Dr. Lakshmy Anantha Raman vs Union Of India & Others
2017 Latest Caselaw 609 Del

*           IN THE HIGH COURT OF DELHI AT NEW DELHI

+                        WRIT PETITION (CIVIL) No. 5330/2015

                                           Reserved on: 18th January, 2017
%                                   Date of Decision:   2nd February, 2017

        DR. LAKSHMY ANANTHA RAMAN                      ....Petitioner
                 Through Mr. K. Venkatraman, Advocate.

                                         Versus

        UNION OF INDIA & OTHERS                     ....Respondents
                 Through Mr. Jaswinder Singh with Mr. Brajesh Kumar,
                 Advocates for UOI.

        CORAM:
        HON'BLE MR. JUSTICE SANJIV KHANNA
        HON'BLE MR. JUSTICE CHANDER SHEKHAR

SANJIV KHANNA, J.

Dr. Lakshmy Anantha Raman in this writ petition impugns the order dated 16th April, 2015 whereby the Principal Bench of the Central Administrative Tribunal (Tribunal, for short) has dismissed her Original Application No. 1379/2013 declining her prayer for retirement at the age of 65 years.

2. The petitioner had joined the third respondent-Lady Hardinge Medical College and Smt. S.K. Hospital and was appointed to the post of Demonstrator in the Department of Microbiology in 1981. At the time of recruitment, she was an M.Sc. (Medical Microbiology) with a Ph.D. (Microbiology) and had two years' teaching experience in a medical college/institution. She was then slightly more than 28 years of age.

3. The post of Demonstrator is an isolated post and is not part of the Central Health Service.

4. The petitioner was retired when she attained the age of 60 years on 31st March, 2013. She was denied benefit of extended age of superannuation of 62 years applicable to university and college teachers, Registrars, Librarians, Physical Education personnel, Controller of Examinations, Finance Officers and such other employees, who were treated at par with teachers, vide consolidated statement based on letter No. F.1-22/97-U.I. issued on 27th July, 1998 followed by letters on 22nd September, 1998 and 6th November, 1998 by the Ministry of Human Resource Development. The relevant portion of the said consolidated statement is relevant and, therefore, is being reproduced:-

"(vi) Age of Superannuation (Annexure I) The age of superannuation of university and college teachers, Registrars, Librarians, Physical Education personnel, Controller of examinations, Finance Officers and such other university employees who are being treated at par with the teachers and whose age of superannuation was 60 years, would be 62 years and thereafter no extension in service should be given. However, it will be open to a university or college to re-employ a superannuated teacher according to the existing guidelines framed by the UGC up to the age of 65 years. (Annexure I & III)"

5. By another notification issued by the Ministry of Human Resource Development, Government of India, dated 23rd March, 2007, the Central Government in the light of existing shortage in teaching posts in Centrally funded institutions of higher and technical education under the Ministry, had decided as under:-

"(i) The age of superannuation of all persons who were holding teaching positions on regular employment against sanctioned posts as on 15.3.2007 in any of the centrally funded higher and technical educations under

this Ministry shall be increased from present 62 years to 65 years.

(ii) Persons holding such regular teaching positions who have superannuated prior to 15.3.2007 on attaining the age of 62 years but have not attained the age of 65 years may be re-employed against vacant sanctioned teaching positions till they attain the age of 65 years, in accordance with the guidelines framed by the University Grants Commission.

(iii) All persons holding teaching positions against sanctioned posts may also be considered for re- employment beyond 65 years and up to the age of 70 years, against sanctioned vacant posts, if such posts are not filled up by regular candidates. However, such re- employments beyond the age of 65 years shall be done only after screening at the age of 65 years, under the extant guidelines to the University Grants Commission.

3. It is further clarified that the enhancement of retirement age as mentioned above and the provision for re-employment, will apply only to persons in teaching positions against posts sanctioned to Centrally funded higher and technical education institutions coming under the purview of this Ministry, in order to overcome the shortage of teachers."

6. A reading of the consolidated statement would show that it was applicable to university and college teachers and other employees, like, Registrars, Librarians, Physical Education personnel and other university employees, who were treated at par with teachers. A reading of clauses (i) and (ii) of the notification dated 23rd March, 2007 quoted above would show that the age of superannuation for teaching positions in the Centrally funded institutions of higher and technical education was extended/increased from 62 years to 65 years. Reference in the notification dated 23rd March, 2007 to the age of 62 years is obviously with reference to the age of superannuation, which was increased to 62 years under the consolidated statement.

7. It is an undisputed and admitted position that Lady Hardinge Medical College and Hospital where the petitioner was working has been recognised by the University Grants Commission as eligible for Central assistance from the Government of India and is treated as an institution of higher and technical education. Teachers working in the said hospital have been granted benefit of age of superannuation under the consolidated statement to the age of 62 years and under the notification dated 23rd March, 2007 till the age of 65 years.

