B.B. Ahluwalia vs State Of Chhattisgarh
2022 Latest Caselaw 5787 Chatt

                                      1

                                                                         NAFR
               HIGH COURT OF CHHATTISGARH, BILASPUR
                         WA No. 576 of 2019
B.B. Ahluwalia S/o Late K.D. Ahluwalia Aged About 74 Years Dental
Surgeon (Retired) , R/o Tatyapara, Raipur , Chhattisgarh
                                                                  ---- Appellant
                                   Versus
1.   State of Chhattisgarh Through Principal Secretary, Department of
     Public Health, Family Welfare And Medical Education , Govt. of
     Chhattisgarh, DKS Bhawan, Raipur And Presently At Mahanadi
     Bhawan , Atal Nagar, New Raipur Chhattisgarh
2.   The Dean Pt. Jawahar Lal Nehru Medical College, Raipur
     Chhattisgarh
3.   The Director Medical Education Raipur Chhattisgarh
4.   The Director Department of Public Health , Raipur Chhattisgarh
                                                            ---- Respondents

(Cause-title taken from Case Information System)

For Appellant : Mr. J.K. Gupta, Advocate For Respondents : Mr. Jitendra Pali, Deputy Advocate General

Hon'ble Shri Arup Kumar Goswami, Chief Justice

Hon'ble Shri Deepak Kumar Tiwari, Judge

Judgment on Board

Per Arup Kumar Goswami, Chief Justice

15.09.2022

Heard Mr. J.K. Gupta, learned counsel for the appellant. Also heard

Mr. Jitendra Pali, learned Deputy Advocate General, appearing for the

respondents.

2. This writ appeal is presented against an order dated 22.08.2019

passed by the learned Single Judge in Writ Petition No.2538 of 2005,

whereby the writ petition was dismissed.

3. Challenge in the writ petition was to an order dated 16.09.2004,

whereby the appellant was intimated that he would be retiring on

superannuation on 30.11.2004.

4. At the outset, Mr. Pali submits that though the learned Single Judge

had recorded that the appellant has been superannuated at the age of 58

years, a perusal of Annexure P/2 document annexed by the appellant in the

writ petition itself, goes to show that the case of the appellant was that he

was made to retire on completion of 60 years of age.

5. Be that as it may.

6. The case of the appellant, in short, presented in the writ petition is that

he was appointed as Dental Surgeon on 23.11.1969 and was promoted as

Dental Specialist in the year 1993. It is the further case of the appellant that

he had been teaching students last 30 years as Dental Specialist. The

appellant also relied on the explanation to Rule 56 of the Fundamental

Rules in support of the contention that he being a teacher, he is entitled to

continue up to the age of 62 years.

7. The learned Single Judge at paragraphs-3 to 5 observed as follows :

"3. Petitioner claims that he having worked as

teacher at different point of time, he should have been

retired at the age of 62 years in terms of the

amendment made in the Madhya Pradesh

Government Servant (Age of Superannuation) 2nd

Amendment Act, 1998. Referring to the explanation

inserted to Rule 56 (1-a), learned counsel would argue

that if any person is appointed for imparting teaching

in any medical or technical college, he shall be

deemed to be a teacher and similarly any person

promoted on any administrative post but was initially

appointed as teacher shall also be deemed to be a

teacher for the purposes of application of the age of

superannuation to a teacher.

4. Learned State counsel would submit that

even if the petitioner was engaged for imparting

teaching in the Medical College, Raipur, in the

Department of Dentistry, as and when needed, that

would not amount to an appointment to a teaching

post. He would submit that unless and until the

petitioner is appointed either substantively or

otherwise to a teaching post, merely on account of

imparting teaching for few months or years, he will not

become a teacher.

