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Judgment
Since the issue involved in both the cases is the same, as to whether age of superannuation would be 62 years or 65 for the post of Superintendent, Regional Institute of Medical Sciences, Imphal (hereinafter referred to as "RIMS"), both were heard together and are being disposed of by this common order.
Before adverting to the submissions advanced on behalf of the parties, the facts giving rise to the aforesaid two writ applications need to be taken notice of. Regional Institute of Medical Sciences, Imphal is a society registered under the Societies of Registration Act. In the year, 2007 it was taken over by the Ministry of Health & Family Welfare, Govt. Of India w.e.f. 1.4.2007. While taking over the said Institute, one of the conditions was that the regional character of the Institute shall be maintained in the matter of seat distribution but at the same time its autonomy would be maintained which is evident from a letter dated 29.3.2007 issued by the Govt. Of India, Ministry of Development of North Eastern Region.
Thereupon, the Institute came with a Memorandum on 30.4.2007 whereunder it was notified that all the service matters of the RIMS, Imphal shall be as per the central government Rules as notified from time to time.
Subsequently, "Bye-laws of the Regional Institute of Medical Sciences, 2007" was framed for the control and management of the Institute. Under the said Bye-laws stipulation was made that some service conditions such as leave, medical attendance, general provident fund, pension and other retirement benefits, shall be governed by the respective rules issued by the Central Government. But in the matter relating to superannuation, stipulation which was made under the byelaws is in clause 8 of the said bye-laws which read as follows:
"8. Superannuation
The age of the superannuation of the employees shall be governed by the rules framed or orders issued from time to time in this regard by the Central Government. Orders issued by the Institute in pursuance of such Rules or Orders of the Central Government shall continue to be enforced until the same is superseded by an order issued under this provision of the Bye-law."
Much thereafter the Ministry of Health & Family Welfare, Govt. Of India issued an Office Memorandum on 24.2.2012 relating to redesignation of Doctor of teaching, sub cadre after attaining the age of 62 years. Though it is related to Central Health Services officers and not to the officers and staff of RIMS but as it will have some bearing, reference of it is being made. Clause (i) and (ii) of the said Memorandum dated 24.2.2012 reads as follows: (i) CHS officers of Teaching sub-cadre who are occupying the administrative positions would have the option of seeking appointment to teaching position in case they wish to avail the benefit of enhancement of age of superannuation upto 65 years.
(ii) The posts of Director, Principal, Dean, Medical Superintendent & Addl. Medical Superintendent of medical colleges/medical institutions & Head of Department of their speciality manned by Specialists of Teaching sub-cadre would also be treated as administrative posts and general rule of keeping them upto 62 years on these posts will be followed. However, they will be allowed to go back to their respective specialty to the Medical Colleges/Intuitions and continue upto 65 years, which would be their age of superannuation. Moreover, these postings will not be vacancy based & their pay/perks, being drawn against administrative posts should be protected.
Before issuance of such Memorandum by the Central Government, the Executive Council, Society of RIMS Imphal in its 42nd meeting held on 5.8.2011, after taking into account the age of superannuation fixed for the posts of Director and Medical Superintendent of other Medical Colleges established either under the Act or being run under the Control of the Government of India, did resolve that the age of superannuation of Medical Superintendent in RIMS, Imphal be kept as 62 years. It further appears that Executive Council, Society of RIMS in its 45th meeting held on 20.11.2014 again took up the agenda for consideration relating to enhancement of the age of superannuation of the Medical Superintendent to 65 years from the existing 62 years. Upon consideration, it was resolved in the following manner:
"The EC considered the proposals and it was observed that since in most of the Hospitals under this Ministry, the age of superannuation for the post of Medical Superintendent is 62 years, the proposal cannot be agreed to. However, the Chairman asked Director, RIMS to submit a consolidated proposal for considering the age of Superannuation for the posts of Director, Medical Superintendent, Dean and other HOD''s in RIMS together, as the matter requires more examination in the Ministry by 30th November, 2014 for detailed examination."
Before such resolution was taken, RIMS, in consonance of the resolution taken in 42nd meeting of the Executive Council on 5.8.2011 issued an advertisement on 8.6.2013 calling for the applications for appointment on the post of Medical Superintendent, RIMS. The condition which was imposed relating to age of superannuation is as under:
Age:- Upper age limit is 55 (fifty-five) years. The upper age limit is relaxable by 5 years for Government servant/RIMS employees. The post of Medical Superintendent is full time resident and without clinical attachment. The upper age limit shall be reckoned on the last date of the receipt of the applications of the advertisement. The age of superannuation of Medical Superintendent is 62 years.
An applicant from among the employees of RIMS, Imphal will have the option to continue in teaching/clinical positions after attaining the age of 62 years if he/she desire so.
