IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No. 2016 of 2009 DR. KAMESHWAR SINGH. SON OF LATE DEEP NARAYAN SINGH, RESIDENT OF ANAND VIHAR COLONY, RUPASPURA, P.S. – RUPASPURA, DISTRICT-PATNA ……………. PETITIONER VERSUS 1. THE STATE OF BIHAR THROUGH COMMISSIONER-CUM- SECRETARY, DEPARTMENT OF HEALTH AND FAMILY WELFARE, VIKASH BHAWAN, NEW SECRETARIAT, PATNA 2. THE COMMISSIONER-CUM-SECRETARY, DEPARTMENT OF HEALTH AND FAMILY WELFARE, VIKASH BHAWAN, NEW SECRETARIAT, PATNA 3. DIRECTOR (INDIGENOUS MEDICINE), DEPARTMENT OF HEALTH, MEDICAL EDUCATION AND FAMILY WELFARE, GOVERNMENT OF BIHAR, PATNA 4. DR. RAMJEE SINGH, SECRETARY OF GOVERNING BODY, BIHAR HOMEOPATHIC MEDICAL COLLEGE AND HOSPITAL, GOLA ROAD, PATNA, RESIDENT OF ROAD NO. -5, ASHOKNAGAR, P.S.-KANKARBAGH, PATNA-20 5. B. R. AMBEDKAR UNIVERSITY, MUZAFFARPUR THROUGH ITS REGISTRAR 6. BINOD KUMAR SINHA, SON OF SIDHESWAR PRASAD SINGH, RESIDENT OF E.S.I. COLONY, AMBEDKAR PATHA, BAILEY ROAD, PATNA-800 014 AT PRESENT FUNCTIONING AS PRINCIPAL IN-CHARGE OF BIHAR HOMEOPATHIC MEDICAL COLLEGE AND HOSPITAL, GOLA ROAD, PATNA 7. THE UNION OF INDIA, MINISTRY OF HEALTH AND FAMILY WELFARE DEPARTMENT OF AYOURVEDA, YOGA & NATUROPATHY, UNANI, SIDDHA & HOMEOPATHY (AYUSH) ……………….. RESPONDENTS ----------- 09. 08.08.2011 Heard learned Counsel for the petitioner and the State. Petitioner was a Principal of Bihar Homeopathic Medical College and Hospital, Gola Road, Patna. He was put under suspension by the Secretary of the governing body of the College, Respondent No. 4 by Order dated 06.09.2007 in contemplation of a Departmental Proceeding and finally has been dismissed by awarding punishment in the Departmental Proceeding, vide order 2 dated 01.06.2009. Writ Application had initially been filed by the petitioner, for quashing the suspension order dated 06.09.2007 (Annexure – 9). Consequential order dated 06.09.2007 (Annexure -10), (both issued by Respondent No. 4) and for quashing of notification dated 03.02.1994 (Annexure – 1), whereby the Commissioner- cum-Secretary, Department of Health and Family Welfare, State of Bihar, Patna had constituted a governing body for the College, in exercise of its power under section 8 of Bihar Homeopathic Medical Education Institution (Regulation and Control) Act, 1987 (hereinafter referred to as the “Act” for short) and thus appointed Respondent No. 4 as Secretary of the said governing body. During the pendency of the Writ Application, the Departmental Proceeding initiated against the petitioner was concluded ex-parte and punishment of dismissal from service was awarded to the petitioner. I. A. No. 3938 of 2009 was filed by the petitioner for amending the prayer and for additional relief by way of quashing the order dated 01.06.2009 passed by Respondent No. 4, dismissing the petitioner from his service. The orders of suspension and dismissal have been challenged by the petitioner on the ground 3 that these orders have been passed by an incompetent person in terms of Section 7 of the Act. Section 7 of the “Act” enumerates that all private colleges, institutions, which imparts education for degree diploma in Homeopathy or prepare students for appearing for such examinations, will be guided by the provisions under this “Act”, till the date such colleges, institutions are permanently affiliated to any of the University in Bihar. Regulations under this Act will also be applicable in case of such institutions, colleges, whose present affiliation from any University has come to an end as well as which has applied for extension of their temporary affiliation. Section 8 of this Act vests the State Government with a power to constitute governing body for such institutions and private Colleges, which are imparting education in Homeopathy discipline. The petitioner has also challenged the vires of section 8 by filing C.W.J.C. No. 7539 of 2007, which is still pending, as such the notification dated 03.02.1994 whereby the State of Bihar has constituted a governing body for the College is not being pressed by the petitioner. In case section 8 of the Act is declared ultra vires, the constitution of governing body by the State will automatically become illegal and non-existent. 