Ajayakumar K.S. & Prasanna Kumar.N v. State of Kerala & Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN & THE HONOURABLE SMT. JUSTICE P.V.ASHA WEDNESDAY, THE 30TH DAY OF MARCH 2016/10TH CHAITHRA, 1938 OP(KAT).No. 74 of 2015 (Z) --------------------------- AGAINST THE ORDER/JUDGMENT IN OA 320/2015 of KERALA ADMINISTRATIVETRIBUNAL, THIRUVANANTHAPURAM DATED 27-02-2015 PETITIONER(S)/APPLICANTS: ------------------------ 1. AJAYAKUMAR K.S. RADIOGRAPHER, MEDICAL COLLEGE, TRIVANDRUM RESIDING AT 'AKHILAM', HOUSE NO.12, KAIRALI NAGAR, DEVASWOM LINE, KESHAVADASAPURAM, PATTOM P.O., TRIVANDRUM - 695 004. PHONE - 9496641653. 2. PRASANNA KUMAR.N RADIOGRAPHER, MEDICAL COLLEGE, TRIVANDRUM, RESIDING AT 'ASWATHY', THENNOOR KONAM, KOTTAPURAM P.O., TRIVANDRUM - 695 521 PHONE - 9496814513 BY ADV. SMT.S.KARTHIKA RESPONDENT(S)/RESPONDENTS: -------------------------- 1. STATE OF KERALA REPRESENTED BY ITS SECRETARY, HEALTH AND FAMILY WELFARE (S) DEPARTMENT, GOVT.SECRETARIAT, TRIVANDRUM - 695 001. 2. DIRECTOR OF MEDICAL EDUCATION GOVT.MEDICAL COLLEGE, MEDICAL COLLEGE P.O., THIRUVANANTHAPURAM - 695 011. 3. THE PRINCIPAL GOVT.MEDICAL COLLEGE, MEDICAL COLLEGE P.O., THIRUVANANTHAPURAM - 695 011. 4. ACCOUNTANT GENERAL OF (A&E), KERALA M.G.ROAD, P.B.NO.5607, THIRUVANANTHAPURAM. Addl. 5. SYAM KUMAR S/O.LATE DIVAKARAN, WORKING AS RADIOGRAPHER GRADE-I, GOVERNMENT DENTAL COLLEGE, THIRUVANANTHAPURAM. (IMPLEADED AS PER ORDER DT.21.5.2015 IN I.A.6382/2015) R(ADDL 5) BY ADV. SRI.P.SREEKUMAR R(ADDL 5) BY ADV. SRI.P.S.SIDHAN R(ADDL 5) BY ADV. SMT.P.M.MAZNA MANSOOR R BY GOVERNMENT PLEADER SMT.ANITHA RAVINDRAN THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING BEEN FINALLY HEARD ON 30-03-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(KAT).No. 74 of 2015 (Z) --------------------------- ## APPENDIX PETITIONER(S)' EXHIBITS ----------------------EXT.P-1: TRUE COPY OF THE OA NO.320/2015 FILED BEFORE THE HON'BLE KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM. EXT.P-2: TRUE COPY OF ORDER DATED 27.2.2015 IN O.A.NO.320/15 OF THE HON'BLE KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM. RESPONDENT(S)' EXHIBITS NIL ----------------------- JJ /TRUE COPY/ P.S.TO JUDGE ## K. SURENDRA MOHAN & P.V.ASHA, JJ. ------------------------------O.P(KAT) NO.74 OF 2015 ---------------------------------Dated this the 30[th] March, 2016. ## JUDGMENT Surendra Mohan, J. The petitioners are aggrieved by Ext.P2 order in O.A.320/2015 of the Kerala Administrative Tribunal ('KAT' for short), dismissing the same. The petitioners had approached the KAT claiming that they were entitled to continue in service up to the age of 60 years as they were non-medical teachers working in the medical college under the the second respondent. 2. The petitioners are persons who had entered service as Technicians Gr.II Radiology under the second respondent. The said post was later on redesignated as Radiographer Gr.II. Later on they were promoted to the post of Radiographer Gr.I. On completion of 23 years of service, they were granted the OP(KAT) 74/2015 2 second time bound grade. In 2014, they were promoted as Radiographer (teaching) as set out in Annexure A2. As per Annexure A2, they had to conduct theory classes and impart practical training in Radiography and Dark Room Techniques, demonstration, record maintenance, project works etc to Radiological technology students. They have also to conduct theory and practical classes for DRT students in modern equipments like MRI scan, CT scan etc. 3. As per Annexure A5 Government Order dated 14.1.2010 the Government enhanced the retirement age of doctors in the medical cadre under the medical education service to 60 years from the existing 55 years. Thereafter, by successive Government Orders evidenced herein by Annexures A7, A8, A9 and A10, the benefit of enhancement in the retirement age was extended to the teachers of Homeopathic Medical Colleges, Ayurvedic Medical Colleges, the teaching faculties of nursing colleges, pharmacy teachers and by Annexure A9, the retirement age of non-medical teachers in OP(KAT) 74/2015 3 Government Medical Colleges under the medical education services was also enhanced to 60 years. Since the retirement age of non-medical teachers was enhanced to 60 years, a claim was made that persons who were working as Radiographer (teaching) were also entitled to the benefits thereof. According to them, they were also part of the nonmedical teachers of a Government Medical College. They were working under the supervision and control of the Principal of the Government Medical College. In spite of the above, they were not extended the benefit of enhancement in retirement age that was made available to all other teaching staff of medical colleges. 