Dr. Lakshmy Anantha Raman v. Union of India & Others

9. Paragraphs 4 to 6 of the aforesaid order contains the reasoning why the petitioner’s prayer that she would superannuate at the age of 65 years under the aforesaid consolidated statement and notification dated 23rd March, 2007 was rejected. The ground stated, was the petitioner did not belong to Central Health Service, for the post of Demonstrator was not included as a sub-cadre of the said service. This reason, according to us, discloses a gross error in the decision making process for the consolidated statement and the notification dated 23rd March, 2007 do not have any such stipulation, i.e., the teachers must belong to the Central Health Service. This reasoning is contrary to the language of the consolidated statement and notification dated 23rd March, 2007. The consolidated statement refers to university and college teachers. The doctors and others, who were/are teaching in medical colleges, it is an accepted position, were/have been given benefit of the consolidated statement and their age of superannuation was increased to 62 years. Similarly, the notification dated 23rd March, 2007 refers to all employees holding teaching posts on regular employment against sanctioned posts as on 15th March, 2007. It does not refer to any particular service or teaching position held in the Central Health Service. In these circumstances, we cannot accept the reasoning given in the order dated 28th March, 2013 to reject the prayer of the petitioner that she would not superannuate at the age of 62/65 years for she did not belong to the Central Health Service.

10. Paragraph 5 of the order dated 28th March, 2013 records that age of superannuation in teaching specialist sub-cadre of the Central Health Service of those not occupying administrative positions stands increased to 65 years vide notification/order dated 16th September, 2008. By order dated 12th February, 2009, it was clarified that this enhanced age was meant for teaching faculties. The question would be and which should have been examined and answered by the respondents while deciding the representation and the case of the petitioner was; whether the post of Demonstrator, which the petitioner was occupying, was a post of a university or a college teacher or another employee, who is treated at par with the teachers in terms of the consolidated statement and whether the petitioner was holding a teaching position on regular employment against a sanctioned post as on 15th March, 2007. This exercise was not undertaken and the said parameters as stipulated were not applied or considered. The reasoning given in paragraph 6 that petitioner’s claim that she would superannuate at the age of 65 years was based on surmises and conjectures, is not correct. In fact, the impugned order dated 28th March, 2013 did not reflect or apply the correct test and the rule applicable. The impugned order dated 28th March, 2013 suffers from surmises and conjectures.

11. Paragraph 3 of the impugned order quoted above specifically states that the petitioner was in the pay scale of Rs.15600-39100, Pay Band-3 in Grade Pay of Rs.7600, which is a pay scale equivalent to the scale of Assistant Professor. She had been in the said pay scale since 1st January,

2005. Further, the petitioner had stated and it is an undisputed position, which is unchallenged in the order dated 28th March, 2013, that the petitioner has been teaching and taking classes since July, 1981 and had 31 years experience as a teacher. This was in terms of her work and job profile as a Demonstrator in the Department of Microbiology. She was, during this period of 31 years, teaching Undergraduate (MBBS) and Post-Graduate

(MD) Microbiology students, B.Sc. Nursing students, tutors and other doctors. She has held and given lectures, tutorials and conducted practicals in clinical microbiology. In addition, she would do diagnostic laboratory work, emergency duties and research in target areas. The aforesaid narration of work profile of the petitioner was not disputed or denied in the order dated 28th March, 2013.

12. In paragraphs 4.[1] and 4.[2] of the O.A. the petitioner had specifically asserted that she was appointed to the post of Demonstrator vide appointment letter dated 26th June, 1981 after due selection on the basis of advertisement. The duties of Senior Demonstrators, medical and nonmedical were identical, i.e., to teach microbiology to Undergraduate (MBBS) students, undertake practical discussions and lectures to assess progress of students periodically, do emergency duties, research in target areas and also teach Microbiology to MD students of Delhi University. The petitioner was conducting lectures of MBBS students in Applied Microbiology and independently looking after Mycobacteriology and Mycology. In a counter affidavit filed before the Tribunal, the respondents have pleaded and stated as under:- “4.1-4.[2] That the contents of the paras 4.1-4.[2] of O.A. is wrong, incorrect and denied. It is submitted that the applicant was appointed as Demonstrator w.e.f. 01.07.1981 in the pay scale of Rs.550-900/- against the vacant post of Senior Resident in the Department of Microbiology which is the tenure post for the period of two years at that time. Since the Recruitment Rules of the post Demonstrator is not available, the duties attached to the post of cannot be denied. However, it is submitted that the teaching is the one of duty of the post of Demonstrator in the Department of Microbiology, but it does not belong to teaching subcadre of Central Health Services (CHS).” In the aforesaid answer, the respondents have stated that the duties attached to the post of Demonstrator cannot be denied. Thus the respondents do not deny that teaching was one of the duties of the post of the Demonstrator in the Department of Microbiology, but it was asserted this factum was not sufficient to get benefit of the extended age of superannuation of 65 years, as the petitioner did not belong to teaching sub-cadre of the Central Health Service. As already noticed above, this is not the requirement and the stipulation of the consolidated statement or notification dated 23rd March, 2007.