5. True it is that the certificate filed by the

petitioner along with application for taking document

on record discloses that he had officiated as

Lecturer in Dentistry from July, 1971 to March, 1973

and was also looking after the duties of lecturer in

Dentistry whenever the lecturer went on vacation or

earned a casual leave since 05.10.1970 and

whenever needed thereafter. The fact remains that

the petitioner was never issued any letter of

appointment on teaching post in the Medical

College, Raipur. At all relevant point of time, he

remained posted in the D. K. Hospital, Raipur. Even

if the said hospital was attached with the Medical

College, Raipur and the petitioner was engaged to

teach on few ocassions, his appointment would not

be converted as a teacher unless specific order is

issued by the Government in this regard. If the

contention raised by the petitioner is accepted, then

every employee on the administrative or ministerial

side in the medical or technical college would

become a teacher if he is allowed to impart teaching

for few months. For application of the amended

provision of the superannuation Rules, 1967, the

substantive appointment of an employee/officer has

to be on a teaching post, by whatever name called.

Admittedly, the post of Dental Surgeon in a District

Hospital is not a teaching post."

8. In substance, the learned Single Judge held that for application of

Rule 56(1-a) of the Fundamental Rules, substantive appointment of an

employee has to be on a teaching post and that the post of Dental Specialist

in District Hospital is not a teaching post.

9. The contention advanced by the appellant is that he was teaching in a

Medical College (Dental Department).

10. In the return filed by the State, it is stated that the appellant was

working in District Hospital, Dhar and he was transferred to D.K. Hospital,

which is a District Hospital, Raipur on 09.09.1970 and thereafter, he was

transferred as Dental Surgeon on 14.06.1983 to District Hospital, Durg. He

was again transferred from District Hospital, Durg to D.K. Hospital, Raipur

as Casualty Medical Officer on 07.11.1983, in which post he had continued

till March, 1999. In between, the appellant was promoted as Dental

Specialist by an order dated 11.05.1993 by the Director of Health Services.

It is stated that as per Medical Council of India norms, the faculty post for

teaching is Demonstrator, Assistant Professor / Lecturer, Reader and

Professor. It is the categorical stand of the respondents that the appellant

was never posted as teacher and he never worked as medical teacher.

11. Rule 56 of the Fundamental Rules was substituted by Section 3 of the

Chhattisgarh Shaskiya Sevak Anivarya Seva Nivritti Ka Vidhi Manyatakaran

Adhiniyam, 1967 and the substituted Rule finds place in Chhattisgarh

Shaskiya Sevak (Adhivarshiki-Ayu) Adhiniyam, 1967 as follows :

"56. Age of Superannuation.- (1) Subject to the

provisions of sub-rule (2) every Government

servant other than a Government Teacher and a

Class IV Government servant shall retire from

service on the afternoon of the last day of the

month in which he attains the age of sixty years :

Provided that a Government servant

whose date of birth is the first of a month shall

retire from service on the afternoon of the last day

of the preceding month on attaining the age of sixty

years.

(1-a) Subject to the provisions of sub-rule

(2), every Government Teacher shall retire from

service on the afternoon of the last day of the

month in which he attains the age of sixty two

years:

Provided that a Government Teacher

whose date of birth is the first of a month shall

retire from service on the afternoon of the last day

of the preceding month on attaining the age of sixty

two years.

Explanation:- For the purpose of this sub-

rule "Teacher" means a Government servant by

whatever designation called, appointed for the

purpose of teaching in Government Educational

Institution including technical or medical

educational institutions, in accordance with the

recruitment rules applicable to such appointment

and shall also include the teacher who is appointed

to an administrative post by promotion or otherwise

and who has been engaged in teaching for not less

than twenty years provided he holds a lien on a

post in the concerned School / Collegiate /

Technical / Medical education service."

12. By no stretch of imagination, Dental Hospital can be said to be a

Government Educational Institution for the appellant to claim that he is a

teacher in terms of Explanation to Fundamental Rule 56(1-a). As rightly held

by the learned Single Judge, no material has been placed by the appellant

that he had been engaged in teaching for 20 years for bringing him within

the meaning of term "Teacher".

13. That apart, while in service, the appellant did not question the

issuance of the order dated 16.09.2004 and much later, on 15.06.2005, the

writ petition was filed.

14. On due consideration, we find no good ground to interfere with the

order of the learned Single Judge, and resultantly, finding no merit, the writ

appeal is dismissed. No cost.

                          Sd/-                                  Sd/-
                (Arup Kumar Goswami)                  (Deepak Kumar Tiwari)
                      Chief Justice                           Judge


Anu