Madhya Pradesh High Court
State Of M.P. vs Mrs. Prerna Pandey on 24 March, 2021
Equivalent citations: AIRONLINE 2021 MP 1252
Author: Sujoy Paul
Bench: Sujoy Paul
1 W.A. No.1240/2020
The High Court of Madhya Pradesh Bench at Indore
WRIT APPEAL NO.1240/2020
State of M.P. & Ors. Vs. Mrs. Prerna Pandey
Indore, Dated:24.03.2021
Shri.Shrey Raj Saxena, learned Dy.A.G for appellants.
Shri. Arjun Agrawal, learned counsel for respondent.
Heard finally with consent.
ORDER
This Writ Appeal takes exception to the order of learned Single Judge passed in WP No.2656/2018 decided on 31/7/2020. Indisputably the respondent preferred an application seeking voluntary retirement after rendering twenty three years one month and eight days of service. Since respondent was not permitted to retire on voluntary basis, she filed WP No.2656/2018 which was allowed by learned Single Judge by holding that as per Rule 42-A of M.P. Civil Services (Pension Rules) 1976, the respondent has completed 20 years of minimum qualifying service before preferring said application seeking voluntary retirement and, therefore, by operation of said Rules, the respondent shall be deemed to be retired after stipulated period.
[2] The singular ground raised by Shri Shrey Raj Saxena, learned Dy.A.G for appellant State is that learned Single Judge has not considered the proviso to Rule 42-1(a). It is contended that the parent department of respondent is Public Health and Family Welfare Department. For the employees working in this department in Medical, Para medical and Technical staff, the qualifying service is 25 years and not 20 years. Without considering this proviso which covers the case of present respondent, the learned Single Judge has committed an error in allowing the writ petition on the basis of main provision namely 42-1(a).
2 W.A. No.1240/2020[3] Shri Saxena, learned Dy.A.G placed reliance on para 4 of Writ Appeal which describes the duties/job nomenclature of "Sister Tutor". The emphasis is laid on following pleadings:-
"4/ That the post of Sister Tutor as mentioned in Schedule I under Nursing Shiksha as mentioned and the Sister Tutors are performing the function of training of Nurses and are actually performing medical functions by training and supervising junior nurses, therefore, their functions is akin to the paramedical and medical staff involved in the treatment. Even otherwise if the responsibility of sister Tutor are construed as teaching, even then the qualifying service of 25 years will be applicable to he respondent, since even the Sister Tutor under Medical Education Department are required to have to minimum qualifying service of 25 years as per the amendment.
That, the Hon'ble Writ court has not given any reasoning as to why the qualifying service of 20 years will be applicable to the respondent."
(emphasis supplied [4] Learned Dy.A.G urged that Sec.2(b) of Madhya Pradesh Sah Chikitsa Parishad Adhiniyam, 2000 contains the definition of Paramedical. Clause 2(c) contains the definition of Paramedical subject. It is urged that a conjoint reading of these definitions makes it clear that the person imparts education of Paramedical Subject and who helps in teaching or practice is also included in Paramedical Staff. Thus, respondent is squarely falls within the definition "paramedical". In view of aforesaid, it is clear that proviso of Rule 42-1(a) is applicable and in that event the minimum qualifying service for obtaining voluntary retirement was 25 years and not 20 years as erroneously held by learned Single Judge based on main provision. [5] Shri Arjun Agrawal, learned counsel for respondent supported the impugned order by taking assistance to various recruitment rules and the pleading of the appellants State before the learned Single Judge.
[6] During the course of hearing, learned counsel for parties clearly submitted that there is no iota of description in the order of learned 3 W.A. No.1240/2020 Single Judge regarding applicability of proviso to Rule 42-1(a), but since there exists no disputed question of fact and matter related to interpretation of statutory provision/rules etc. the matter may be decided at appellate stage by this Court.
[7] No other point is pressed by learned counsel parties. [8] We have bestowed our anxious consideration on rival contentions and perused the record.
[9] The respondent is admittedly a "Sister Tutor". The Madhya Pradesh Public Health and Family Welfare Department (Directorate of Health Services) Class III Nurses Service Recruitment Rules, 1989 (Rules of 1989) contains Schedule I which describes the post of "Sister Tutor" in "Nursing Education Department". The stand of Shri Agrawal based on these Rules is that respondent is working as Nursing Tutor in Nursing Education Department of a College and not in a hospital. The education, if any, imparted by her is in relation to "Nursing Education" and not in relation to a subject mentioned in the Adhiniyam 2000.
