IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.8989 of 2007 BIHAR MEDICAL & PUBLIC HEALTH Hostel, Employees Association ( Gope Gut Darbhanga medical College, Laheriasarai Darbhanga through its president , Dee4pak Srivastava, S/o late Satya Narain Pd. Srivastva , Vill- Champur, P.O Dhali --------------Petitioner 1. THE STATE OF BIHAR. 2. The Commissioner –cum- Secretary, health Department, Government of Bihar, Patna. 3. The Director in Chief, health Department, govt. of Bihar, Patna. 4. The Principal, Darbhanga Medical College Hospital, Laheriasaria, Darbhanga. -----------Respondent For the petitioner----Sri Rajendra Prasad Singh Mr. R.K.Sinha For the State ---------Mr. P.K.Verma AAG-11 Mr. Suman Kr. Jha AC to AAG-11 6. 21.04.2011 The petitioner Association is a Registered Association of employees working in inter alia, Medical College Hospital, students hostel. The writ petition is limited to the claims of employees working in the student’s hostel of Darbhanga Medical College, their grievance is that for over two decades they have been fighting for their rights but they have been ignored. Some of their members had come to this Court in C.W.J.C. No. 6442 of 1989 which was disposed of by Justice A.K. Ganguly ( as his lordship then was) by order dated 18the September 1995. In paragraph -6 thereof this is what his lordships held- “ This Court, therefore, disposes of the writ petition by directing the respondent no.1 to treat all these forty eight petitioners with similarly situated employees of the Patna Medical College, were performing similar nature of duty. The 2 respondent no.1 is there directed to place the petitioners in the same scale of pay in which the employees similarly situated are placed in the Patna medical College, also extended the same been filed which are made available to the employees of the Patna Medical College. It may note here in this connection that similar conservations were made by the learned Judges of the Division Bench of this Court in their tender dated 14th August 1984. It is further made close that the respondent no.1 must comply with the direction given to this judgment within a period of three months from the date of production/ receipt of the copy of this judgment.” In some and substance the order was to treat the employees in the hostel of the Darbhanga Medical College, on par with employees of the Patna Medical College, hostel. As usual, nothing was done. A contempt application was thereafter filed being MJC no. 177 of 1996 which was disposed of on 20.8.1999 wherein it noted that on behalf of the State it was stated that the employees of the Darbhanga Medical College, hostel were being treated on par with the employees of the Patna Medical College and upon that statement the contempt application was dismissed, giving liberty to the petitioner to re- agitate the matter by filing fresh writ application, if there are so advised. The writ petitioners still complained that the order in the writ petition is still to be complied with. In order to substantiate the same, they have annexed various correspondences of the Principal of the Darbhanga Medical 3 College, with the State Government of recent time clearly pointing out that the employees in the hostel were being paid from money charged from the students on annual basis the employees had been demanding payment of minimum wages which was not possible because students were charged only Rs. one thousand per year for their fooding and lodging. Principal demanded more Government funds for their payment. These letters are of the year 2005- 2006 some of these letters also noted the order passed by this Court as referred to above and the Principal pointing out to the authorities that these employees want to receive the same treatment that is being given to the employees of Patna Medical College, Hospital. The obvious question falls is what is the status of the employees of the Patna Medical College Hospital for that one does not have to look far because there is a letter of the Principal of the Patna Medical College Hospital, to the Principal of Darbhanga Medical College, which appended as Annexure-8, which clearly states that since 1971 the employees of a male and the female students hostel of PMCH are absorbed and treated as Government employees with all benefits. To these pleadings, first a counter affidavit is filed by the Principal of Darbhanga Medical College. He chooses not to reply to any of the factual assertion. The counter affidavit merely states that in the contempt proceedings it appears that they were dropped on the ground that they were treated similarly to the employees of Patna Medical College, Hospital. Petitioner’s had not annexed the pleadings therein and 4 thus the writ petition must be dismissed. The Court then passed the order directing the respondent State to file specific affidavit with regard to compliance of paragraph-6 of the judgment of Justice A. K. Ganguly ( as his lordship then was). To that under authority of the Principals, the Deputy Director Health Services who is an officer much senior to the Principal has filed an affidavit. That affidavit avoids all possible issues and tries to vaguely cull out a new case. Vague assertions are made that, there are no employees in the hostel. They are all privately engaged by the students. Again no effort is made to convert any of the factual pleadings which are supported by documents in the writ petition. No effort is made to comply with a direction of this court to give specific reply. Mr. Rajendra Prasad Singh, learned senior counsel appearing for the petitioner submits that the respondents being senior responsible officer of the State if they had chosen not to traverse the pleadings of the writ petition the only inference that can be drawn is that they are not in a position to contradict what is being stated in the writ petition. Adverse inference must be drawn as against them on the Principals not traversing the pleadings. In my view, he is correct. Here it may be necessary to note that the petitioners are body of an employee who are raising grievance of student’s hostel employees in Government Medical College. This is the first primary fact that has to be kept in mind. The second more important aspect is that so far as teaching in Medical Colleges 5 are concerned they are full time residential courses, a fact not in dispute. It is the responsibility and the duty of the Medical College to provide for adequate hostel facilities which would include fooding and lodging for medical students. State cannot