4. One Smt.Sobhana Kumari had submitted a representation to the Government seeking the benefits of Annexure A9 Government Order. The said representation was considered and was rejected by Annexure A11 order dated 12.6.2014. The said order was the subject matter of challenge at the instance of Smt.Sobhana Kumari before the OP(KAT) 74/2015 4 KAT in O.A.1182/2014. As per Annexure A12 order dated 30.4.2014, the challenge was repelled by the KAT. Since Smt.Sobhana Kumari had retired in the meantime, it is stated that she did not pursue the matter thereafter. The petitioners were also not in a position to pursue the matter for the reason that, at that time they had not been promoted to the post of Radiographer (teaching). 5. After their promotion, the petitioners filed O.A.320/2015 contending that they were entitled to the benefits of enhancement in retirement age that was extended to all the other categories of teaching staff in the medical colleges. The KAT has rejected the claim of the petitioners pointing out that there were no grounds to reconsider the view that was taken in Annexure A12 order dated 30.6.2014. The petitioners challenge the said order of the KAT, evidenced herein by Ext.P2. 6. According to Adv.Smt.S.Karthika who appears for the petitioners, the petitioners are persons who have been OP(KAT) 74/2015 5 promoted to the post of Radiographer (teaching) at the fag end of their career. They had entered service as Technicians Gr.II Radiology and by successive promotions, have reached the post of Radiographer (teaching). Their duties and responsibilities are confined to teaching the students, no doubt of a diploma course conducted at the Medical College and are therefore they are part of the teaching staff of the Government Medical College. It is for the reason that the incumbents who reach the post have only very short tenures of service that the injustice meted out to them could not be challenged effectively at an earlier point of time. A perusal of Annexure A11 shows that, the representation submitted by the earlier incumbent had been rejected for three reasons. In the first place, it is pointed out that, the educational qualification of persons who are posted is only diploma and experience. Secondly, it is stated that they were not teaching medical or dental students. Thirdly it is stated that they do not come within the non-medical category as per UGC norms. OP(KAT) 74/2015 6 According to the learned counsel for the petitioners all the three reasons are unsustainable. There are other teachers in the Government Medical Colleges teaching non-medical subjects, who have been granted the benefit of enhancement in the retirement age. There is no justification for the separate treatment that has been meted out to the category of Radiographer (teaching) alone. Reference is made to Annexure A4 order to contend that, the post of Radiographer (teaching) has been listed therein as one of the posts coming within the general category of medical education under the sub category, teaching (non-medical). It is under the very same category that all other persons teaching non-medical subjects have been included. Therefore it is contended that the benefits of Annexure A9 order should be extended to them also. The counsel also places reliance on the decision of the Apex Court in Union of India v. Atul Shukla [(2014)10 SCC 432] to contend that, there is no justification for classifying the persons teaching non-medical subjects, as OP(KAT) 74/2015 7 done in the present case and for denying to the post of Radiographer (teaching) alone the benefit of enhancement of the retirement age. On the above grounds, the counsel seeks interference with Ext.P2 order. 