Uttarakhand High Court
WPSB/78/2021 on 18 September, 2021
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
THE HON'BLE THE CHIEF JUSTICE SRI RAGHVENDRA SINGH
CHAUHAN
AND
THE HON'BLE SRI JUSTICE ALOK KUMAR VERMA
WRIT PETITION (SB) No. 78 OF 2021
16TH SEPTEMBER, 2021
Between:
Kundal Kumar Tamta ...Petitioner
and
State of Uttarakhand and others. ...Respondents
Counsel for the petitioner: Mr. Rajendra Dobhal,
learned Senior Counsel
assisted by Mr. Shailendra
Nauriyal and Mr. Vikas
Bahuguna, learned counsel.
Counsel for the respondents: Mr. Anil Kr. Bisht,
learned Additional Chief
Standing Counsel for
the State of
Uttarakhand.
The Court made the following:
JUDGMENT : (per Hon'ble The Chief Justice Sri Raghvendra Singh Chauhan)
The petitioner is aggrieved by the order, dated
30.01.2021, passed by the Principal, Government
Doon Medical College, whereby the petitioner was
1
directed to retire from 31.01.2021 from the post of the
Medical Superintendent, Doon Medical College.
2. Briefly, the facts of the case are that the
petitioner was appointed as a Medical Officer on
17.12.1991 in the Department of Medical Health.
Eventually, he was promoted to the post of Principal,
Regional Training Centre, Chander Nagar, Dehradun.
By order dated 23.09.2015, the petitioner was
temporary attached on the post of Medical
Superintendent. According to the petitioner, he had
requested that he should be posted on the post of
Medical Superintendent on the basis of deputation.
Therefore, by order dated 19.04.2016, he was posted
on the said post by way of deputation. Subsequently,
by order dated 05.05.2016, his services were merged
on the post of Medical Superintendent. But
notwithstanding that by order dated 05.05.2016, the
petitioner's services were "merged" on the post of
Medical Superintendent, by order dated 29.05.2018,
the petitioner's services, on the post of the Medical
Superintendent, were substituted by the appointment
of Dr. K.C. Pant as the Medical Superintendent. Since
the petitioner was aggrieved by the order dated
29.05.2018, he filed a writ petition, namely, WPSB No.
216 of 2018 before this Court. By order dated
2
12.06.2018, this Court stayed the operation of the
order dated 29.05.2018. Realising the mistake
committed by the respondents that they had illegally
substituted and appointed Dr. K.C. Pant in place of the
petitioner by order dated 29.05.2018, by order dated
13.07.2018, the said order dated 29.05.2018 was
recalled; and the petitioner was re-appointed on the
post of Medical Superintendent. Since the impugned
order, dated 29.05.2018, was recalled by the
Government by its order dated 13.07.2018, the writ
petition filed by the petitioner became infructuous.
Therefore, by order dated 28.08.2018, this Court
dismissed the said writ petition as infructuous. By
order dated 30.01.2021, the petitioner has been
retired from the post of Medical Superintendent with
effect from 31.01.2021. Hence, the present writ
petition before this Court.
3. Mr. Rajendra Dobhal, the learned Senior Counsel
appearing for the petitioner, submits that vide order
dated 06.06.2012, the State Government had
amended Rule 56(a) of the Financial Handbook.
According to the said amendment, the teaching staff of
a Medical College was to retire at the age of sixty-five
years. Despite the fact that the petitioner was
appointed on the post of Assistant Professor, and was
3
entitled to retire at the age of sixty-five years, by the
impugned order dated 30.01.2021, he is being retired
at the age of sixty years. Therefore, the impugned
order dated 30.01.2021 is clearly in violation of Rule
56(a) of the Financial Handbook. Therefore, the said
order deserves to be set aside by this Court.
4. On the other hand, Mr. Anil Kumar Bisht, the
learned Additional Chief Standing Counsel for the State
of Uttarakhand, submits that although the petitioner
was initially appointed as an Assistant Professor,
subsequently his services were merged on the post of
Medical Superintendent by order dated 05.05.2016.
Moreover, when the Government realized its mistake
in passing the order dated 29.05.2018, whereby Dr.
K.C. Pant was appointed erroneously as a Medical
Superintendent, it withdrew the said order by order
dated 13.07.2018. By order dated 13.07.2018, the
petitioner was re-appointed on the post of Medical
Superintendent. Thereafter, the petitioner continued
to discharge the duties of the Medical Superintendent.
Since he was no longer in the teaching staff as an
Assistant Professor, but was discharging the
administrative duties as a Medical Superintendent, the
respondents were justified in retiring the petitioner at
the age of sixty years instead of the age of sixty-five.
4
Therefore, according to the learned Additional Chief
Standing Counsel for the State of Uttarakhand, the
impugned order dated 30.01.2021 is legally valid.
5. Heard the learned counsel for the parties,
and perused the record.
6. The issue before this Court is whether after
his re-appointment on the post of Medical
Superintendent by order dated 13.07.2018, the
petitioner continued to discharge his duties as an
Assistant Professor, or as a Medical Superintendent?
7. A bare perusal of the facts narrated
hereinabove clearly reveals that although the
petitioner was appointed as an Assistant Professor, his
services were merged on the post of Medical
Superintendent by order dated 05.05.2016. Once the
services were merged, he was permanently appointed
as Medical Superintendent. Although the order dated
29.05.2018 was passed against the petitioner by
substituting him with Dr. K.C. Pant on the post of
Medical Superintendent, after realizing its mistake, the
said order was, indeed, recalled by the order dated
13.07.2018. A bare perusal of the order dated
13.07.2018 clearly reveals that the petitioner was re-
appointed on the post of the Medical Superintendent.
5
Most importantly, the petitioner has failed to submit
any documentary evidence to show that after
13.07.2018, he had been re-appointed, or directed to
discharge the duties as an Assistant Professor. Thus,
clearly from 13.07.2018, the petitioner was
discharging the duties of the Medical Superintendent.
Since he was discharging the administrative duties as
a Medical Superintendent, and was no longer a part of
the academic facility, and since he was no longer
teaching as an Assistant Professor, obviously the
petitioner cannot take the benefit of Rule 56(a) of the
Financial Handbook. Hence, the respondents were
justified in retiring the petitioner at the age of sixty
years by the order dated 30.01.2021.
8. For the reasons stated above, this Court
does not find any merit in the present petition. It is,
hereby, dismissed.
9. In sequel thereto, pending application, if any,
stands disposed-of.
10. No order as to costs.
_____________________________
RAGHVENDRA SINGH CHAUHAN, C.J.
___________________
ALOK KUMAR VERMA, J.
Dt: 16th September, 2021
Rathour
