CWP No.20258 of 2008 -1- In the High Court of Punjab and Haryana at Chandigarh. Date of decision: 27.04.2009 Dr.Jagpal Singh Dalal ... Petitioner Versus State of Punjab ... Respondent CORAM: HON'BLE MR. JUSTICE PERMOD KOHLI Present: Mr.RK Malik, Senior Advocate, with Mr.Sajjan Singh Malik, Advocate,for the petitoner. Ms.Reeta Kohli, Addl. A.G., Punjab, for the respondent. PERMOD KOHLI, J. (Oral): I have heard the learned counsel for the parties at length. The petitioner joined the Government service as Assistant Professor, Forensic Medicines on being selected by the Punjab Public Service Commission, on 14.05.1982. He was promoted to the post of Professor, Forensic Medicines on regular basis on 21.05.1987. He was confirmed on the said post with effect from 08.11.1989 vide order dated 11.04.1990. At the relevant time, the age of the retirement of the teaching faculty was 58 years. However, vide notification dated 23/24.04.2007, Annexure P-2, the age of retirement of the teaching faculty was enhanced from 58 years to 60 years. The relevant notification reads as follows:- “Notification, the 23rd April, 2007. No.1/75/2006-2HB-II/1931 The Governor of Punjab is pleaded to enhance the age of superannuation of Medical/ Dental/ CWP No.20258 of 2008 -2- Ayurvedic teachers from the existing 58 yeas to 60 years with immediate effect.” Later, the petitioner was appointed as Principal, Government Medical College, Amritsar. It appears that on account of certain allegations, he was suspended on 16.11.2006, but reinstated on 23.03.2007. On his reinstatement, the petitioner was again given the charge of Director, Research and Medical Education during the leave vacancy of Regular Director, Research and Medical Education vide order dated 07.06.2007, Annexure P-5. The petitioner joined the said post on the same date. While continuing as Director, Research and Medical Education on the leave arrangement, the petitioner has been ordered to be retired on attaining the age of 58 years, by the Principal Secretary, Government of Punjab, Medical Education and Research Department, vide order dated 28.11.2008, Annexure P-10. It is this order which has been assailed by the petitioner in the present writ petition. On consideration of this petition, vide interlocutory order dated 01.12.2008, a Division Bench of this Court, stayed the retirement of the petitioner as Professor. As a consequence of the aforesaid interlocutory order, the petitioner is continuing to serve as Professor. The main contention of the petitioner is that he being a Professor on substantive basis, cannot be retired at the age of 58 years in view of the government notification dated 23/24.04.2007,Annexure P-2, whereunder the age of the teaching faculty stands enhanced to 60 years with immediate effect i.e. from the date of the issuance of notification. CWP No.20258 of 2008 -3- On being put to notice, a detailed disclaimer has been filed by the respondents. The stand of the respondent, as is evident from the reply, is that the petitioner on being appointed as Director, Research and Medical Education, is not entitled to the benefit of enhanced age of 60 years and he is to retire at the age of 58 years by virtue of the post of Director, Research and Medical Education. It is argued on behalf of the State that the notification dated 23/24.04.2007 is applicable only to the teaching faculty and the petitioner ceases to be a teacher on his appointment as the Director, Research and Medical Education. He is liable to be retired at the age of 58 years and is not entitled to the benefit of enhanced age as the same is available only to the teaching faculty. The appointment to various posts in the Research and Medical Education is governed and regulated by the statutory rules, namely, the Punjab Medical Education Service (Class-1) Rules, 1978, hereinafter referred to as 'the rules”). Rule 3 of the Rules, deals with the constitution of service. Rule 5 of the Rules deals with the appointment to service, whereas Rule 9 of the Rules deals with the method of appointment. Rule 9 of the Rules is reproduced below:- “ 9. Method of appointment:- (1) Appointment to the posts in the service shall be made in the following manner:- (a) In the case of Assistant Professors- CWP No.20258 of 2008 -4- (i) 75 per cent Posts by promotion from amongst the Lecturers and Senior Lecturers or by transfer of officials already in service of Government; (ii) 25 per cent Posts by direct appointment. (b) In the case of Associate Professors:- (i) all the posts