Dr. B.S. Meena @APPELLANT@Hash State Of Rajasthan

Mohammad Rafiq:

Since all these writ petitions involve similar questions of the facts and the law, they were heard together and are being decided by this common

judgment.

The petitioners in all these writ petitions are senior doctors in different branches of super-speciality and holding administrative positions in different

Medical Colleges of the State Government. They have approached this court with a common grievance challenging that part of second proviso to Rule

56 of the Rajasthan Service Rules, 1951, (for short, ‘the RSR’) introduced vide amendment by Notification dated 30.03.2018, which, while

enhancing the age of superannuation in respect of MBBS degree holder Medical Teachers of the Rajasthan Medical Service (Collegiate Branch) from

62 to 65 years, restricted their continuation during the enhanced period only on nonadministrative posts. At the time of issuance of the impugned

Notification dated 30.03.2018, petitioner Dr. B.S. Meena in Writ Petition No.7557/2018 was working on the post of Medical Superintendent, Mahila

Chikitsalaya, Jaipur, petitioner Dr. Pradeep Sharma in Writ Petition No.7556/2018 was working on the post of Professor and Head of Department

(Psychiatric) and Superintendent, Psychiatric Centre, Jaipur, petitioners Dr. U.S. Agarwal and Dr. S.K. Jain in Writ Petition No. 9335/2018 were

respectively working on the post of Principal & Controller and Additional Principal, S.M.S. Medical College and attached Hospitals thereto, Jaipur,

petitioners Dr. V.D. Sinha and Dr. Vinay Tomar in Writ Petition No.9550/2018 were respectively working on the post of Head of Department,

Neurosurgery, and Head of Department, Urology, S.M.S. Medical College, Jaipur, petitioner Dr. Rajendra Kumar Gokhroo in Writ Petition

No.11372/2018 was working on the post of Principal and Controller, J.L.N. Medical College, Ajmer, and petitioner Dr. Naresh N. Rai in Writ Petition

No.14571/2018 was working on the post of Additional Principal, Government Medical College, Kota.

Indisputably, the conditions of service of all the petitioners are regulated by the Rajasthan Medical Services (Collegiate Branch) Rules, 1962, they

being the members of the cadre of the Rajasthan Medical Services (Collegiate Branch). So far as their age of superannuation is concerned, the

conditions of their services in this behalf were regulated by Rule 56 of the Rajasthan Service Rules, 1951 (for short, ‘RSR’), which, while

originally provided as under:

“56. The date of compulsory retirement of a Government servant would be the afternoon of the last day of the month in which he attains the age of

60 years.

Provided that the provisions of age of compulsory retirement, as contained in this rule, shall not be applicable in the case of Government servants who

are in service after attaining the age of compulsory retirement either on reemployment or on extension in service.â€​

The second proviso of Rule 56 of the RSR was introduced by way of amendment vide Notification dated 31.03.2016 in the following terms:-

“Provided further that the age of superannuation in respect of MBBS degree holder Medical Teachers of the Rajasthan Medical Service

(Collegiate Branch) and MBBS degree holder Officers of the Rajasthan Medical & Health Service shall be 62 years.â€​

The effect of the aforesaid amendment was that while the age of retirement of all other Government servants continued to be 60 years but in the case

of MBBS degree holder Medical Teachers of the Rajasthan Medical Service (Collegiate Branch) and MBBS degree holder Officers of the Rajasthan

Medical & Health Service, it stood uniformly extended to 62 years.

A photostat copy of the note-sheet of the official file, on which the proposal for enhancing the age of retirement from 62 to 65 years was dealt with,

has been placed on record. It is evident therefrom that the proposal for enhancing the age of retirement was mooted taking clue from similar provision

introduced by the Department of Personnel, Government of India, vide Notification dated 05.01.2018. Therein also, a similar rider was placed on

continuation of the General Duty Medical Officers and Specialists included in the category of non-teaching and public health services on administrative

posts after the age of 62 years, even though their age of retirement was extended to 65 years. The Government of Rajasthan facing the dearth of

Teachers in the field of medical education for teaching the students and doctors in super-speciality for treatment of the needy patients, introduced the

third proviso to Rule 56 of the RSR vide notification dated 30.03.2018, which reads thus:-

“Provided further that the age of superannuation in respect of MBBS degree holder Medical Teachers of the Rajasthan Medical Service

(Collegiate Branch) shall be 65 years. After attaining the age of 62 years, the services of such Medical Teachers shall be placed on Non

Administrative positions only.

The age of superannuation in respect of MBBS degree holder Officers of the Rajasthan Medical & Health Service shall remain 62 years.â€​

Clearly, the State Government did not extend the age of retirement of MBBS degree holder Officers of the Rajasthan Medical & Health Service,

which continued to remain 62 years, but only extended the age of retirement of medical teachers with the aforesaid rider. The petitioners are not

aggrieved by extension of age of retirement from 62 to 65 years, rather this amendment is beneficial to them. However, they have assailed the

constitutional validity of the latter part of the aforesaid proviso, which restricts their continuation in service on administrative position beyond the age of

62 years.

Mr. Mahendra Shah, the learned counsel for the petitioners in Writ Petitions No.9335/2018, 9550/2018 and 14571/2018, has argued that even though

the State Government is empowered to prescribe the age of superannuation of the Medical Teachers, but Entry 25 List III (State List) Schedule VII

of the Constitution, which gives such power to the State Government, is itself subject to Entry 66 List I (Union List) Schedule VII of the Constitution.

The Parliament has by virtue of the said Entry, enacted the Indian Medical Council Act, 1956. The Medical Council of India, in exercise of the powers

conferred by Section 33 of the Indian Medical Council Act, 1956 (Act of 1956) and with the previous sanction of the Central Government,

promulgated the Medical Council of India Minimum Qualifications for Teachers in Medical Institutions Regulations, 1998 (for short, ‘the MCI

Regulations’), with the object of prescribing minimum qualification and experience for appointment of medical teachers in various departments of

medical colleges and institutions imparting graduate and post-graduate medical education to maintain standard of teaching. Regulation 3 of the MCI

Regulations, amended in the year 2009, provides that the minimum qualifications for appointment as a teacher in various departments of a medical

college or institution imparting graduate and postgraduate education shall be as specified in the Schedules I and II annexed thereto. The learned

counsel for the petitioners made specific reference to Clause 1A of Schedule-I appended to the MCI Regulations, to argue that the maximum age limit

upto which a person can be retained or granted extension in service on the post of Medical Teacher, Dean or Principal or Director, as the case may

be, shall be 70 years. It is argued that Clause 8 of the Schedule-I provides the “names of the teaching posts, academic qualifications and the

teaching or research experience†required for each teaching post are given in Table-1 in respect to graduate and postgraduate higher speciality

courses and in Table-2, in respect of super-speciality courses. Table-1 appended to the MCI Regulations provides that preference for appointment on

the posts of Principal / Dean / Director of Medical Institution, may be given to the Head of Department. The argument therefore is that if a candidate

is not allowed to continue as Head of Department beyond the age of 62 years, he shall forever lose the chance to become either Principal or Dean or

Director of Medical Institutions.

Mr. Mahendra Shah, the learned counsel argued that the post of Principal has been encadered in the MCI Regulations and not in the Rajasthan

Medical Services (Collegiate Branch) Rules, 1962 (for short, ‘the Rules of 1962’), even though a mention of the post of Principal is made in

Rule 3(f) of the Rules of 1962. Putting such a rider would tantamount to altering the conditions of service of the petitioners. The post of Principal is

filled in from amongst the eligible Senior Professors through selection by the Selection Committee. The learned counsel has referred to order dated

28.01.2015 of the Deputy Secretary to the Government, Medical Education (Gr-1) Department, Government of Rajasthan, Jaipur (Annexure-1), by

which petitioner Dr. U.S. Agarwal, who was a Senior Professor of Skin & VD, Medical College, Jaipur, was, on recommendation of the Selection

Committee, selected and substantively appointed as Principal & Controller of S.M.S. Medical College and attached Hospitals, Jaipur. He became

“Member of Serviceâ€, having acquired lien on the post of Principal, and would have the right to continue on such post till the age of

superannuation. Once the age of retirement has been enhanced from 62 to 65 years, there is no justification whatsoever in not continuing the

petitioners on the post of Principal/other administrative posts by virtue of latter part of second proviso to Rule 56 of the RSR, which is wholly arbitrary

and discriminatory inasmuch as this Rule results in an unreasonable classification by treating the equals as unequal. While Rule 56 of the RSR is

general rule applicable to all the government servants, age of retirement of the Medical Teachers has been enhanced in pursuance of the amendment

to Clause 1A of the Schedule-I of the MCI Regulations by Notification dated 17.09.2010 substituting the earlier age of retirement of ‘65 years’

by ‘70 years’. There is thus no justification for having a rider of not allowing the petitioners, appointed by way of selection, to hold the

administrative posts continuously beyond the age of 62 years, even though they can otherwise continue in service up to the age of 65 years. It is

argued that when the experienced Principal, like the petitioner Dr. U.S. Agarwal, is available to provide better services, no public purpose would be

served by discontinuing him on such post. As far as medical education and treatment of patients is concerned, even a Principal is required to do so on

regular basis.

