High Court · 2012

Heard Mr. S.K. Barkataki, learned counsel for the petitioner as well as Ms. A. Verma, learned SC, Health Department. The petitioner who has been made to retire from service at the age of 60 years w.e.f. 30.11.2010 has filed this writ petition claiming continuation in s ervice upto to the age of 62 years on the strength of Annexure-A notification da ted 31.10.2007 by which the superannuation age of Faculty Members of the Medical Colleges of Assam and the Regional Dental College, Guwahati was raised to 62 ye ars from 59 years. In the said notification, the term ’Faculty Member’ has been defined in the inclusive definition as follows: (cid:28)1. Principal/Dean/Director of Medical Education.

2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. Vice Principal of Medical Colleges. Director/Medical Superintendent of the affiliated Teaching Hospital. Professor. Reader/Associate Professor. Assistant Professor/Lecturer. Tutor/Demonstrator/Resident/Registrar Lecturer in Pharmaceutical Chemistry. Resident Pathologist. Clinical Pathologist. Epidemiologist (under Community Medicine Deptt.). Lecturer in Statistics (under Community Medicine Department) (cid:29) The petitioner by his Annexures- B and D representations dated 05.11.2009 and 29 .11.2010 submitted to the Govt. of Assam in the Health and Family Welfare (B) D epartment prayed for benefit of Annexure-A notification dated 31.10.2007 by whic h superannuation age of Faculty Members was raised to 60 years from 59 years. Be it also stated here that the petitioner was designated as Senior Physicist, Ass am Medical College, Dibrugarh. Be it stated there that by Annexure-F WT message dated 04.12.2010 issued by the Govt. of Assam in the Health Department, he was d escribed as Lecturer in Physics (SC) Department of Radiology, AMC, Dibrugarh. By Annexure-G notification dated 09.05.2008, the Govt. of Assam in the Health & Fa mily Welfare (B) Department, it was intimated that the Govt. decided to re-desig nated the post of Junior Physicists of Radiology Department as the post of Lectu rer (Non-Medical) and Senior Physicist of Radiology Department as the post of Le cturer (Sr. Grade) (Non-Medical). The petitioner has also referred to Annexure-H notification dated 21.05.2002 by which the benefit of 1996 revised UGC pay scale was extended to the Non-Medical teachers of the Medical Colleges of the State w.e.f. 01.01.1996. The notificatio n included the Senior Physicist of the Radiology Department and Lecturer, Health Statistics, SPM. As noted above, under the aforesaid definition of the Faculty Member, Lecturer in Statistics (under Community Medicine Department) has been in cluded. In the counter affidavit filed by the respondent No. 1, it has been stated that as per the Medical Council of India’s regulation 1998, there is no post of Lectu rer in Physics in the department of Radiology. As regards the conferment of the UGC pay scale, it has been stated that the particular notification was issued on ly for the purpose of conferment of UGC pay scale and not for recognising the p etitioner as Lecturer in the Radiology Department. It has been contended that si nce the petitioner is holding the technical post, he cannot be regarded as Lectu rer within the meaning of the definition of Faculty Member referred to above. I have considered the relevant materials including the submissions made by the l earned counsel for the parties. As noted above, Annexure-A notification by whic h the superannuation age was raised to 62 years from 59 defines the term (cid:28)Facult y Member (cid:29) indicating the posts mentioned in the said notification. However, the said definition is an inclusive one and not exhaustive. According to Mr. S.K. Ba rkataki, learned counsel for the petitioner, clause 6 of the said notification n aming the Assistant Professor/Lecturer will also include the post being held by the petitioner, i.e. the Lecturer/ Senior Physicist in the Department of Radiolo gy. However, countering the said argument, Ms. Verma, learned SC, Health Departm ent submits that had it been the intention of the authority, the Lecturer in Sta tistics (under Community Medicine Department) would not have been included separ ately. In the representations submitted by the petitioner and as referred to above, the petitioner contended that clause 6 of the said notification would include his c ase. He also referred to inclusion of the category of Non-Medical Lecturer in St atistics under clause 12 of the said notification and exclusion of the post of N on-Medical Lecturer in Physics (re-designated from Junior and Senior Physicist) vide Govt. letter dated 09.05.2008. In the reply affidavit filed by the petitioner it is stated thus: (cid:28)2. That in respect of the averments made in paragraph-3 of the affidavit in opp osition the petitioner intends to clear the fact regarding his designation of ’L ecturer’. The petitioner has been designated as a ’Lecturer’ by the State Govt. of Assam, through its’ notification dated 9th May, 2008 in pursuance of Finance (Pay research unit) department’s notification No. FPC 12/98/103 dated 21st May, 2001, which has been annexed as Annexure No. (cid:28)H (cid:29) in the Original Petition by the Petitioner. As the petitioner according to the syllabus of the radiological dep artment of Assam Medical College, which contains the subject of the (cid:28)radiation p hysics (cid:29) therefore as a natural and usual practice the petitioner uses to mention his designation as (cid:28)Lecturer in Radiation Physics (cid:29) otherwise to which other sub ject he can apply the designation of lecturer. Not only that the