Tamil Nadu Govt. Retired Medical Officers Association vs State of Tamil Nadu and Others

S. Tamilvanan, J.—The writ petition in W.P.(MD). No. 5168 of 2011 has been filed under Article 226 of the Constitution of India, by Tamil Nadu Govt., Retired Medical Officers Association, Madurai District, seeking an order in the nature of writ of mandamus, directing the respondents to fix and pay, revised pension, as per G.O.Ms. No. 354, Health and Family Welfare (B2) Department, dated 23.10.2009 for the post of Professor, to the members of the Tamil Nadu Govt. Retired Medical Officers Association, considering the post they were holding at the time of their retirement. The relief sought for in the writ petition is to provide pension to the members of Tamil Nadu Govt. Retired Medical Officers'' Association, as per G.O.Ms. No. 354 of 2009 read with G.O.Ms. No. 235, Finance (Pay Cell) Department, dated 01.06.2009 and G.O.Ms. No. 200, Finance (Pay Cell) Department, dated 18.05.2009 and consequently to pay all the arrears of pension payable to the members of the petitioner''s association pursuant to fixation of revised pension from the respective eligible dates. The writ petition in W.P. (MD). No. 9215 of 2011 has been filed under Article 226 of the Constitution of India, by Dr. T. Rajagopal, in his individual capacity, seeking an order in the nature of writ of certiorarified mandamus, calling for the records pertaining to the proceeding in Letter No. 27434/Pay Cell/2011-1, dated 22.07.2011 on the file of the first respondent and quash the same and further to direct, the respondents to revise and pay, the petitioner''s pension on the basis of pay scale of Chief Civil Surgeon, as prescribed in G.O.(Ms) No. 354, Health and Family Welfare (B2) Department, dated 23.10.2009.

It is not in dispute that W.P. (MD). No. 5168 of 2011 has been filed by Dr. T. Rajagopal, as President of Tamil Nadu Government Retired Medical Officers Association, Madurai District and W.P.(MD). No. 9215 of 2011 has been filed by him in his individual capacity. However, the relief sought for in both the writ petitions are similar in nature, hence, both the writ petitions were heard together and a common order is being passed by this Court.

In this common order, for the sake of convenience, Dr. T. Rajagopal, the petitioner in W.P.(MD). No. 9215 of 2011 is referred to as "petitioner" and Tamil Nadu Government Retired Medical Officers Association, Madurai District, the petitioner in W.P.(MD). No. 5168 of 2011 is referred to as "Retired Medical Officers'' Association".

The petitioner, Dr. T. Rajagopal has stated that he had joined service as Assistant Surgeon in the year 1970 and on acquiring post graduate qualification, he was posted as Assistant Professor in the Department of Paediatrics in Madurai, then promoted as Senior Civil Surgeon and served as Registrar of Paediatrics Department in the Madurai Medical College in the year 1999. The post held by the petitioner was subsequently re-designated with effect from 17.01.1999 and accordingly, he was posted as Additional Professor of Paediatrics, Madurai Medical College, Madurai and retired as Professor of Paediatrics, Madurai Medical College on 29.08.2003. The aforesaid factual aspects are not disputed in this writ petition by the respondents.

Learned counsel appearing for the petitioner in both the writ petitions drew the attention of this Court to the copy of G.O.Ms. No. 200, Finance (Pay Cell) Department, dated 18.05.1999, whereby as Government servants, the petitioner and other members of the Retired Medical Officers Association are entitled to get 50% of the revised pay-scale as pension with effect from 01.01.1996 for the post held by the employees at the time of retirement and also submitted that as per G.O.Ms. No. 235, Finance (Pay Cell) Department, dated 01.06.2009, the petitioner and the members of the petitioners'' association are entitled to 50% of the revised pay-scale and other emoluments. It is further submitted on the side of the petitioners in both the writ petitions and argued that as per G.O.Ms. No. 354, Health and Family Welfare (B2) Department, dated 23.10.2009, the petitioners in both writ petitions are entitled to get pension, on par with other similarly placed medical officers, who retired as Professors, after 23.10.2009, the date of implementation of the said G.O.Ms. No. 354 of 2009.

Per contra, the respondents have stated in their counter that the petitioner and other members of the Retired Medical Officers Association, who retired prior to 23.10.2009 are not eligible to seek pension, on par with the similarly placed medical officers, who retired subsequent to 23.10.2009, the date of implementation of the G.O.Ms. No. 354 of 2009. In support of the contention of the respondents, Mr. K. Chellapandian, learned Additional Advocate-General drew the attention of this Court to the averments made in the counter filed by the respondents, wherein the respondents have stated that the Tamil Nadu Government Doctors'' Association had requested the Government to provide all the Government Doctors with Dynamic Assured Career Progression (DACP) due to lack of adequate promotional opportunities and stagnation at various levels in the system. Accordingly, the Government constituted a committee to look into the promotional opportunities of Government Doctors, at various levels, headed by Special Secretary to Government, Finance Department and to submit a report.

