IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.2799 of 2007 MUKTI NATH JHA, Son of late Medni Kant Jha, Resident of village Fulwaria, P.S. Akbar Nagar, District Bhagalpur. Versus 1. THE STATE OF BIHAR, through the Chief Secretary, Government of Bihar, Old Secretariat, Patna. 2. The Secretary, Department of Health, Medical Education and Family Welfare, Government of Bihar, Pana. 3. The Deputy Secretary, Department of Health, Medical Education and Family Welfare, Government of Bihar, Patna. 4. The Additional Secretary, Department of Health, Medical Education and Family Welfare, Government of Bihar, Patna. 5. The Director, Deshi Chikitsa, Department of Health, Medical Education, Government of Bihar, Patna. 6. Bihar Public Service commission, through its Secretary, 15, Jawahar Lal Nehru Marg, Bailey Road, Patna. 7. The Chairman, Bihar Public Service Commission, 15 Jawahar Lal Nehru Marg, Bailey Road, Patna. 8. The Assistant Secretary Cum Administrative Officer, Bihar Public Service Commission, 15 Jawahar Lal Nehru Marg, Bailey Road, Patna. ----------- For the Petitioner : Mr. Purushotam Kumar Jha, Advocate For the State : A.A.G.-1 PRESENT HON'BLE MR. JUSTICE MIHIR KUMAR JHA ORDER (17.09.2010) Mihir Kumar Jha, J. Heard Mr. Purushotam Kumar Jha, learned counsel for the petitioner and learned counsel for the State. In this writ application prayer of the petitioner reads as follows:- “(i)Issuance of an order, direction, writ or an appropriate declaration that in terms with provisions as contained in Bihar Gazetted Officer Adhoc Appointment Regularization Act, 1987, the respondents concerned of the Health Department are under obligation to regularize the services of the petitioner with effect from 1.9.1975 i.e. from the date of his initial appointment in the Yatindra Narayan Astang Ayurved College, Champanagar, Nathnagar, Bhagalpur ( in short “the College”) with all consequential benefits. (ii)Issuance of an order, direction or a writ in the nature of mandamus commanding the respondent authorities to treat the petitioner in the 2 service of the college/department from the date of his initial appointment as lecturer in the college i.e. on 2.9.1975 with all consequential benefits.” Mr. Jha in support of the aforementioned prayer has submitted that the petitioner’s appointment was made on the post of Lecturer on 27.11.1975 in Yatindra Narayan Astang Ayurved College, Champanagar, Nathnagar, Bhagalpur at a point of time when it was a private Ayurvedic College and in fact the petitioner also earned his promotion under order of the governing body on the post of Reader on 22.4.1981 w.e.f. 1.3.1981 and it is only thereafter that the College was taken over by the State Government by notification dated 21.1.1985 w.e.f. 10.1.1985. He has also submitted that there was dispute with regard to take over of services of the petitioner and other teaching employee of the College and ultimately while services of other teachers were taken over on 20.5.1997, the services of the petitioner was taken over by order dated 20.4.1999 in terms of judgment of this Court dated 21st August, 1997 in C.W.J.C. No. 1103 of 1995 w.e.f. 10.1.1985 on the post in which he was working in the private College. He has further submitted that the case of regularization of the petitioner was placed before the Bihar Public Service Commission in the year 2001 and the Commission had also issued interview call letter to the petitioner on 31.8.2004, but no decision as with regard to regularization of services of the petitioner could be taken till the petitioner had retired from service on 31st May, 2007. Consequently, he would now made a prayer that the benefit of 3 regularization of his services should be notified at least from the date he was appointed initially by the private management, i.e. 27.11.1975 as a Lecturer in the College and in this context he has relied upon the provisions of 1987 (hereinafter referred to as the 1987 Act). Counsel for the State who has filed counter affidavit submits that the provisions of the aforementioned 1987 Act will not be applicable in the case of the petitioner whose services were taken over from the private management, inasmuch as, the expression ad-hoc appointment has been defined under section 2 to mean the appointment made by the State Government by way of direct recruitment and the petitioner’s service when it was taken over under the orders of the State Government on 20.4.1999, it cannot be deemed to be ad-hoc appointment in terms of the aforementioned 1987 Act. He has further submitted that he has got no instruction as with regard to the subsequent steps taken by the Commission after the petitioner was allowed to appear in the interview. Counsel for the Bihar Public Service Commission having not filed any counter affidavit is not in a position to assist this Court as with regard to the ultimate decision taken by the Commission after interview of the petitioner was held for