13. The petitioner had also specifically placed reliance on the letter dated 14th August, 1999, written by the Professor and Acting Head of Microbiology Department to the Administrative Officer of the Lady Hardinge Medical College. The said letter records that the petitioner, who was working as Senior Demonstrator since 1981 in the Department of Microbiology in the said college had been entrusted with duties and responsibilities of the Senior Resident (Medical). She had been taking second year MBBS lectures in Applied Microbiology and was also teaching MD (Microbiology) students of Delhi University. In addition, she was independently looking after the Mycobacteriology and Mycology Laboratory. Other achievements of the petitioner, including her participation in academic activities of different departments were highlighted. The petitioner has also placed on record another letter dated 26th April, 2006 written by the Deputy Director (Administration), which records that the duties of the post of Demonstrator entail teaching and training Undergraduates, Post-graduates, Nursing and Medical Laboratory Technology students. The petitioner would participate in patient care by working in various sections of the Department. She was involved in ongoing research activities of the Department and had presented and published research work.

14. Clause 2 of Schedule-I of the Minimum Qualifications for Teachers in Medical Institutions Regulations, 1998 published in the Gazette of India and issued by the Medical Council of India, reads:-

A reading of the first portion of the said clause would indicate that non-medical teachers can be appointed to the extent of 30% of the total number of posts in the Department of Anatomy, Physiology, Biochemistry, Pharmacology and Microbiology. Non-medical approved medical M.Sc. qualification is treated sufficient qualification for appointment as a lecturer in the subject concerned. However, for promotion a candidate must possess a Ph.D. in the subject. Thus, the petitioner is qualified and was appointed as a teacher in terms of the aforesaid regulations. This is not challenged or denied.

15. Learned counsel for the respondent has submitted that the impugned order also dismisses OA No. 3829/2012 whereby the petitioner had sought relief and prayed that she be promoted as an Assistant Professor of Microbiology. The petitioner, it was held cannot be promoted as Assistant Professor of Microbiology. This would not make any difference. The reason being, we are not concerned with the question whether the petitioner was entitled to be promoted as Assistant Professor of Microbiology. The petitioner has accepted the said position and the adverse finding. The issue in the present case would be whether the petitioner while working as a Demonstrator was acting as a teacher and, therefore, would satisfy the stipulations of the consolidated statement and the notification dated 23rd March, 2007. As noted above, the post of the Demonstrator is an isolated post and, therefore, the petitioner could not have been promoted as an Assistant Professor even if she has a Ph.D. In case the petitioner was working in another service in a college or an institution, she may have been entitled to the said promotion, but as she was not part of the Central Health Service and as the post of the Demonstrator was not feeder cadre for promotion to the post of Assistant Professor, the said relief has been denied. This is inconsequential and irrelevant for the present issue and question.

16. In view of the aforesaid discussion the petitioner, it is held, is entitled to succeed as she is entitled to benefit of enhanced/increased age of superannuation of 65 years. The petitioner had demitted office on 31st March, 2013 at the age of 60 years and would attain the age of 65 on 31st March, 2018. The petitioner would accordingly retire on 31st March, 2018.

17. The petitioner, who was present in person in the Court, has made a statement that she would not claim arrears or back wages for the period between 1st April, 2013 till the pronouncement in the writ petition. We appreciate the stand taken by the petitioner. The petitioner has also possibly been paid her pensionary dues and retirement benefits.

18. Accordingly, we allow the present writ petition and hold that the petitioner would retire or superannuate at the age of 65 years. The respondent authorities would issue necessary order within one month from the date of receipt of a copy of this order. The petitioner would be paid her salary as Demonstrator with effect from 1st March, 2017. She would not be paid back wages. However, this period between 1st April, 2013 till the date of joining would not be treated as break in service and the salary payable on re-joining would be computed accordingly by notionally giving benefit of increments, etc. Pension and retirement dues already paid to the petitioner would be dealt with as per the Rules.

18. The writ petition is accordingly allowed to the extent indicated above. In the facts of the case, there will be no order as to costs. (SANJIV KHANNA) JUDGE (CHANDER SHEKHAR)

JUDGE FEBRUARY 2nd, 2017 VKR