It is further stated in the counter that after careful examination, the Government have issued orders in G.O.Ms. No. 354, Health and Family Welfare (B2) Department, dated 23.10.2009 by providing promotional opportunities to the existing Government Doctors, who have completed 8, 15 and 20 years in Government services. As per this Government Order, a new post was also created viz., Chief Civil Surgeon in the Pay Band IV with Grade Pay of Rs. 8700/-. Hence, Government Doctors in the Directorate of Medical and Rural Health Services/Directorate of Medical and Rural Health Services (ESI)/Directorate of Preventive Health and Preventive Medicine, who have completed 8, 15 and 20 years have been moved to the next cadre, i.e., Senior Assistant Surgeon, Civil Surgeon and Chief Civil Surgeon respectively. On the same analogy, new posts were created in the cadre of Senior Assistant Professor and Associate Professor, pay-scale, Rs. 15,600-39,100 + Grade Pay of Rs. 6600/- and Rs. 7600/- respectively and for the post of Professor, pay-scale of Rs. 37,400 - 67,000 + Grade pay Rs. 8700/- were fixed. As per the G.O., the Government Doctors, serving in the Directorate of Medical Education, as Asst. Professors, who have completed 3 years in the cadre of Assistant Professor could become Senior Assistant Professors. Similarly, the Senior Assistant Professor, after completion of two years of teaching experience would become Associate Professor, the Associate Professor, after completion of 4 years of teaching experience, would become Professor. It is further stated in the counter that before issuing the Government Order in G.O.Ms. No. 354, Health and Family Welfare (B2) Department, dated 23.10.2009, there were combined grade posts available, as Associate Professor/Professor, though there was no specific post sanctioned in the nomenclature of Professor, as per the Special Rules of the Tamil Nadu Medical Service. According to the respondents, the combined post of Associate Professor/Professor was in existence based on the teaching experience, as per G.O.Ms. No. 354 of 2009, those who have completed four years teaching experience in the post of Associate Professor would be designated as Professor.

According to the respondents, the post of Professor has been created by G.O.Ms. No. 354, dated 23.10.2009, corresponding to the post of Chief Civil Surgeon created in the Directorate of Medical and Rural Health Services, so as to enable the Medical Officers working under the Director of Medical Education, with teaching qualification, as prescribed by Medical Council of India, to get better promotional opportunities. The Government Order in G.O.Ms. No. 354 of 2009 came into effect from the date of issuance of the order on 23.10.2009. The respondents have further stated that the said date is taken into account as crucial date to decide the eligibility of the Medical Officers. Based on the said Government Order, the Government Doctors have got their benefits with effect from 23.10.2009.

It is further stated in the counter that the Government Order is not based on the recommendations of the VI pay commission, but the same was passed by the Government of Tamil Nadu, based on the demands of the Tamil Nadu Government Doctors'' Association to provide better promotional opportunities with Dynamic Assured Career Progression (DACP) only for the then existing Medical Officers.

According to the learned counsel appearing for the petitioner in both the writ petitions, the petitioner and the other members of the petitioner''s association are paid only a meager amount of pension, by the respondents, ignoring the mandate of the aforesaid Government Order in G.O.Ms. No. 354 of 2009. Hence, the writ petitions are filed seeking an order in the nature of mandamus, directing the respondents to pay pension, as per the Government Order in G.O.Ms. No. 354 of 2009, on par with other medical officers, who retired after 23.10.2009, the date of the said Government Order.

Mr. K. Chellapandian, learned Additional Advocate General, who appeared for the respondents 1 to 4 submitted that the petitioners are not entitled to seek pension, as per G.O.Ms. No. 354 of 2009, Health and Family Welfare (B2) Department, dated 23.10.2009, as it was a policy decision taken by the Government and that there is a reasonable classification, so far as the medical officer''s, who retired subsequent to the date of the Government Order, dated 23.10.2009. According to him, the medical officers, retired prior to the date of G.O.Ms. No. 354, dated 23.10.2009 are not entitled to claim pension on par with the medical officers, who retired subsequent to G.O.Ms. No. 354, dated 23.10.2009. It was further argued on behalf of the respondents that the writ petition filed in W.P.(MD). No. 5168 of 2011 by the Tamil Nadu Government Retired Medical Officers Association, represented by its President is not maintainable. According to the respondents, every individual retired medical officer could have filed separate writ petition. However, the maintainability of the other writ petition in W.P.(MD). No. 9215 of 2011 filed in the individual capacity is not in dispute.

On behalf of the petitioner in W.P.(MD). No. 5168 of 2011, it was argued that the writ petition filed by the Retired Medical Officers Association is legally sustainable, relying on various decisions of the Hon''ble Apex Court and also this Court.

Mr. K. Chellapandian, learned Additional Advocate-General drew the attention of this Court to G.O.Ms. No. 354, Health and Family Welfare (B2) Department, dated 23.10.2009 and submitted that having considered the request of the Tamil Nadu Government Doctors'' Association (TNGDA), the Government thought it proper to provide all the Government Doctors with Dynamic Assured Career Progression (DACP), on account of lack of adequate promotional opportunities and stagnation at various levels in the medical Department. Accordingly, the Government constituted a committee to look into the promotional opportunities of Government Doctors at various levels, headed by Special Secretary to Government Finance Department and accordingly, a report was subsequently submitted by the committee to the Government.