Pursuant to that advertisement, the petitioner did apply. DPC recommended for appointment of the petitioner. Accordingly, upon approval being accorded of the recommendation of the Selection Committee the petitioner was appointed as Medical Superintendent, RIMS on 27.3.2014 with the stipulation that he will be on probation for a period of one year and that he will be retiring from the post of Medical Superintendent on attaining the age of 62 years. It be stated that the petitioner attained the age of superannuation on 31.7.2016. Before the petitioner attained the age of superannuation, the Director RIMS in terms of the Resolution of the Executive Council taken on 20.11.2014, as stated above, submitted a fresh proposal vide its letter dated 26.11.2014 for enhancement of the age for the post of Medical Superintendent before the Secretary, Health & Family Welfare, Ministry of Health. According to the case of the petitioner, no decision was taken by the Executive Council but in the year 2016 Under Secretary, Ministry of Health, Govt. Of India vide its letter dated 6.4.2016 conveyed the matter relating to approval of the decision taken by appointment committee of cabinet for enhancing the age of superannuation of the post of Director. Consequently, under order dated 20.4.2016 age of superannuation of the post of Director was enhanced from 62 to 65 years. Thereupon, the Director RIMS vide its letter dated 12.5.2016 requested the Ministry of Health for enhancement of the age of superannuation of the Medical Superintendent of RIMS, but no decision was taken. Meanwhile the Director issued an advertisement on 20.5.2016 for filling up the post of Medical Superintendent. On issuance of such advertisement, petitioner and others immediately on the same day, i.e. on 20.5.2016, made a representation before the Secretary, Ministry of Health for taking a decision in the matter relating to enhancement of the age from 62 to 65. When no decision was taken on that representation, the petitioner filed a writ application vide WP(C) No. 411 of 2016 for a direction to the respondents to consider the representation. That writ application was disposed of by directing the respondents to take decision within a fortnight.
Meanwhile, the Ministry of personnel Public Grievance & Pension (DOPT), Govt. Of India issued a notification on 31.5.2016 whereby clause (bb) of Rule 56 was amended to the effect given below: FR 56(bb):- The age of superannuation in respect of general duty medical officer and specialist included in teaching, non teaching and public health sub cadre of Central Health Services shall be 65 years.
Upon such amendment being made the petitioner filed another writ petition being WP(C) No. 528 of 2016 praying therein to quash the advertisement dated 20.5.2016 and further to direct the respondents to issue necessary orders for enhancement of the age of superannuation of the post of Superintendent from 62 to 65 years on the premise that upon amendment being made in the Fundamental Rules, age of Superannuation of the post of Superintendent gets enhanced rendering the advertisement as nullity.
Upon hearing, this Court passed an order on 25.7.2016 for putting this case for hearing on the other day. Till then petitioner be allowed to continue to serve as Medical Superintendent, RIMS. That interim order is continuing till date. When the matter was pending, Executive Committee of RIMS took a decision on the representation whereby it was rejected on the ground that since the posts of Medical Superintendent, Dean and HODs are administrative posts, the age of superannuation of the Doctors holding administrative post would be 62 years and thereby proposal given for enhancing the age of post of MS or HOD of RIMS from 62 to 65 years was turned down and consequently the representation of the petitioner was rejected. That order has been challenged in WP(C)No. 615 of 2016.
The submissions, which were advanced by Mr. N.Kumarjit, learned Sr. Counsel, in support of the case of the petitioner being entitled to have age of superannuation as 65 years, is that in terms of clause 8 of the Bye-laws, age of superannuation is to be fixed by the rules framed or would be guided by the order of the Central Government and that the Central Government by virtue of amendment made in rule 56(bb) of FR has enhanced the age of superannuation to 65 years for general duty Medical Officers, Specialist including teaching, non teaching of public health sub cadre of Central Health services and thereby the age of superannuation of the post of Medical Superintendent, RIMS would be deemed to have been enhanced to 65 years for which a formal order needs to be issued only by the appropriate authority. Further, it was submitted that since the post of Medical Superintendent has been taken to be administrative post on account of the decision taken on 24.2.2012 by the Ministry of Health and Family Welfare, the proposal of the Director, RIMS or the representation submitted by the petitioner was not accepted but that Office Memorandum dated 24.2.2012 does not concern with RIMS, Imphal at all; rather it concerns the employees with Central Health Services (CHS) which has been clarified by Under Secretary to Govt. Of India vide its letter dated 5th June, 2012 and thereby the order dated 11.8.2016 passed by the Executive Committee refusing to enhance the age from 62 to 65 is fit to be quashed. Consequently, the respondents be directed to issue a formal order with respect to enhancement of the age of the post of Medical Superintendent from 62 to 65 years.