7. The Govt. Pleader on the other hand refutes the contentions of the counsel for the petitioner pointing out that, the category of teachers who are teaching non-medical subjects in Government Medical Colleges are those persons who are teaching the students of medical and dental courses. The Radiographers (teaching) are teaching the students of a diploma course that is conducted by the Medical College, viz., a diploma in Radiology. The said diploma course conducted in the Government Medical College has no connection with the medical or dental courses that are conducted. Therefore, it is contended that the petitioners are not persons coming within the scope of Annexure A9 Government Order. It is further pointed out that, the representation of Radiographer (teaching) have been considered by the Government and OP(KAT) 74/2015 8 rejected by Annexure A11 order. The challenge against the said order has also been rejected by the KAT. In view of the above, it is contended that the present challenge is also liable to be rejected. 8. Heard. It is true that, the retirement age of the teaching staff of Government Medical Colleges have been enhanced to 60 years by the Government. Initially, the retirement age of doctors in the medical category alone was enhanced by Annexure A5 dated 14.1.2010. It was specifically stated in the said G.O that, the benefits thereof would be available only to the doctors who are specifically mentioned therein. However, by Annexure A6, the benefits of enhancement in retirement age was extended and made applicable to the teaching staff of Ayurveda medical colleges also. An extension of the benefit to the teaching staff of Homeopathy followed by Annexure A7. The same was followed by Annexure A8 extending the benefit to the teaching staff of Nursing Colleges and by Annexure A10 to OP(KAT) 74/2015 9 Pharmacy Teachers. By Annexure A9, the retirement age of non-medical teachers of Government Medical Colleges under Medical Education Service was also enhanced to 60 years. The contention of the counsel for the petitioners is that, the petitioners being part of the non-medical teaching staff of the Government Medical Colleges are entitled to the benefit of Annexure A9. 9. However, it is an admitted fact that the petitioners are only diploma holders who have entered service as technicians and have progressed by successive promotions to the post of Radiographer (teaching). In contrast the other teaching staff of medical colleges, whether teaching medical or non-medical subjects, are all persons recruited as teachers, holders of post graduate degrees with teaching experience. Therefore, the contention that the petitioners form a homogenous class along with the other teachers of medical college, is fallacious. For the above reason, the first ground on which the representation of a Radiographer (teaching) was OP(KAT) 74/2015 10 rejected by Annexure A11 cannot be found fault with viz., that the education of the persons holding the post of Radiographer(teaching) is only diploma coupled with experience. It is also not in dispute that, the petitioners are teaching only students of a diploma course that is conducted by the medical college. They are not teaching either medical or dental students. It is also clear from Annexure A4 order that, they are not persons who are drawing the UGC scale of pay. Therefore the contention that they also do not come within the non-medical category as per the UGC norms, cannot be found fault with. It is clear from the above that, the petitioners form a different category with the only common factor that they are also teaching students in a government medical college. 10. The question as to whether the benefits of enhancement of retirement age should be extended to the petitioners also, is a policy decision that the government would have to take. Since the government has by Annexure OP(KAT) 74/2015 11 A11 rejected the representation of Smt. Sobhana Kumari who had earlier taken up the matter and the said Government Order has been sustained by Annexure A12 order of the KAT, a proper policy decision of the government on the question would have to be awaited. We do not find any infirmity in the order of the KAT warranting an interference therewith as sought for by the petitioners. For the foregoing reasons the original petition is dismissed. Sd/K. SURENDRA MOHAN Judge Sd/P.V.ASHA Judge jj /True copy/ OP(KAT) 74/2015 12