"2.....The age of superannuation in respect of the doctors belonging to-

(i) Central Health Service;

(ii) Indian Railway Medical Service;

(iii) AYUSH and working under the Ministry of AYUSH;

(iv) Civilian doctors under the Directorate General of Armed Forces Medical Service;

(v) Medical Officers of the Indian Ordnance Factories Health Service;

(vi) Dental Doctors under the Department of Health and Family Welfare;

(vii) Dental doctors under the Ministry of Railways; and

(viii) General Duty Medical Officers, Specialist Grade doctors and Teaching Medical Faculty working in Bhopal Memorial Hospital and Research Centre, shall be sixty-two years unless they exercise the option of posting to Teaching, Clinical, Patient Care, Implementation of Health programmes, Public Health programmes and functions including advisory and consultancy depending on their expertise and experience, as decided by the competent authority in the concerned Ministry or Department from time to time, in case they desire to continue in their service upto the age of sixty-five years."

From a perusal of this, it becomes clear that the age of superannuation of the Doctors in the Government hospitals is fixed at 62 years. If any Doctor wants to continue beyond the age of 62 years, he has to give an undertaking that he is prepared to discharge the duties of Teaching, Clinical, Patient Care, etc., as mentioned in the Notification dated 11.08.2018.

The applicant can certainly have a grievance if the age of superannuation was 65 years when he joined the service of the respondents and it is sought to be reduced to 62 years. Thereagain, the law has its own ramifications. Nowhere, the applicant has claimed that the Service Rules of the ESIC prescribed the age of superannuation as 65 years, when he joined the service. Once the Fundamental Rule is amended in such a way that the age of superannuation is 62 years and option is given to the Doctors who intend to remain in service up to the age of 65 years, subject to certain fulfilment, he cannot have any grievance.

In Dr. Jagdish Prasad's case, this Tribunal categorically held that the decision as to fixation of age of superannuation is purely in the realm of policy making, and it cannot be interfered with. The relief was granted by the Tribunal only in view of the specific circumstances of the case. Further, the provision which is impugned in this OA was not the subject matter of that case.

We do not find any merit in this O.A. It is accordingly dismissed.

There shall be no order as to costs.