IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.9655 of 1997 HEM NARAYAN JHA, son of Late Tej Narayan Jha, resident of Mohalla Balbhadrapur, P.O. and P.S. Laheria Sarai, District- Darbhanga…Petitioner. Versus 1. THE STATE OF BIHAR 2. The Secretary, Department of Science & Technology, Government of Bihar, New Secretariat, Bailey Road, Patna. 3. The Additional Secretary, Department of Science & Technology, Government of Bihar, New Secretariat, Bailey Road, Patna. 4. The Principal, Jagannath Mishra Institute of Technology, Mabbi, Darbhanga. .. Respondents. ------------- 3. 03.8.2010 Heard learned counsel for the petitioner and learned counsel for the State. The prayer of the sole petitioner in this writ petition reads as follows;- “(i) To issue a writ in the nature of mandamus/certiorari for quashing of the order dated 31.1.1991 bearing memo no. 322 issued under the signature of the respondent no. 3, by which the services of the petitioner was terminated in the light of the report submitted by the Screening Committee under Section 5(3) of the Bihar Private Engineering College (Taking Over) Ordinance, 1990 and also in the light of the staffing pattern as recommended by the Indian Council for Technical Education, as contained in Annexure-8. (ii) To declare the report submitted by the Screening Committee which was constituted by the order dated 6.9.1996 bearing memo no. 1706 (Annexure-14), perverse, erroneous, capricious, because the same was constituted in pursuance of the direction given by this Hon‟ble Court in CWJC No. 1316 of 1991 and other analogous cases, reported in 1996 Volume I, 2 All PLR page 611 but never discharged their duties, with independent mind. (iii) To direct the respondent authorities to act in pursuant to the recommendation made by the Screening Committee dated 11.10.1988 and further to ask an explanation cum show cause from the respondent authorities asking inter alia that whether they have complied with, the direction passed by the Hon‟ble Court in view of the judgment passed in CWJC No. 1316 of 1991 and other analogous cases reported in 1996 Volume I, All P.L.R, Page 611. (IV) To reinstate the petitioner over his original post of Associate Professor or any equivalent post according to the education qualification of the petitioner.” With regard to the aforementioned prayer, learned counsel for the petitioner would submit that when the petitioner was appointed by the private management of Jagannath Mishra Institute of Technology (hereinafter referred to as the „J.M.I.T.‟) on the post of Assistant Lecturer in Mathematics and was subsequently also given promotion on the post of Assistant Professor his being shown the door at the time of take over of the College in terms of the impugned order dated 31.1.1991 is wholly illegal and unjustified specially when the same was passed even without a notice and/or affording an opportunity of hearing to him. 3 In this connection his grievance is that even if the report of the committee screening the service record of the private institute in respect of take over of the institute and omitting to take over the service of the petitioner is accepted to be correct the consequential action of the Government of taking over the services of lesser qualified persons holding post under private management of J.M.I.T. on some other administrative/academic posts and refusing same benefit to the petitioner by itself amounting clear discrimination among the same set of persons is fit to be interfered with by this Court. . Counsel for the State on the other hand with reference to his counter affidavit would submit that the Take Over Act itself envisaged the screening of the employees working in Private Engineering College and automatic removal from service of unfit persons. Thus once the Screening Committee had found the petitioner to be not possessing the requisite qualification in respect of the post held by him under private management of J.M.I.T., the Government was under not obligation to take over the service of the petitioner more so when such decision of the Government being in terms of the Statute 4 of the Take Over Act also did not require giving of a notice and/or opportunity of hearing. In the opinion of this Court, counsel for the State seems to be correct inasmuch as there was no concept of automatic absorption of the teaching or non- teaching staff working in the private engineering college rather there was a clear provision under Section 5 of the Take Over Act for constituting a Screening Committee for absorption as per the report of Screening Committee as accepted by the State Government. Apparently, in such a situation no one could have claimed either continuation in service in J.M.I.T. as a matter of right. The removal a person from service of J.M.I.T. on the ground of not being screened also cannot be held as termination of service so as to introduce the concept of natural justice. It has to be kept in mind that whenever Screening Committee had prepared its screening report all the employees of J.M.I.T. were given an opportunity to produce their certificates and testimonials for establishing their claim for take over of their service. Moreover such report of screening Committee was made public giving opportunity to file 5 objection by any person the finding of the report of the Committee to be contrary to the records produced by him. Thus it is clear that there were inbuilt safeguards to comply the principles of natural justice and the petitioner has also not denied this fact as clearly asserted in paragraph 8 of the counter affidavit reading as follows; “8. That after receiving the reports from the screening committee the Govt. decided the staffing pattern under Section 5(3) on the basis of the guidelines of the All India Council for Technical Education (AICTE) with consultation of planning and finance department vide department resolution no. 97 dated 15.1.1990. In the light of these guidelines and as per the report of the screening committee the Govt. found that the petitioner of this case does not have the minimum required qualification for the post on which he was appointed. Hence the appointment of the petitioner is illegal and invalid. Thus, the Govt. after careful examination and proper consideration terminated from services vide department notification no. 322 dated 31.1.1991.” It is thus clear that the petitioner did not possess the minimum requisite qualification of the teaching post held by him in J.M.I.T. and therefore there would be no difficulty for this Court in holding that the absorption of service of the petitioner against a teaching post held by him under the private management of J.M.I.T. was 6 impressible in terms of take over Act. The remaining submission of learned counsel for the petitioner with regard to the consideration of the case of the petitioner for any other administrative or supervisory post for which he may have academic qualification cannot be directly answered in this case in absence of any specific pleading to this effect. There is also no such relief prayed for this purpose by the petitioner in this case. The citation of examples of Radha Mohan Sharma of Magadh Engineering College, Gaya and Sanat Kumar Pandey, GMIT, Dharbhanga who were allegedly not screened against teaching posts held earlier by them in private management and were yet absorbed on some lesser administrative post of Assistant Registrar or equivalent post on the basis of their educational qualification. infact is a new dimension given by learned counsel for the petitioner in course of making his submission benefit of any pleading in this writ petition and as such the learned counsel for the respondents is not in a position to answer the same. In such a situation this Court would give liberty to the petitioner to approach the State Government 7 through the Principal Secretary of the Department who would only examine the claim of the petitioner for being absorbed against any lesser post as was done in the case of aforesaid two persons or may have been done in cases of some other similarly situated persons as well. Such exercise which would bring a finality to the case of the petitioner may be completed within a period of six months from the date of filing of the representation of the petitioner enclosing connected documents in support of his claim as also this order. Let it, however, be made clear that this Court has not examined the case of the petitioner on merit with regard to his claim for aforementioned absorption on any lesser post and has merely given an opportunity to him to represent his case on the basis of aforesaid precedent cases referred to and relied by the petitioner. It would be therefore open for the respondents to take a decision in this regard strictly in accordance with law but at the same time also keeping in view that if such similar cases of absorption were allowed in other taken over Engineering Colleges the petitioner could not be discriminated for a similar treatment unless there are 8 cogent and discernible reasons for the same. With the aforementioned observation and direction, this writ petition is disposed of. kanchan/ (Mihir Kumar Jha, J.)