4 Petitioner has finally challenged only the order of suspension and the order of dismissal from service. The Bihar Homeopath Medical College and Hospital of which the petitioner was appointed as Principal, was established in the year 1964. Initially, the Bihar State Board of Homeopathic Medicine accorded recognition to the College in terms of the provisions contained in Bihar Development of Homeopathic System of Medicine Act, 1953 and thereafter in terms of section 36-A, the Bihar University, now known as B. R. Ambedkar University, Muzaffarpur granted permanent affiliation for the session 199-2000 onwards to the College vide order dated 14.03.2002. The University thereafter started conducting examination of the students of the College and institution started imparting education in Homeopathic System of Medicine. Prior to affiliation to the College by B. R. Ambedkar University, Muzaffarpur, the State Government, in terms of section 8 of the Act, constituted a governing body for the College, as section 8 vests the State Government with such power. The Department of Health, Medicine, Medical Education and Welfare vide notification no. 16/M-169/93/30(De,Chi), dated 03.02.1994 issued under the signature of Deputy Secretary to the 5 Government, constituted the governing body of a College, in which there were as many as 11 members. Dr. Ramjee Singh (Respondent No. 4) was nominated as Secretary of the governing body, which was continuing, even after the college got permanently affiliated to B.R.A. Bihar University. Students and teachers of the College made complaints against the petitioner, Principal of the college, regarding financial irregularities, omission and commission and lack of sincerity in discharge of his duties. Receiving complaints, the Central Council of Homeopathy inspected the College on 25.09.2006 and found that College was not functioning properly and fulfilling the minimum standards prescribed under the regulations. The Secretary of Government of India (Department of Ayush) sent a letter to the Secretary (Health) Department of Health and Family Welfare, Government of Bihar, Patna to start de-recognitiion proceeding against the Bihar Homeopathic Medical College, Patna under the proviions of section 19 of HCC Act, 1973. Secretary to the Government of India also directed to migrate already enrolled students of this college to other recognized Homeopathic Colleges and the College in question was restrained from admitting students to BHMC Course from the next academic 6 session 2007-08. Receiving several complaints from the Teachers and non-teaching staff of the College, a meeting was held in the office of Director, Indegenous Medicines, which was also attended by the Secretary of the Managing Committee of the College. An Enquiry Committee was constituted by the Secretary of the Managing Committee (Respondent No. 4), which conducted enquiry into the complaints and a report was submitted on 20th of June, 2007, allegation against the Principal prima facie finding to be true. On the basis of report of the Enquiry Committee, Respondent No. 4, issued an order whereby the petitioner was put under suspension in contemplation of the Departmental Proceeding. The article of charges were framed and served upon the petitioner, but he refused to receive it. The article of charges were thereafter published in the Hindi Daily Newspaper for providing knowledge to the petitioner regarding Memo of Charge framed against him. Departmental Proceeding was conducted by the Conducting Officer, but the petitioner did not participate in the Departmental Proceeding. Lastly the Departmental Proceeding was concluded ex-parte and punishment of dismissal from service has been awarded to the petitioner. 7 The submission made by the petitioner’s counsel is that the suspension order as well as the dismissal order have been passed by an incompetent person, like Secretary of the Managing Committee as such both these orders are illegal, without jurisdiction and fit to be quashed. There is no dispute, that when the Managing Committee was constituted by the State Government in exercise of powers vested in it under section 8 of the Act, the College did not have any permanent affiliation as provided under section 7 of the Act. Managing Committee had been constituted in the year 1994 and the permanent affiliation was granted by the B. R. Ambedkar University, Muzaffarpur to the College vide Order dated 14.03.2002 for the session 1999-2000 onwards. The private Homeopathic Medical College, thereafter, could have independently constituted its Managing Committee, but the affairs of the College continued to be managed by the same Managing Committee, earlier constituted by the State Government in the year 1994. Since, no steps were taken for constitution of new Managing Committee by the college, presumption will be that despite permanent affiliation, the College and its authorities adopted and approved 8 same Managing Committee, which had been constituted under section 8 of the Act by the State Government. Since this Managing Committee was to managing the affairs of the college, suspension order had also been issued against the petitioner by Respondent No. 4 on 06.09.2007. The constitution of Managing Committee had not been challenged either by the petitioner or anyone connected with the affairs of the College and decisions were being taken by the same Managing