The aforesaid prayer was objected to by Mr. I. Lalitkumar, learned Sr. Counsel appearing for the respondent No.4 and also by Mr. BP Sahu, learned Sr. Counsel appearing for the RIMS and also by Mr. S. Rupachandra, learned ASG appearing for the respondent No.1, Union of India by taking a plea that amendment made in the Fundamental Rules relates to personnel working under Central Health Services which is apparent from reading of the said provision as enshrined under amended rule 56(bb) of the Fundamental Rules and that has even been clarified by the Central Government by issuing an letter dated 5th June 2012 as contained in Annexure-A/6 to the counter affidavit filed by respondent No.1. Further, it was submitted that admittedly the post of Medical Superintendent is administrative post and thereby in terms of the resolution taken by Executive Council on 5.8.2011 relating to age of Superintendent being 62 years, an advertisement was issued in the year 2013 wherein it had been stipulated clearly that age of superannuation would be 62 years and if the person opts to continue in teaching or clinical position he may do so even after attaining the age of 62 years. The petitioner by accepting that stipulation did apply and joined the post and even in the appointment letter the said clause was incorporated and in that event petitioner cannot claim his age of superannuation being 65 years, and thereby he is not entitled to hold the post of Medical Superintendent even for a minute after attaining the age of 62 years.
Mr. Lalitkumar, learned Sr. Counsel submits that the respondent No.4 pursuant to advertisement issued in the year 2016 did apply and his name has been recommended by the DPC for the appointment on the post of Medical Superintendent but on account of continuance of the petitioner on the post of Medical Superintendent even after attaining the age of superannuation of 62 years for which he is not entitled to, the respondent No.4 is unable to join the post and thereby both the writ petitions are fit to be dismissed.
Having heard learned counsel appearing for the parties and on perusal of the record, one would find, as has been stated above, that the control and management of RIMS, on being taken over by the Ministry of Health & Family Welfare, New Delhi came to the hand of the Central Government. In spite of that autonomy of the Institute was to be maintained which is evident from the letter dated 29.3.2007 issued by the Ministry of Development of North Eastern Region, Govt of India (as annexed as Annexure -25) to the WP(C) No. 528/2016. Thereupon one Memorandum was issued by the institute on 30.4.2007 whereby it was stipulated that service matters of RIMS, Imphal shall be as per the Central Government rules. It appears that RIMS, in order to give effect to that decision as well as to maintain autonomy of RIMS subsequently, came with its bye-laws called as "Bye-laws of the Regional Institute of Medical Sciences, 2007." On perusal of it, one would find that the order issued by the Central Government in regard to leave, medical attendance, general provident fund etc. Shall be applicable in case of employees of RIMS but so far as the matter relating to superannuation is concerned, it was left open for the RIMS to decide which is evident from clause 8 of the Bye-laws which reads as follows : "8. Superannuation
The age of the superannuation of the employees shall be governed by the rules framed or orders issued from time to time in this regard by the Central Government. Orders issued by the Institute in pursuance of such Rules or Orders of the Central Government shall continue to be enforced until the same is superseded by an order issued under this provision of the Bye-law."
Subsequently the executive council, took a decision in its 42nd meeting held on 5.2.2011 for having age of superannuation of Medical Superintendent as 62 years after taking into account the age of superannuation prescribed for Medical Superintendent as 62 years at other hospitals either run by the Govt. or autonomous body. Subsequently, the Executive council in its 45th meeting held on 20.11.2014 reiterated the same decision on fresh proposal in the following manner:
"The EC considered the proposals and it was observed that since in most of the Hospitals under this Ministry, the age of superannuation for the post of Medical Superintendent is 62 years, the proposal cannot be agreed to. However, the Chairman asked Director, RIMS to submit a consolidated proposal for considering the age of Superannuation for the posts of Director, Medical Superintendent, Dean and other HOD''s in RIMS together, as the matter requires more examination in the Ministry by 30th November, 2014 for detailed examination."
It seems that in consonance of the decision taken by the Executive Council in its 42nd Meeting, an advertisement was issued in the year 2013 stipulating therein, in clear terms, the age of superannuation of the post of Medical Superintendent as 62 years. When the petitioner was appointed the same term and conditions had been incorporated in the letter of appointment. In spite of that the petitioner is claiming the age of superannuation to be 65 years on the basis of amended rule as enshrined in Rule 56(bb) of the Fundamental Rules which reads as follows: FR 56(bb) :- The age of superannuation in respect of general duty, medical officer and specialist included in teaching, non teaching and public health sub cadre of central health service shall be 65 years.
On perusal of it one would find that it relates to sub cadre of central health services whereas the petitioner never happens to be the member of such cadre, rather the petitioner is an employee of an autonomous institution which does have its own bye-laws and in terms of the bye-laws it is for the RIMS to decide the age of the superannuation which had been decided as stated above. The petitioner, by accepting that stipulation relating to age as 62 years and has joined the post and has been holding the post in spite of the fact that he has attained the age of superannuation of 62 years on 31.7.2016 and representation being rejected on 11.8.2016 on the ground that Executive Council had already taken a decision over the age of superannuation on the post of Superintendent as 62 years which decision seems to have been taken in exercise of the power given under clause 8 of the bye-laws. The said order never seems to have been suffering from any illegality whatsoever. Accordingly, the petitioner cannot derive any benefit from the fundamental rules prescribing the age of superannuation of the post of Superintendent at other hospitals and Medical Colleges as 65 years as the petitioner would be governed by the decision taken by the authority of the RIMS .
Accordingly, I do not find merit in either of the writ petition and hence both the writ applications stand dismissed. Interim order, if any, passed earlier stands vacated.