Bombay HC grants interim relief to 17 doctors, directs govt to reinstate them till they reach 60 years of age

Mumbai: Providing interim relief to 17 doctors who filed a petition against the dispensation of their services before reaching their retirement age, the Bombay High Court directed the Maharashtra Government to reinstate them under the interim order till they attain the age of 60 years.

This interim relief has been granted with the condition that these doctors shall continue to serve in government hospitals until they reach the age of 60. However, the order would only be placed once the petition is ultimately resolved.

A Division bench comprising Justices Nitin Jamdar and Manjusha Deshpande observed "As of date, the Petitioners are not in service, but the Petitioners have not completed the age of 60 years as of today. Generally, by mandatory interim injunction, the Court may not direct that an employee be taken into service. However, the position before us is peculiar."

Also read- FIR Filed Against Doctor, St John's Hospital After Burn Victim's Kin Allege Money Extortion

The Petitioners, permanent Medical officers working in the Public Health Department of the State of Maharashtra approached the Maharashtra Administrative Tribunal seeking prayer to allow the Applicants to continue in their services in case their services were deemed to be relieved with effect from 31st May 2023 by giving effect to the 2nd part of the proviso of Rule 10 of Maharashtra Civil Services (Pension) Rules, 1982. 

By the impugned order passed by the Tribunal on 31 August 2023, the Tribunal dismissed the original applications. After the impugned order was passed by the Tribunal on 31 August 2023, the Petitioners were discontinued from the service. Thereafter, the retired doctors decided to file this petition.

Rule 10 of the Maharashtra Civil Services (Pension) Rules, 1982 specified the retirement age of government servants such as the Petitioners as 58 years. A Government Resolution was issued on 29 August 2018 by the Public Health Department, citing the dearth of Medical Officers faced by the State Government. The Public Health Department took a decision to extend the age of retirement of Medical Officers serving in the Public Health Department from the age of 58 to 60 years. It was also resolved that appropriate amendment to Rule 10 of the Maharashtra Civil Services (Pension) Rules, 1982 (for short, “MCS (Pension) Rules, 1982). shall be made in due course of time.  

It was further resolved that an amendment would be made to the Rules. The amendment finally came into effect on February 23, 2023. It was given effect from 1 June 2022, as a result of which, the Medical Officers in the employment by the Public Health Department who were on the verge of retirement continued to be in the employment by the Government even after attaining the age of 58 years. However, the proviso in the said notification said its effect would be only till May 31, 2023, which resulted in such doctors being relieved from their respective posts.

According to the Petitioners, the proviso to Rule 10(1) of the MCS Rules, 1982, has been misinterpreted, and the Petitioners have been made to retire with effect from 31 May 2023. They contended that as a normal rule, Rule 10(1) of the MCS Rules, 1982 prescribes the age of retirement to be 58 years, however, the said Rule 10(1) was amended on 23 February 2022, and the Petitioners benefited due to the said amendment and got the benefit of the extended age of retirement of 60 years. 

As regards the implication of this proviso as to whether the age of retirement at 60 years as provided in the amendment would continue even beyond 31 May 2023, the Tribunal has observed that even the Petitioners have not crossed the age of 60 as of 31 May 2023 and would stand retired on superannuation on 31 May 2023. 

Senior Advocate Virendra Tulzapurkar along with Advocate Abhijeet Desai for the petitioners contended that this interpretation is entirely incorrect and according to them, the extension of the age as per the proviso of 60 years would continue to apply till 31 May 2023 and those who do not attain the age of 60 as of 31 May 2023 will continue till they attain the age of 60 years. Petitioners contended that once the Rule has changed their retirement age to continue till the age of 60 years, the proviso cannot take it away.

“The Petitioners have made out a prima facie case. The stand of the State Government itself, more particularly the Chief Secretary, which is reiterated before us by the learned Advocate General which supports the interpretation placed on Rule 10 by the Petitioner…” Court stated.

Before the tribunal, the Health and the Finance Departments of the State had taken different positions after which the Chief Secretary was asked to take a stand. The CS agreed with the Finance Department as it was the concerned administrative department, which supported the petitioner’s interpretation of the notification. However, ignoring this stand the Tribunal relied on a Cabinet note from July 2018 to deny relief to the petitioners.

“Though it is correct that the interpretation given by the State Government to statutory Rule will not preclude [the court] from taking a different view, for the interim order, we cannot overlook the stand of the State Government through the Chief Secretary reiterated before us by the learned Advocate General. Considering these factors and since, if no interim relief is granted, the Petitions would become infructuous, we are inclined to grant interim order,” the court said.

"We make it clear that the continuation of the Petitioner after they are so reinstated under the interim order till they attain the age of 60 years will be subject to the outcome of this Petition.

The learned Advocate General states that this order should not be construed as applying to even those who have accepted the retirement and without protest took retirement. As far as the Petitioners are concerned, this question does not arise because the Petitioners have been contesting the litigation. As and when the contingency pointed out by the learned Advocate General arises, appropriate view/decision will be taken in those cases," the court concluded. 

To view the court order click on the link below:

Also read- 97 Approved Posts At Nanded Medical College, Only 47 Professors Posts: HC Pulls Up Government