CIVIL WRIT JURISDICTION CASE No.1826 of 1997 In the matter of an application under Article 226 of the Constitution of India. 1. PARMANAND SHARMA, son of Late Raghubansh Ojha, resident of Village Khabra, Police Station Sadar,District Muzaffarpur 2. Chakravarti Prasad Singh, son of Sri Ram Chandra Prasad Singh, Clerk (Retired), resident of Village Ghataro, PS Lalganj, Distt. Vaishali, Shri Krishna Medical College, Muzaffarpur 3. Ganga Pandit Shilpi, son of late Bal Gobind Pandit, Artist (Retd.), resident of Mohalla Near Deepak Cinema Hall, PS Sadar, Distt. Muzaffarpur, Shri Krishna College Medical College, Muzaffapur 4. Yogendra Mishra, son of Sri Basudeo Mishra, Driver, Shri Krishna Medical College, Muzaffarpur 5. Shankar Prasad, son of Late Ram Nath Prasad, Clerk, Shri Krishna Medical College, Muzaffarpur 6. Sita Ram Trivedi, son of late Ragho Pd. Tiwary, Clerk, Shri Krishna Medical College, Muzaffarpur 7. Yogendra Ray, son of late Sahdeo Roy, Clerk, Shri Krishna Medical College, Muzaffarpur 8. Ram Sudisth Roy, son of late Satya Deo Roy, Technician, Shri Krishna Medical College, Muzaffarpur 9. Suryadeo Sahni, son of Sri Amarjeet Sahani, Electrician, Shri Krishna Medical College, Muzaffarpur 10. Ishwar Lal, son of Sri Harihar Prasad, Artist, Shri Krishna Medical College, Muzaffarpur 11. Kedar Prasad Sharma, son of Late Ambika Prasad Thakur, Clerk, Shri Krishna Medical College, Muzaffarpur 12. Mrityunjay Mitra, son of late Kamal Krishna Mitra, Clerk, Shri Krishna Medical College, Muzaffarpur 13. V T Joseph, son of late V T Thomas, Typist, Shri Krishna Medical College, Muzaffarpur 14. Ram Raghav Roy, son of late Rash Bihari Roy, Librarian, Shri Krishna Medical College, Muzaffarpur 15. Ravindra Prasaad Singh, son of Sri Narsingh Narayan Singh, Clerk, Shri Krishna Medical College, Muzaffarpur 16. Kaushal Kishore Singh, son of Sri Bal Govind Singh, Peon, Shri Krishna Medical College, Muzaffarpur 17. Rameshwar Roy, son of Sri Pathal Roy, Peon, Shri Krishna Medical College, Muzaffarpur 18. Hatim Sah, son of Sri Hifajat Sah, Library Assistant, Shri Krishna Medical College, Muzaffarpur ………Petitioners Versus 1. THE STATE OF BIHAR 2. Director-in-Chief, Health Services, Bihar, Patna 3. Secretary to the Govt. of Bihar, Medical Education and Family Welfare, Health Department, New Secretariat, Patna 4. Additional Secretary to the Government of Bihar, Medical Education and Family Welfare, Health Department, New Secretariat, Patna 5. Accountant General, Bihar, Patna 6. Principal, Sri Krishna Medical College, Muzaffarpur ……..Respondents 2 For the Petitioners :Mr. Nachiketa Jha For the State : Mr. Kumar Alok, SC 19 Mr. Amit, AC to SC 19 For the Accountant General : Mr. J P Karn, Sr. Advocate *********** P R E S E N T THE HON'BLE MR. JUSTICE SUDHIR KUMAR.KATRIAR THE HON'BLE MR. JUSTICE BIRENDRA PRASAD VERMA S K KATRIAR, J. The writ petitioners seek a direction to the State Government to count the past services rendered by them in Shri Krishna Medical College, Muzaffarpur, when it was in private hands, prior to its nationalization in terms of the provisions of the Bihar Private Medical Colleges (Taking Over) Act 1978 (Bihar Act No.5 of 1978) (hereinafter referred to as `the Act’), and to re-compute the post- retirement benefits with consequential benefits. 2. A brief statement of facts essential for the disposal of this writ petition may be indicated. Shri Krishna Medical College had initially been established by private individuals. The petitioners were employed as class III or class IV employees. The Act provided for taking over and nationalization of some of the private medical colleges in existence in Bihar including the one in question. The services of the petitioners were taken over along with the college, as a result of which they became government servants. After these petitioners superannuated, they noticed that their post-retirement benefits had been sanctioned without counting the services rendered by them prior to nationalization. Hence this writ petition. 3 3. We have perused the materials on record and considered the submissions of learned counsel for the parties. This matter was laid before a learned single Judge of this Court who has, by his order dated 19.5.98, referred it for the consideration of a Division Bench because he noticed a conflict of views between the decisions of two Division Benches of this Court. In its order dated 12.8.92 (Annexure 11), a Division Bench of this Court held in CWJC No. 2644 of 1991 (Nageshwar Ram & Ors. V. State of Bihar & Ors.) that, “……we have decided in various cases that the previous services in such cases cannot be ignored…” Identical issues were considered by a Division Bench of this Court in CWJC No. 7379 of 1992, CWJC No.1847 of 1993, and CWJC No.3024 of 1993, wherein it has been held that those of the employees who rendered less than 10 years of service after nationalization of the college, shall not be entitled to the benefits of past services under private management, whereas those who completed 10 years after nationalization shall be entitled to the benefits of past service and the post-retirement benefits shall be computed accordingly. We are, therefore, called upon to examine the correctness of the views taken in the two decisions. 