The learned counsel argued that the respondents in making the impugned amendment have neither consulted the Department of Personnel nor the

Law Department of the Government of Rajasthan as would be evident from the note-sheet. The respondents were even not sure of the posts, which,

according to them, were administrative in nature when the amendment in the provision was introduced. It is only by way of an afterthought that they

issued the order dated 17.04.2018 declaring eight posts to be administrative in nature. He argued that the condition imposed in latter part of the third

proviso to Rule 56 of the RSR is beyond the scope of the main provision contained in Chapter IX of the RSR. It is well settled that a proviso may

carve out exception to main provision but it cannot alter the main provision itself, when the scope of which is merely to provide the age of

superannuation. By inserting a proviso to the main provision, no such additional or further condition can be imposed on continuation of the post after

enhancement of the age of retirement. The learned counsel argued that the Government of India introduced a similar provision under FR 56(bb)

requiring the employees to opt for extension of service only on non-administrative posts. Such is not the position of the impugned Rule in the present

case. In fact, the impugned amendment is against the public interest as not only the students but also the patients would be deprived of treatment by

experienced hands. The administration must always be in the safe hands of the experienced persons as new persons would take one to two years to

get acquinted with the duties of such posts. Once the petitioner was allowed to continue on the post of Principal for a long spell of time, his shifting to

the post of Professor would deprive him of all the perks, facilities and benefits attached to the post of Principal, which would amount to reduction in

rank. Citing from the judgment of the Supreme Court in Dr. Dr. Shadab Ahmed Khan and Another Vs. Prof. Mujahid Beg & Others â€" (2018) 6

SCC 385, the learned counsel argued that if there is any conflict between the State Rules and the MCI Regulations, the latter would prevail. Such a

step, besides being arbitrary, would be violative of Article 14 of the Constitution of India. There is apparent conflict between the MCI Regulations

flowing from the Central legislation. Moreover, if the petitioners are made to work under their juniors, that would seriously prejudice them as they will

have to report to their juniors and such juniors would also write their APARs, which cannot be accepted.

Mr. Mahendra Shah, the learned counsel, argued that the proposal sent for enhancing the age of retirement of the medical teachers from 62 to 65

years, was approved by the Chief Minister at Para 207/N but subsequently, on further discussion, the Chief Secretary, in his noting, opined at para

219/N that an exception should be made in respect of Principal and Superintendent, and the same was agreed and approved by the Chief Minister on

6.03.2018. Thus, the Rule 56, as amended through Notification dated 30.03.2018, is contrary to the said decision of the Government. Even otherwise,

such an amendment could be introduced only prospectively and not retrospectively qua those already working on such administrative posts. It is

argued that the continuation of the retired Professors as the Principals of the Medical Colleges, being run by the Rajasthan Medical Education Society

(for short, ‘the Raj-MES’), beyond the age of 62 years, while not according a similar treatment to the pettioners is clearly discriminatory. The

Raj-MES has been established with the approval of the Cabinet. If the Raj-MES were autonomous body having its own identity, there was no need of

the approval by the Cabinet. The constitution of the Raj-MES also makes it clear that it consists of only Officers drawn from the Government, thus the

whole control of the Raj-MES vests in the Government. The restriction placed by the respondents on continuation of the medical teachers on

administrative positions with the medical colleges beyond the age of 62 years, is wholly discriminatory as it tantamount to treating equals unequally.

Mr. Mahendra Shah, the learned counsel for the petitioners, in support of his arguments, has relied on the judgments of the Supreme Court in

University of Delhi Vs. Raj Singh and Others â€" 1994 Supp (3) SCC 516, State of T.N. and Another Vs. Adhiyaman Educational & Research

Institute and Others â€" (1995) 4 SCC 104, Dr. Preeti Srivastava and Another Vs. State of M.P. and Others â€" (1999) 7 SCC 120, Bharati

Vidyapeeth (Deemed University) and Others Vs. State of Maharashtra and Another â€" (2004) 11 SCC 755, Prof. Yashpal and Another Vs. State of

Chhttisgarh and Others â€" (2005) 5 SCC 420, Ravi Yashwant Bhoir Vs. District Collector, Raigad & Others â€" 2012 (2) Supreme 506, and Dr.

Shadab Ahmed Khan and Another Vs. Prof. Mujahid Beg & Others, supra, decided vide judgment dated 23.04.2018.

Mr. Rajendra Soni, the learned counsel for the petitioners in Writ Petitions No.7557/2018 and 7556/2018, apart from adopting the arguments advanced

by Mr. Mahendra Shah, the learned counsel for petitioners in first set of writ petitions, submitted that the restriction on continuation of the petitioners

on the administrative posts beyond the age of 62 years is wholly illegal, being violative of Article 14 of the Constitution of India. Creation of two

categories of Medical Teachers for the purpose of their posting against administrative and non-administrative posts, on the basis of differentiation of

age, has no reasonable nexus with the object sought to be achieved. While the age of retirement of the medical teachers has also been increased upto

65 years in the States of West Bengal, Gujarat, Madhya Pradesh, Maharashtra, Bihar, etc., but no such restriction on continuation of those who

crossed the age of 62 years to hold the administrative positions has been imposed. The action of the respondents being not in conformity with the

judgment of the Supreme Court in K. Manjushree Vs. State of Andhra Pradesh â€" (2008) 3 SCC 512, is liable to be declared unconstitutional.

Mr. Rajendra Soni, the learned counsel for petitioners, has argued that the State of Rajasthan has recently established five new Medical Colleges in

the State under the nomenclature of Medical Colleges run by the Raj-MES. Most of the appointments in the Medical Colleges have been made by

shifting the faculties already working in other Medical Colleges on deputation basis for the purpose of inspection by the Medical Council of India.

Reference is made to the order dated 02.04.2018 issued by the Principal & Controller, S.M.S. Medical College & attached Hospitals, Jaipur, passed in

compliance of the Government order dated 20.02.2018, whereby twenty-nine Medical Teachers working in the S.M.S. Medical College, Jaipur, were

posted on deputation with the Medical Colleges at Pali, Churu, Bharfatpur and Bhilwara. If these medical colleges are being run by the Rajasthan

Medical Education Society, how possibly can the Government post the medical teachers with them. The government employees can be deputed only

in the government departments/organizations. But deputation of the Medical Teachers with these Medical Colleges, for recognition of such colleges by

the Medical Council of India was essential. This clearly proves that all these colleges are Government Medical Colleges, the Raj-MES is mere

camouflage. Reference is made to the order dated 10.01.2018 passed by the Additional Director (Admn.)-cum-Joint Secretary, Directorate of

Medical Education, Government of Rajastha, Jaipur, for admission under NRI Quota in Medical/Dental (UG/PG) Courses in the colleges of the State

of Rajasthan. The Rajasthan Medical Education Society is nothing but an extension of the Medical and Health Department as also the Finance

Department of the State Government, which is evident from the Notification dated 12.04.2018 issued by the Rajasthan Medical Education Society,

Jaipur, amending Rule 6(4) of the Rajasthan Medical Education Society Jaipur Personnel’s (Recruitment and other Conditions) Employment Rules,

2017 (for short, ‘the Rules of 2017’), wherein the age of retirement of the medical teachers in such Medical Colleges is enhanced from 65 to 70

years as per the MCI Regulations. The order dated 12.04.2018 clearly indicates that the said amendments have been carried out with the consent of

the Finance Department of the State.

It is argued that the Convener of the Raj-MES is none other than the Additional Director, Medical Education, Government of Rajasthan, Jaipur, who

has issued the order dated 08.08.2018 posting all five persons as Principal of Medical Colleges at Dungapur, Bharatpur, Bhilwara, Churu and Pali. All

of them in the past have been working in different government medical colleges. While Dr. K.C. Agarwal, who retired from the post of officiating

Principal & Controller, Medical College, Ajmer, on 31.12.2015, was appointed as Principal, Medical College, Pali. Thus, obviously his appointment has

been made after he crossed the age of 62 years. Similarly, Dr. Pramod Kumar Saraswat, mentioned at serial no.2 in the order dated 08.08.2018, also

retired from the post of the Principal & Controller, Medical College, Ajmer, on 31.12.2013, vide order dated 28.08.2012. If they can function as

Principal of the Medical College after attaining the age of 62 years, why the petitioners could not do so. Obviously, the respondent State is practicing a

hostile discrimination against the petitioners, who are similarly situated.

Mr. Rajendra Soni, the learned counsel for the petitioners, submitted that while the Government may be competent to prescribe the age of

superannuation by the Rules but it can frame such Rules only in conformity with the MCI Regulations. The MCI Regulations permit the prescription of

age of retirement up to 70 years but do not put any such embargo as has been provided in the impugned amendment Notification. The third proviso to

Rule 56 of the RSR, being in conflict with the MCI Regulations, is liable to be struck down. It is argued that when the Notification dated 31.03.2018

was issued, the Government was itself not clear as to which of the posts have to be treated as the administrative in nature. Subsequently issued

clarificatory order dated 17.04.2018 includes the posts of Principal, Vice Principal, Superintendent of the Hospitals attached to the medical colleges but

the Superintendent of the single speciality was yet not included. This by itself proves discrimination.

Mr. Rajendra Soni, the learned counsel, in support of his arguments, has relied on the judgments of the Supreme Court in Indravadan H Shah Vs.

State of Gujarat and Another â€" AIR 1986 SC 1035, Union of India and Others Vs. N.S. Rathnam and Sons â€" (2015) 10 SCC 681, Subramanian

Swamy Vs. Director, Central Bureau of Investigation and Another â€"(2014) 8 SCC 682, State of Uttar Pradesh and Others Vs. Dinesh Singh

Chauhan â€" (2016) 9 SCC 749, Union of India and Others Vs. Shah Goverdhan L. Kabra Teachers College â€" JT 2002 (8) SC 269, Hiral P.