the purpose of regularization in the year, 2004. In the opinion of this Court, while the provisions of 4 1987 Act cannot be made applicable for the purposes of regularization of services of the petitioner the proposal as with regard to regularization of the petitioner in the government service has to be given finality for the purposes of reckoning of his all due entitlement, inasmuch as, even in the Bihar Pension Rules the pension is payable to a person holding the substantive post in regular service. Additionally, this Court would find that when the respondents of the Health Department had themselves undertaken the exercise of regularization of services of the petitioner through the Bihar Public Service Commission as would be evident from reading of letter of the Health Department dated 12.1.2001 addressed to the Commission, the same ought to have been given finality. In this context this Court would find that the provisions of 1987 Act, however, cannot be now made applicable for any persons for two reasons. First of all charging section, section 3 provides that all such persons who were appointed by way of direct recruitment or on ad-hoc basis till 30th June, 1986 and were continuing on ad-hoc basis would be only regularized irrespective of the consultation with the Commission under Article 320 (3) of the Constitution of India. The expression “ ” (Ad-hoc appointment) has been defined under section 2 (ii) which reads as follows:- “ ” ” 5 Admittedly, the appointment of the petitioner was never made by the State Government by way of direct recruitment nor his services as taken over of employees of Ayurvedic Colleges in terms of provisions of Road and Hospitalisation Act had ever contemplated to be an ad-hoc appointment in terms of section 2 (ii) of the Act. Once this aspect becomes clear that the petitioner was not directly appointed by way of ad-hoc appointment, muchless, before 30th June, 1986 that would not mean that he would not be covered by the provisions of section 3 of the Act on the basis that a take over notification was issued on 20.4.1999 in his case giving it retrospective effect i.e. 10.1.1985. The petitioner is not a gazetted officer within the meaning of Bihar Service Code, but then even if the petitioner could be treated to be the gazetted officer, not all the gazetted officers are entitled for the benefit of 1987 Act unless they also qualify by way of ad-hoc appointment as is contemplated under section 3 of the Act, reading as follows:- In that view of the matter, this Court would find it 6 difficult to issue a writ of mandamus for regularization of services of the petitioner from the date of his initial appointment by the private management. In this regard the provisions of section 3 of the Bihar Roads and Hospitalisation Act, 1947 makes it clear that the liability of the State Government as with regard to take over of the employee would only flow from the date it is taken over i.e. 10.1.1985 inasmuch as Section 3 of the Bihar Road and Hospitalisation Act reads as follows:- "3. Vesting of roads and hospitals in the Government - The State Government may, by notification, direct that, with effect from such date as may be specified therein and subject to the provisions of section 6 and such conditions and exceptions as may be prescribed, any hospital or road which is vested in, or is under the control or administration of, the Commissioners of any Municipality, any District Board or other Local authority or any Committee or Joint Committee or other body thereof constituted under the Bihar and Orissa Local Self-Government Act of 1885, the Bihar and Orissa Municipal Act, 1922, or any other law whereby the local authority was constituted or any person or trustee shall notwithstanding anything contained in any law for the time being in force, be vested in the State Government. Provided that before issuing such notification, the State Government shall give such notice as it considers reasonable of its intention to issue notification and shall consider any objections or suggestions that may be put forward by the local authority concerned or other interested persons. Provided further that nothing in this sub-section shall be deemed to apply to any hospital, which is vested in, or is under the control of administration of any religious or philanthropic mission. (2) Subject as aforesaid, all rights and liabilities of the Commissioners of the Municipality, the District Board or other local authority or of any Committee Joint Committee, body, persons or trustee referred to in subsection(i) in, appertaining to, or arising out of, the property covered by the notification issues under that sub-section shall, with effect from the date mentioned in the notification pass and be transferred to the Government and the State Government shall from 7 such date be in charge of the administration, control maintenance and management of the said property." The aforesaid