4. In terms of Section 3(1) of the Act read with the notification issued thereunder, the college in question along with such other medical colleges named in the notification were taken over by the State Government. Section 6 reads as follows : “6. Determination of terms of the teaching staff and other employees of the College.- As from the date of the notified order, all the State employees in the College shall cease to be the employees of the College body : 4 Provided that they shall continue to serve the College on an ad hoc basis till a decision under sub-sections (3) and (4) is taken by the State Government. (2) The State Government will set up one or more Committee of experts and knowledgeable persons which will examine the biodata of each member of the teaching staff and ascertain whether appointment, promotion or confirmation was made in accordance with the University Regulations and in keeping with the guidelines laid down by the Medical Council of India and take into consideration all other relevant materials including length of service in the College, and submits its report to the State Government. (3) The State Government on receipt of the report of the Committee or Committees, as the case may be, will decide in respect of each member of teaching staff on the merits of each case, whether to absorb him in Government service or whether to terminate his service or to allow him to continue on an ad hoc basis for a fixed term or on contract and shall, where necessary redetermine the rank, pay, allowance and other conditions of service. (4) The State Government shall similarly determine the term of appointment and other conditions of service of other categories of staff of the College on the basis of facts to be ascertained either by a Committee or by an officer entrusted with the task and the provisions of sub-sections (2) and (3) shall apply mutatis mutandis to such cases. 5. The State Government constituted a Screening Committee of experts as per sub-section (2) of section 6. The Committee submitted its report, which recommended that the petitioners shall be treated to be non- gazetted government servants with effect from 1.10.1979, the date on which the college was taken over by the State Government. The Government accepted the recommendations and issued order dated 9.6.1980 (Annexure 3), paragraph 1 of which is relevant in the present context and is reproduced hereinbelow:- Þmi;qZDr fo"k;d vkids i= la[;k 165@80 fnukad 15&2&80 ds izlax esa fuEukafdr vH;qfDr;ksa ds lkFk eq>s dguk gS fd LQzhfuax lfefr ls izsf"kr vuqeksfnr vuq'kalk ds lanHkZ esa lacaf/kr deZpkfj;sa ds uhps vafdr vH;qfDr;ksa dks /;ku esa j[krs gq;s Jh d`’.k esfMdy dkWyst ,oa vLirky ds ljdkjhdj.k dh frfFk ;kfu 1-10-79 ls ljdkjh lsok esa vLFkk;h :i ls fy;k tk;sAÞ 5 In other words, according to the Government decision, all the petitioners became government servants with effect from 1.10.1979. No material has been brought to our notice to show that the order dated 9.6.1980, notifying the decision of the State Government that these petitioners along with such other non-gazetted employees shall be deemed to be government servants with effect from 1.10.1979, was challenged before the appropriate forum. Consequently, we are free to conclude that the same attained finality. In other words, the question whether or not the petitioners became government servants with effect from 1.10.1979, is now closed and we shall proceed accordingly. 6. Rule 58 of the Bihar Pension Rules provides as follows:- 58. The service of a Government servant does not qualify for pension unless it conforms to the following three conditions:- First - The service must be under Government. Second - The employment must be substantive and permanent. Third - The service must be paid by Government. These three conditions are fully explained in the following sub- sections. 6.1 In order to earn pension from the Bihar Government, the employee must have served the State Government on a substantive and permanent basis, and must have been paid for by the State Government. This has to be read with paragraph 18 of the relevant circular of the State Government bearing Finance Department Resolution No. 3014, dated 31.7.1980, and is reproduced hereinbelow for the facility of quick reference:- Þ18- U;wure isa'ku iznk;h lsok orZeku fu;e ds vuqlkj LFkk;h ljdkjh lsod@vLFkk;h ljdkjh lsod ds fy, Øe'k% 6 U;wure isa'ku iznk;h lsok 10 ,oa 15 o"kZ fu/kkZfjr gSA vc fu.kZ; fy;k x;k gS fd nksuksa Js.kh ds fy;s 10 o’kZ dh U;wure isa'ku iznk;h lsok ekuh tk;xhAÞ It is thus evident that the State Government liberalized the eligibility criterion, and an employee with lesser number of years as an employee of the Bihar Government would be entitled to the benefit of pension. In other words, an employee must put in a minimum of 10 years of service to be entitled to the benefit of pension. 