Harsora and Others Vs. Kusum Narottamdas Harsora and Others â€" AIR 2016 SC 4774, D.S. Nakara and Others Vs. Union of India â€" (1983) 1

SCC 305,

Union of India and Others Vs. Atul Shukla and Others (2014) 10 SCC 432 and that of the Orissa High Court in Ashok Kumar Mishra Vs. State of

Orissa and Others in W.A. No.555 of 2011 decided on 14.03.2012 and that of this Court in Kailash Chandra Harijan Vs. State of Rajasthan and

Others â€" 2006 (2) RLW 1700.

Mr. Vinay Mathur, the learned counsel appearing on behalf of the petitioner in Writ Petition No.11372/2018, has adopted the arguments made by Mr.

Mahendra Shah and Mr. Rajendra Kumar Soni, the learned counsel for the petitioners in other connected writ petitions.

Mr. Rajendra Prasad, the learned Additional Advocate General appearing on behalf of the State, opposed the writ petitions and submitted that most of

the arguments of the petitioners are apparently an outcome of deliberate misreading of various provisions of the RSR and the MCI Regulations and

they hold no water if the provisions are correctly read and understood. The MCI Regulations have been framed under the authority of Section 33 of

the Act of 1956, enacted by the Parliament deriving its authority from Entry 66 List I (Union List) Schedule VII of the Constitution of India. Entry 66

enumerates the subject of coordination and determination of standards in the institutions for higher education or research and scientific and technical

institutions. As the title would suggest, the MCI Regulations are aimed at prescribing minimum qualifications for appointment as a medical teacher and

that would be clear from reading of Clauses 2 and 3 of the MCI Regulations. The main thrust of the petitioners’ argument is on the Clause 1A of

the Schedule-I of the MCI Regulations and Entry-1 in Table-1 of the said Regulations. Schedule-I provides that every appointing authority before

making an appointment to a teaching post in the medical college or institution shall observe the norms prescribed therein. The language thus leaves no

doubt that the object is to prescribe qualifications of the Medical Teachers but it has no bearing on conditions of service relating to superannuation.

In fact, the caption of Table-1 “Requirements of academic qualifications teaching and research experience†leaves no manner of doubt that the

Table-1 does not have even a remote relationship with the prescription of age of retirement or with the creation of a cadre of administrative positions

of the Medical Colleges, like Principal, Dean, Director, etc., in the MCI Regulations and not under the Rules of 1962. It is submitted that creation of

service, encadrement of posts, prescribing conditions of service including age of retirement can be done only by an employer, which, in this case, is the

State of Rajasthan, by way of framing of the Rules exercising the powers vested under Article 309 of the Constitution of India. These Rules are,

however, required to be consistent with the MCI Regulations in the areas where the Medical Council of India is entitled to legislate or direct. The

Medical Council of India can, by no stretch of imagination, be said to be an employer. It only frames guidelines or norms to be followed by the

employers of the Medical Teachers. Thus the whole idea of encadrement of the administrative posts by the MCI Regulations is patently baseless and

misconceived and by the same logic, therefore, the argument of the petitioners that they continue to retain the lien on the administrative posts till their

attaining the age of superannuation also holds no water.

It is argued that the plea of reduction in rank on these counts also cannot be sustained. Clause 1A of Schedule-I of the MCI Regulations merely

prescribes the upper age limit up to which a person can be allowed to continue in service or granted extension or re-employment against the post of

Principal or Dean or Director, as the case may be, which age is 70 years. It does not per se mandates that in all eventualities the age of retirement

should be prescribed as 70 years by the employer. “Granted extension or reemployed in service†are the post-retirement events, and that is why

the first proviso to Rule 56 makes the Rule 56 non-applicable to these situations while prescribing the age of superannuation. In either of the

eventualities, there would be clear break of employment on attaining the age of retirement prescribed under Rule 56 of RSR. It is thus clear that

extension of age of superannuation up to 65 years with a stipulation, does not violate any of the MCI Regulations. Moreover, the appointment on

administrative posts in Government Medical Colleges is not governed by the Rajasthan Medical Services (Collegiate Branch) Rules, 1962. The

incumbents on such posts are selected by a process and posted in these administrative positions, yet they continue to hold the lien upon the posts on

which they have been substantively appointed. The Rules of 1962 neither deal with the age of superannuation nor could they have dealt with such

analogous subject. Reliance in support of this argument is placed on the judgment of the Allahabad High Court in Professor Chandra Prakash Jha &

Others Vs. V.C., Allahabad University and Others â€" 2000 Lab. I.C. 3152.

The learned Additional Advocate General submitted that the petitioners have filed on record the copies of the note-sheet dealing with the issue with

regard to the amendment in the Rules. The observations made in the note-sheet by any of the officers are not binding by the decision and shall have

no bearing upon the validity of the final decision. Moreover, the petitioners are deliberately misinterpreting not only the contents of the notesheet but

also the notification of the Government of India dated 05.01.2018 reproduced therein. The State Government decided to establish eight new medical

colleges under the Scheme specified by the Central Government and for their autonomous operations, a Society under the Rajasthan Societies

Registration Act, 1958, (for short, ‘the Act of 1958’) has been got registered in the name of the Raj-MES. These medical colleges have been

established for the purpose of expansion of medical education and health services in the State and, therefore, the districts and the referral hospitals

have been upgraded. The Government by the Resolution dated 20.02.2017 approved various proposals placed before it and obviously the order dated

18.04.2017 was issued, wherein it was decided that the properties, equipment and staff of such kind of hospitals would be required to be transferred to

the Raj-MES as per the provisions of law and the Doctors, Para Medical, Nursing and other staff will be transferred on deputation. It was also

decided that the finance/budget for the staff will be given by the Government as grant under the process of gap funding. In course of time, the Raj-

MES will be required to employ its own faculty and staff who will be employees of the Raj-MES and the Raj-MES has been permitted to fix their

salary and allowances as per the market rates. It is owing to that order, the Raj-MES framed its own service rules, namely, the Rules of 2017 and sent

to the Government for their approval. The necessity of this arose because of the Rajasthan (Regulation of Appointments to Public Services and

Rationalization of Staff) Act, 1999 (for short, ‘the Act of 1999’), which mandates the approval of competent authority even in the cases of a

society registered under any law receiving funds from the State Government. It is in this background that for establishment of new medical colleges,

initial appointments of medical teachers and other administrative officers have been made by way of transfer on deputation and re-employment, etc.

While the transfers on deputation have been made taking into account the need of these new medical colleges from the existing medical colleges

where such teachers were posted in excess. As per Rule 6(3) of the Rules of 2017, the governing body of the society is entitled to fill up posts on

deputation and the Rajasthan Service Rules permits deputation in the society under Chapter XIII of the Rules. This became necessary as the regular

recruitments/appointments were likely to take time. There was thus nothing illegal in the appointments on deputation or by reemployment from retired

employees of the Government made by the Raj-MES, which was necessary for the purpose of initial establishment of the colleges.

It is submitted that the Jhalawar Medical College has been established by the Jhalawar Hospital and Medical College Society, Jhalawar, whereas eight

new medical colleges are being established through the Raj-MES in different places in the State. Rule 10 of the Rules of 2017, which also relates to

the age for appointment, postulates that a candidate for direct recruitment (teaching staff) to the post(s) in the service must have attained the minimum

age of 20 years and the upper age limit shall not exceed the age as prescribed by the MCI. The documents clearly show that those above the age of

62 or 65 years have been reemployed after their retirement and those in service, who have been posted from Government Medical Colleges have

been sent there on deputation. The bogie of discrimination vis-a-vis the private medical colleges is wholly unfounded. The argument that these medical

colleges should be treated as department of the government has absolutely no legal basis. Even though they have been established by the government

and the society has certain government officers as its members but it will be a body completely different from the government to be governed as per

the norms fixed by the society itself. Even if these colleges are treated to be the instrumentality of the State, they cannot be held to be the departments

of the Government. The services of the society can by no stretch of imagination be treated to be the Medical Service (Collegiate Branch) created

under Article 309 of the Constitution of India. Both being different services under different set of rules and legal establishments, are neither

comparable nor can be said to be the same. The employees under the two would form different classes.

The learned Additional Advocate General submitted that the argument of discrimination raised by the petitioners is wholly unfounded as the proviso to

Rule 56 itself creates a class with regard to the Medical Teachers, who have crossed the age of 62 years and those who have not. The general age of

retirement for every government servant under Rule 56 of the RSR is 60 years. Second proviso to Rule 56 was inserted on 31.03.2016 taking into

account the critical need of the medical services and requirement of public interest, thereby enhancing the age of retirement of both, medical officers

and medical teachers from 60 to 62 years. However, the Government having further felt the acute shortage of medical teachers and doctors, having

experience for medical education as well as public health service in the State, decided in public interest that those in collegiate branch should be

retained in service upto 65 years. It was with that end view that the third proviso was inserted in order to ensure that such persons devote their full

time to the work for which the age of retirement has been enhanced. It was further decided that they will be placed only on non-administrative

positions only. Therefore, the very fact that the age of retirement in respect of the medical officers and medical teachers holding MBBS degree has

been extended to 65 years, clearly indicates that the enhancement is in the nature of compulsory retention upto this age for public benefit. Moreover

their retention only for non-administrative purpose is further indicative of the need for which the third proviso has been substituted. This shows the

purpose and the legislative intent of the amendment in clear terms to the effect that the serving medical teachers are to be retained for enhanced

period of three years only for non-administrative purposes.