provisions under Bihar Roads and Hospitalisation Act does not contemplate retrospective take over of service even before the date the hospital was taken over by the State Government. In that view of the matter, once petitioner’s services were taken over w.e.f. 10.1.1985 as it is clear from the notification dated 20.4.1999, the petitioner cannot claim any benefit w.e.f. 7.11.1975 for the period he was an employee of a private institution. This aspect of the matter has also been considered by the Apex Court in the case of State of Bihar Vs. S.A. Hassan and another reported in 2002(2) PLJR 295 as with regard to take over medical college and hospital wherein it was held as follows:- "7. Sub-section (1) of Section 6 of the Act provides in clear and explicit terms that from the date of the notification issued under sub-section(1) all members of the staff employee in the college shall cease to be employees of the college body. The effect of this provision is that the respondents ceased to be employees of the erstwhile management of the college. At the same time, the proviso to the said sub section(1) declares that the staff employed in the college shall continue to serve in the college on an ad hoc basis till a decision under sub-sections (3) and (4) is taken by the State Government. Therefore, both the respondents continued to serve the college on an ad hoc basis and as a result, whatever the contract of employment which the employees had with the erstwhile Management, came to an end. Thus, from the date of taking over the college, the respondents ceased to be employees of the erstwhile management and they became employees of the State Government on an ad hoc basis. This ad hoc appointment was subsequently regularized and, therefore, they became permanent employees of the State Government. As on the date of taking over the college, the terms of appointment between the erstwhile management and the 8 respondents ceased to exist and they be came employees of the State Government on an a hoc basis, they cannot claim any benefit for the service rendered by them in the college while it was under private management, there being no specific provision to count the previous serviced to any extent. 8. Mr. Raju Ramchandran, learned senior counsel appearing for the respondents has submitted that the private management was liable to pay service benefits to the respondents such as pension etc. and as the college was taken over by the State Government, this liability has passed on to the State Government. In this connection learned senior counsel has drawn our attention to sub-section(3) of Section 3 of the Act. The said sub-section reads as follows:- "3. (3) All the liabilities and obligations of the College under any agreement or contract entered into bonafide before the date of taking over shall devolve and shall be deemed to have devolved on the State Government." 9. Sub-Section (1) of Section 3 of the Act provides for the taking over of a private medical colleges by issuing a notification and according to sub-section(2) of the said section whatever assets and properties the college had, these would vest in the State Government and sub-section (3) provides for devolution of all the liabilities and obligations of the College on the State Government. This sub-section (3) would operate where the assets of the college were taken over by the State Government in terms of sub-section (1). According to the learned senior counsel for the respondents, these liabilities would also include pension and other pensionary liabilities of the respondents while they were employees of the college before it was taken over. But there is no material on record to show that the erstwhile management was liable for any pension or pensionary liabilities in relation to its employees. Moreover, Section 6 which deals specifically with the subject of determination of terms and conditions of the teaching staff and other employees of the college, but it does not mention anything about giving weightage of past service for any purpose. There is also no order of State Government in this regard in terms of sub-section(3) of Section 6. We, therefore, do not find any force in the contention of Mr. Raju Ramchandran learned Senior counsel for the respondents. 10. Learned senior counsel for the respondents has submitted that the High Court by various decisions has settled the position that the employees are entitled to get their pension and other retrial benefits after 9 counting their past service in the College prior to its taking over by the Government and therefore on the principle of stare decisis this court may not reinterpret the Act and upset the settled position. This contention has no force inasmuch as from the judgments made available to us and the judgment of the learned Single Judge we find that there are conflicting decisions of the High Court as stated earlier and, therefore, the present appeal has been filed. 