7. An identical issue came up for the consideration of the Supreme Court in the State of Bihar v. S A Hassan [2002(2) PLJR (SC) 295], wherein it has been held to the aforesaid effect. We must clarify that the same discussed an identical situation with respect to an employee governed by the Bihar Private Medical Colleges (Taking Over) Act 1977, which, to the extent relevant in the present context, is in Pari Materia with the Act in question. The Supreme Court examined the relevant aspects of the matter including Section 6 of that Act, and Rule 58 of the Bihar Pension Rules. It has been laid down that there is no provision in the Act to count the previous service. There is also no indication in the Act that the past services would be recognized for the limited purpose of pension. After noticing the provisions of Section 6 of the Act, it has been held that the State Government is empowered in terms of Section 6(3) of the Act to take over the services of the employees on the terms and conditions which it deems fit and proper, of course on the basis of the recommendation of the Committee. It has further been held that in view of Rule 58 of the Bihar Pension Rules, the past services rendered while under private management, cannot be counted. 7 8. Learned counsel for the petitioner has, however, laid emphasis on paragraph 14 and submits that the judgment shall apply prospectively, i.e the judgment was rendered on 5.3.2002. We have to read the observations in Paragraph 14 of the judgment in State of Bihar v. S A Hassan (supra), in the background of the submissions of the learned counsel for the State of Bihar in that case noted in paragraph 4 of the judgment. Paragraphs 4 and 14 are reproduced hereinbelow for the facility of quick reference :- “4. Mr. Ashok Mathur, learned counsel for the State of Bihar has drawn out attention to some other decisions of the High Court wherein a contrary view was expressed. Therefore, Mr. Mathur has submitted that these conflicting views have to be resolved by this Court so that similar disputes which may come up in future may be decided in terms of law laid down by this Court. The learned counsel has fairly stated that in case the impugned judgment is set aside, State will not ask for refund of any pension or pensionary benefits granted to the employees of the college. In regard to the present appeals, there was no stay order by this Court of the impugned judgment the benefits to both the respondents ought to have been granted and if not granted it will be so done by the State Government and the result of these appeals would not affect their cases.” ……… ………….. ……….. ……. “14. We are, therefore, of the opinion that the respondents are not entitled to claim the benefit of the period of their service while they were under the employment of the erstwhile management for the purpose of calculation of their pension and pensionary liabilities. Consequently we hold that the findings of the High Court are not sustainable in law. Accordingly, appeals are allowed by setting aside the impugned judgment. The judgment rendered by us will come into effect prospectively, i.e. apply to the cases of employees who retire on superannuation after the date of this judgment. The State Government shall not be entitled to claim refund of any pension or pensionary benefits already granted to any employees and also to the respondents. We are giving this direction especially for the reason that the State Government allowed a number of judgments adverse to it to become final and there was consequent uncertainty in legal position.” (Emphasis added) 8 8.1 Taking the judgment as a whole, it appears to us that the Supreme Court intended to mean that those of the employees who have already received the benefits of pension even though they had not completed ten years of service and were not entitled, shall not be liable to refund the same. We emphasise the observations in paragraph 14 of the judgment that “……..The State Government shall not be entitled to claim refund of any pension or pensionary benefits already granted to any employees and also to the respondents…” because of the uncertainty in the legal position. In our view, prospective application of the judgment would arise only in those cases where an ineligible employee had already received the benefit of pension before the judgment was handed down, and such persons would not be required to refund the same. None of the petitioners or his heir or the legal representative has not in the present case been received any pension and pensionary benefits. Therefore, the petitioner cannot get the benefit of the observations in paragraph 14 of the judgment. 