The learned Additional Advocate General submitted that the purpose of amendment is not for conferment of benefit of enhanced age only on one

category of employees but it is for imposition of public duty of medical education and public health services for additional period. It is settled law that

the right to equality permits reasonable classification based on twin tests of intelligible differentia and nexus with the object sought to be achieved. The

impugned amendment fully satisfies this requirement if viewed in the light of the principles laid down by the constitution bench of the Supreme Court in

Ram Krishna Dalmia v. Shri Justice S.R. Tendolkar & Ors. - AIR 1958 SC 538. The provision applies across the board to all employees in service.

All are permitted to continue to work on the administrative positions only upto 62 years and none is permitted thereafter. The provision therefore

makes no discrimination. An employee cannot be said to be discriminated qua himself simply because the service condition changes on attaining a

particular age or on having served for a particular length. The learned Additional Advocate General tried to explain this argument by giving example

that the employees serving on the same post and discharging the same duties are yet paid different salaries having put in different length of service,

i.e., 9, 18 and 27 years. However, this is no classification as every employee is similarly treated on putting the same length of service. Thus the

argument of discrimination is wholly unfounded.

Mr. Rajendra Prasad, the learned Additional Advocate General, submitted that the petitioners are not entitled to challenge only one part of the

amended provision and taking advantage of another part. The legislature clearly intended to enhance the age of retirement only for non-administrative

positions and not otherwise. In such a situation, the striking down of that condition only would clearly be an act of fresh legislation by the judicial

process, which is not the scope of the judicial review. It is submitted that it is the merits of the case to adjudicate whether the entire amended

provision remains or it goes. The reliance by the petitioners on D.S. Nakara’s case, supra, is wholly misconceived, because the Rules under

challenge in that case were extending benefits to the same category or class of persons differently. However, in subsequent judgments, the Supreme

Court has consistently held that the government is entitled to fix cut off dates even in the matter of extension of benefits looking to its financial position

and other justifiable factors. It is argued that the age of superannuation is a matter of prescription by statute. It is not the case of the petitioners that

the authority enacting such Rule is either not competent or not following the constitutional mandate. In absence thereof, a provision created with

condition simply cannot be faulted. Relying on the judgment of the Supreme Court in Anant Mills Co. Ltd. Vs. State of Gujarat -Â AIR 1975 SC

1234, the learned Additional Advocate General submitted that the matters relating to creation of right to appeal with condition of pre-deposits have

been upheld by the Supreme Court therein. The petitioners even otherwise have not been able to show that the impugned provision in any manner is

arbitrary and unreasonable. There is no question of the petitioners being reduced in rank, much less by way of punishment. The petitioners

substantively held the post of Medical Teachers under the Rules of 1962 and they shall continue to retain it till their retirement. The administrative

positions, they held on selection, are the additional duties assigned on fulfillment of certain requirements and, even as per the existing rules, they cannot

hold them beyond the age of 62 years. The powers, privileges etc., attached to the administrative positions are available only until the law permits

holding of such positions and there is thus no case of any vested right being withdrawn. It is, therefore, prayed that the writ petitions be dismissed.

Mr. Ajeet Kumar Sharma, the learned Senior Counsel appearing on behalf of the interveners, namely, Dr. R.K. Solanki and Dr. Dhananjay Agarwal,

opposed the writ petitions and submitted that the petitioners have not challenged the validity of the first part of the impugned notification whereby the

age of superannuation in respect of MBBS degree holder Medical Teachers of the Rajasthan Medical Services (Collegiate Branch) has been

enhanced from 62 to 65 years. In absence of any challenge to the first part of the impugned notification dated 30.03.2018, it is not open to the

petitioners to challenge only the latter part where-under the services of such Medical Teachers are to be placed on the non-administrative positions.

The petitioners have no right to question the policy decision of the State in the matter of utilization of services after enhancement in the age of

superannuation from 62 to 65 years. The utilization of services of medical teachers is entirely and exclusively within the domain of the State

Government as employer of such medical teachers. The petitioners are duty bound to render their services as medical teachers at the places of their

posting and they cannot claim that while availing the benefit of enhanced age of superannuation up to 65 years under the impugned Notification dated

30.03.2018, their services cannot be placed in non-administrative positions. The proviso introduced by the impugned Notification is a composite one,

which intends to enhance the age of superannuation of the medical teachers keeping in view their shortage and dearth and faculty for super-speciality

courses coupled with interest of medical students and public at large coming for treatment to the Government hospitals in the State of Rajasthan. The

action of the State in incorporating the condition for utilizing the services of the medical teachers in the non-administrative positions only, can neither

be termed as arbitrary nor irrational nor even unreasonable. The challenge to the impugned Notification is thus wholly misconceived.

The learned Senior Counsel further argued that the petitioner Dr. U.S. Agarwal is holding the post of the Principal and the writ petition on his behalf

appears to have been filed with the sole object of retaining the post of Principal while taking benefit of the enhanced age of superannuation of 65

years. The impugned Notification is confined to enhanced age of superannuation of Medical Teachers of Rajasthan Medical Services (Collegiate

Branch) and the highest post encadered in the Schedule-I appended to the Rules of 1962 is that of Professor and the post of Principal is not encadered

under the said Rules. The post of Principal has been encadered under the Rajasthan Medical & Health Service Rules, 1963. It is specifically provided

in the impugned Notification dated 30.03.2018 that the age of superannuation for member of the said service shall remain 62 years. There is no

challenge to this part of the said Notification. Thus, the direction sought by the petitioners Dr. U.S. Agarwal and Dr. S.K. Jain allowing them to

continue to hold the posts of Principal and Additional Principal, respectively, till the age of their superannuation, i.e., 65 years with all consequential

benefits, is wholly unfounded and untenable. The learned Senior Counsel also argued that the Government of India, while making amendment in Rule

56 of the Fundamental Rules, 1922, pertaining to enhancement in the age of superannuation for Medical Officers, Specialists, Doctors etc., in the

services of the Central Government, Central Armed Police Forces and Assam Rifles, have also stipulated in the Notification dated 05.01.2018 that

except the Doctors in Central Armed Police Forces and Assam Rifle, all other Medical Officers/Specialists/Doctors shall hold the administrative post

till attaining the age of 62 years and, thereafter, their services shall be placed in non-administrative positions. It is submitted that the issue with regard

to the junior person, holding an administrative post of Head of Department, writing the APARs of Senior Professors, has already been clarified by the

State vide order dated 02.08.2016 that for filling the APARs of Professors, senior to Head of Department, the channels specified in earlier order dated

13.05.2003 shall be followed and thus the grievance of the petitioners is not tenable.

The learned Senior Counsel submitted that under Section 33 of the Indian Medical Council Act, 1956, the Council has no power to prescribe the

conditions of service of Government servants including the Medical Teachers working in Government hospitals. The power to prescribe the conditions

of service vests in the Governor of the Rajasthan State and the provision relating to age of superannuation is incorporated in Rule 56 of the RSR

framed by the Governor of Rajasthan in exercise of powers under proviso to Article 309 of the Constitution. That apart, the age of superannuation for

the post of Principal stipulated by the Medical Council of India is in the nature of guidelines and are not binding on the State Government. There is no

mandatory direction given by the Medical Council of India that the Medical Teachers holding administrative posts including that of Principal, cannot be

retired before the age of 70 years. The reference to the enhanced age of superannuation in the Medical Colleges run by the Raj-MES constituted by

the State, is misconceived inasmuch as there is material difference between the State service and the service rendered by the persons employed by

the Raj-MES, who have their own constitution and set of service Rules.

We have given our anxious considerations to rival submissions and perused the material on record.

We would at the outset begin with observing that all the petitioners are the members of the medical service (collegiate branch), defined in Rule 3(g) of

the Rules of 1962, and, as such, they are holding the posts of Professors on substantive basis with the respondents. Rule 3(k) of the Rules of 1962,

defines the term “Substantive Appointment†to mean an appointment made under the provisions of these Rules to a substantive vacancy after due

selection by any of the methods of recruitment prescribed therein.

The petitioners have sought to build a case that since the posts of Principal and Dean, etc. are not included in the Schedule appended to the Rules of

1962, but they find reference in Table-1 of Schedule-I of the MCI Regulations, those posts are encadered in MCI Regulations. Therefore, prescription

of age of retirement by the appointing authority has to be in conformity with the age specified in Clause 1A of the Schedule-I of the MCI Regulations.

One wonders whether by mere reason of the reference of the posts of Principal and Dean in Table-1 of the Schedule-I of the MCI Regulations, could

it be said that these posts are encadered in the MCI Regulations. In our view such an argument is too specious to be accepted. The posts of Principal,

Dean, etc. are the selection posts and such selections have to be made only from amongst the persons who are substantively holding the post of

Professors. The selection of the petitioners on the post of Principal or Dean, etc., does not in any manner result in discontinuation of their lien from the

substantive post of Professor. In fact, they have been appointed on these posts only because they were treated eligible for such appointment by virtue

of their substantive appointment as Professors. Even after selection on these administrative posts, they continue to be the members of service under

the Rules of 1962 on the post of Professor encadered therein.