petitioner has been bestowed with the designation of Assistant Professor by the state governmen t through its notification being No. FPC 4/2010/140 dated 28th June, 2010, which is annexed herewith as a new Annexure being No. (cid:28)I (cid:29), in addition to that the p etitioner has been defined as a teacher of Assam Medical College by MCI itself t hrough its own publication about the teaching staff of Assam Medical College ava ilable in MCI website. Which has been annexed herewith as another new evidence a nd annexed as Annexure ’J’. The petitioner has been taking classes in the Radiological Department in the subject of Radiological Physics for PG Radio Diagnosis, PG Radio Therapy an d Radiographers student. For better confirmation of the above stated fact the pe titioner is more desirous to annex herewith as another new evidence being No. DX R/11/993 dated 20.08.2011 as Annexure ’K’. The petitioner, being a teacher, is a llowed to avail winter and summer vacation by the college authority along with o ther Faculty Members without any discrimination, (documentary proof attached as Annexure-L). Therefore questioning the designation of the petitioner as a Lectur er in Radiation Physics is not tenable from any perspective. 3) That in respect of the averments made in paragraph 5 of the affidavit in oppo sition, the petitioner begs to state that the Respondent is trying to divert the attention of the Honorable Court from the actual issue in question by unnecessa rily referring about the qualifications to become a Lecturer as per the MCI regu lation. In this present writ petition the petitioner is not challenging the MCI Regulation regarding the qualification to become a Lecturer in a medical college and the petitioner is his writ petition specifically states about his claim to get the benefit of the enhancing of the age of superannuation of (cid:28)Faculty Member s (cid:29) as per the government notification (Annexure-A). It is the state Government w hich has enhanced the age of superannuation of the faculty member of medical col lege from 59 to 62, and it is the stage government which has rendered the design ation of Lecturer to the petitioner. therefore, the whole issue is exclusively u nder the domain of the state government. The petitioner is a faculty member of t he medical college as per the government notification being No. FPC. 4/2010/140 dated 28.06.2010 and the same is annexed herewith as Annexure (cid:28)I (cid:29) in this presen t reply to the affidavit in opposition. (cid:29) In support of the aforesaid pleas, the petitioner has annexed Annexure-I notification dated 28.06.2010 by which the State Govt. in reference to the Govt . of India’s letter dated 31.12.2008 had revised the pay scale and allowances o f the teachers of the Medical Colleges alongwith other institutions. Such revise d scale was made applicable to the Lecturers (Non-Medical). The petitioner has a lso annexed Annexure-J document in which he has been identified as a Faculty Me mber of the department of Radiology/ Radio Diagnosis/ Imaging Entervention & Res earch. The petitioner has also annexed Annexure-K certificate dated 18.08.2011 issued by the Professor & Head, Department of Radiodiagnosis, AMC & H, Dibrugar h certifying that he had been working in the Department of Radiology as Sr. Phys icist (Lecturer, SG) since 2000 to November, 2010 and that during his tenure he took the classes in the subject of Radiological Physics for P.G. Radiodiagnosis, P.G. Radiotherapy and Radiographer students. The petitioner has also annexed An nexure-L order dated order dated 30.12.2009 on the subject of winter vacation cl asses in which the name of the petitioner appears at serial No. 11. By the said order, the persons named in the order were requested to intimate the office, the ir complete leave address and to ensure that their normal duties (teaching and h ospital works) are managed by the staff who remained on duty in their respective disciplines). The petitioner has also annexed similar order in respect of summe r vacation classes. Referring to the above pleas and documents, it is the case of the petiti oner that he being a Faculty Member of the department of Radiology/ Lecturer in Physics, he is entitled to get the benefit of enhanced age of superannuation giv en by the notification dated 31.10.2007. As noted above, the definition of Facul ty Member is not exhaustive, but inclusive. It is required to be clarified as to whether clause 6 of the aforesaid notification, i.e. Assistant Professor/Lectur er, would also include the Lecturer in Physics (Non-Medical). It would also requ ire clarification that if the Lecturer in Statistics (under Community Medicine D epartment) could be included as Faculty Member, whether the Lecturer in Physics in the Radiology Department, AMC, Dibrugarh can also be included in the definiti on of Faculty Member. The fact of the matter is that although the petitioner sub mitted representation before the respondents, but he was not given any hearing, nor any order has been passed. In view of the above, the matter is remanded back to the Govt. of Assam in the H ealth and Family Welfare Department to take on record the grievance of the petit ioner in reference to the representations referred to above and pass a speaking order taking note of all the relevant facts of the matter and in accordance with law. Let the speaking order be passed as expeditiously as possible, but at any rate, not later than 30.06.2012. The petitioner may also be given personal heari ng towards consideration of his grievance. The writ petition stands disposed of. There shall be no order as to cost s.