TaxTMI 
TaxTMI 
2021 (8) TMI 1403
X X X X Extracts X X X X
X X X X Extracts X X X X
....dated 24.08.2017 of the Central Administrative Tribunal, Principal Bench [hereinafter referred to as the 'Tribunal' for short] and dismissed the petitions filed by the North Delhi Municipal Corporation [hereinafter referred to as the 'NDMC' for short]. The Tribunal declared that the applicants who are ayurvedic doctors covered under AYUSH are also entitled to the benefit of enhanced superannuation age of 65 years (raised from 60 years), just like the allopathic doctors. The entitlement of the Respondents to continue in service upto 65 years and receive due remuneration for the same is the only issue to be considered in these cases. For the sake of convenience, the relevant facts are taken from SLP (C) No. 10156 of 2019. 2. Prior to 31.05.2016, the retirement age was 60 years for the General Duty Medical Officers ['GDMO' for short] of the Central Health Scheme ['CHS' for short], the Dentists and Doctors covered under AYUSH (including ayurvedic doctors). At that stage, the Government of India, Ministry of Health and Family Welfare issued the order dated 31.05.2016, with immediate effect, enhancing upto 65 years, the age of superannuation of the specia....
X X X X Extracts X X X X
X X X X Extracts X X X X
....age of 65 years. 5. Aggrieved by the above decision of the Tribunal, the Appellant NDMC preferred Writ Petitions before the High Court of Delhi. During the pendency of writ petition, on 24.11.2017, the Ministry of Ayurveda, Yoga, Naturopathy, Unani, Siddha and Homeopathy ('AYUSH' for short), Government of India, issued an order whereby it was communicated that the superannuation age of AYUSH doctors is also enhanced to 65 years w.e.f. 27.09.2017, i.e. the date of approval of Union Cabinet. It was however directed that the doctors shall hold administrative positions only until age of 62 years and thereafter, their service shall be placed in non-administrative positions. 6. It may be noted that the High Court on 26.09.2017 in WP(C) 8704/2017 arising out of OA 2712/2016 (NDMC v. Dr. Santosh Kumar Sharma), had passed the following interim order: **** **** *** *** Since the private Respondents are still working under the orders as passed by the Tribunal, the Respondents may continue to work, if they so desire without receiving any salary as of now. We are inclined to permit the Respondents to continue to serve this interim order, since learned Counsel for the private Respon....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ection was also issued on their entitlement to salary and other allowances till they superannuate at the age of 65 years. Aggrieved by the said decision of the High Court of Delhi, the present Appeals are filed. 10. The Respondents in SLP (C) No. 19288/2019 (Dr. Brijesh Kumari) and SLP (C) No. 19287/2019 (Dr. Mohd. Ahmed Khan) are Ayurvedic and Unani doctors respectively, working under the South Delhi Municipal Corporation ['SDMC']. Dr. Brijesh Kumar was supposed to retire on 31.07.2017 upon attaining age of 60 years, whereas Dr. Mohd. Ahmed Khan was supposed to superannuate on 31.05.2017. Dr. Brijesh Kumar filed O.A. 2503/2017 in the Tribunal, which came to be decided on 05.09.2017. In its order the Tribunal, relied on its earlier judgment in the matter of Dr. Santosh Sharma, whereby the Respondents were allowed to continue in service till they attain the age of 65 years. Similarly, Dr. Khan's application came to be decided on 21.09.2017 with like consequences. Aggrieved by these orders, Writ Petitions were preferred by the SDMC impugning the judgments by the Tribunal. These Writ Petitions were dismissed by the Delhi High Court on same day i.e. 27.03.2019 vide judgmen....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... itself on 24.11.2017 has enhanced the retirement age for the non-allopathic doctors w.e.f. 27.09.2017, in tune with the Ministry's order dated 31.05.2016. 14. Ld. Sr. Counsel for Appellant relied on judgment of this Court in U.P. State Brasswar Corporation Ltd. and Anr. v. Uday Narain Pandey (2006) 1 SCC 479, and argued that while earlier, awarding full arrears of salary was the practice, under the prevalent pragmatic view of the issue, the Court should determine the award of back wages based on facts and circumstances of each case. For the Bench, Justice S.B. Sinha in Uday Narain Pandey (supra) stated that: "17. Before adverting to the decisions relied upon by the learned Counsel for the parties, we may observe that although direction to pay full back wages on a declaration that the order of termination was invalid used to be the usual result but now, with the passage of time, a pragmatic view of the matter is being taken by the court realizing that an industry may not be compelled to pay to the workman for the period during which he apparently contributed little or nothing at all to it and/or for a period that was spent unproductively as a result whereof the employer woul....
X X X X Extracts X X X X
X X X X Extracts X X X X
....Supply Utility of Odisha v. Dhobei Sahoo and Ors. (2014) 1 SCC 161, stated that: 51....Till the declaration is made, the incumbent renders service and when he has rendered service he cannot be deprived of his salary. Denial of pay for the service rendered tantamounts to forced labour which is impermissible. When an appointment is admitted and the incumbent functions in the post and neither suspended nor removed from service, he is entitled to get salary, for it is his legal right and it is the duty of the employer to pay it as per the terms and conditions of the appointment.... The above ratio correctly sets out the employers' responsibility to pay the wages for the productive employees serving under them. 19. In the case of New Okhla Industrial Development Authority and Anr. v. B.D. Singhal and Ors.[C.A. No. 2311 of 2021], this Court while dealing with a comparable issue, declined to give retrospective application to the U.P. State Government order dated 30th September 2012, which extended the age of superannuation from 58 years to 60 years. The arrears of salary to Respondent employees who had retired on 31st August, 2012, upon attaining the age of 58 years was also denie....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nts, that he has not worked after superannuation on attaining the age of 60 years. But, there is sufficient evidence on record to suggest that the Respondent-doctor through several representations sought to be re-appointed but it was the employer who created impediments and did not allow the Respondent to re-join his duties in hospitals. In such circumstances, the principle of 'No Work, No Pay' cannot be raised by the employers, as it is they who had obstructed the doctor from discharging his service. For support we may cite Dayanand Chakrawarthy v. State of Uttar Pradesh (2013) 7 SCC 595 where this Court speaking through Justice S.J. Mukhpadhyaya rightly held that: "48. ... If an employee is prevented by the employer from performing his duties, the employee cannot be blamed for having not worked, and the principle of "no pay no work" shall not be applicable to such employee." 22. The common contention of the Appellants before us is that classification of AYUSH doctors and doctors under CHS in different categories is reasonable and permissible in law. This however does not appeal to us and we are inclined to agree with the findings of the Tribunal and the Delhi High Cour....