Enhancing Retirement Age Of AYUSH Doctors A Policy Decision: Kerala High Court Asks State To Decide Expeditiously

The Kerala High Court on Monday set aside the order of the State Administrative Tribunal that directed the State government to enhance the retirement age of doctors in the AYUSH department to 60 years as done for doctors in the Health Department, citing that this was a state policy.

A Division Bench of Justice A.K Jayasankaran Nambiar and Justice Mohammed Nias C.P thereby directed the State to take a decision on the same expeditiously. 

"There are myriad factors that enter into the making of a decision as regards enhancement of retirement age, and we do not wish to speculate on what they might be. It is for the State government to undertake that exercise and come to a decision. For now, we need only direct the State government to take that decision, by considering the representations preferred by the applicants in the OA's."

In 2015, the State brought the government doctors qualified in the Ayurveda/Yoga/Homeo/Unani/Siddha system of medicine under a separate government department (AYUSH), leaving only allopathic doctors under the Health Department. The age of retirement of all these government doctors was 56 years till 2017.

However, in 2017, the age of retirement of the allopathic doctors was enhanced to 60 years while no such decision was taken for doctors in the AYUSH department. Aggrieved by this, some of the members of AYUSH approached the State Administrative Tribunal alleging discrimination and seeking a direction to the State to extend the benefit of enhanced age of retirement to them as well.

In two successive rounds of litigation, the Tribunal disposed of the applications with a direction to the State to consider the grievance. On both those occasions, the State rejected the representations citing that it had not yet taken a policy decision on enhancing the retirement age of the AYUSH doctors.

These doctors approached the Tribunal again impugning the State's order. This time, the Tribunal allowed the application and directed the State to enhance the retirement age of AYUSH doctors to 60 years as done for doctors in the Health Department. The benefit of enhanced retirement age was, however, confined to only those who retired after 03.08.2021 ie. the date of the Supreme Court decision in NDMC v. Dr. Ram Naresh Sharma & Ors. 

This order of the Tribunal prompted three categories of aggrieved persons to approach the High Court.

1) The State, aggrieved by the order to the extent it directs it to enhance the retirement age of doctors in the AYUSH department to 60 years

2) AYUSH doctors who retired on attaining the age of 56 years, prior to the date of NDMC (supra), aggrieved by the cut-off date fixed by the Tribunal for the benefit of enhanced retirement age.

3) Persons included in the rank lists prepared by the Kerala Public Service Commission [PSC] for appointment as AYUSH doctors

Additional Advocate General Ashok M. Cherian appeared for the State, and Advocates Elvin Peter P.J, T.R. Rajan, Harindranath and B. Ramachandran, appeared for the leave petitioners. Senior Advocate Raju Joseph instructed by Advocates C. Joseph Antony, G.P. Shinod, S. Ramesh, G. Sudheer, Asha S.V., P. Ramakrishnan and O.D. Sivadas appeared on behalf of the contesting respondents in the matter.

The Court initially quoted the Supreme Court decision in New Okhla Industrial Development Authority v. B.D.Singhal:  

"Whether the age of superannuation should be increased and if so, the date from which this should be effected is a matter of policy into which the High Court ought not to have entered."

This observation assumed significance here because the Bench found that the Tribunal had done precisely what the Supreme Court exhorted the High Courts not to do.

It was noticed that the order passed by the State clearly stated that it had not taken a policy decision in the matter. At this juncture, the Tribunal ought to have disposed of the applications directing the State to take a policy decision, with reasons if it was against the interests of the applicants.

"The Tribunal ought to have reminded itself of the fact that, in the absence of a policy decision taken by the State government, it was not within its domain to undertake that exercise by itself and thrust a decision on the State government."

Although the respondents argued that the Tribunal was justified in holding so as per the NMDC decision, the Court disagreed with this argument finding that the factual circumstances in that case were entirely different from the facts herein.

In the NMDC case, the Ministry of Health & Family Welfare and the NMDC had subsequently extended the benefit to AYUSH doctors by taking a policy decision to that effect. Moreover, in NMDC, the finding of discrimination between two categories of doctors apparently being treated differently for merely being practitioners of different systems of medicine was in the context of the differential dates from which the enhanced retirement age was extended to the Health Department doctors and the AYUSH doctors.

However, in this case, the State had not taken a policy decision on the enhancement of retirement age of doctors in the AYUSH department. Therefore, the State was directed to take a decision on these applications within 3 months on merits since the issue has been pursued since 2017 and to justify the same with reasons to manifest an application of mind by the State. 

As such, the impugned order of the Tribunal was set aside. The plea moved by the State was allowed but the pleas moved by retired AYUSH doctors and by third parties were dismissed. 

Case Title: State of Kerala & Anr v. Dr. K. Mohamed Akbar & Ors. and connected matters

Citation: 2022 LiveLaw (Ker) 327

Click Here To Read/Download The Order