It was further argued by the learned Additional Advocate-General that for implementing G.O.Ms. No. 354, Health and Family Welfare (B2) Department, dated 23.10.2009, the financial commitment was approximately estimated at Rs. 67.3 crores per annum for Director of Medical and Rural Health Services/Director of Public Health and Preventive Medicine/Director of Medical and Rural Health Services (ESI) side and Rs. 51.3 crores per annum for Director of Medical Education side and also drew the attention of this Court, to paragraph number 4 (XV) and paragraph number 7 of G.O.Ms. No. 354 of 2009, dated 23.10.2009 and submitted that the eligibility for getting the revised pay and pension under the Government order is prospective in nature and that the said Government Order came into effect only from the date of the order and therefore, the petitioner and others, who retired prior to 23.10.2009 are not entitled to claim pension on par with other medical officers, retired subsequent to the date of the Government Order.

However, it is submitted by the learned counsel appearing for the petitioner that the petitioner is drawing pension approximately at Rs. 18,156/-, whereas the far juniors to the petitioner, who retired after 23.10.2009 are drawing pension more than Rs. 23,050/-, based on their service, though the petitioner, who had served for more than 33 years and retired as Professor is paid a lesser amount of pension than his juniors, which is against the mandate of equality before law and equal protection of laws, enshrined under Article 14 of the Constitution.

It is seen that a Division Bench (Elipe Dharma Rao & K.K. Sasidharan, JJ.) of this Court, by judgment, dated 14.09.2010 made in W.P. No. 7400 of 2010, has held that the Tamil Nadu Retired Judges Welfare Association, Chennai, represented by its Secretary was legally maintainable. It is seen that the writ petition was filed by the Tamil Nadu Retired Judicial Officers Association, regarding revision of pension, in respect of District Judges Gr. I/Gr. II, who retired prior to 01.01.1996 on par with the District Judges Selection Grade/Entry Level after 01.01.1996. It was held by the Division Bench of this Court that the writ petition, which had been filed by the Retired District Judges in the name of their Association was legally maintainable.

In this regard, it is pertinent to note the latest decision rendered on 17.01.2013, by a three Judges Bench of the Hon''ble Apex Court in C.A. Nos. 8848-8849 of 2012, whereby allowed the appeal preferred by the Kallakurichi Taluk Retired Official Association, Tamil Nadu and ruled that the writ petition filed by an Association is maintainable in law.

This Court (N. Paul Vasanthakumar, J.), in Kallakurichi Taluk Retired Official Association v. The Government of Tamil Nadu, by order, dated 20.04.2006 allowed the writ petition, directing the respondent to revise the pensionary benefits to the petitioner''s association in accordance with G.O. Ms. Nos. 272 and 273, dated 15.06.1998 and pay the arrears of pension within eight-weeks from the date of receipt of a copy of the said order and the aforesaid view was confirmed by the Hon''ble Supreme Court.

On behalf of the respondents, the decision in Nadar Mahajana Sangam, Madurai v. Reserve Bank of India, reported in (2006) 1 SCC 776 was referred to. It is seen that the writ appeal was dismissed, confirming the view taken by the learned single Judge, on the ground that the writ petition could not be maintained against a private Bank, hence, the aforesaid decision is not directly applicable to decide the maintainability of the present writ petition. Therefore, it is crystal clear, in the light of the decisions of the Hon''ble Apex Court and this Court that the writ petition in W.P. (MD). No. 5168 of 2011 filed by the Tamil Nadu Govt. Retired Medical Officers'' Association is maintainable in law, in the light of various decisions rendered by the Hon''ble Supreme Court and this Court.

Mr. K. Chellapandian, learned Additional Advocate-General submitted that G.O.Ms. No. 354, dated 23.10.2009 was issued, in order to provide promotional opportunities to the existing Government Doctors, who have completed 8,15 and 20 years in Government services respectively to the next cadre and as per the Government Order, new post, viz., Chief Civil Surgeon in the pay band IV with Grade Pay Rs. 8700/- was created. The said Chief Civil Surgeon post, according to the respondents was not in existence in the year 2003, when the petitioner was in service. The said Government Order was given effect from 23.10.2009, the date of the said Government Order. Paragraph number 15 of the said G.O., specifically mentions that the Government Order was only with prospective effect and for future promotions and therefore, the crucial date has been specified as 23.10.2009 in the G.O. The respondents submit that the Medical Officers, who retired subsequent to the aforesaid Government Order alone are entitled to seek pension, based on the revised pay-scale, which is not available to the petitioner or the other members of the Tamil Nadu Govt. Retired Medical Officers Association, who had retired prior to 23.10.2009.

Learned Additional Advocate-General contended that G.O. Ms. No. 354 is not a common Government Order or continuation of the VI Pay Commission or G.O.Ms. No. 235, Finance Department, dated 01.06.2009 and that the said G.O., is no way connected with the VI Pay Commission. According to him, the crucial date of G.O.Ms. No. 354 is 23.10.2009, which was issued only for the Doctors, who were serving and retired after 23.10.2009. According to him, the medical officers, who retired prior to 23.10.2009 are not eligible to get pension, on the revised scale, as per G.O.Ms. No. 354 of 2009.