9. Identical issues fell for the consideration before one of us (S K Katriar, J.), sitting singly, in CWJC NO. 8513 2001 (Girija Devi v State of Biahr), which was dismissed by the judgment dated 24.11.2009, reported in 2010 (1) PLJR 495. It was held that the period spent by the employees under private management cannot be counted at all. We entirely agree with the discussion and the conclusion in that judgment. 10. We are required to examine the validity of both the decisions of this Court which have been referred by the learned single Judge for our consideration. Both the decisions have been rendered without noticing at 9 all the provisions of the Act, recommendations of the Screening Committee, and the final decision of the State Government of 9.6.1980 (Annexure 3), accepting the recommendations of the Screening Committee. We have, therefore, no manner of doubt that both the decisions are per incuriam, having been rendered without noticing the provisions of the Act and the procedure prescribed by it, and we are not bound to follow the same. In view of the legal position that the two decisions are hit by the doctrine of Per Incuriam, and does not bind anybody except the parties to those decisions, we are not obliged in law to refer the two for the consideration of a larger Bench. 11. The doctrine of Per Incuriam has been the subject matter of a large number of decisions of the Supreme Court of India as well as the English Courts, some of which are as follows:- (i) Mamleshwar v Kanhaiya Lal AIR 1975 SC 907 (ii) State of Bihar v Kalika Kuer (2003) 5 SCC 448 (iii) Mukesh K Tripathi v Senior Divisional Manager, LIC (2004) 8 SCC 387 (iv) Central Board of Dawoodi Bohra Community Vs State of Maharastra (2005) 2 SCC 673 (v) Union of India v Manik Lal Banerjee (2006) 9 SCC 643 (vi) Young v Bristol Aeroplane Company Ltd. (1944) 1 K.B. 718 = (1944) 2 All E.R.293 12. The doctrine of Per Incuriam was explained by the Court of Appeal in England in Young v. Briston Aeroplane Co. Ltd. (supra). Speaking for the Court, Lord Greene, the distinguished Master of the Rolls, observed as follows:- “……..but where the court is satisfied that an earlier decision was given in ignorance of the terms of a statute or a rule having 10 the force of a statute the position is very different. It cannot, in our opinion, be right to say that in such a case the court is entitled to disregard the statutory provision and is bound to follow a decision of its own given when that provision was not present to its mind. Cases of this description are examples of decisions given per incuriam. We do not think that it would be right to say that there may not be other cases of decisions given per incuriam in which this court might properly consider itself entitled not to follow an earlier decision of its own. Such cases would obviously be of the rarest occurrence and must be dealt with in accordance with their special facts. Two classes of decisions per incuriam fall outside the scope of our inquiry, namely, those where the court has acted in ignorance of a previous decision of its own or of a court of co-ordinate jurisdiction which covers the case before it – in such a case a subsequent court must decide which of the two decisions it ought to follow; and those where it has acted in ignorance of a decision of the House of Lords which covers the point – in such a case a subsequent court is bound by the decision of the House of Lords. “On a careful examination of the whole matter we have come to the clear conclusion that this court is bound to follow previous decisions of its own as well as those of courts of co- ordinate jurisdiction. The only exceptions to this rule (two of them apparent only) are those already mentioned which for convenience we here summarize :(1) The court is entitled and bound to decide which of two conflicting decisions of its own it will follow. (2) The court is bound to refuse to follow a decision of its own which, though not expressly overruled, cannot, in its opinion, stand with a decision of the House of Lords. (3) The court is not bound to follow a decision of its own if it is satisfied that the decision was given per incuriam.” --------------------------------------------------------------------------- 13. We, therefore, hold that the two decisions of this Court – one dated 12.8.92, passed in CWJC No. 2644 of 1991, and another dated 21.9.1994, passed in CWJC No.7379 of 1992 and the analogous cases, are Per Incuriam, having been passed without taking into account the provisions of the Act and, therefore, do not bind us. We further hold that the petitioners will be deemed to have been absorbed in Government service with effect 1.10.1979. Therefore, only those of the petitioners will 11 be entitled to the benefits of pension who have completed 10 years of government service with effect from 1.10.1979. 14. The writ petition is accordingly disposed of. There shall be no order as to costs. ( S K Katriar, J. ) Birendra Prasad Verma, J. I agree. ( Birendra Prasad Verma, J.) Patna High Court, Patna The 24th of September 2010 AFR/mrl