IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC NO.1677 OF 2007 KRISHNA NAND GUPTA, S/O KABIRAJ NARENDRA NATH, R/O VILLAGE BUDHNATH ROAD, YOGSAR, P.S KOTWALI, DISTRICT BHAGALPUR. …………………PETITIONER. VERSUS 1.THE STATE OF BIHAR. 2.SECRETARY, HEALTH DEPARTMENT, GOVT. OF BIHAR, PATNA, NEW SECRETARIAT, PATNA. 3.DIRECTOR, DESI CHIKITSA, BIHAR, NEW SECRETARIAT, PATNA. 4.PRINCIPAL, GOVERNMENT OF AYURVEDIC COLLEGE, PATNA. ………………………RESPONDENTS. ----------- 03/ 08.08.2011 Heard counsel for the petitioner and counsel for the State. The petitioner in this writ application claims payment of salary for the period from 10.01.1985 to 16.05.1998 and also quashing of the order passed by the Health Department dated 08.07.2006 (Annexure-5), whereby and whereunder, it has been held that since the petitioner did not possess the qualification for the post of Demonstrator in Ayurvedic Medical College, he would not be entitled for such payment of salary. Learned counsel for the petitioner would submit that the petitioner is a Bachelor of Science and was appointed as a Demonstrator in Science by the managing 2 Committee of Yatindra Nath Astanga Ayurveda College, Bhagalpur hereinafter referred to as the College which was subsequently taken over by the State Government on 10.01.1985. He has submitted that the State Government had ultimately decided to absorb the services of the petitioner on the post of Museum Keeper and had posted him in the Government Ayurvedic Medical College by order dated 17.02.1998 and therefore the petitioner could not be deprived of the benefit of past services from 10.01.1985 to 16.05.1998 and/or payment of salary for the aforementioned period. In this context, he has also relied on the two orders of this court in the case of Dr.Sant Kumar Trivedi and Ors vs The State of Bihar & Ors, (C.W.J.C No. 1103 of 1995) disposed of on 21.08.1997 as also in the case of Mukti Nath Jha vs The State of Bihar & Ors (C.W.J.C. NO.10430 of 1996) disposed of on 09.11.1998. Learned counsel for the State on the other hand having filed the counter affidavit has explained that the impugned order was passed in compliance of the 3 earlier order dated 27.11.2004 in C.W.J.C NO. 11255 of 1999, wherein, this Court had remitted the matter to the Authority for deciding the claim of payment of salary for the period from 10.01.1985 to 16.05.1998. He would further submit that in view of the fact that the services of the petitioner were never utilized after take over of the College on 10.01.1985 and the petitioner also could not be found fit in the report of Statutory Screening Committee due to lack of qualification, in course of consideration of his case for absorption in the service of the State Government in terms of Section 6 of the The Bihar Private Medical (Indian System of Medicine) College (Taking Over) Act, 1985, hereinafter referred to as the Act. He has also explained that a consequential notification to this effect rejecting his claim for absorption was also issued by the State Government being notification no. 345 dated 20.05.1997. Learned counsel for the State in fact has further submitted that it was by way of compassion that even when the petitioner did not possess the statutory 4 qualification for the post of demonstrator as laid down by the Central Council of Indian Medicine( C.C.I.M), as claimed by him, the Government by way of grace had appointed, not absorbed the petitioner on the post of Museum keeper by a separate order dated 17.02.1998 and as such the petitioner could not claim the salary for the interregnum period from 10. 01.1985 to 16.05.1998. Learned counsel for the State has also distinguished the judgment in the case of Mukti Nath Jha (supra). In the considered opinion of this Court, Section 6 of the Act would by itself clinch the main issue raised in this writ petition inasmuch as, it was the mandate of legislature that after take over of the College, the employee working shall cease to remain in service of the college till their screening was made and they were found suitable for being absorbed in the Government service. Section 6 of the Act reads as follows:- “1. From the date of the notified order, all the staff employed in the College shall cease to be the employees of the College body: Provided that they shall continue to serve the College on ad hoc 5 basis till a decision under sub-section (3) and (4) of this section is taken by the State Government. (2) The State Government will set up one or more committees of experts and knowledgable persons which will examine the bio-data of each member of the teaching staff and ascertain whether appointment, promotion or confirmation was made in accordance with the Act, Statute or Regulations of the University concerned and in keeping with the guidelines laid down by the Indian Medical Council of India and take into consideration all other relevant materials including length of his service in the College; and submit 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 to terminate his service or to allow him to continue on an ad-hoc basis for a fixed term on contract and shall, where necessary, re-determine the rank, pay allowances and other conditions of service. 