Letters Patent Appeal No.378 OF 2005 GANGA PRASAD PANDEY & ORS. ----------(Appellants) Versus THE STATE OF BIHAR & ORS. ------------(Respondents) -with- LPA No.381 OF 2005 SRI KRISHNA PANDEY & ORS. -------------------(Appellants) Versus THE STATE OF BIHAR & ORS. -----------------(Respondents) -with- LPA No.390 OF 2005 DR.VIJOY SHANKAR PANDEY & ORS. --------(Appellants) Versus THE STATE OF BIHAR & ORS. -----------------(Respondents) -with- LPA No.391 OF 2005 SHAMBHU NATH CHOUBEY & ANR. ----------(Appellants) Versus THE STATE OF BIHAR & ORS. -----------(Respondents) -with- LPA No.400 OF 2005 DR.SATYADEO PANDEY & ORS. --------------(Appellants) Versus THE STATE OF BIHAR & ORS. ------------(Respondents) -with- LPA No.1254 OF 2005 DR.DHANJEE CHAUBEY & ORS. --------------(Appellants) Versus THE STATE OF BIHAR & ORS. ----------(Respondents) ------------- For the Appellants : Mr. Chittaranjan Sinha, Sr. Adv. (in LPA No. 390,391 & : Mr. Ambar Nath Banerjee. 254 of 2005) For the Appellants : Mr. P.N. Shahi, Mr. Sanjay Pandey, (in LPA No. 400 & 378/05) Mr. Ritesh Kumar & Nishant Choudhary. For the Appellants : Mr. Ratnesh Kr. Singh. (in LPA No. 381 of 2005) For the S t a t e : Mr. A. Chongdar, JC to AAG-2 Mr. Himanshu Kr. Akela, JC to GA 5 & Mr. S.S. Mishra, JC to GA 5. 2 P R E S E N T THE HON'BLE MR. JUSTICE BARIN GHOSH AND THE HON'BLE MR. JUSTICE C.M. PRASAD J U D G M E N T Barin Ghosh & C.M. Prasad, J.J. Heard learned counsel for the parties. These appeals are against a common Judgment and Order passed by a learned Single Judge, while dealing with twelve writ petitions, filed by a large number of writ petitioners. The appellants in these appeals are some of the writ petitioners, who filed those writ petitions. Before we addressed ourselves to the arguments advanced by or on behalf of the appellants, we feel it would be appropriate to set down a few admitted facts. Those are:- Sri Dhanwasntri Aurvedic College, Buxar was established in the year 1972 in the private sector. The College obtained affiliation from Bihar University, Muzafferpur on 13th November, 1975. The College was taken over by the Government under the Bihar Private Medical (Indian System of Medicine) College (Taking Over) Act, 1985 initially with effect from 1st March, 1983 and subsequently, with effect 3 from 6th July, 1986. In terms of sub section (1) of Section 6 of the Act, the employees of the College ceased to be employees of the College upon its takeover, but by reason of proviso thereto became entitle to continue to serve the College on ad hoc basis; Sub section (2) of Section 6 of the Act authorized the Government to constitute one or more Committees for the purpose of ascertaining whether appointment, promotion or confirmation of the teaching staff of the College was made in accordance with the Act, statute or regulation of the University concerned and in keeping with the guidelines laid down by the Medical Council of India on the basis of bio-datas of such members of the teaching staff of the College; Sub section (3) of Section 6 of the Act gave an option to the State Government either to absorb a teaching staff of the College in the Government service or to terminate his service or to allow him to continue on ad hoc basis for a fixed term on contract, on receipt of the report of the Committee or Committees; 4 Sub section (4) of Section 6 authorized the Government to similarly determine the terms of appointment and other conditions 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 tusk and in relation thereto provisions of Sub section (2) and Sub section (3) of Section 6 were to apply mutatis mutandis. The Government appointed a Committee and the said Committee submitted a report. The report was accepted and accordingly, 103 persons, said to be employees of the College, were absorbed in the Government service. Subsequently, another Committee was constituted and upon consideration of a report of such Committee, 39 more persons, said to be employees of the College, were absorbed in the Government service. While those 103 and 39 persons were dealt with in such manner, many other persons by filing many other writ petitions complained before this Court that though they are allegedly employees of the College, the Committees constituted by the Government have not considered their cases. As a result, this Court passed various directions in various writ petitions directing cases of 5 petitioners in those writ petitions be considered by Committees to be constituted by the Government. Ultimately, in order to give effect to the various directions given by this Court in the writ petitions referred to above, the Government on 7th August, 1998 resolved to constitute a Committee to scrutinize the cases of each person, who claimed to have been appointed by the College prior to 1st June, 1986, including those persons, who by that time had been absorbed. This decision of the Government was not assailed by the persons, who had been by that time absorbed. This Committee in its report held out that upon perusal of the minutes of the governing body of the College, the members of the Committee have been able to ascertain that on 25th March, 1984, the governing body resolved that for further appointments the Principal should inform the governing body of the necessity of such appointments so that advertisement may be issued in Daily Newspapers such as Aaj, Indian Nation and Aryavert for calling candidates for interview and selection and that President of the governing body lastly attended the meeting of the governing body of the College on 27th April, 1984 and subsequent thereto, he did not attend any 6 meeting of the governing body of the College and instead some other person claiming to be the President of the governing body purported to sign the minutes of the governing body of the College. The Committee reported that in such view of the matter, they are not in a position to accept any appointment given after 27th April, 1984 as an appointment given by the College. The State Government accepted the said report and in consequence thereof, it did not recognize service of any person, who is said to have been appointed after 27th April, 1984 in his capacity as an employee of the College. The appellants fall in that category for all of them have been appointed purportedly by the College after 27th April, 1984, but before 1st June, 