This now takes us to the next argument that the MCI Regulations, especially Clause 1A of the Schedule-I appended thereto, which prescribes the

upper age limit of 70 years, are binding on the Government and even if the respondents were to enhance the age of retirement from 62 to 65 years,

they could not do so with the rider on continuation of the petitioners only on the non-administrative posts. Decision of this question would lie in the

answer to the question whether the MCI Regulations, in so far as the question of enhancement of the age of retirement, with or without condition, is

concerned, are binding on the appointing authority, which in this case is the State of Rajasthan. It is trite that the State has a right by virtue of Entry 25

List III (State List) Schedule VII of the Constitution of India, to control on the subject of education, including technical education, medical education

and universities, subject to the provisions of Entries 63, 64, 65 and 66 of List I; but while doing so it cannot impinge on higher education which subject

exclusively lies within the domain of the Central Government. The Central Government, by virtue of Entry 66 List I (Union List) Schedule VII of the

Constitution of India, wields the power of co-ordination and determination of standards in the institutions for higher education or research and scientific

and technical institutions. The subject “co-ordination and determination of standards in the institutions for higher education or research and

scientific and technical institutions†is the domain of the Parliament. There can be therefore no quarrel with the proposition that both the State and

the Center would have the power to legislate on the subject of education including the medical education, but to the extent the laws made by the State

legislation are in conflict with those of the Central legislation, former will have to give a way to the latter and would be inoperative to that extent unless

they are saved by Article 254(2) of the Constitution. Whether or not, therefore, the State law encroaches on Central legislation, will have to be

determined with reference to contextual facts if it any manner encroaches upon the power of the Center to make laws for “co-ordination and

determination of standards in institutions for higher educationâ€. The age of retirement is one of the essential conditions of service and, therefore, can

either be prescribed by way of Rules framed under Article 309 of the Constitution of India or by mutual contract between the employer and the

employee. It is up to the employer or the appointing authority to regulate the age of superannuation as per the stipulation made in the Rules. An

employee has no fundamental right to remain in service beyond the terms of the Rules. The MCI Regulations merely lay down guidelines that a

medical teacher can be retained in service upto the age of 70 years. But that does not mean that age of retirement of a medical teacher has to be

necessarily kept as 70 years.

We may in this connection usefully refer to the observations of the Allahabad High Court in Professor Chandra Prakash Jha & Others, supra, made in

para 10 of the report:-

“10. …………….It is settled law that delegated legislation is as binding as the parent legislation unless there, is conflict between the two. We do

not find any conflict. In fact Sections 49(d) and (e) of the Act states that the statutes of the Universities can provide the terms and conditions of

service of a person appointed to a post under the University. In our opinion Sections 49(d) and (e) includes the power to fix the age of superannuation

of the University teachers. Since the age of superannuation has been fixed by Statute 16, it can only be altered by amending the Statute. In the system

of administration we have adopted from the British, the executive is subordinate to the legislature. Hence in our opinion the Central Government has

no power to issue any executive order abrogating or modifying any provision in the U.P. State University Act or the statutes made thereunder. In our

opinion if any direction of the U.G.C. had not been complied with by the University concerned, the U.G.C. can withhold or reduce the financial

assistance given to that university, but neither the Central Government nor the U.G.C. has any power to amend the Act or statute. Under Section

50(1) the State Government could amend the first statute made by the State Government at any time upto 31-12-1990, and the Executive Council

under Section 50(2) can amend the Statute, thereafter. Under Section 50(4) the amendment in the statute has to be submitted to the Chancellor who

may assent to it or withhold his assent therefrom or remit it to the Executive Council for further consideration. Hence any amendment to Statute 1624

changing the age of superannuation of University teachers can only be done in accordance with Section 50 and by the authority mentioned in Section

No such amendment can be made by any other authority or, in any other manner. ………...â€​

The Supreme Court in Jagdish Prasad Sharma Vs. State of Bihar â€" (2013) 8 SCC 633, dealt with the question of primacy of the laws framed by the

State Government regulating service conditions of teachers and other staff of State universities/colleges vis-a-vis regulations framed by the University

Grants Commission. The Bihar Legislature passed the Bihar State Universities (Amendment) Act substituting Section 67 of the Bihar State

Universities Act, enhancing the age of superannuation to 62 years. Similarly, Section 64(a) of the Patna University Act was also amended on similar

basis. Writ petitions were filed by the teachers in the Bihar, which were allowed by the Single Judge. However, LPAs filed thereagainst were allowed

by the judgment of the Division Bench of the High Court and that came to be challenged before the Supreme Court. The stand of the State of Bihar

before the Supreme Court was that the right to alter terms and conditions of the service of the employees of the State universities and colleges was

within the domain of the State Government and till such time, it decided to adopt the Scheme of the UGC, the same would have no application to

teachers and other staff of other educational institutions of the State. The Supreme Court held that the final decision to enhance the age of

superannuation of teachers within a particular State would be that of the State itself. The right of the Commission to frame Regulations having the

force of law is admitted. However, the State Governments are also entitled to legislate on matters relating to education under Entry 25 of List III. So

long as the State legislation did not encroach upon the jurisdiction of Parliament, the State legislation would obviously have primacy over any other law,

held the Supreme Court.

Coming back to the facts of the case in hand, as per the prescription that was originally made in Rule 56 of the RSR, the petitioners could continue in

the service till 60 years. This was subject to an exception given in the first proviso to Rule 56 that this age of retirement shall not be applicable in the

case of a government servants who are either re-employed or granted extension after attaining the age of superannuation. But the State Government

faced with the scarcity and dearth of both, the medical teachers in the medical colleges and the hospitals attached thereto and also the medical

officers in the Government hospitals and other dispensaries, introduced second proviso to Rule 56 of the Rajasthan Service Rules, 1951 by way of

amendment vide Notification dated 31.03.2016 which uniformly enhanced the age of superannuation for both the categories upto the age of 62 years.

The Government, there realizing the acute shortage of medical teachers in the medical colleges and the hospitals attached thereto for providing super-

speciality treatment to the public at large, decided to further enhance the age of retirement of the medical teachers from 62 to 65 years by introducing

the third proviso to Rule 56 of the RSR vide notification dated 30.03.2018 but with a rider that they shall be placed only on the non-administrative

positions for this extended period of service between 62 to 65 years, meaning thereby that their services would be utilized only for the purpose of

teaching the medical students in the medical colleges and for the superspecialized treatment of patients in the hospitals attached thereto. Increase in

the age of retirement has been introduced by this special provision to ensure continued availability of sufficient number of medical teachers in the

higher education to the students in the medical colleges and the super-specialized treatment to the patients in the hospitals attached thereto. This has,

therefore, come as a composite package to such medical teachers who have attained the age of 62 years. They cannot be allowed to contend that this

creates any discrimination qua them as it uniformly applies to all falling in this category. The purpose of their continued retention in the service for

three extra years is thus essentially non-administrative in nature and by striking down the latter part of the proviso, this would take away the very soul

of the proviso as even when they are no longer in service, there would be many takers for the administrative posts of Principals, Deans, etc.

The contention that the Chief Secretary to the State Government in the note-sheet had expressed certain reservations for the proposed amendment,

which eventually went through and resulted in the issuance of the Notification amending the Rules is noted to be rejected. It is trite that the notings

made by the officers in the Government files at different levels are only tentative expression of opinion by them in the process of arriving at the final

decision. What is material for the purpose of outside word is the final decision such internal discussion culminated into. We may in this connection

refer to certain judgments of the Supreme Court.

The Supreme Court in Shanti Sports Club Vs. Union of India, supra, held as under:-

“43. A noting recorded in the file is merely a noting simpliciter and nothing more. It merely represents expression of opinion by the particular

individual. By no stretch of imagination, such noting can be treated as a decision of the Government. Even if the competent authority records its

opinion in the file on the merits of the matter under consideration, the same cannot be termed as a decision of the Government unless it is sanctified

and acted upon by issuing an order in accordance with Articles 77(1) and (2) or Articles 166(1) and (2). The noting in the file or even a decision gets

culminated into an order affecting right of the parties only when it is expressed in the name of the President or the Governor, as the case may be, and

authenticated in the manner provided in Article 77(2) or Article 166 (2). A noting or even a decision recorded in the file can always be

reviewed/reversed/overruled or overturned and the court cannot take cognizance of the earlier noting or decision for exercise of the power of judicial

review.â€​

Similarly, while dealing with the issue, the Supreme Court in Sethi Auto Service Station Vs. DDA, supra, held as under:-

“14. It is trite to state that notings in a departmental file do not have the sanction of law to be an effective order. A noting by an officer is an

expression of his viewpoint on the subject. It is no more than an opinion by an officer for internal use and consideration of the other officials of the

department and for the benefit of the final decision-making authority. Needless to add that internal notings are not meant for outside exposure. Notings

in the file culminate into an executable order, affecting the rights of the parties, only when it reaches the final decision-making authority in the

department, gets his approval and the final order is communicated to the person concerned.â€​

In Jasbir Singh Chhabra v. State of Punjab, supra, the Supreme Court held as under:-

“35…… However, the final decision is required to be taken by the designated authority keeping in view the larger public interest. The notings

recorded in the files cannot be made basis for recording a finding that the ultimate decision taken by the Government is tainted by mala fides or is

influenced by extraneous considerations…..â€​

With regard to the argument of discrimination based on the appointment of the Professors who retired from the Government service, on the post of