4. The State Government shall similarly determine the terms of appointment and other conditions of service of other categories of staff of the College on the basis of facts ascertained either by a committee or by an officer entrusted with the task and the provisions of sub-sections (2) and (3) of this section shall apply mutatis mutandis to such cases. It is also not in doubt that the petitioner’s services after 10.01.1985 had statutorily come to an end and the State Government in terms of the enquiry made and finding recorded by the screening committee 6 had not found the petitioner fit for absorption on the post of Demonstrator which was communicated to him by an order dated 20.05.1997. Such order has become final between the parties and therefore, the aforesaid decision as with regard to the petitioner being not absorbed on the post of Demonstrator cannot be now questioned by him in an indirect manner as has been sought to be done by him relying on the judgment of Mukti Nath Jha (supra). Infact the reliance placed by the learned counsel for the petitioner on the judgment of this Court in the case of Mukti Nath Jha (supra) also appears to be wholly misplaced. Mukti Nath Jha was a teaching personnel of the college who had been appointed on the post of Lecturer on the basis of his qualification of M.Sc., in Botany and this Court accordingly considering the requirement laid down by the Central Council of Indian Medicine( C.C.I.M) as with regard to lecturer in Dravayagun Department had held that such a post could also be filled up by a person having qualification of Master in Science 7 in the subject of Botany. As a matter of fact both the Screening Committee and Review Committee having found Mukti Nath Jha to be sufficiently qualified for the post of lecturer in the college had recommended for absorption of Mukti Nath Jha and thus it was in this background that this court had held Mukti Nath Jha to be eligible for being absorbed in the Government service. It has to be also kept in mind that this very aspect was also gone into by this Court in an unreported judgment dated 17.07.2000 in C.W.J.C No. 3299 of 1999 in the case of Rana Ran Vijay Kumar Singh “Rajiw” vs The State of Bihar. Mr. Rajiw also was adjusted against the post of Museum Keeper as against his claim for absorption on the post of Lecturer in the same College and when he had assailed such a decision of the State Government, this Court had held as follows:- “4.Shri Rajendra Prasad Singh, learned counsel for the petitioner, submitted that the petitioner possesses the requisite qualification of Ayurvedacharya vide Annexure 2; he has also been teaching „Rash BhaisajKalpana‟ which is part of the syllabus vide Annexure 11 and, 8 therefore, the respondents were not justified in not absorbing him against the post of Lecturer. Counsel urged that by virtue of 18 years‟ teaching experience a right had accrued to the petitioner for his absorption on the post. Counsel submitted that the case of the petitioner is similar to one Mukti Nath Jha whose name was earlier shown in the category of retrenched employees along with the petitioner, but adjusted later against the post of Cashier and finally on the post of Lecturer pursuant to the judgement of this Court in CWJC No. 1103/95, vide Annexure 9. 5.At this stage the relevant provisions of the Taking Over Act may be noticed. Section 3(1)of the Act provides for taking over of the private Medical College imparting education in Indian System of Medicine in the manner specified in the order. Upon issuance of the order all the assets and properties of the College stand transferred to and vested in, and deemed to have come into possession of the State Government. Section 6(1) of the Act lays down that from the date of the notified order, all the staff employed in the college shall cease to be the employee of the College body, provided that they shall continue to serve the College on ad hoc basis till a decision under sub-sections (3) and (4) is taken by the State Government. Section 6(2) provides for constitution of Experts