In the written submission made by the respondents, it is stated that there was no post in the name of Professor, as per the Tamil Nadu Medical Service Rules, prior to the issuance of G.O.Ms. No. 354, Health and Family Welfare (B2) Department, dated 23.10.2009. Medical Officers in the cadre of Reader/Associate Professor working in Government Medical Colleges have been designated, after completion of four years of service as Professors, based on the norms already prescribed by the Medical Council of India. It was argued on behalf of the respondents that as per the G.O.Ms. No. 354, dated 23.10.2009, new posts were created in the cadre of Senior Assistant Professor and Associate Professor in the Pay Band III, scale of pay Rs. 15,600 - 39,100/- with Grade Pay of Rs. 6600/- and Rs. 7600/- respectively and for the post of Professor, Pay Band IV, scale of pay Rs. 37,400 - 67,000 + Grade Pay of Rs. 8700/-. According to the respondents, there was no specific post sanctioned in the nomenclature of Professor under the special Rules for the Tamil Nadu Medical Service and the post of Professor has been created only by G.O.Ms. No. 354, Health and Family Welfare (B2) Department, dated 23.10.2009 and therefore, the petitioner and other Medical Officers, who retired prior to 23.10.2009 are not eligible to get revised pension, as per G.O.Ms. No. 354, Health and Family Welfare (B2) Department, dated 23.10.2009.

In Union of India (UOI) and Another Vs. SPS Vains (Retd.) and Others, following the earlier decision in D.S. Nakara and Others Vs. Union of India (UOI), it has been held as follows:

The said decision of the Central Government does not address the problem of a disparity having created within the same class so that two officers both retiring as Major Generals, one prior to 1-1-1996 and the other after 1-1-1996, would get two different amounts of pension. While the officers who retired prior to 1-1-1996 would not get the same pension as payable to a Brigadier on account of the stepping up of pension in keeping with the fundamental rules, the other set of Major Generals, who retired after 1-1-1996 will get a higher amount of pension, since they would be entitled to the benefit of the revision of pay-scales after 1-1-1996.

In our view, it would be arbitrary to allow such a situation to continue since the same also offends the provisions of Article 14 of the Constitution.

In the case of retirement of two Major Generals, one prior to 1-1-1996 and another after 1-1-1996, there was a situation to grant two different amounts of pension, however, the officers, who retired prior to 1-1-1996 was also subsequently, made to get the same pension payable to the Major General, who was Brigadier, on account of the stepping up of pension, in view of the Fundamental Rules. The Major General, who retired after 1-1-1996 was getting a higher amount of pension, since he was entitled to the benefit of revision of pay-scale after 1-1-1996, though the other similarly placed Major General was denied the right- However, the Hon''ble Supreme Court, considering the same, viewed that the disparity in payment of pension would be arbitrary and not to allow such a situation to continue, since the same offends the provisions of Article 14 of the Constitution and accordingly, both the officers of the same rank were ordered to be given similar pensionary benefits, to maintain equality.

One of the questions posed in D.S. Nakara and Others Vs. Union of India (UOI), was whether a class of persons could be decided for the purpose of entitlement and payment of pension, based on the date of retirement, in view of the fact that some of the officers have retired, prior to certain date and some others retired thereafter. The question was answered by Constitutional Bench of the Supreme Court, holding that such division being both arbitrary and unprincipled and hence, the classification did not withstand a test of Article 14, as class legislation and not a reasonable classification.

In R. Viswan and Others Vs. Union of India (UOI) and Others, on the question of morale and submitted that the arbitrary decision to discriminate between the two sets of officers belonging to the same rank, in the matter of payment of pension was bound to adversely affect the morale of senior officers of the rank of Major General, which was the feeder post to the rank of Lt. General, from amongst whom the chief of the army staff is ultimately chosen.

In Union of India (UOI) and Another Vs. SPS Vains (Retd.) and Others, the Hon''ble Apex Court has held as follows:

However, before we give such directions we must also observe that the submissions advanced on behalf of the Union of India cannot be accepted in view of the decision in D.S. Nakara and Others Vs. Union of India (UOI), . The object sought to be achieved was not to create a class within a class, but to ensure that the benefits of pension were made available to all persons of the same class equally. To hold otherwise would cause violence to the provisions of Article 14 of the Constitution. It could not also have been the intention of the authorities to equate the pension payable to officers of two different ranks by restoring to the step-up principle envisaged in the fundamental rules in a manner where the other officers belonging to the same cadre would be receiving a higher pension.

We, accordingly, dismiss the appeal and modify the order of the High Court by directing that the pay of all pensioners in the rank of Major General and its equivalent rank in the two other wings of the Defence Services be notionally fixed at the rate given to similar officers of the same rank after the revision of pay-scales with effect from 1-1-1996, and thereafter, to compute their pensionary benefits on such basis with prospective effect from the date of filing of the writ petition and to pay them the difference within three months from date with interest at 10% per annum. The respondents will not be entitled to payment of account of increased pension prior to the date of filing of the writ petition.

In the said decision, the Hon''ble Supreme Court has categorically held that the object sought to be achieved was not to create a class within the same class, but to ensure that the benefits of pension should be made available to all persons of the same class equally and holding otherwise is violative of the mandatory requirement under Article 14 of the Constitution.

