IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.7410 of 1997 1.MOHD.ANISUL HAQUE son of Late Reyazul Haque, Clerk. 2.Lal Bahadur Sharma son of Late Ganga Singh, Clerk. 3.Sarwan Mistri son of Ram Chandra Mistri, Ward Attendant. 4.Ashok Kumar son of Parmeshwar Mahto, Ward Attendant. 5.Anandi Prasad son of Mahavir Prasad, X-Ray Technician. 6.Abdul Moquit Mallick son of Late Abdul Majeed, clerk. 7.Birendra Kumar Mishra son of Balmukund Mistri, Ward Attendent. 8.Mohd. Rafi son of Late Mohd. Rasul Baksh, Lab-Technician. 9.F.Z. Khan Abdali son of Late Maqbool Hasan Khan, clerk 10.Krishna Devi Wife of Shri Ranjit Bahadur, Ward Attendent. 11.Robert Ekka son of Shri Hilarion Ekka, Staff Nurse Grade-A. 12.Narendra Deo Mukhiya son of Yogeshwar Mukhia, Peon. All employees of Nalanda Medical College Hospital, Kankarbagh, Police station Kankarbagh, District Patna. Versus 1.THE STATE OF BIHAR 2.The Secretary Cum Commissioner, Department of Health, Medical Education & Family Welfare, Government of Bihar, Patna. 3.The Special Secretary, Department of Health, Medical Education &Family Welfare, Government of Bihar, Patna. 4.The Director-in-Chief, Health Services, Department, Bihar, Patna. 5.The Director, Health services Department, Bihar, Patna. 6.The Joint Director, Health Services, Department, Bihar, Patna. 7.The Deputy Direction (Administration), Health Services Department, Bihar, Patna. 8.The Superintendent Nalanda Medical College Hospital, Patna. ----------- 9 20.7.2010 Heard Mr. Uma Kant Shukla, learned counsel for the petitioners and learned counsel for the State. Prayer of the petitioners in this writ application reads as follows:- “That this application is directed against the order dated 14.7.97 vide Memo No.1037 (22) dated 14.7.97 passed/issued by the Deputy Director, Health Services, Bihar, Patna, Respondent no.7 as contained in Annexure-8 whereby and whereunder the Respondent no.7 has issued order for treating the date of the takeover of Nalanda Medical College Hospital (hereinafter referred to as the Medical College) under the provisions of the Bihar Private Medical Colleges (Takingover of Management) Act, 1978, as the date of 2 the first appointment of the employees of the said Medical College for the purposes of the determination of their seniority and the prayer is for the issuance of a writ in the nature of a writ of certiorari for quashing the aforesaid order as contained in Annexure-8.” Mr. Shukla, with reference to the aforementioned prayer and while assailing the impugned order as contained in Annexure-8 would submit that the decision taken by the State Government as with regard to reckoning of seniority of the petitioners from the date of take over of Nalanda Medical College and Hospital in terms of section 3 of Bihar Private Medical Colleges (Take Over) Act, 1978 is wholly unreasonable, inasmuch as, the petitioners having been appointed by the authority of the Private College/ Governing Body of the College on various Class- III and Class IV posts were entitled to carry their earlier seniority of the period of service under private management. In this context he relies on statement made in paragraphs 5, 18, 19 and 21 of the writ application. He would also refer to the counter affidavit to contend that since the statements made in paragraph 21 has been admitted in paragraph 7 of the counter affidavit, it becomes very clear that the petitioners were subjected to discrimination in the matter of fixation of seniority, inasmuch as, it is the case of the petitioners that though other Medical Colleges including Nalanda Medical College had been taken over by the Government in the same transaction but the employees of Nalanda Medical College only have been treated differently in the matter of fixation of seniority. 3 In the opinion of this Court, such contention of Mr. Shukla is only to be noted for its being rejected. First of all the Take Over Act, 1978 was a complete code in itself for determining the service condition of the employees of this College. Section 6 of the Act, in fact, being relevant for this purpose is quoted hereinbelow:- “6.Determination of terms of the teaching staff and other employees of the College:- As from the date of the notified order, all the State employees in the College shall cease to be the employees of the College body: Provided that they shall continue to serve the College on an ad hoc basis till a decision under sub-section (3) and (4) is taken by the State Government. (2)The State Government will set up one or more Committee of experts and knowledgeable persons which will examine the biodata of each member of the teaching staff and ascertain whether appointment, promotion or confirmation was made in accordance with the University Regulations and in keeping with the guidelines laid down by the Medical Council of India