Committee for examining the bio-data of the staff. In view of the relevance of the provisions regarding constitution of the Screening Committee it may be useful to quote sub-section (2) as also sub-section (3), as under:- “(2) The State Government will set up one or more committees of experts and knowledgeable persons which will examine the bio-data of each member of the teaching staff and ascertain whether appointment, promotion or confirmation was made in accordance with the Act, Statute or Regulations of the University 9 concerned and in keeping with the guidelines laid down by the Indian Medical Council of India and take into consideration all other relevant materials including length of his service in the College; and submit 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 to terminate his service or to allow him to continue on an ad-hoc basis for a fixed term on contract and shall, where necessary, redetermine the rank, pay, allowances and other conditions of service.” From bare reading of the above provisions it is manifest that no member of the staff of the College has any vested right to be absorbed. After take over he remains in employment only for the purpose of screening of his case, and does so till decision is taken by the government after submission of the report. The only right he thus has is to be considered by the committee for the purpose of absorption. The committee is required to consider the case “in accordance with the Act, Statute or Regulations of the University concerned and in keeping with the guidelines laid down by the Indian Medical Council of India”. Thus, the only point for consideration is whether the petitioner was eligible and suitable for the post of Lecturer. 6. The specific case of the State is that the post of Science Teacher, against which the petitioner was appointed, was abolished in 1989 itself after the syllabus was changed and science subject was deleted as per the guidelines laid down by the Central 10 Council of Indian Medicine. The case of the petitioner is that Chemistry subject (which he claims to have taught) has been included in the syllabus as „Rash Bhaisaj Kalpana‟ and he has thus been teaching that subject vide Annexure-11. Annexure 11 is a certificate issued on plain paper in the form of testimonial by the Principal of College. It says that petitioner was appointed on the post of Lecturer by the then Managing Committee of the College on 10.1.75. At the time of appointment science subject was taught as part of the G.A.M.S. Course. After some time a new syllabus as prescribed by the Central Medical Council in which Physics and Chemistry subjects were included in „Dravya Gun‟ and „Rash Bhaisaj Kalpana‟ respectively. The petitioner has since been working in Rash Bhaisaj Kalpana Department. The said certificate, it is relevant to mention here, has been procured on 24.2.2000 i.e. during pendency of this case. 7.The screening Committee constituted under Section 6(2) consisted of experts and knowledgeable persons and it was a fact that the same subject has been included in the new syllabus with a different name i.e. Rash Bhaisaj Kalpana this could not have escaped the notice of the committee members. This Court does not sit in appeal over decisions of the expert bodies while exercising jurisdiction under Article 226 of the constitution. The petitioner admittedly was appointed as Science Teacher on the basis of his general qualification of M.Sc. In writ jurisdiction it is not possible to hold that Chemistry and Rash Bhaisaj Kalpana are same subjects or that by virtue of his general qualification he was qualified to teach subject „Rash Bhaisaj Kalpana‟. This is a matter which fell within the realm of the Screening Committee and there is no reason to think that the committee did not take into account this aspect of the matter. 11 8.As regards the case of Mukti Nath Jha, it is true that though his name was included in the category of retrenched employees along with the petitioner and after his initial appointment on the post of Cashier (like petitioner who has been adjusted against the post of Museum Keeper),he has been absorbed against the post of Lecturer but this has been done pursuant to the judgment of this Court in CWJC No. 1103/95. I have gone through the copy of the judgement which has been annexed with the writ petition as Annexure-9. I find, with due respect to the learned Judge, the provisions of Section 6 of the Take Over Act have not been noticed nor the fact that the post of Science Teacher stood abolished in 1989 has been taken into consideration. Thirdly the learned Judge seems to have relied