8. The petitioner's prayer that she should be retired at the age of 65 was rejected by the speaking order dated 28th March, 2013 passed pursuant to directions issued by the Tribunal vide order dated 11th February, 2013 in an earlier OA No. 3950/2012 filed by the petitioner. The relevant portion of the said order dated 28th March, 2013 reads as under:-

"3. Whereas in support of her contentions for increase in her age of superannuation from 60 to 65 years, Dr. Lakshmy A. Raman in her representation dated 15/10/2012 has inter alia raised the issues that presently she is in pay scale of Rs.15600-39100, Pay Band-3 in Grade Pay Rs.7600 which is equivalent to the pay scale of an Associate Professor since 1-1-2005; and that she has been teaching since 1st July, 1981-31 years as a Demonstrator in the Dept. of Microbiology, Lady Hardinge Medical College, New Delhi, teaching Undergraduate (MBBS) and Post-Graduate (MD) Microbiology Students, B.Sc. Nursing Students, Tutors and other Doctors by taking Lectures, Tutorials and Practical's. Clinical Microbiology- Diagnostic Laboratory work, emergency duties and research in target areas; that she has a number of publications in both National and International journals to her credit and regularly attended and presented scientific papers at National and International Conferences, Symposia and CME; that she has been awarded the Biotechnology Overseas Research Associateship for 2

years (1992-1994) at CDC, Atlanta, USA by the Ministry of Science & Technology and other awards for research in Allergy & Immunology & Rheumatoid Arthritis; that though the age of superannuation for post of CHS teaching Sub-cadre has been enhanced to 65 years, she has been issued a letter stating that her retirement age is 60 years and she would superannuate by end March, 2013.

4. Whereas the whole issue has been examined in the context of entire legal and factual matrix and the following position emerges:-

(i) It was by way of a conscious decision that the Competent Authority had enhanced the age of superannuation of all specialist doctors of Central Health Service (CHS) belonging to (a) teaching specialist, (b) Non-teaching specialist and (c) Public Health Sub-Cadre from 60 to 62 years vide Order No. A.12034/3/2005-CHS-V dated 16.11.2006 (Annexure-I). Thereafter, the Competent Authority further enhanced the age of superannuation of Teaching Sub-Cadre to 65 years vide Order No. A.12034/2/2007-CHS-V dated 16.9.2008 (Annexure-II).

(ii) The post of Demonstrator which is held by Dr. Lakshmy A. Raman does not belong to teaching specialist sub-cadre of CHS to which the orders dated 16.9.2008 regarding enhancement in age of superannuation is applicable.

(iii) Dr. Lakshmy A. Raman was appointed as Demonstrator by the Institute through direct recruitment in the pay scale of Rs.550-900 (pre revised) and has been granted first & second ACPs vide Ministry of Health & Family Welfare No. A.12034/32/2009-ME-III dated 19.01.2010 in the pay scale of Rs.10000-15200/- w.e.f. 09.08.1999 and 12000-16500/- w.e.f. 01.07.2005 respectively, which has been revised as per 6th CPC in the PB-3 (15600-39100/-) with Grade Pay of Rs.6600/- Rs.7600/- respectively.

(iv) Only possessing element of equal or higher qualifications and performance of similar duties does not make a case for applicability of orders regarding enhancement of age of superannuation of 65 years which are applicable only to the officers belonging to Teaching sub-cadre of CHS.

(v) As regards promotional avenues she has been granted two ACPs.

5. Whereas the age of superannuation of Teaching Specialist Sub-Cadre of Central Health Service who are not occupying administrative positions have been enhanced to 65 years vide MoH&FW Order No. A.12034/2/2007 CHS.V dated 16.09.2008. MoH&FW vide OM A.12034/2/2007 CHS.V (PT) dated 12.02.2009 are meant for teaching faculties. Since the post of Demonstrator is not a post under CHS, these orders are not applicable to the post of Demonstrator.

6. Whereas in depth analysis of the distinguishable features as illustrated in the preceding para would reveal that the contentions raised by Dr. Lakshmy A. Raman for enhancement of her age of superannuation from 60 to 65 years are based on conjecture and surmises and cannot be considered under existing orders issued with the approval of competent authority for teaching sub-cadre of CHS.

7. And now, therefore, the Competent Authority (respondent no. 1) has decided to reject the representation dated 15.10.2012 and subsequently on 27.11.2012 submitted by Dr. Lakshmy A. Raman, Demonstrator for the reasons as brought out in paras above. However, it is clarified that the applicability of Ministry of HRD's letter F. No. 1-19/2006-U.II dated 23.3.2007 to the issue of enhancing the age of superannuation of all persons engaged in teaching other than CHS teaching sub-cadre and other such categories under this Ministry will be examined in consultation with the concerned Ministries including Ministry of Human Resource Development and Department of Expenditure, M/o Finance."

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 non- medical 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 sub- cadre 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:-

"2. In the departments of Anatomy, Physiology, Biochemistry, Pharmacology and Microbiology, non- medical teachers may be appointed to the extent of 30% of the total number of the posts in the department. A non-medical approved medical M.Sc. qualification shall be a sufficient qualification for appointment as Lecturer in the subject concerned but for promotion to higher teaching post a candidate must possess the Ph.D. degree in the subject. The Heads of these departments must possess recognised basic university medical degree qualification or equivalent qualification. However, in the department of Biochemistry, non-medical teachers may be appointed to the extent of 50% of the total number of posts in the department. In case of the paucity of teachers in non- clinical departments relaxation upto the Head of the Department may be given by the appointing authority to the non-medical persons if suitable medical teacher in the particular non-clinical speciality is not available for the said appointment. However, such relaxation will be made only with the prior approval of the Medical Council of India. A non-medical person cannot be appointed as Director or Principal or Dean or Medical Superintendent. In the departments of Community Medicine and Pharmacology, Lectures in Statistics and Pharmacological Chemistry shall possess M.Sc. qualification in that particular subject from a recognised University."

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 31 st

March, 2013 at the age of 60 years and would attain the age of 65 on 31 st 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