Principal with the Medical Colleges run by the Raj-MES, these eight new medical colleges have been established under the Scheme sponsored by the

Central Government by constituting the Raj-MES, which has been registered as a Society under the Act of 1958. This is intended to ensure

autonomous operation through the Society with the object of providing medical education and to establish, operate, maintain, manage and recognize

“medical, dental, para-medical collegesâ€. The respondent-State has clarified that the Governing Board and the Executive Committee of the

Society have been mentioned in the “Sangh Vidhan-Patra†of the Society, and the bye laws of the Society have been duly registered. The funds

of the Society are to be generated out of subscriptions, fees, aid/help of the Government. The State Cabinet by the resolution dated 24.02.2017

approved the proposal to upgrade and establish these new medical colleges for the purpose of extension of the Medical Education and the Health

Services in the State, with the properties, equipment and staff thereof being transferred to the aforesaid Society as per the provisions of law and the

Doctors, Paramedical, Nursing and other staff will be transferred on deputation. The Government decided to provide grant-in-aid to the Society, which

would be required to employ its own faculty and staff, who will be employee of the Society and the Society has been permitted to fix their salary and

allowances as per the market rates. The respondents, in this behalf, have placed on record the Government order dated 18.04.2017, which mentions

that the declaration to this effect in the Budget Speech 2014-15 was made by the Chief Minister of the State and thereafter again the Financial Year

2016-17, on the floor of the Assembly. As for the Medical Teachers and other staff of the medical colleges as also the S.M.S. Medical College

transferred to the medical colleges run by the Raj-MES, it should be noted that the Raj-MES has framed its own rules with regard to conditions of

service of its employees, namely, the Rules of 2017. As per provisions of Rule 6(3)Â of the said Rules, the governing body of the Society is entitled to

fill up the posts on deputation and the Rajasthan Service Rules permit deputation in the Society under Chapter XIII of the Rules. There was nothing

illegal about the Society having prior approval of the Government of framing the aforesaid Rules of 2017 as the Society registered under the Act of

1958 has been receiving the funds from the State Government as per the provisions of the Act of 1999.

We are reminded of the rule of caution to be exercised by this court while judging constitutional validity or any statute/legislation/subordinate

legislation. We may in this connection usefully refer to the observations made by the Supreme Court in State of Bihar and Others Vs. Bihar Distillery

Ltd. & Others â€" (1997) 2 SCC 453, wherein the law was succinctly stated as to the approach which the Court should adopt while examining the

validity/constitutionality of a legislation in para 17 of the report which reads thus:-

The approach of the court, while examining the challenge to the constitutionality of an enactment, is to start with the presumption of constitutionality.

The Court should to try to sustain its validity to the extent possible. It should strike down the enactment only when it is not possible to sustain it. The

court should not approach the enactment with a view to pick holes or to search for defects of drafting, much less inexactitude of language employed.

Indeed any such defects of drafting should be ironed out as part of the attempt to sustain the validity/constitutionality of the enactment. After all, an

Act made by the legislature represents the will of the people and that cannot be lightly interfered with. The unconstitutionality must be plainly and

clearly established before an enactment is declared as void. The same approach holds good while ascertaining the intent and purpose of an enactment

or its scope and application.

The Supreme Court in later judgment in Government of Andhra Pradesh Vs. P. Laxmi Devi â€" (2008) SCC 720, also evolved a rule of caution for

exercise of such jurisdiction by the courts stating that the court should exercise judicial restraint while judging the constitutional validity of the statute or

even that of a delegated legislation and it is only when there is clear violation of a constitutional provision beyond reasonable doubt that the court

should declare a provision to be unconstitutional. The Supreme Court therein further observed that even if two views are possible, one making the

statute constitutional and the other making it unconstitutional, the former view must prevail and the court must make efforts to uphold the constitutional

validity of a statute, unlike a policy decision, where the executive decision could be rendered invalid on the ground of mala fides, unreasonableness and

arbitrariness alone.

The Supreme Court in one of the earliest constitution bench judgment in Budhan Choudhary and Others Vs. State of Bihar â€" AIR 1955 SC 191, laid

down the parameters, on the touchstone of which the reasonableness of the classification with reference to Article 14 of the Constitution of India has

to be tested, in the following terms:-

“5. The provisions of Article 14 of the Constitution have come up for discussion before this Court in a number of cases., namely, Chiranjit Lal

Chowdhuri v. The Union of India - [1950] S.C.R. 869, The State of Bombay v. F.N. Balsara - [1951] S.C.R. 682, The State of West Bengal v.

Anwwar Ali Sarkar - [1952] S.C.R. 284, Kathi Raning Rawat v. The State of Saurashtra - [1952] S.C.R. 435, Lachmandas Kewalram Ahuja v.The

State of Bombay [1952] S-C R. 710, Qasim Razvi v. The State of Hyderabad - [1953] S.C.R. 581, and Habeeb Mohamad v. The State of Hyderabad

- [1953] S.C.R. 661. It is, therefore, not necessary to enter upon any lengthy discussion as to the meaning, scope and effect of the article in question.

It is now well-established that while Article 14 forbids class legislation, it does not forbid reasonable classification for the purposes of legislation. In

order, however, to pass the test of permissible classification two conditions must be fulfilled, namely, (i) that the classification must be founded on an

intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group and (ii) that differentia must

have a rational relation to the object sought to be achieved by the statute in question. The classification may be founded on different bases; namely,

geographical, or according to objects or occupations or the like. What is necessary is that there must be a nexus between the basis of classification

and the object of the Act under consideration. It is also well established by the decisions of this Court that Article 14 condemns discrimination not only

by a substantive law but also by a law of procedure. The contention now put forward as to the invalidity of the trial of the appellants has, therefore to

be tested in the light of the principles so laid down in the decisions of this Court.â€​

In Shri Ram Krishna Dalmia v. Shri Justice S.R. Tendolkar & Ors. - AIR 1958 SC 538 the Supreme Court on the aspect of reasonable classification

again observed thus:-

“It is now well established that while Article 14 forbids class legislation, it does not forbid reasonable classification for the purposes of legislation. In

order, however, to pass the test of permissible classification two conditions must be fulfilled namely (1) that the classification must be founded on an

intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group and (ii) that differentia must

have a rational relation to the object sought to be achieved by the statute in question. The classification may be founded on different bases, namely,

geographical, or according to objects or occupation or the like. What is necessary if that there must be a nexus between the basis of classification and

the object of the Act under consideration.â€​

The Supreme Court in Lachhman Das Vs. State of Punjab â€" AIR 1963 SC 222, while reiterating the test to be applied for examining the vires of an

Act on the touchstone of Article 14 sounded a note of caution that overemphasis on the ‘doctrine of classification’ may gradually and

imperceptibly deprive the Article of its glorious content and observed as under:-

“…..the doctrine of classification is only a subsidiary rule evolved by courts to give a practical content to the said doctrine. Overemphasis on the

doctrine of classification or an anxious and sustained attempt to discover some basis for classification may gradually and imperceptibly deprive the

article of its glorious content. That process would inevitably end in substituting the doctrine of classification for the doctrine of equality: the

fundamental right to equality before the law and equal protection of the laws may be replaced by the doctrine of classification.â€​

In order to substantiate the violation of Article 14 of the Constitution, the element of discrimination and arbitrariness has to be brought out in clear

terms. The courts have to keep in mind that by the process of classification, the State has the power of determining who should be regarded as a class

for the purposes of legislation and in relation to law enacted on a particular subject. The power, no doubt, to some degree is likely to produce some

inequality but if a law deals with liberties of a number of individuals or well-defined classes, it is not open to the charge of denial of equal protection on

the ground that has no application to other persons. Classification thus means segregation in classes which have a systematic relation usually found in

common properties and characteristics. It postulates a rational basis and does not mean herding together of certain persons and classes arbitrarily. The

differentia which is the basis of the classification and the object of the legislation, are two distinct things. What is necessary is that there must be a

nexus between them. The basis of testing the constitutionality, particularly on the ground of discrimination, should not be made by raising a

presumption that the authorities are acting in an arbitrary manner. One of the known concepts of the constitutional interpretation is that the legislature

cannot be expected to carve out classification which may be so scientifically perfect or logically complete as may satisfy the expectations of all the

concerned. The courts would respect the classification dictated by the wisdom of the legislature and shall interfere only on being convinced that the

classification would result in pronounced inequality or palpable arbitrariness tested on the touchstone of Article 14 of the Constitution.

The Supreme Court in Welfare Association, A.R.P., Maharashtra and Another Vs. Ranjit P. Gohil and Others â€" (2003) 9 SCC 358, held in para 60

of the report as under:-

“Article 14 of the Constitution permits reasonable classification for the purpose of legislation and prohibits class legislation. A legislation intended to

apply or benefit a ""well-defined class"" is not open to challenge by reference to Article 14 of the Constitution on the ground that the same does not

extend a similar benefit or protection to other persons. Permissible classification must satisfy the twin tests, namely, (i) the classification must be

founded on an intelligible differential, which distinguishes persons or things grouped together from others left out of the class, and (ii) such differentia

must have a rational relation with the object sought to be achieved by the legislation. It is difficult to expect the Legislature carving out a classification

which may be scientifically perfect or logically complete or which may satisfy the expectations of all concerned, still the court would respect the

classification dictated by the wisdom of Legislature and shall interfere only on being convinced that the classification would result in pronounced

inequality or palpable arbitrariness on the touchstone of Article 14.â€​

We may in this connection also refer to useful observations made by the Supreme Court in Namit Sharma Vs. Union of India â€" (2013) 1 SCC 745,

which read thus:-

“43. The rule of equality or equal protection does not require that a State must choose between attacking every aspect of a problem or not

attacking the problem at all, and particularly with respect to social welfare programme. So long as the line drawn, by the State is rationally supportable,

the Courts will not interpose their judgment as to the appropriate stopping point. A statute is not invalid because it might have gone further than it did,

since the legislature need not strike at all evils at the same time and may address itself to the phase of the problem which seemed most acute to the

legislative mind. A classification based on experience was a reasonable classification, and that it had a rational nexus to the object thereof and to hold

otherwise would be detrimental to the interest of the service itself. This opinion was taken by this Court in the case of State of UP & Ors. v. J.P.