11. Learned senior counsel for the respondents has submitted that as the Act is completely silent on the question of counting the previous service towards pension and in the absence of any specific provisions, there is a legitimate expectation of respondents to get their pension and other retrial benefits after counting the past prior of service in the college. There is neither factual nor legal basis for such principle. The legislature in explicit and unambiguous terms has laid down in Section 6 of the Act that after taking over of the college the employees shall cease to be employees of the erstwhile management and they shall continue as ad hoc employees of the Government till such time as they are absorbed in accordance with the procedure laid down in the Act. Therefore, this contention has no force. 12. Learned Counsel for the appellant has drawn our attention to the Bihar Pension Rules more particularly Rule 58 and has submitted that a government employees can claim pension only if he qualifies the conditions laid down in the rule. We may extract below the relevant portions of Rule 58 of the said Rules. "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. 13. Rule 58 is clear that a Government servant does not qualify for pension unless he conforms to three conditions viz. (1) his service must be under Government, (2) the employment must be substantive and permanent, and(3) service must be paid by the Government. In view of this Rule the respondents cannot claim the period of their service before the college was taken over as they were neither under the employment of the Government nor their salaries were paid by the Government. Under the specific Rule 58 the past service rendered by the respondent in the 10 college while it was under the private management cannot be counted. 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 benefit 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." (underlining for emphasis) At this stage Mr. Jha has however placed reliance on an order of the Division Bench dated 27.7.2010 in L.P.A. No.146 of 2010 Girija Devi Vs. The State of Bihar & Ors. to submit that since the retirement benefit of Girija Devi wife of Late Onkar Nath Pandey, a teaching employee of the same College was allowed by taking into account the previous service rendered by her husband, this Court should treat the said direction to be the ratio of the judgment of the Division Bench of this Court even for regularization of services of the persons including that of the petitioner whose services were taken over by the government in terms of Bihar Roads and Hospitalisation Act. In the opinion of this Court, in the said order of the division bench all that has held is that since the government had made payment of retirement benefit to number of employees of the 11 taken over institutions by considering their past services, the direction given by the Apex Court in the case of S.A. Hassan (supra) could not come in the way of a person for the purposes of claiming retirement benefit. In this regard it has to be kept in mind that the Apex Court in the case of S.A. Hassan (supra) had in fact, gone to hold that payment of retirement benefit for the previous services were not to be extended to all of the employees of the taken over college and in that context the operative portion of the order of the Apex Court had itself carved out an exception that it would "apply to the cases of employees who retired on superannuation after the date of this judgment." Admittedly the petitioner had retired from service in 2009 and therefore in view of judgment of Apex Court in S.A. Hassan case (supra) the past services of rendered by the petitioner in private management from 1.9.1975 to 9.1.1985 cannot be counted and/or taken into consideration for retrospective regularization of his service. Infact the issue which was dealt with and decided by the Division Bench in the case of Girija Devi also was not a case of regularization of services. For such regularization of service, in fact provisions of section 3 of the Bihar Roads and Hospitalization Act, 1947 will hold the field as per the terms and conditions of take over including regularization of service of the taken over employees.. As noted above, the issue for regularization of services of the petitioner from any possible date on which his other counter parts of the same college has been regularized or are being 12 considered for regularization has to be given finality in view of recommendation made by the Government to the Commission in the year 2001. This Court, therefore, would only direct the respondents to consider and pass a final order as with regard to regularization of services of the petitioner from the due date which in no event will be before 10.1.1985. With the aforementioned observations/directions this application is disposed of. ( Mihir Kumar Jha, J.) Patna High Court Dated the 17th September 2010 N.A.F.R./Abhay Kumar