As per service law, tie validity criteria for pay fixation was laid down in Special Army Instruction 2/S/1998, which enabled post 1-1-1996 retired Major Generals (and their counterparts in Air Force and Navy) to draw higher pension compared to pre 1-1-1996 retirees, however, following D.S. Nakara and Others Vs. Union of India (UOI), the Apex Court held that it was not possible to create a class within class for the purpose of granting pension, merely based on the dates of retirement of two similarly placed Major Generals and it was further held that such discrimination, based on the dates of retirement of two similarly placed officers, regarding pay revision, based on cut-off date, could be construed as violative of Articles 14 and 16 of the Constitution.

In K. Thimmappa and Others Vs. Chairman Central Bd. of Dirs. SBI and Another, , it was held by the Hon''ble Apex Court that what Article 14 prohibits is class legislation and not reasonable classification, for the purpose of legislation. If the rule making authority takes care to reasonably classify persons for a particular purpose and if it deals equally with all persons belonging to a well defined class, then it would not be open to the charge of discrimination, but to pass the test of permissible classification, for which two conditions must be fulfilled:

(a) that the classification must be founded on an intelligible differentia which distinguishes persons or things which are grouped together from other left out of the group; and

(b) that the ''differentia'' must have a rational relation to the object sought to be achieved by the statute in question. For making reasonable classification, there must be a nexus between the basis of the classification and the object under consideration. Article 14 of the Constitution does not insist that the classification should be scientifically perfect and similarly Court would not interfere unless the alleged classification results in apparent inequality or discrimination of similarly placed persons. In short, equals cannot be treated unequals by making some different nomenclature.

It is not in dispute that the petitioner Dr. T. Rajagopal, was appointed as Assistant Surgeon in the Tamil Nadu Medical Service in the year 1970 and on acquiring post-graduate qualification, he was posted as Assistant Professor in the Department of Paediatrics in Madurai Medical College at Madurai. He was promoted as Senior Civil Surgeon and served as Registrar of Paediatrics Department, during 1999 and the same was re-designated as Professor w.e.f. 17.11.1999 and he was posted as Additional Professor of Paediatrics in Madurai Medical College on 16.05.2000. The petitioner retired on superannuation only as Professor of Paediatrics, Madurai Medical College. As per proceedings of the Director of Medical Education, Chennai-10, dated 16.05.2000 in K. Dis. No. 26514/E1/2/2000, it is clear that he was re-designated as Professor with effect from 17.11.1999. A copy of the order communicated to the petitioner available in the typed set of papers, which reads as follows:

Under the power delegated in G.O.Ms. No. 766, Health, dated 4.5.81, Dr. T. Rajagopal, Reader in Paediatrics, Madurai Medical College, Madurai, is re-designated as Professor with effect from 17.11.99 FN and is posted as Additional Professor of Paediatrics, Madurai Medical College, Madurai.

C.S. Jayachandran

Director of Medical Education.

It is seen that copy of the order was communicated to the petitioner, stating him as Additional Professor of Paediatrics, Madurai Medical College, Madurai. It was further made clear that as per GO (Rt) No. 1504, Health & Family Welfare (Al) Department, dated 29-08-2003, the date of attaining the age of superannuation of the petitioner is stated as 31.08.2003. As per the G.O., six medical officers were stated to have attained superannuation. Sl. No. 3, relates to Dr. T. Rajagopal, the petitioner herein, who is stated as Professor of Paediatrics, Institute of Child Health and Research Centre, Madurai Medical College, Madurai, as per the Government Order. As per the G.O., Sl. No. 1, Dr. R. Ponnudurai, Dean Tamil Nadu Medical Service, Sl. No. 2, Dr. Pacifica Simoh, Director and Professor, Institute of ENT, Madras Medical College, Chennai and three other medical officers were also notified for attaining the age of superannuation. Even in the said Government Order, the superannuation of the petitioner was notified, stating him as Professor of Paediatrics, Madurai Medical College, Madurai and therefore, the respondents are estopped from raising a plea that the petitioner was not holding the post of Professor of Paediatrics. The petitioner has stated that he had served for 33 years under the respondents and retired as Professor in Paediatrics, Madurai Medical College, Madurai and the said year of services rendered by the petitioner is also not in dispute.

In the counter, the respondents have admitted that the Government Doctors both serving in the Directorate of Medical Service and in the Director of Medical Education, as Assistant Professor, Senior Assistant Professor, Associate Professor and Professor are given Dynamic Assured Carrier Progression (DACP), considering the representation made by the Tamil Nadu Government Doctors'' Association and also considering lack of adequate promotional opportunities to the said Doctors. As per G.O. Ms. No. 354, Health and Family Welfare (B2) Department, dated 23.10.2009, the Government Doctors in the Directorate of Medical and Rural Health Services, Directorate of Medical and Rural Health Services (ESI)/Directorate of Public Health and Preventive Medicine, who have completed 8, 15 and 20 years have moved to the next cadre, i.e., Senior Assistant Surgeon, Civil Surgeon and Chief Civil Surgeon and on the same analogy, new post was created in the cadre of Senior Assistant Professor and Associate Professor in the Pay Band III with different Grade Pays and for Professors, Pay Band IV with Grade Pay of Rs. 8700/- respectively for the medical officers, serving in the Directorate of Medical Education. It is also admitted in the counter that the Government Doctors in the Directorate of Medical Education, who have completed 3 years in the cadre of Assistant Professor could become Senior Assistant Professor, Senior Assistant Professor after completion of 2 years of teaching experience would become Associate Professor and the Associate Professor, after completing 4 years of teaching experience would become Professor. However, the respondents have stated that before issuing G.O.Ms. No. 354, dated 23.10.2009, there was only combined grade post available as Associate Professor/Professor, though as per the G.O (Rt) No. 1504, dated 29.08.2003, the respondents have notified that the petitioner, Dr. T. Rajagopal, was Professor of Paediatrics, Madurai Medical College, Madurai.