will be filed up by promotion from amongst the Assistant Professors ( c) In the case of Additional Professors;- (i) 75 per cent posts by promotion from amongst the Associate Professors, or where Associate Professors are not available, from amongst the Assistant Professors or by transfer of officials already in the service of the Government of India, or of a State Government. (ii) 25 per cent posts by direct recruitment. (d) In the case of Professors:- CWP No.20258 of 2008 -5- (i) 75 per cent posts by promotion from amongst the Additional Professors, or, where Additional Professors are not available, from amongst the Associate Professors, or, where Associate Professors are not available, from amongst the Assistant Professors, or by transfer of official already in the Service of the Government of India, or the State Government; (ii) 25 per cent posts by direct recruitment (e) In the case of Principals it will be made by Selection from amongst the Professors. (f) In the case of Director, Research & Medical Education, Punjab, it will be made by selection from amongst Principals on seniority (as Principal) cum merit basis and in case no suitable candidate is available amongst the Principals, it shall be made from amongst the Professors on seniority (as per their inter-se-seniority) cum merit basis.” From the perusal of Rule 9 of the Rules, it appears that the appointment to the service is by direct recruitment as also by promotion CWP No.20258 of 2008 -6- from the feeding categories indicated therein. As far the post of Professor is concerned, 75 per cent posts to be filled up by promotion from amongst the Additional Professors, or, where Additional Professors are not available, from amongst the Associate Professors, or, where Associate Professors are not available, from amongst the Assistant Professors, or by transfer of official already in the Service of the Government of India, or the State Government. In so far as the filling up of the vacancy of Director, Research and Medical Education is concerned, it has to be filled up by selection from amongst Principals on seniority (as Principal) cum merit basis and in case no suitable candidate is available amongst the Principals, from amongst the Professors on seniority (as per their inter-se-seniority) cum merit basis. It is not in dispute that the petitioner is the senior most Professor in the medical education in the State of Punjab. By virtue of his seniority, he was given the charge of the Director, Research and Medical Education as no eligible Principal was available for selection/ appointment as Director, Research and Medical Education. Even none of the parties to this petition have made any claim that any senior Principal is available for selection/appointment as the Director, Research and Medical Education. As a natural corollary, the benefit falls to the senior-most Professor in the hierarchy of service. The petitioner being senior most in the hierarchy of service was given the charge, though his appointment was only against a leave arrangement. There is nothing on record to show that till date the selection for the post of Director, Research and Medical Education has been made on substantive basis by a competent authority. CWP No.20258 of 2008 -7- The contention of Ms. Reeta Kohli, learned additional Advocate General, is that as and when a Professor is appointed as the Director, Research and Medical Education, he looses the benefit of enhancement of age and, thus, can be conveniently retired at the age of 58 years. It is further argued that only the teaching faculty member is entitled to the benefit of enhancement of the age. This contention is totally fallacious and in contravention of the spirit of Rule 9 (f) of the Rules which, inter-alia, provides that the appointment on the post of Director, Research and Medical Education is to be made from amongst Principals on seniority (as Principal) cum merit basis and in case no suitable candidate is available from amongst the Professors on seniority cum merit basis. The mandate of this rule is that the selection has to be made on the basis of the seniority-cum-merit from the feeding channels. Even if a Professor has crossed the age of 58 years and the vacancy of the Director, Research and Medical Education becomes available he is entitled to be considered for appointment notwithstanding the fact that he has crossed the age of 58 years. If the contention of the respondent is accepted, then Rule 9 (f) of the Rules looses its sanctity and becomes redundant. For