[10] This point needs to be examined minutely. The definition of Paramedical reads as under:-
"2(b) "Paramedical" means any personnel qualified in paramedical subject and who helps in teaching or practice of--
(i) medicine within the meaning of clause (I) of Section 2 of the Indian Medical Council Act, 1956 (No.102 of 1956); or
(ii) medicine in Homoepathy and Biochemistry within the meaning of clause (d) of Section 2 of the Madhya pradesh Homoeopathy Parishad Adhiniyam, 1976 (No.19 of 1976); or
(iii) medicine in Ayurvedic System, Naturopathy and Unani system within the meaning of clauses (b), (e) and (I) respectively of Section 2 of the Madhya Pradesh Ayurvedic, Unani Tatha Prakritic Chikitsa Vyavasayi Adhiniyam, 1970 (No.5 of 1971)"
(emphasis supplied) 4 W.A. No.1240/2020 [11] Similarly the definition of "Paramedical subject" reads as under:-
"(c) "paramedical subject" means the subject mentioned in the Schedule"
(emphasis supplied) [12] A Schedule appended to these Rules based on Section 2(c) reads as under:-
"SCHEDULE [See Section 2(c)] (1) Physiotherapy/Occupational Therapy Course (2) Speech Therapy Course (3) Audiologist (4) Laboratory Technician (Various types) (5) X-ray Technician/Radiographer (6) B.C.G. Technicians (7) Cyto Technicians (8) Ortho Technicians (9) Mould room Technicians (10) Gamma Camera Technicians (11) Orthotic Technicians (12) Optometrist (13) Orthotic and contact lens (14) E.C.G.Technicians (15) Ulta Sound (16) Angiography (17) Operation Theatre Technicians (18) Degree, Diploma and Certificate in Human Nutrition (19) Dialysis Technicians (20) Insulation Therapy Technicians (21) Health Inspector Course (22) Hospital Medical Record Science. (23) Compounder (Allopathy, Ayurvedic, Unani and Homoepathy) (24) Compounder in Biochemic System of Medicine (25) Diploma in Clinical Biochemistry (26) Microbiology (27) Pathology (28) Optometri Refraction (29) Paramedical Ophthalmic Assistant (30) Perfusionist/Cardiac Surgery Technicians (31) Cath. Lab. Technician"
(emphasis supplied) 5 W.A. No.1240/2020 [13] A careful reading of definition of "Paramedical" shows that it talks about any person qualified in "paramedical subject". Paramedical subject means a subject mentioned in the Schedule. The Schedule reproduced herein above makes it clear that it does not cover any subject in which a nursing tutor can impart education. The definition of paramedical covers a person who helps in teaching or practice of medicine as per Indian Medical Council Act, 1956, M.P. Homoepathic Parishad Adhiniym, 1976 or in Ayurvedi System, Naturopathy and Unani system as per the relevant Adhiniyam of 1970. The appellant is unable to bring the post of Sister Tutor within the ambit of "paramedical". Putting it differently, there is no iota of material to show that a Nursing Tutor is equipped with or imparts education in paramedical subject or she helps in teaching or practice of any subject which is covered in clause (i), (ii), (iii) of Clause (b) of Sec.2 of Adhiniyam of 2000. Apart from this, a microscopic and conjoint reading of Sec.2(b) and (c) of said Adhiniyam shows that only such person can be treated to be a person qualified in paramedical subject who has acquired education in the subjects mentioned in the "Schedule" reproduced herein above. The twin condition is that a person should be qualified in paramedical subject and he/she helps in teaching or practice of medicine as per Clause (i),
(ii) or (iii). It is not established before us that Sister Tutor is equipped with any of the course mentioned in the Schedule or she helps in teaching or practice of medicine mentioned in Clause (I), (ii) or (iii) aforesaid. Thus, we are unable to hold that the respondent is covered in paramedical staff.
[14] The Madhya Pradesh Public Health and Family Welfare (Gazetted) Service Recruitment Rules, 2007 contains the names/qualification of statutory posts covered by the said Rules. A plain reading of Schedule I makes it clear that post of "Sister Tutor"
is not included in these services. The respondent's post finds place in 6 W.A. No.1240/2020 the M.P. Public Health and Family Welfare (Directorate of Health Services) Class-III Ministerial Service Recruitment Rules, 1989. Thus, we are constrained to hold that case of present respondent is covered by Rules of 1989. The Schedule appended to these Rules makes it clear that the respondent needs to impart education in the "nursing department". The relevant portion of Rule 42-1(a) reads as under:-
"1. In rule 42-
(i) in the heading, for figures and word "15/20 years" the figures and word "20/25 years" shall be substituted.
(ii) for clause (a) of sub-rule(1), the following clause shall be substituted, namely:
"(1)(a) government servant may retire at any time after completing 20 years qualifying service, by giving a notice in form 28 to the appointing authority at least one month before the date on wnich he wishes to retire or on payment by him of pay and allowances for the period of one month or for the period by which the notice actually given by him falls short of one month :
(a) Public Health and Family Welfare Department (Medical, paramedical Technical staff);
(b) Medical education Department (Teaching staff, Paramedical and Technical staff)"
(emphasis supplied) [15] A plain reading of these provisions makes it clear that ordinarily government servants may be retired on completion of 20 years of qualifying service. However, a proviso is appended which makes it clear that aforesaid special rule will not apply to the following category of employees of Public Health and Family Welfare Department-- (i) medical; (ii) paramedical; (iii) technical staff. As noticed above, from the perusal of relevant recruitment rules, the appellant is unable to show that the respondent falls within the category of medical, paramedical or technical staff. On a specific query from the bench, learned Dy.A.G is unable to show that the job nomenclature of Sister Tutor is reduced in writing anywhere. In other words, there is no provision which is brought to our notice which 7 W.A. No.1240/2020 prescribes the nature of duties and responsibilities of Sister Tutor. Thus, there is no material to show that para 04 of the Writ Appeal is based on any relevant supporting material.
[16] As noticed above, the appellant has failed to bring the category of respondent in one of the category which is covered within proviso of Rule 42-1(a) and, therefore, no fault can be found in the order of learned Single Judge.
[17] Writ Appeal fails and is hereby dismissed.
(SUJOY PAUL) (SHAILENDRA SHUKLA)
Judge Judge
vm
Digitally signed by
VARGHESE MATHEW
Date: 2021.03.24
21:27:32 -07'00'