on syllabus prescribed by the Central Council of Indian Medicine published on 31.3.86 and the B.A.M.S. syllabus of the Bihar University, and on the basis of such reliance concluded “Thus, it is clear that Botany is one of the subject of Ayurved degree course (B.A.M.S Course) and the same cannot be treated to be a different subject”. With utmost regard I am unable to reach the same conclusion. In the supplementary counter affidavit respondents have stated that Letters Patent Appeal against the judgement is pending in this Court, though number of the appeal has not been mentioned. Be that as it may, though there is some similarity between the cases of the petitioner and the said Mukti Nath Jha, having regard to the fact that the findings of the learned Judge related to subject Botany and not Chemistry or Rash Bhaisaj Kalpana, which the petitioner has claimed to have been teaching, I do not think the judgement should be treated as precedence for the present case though I regret despite apparent similarity between the two cases I am not able to persuade myself to pass similar order in the case of the petitioner.” 12 The aforesaid finding of the learned Single Judge was also approved in the appeal filed by Rana Ran Vijay Kumar Singh in L.P.A No. 1147 of 2000, where the Judgment of Mukti Nath Jha (supra) was also considered and distinguished by the Division Bench in its judgment dated 22.12.2008 relevant portion whereof reads as follows:- “Lastly, the appellant has contended that a similarly placed person, namely Mukti Nath Jha succeeded in C.W.J.C No. 1103 of 1995. A look at the judgment passed in the said writ petition would not suggest that there was any controversy as regards the basic qualification of Mukti Nath Jha. Mukti Nath Jha had a Master‟s degree in Science. The controversy in the said writ petition was whether the subject Botany, for teaching which subject Mukti Nath Jha had been appointed, is required to be taught in the taken over College, having regard to the change in the syllabus. This Court answered the question raised in the said writ petition by declaring that Botany is also required to be taught as a subject in the changed Syllabus. Therefore, the decision rendered in the said writ petition had and has no bearing in so far as appellant in the present proceeding is concerned. We see, therefore, no reason to interfere with the judgment and order under appeal by which the writ petition filed by the writ petitioner challenging the decision not to continue him as a lecturer of the taken over College was dismissed. The appellant was asked to discharge the duties of the librarian 13 of the taken over College.” In the present case, the petitioner also alike Rana Ran Vijay Kumar Singh had failed to get any relief in his earlier writ petition and had not only accepted the decision of the Government dated 20.5.1997 rejecting his case for absorption on the post of demonstrator due to lack of prescribed qualification but had approached the authorities for his being adjusted in government service on any other post. Moreover when this Court has found that the appointment of the petitioner made by the Governing body of the private College on the post of demonstrator was itself unsustainable, inasmuch as he was allegedly appointed on the non existing post of Demonstrator of science in Ayurvedic Medical College and not in any of its specific department it will have no difficulty in holding that the State Government and its Screening Committee had rightly rejected to absorb the service of the petitioner inasmuch as there is no department known as science Department in an Ayurvedic Medical College. Consequently 14 it also becomes clear that the petitioner did not possess the qualification for the post of Demonstrator, inasmuch as, the Demonstrator even in Ayurvedic Medical College had to invariably work in a particular department. The C.C.I.M has in fact also laid down the norms for appointment of Demonstrators in the respective departments and admittedly the petitioner did not possess such ayurvedic qualification. Therefore, when a decision was taken by the competent authority rejecting his claim for absorption way back in the year 1997 as has been clearly referred to in the impugned order for the purposes of payment of salary, he can not now indirectly challenge such order after ten years. From the reading of the materials on record, it would be clear that the screening committee in its report while considering the case of the petitioner on 18.12.1985 had found him disqualified for absorption on the post of Demonstrator and the State Government accordingly by