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Allahabad High Court · body

2016 DIGILAW 1942 (ALL)

Gurmeet Singh v. State of U. P.

2016-05-18

ASHOK PAL SINGH, NARAYAN SHUKLA

body2016
JUDGMENT 1. Heard Mr. Prashant Chandra, learned Senior Counsel for the petitioner as well as Mr. Saurabh Lavania, learned counsel for the respondent. 2. The petitioner has assailed the retirement notice dated 29 January 2007 whereby he being non-teaching officer was asked to retire on attaining the age of 60 years. He has also assailed some other orders of similar nature. The King George Medical College, Lucknow1 had advertised the post of Whole Time Anesthetist. The petitioner applied for that post. He was regularly selected/ appointed on the post of Whole Time Anesthetist in the department of Anesthesia, KGMC, Lucknow vide order dated 01.11.1975. His services were confirmed vide order 08.03.1978 w.e.f. 01.02.1978. In 1981 an Ordinance was issued by the State Government taking over the management and control of the affairs of KGMC, Lucknow in its hand which was restored to the Lucknow University only on 10.08.1992 as prior to 1983, The KGMC, Lucknow was managed by Lucknow University. Subsequently vide order dated 07.08.1987 the post of Anesthetist was converted to the post of Lecturer in the department of Anesthesia. Pursuant to which the petitioner including four other Anesthetist were designated as Lecturer in the department of Anesthesiology, KGMC, Lucknow. In the seniority list of Lecturer the petitioner was placed at serial No.1. Under the provisions of the First Statute of Lucknow University, substantively appointed Lecturer was to be designated as Assistant Professor after attaining three years of teaching experience. Accordingly the petitioner's post of Anesthetist was converted to the post of Assistant Professor w.e.f. 11.08.1990 and his salary was fixed in the pay scale of Assistant Professor vide recommendation dated 31.08.1992. The Principal of KGMC, Lucknow recommended the petitioner to be appointed as Superintendent of Gandhi Memorial Hospital and associated Hospital with immediate effect. The Executive Council, approved the said recommendation/ appointment in its meeting held on 28.06.1994 by appointing the petitioner as Superintendent, Gandhi Memorial and Associate Hospital, Lucknow. 3. Learned Senior Counsel appearing for the petitioner has submitted that his responsibility was grossly increased as apart from being a teacher of the College he was asked to perform the duties on the post of Superintendent of the College. It was put-forth that petitioner was appointed on the post of Superintendent in continuation of holding the post of Assistant Professor. Learned Senior Counsel appearing for the petitioner has submitted that his responsibility was grossly increased as apart from being a teacher of the College he was asked to perform the duties on the post of Superintendent of the College. It was put-forth that petitioner was appointed on the post of Superintendent in continuation of holding the post of Assistant Professor. It has been submitted that keeping in view the emergent situation created due to strike of the non-teaching staff, the petitioner was given the officiating charge of the post of Superintendent which was subsequently affirmed by the Executive Council of the University, but his lien on the post of Assistant Professor was never terminated. Thus it has been submitted that petitioner's appointment on the post of Superintendent was a stop-gap arrangement in continuation of his appointment as Assistant Professor. The respondents treating him as non-teaching staff had issued notice to retire him on attaining the age of 60 years, whereas the age of retirement of the Assistant Professor of the University was 62 years. 4. Moreover, the petitioner had not submitted any resignation from the post of Assistant Professor Anesthesiology as has been stated by the Assistant Registrar of the University vide letter dated 8 August 1997. 5. It is put-forth that the petitioner was never informed about termination of his lien on the post of Teacher more so he had never resigned from the said post. It was submitted that Section 7(2) of Chattarpati Sahuji Maharaj Medical University Act, 2002 (in short Act, 2002) provides that 'the Pro-Vice Chancellor and a Chief Superintendent of Hospitals may be appointed by the Vice Chancellor from amongst the professors of the University. It was further submitted that the allegations that the petitioner had relinquished the office of Assistant Professor (Anesthesiology), is wrong. It was further submitted that being an Assistant Professor petitioner was permitted to contest the assembly election by the permission of the Executive Council under para 9 of the Lucknow University Bye-laws, 1972. Moreover for extension of age of retirement from the post of Superintendent of the Hospital from 60 to 62 years the Executive Council of the University in its meeting dated 27.06.2006 had approved the agenda. The Vice Chancellor of the University vide letter dated 2 August 2006 had recommended the petitioner's matter for extension of age accordingly. Moreover for extension of age of retirement from the post of Superintendent of the Hospital from 60 to 62 years the Executive Council of the University in its meeting dated 27.06.2006 had approved the agenda. The Vice Chancellor of the University vide letter dated 2 August 2006 had recommended the petitioner's matter for extension of age accordingly. It has also been submitted that before issuance of order of termination the petitioner had never been provided any opportunity of hearing. 