According to the respondents, the post of Professor has been created by G.O.Ms. No. 354, Health and Family Welfare (B2) Department, dated 23.10.2009, corresponding to Chief Civil Surgeon created in the Directorate of Medical and Rural Health Services, which cannot be accepted, in view of the GO (Rt) No. 1504, Health and Family Welfare (A1) Department, dated 29.08.2003 issued by the respondents, stating the petitioner as Professor of Paediatrics.

Mr. G. Prabhu Rajadurai and Mr. V.R. Venkatesan, learned counsel appearing for the petitioners submitted that neither the post of Professor nor the post of Chief Civil Surgeon was created by the said Government Order, G.O.Ms. No. 354 of 2009. According to them, the post of Professor was already in existence and the petitioner was holding the post of Professor, Paediatrics Department, on the date of his retirement, as notified by the respondents. As per G.O.Ms. No. 354, based on the year of service, the next stage of promotions are given. Even as per the counter, the respondents have stated thus:

As Assistant Surgeon (entry level)/(on completion of 5 years).

(Rs. 15600-39100 + Grade Pay of Rs. 5400) Senior Assistant Surgeon (on completion of 4 years).

(Rs. 15600-39100 + Grade Pay of Rs. 5700). Civil Surgeon (on completion of 2 years).

(Rs. 15600-39100 + Grade Pay of Rs. 6600).

Senior Civil Surgeon (on completion of 1 year)

(Rs. 15600-39100 + Grade Pay of Rs. 7600).

Chief Civil Surgeon Rs. 37400-67000 + Grade Pay of Rs. 8700).

After completing 12 years of service, an entry level Assistant Surgeon, automatically becomes Chief Civil Surgeon in the scale of 37400-67000 + Grade Pay 8700/-. Similarly, Senior Assistant Professor equivalent to Civil Surgeon is getting the scale of 15600 - 39100 + Grade Pay 6600/-. After completing 3 years as Assistant Professor, one can become a Senior Assistant Professor. As per G.O.Ms. No. 354 of 2009, the combined grade of Associate Professor/Professor was split into Senior Assistant Professor, Associate Professor and Professor. The post of Associate Professor is corresponding to Senior Civil Surgeon, for which the pay scale fixed is Rs. 15600 - 39100 + Grade Pay 7600/- and the post of Chief Civil Surgeon was newly created, as per G.O.Ms. No. 354 of 2009, for a pay scale of Rs. 37400-67000 + Grade Pay of Rs. 8700/-. according to the respondents, the post of Professor has been created in the Directorate of Medical and Rural Health Services and Directorate of Public Health and Preventive Medicine. The scale of Assistant Professor Senior Assistant Professor, Associate Professor and Professor have been revised by pay scales of Rs. 15,600 - 39100 + Grade Pay of Rs. 5700/-; Rs. 15600-39100 + Grade Pay 6600/-; Rs. 15600 - 39100 + Grade Pay 7600/-; and Rs. 37400 - 67000 + Grade Pay 8700/- respectively.

On a careful perusal of the pay-scale and the nomenclature, it would make crystal clear that there is no promotional post created, as per the G.O., based on selection formality of merit-cum-seniority or solely based on merit, in case of direct recruitment, as per G.O.Ms. No. 354 of 2009. The GO reads that in order to provide the Government Doctors, with Dynamic Assured Career Progression (DACP), the new scale of pay was introduced, by the G.O.Ms. No. 354, Health and Family Welfare (B2) Department, dated 23.10.2009. Therefore, a medical officer in the cadre of Assistant Surgeon, who has completed 12 years of service shall be upgraded as Civil Surgeon. Similarly, an Assistant Professor, after becoming Senior Assistant Professor is entitled to get promotion as Associate Professor and Professor, based on the required number of years services rendered by the medical officer. Hence, if the nomenclature veil is lifted, except, the Dynamic Assured Career Progression (DACP) in various segments of pay-scale, it would make it clear that no real new promotional post has been created, except stating various segments and nomenclature for the same, which is based on the number of years service rendered by the medical officers. It cannot be said that the post of Chief Civil Surgeon has been created to appoint any medical officer on merits. Had it been a newly created post, either it must be a promotional post, for which selection shall be based on merit-cum-seniority or the same should be filled up based on merit, by way of direct recruitment. However, as per G.O.Ms. No. 354 of 2009, serving for number of years, one can become Chief Civil Surgeon.