order dated 20.05.1997 had declared the petitioner unfit for being 15 absorbed in that College. Such order of the State Government was challenged by the petitioner in C.W.J.C. NO.5100 of 1997 and this Court did not interfere either with the recommendation of the screening committee or with the resultant order passed against the petitioner on 20.05.1997. Thus subsequently when the State Government by a separate order dated 12.02.1998 had taken a decision to appoint the petitioner afresh on the post of Museum keeper by only giving him the benefit of past service for notional continuation from 10.01.1985 Solely for the limited purposes of payment of his pension and gratuity on an inferior post of Museum Keeper and the petitioner's another writ application, in C.W.J.C. NO. 11955 of 1999 specifically addressing to the question of deprivation of the payment of salary for the period from 10.01.1985 to 16.02.1998 did not bear any fruitful result this Court would find no error in the consequential impugned order dated 8.7.2006 passed by the Authority in compliance of the order of 16 this Court dated 27.11.2004, inasmuch as all these aforesaid aspect have been fully taken into account while rejecting his claim for payment of arrears of salary in the following terms:- ^^jktdh; Jh ;rhUnz ukjk;.k v’Vkax vk;qosZn egkfo|ky; vLirky] ukFkuxj] Hkkxyiqj dk vf/kxzg.k foHkkxh; jkT;kns”k la[;k&168¼ns0fp0½ fnukad 23-02- 1985 }kjk fnukad 10-01-85 ds izHkko ls vf/kxzg.k fd;k x;k A fcgkj futh fpfdRlk ¼Hkkjrh; fpfdRlk i)fr½ egkfo|ky; ¼xzg.k½ vf/kfu;e&1985 dh /kkjk&6 dh dafMdk&¼2½ ds vkyksd esa fo”ks’kKksa dh dfefV xBu dh xbZ Fkh] ftlds izfrosnu ij foHkkx }kjk lE;ad~ fopkjksijkUr mDr vf/kfu;e dh dafMdk&3 ds vkyksd esa mDr laLFkku ds inkf/kdkfj;ksa @ dfeZ;ksa dks ljdkjh lsok esa lek;ksftr djus dk fu.kZ; fy;k x;k gS A Jh d`’.kkuUn xqIrk dh fu;qfDr mDr laLFkku ds vf/kxzg.k ds iwoZ futh izca/kd }kjk fnukad 06-02-1974 ds izHkko ls izn”kZd ds in ij ch0,l0lh0 ;ksX;rk ds vk/kkj ij dh xbZ Fkh A Jh xqIrk dks dksbZ rdfudh ;ksX;rk th0,0,e0,l0@ch0,0,e0,l0 ugha Fkh A ch0,0,e0,l0 ikB~;dze esa Hkkjrh; fpfdRlk ifj’kn ds }kjk fu/kkZfjr ekin.M ds vuqlkj foKku fo’k; dh i<+kbZ ugha jgus ds dkj.k foKku Lukrd dks izn”kZd in ij inLFkkfir djus dk dksbZ vkSfpR; ugha Fkk QyLo:i Jh xqIrk dks foHkkxh; vf/klwpuk la[;k& 345¼ns0fp0½ fnukad 20-05-97 ds }kjk NaVuhxzLr ?kksf’kr fd;k x;k A Jh xqIrk dh yEch lsok dks ns[krs gq, mDr laLFkku ds vf/kxzg.k dh frfFk 10-01-85 ls isa”ku @ miknku ds fy, oSpkfjd ykHk nsrs gq, inxzg.k dh frfFk ls lek;kstu iwoZd fu;qfDr djus dk ljdkj }kjk fu.kZ; fy;k x;k A rnuqlkj foHkkxh; vkns”k la[;k&120¼ns0fp0½ fnukad 17-02-98 }kjk Jh xqIrk dks E;wft;e dhij ds in ij jktdh; vk;qosZfnd egkfo|ky; vLirky] iVuk esa fu;qfDr dj inLFkkfir fd;k x;k A Jh xqIrk }kjk jktdh; Jh ;rhUnz ukjk;.k v’Vkax vk;qosZn egkfo|ky;] Hkkxyiqj esa izn”kZd ds in ij fd;s x;s dk;Z fnukad 10-01-85 ls fnukad 16-05-98 rd dk;Zjr vof/k dk vUrj osru Hkqxrku ds fy;s ekuuh; mPp U;k;ky;] iVuk esa lekns”k ;kfpdk la[;k&11955@99 nk;j dh x;h A bl ckn esa ekuuh; mPp U;k;ky;] iVuk }kjk fnukad 27-11-04 dks ikfjr vkns”k esa foHkkx dks funsZ”k fn;k x;k fd oknh] pkj lIrkg ds vUnj viuh ekWax ds laca/k esa foHkkx ds le{k vH;kosnu nsaxsa rFkk foHkkx ml ij fof/k laxr fu.kZ; ysxk A 17 mijksDr ds vkyksd esa oknh }kjk foHkkx dks fnukad 31-01-05 dks vH;kosnu izLrqr fd;k x;k] ftl ij ljdkj }kjk lE;~d fopkjksijkUr ik;k x;k fd Jh xqIrk ds ikl Hkkjrh; fpfdRlk ifj’kn ds fu/kkZfjr ekin.M ds vuqlkj izn”kZd ds in ij okafNr ;ksX;rk ugha jgus ds dkj.k mudks mDr in dh dk;Z vof/k dk vUrj osru vuqekU; ugha gS A** This Court does not find any error in such approach of the respondents in rejecting the case of the petitioner for payment of his salary for interregnum period, inasmuch as, the same is strictly in accordance with the terms and conditions of his being offered the post of Museum Keeper by way of alternative employment even when he did not possess the statutory qualification for the post of Demonstrator. As a matter of fact, the respondents were under no obligation to offer the alternative employment to the petitioner on the post of Museum Keeper after they had rejected the claim of the petitioner for his absorption on the post of Demonstrator, on account of his not possessing the statutory qualification laid down by C.C.I.M. The petitioner in fact had already retired from service way back in the year 2004 and had already received the retirement benefits by counting of his 18 services from 10.01.1985, in view of stipulations made in the order of his appointment as Museum keeper dated 17.02.1998 which as noted above despite being challenged by the petitioner was not