6. Per-contra the respondents have made the following submissions: 6.1. That the age of retirement of the Superintendent of Gandhi Memorial and Associated Hospital, Lucknow was as per Statute 49 of the First Statute of the Lucknow University, 60 years which could be extended to 62 years with the prior approval of the State Government. The petitioner had claimed the extension of his age of retirement from 60 to 62 years on the ground that he belonged to teaching staff. Indisputably the petitioner was appointed as Whole Time Anesthetist which was subsequently designated as lecturer by the State Government. Subsequently he was appointed on the post of Superintendent of the hospital in 1992 and he joined as such, thereafter he was confirmed on the post of Superintendent. Being confirmed on the post of Superintendent he ceased to be a member of the teaching staff. The Executive Council in its decision dated 29.06.1996 appointed the petitioner as Superintendent on the recommendation of the Board of Management of the Hospital. The petitioner submitted his joining on the post of Superintendent on 2 August 1994. He had submitted an application to the Vice Chancellor of the University requesting therein to be relieved from his duties as Assistant Professor in the Department of Anesthesiology King George Medical College, Lucknow. We quote the contents of letter dated 2 August 1994 herein below: "Sir, In response to Registrar's letter No. 19311 dated August 1, 1994, approving my appointment as Superintendent, G.M. And Associated Hospital, Lucknow, it is requested that I may be deemed to have been relieved from my duties as Assistant Professor in the Deptt. of Anesthesiology, K.G. Medical College from 01.09.1992. Thanking You. Yours faithfully, Dated : August 2, 1994 [Dr. Gurmit Singh ]" 6.2. Subsequently he was confirmed on the post of Superintendent w.e.f. 19 July 2015 by the Executive Council. of Anesthesiology, K.G. Medical College from 01.09.1992. Thanking You. Yours faithfully, Dated : August 2, 1994 [Dr. Gurmit Singh ]" 6.2. Subsequently he was confirmed on the post of Superintendent w.e.f. 19 July 2015 by the Executive Council. We also quote the confirmation letter as under: - "Gurmit Singh- Registrar, Lucknow University, Lucknow endorsement No.18360-62 dated 24/7/95. Dr. Gurmit Singh is hereby informed that he has been confirmed on the post of Superintendent, Gandhi Memorial and Associated Hospitals, K.G.'s Medical College, Lucknow in the grade of Rs.5100-6150 with effect from July 19, 1995 vide Executive Council Resolution No. 5 dated July, 1995." 6.3. It was submitted that Chapter 3 of Financial Hand Book Volume-II, Part-II to IV provides general conditions of service. Rule 12(b) and 12 -A of Chapter-III, Financial Hand Book provides that a government servant cannot be appointed substantively except as a temporary measure, to two or more permanent posts at the same time. Rule 12-A reads as under: - "12-A Unless in any case it be otherwise provided in these Rules, a government servant on substantive appointment to any permanent post acquires a lien on that post and cease to hold any lien previously acquired on any other post." 6.4. State Government vide letter dated 09 February 2007 has already rejected the petitioner's claim of extension of age from 60 years to 62 years. The post of Lecturer carried the pay scale of Rs.8550-14,600. The post of Assistant Professor carried the pay scale of Rs.10,000-15,200. The post of Associate Professor carried the pay scale of Rs.12,000-16,500 and the post of Professor carried the pay scale of Rs.14,300-18,300 whereas, the post of Superintendent carried the pay scale of Rs.16,400-20,000. Aforesaid numerical figure shows that the petitioner had all along enjoyed the pay scale much more than the highest pay scale of teacher. The petitioner was appointed on the post of Superintendent which could not be said to be akin to a teacher as it was an appointment substantive in nature. 6.5. Statute 49 of the First Statute of Lucknow University provides that the Superintendent and Deputy Superintendent may also be employed for a specific term and their terms may be extended with prior approval of the Government from time to time. 7. 6.5. Statute 49 of the First Statute of Lucknow University provides that the Superintendent and Deputy Superintendent may also be employed for a specific term and their terms may be extended with prior approval of the Government from time to time. 7. It was contended that the resolution of the Executive Council dated 27.07.2006 had not discussed any such agenda as agenda No.25 to deal with the age of retirement of Medical Superintendent from 60 to 62 years. It was further contended that the minutes of the meeting of the Executive Council dated 27.06.2006 had never been confirmed by the Vice Chancellor. 8. The respondents have brought on record the petitioner's service book which shows that the petitioner was confirmed on the post of Superintendent of the Hospital w.e.f. July 19, 1995 vide Executive Council resolution No. 5 dated July, 1995. 9. Rule 42 to Rule 51 of the Statute of Lucknow University deals with the appointment of Superintendent and Deputy Superintendent of the Gandhi Memorial and Associated Hospitals, Lucknow. 10. Rule 52 to Rule 55 deals with the powers and duties of the Superintendent and Deputy Superintendent of the Hospitals. 11. Out of those Rules the relevant Rules are quoted herein under: - "42 (a) There shall be one Superintendent of the Gandhi Memorial and Associated Hospitals, Lucknow 42 (b) There may also be a Deputy Superintendent of the said Hospitals." 