Committee. Presumption will be that it was a Managing Committee duly adopted by the management of the college, even after being permanently affiliated to the B.R.A. Bihar University. Simply because the suspension order was issued against the petitioner in the year 2007, the competence of the Secretary of the Managing Committee and the constitution of the Managing Committee could not have been challenged by the petitioner, as earlier it had never been challenged. The stand of the State Government in its Counter Affidavit is that the State Government is hardly left with any authority in the matters of establishment or administration of a private Homeopathy College, after the Parliament has made law under entries 64 and 66 to the list I of VII Schedule for granting approval for 9 establishment of the Homeopathy College. The Homeopathy Central Council Act, 1973 has been amended in 2002. Subsequent to that on the recommendation of the Central Council, Central Government permits establishment of a College and the State Government only endorses it in the schedule of the recognized institutions. However, if functioning of any private Homeopathy College is inconsistent with the standards prescribed by the Central Council, the State Government, taking approval of the Central Government can always approach the Central Council for taking appropriate action against such Homeopathy Colleges. Bihar Homeopathy Medical Education Institute (Regulation and Control) Act, 1987, for all practical purposes has become redundant after coming into force of Central Council (Amendment) Act, 2002. Counter Affidavit has also been filed on behalf of Union of India, Ministry of Health and Family Welfare, Department of Ayurveda, Yoga & Naturopathy, Unani, Siddha & Homeopath (Ayush). In this Counter Affidavit, it has been stated that the matters of appointment / suspension / dismissal of a teaching faculty in private or State Government aided Homeopathic Medical Colleges does not come under the purview of the Central 10 Government. The Central Council of Homeopathy, through its letter no. R 15014/01/2007-E.P. of March, 2007 has sought for comments from the State Government for initiating a de-recognition proceeding against the Bihar Homeopathic Medical College, as required under section 19 of the HCC Act, 1973. The College is debarred from taking admission of the students for BHMC course from the academic session 2007-08, but so far de-recognition process is concerned, has not reached its finality, as the State Government has not notified the de-recognition in the Official Gazette. The dismissal order has also been challenged by the petitioner only on solitary ground that it has been passed in a departmental proceeding initiated by the order of an incompetent authority, i.e., Secretary of the Governing Body of the College. Once the College got permanently affiliated to B.R.A. Bihar University, any order passed, thereafter, by the Governing body is nullity, inoperative and not binding on the petitioner. In this background, petitioner has challenged the impugned order dated 1st June, 2009, dismissing him from the post of Principal of the College, as Section 7 of the 1971 Act bars application of the “Act” to a College, having 11 permanent affiliation. Section 8 of the Act has become inapplicable to the College. So consequential order, dated 1st of June, 2009 is void, ab initio. The constitution of the Managing Committee, and competence of Respondent No. 4, will have to be considered, in this background that after affiliation of the college to B. R. Ambedkar University, Muzaffarpur, the College continued with the same Managing Committee. It was a Committee for all practical purposes, adopted by the College, after its affiliation and it was not a Committee, constituted by the State Government. The Secretary of the Committee, in this view of the matter, had competence for issuing order of suspension and for initiating a Departmental Proceeding. Since, this Managing Committee was looking after the day to day management of the College and it had not been replaced by constituting another Committee, presumption will be that the Committee in question was validly adopted by the College and thus competent to look after the day to day management of the College. Petitioner was given notice to participate in the Departmental Proceeding. Charge report was duly communicated to him. Despite this fact, he did not chose to participate in the Departmental Proceeding, as such the finding of the 12 Conducting Officer as well as the final order of punishment, passed by the Respondent No. 4 can not be challenged on the ground that it has been passed by an incompetent person. I do not find any merit in this Writ Application. It is, accordingly, dismissed. SKM (Mridula Mishra, J.)