escape from this responsibility. The hostel may be a Government premises or if not available are located in private premises but nevertheless they are to be provided and maintained by Medical College. If hostel, fooding and lodging facilities have to be mandatorily provided by the Medical College can it be imagined the State or the College administration would have no responsibility to provide sufficient employees therein for the said purpose. It may be because of insensitivity of the State officials, in this State, that they abdicated their functions in most of the places, forcing the students to fight for their own survival which they were not expected. They would only be discharging the duty of the State. As noted above communications from the Principal of the Medical College clearly shows that there are large number of employees in the Medical College, hostel to be more specific. A reference to letter dated 10.6.2005 ( Annexure 3) would show that the Principal of the Darbhanga Medical College, was demanding about Rs 18.50 lakhs per year towards payment of hostel employees and now the same very principle through counter affidavit filed under his authority makes all denial of all these without denying or contradicting or explaining the communication aforesaid. It is patent dishonesty on part of the Government. Thus, having found that State is under 6 obligation to provide to maintain and provide hostel, facility for all the Medical students, it must employ people for the services required in the hostel. Can the state, then exploit the situation by taking the plea that post has not been sanctioned for hostel employees and as such nothing can be done .Article 23 and Article 43 of the Constitution reads as follows: “23. prohibition of traffic in human beings and forced labour-(1) Traffic in human beings and beggar and other similar forms of forced labour are prohibited and any contravention of this provision shall be an offence punishable in accordance with law. (2) Nothing in this article shall prevent the State from imposing compulsory service for public purposes, and in imposing such service the state shall not make any discrimination on grounds only of religion, race caste or class or any of them. 43. Living wage, etc, for workers- The State shall endeavour to secure, by suitable legislation or economic organization or in any other way, to all workers, agricultural, industrial or otherwise, work, a living wage, conditions of work ensuring a decent standard of life and full enjoyment of leisure and social and cultural opportunities and, in particular, the State shall endeavour to promote cottage industries on an individual or co- operative basis in rural areas.” Then I may notice Article 38 and 39 of the directive principles of the State policy. Thus seen can it be said, that State is under no obligation, no duty to provide for the employees in students hostel. The answer has to be no. The communication and the documents clearly disclose that there are employees in the hostel and students are charged for fooding and lodging by 7 the State. There is yet another matter. As has been discussed in the Full Bench Judgment of this Court in the Case of Braj Kishore Singh & Others Vs. The State of Bihar & Others reported in 1997 (1) PLJR 509 can there be a hostel which is obligatory on the State to provide without staff. It is unimaginable. Therefore, employees in the hostel are to be presumed. Staffing pattern for University and teaching institution is already there which clearly provides the number of employees for hostels. This is known as staffing pattern. The Full Bench thus held that once the staffing pattern is there then initially to the extent as provided in the staffing pattern the post would be deemed to be sanctioned. Thus the plea of the State that there is no sanctioned post of any employees of any hostel which were bound to be there cannot be accepted. Once the situation comes to this then there is deemed sanction as per staffing pattern. The staff being there it obviously follows that Government cannot escape its responsibility in providing for the Staff. That is what was done for students hostels at the Patna Medical College, Hospital and Krishna Memorial College Hospital, Muzaffarpur. Why is Darbhanga Medical College. Hospital being given a step motherly treatment? In spite of positive direction and in spite of repeated adjournment State has chosen to be silent. As the learned Additional Advocate General- V would submit that regularizing large number of employees needs financial commitment and decisions at the highest level. It 8 is difficult to make a statement. The stand is understandable but not excusable. Darbhanga Medical College has been an existence for almost three decades if not more State has exploited the situation much against constitutional intendment. It is the obligation of the State to find means of finance to discharge its constitutional and statutory obligation. On the plea that finance is difficult to get by, they cannot shirk their statutory responsibility. If they cannot run the hostel then they must dispense with the condition of the course being compulsorily residential course but they can never do this for this would immediately lead to de-recognition of the Medical College by the Medical Council of India. State must find finance and not exploit the situation of excess man powers which is contra constitutional obligation of the State. Thus in view of the aforesaid, I direct that within one month from today State would identify the employees working in the Darbhanga Medical College students hostel which should not be difficult inasmuch as Annexure-3 to the writ petition being the communication of the Principal identifies 82 employees but it would be open to the State to work this out but within time being granted in consultation with the Principal of the College. Thereafter they would be obliged to regularize the services of all those employees with immediate effect giving continuity of service from the date they were initially appointed but with no extra remuneration which were paid apart from what wages they are entitled to for their work. These exercises must 9 be completed within two months from the date of finalization of the list of employees. The Director in Chief, Health Service, Government of Bihar would be responsible for implementation of the orders of this Court in letter and spirit at the earliest as indicated above. With these observations this writ petition is disposed of. Namita ( Navaniti Prasad Singh, J.)