and take into consideration all other relevant materials including length of 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 the4 merits of each case, whether to absorb him in Government service or whether to terminate his service or to allow him to continue on an ad hoc basis for a fixed or on contract and shall, where necessary redetermine the rank, pay, allowances and other conditions of service. (4)The State Government shall similarly determine the term of appointment and other conditions of service of other categories of staff of the College on the basis of facts to be ascertained either by a Committee or by an officer entrusted with the task and the provisions of sub-sections (2) and (3) shall apply mutatis mutandis to such cases.” 4 It is in this regard that in paragraph 5 of the counter affidavit it was clarified that the State Government had made it clear that the date of initial appointment of the employees of Nalanda Medical College Hospital will be the date of take over the institution by the Government of Bihar. Paragraph 5 of the said counter affidavit reads as follows:- “That with regard to the statements made in paragraph nos. 2 (i) to (iii) of the writ petition under reply it is stated that the allegations are denied. After examining the facts and records and reports of Screening Committee it was decided that the date of initial appointment of the employees of Nalanda Medical College Hospital will be the date of take over the institution by the Govt. of Bihar under section 6 of the Private Medical College Take Over Act, 1979 and the said order was issued.” Now therefore the only question that may arise is as to whether there was any assurance given by the State Government to the employees of the Nalanda Medical College with regard to giving seniority to them from the date of their initial appointment under private management. This Court would not find any such assurance at least in the Act, inasmuch as, the concept therein was that the service condition of the employees of private institution shall be governed by such terms and conditions as may be fixed by the State Government and that too subject to their screening. The moment Section 6 of the Act has to be given full meaning it has to be understood that the Government had full liberty to take over services of the employees of the Medical Colleges on its own terms and condition and if therefore the Government had ignored the period of private management that by itself cannot be held to 5 be bad unless the petitioners could have successfully challenged the vires of section 6 of the Act. The petitioners however have not challenged the vires of section 6 of the Act, and therefore, once this Court would find that it was the part of terms and condition of the take over of the institutions, that the services of the petitioners and other teaching and non teaching employees could be subjected to screening as also fixing the date of take over it would automatically follow that for reckoning of their seniority in government service the date of such take over only could be counted. This Court, in fact, also cannot give constructive meaning of the statements made in paragraph nos. 18, 19 and 21 to mean that the State Government in respect of other four medical colleges had adopted different yard-stick. The statement made in these paragraphs in fact would only go to show that the petitioners have grievance as with regard to other institutions which were not governed by the provisions of the Act. Therefore, there being not a single example cited, the case of discrimination cannot be allowed to proceed. It is also well settled that whenever the petitioner in a writ petition would come out with the statement regarding any particular fact which is capable of being supported by documents, the petitioner must produce the relevant documents as was held by the Supreme Court in the case of „Bharat Singh & Ors. Vs. State of Hariyana & Ors.’ reported in A.I.R.1988 SC 2181. Once this aspect becomes clear that the petitioners 6 have taken plea of discrimination only as against other institutions, namely, Primary School or Secondary School or some other educational institution, this Court cannot even indulge in making comparative evaluation of such separate take over legislation. The Primary Schools and Secondary Schools in fact were always under the regulatory control of the State Government even prior to take over and all the conditions namely approving the services of the teaching or non teaching staffs for the purposes of recognition and also making payment of salary by way of grant in aid was dependent on the orders of the State Government and thus when the State Government had taken over such educational institutions, it had gone to extend the benefit of such take over with retrospective effect. That