G.O.Ms. No. 354, Health and Family Welfare (B2) Department, dated 23.10.2009 reads as follows:

ii. Director of Medical Education side : III. Person-oriented promotions as safeguard measure in both Director of Medical and Rural Health Services/Director of Public Health and Preventive Medicine side/Director of Medical Education side:--

...

iii. In the Director of Medical Education side, if promotions are not obtained by Assistant Professor to the levels of Senior Assistant Professors and Professors respectively in Civil Surgeons period equivalent to 15 to 20 years of joining the Medical Service, person-oriented promotions will be given as Senior Assistant Professor and Professor at the end of 15 and 20 years of joining the Tamil Nadu Medical Service respectively, subject to the condition that the person is otherwise eligible for such promotion as per Medical Council of India norms.

iv. If some of them are not eligible for promotion to these posts as per Medical Council of India norms, they will be given person-oriented promotion in the scales of Civil Surgeons and Chief Civil Surgeons. An Assistant Professor at the end of 15 years of total service will be promoted as Civil Surgeon-Assistant Professor and at the end of 20 years, Chief Civil Surgeon-Assistant Professor or Chief Civil Surgeon-Senior Assistant Professor or Chief Civil Surgeon-Associate Professor depending on the total years of service on person oriented promotion.

The petitioner, who had joined the service as Assistant Surgeon, after acquiring post-graduate qualification was posted as Assistant Professor and has served for about 33 years with unblemished record and retired as Professor. He was permitted to retire on superannuation and the same was notified, as per G.O.(Rt) No. 1504, dated 29.03.2003, stating him as Professor of Paediatrics, Madurai Medical College, Madurai.

In the aforesaid circumstances, the arguments advanced by the learned Additional Advocate-General that the petitioner and other retired Professors, who have served in the Directorate of Medical Education, constitute a different class cannot be accepted. In this regard, the lifting of the nomenclature and segment veil, would clearly show that prior to 23.10.2009, the date of G.O.Ms. No. 354 of 2009 and subsequently, there was no change in their qualification, as per the guidelines of Indian Medical Council and both are the same class of medical officers. Therefore, for all purposes, the petitioners and other Professors, who retired prior to 23.10.2009 are in the same footing, as that of the Professors in Directorate of Medical Education, retired after 23.10.2009. Only the difference is that the petitioner, Dr. T. Rajagopal and other members of the Tamil Nadu Govt. Retired Medical Officer''s Association, retired prior to 23.10.2009, who are denied pension on par with similarly placed other Professors, who retired subsequent to 23.10.2009. On such circumstances, it cannot be said that the petitioner and other Professors, who retired prior to 23.10.2009 could be construed as separate class and the other Professors of the Medical Department, retired after 23.10.2009 be another class for the purpose of getting pension and hence, the unreasonable classification is violative of Article 14 of the Constitution.

In K. Thimmappa and Others Vs. Chairman Central Bd. of Dirs. SBI and Another, , the Hon''ble Supreme Court has categorically ruled that Article 14 prohibits class legislation, though it permits reasonable classification for the purpose of making legislation. There is no change in the prescribed qualification for Professor and other medical officers, who retired prior to 23.10.2009 and other Professors, retired subsequent to 23.10.2009 under the Directorate of Medical Education in Tamil Nadu. Hence, merely based on the date of retirement, the respondents cannot say that there were two class of medical officers for the purpose of getting pension.

It is seen that there is no "rationalia" or rational basis to consider that Professors and other medical officers, who retired after 23.10.2009 were different class of medical officers, entitled to get higher amount of pension than the Professors and the other Medical Officers, retired prior to the said date, based on any reasonable classification. It is crystal clear that only the nomenclature has been changed and the segments made in the G.O.Ms. No. 354 of 2009 is only based on total year of service put in by the medical officers, in order to provide the medical officers with Dynamic Assured Career Progression (DACP). Hence, a Professor, who served in the Directorate of Medical Education, having similar qualifications prescribed by Medical Council of India, cannot be treated as a different class, based on his date of retirement. The petitioner, who served for about 33 years and retired as Professor, Paediatrics, cannot be construed as a less competent medical officer, than a Professor, having similar qualification, retired after 23.10.2009. The nomenclature given, as per G.O.Ms. No. 354 of 2009 in between the cadres of Assistant Professor and Professor, such as Senior Assistant Professor, Associate Professor, without any selection or higher qualification, based on total year of service rendered by the medical officer, would show that there was no actual promotion for the said posts. The segment of the cadres, such as Senior Assistant Professor and Associate Professor created in between Assistant Professor and Professor, that were available prior to G.O.Ms. No. 354 of 2009 is like "Old wine in new bottles", only for the purpose of providing monetary benefit, based on the revised scale under DACP, the in between cadres have been created. So far as the post of Professor under the Directorate of Medical Education is concerned, it is one and the same, prior to 23.10.2009 and subsequent to the said date of G.O.Ms. No. 354 of 2009, except the revised scale of pay and the segments made and the nomenclature given for the newly created segments. There is no other change in the qualification for promotion, being given as discussed above. Therefore, the details furnished by the respondents in the counter and other materials would clearly show that the disparity in payment of pension is not based on reasonable classification, but only based on a class legislation, which is prohibited, as the same would be against equality before law and equal protection of law, enshrined under Article 14 of the Constitution.