1986. They are aggrieved by the Judgment and Order under appeal in these appeals only in relation to that part thereof whereby and under the learned Judge has refused to interfere with the decision of the Government not to recognize any person, said to have been appointed after 27th April, 1994 and before 1st January, 1996, as an employee of the College. The learned counsel for one set of appellants 7 submitted that in fact, advertisements were published and his clients responded to such advertisements and thereupon they had been selected. One such advertisement has been placed before us which has been published in a paper by the name “Anchalik Dainik” from Balia. While placing the said advertisement, however, our attention has not been drawn to either any pleading or any document suggesting alteration of the decision of the governing body taken on 25th March, 1984. Be that as it may, the question is not whether an advertisement was published by the governing body and the same was responded and thereupon through a selection process the appellants were appointed. The question was whether the appellants were appointed at all by the College or not. It is not in dispute that the President of the governing body, who signed the minutes of the meetings of the governing body held up to 27th April, 1984, was the President of the governing body of the College. There is no dispute that the said President was not replaced by anyone else. It is also not in dispute that the person, who signed the minutes of the governing body of its meetings allegedly held after 27th April, 1984 purporting to be President of the governing body of the 8 College, was, in fact, not the President of the governing body of the College. Therefore, on records the appellants were appointed, even if they had been appointed, not by the governing body of the College but by some other group of persons and as such, even assuming that the appellants were working in the College on 1st July 1986, they were not the members of the staff of the College and as such in terms of the provisions contained in the Act, the State Government, under no circumstances, could absorb any of the appellants in Government service, for the authority for absorption was granted to the State Government by the legislature only of the staff of the College and not any Tom, Dick and Hari working in the College. The learned counsel appearing in support of some other appellants contended that the very report of the Committee, being on the teeth of an order of this Court, could not be acted upon. Our attention was drawn to an order of this Court which made it clear that one of the members of the Committee should not remain as a member of the Committee. Our attention was also drawn to the notification issued by the State Government removing the said person from the 9 Committee. Our attention has also been drawn to the report of the Committee which expressly holds out that the self same person was a member of the Committee. Anything contrary to law is illegal. Anything done in breach of an order of Court, therefore, should be deemed to be illegal. A thing illegal is deemed to be nonest. It is also not necessary in all cases to obtain a declaration to that effect. Any aggression can be successfully defended by setting up a defence of nonest. However, at times, it becomes necessary to obtain such a declaration and in particular, when a nonest thing stands in the way of exercise of right of the person affected. In the instant case, if the report by the Committee consisting of that person is on the teeth of an order of the Court known to the appellants, on whose behalf the above argument had been advanced, it was obligatory on their part to obtain a declaration that the said report is nonest. In order to do so, not only it was a requirement on their part to ask for such a declaration, but also to ask the same in presence of all persons, who are likely to be affected by such declaration. The appellant did nothing. Despite knowledge of the fact that in view of the said report of the said Committee, many 10 persons have obtained benefits, those persons, who obtained benefits on the basis of the said report, were not made parties to the lis, resulting in these appeals. In the circumstances, since the said report cannot be declared illegal partially in relation to the appellants before us and can be upheld and permitted to be retained in relation to the persons not before us, we only express our inability to entertain the argument that the said report is on the teeth of an order passed by this Court. Learned counsel for all the appellants lastly contended that on record there is an observation by a Committee, who were asked to discharge similar functions, that minutes book of the meetings of the governing body of the college are not available. The learned counsel submitted that in 1992, a First Information Report was also filed to that effect. The learned counsel, therefore, submitted that in such situation, it has not been explained as to how in 1999, the Committee could look into the missing Minutes Book of the meetings of the governing body. Either the Minutes Book is in existence and has recorded what has been found by the Committee, as noted above, or the Minutes Book is not in 11 existence. If the minutes book is in existence, then having regard to what has been stated above, the appellants have been appointed not by the College, but by somebody else, but if the minutes book is not in existence, then the appellants are not in a better position, for in such event, there is nothing to show that they had been appointed by the College. It is true that the appellants have in their possession appointment letters signed by the Secretary, but the fact remains that the Secretary is not the College. The College is the governing body of the College. The Secretary only acts on behalf of the governing body of the College and accordingly, unless the decision to appoint by the governing body is present, mere appointment letters signed by the Secretary will not help any of the appellants. In the circumstances, there is no scope of interference to that part of the Judgment and order under appeal which has been assailed in the present appeals. Accordingly, the appeals are dismissed. Patna High Court, 24th July, 2008, S.B.P./N.A.F.R. (Barin Ghosh, J.) (C.M. Prasad, J.) 12