principle, however, cannot be made applicable to the medical colleges. In that view of the matter, if the State Government has ultimately treated the medical colleges and its employees differently than the other teaching and non teaching employees of the Primary and Secondary Schools for fixation of their service condition after take over that cannot be compared with other institutions. Once this aspect becomes clear the last part of submission of Mr. Shukla that in the same institution two modes of fixation of seniority were given effect in fact could have been better appreciated if Mr. Shukla had pressed the first writ application, namely, C.W.J.C. No.6911 of 1996 which was related to the class of employees who were initially appointed by the 7 government in the district cadre and were later on made part of Agam Kuan Infectious Diseases Hospital which was functioning separately and later on was made part of the Nalanda Medical College and Hospital from the year 1990. Before amalgamation of that institution with the Nalanda Medical college the government employees working there in Agam Juan Government Hospital were governed by separate norms of seniority. Therefore, in terms of order of this Court passed in C.W.J.C. NO.2134 of 1986 and its affirmance in L.P.A. No.49 of 1988 followed by another direction of this Court in C.W.J.C. NO.9631 of 1994 the authorities had passed an order as contained in Annexure-6 dated 10.2.1996 treating the cadre of the employees of Agam Kuan Infectious Diseases Hospital to be part and parcel of the Nalanda Medical College and Hospital and the notification of the Health Department dated 9.4.1990 was issued. In fact this is the notification dated 10.2.1996 which was assailed in the writ application, C.W.J.C. No.6911 of 1996 but was not pressed by the petitioners of that writ petition. As a matter of fact the said notification dated 10.2.1996 was also taken into account for passing the impugned order dated 4.7.1997 which has been assailed in this second writ petition, C.W.J.C. No.7410 of 1997 which was heard along with C.W.J.C. No. 6911 of 1996 and was not pressed by Mr. Shukla appearing on behalf of the petitioners in that case as well. Once therefore this Court had held the order dated 10.2.1996 to be in order the comparison made by the 8 petitioners of this case for reckoning of their seniority by trying to equate their case with the employees of Agam Kuan Infectious Diseases Hospital is absolutely uncalled for. They are absolutely unequal in terms of service history and thus cannot be made equal in the matter of seniority. In this regard from the resolution of the Health Department dated 1.9.1984 it would be found that earlier the Agam Kuan Infectious Diseases Hospital, a governmental institution, was under Patna Medical College and Hospital but subsequently after Nalanda Medical College and Hospital become a Government Medical College in view of its take over by the State Government under the Act the said Agam Kuan Infectious Diseased Hospital was transferred under the control of Nalanda Medical College and Hospital. It was in this background that for non gazetted employees working in Agam Kuan Infectious Diseases Hospital a conscious decision was taken by the State Government on 9.4.1990 that they would form part of the cadre of non gazetted employees of the Nalanda Medical College and Hospital. Therefore, such Government employees who were earlier posted in Agam Kuan Infectious Diseases Hospital being Government employees right from beginning, were given the benefit of their seniority from the first date of entry in the government service in the joint cadre of non gazetted employees of Nalanda Medical College and Hospital. They being class apart, the comparison sought to be made by the petitioners with the 9 employees of Agam Kuan Infectious Diseases Hospital is wholly irrelevant in view of their different past service history. The petitioners, in fact, having been given their seniority from the date of take over of their College in terms of section 6 of the Act, cannot be heard to say that they would also be entitled to the seniority given to the employees of Agram Kuan Infectious Diseases Hospital, inasmuch as, the petitioners were never in the government service prior to take over of the Nalanda Medical College and Hospital. Once this aspect becomes clear the submission of Mr. Shukla even on that score must fail. Since no other submission was made by Mr. Shukla while assailing the impugned order, the impugned order dated 4.7.1997, this Court must hold that the principle of fixation of seniority as decided in the impugned order is correct and therefore there is no need of interference by this Court. That being so, there is no merit in this application and the same is accordingly dismissed. Abhay Kumar ( Mihir Kumar Jha, J.)