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2013 DIGILAW 571 (PAT)

Rajendra Prasad Gupta v. State of Bihar

2013-05-01

AHSANUDDIN AMANULLAH, R.M.DOSHIT

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ORAL ORDER Feeling aggrieved by the order dated 18th September 2012 made by the learned single Judge in CWJC No. 16708 of 2011, the writ petitioner has preferred this Appeal under Clause 10 of the Letters Patent. 2. The matter at issue is whether or not the appellant belongs to the Bihar Medical Education Service. If he were a member of the Bihar Medical Education Service, the age of superannuation is now enhanced to 65 years and he should get the benefit of the enhanced age of superannuation. 3. The appellant was appointed as Tutor in Pediatrics in 1976 and continued to be Tutor till he reached the age of 62 years and he was made to retire on attaining the age of 62 years. 4. The Bihar Medical Education Service was constituted under the Bihar Medical Education Service Cadre and its Cadre Posts Recruitment Rules, 1997 (hereinafter referred to as ‘the Rules of 1997’). Rule 5 of the Rules of 1997 classified certain services as Bihar Medical Education Service. The posts mentioned in the said Rule 5 does not refer to the post of ‘Tutor’. 5. It is not in dispute that the post of Tutor is a teaching post. As early as on 22nd November 1976, the post of Tutor was re-designated as Assistant Professor. Nevertheless, for reasons not disclosed on the record, the appellant continued to be referred to as ‘Tutor’. 6. The hitherto prevalent age of superannuation of 62 years was revised by the Government of Bihar under its Notification dated 24th January 2011. Under the said Notification, the age of superannuation of the Doctors in Bihar Medical Education Service was enhanced to 65 years. In view of the said Notification, the appellant ought to have been continued in service till he attained the age of 65 years. However, under the belief that Tutors are not the part of the Bihar Medical Education Service, he was retired on 31st October 2011 on his attaining the age of 62 years. Since his retirement in October 2011, the age of superannuation for the Doctors in Bihar Health Service also was raised to 65 years. However, as the petitioner had already been retired on 31st October 2011, he was not extended the benefit of enhanced age of superannuation under the Notification dated 22nd December 2011 also. 7. Since his retirement in October 2011, the age of superannuation for the Doctors in Bihar Health Service also was raised to 65 years. However, as the petitioner had already been retired on 31st October 2011, he was not extended the benefit of enhanced age of superannuation under the Notification dated 22nd December 2011 also. 7. The Government of Bihar made the appellant to retire on attaining the age of 62 years on specious ground that he not being an Assistant Professor or any of the posts referred to in Rule 5 of the Rules 1997, he cannot be classified as a member of the Bihar Medical Education Service and cannot be extended the benefit of enhanced age of superannuation of 65 years. 8. It appears that the respondents have been hyper technical. It is not in dispute that the appellant had been appointed as a Tutor and continued to be the Tutor till he was made to retire. In our opinion, conjoint reading of the Government Resolution dated 22nd November 1976, the Rules of 1997 and the Senior Resident, Tutor and Bihar Medical Education Service Cadre Recruitment, Appointment and Promotion Rules, 2008 should leave no doubt that the post of Tutor in the Government Medical College is a teaching post and irrespective of its designation would be part of the Bihar Medical Education Service constituted under the Rules of 1997. The appellant is, therefore, entitled to be given the benefit of enhanced age of superannuation on attaining the age of 65 years. 9. We are informed at the bar that irrespective of his retirement at the age of 62 years in 2011, the appellant has been reinstated in service on 22nd September 2012 and as of now he is continued to be the Tutor in Sri Krishan Medical College, Muzaffarpur. The appellant will be entitled to admissible salary and allowances from the date he is reinstated in service till he reaches the age of superannuation. The period, the appellant was retired from the service on 31st October 2011 to the date of his reinstatement in service in September 2012, will be treated as period of duty for all service benefits except the actual salary. The order made by the learned single Judge stands modified to the above extent. 10. The appeal stands allowed accordingly.