Chaurasia & Ors â€" (1989) 1 SCC 121. Classification on the basis of educational qualifications made with a view to achieve administrative efficiency

cannot be said to rest on any fortuitous circumstances and one has always to bear in mind the facts and circumstances of the case in order to judge

the validity of a classification. In the case of State of Jammu & Kashmir v. Sh. Triloki Nath Khosa & Ors. - (1974) 1 SCC 19, it was noted that

intelligible differentia and rational nexus are the twin tests of reasonable classification.

If the law deals equally with members of a welldefined class, it is not open to the charge of denial of equal protection. There may be cases where

even a single individual may be in a class by himself on account of some special circumstances or reasons applicable to him and not applicable to

others. Still such law can be constitutional. [Ref. Constutional Law of India by H.M. Seervai (Fourth Edition) Vol.1]

In Maneka Gandhi v. Union of India & Anr. - (1978) 1 SCC 248 and Charanlal Sahu v. Union of India (1990) 1 SCC 614, the Court has taken the

view that when the constitutionality of a law is challenged on the ground that it infringes a fundamental right, what the Court has to consider is the

‘direct and inevitable effect’ of such law. A matter within the legislative competence of the legislature has to be left to the discretion and

wisdom of the framers, so long as it does not infringe any constitutional provision or violate any fundamental right. The law has to be just, fair and

reasonable. Article 14 of the Constitution does not prohibit the prescription of reasonable rules for selection or of qualifications for appointment,

except, where the classification is on the face of it, unjust.

……..

……..

In order to examine the constitutionality of these provisions, let us state the parameters which would finally help the Court in determining such

questions.

(a) Whether the law under challenge lacks legislativecompetence?

(b) Whether it violates any Article of Part III of theConstitution, particularly, Article 14?

(c) Whether the prescribed criteria and classificationresulting therefrom is discriminatory, arbitrary and has no nexus to the object of the Act?

(d) Lastly, whether it a legislative exercise of powerwhich is not in consonance with the constitutional guarantees and does not provide adequate

guidance to make the law just, fair and reasonable?â€​

The third proviso to Rule 56 introduced by way of amendment seeks to achieve the purpose of dealing with the problem of scarcity and non-

availability of sufficient number of Medical Teachers in higher medical education, especially at superspeciality level and also super-specialized

treatment of the patients in the premier medical colleges and hospitals attached thereto by the experienced senior doctors, who would otherwise on

attaining the age of 62 years cease to be in service. In the opinion of this Court, the classification which the third proviso to Rule 56 of the RSR seeks

to make between those who have attained the age of 62 years for the purpose of holding only nonadministrative posts vis-a-vis those who have not yet

attained the said age, is a reasonable classification, purpose of which is to ensure the availability of medical teachers for higher medical education in

the medical colleges, which are the higher centers of study in the subject of medicines both for undergraduate and postgraduate level and super-

speciality treatment of patients in the premier government hospitals of the State attached to such medical colleges. This, in our considered view, has

reasonable nexus with the object sought to be achieved as it classifies the medical teachers who have crossed the age of 62 years as a distinct

category than those who have not attained that age. This is the real and substantial differentia which has got a reasonable nexus with the object of

introducing the third proviso to Rule 56 as even after introduction of the second proviso, whereby age of retirement was uniformly increased by the

State from 60 to 62 years allowing the medical teachers to continue to serve on the administrative as well as the non-administrative positions upto the

age of 62 years, the problem of scarcity of the medical teachers with sufficient experience for teaching the students in the superspeciality subjects and

providing treatment to the patients in the government hospitals attached to the medical colleges of the State, could not be solved. This, in our view, is a

sound and reasonable nexus with the object of the Rule under challenge, as it seeks to achieve a salutary purpose for positive public cause.

The classification which the respondents have made between the medical teachers by inserting the third proviso to Rule 56, has recognition of specific

characteristic in favour of those who, but for the subject amendment, would have retired from service than those who have not yet attained the age of

62 years and could still, therefore, be considered for appointment against the administrative post. Since it has come as a positive provision giving a

composite package to them, the petitioners cannot assail one part of that proviso which is beneficial to them, and question the validity of the latter part,

which is integral to the main provision. The very purpose of introducing this proviso is to ensure the availability of the medical teachers as also

senior/seasoned/experienced doctors as well as the doctors in the government medical colleges and the hospitals attached thereto. The two, therefore,

cannot be segregated. The third proviso satisfies the test of reasonable classification envisaged in Article 14 of the Constitution of India.

The judgment of the Supreme Court in Indravadan H Shah, supra, relied by Mr. Rajendra Soni, the learned counsel for petitioners, dealt with the

challenge to the constitutional validity of the provisions of Rule 6(4)(i) and Rule 6(4)(iii)(a) of the Gujarat Judicial Service Recruitment (Amendment)

Rules, 1979. According to those Rules, there was no limit or bar of age for appointment on the post of District Judge by promotion from amongst the

members of the junior branch of the Gujarat Judicial Service, who served as Assistant Judges. The objection was raised about the Rules, which

provided that a Civil Judge (Senior Division) after completing 48 years of age will not be eligible for consideration for promotion to the post of

Assistant Judge and his name will be struck out from the select list on his completing 48 years, i.e., on reaching 49 years of age. The aforesaid

provision was sought to be justified by the High Court of Gujarat on the premise that this age restriction for promotion to the post of Assistant Judge

was in vogue since 1924 or so. Even in the erstwhile State of Bombay, though there was no age limit for selection to the post of District Judge directly

from the Bar. The rationale for this restriction that was given was that such Assistant Judges should have sufficient number of years before they

reach the age of superannuation so that their services can be utilized at the district level, and that the law making authority may have considered that a

Civil Judge (Senior Division) or a Civil Judge (Junior Division), who completes 48 years of age, may not be fully equipped with the physical and mental

calibre for the higher post calling for essentially different type of duties, namely, conducting sessions cases, appeals, etc. The High Court of Gujarat

accepted this contention upholding the validity of this Rule. The Supreme Court held that the reasoning given by the High Court was totally not

acceptable for the simple reason that if a person holding the post of Civil Judge (Senior Division), who completes 48 years of age is not fully equipped

with the physical and mental caliber for appointment to higher Judge then why on the same analogy the member of the Bar will be considered at the

age of 48 years to be more suitable to be appointed on the higher and responsible post of District Judge, particularly when with the given age and

experience, a judicial officer would be more suited and well equipped to perform and discharge the higher duties and responsibility attached to the

higher post of Assistant Judge and that of the District Judge. Such are not the facts of the present case where the candidates who are otherwise

equally situate are sought to be discriminated in the matter of promotion. In the present case, those already holding the posts of Principal, Dean,

Superintendent, etc., which are in fact not the posts of promotion and are invariably selection posts. Those holding the posts of Professor are

considered for appointment by way of selection against these posts on the basis of merit alone and not necessarily on the basis of seniority, although

seniority may be one of the components for consideration by the Selection Committee.

Another judgment touching upon the argument of discrimination on the basis of difference in the age of retirement, cited by Mr. Rajendra Soni, the

learned counsel for the petitioners, was rendered in Atul Shukla, supra. Under challenge before the Supreme Court in that matter was the judgment of

the Principal Bench of the Armed Forces Tribunal, at the instance of the Union of India. The Tribunal, by its judgment, held the respondents entitled to

continue in service upto the age of 57 years in the case of officers serving on the ground duty branch and 54 years in the case of those serving in the

flying branch of the Indian Air Force. The facts were like this that the officers in the Indian Air Force who got promoted to the rank of Group

Captains on the basis of merit were treated as a class different than the ones who failed to make the grade in merit selection on three occasions

admissible to them and were eventually promoted to the rank of Group Captains based on the length of their service and, therefore, were taken as a

different class. There was differentiation in two categories. While the first category of the officers of Group Captain promoted on merit were allowed

continuity in service upto 54 years and the officers of the second category, who were promoted on time scale, were sent home on attaining the age of

52 years. The solitary question for consideration before the Supreme Court was whether the respondents who at the relevant point of time held the

rank of Group Captain (Time Scale) in the Indian Air Force were entitled to continue in service upto 54 and 57 years, depending upon whether they

were serving in the flying or ground duty branch of the force. The Armed Forces Tribunal held the classification constitutionally not permissible. The

Tribunal recorded a finding that the Group Captains (Time Scale) wear the same rank and get the same salary, grade pay and draw the same benefits

as the Group Captains (Select). The Tribunal held that there appears to be no rational basis for this. Upholding that judgment, the Supreme Court held

that such basis of classification is not permissible in the law. When two employees belong to same cadre, they cannot be differentiated for the purpose

of pay and allowance or other conditions of service, including the age of retirement. They have to be treated equal in all respect as the method of

recruitment and promotion, are irrelevant. Such are not the facts of the present case as there is no differentiation in the age of retirement. What the

respondents have done, with which the petitioners are aggrieved, is that now for the extended period of service of three years they would be required

to discharge their duties on the non-administrative positions, which, according to the respondents, is for the purpose of their continued retention in the

service. According to the respondents, the Government has taken a conscious decision to overcome the problem of scarcity and dearth of the medical

teachers for higher education and the superspeciality treatment for the patients in the premier government hospitals of the State.