In K. Thimmappa and Others Vs. Chairman Central Bd. of Dirs. SBI and Another, , it was found that classification shown by the authorities does not create any reasonable class, based on "intelligible differentia", which distinguishes persons or things which are grouped together. Similarly, there was no differentia to have a rational relation to the object sought, to be achieved, as per the said Government Order. In the decision referred to, Hon''ble Supreme Court has employed the word "Statute in Question". As per Article 13(2) of the Constitution, laws inconsistent with or interrogation of fundamental rights, insofar as they are inconsistent with the provisions of Part HI of the Constitution shall be void to that extent of contravention. It is not in dispute that a Government Order is only a subordinate legislation, having the force as law.

As per Article 13(3)(a), "law" includes any ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the Territory of India, the force of law and therefore, the Government Order in G.O.Ms. No. 354, dated 23.10.2009 is only ''law'' within the purview of Article 13(3)(a) of Constitution of India. Though it is a subordinate legislation, it cannot contravene the Constitutional mandate of Article 14. In this writ petition, the validity of the G.O.Ms. No. 354 of 2009 is not in dispute and the plea of the petitioners in both the writ petitions is that the petitioner, who retired as Professor, prior to 23.10.2009 and other members of the Tamil Nadu Govt. Retired Medical Officers'' Association are entitled to get pension as that of the similarly placed medical officers, who retired after 23.10.2009.

It was also submitted by the learned Additional Advocate-General that if the writ petition is allowed, the Government has to incur heavy expense, in view of the pension to be paid for the medical officers, who retire prior to 23.10.2009. However, considering the expenditure, benefit cannot be given only to a particular group of medical officers and deny the same to the other similar group of medical officers, as it would be violative of Article 14 of the Constitution.

It is not in dispute that as per G.O.Ms. No. 200, Finance (PC) Department, dated 18.05.1999, the employees, who have retired from service, having the required years of service are entitled to get pension calculated at 50% of the revised scale of pay, as per Rules, which is not under challenge in this writ petition. Hence, the only decidable issue in these writ petitions is whether the petitioner and the other members of the Tamil Nadu Govt. Retired Medical Officer''s Association are entitled to pension, as per G.O.Ms. No. 354 of 2009, on par with similarly placed Professors and other medical officers, who retired subsequent to 23.10.2009, based on the date of retirement.

As per the decision of the Hon''ble Supreme Court in Union of India (UOI) and Another Vs. SPS Vains (Retd.) and Others, it is well settled that the respondents are not empowered to create class within class to achieve the object under the Government Order, so as to the create discrimination among equals, but it should ensure the benefit of pension to all equally placed officers, uniformly, to uphold the fundamental right, guaranteed under Article 14 of the Constitution.

It was also brought to the notice of this Court by the learned counsel appearing for the petitioners that the revised pension was given to one Thiru. T. Venkatesan, P.P.O. No. A848773, through the date of his retirement is 30.06.1996, though Assistant Treasury Officer, Tiruchirapalli. Similarly a xerox copy of the Letter No. 3391/E2/2012-2, dated 26.07.2012, issued by Additional Chief Secretary to Government to the Directorate of Collegiate Education, Chennai-6 (w.e), whereby, one Thiru. K.S. Narayanan, a retired Professor (Chemistry), of V.O. Chidambaram College, Tuticorin, an aided college, was given revised scale of pension on Rs. 37400 - 67000 + AGP 9000. The operative portion of the letter addressed by the Additional Chief Secretary to Government reads as follows:

In the present case, Thiru. K.S. Narayanan, who has completed 21 years of service in the post of Professor can be considered as Lecturer (Selection Grade) with 3 years service. Hence, he is entitled for revision of his pension with reference to the scale of pay of Rs. 37400 - 67000 + AGP 9000 with effect from 1.1.2006 at Rs. 23,200/-. Therefore, I am to request you to revise the pension of the retired Professor, Thiru. K.S. Narayanan as indicated above.

Therefore, rejection of the reasonable demand of the petitioner and the other retired members of the Tamil Nadu Govt. Retired Medical Officers'' Association has created only an unreasonable disparity in payment of pension to similarly placed persons and it has to be construed as apparent and patent discrimination among equals and thereby violating the mandate of Article 14 of the Constitution. Hence, to meet the ends of justice, I find it just and reasonable to allow the writ petitions and to direct the respondents to implement the G.O.Ms. No. 354 of 2009 to the petitioners, irrespective of their date of retirement, either prior to 23.10.2009 or subsequent to Government Order, dated 23.10.2.009. So far as the other members of the Tamil Nadu Govt. Retired Medical Officers are concerned, it is made clear that they are entitled to get their pension, on par with similarly placed officers, who retired subsequent to 23-10-2009, as per G.O.Ms. No. 354 of 2009.

In the result, both the writ petitions are allowed, setting aside the order passed in Letter No. 27434/Pay Cell/2011-1, dated 22-07-2011 on the file of the first respondent, whereby the respondents are directed to pay pension to the petitioner in both the writ petitions, though they had retired prior to 23.10.2009, on par with other similarly placed Professors and Medical Officers, who retired subsequent to G.O.Ms. No. 354, Health and Family Welfare (B2) Department, dated 23.10.2009. The respondents are ordered to comply with this directions, within eight weeks from the date of receipt of a copy of this order. No costs.