11.1 Rule 44 reads that ' whenever a vacancy occurs or is likely to occur, the Registrar of the University shall invite applications for appointment as Superintendent or Deputy Superintendent of the Hospitals, as the case may be, from persons who posseses the requisite qualifications.' 11.2. Rule 48 provides that 'The Superintendent and the Deputy Superintendent shall be whole time employees of the University and shall not have a right to private practice even if they or any of them is qualified medical practitioner.' 11.3. Rule 49 provides that ' The Superintendent and the Deputy Superintendent may also be employed for a specified term and their term may be extended, with the prior approval of the Government from time to time but it shall in no case be extended beyond the age of sixty two years.' '(a) The Superintendent or the Deputy Superintendent as the case may be, shall be on probation for one year. The period of their probation may be extended by one year if the Executive Council so considers necessary. (b) The Superintendent of the Deputy Superintendent shall not be confirmed by the Executive Council unless it has considered the report of the Hospital Board of Management regarding the work of the officer concerned.' 12. The petitioner's appointment on the post of Anesthetist which was converted to the post of Lecturer in the department of Anesthesia and further to the post of Assistant Professor, is not disputed. It is also not in dispute that on the basis of recommendations of Principal of the King George Medical College, Lucknow the petitioner was appointed as Superintendent of the Hospital with the approval of the Executive Council in its meeting dated 28.06.1994. It is the petitioner's case that he was appointed on the post of Superintendent in continuation for appointment on the post of Assistant Professor without terminating his lien on the post of Assistant Professor, therefore, the petitioner's substantive appointment should be treated as appointment on the post of Assistant Professor and his appointment on the post of Superintendent should be treated as stop gap arrangement and being teaching staff the age of his retirement would be 62 years. 13. Statute 49 of the Statutes of the Lucknow University governs the matter of appointment of the Superintendent of the Hospital, the statute provides the provisions for appointment of Superintendent and Deputy Superintendent. The matter of appointment is stipulated under Rule 24 which provides that whenever a vacancy occurs or is likely to occur, the Registrar of the University shall invite applications for appointment as Superintendent or Deputy Superintendent of the Hospitals, as the case may be, from persons who possess the requisite qualifications. They are put on probation for one year which may be extended by one year further, if the Executive Council so considers necessary. 14. Rule 2 deals with the power of the Superintendent and Deputy Superintendent of the hospital which are purely administrative in nature, that apart, the petitioner pursuant to his appointment on the post of Superintendent himself had written a letter dated 2 August 1994 to Vice Chancellor of the University to be relieved from his duties as Assistant Professor. Subsequently, he was confirmed on the post of Superintendent w.e.f. 19 July 1995. Subsequently, he was confirmed on the post of Superintendent w.e.f. 19 July 1995. In terms of fundamental rules the government servant cannot be permitted to hold two or more permanent posts at the same time. 15. Rule 12-A of the Financial Hand Book provides that on substantive appointment to any permanent post the government servant acquires a lien on that post and ceases to hold any lien previously acquired on any other post. Thus under the Rule itself on the event of petitioner's joining to the post of Superintendent his lien on the post of Assistant Professor stood ceased by implication of law. There is no need to issue any such order for ceasure of his lien from the post of Assistant Professor. 16. It is not in dispute that the petitioner was appointed on the post of Superintendent of the hospital, therefore, a corroborative evidence created in his favour that No Objection Certificate to contest the assembly election was issued by the Executive Council which could be issued only to teaching staff or a recommendation for enhancement of his age do not have a impressive bearing to establish his continuation as a teaching staff of the College. 17. In view of the aforesaid thoughtful consideration we are of the view that the petitioner's appointment on the post of Superintendent was not the appointment in continuation of his appointment on the post of Assistant Professor, rather it was a substantive appointment without having connection with the post of Assistant Professor of the Medical College. The petitioner served as Superintendent of the Hospital till his retirement on being appointed as Superintendent. 18. He himself had requested to the Vice Chancellor to be relieved from the post of Assistant Professor. The post of Superintendent was purely a non-teaching post and was completely an administrative post. Thus, when we have examined the ingredients of the petitioner's appointment as well as working on the post of of Superintendent, we found that it had no connection with the functioning of Assistant Professor of the Medical College. 19. In view of Rule 49 of the Statute he (petitioner) was/is not entitled to claim the age of his retirement as 62 years. 20. In the result, the writ petition stands dismissed.