The contention that the third proviso to Rule 56 of the RSR, impugned in the present cases, is being applied retrospectively, is only noted to be

rejected. The proviso in the form, in which it has been introduced, has extended the age of retirement of the existing employees from 62 to 65 years

with a condition that they shall continue on such extended period of service only on the nonadministrative positions. It can, therefore, hardly be argued

that the impugned provisions would have retrospective effect on the petitioners. As it is, the petitioners when they were appointed on the concerned

administrative posts, were fully aware of their age of superannuation being 62 years. Therefore, they cannot be allowed to say that the impugned

provision would in any case be described as taking away their vested right. The perks, facilities and privileges attached to the administrative positions

are available only till their continuation on such posts and, therefore, on their discontinuation from that position, they cease to get such benefits. But this

cannot be described as reduction in the rank. The issue with regard to the junior person, holding an administrative post of the Head of Department,

initiating the APARs of Senior Professors, has already been clarified by the State vide order dated 02.08.2016 that for filling of the APARs of

Professors senior to Head of Department, the channels specified in earlier order dated 13.05.2003 shall be followed and thus the grievance of the

petitioners is not tenable.

As regards the continuation of the medical teachers appointed as the Principals in the Medical Colleges run by the RajMESÂ beyond the age of 62

years, since all such appointments have been made by way of re-employment, it is even otherwise permissible under the first proviso to Rule 56 even

in the Government service. Moreover, here they have been engaged in the medical colleges run by the Raj-MES where they can be continued by way

of re-employment even upto the age of 70 years in terms of Clause 1A of Schedule-I of the MCI Regulations. The MCI Regulations thus make it

permissible for the employer/appointing authority to retain the employees. However, converse of it may not be true because unless the appointing

authority raises the age of retirement, a medical teacher cannot, as a matter of right, claim continuation in such post upto the age of 70 years.

The provisions of Rule 56(A)(bb) of the Fundamental Rules applicable to employees of the Central Government stipulate that those who want to

continue beyond age of 62 years and superannuate at 65 years must fully devote themselves to academic work including clinical work and they should

not get involved and get associated with administration in any department or institution. Under challenge before the Delhi High Court in Dr. Richa

Dewan Vs. Union of India â€" 2016 SCC OnLine Del 3634 was the judgment of the Central Administrative Tribunal, New Delhi, in two separate Writ

Petitions (Civil No.2740/2014 and No.3117/2014, which dismissed the Original Applications filed by the petitioners and rejected the challenge to Office

Memorandum dated 24.02.2012 that the position/designation of the Head of the Department in specialties is an administrative position and, therefore,

cannot be held by specialists of the teaching sub-cadre after attaining the age of 62 years. Challenge was also made to Office Memorandum dated

14.03.2013 directing one of the petitioners that she could not continue as the Head of Department to avail the benefit of age of superannuation upto 65

years. The petitioners contended that they could continue and hold the designation of the Head of the Department even after completion of 62 years

since their age of superannuation, as per the Fundamental Rules, is 65 years. They contended that they are senior and the age of superannuation of

specialists in the teaching sub-cadre being 65 years, they should not be deprived of the position that they were already holding as the Head of the

Department. The Court noted the Fundamental Rule 56(A)(bb), which stated that the age of superannuation of specialists including teaching and non-

teaching and public health sub-cadres of Central Health Service would be 62 years. The first proviso, however, extended the age to 65 years for

specialists including teaching sub-cadres of the Central Health Service, and restricted it to those engaged in teaching activities and not occupying the

administrative positions. The second proviso stipulated that the specialists in the teaching sub-cadre of the Central Health Service, who at the age of

62 years occupy administrative positions, shall have the option to seek appointment to teaching positions in case they wish to continue in the service

upto the age 65 years. The difference between the case in hand and the case which was decided by the Delhi High Court was that those two provisos

were not under challenge in the latter case, yet the petitioners therein were questioning the competence of the Union of India to impose restrictions on

the basis of the Office Memorandums. The Delhi High Court in para 12 of the report noted that the reluctance of the petitioners in giving up the

post/designation of the Head of the Department can be perceived, though it can be said that the said post is not the same as defined in clause (i) to

Rule 2 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965. The Court further observed that this would be necessary and is

obvious that if after the age of 62 years a specialist can do teaching work and cannot hold any administrative post. The Court also noted the objection

of the petitioners that the Director-Professor/Professors of Excellence cannot be asked to function under the administrative control of their juniors but

the Court further observed that this would be necessary and is obvious, if after the age of 62 years a specialist can do teaching work and not hold any

administrative post.

Someone junior to them in age and below the age of 62 years, would hold and exercise administrative control. The following observation of the Delhi

High Court in para 12 and 13 of the report are worth quoting:-

“12. ………….Another objection or contention is that Director- Professor/Professors of Excellence cannot be asked to function under the

administrative control of their juniors. However, this would be necessary and is obvious, if after the age of 62 years a specialist can do teaching work

and not hold any administrative post. Someone junior to them in age and below the age of 62 years, would hold and exercise administrative control.

The argument that if Director-Professor/Professors of Excellence are not given the charge as the Head of the Department, and there is bound to be

interference by those holding the post of the Head of the Department, also reflects the desire to hold and continue as the administrative head. In the

aforesaid, we regret and express our inability to accept the said contentions, for the petitioners want to directly and indirectly assert that they would

like to continue and hold on to the designation of the Head of the Department for then they would exercise administrative authority and control. This

would be contrary to Clause (bb) of FR 56(A), which is not under challenge. This clause specifically stipulates that specialists exercising the option to

continue after the age of 62 years to superannuate at the age of 65 years, will only engage and do teaching or academic work, which includes clinical

work. They shall give up and forego their earlier role in all administrative capacities. The rationale is that students, doctors and patients in the hospital

and colleges can take advantage and benefit of the specialists and their expertise in medical science after they have attained the age of 62 years and

have opted to continue in teaching or academic work upto 65 years. They must not be involved or get associated with administrative work. They must

disconnect and dissociate themselves from administration and administrative work.

The contentions raised before us do reflect that in spite of submissions to the contrary, there is reluctance to give up the designation of the Head of

the Department as it is in fact akin to the post of the Head of the Department as defined in clause (i) of Rule 2 of the 1965 Rules. If Rule 2(i) of the

Central Civil Services (Classification, Control and Appeal) Rules, 1965 is held to be applicable, the petitioners certainly cannot hold the said

designation. If we accept that the designation/post of the Head of the Department is not a statutory designation under the aforesaid Rule 2(i) and is a

mere designation that has gained recognition and acceptance as a convention, our conclusion would not be any different. The purpose and intent

apparent from clause (bb) of FR 56 (A) and OM dated 24th February, 2012 is that specialists who want to continue beyond the age of 62 years and

superannuate at 65, must fully devote themselves to academic work including clinical work, and they should not get involved and get associated with

the administration in any department or institution. Administration and problems relating to day to day working etc. should be left for others to

handle.â€​

With regard to the dispute as to what would be teaching and academic work vis-a-vis administrative work, the Delhi High Court noted that the

Fundamental Rules, however, do not define and clearly demarcate what is teaching and administrative work. The statutory provisions are not violated

for they do not provide and stipulate the distinction between teaching or academic activities and administrative positions or work. When the

Fundamental Rules or other Rules are silent or not expressive, it is open to the Government to supplement the rules by issuing an Office Memorandum

stating the posts or designations which are the administrative posts and would be included and treated as academic or teaching work. The Court held

that “why and for what reason specialists above the age of 62 years should not hold administrative positions†falls within the domain of policy.

The Courts cannot substitute and override the government policy. The reasons for the policy are perceptible but need not be recorded for this is not a

lis or the dispute raised. Even though in the aforesaid case before the Delhi High Court, the validity of two provisos to Rule 56(A) of the Fundamental

Rules was not questioned, yet the Court held that this question falls squarely within the domain of the policy of the State and the Court cannot

substitute or override such policy. It was held that on the question of scope of judicial review when examining the policy of the Government, the

Courts do not act as the appellate authorities checking the wisdom, correctness or appropriateness of the policy.

In view of the above discussion, we hold that even though this Court wields the power of judicial review to examine the constitutional validity of the

rule in question but this Court does not act as an appellate authority over the policy decision of the Government to check its wisdom to find out

whether the policy is correct or appropriate. In all such matters, the executive is entitled to certain leverage to formulate its policies, which are open to

interference by the Courts in exercise of power of judicial review only if they are manifestly arbitrary, capricious or are opposed to any statutory

provision or violating of any constitutional provision. The wisdom of the executive on comparative merit of the alternative decisions is not the matter

within the domain of this Court.

Upshot of the above discussion is that all the writ petitions deserve to fail and are hereby dismissed. This also disposes of stay applications as also

other applications, if any.

Office to place a copy of this judgment in each connected matter.