appointment to the post of Director, Research and Medical Education a person/candidate has to be a Principal/Professor. The benefit of promotion to the post of Director, Research and Medical Education, cannot be to the disadvantage of a candidate in any manner. If this is allowed to happen, no Principal/Professor would opt to join as Director, Research and Medical Education. CWP No.20258 of 2008 -8- To the contrary, Mr.RK Malik, learned Senior Counsel for the petitioner has relied upon a Division Bench judgment of Delhi High Court in the case of Raghubir Singh Sharma Vs. Municipal Corporation of Delhi, 1993 (1) Recent Services Judgments, 638, wherein the following observations have been made:- “2. Some of the teachers or Head Master, who had been promoted to the post of Inspector of Schools or Senior School Inspectors or having allied designations, were not given the benefit of 60 years retirement age and they came to this Court and the earliest case decided by this Court was Civil Writ No.1365 of 1984, Smt.Sheela Puri Versus Municipal Corporation of Delhi, decided on 22nd May, 1985. It was held that such like incumbents, who are earlier teachers or head master, would also be entitled to the benefit of enhancement in retirement age. The aforesaid judgment of this Court was affirmed by the Supreme Court in Municipal Corporation of Delhi versus Sheela Puri, 1989 (1) SCC 227. This Court kept on following the decision of the Sheela Puri's case 9supra) and the Municipal Corporation of Delhi kept on going to the CWP No.20258 of 2008 -9- Supreme Court. Another case related to Kumari Kanta Sharma. This Court granted relief in the same terms and the Municipal Corporation of Delhi went to the Supreme Court and in Special Leave to Appeal (Civil) 13386-87 of 1989, Municipal Corporation of Delhi Versus Kumari Kanta Sharma, decided on 17th July, 1990, the Supreme Court passed the following order:- “We do not find any ground for reconsideration of the decision of this Court in Municipal Corporation of Delhi v. Smt.Sheela Puri, 1989 (1) SCC (287). The Special Leave Petitions are dismissed. No costs.” 3. Following the aforesaid decision, we are of the view that the petitioner is clearly entitled to continue till he attains the age of 60 years, with all service benefits. The petitioner had been wrongly retired at the age of 58 years on 31st August, 1991. Accordingly, we direct that petitioner be deemed to be in service until he attains the age of 60 years i.e. till 31st August, 1993 and would be entitled to all service benefits, CWP No.20258 of 2008 -10- including pay and allowances, which would have admissible to him, if he had not been wrongly retired at the age of 58 years. The arrears of pay along with interest at the rate of 12 per cent, from the date it fell due till payment, be paid to the petitioner within one month from the receipt of this order. Since none has appeared for the respondent, we would not burden it with costs.” This Court vide its interlocutory order dated 01.12.2008, stayed the retirement of the petitioner as Professor and, thus, by virtue of the notification dated 23/24.04.2007, he is entitled to continue as Professor upto the age of 60 years. The vacancy of the Director, Research and Medical Education is required to be filled on substantive basis and it has to be filled up in accordance with the mandate of Rule 9 (f) of the Rules. The petitioner was holding the the said post on leave arrangement. The fact remains that the vacancy is required to be filled up on substantive basis in accordance with rules. In view of the above circumstances, the impugned order dated 28.11.2008, Annexure P-10, retiring the petitioner at the age of 58 years, is hereby quashed and it is directed that the petitioner shall continue as Professor upto the age of 60 years. Since Rule 9 (f) of the Rules provides for selection of the Director, Research and Medical Education, from amongst the Principal/Professors. On account of non-availability of the CWP No.20258 of 2008 -11- senior-most Principal, the respondents will make the appointment to the post of Director, Research and Medical Education from amongst the Senior-most Professor, strictly in accordance with the mandate of Rule 9 (f) of the Rules, by selection. All eligible candidates including the petitioner, shall be considered for such appointment, within a period of one month from the date of receipt of a certified copy of this order. 27.04.2009 (PERMOD KOHLI) BLS JUDGE Note: Whether to be referred to the Reporter? YES