IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.7792 of 2003 1. Kishun Bhagat, son of late Mahabir Bhagat. 2. Md. Zahoor, Son of late Abdul Gafoor. 3. Jibesh Mishra @ Jibeshwwar Mishra, Son of late Nageshwar Mishra. 4. Jagdish Ram, son of Late Asharfi Ram. 5. Umesh Yadav No.1, Son of Sri Bilat Yadav. 6. Suresh Mandal, Son of late bibhishan Mandal. 7. Shrawan Sahni, Son of late Rameshwar Sahni. 8. Sahdeo Ram, Son of late Nevi Ram. 9. Bhushan Yadav, Son of Sri Badri Yadav. 10. Anju Devi, widow of late Ram Prasad Tiwari. 11. Arun Kumar, Son of late Harihar Deo. 12. Umesh Yadav No.2, son of late Swaroop Yadav. 13. Harish Chandra Jha, son of late Rajeshwar Jha. 14. Tula Kant Jha, son of late Lutan Jha. 15. Pramod Kumar Jha, son of late Baidyanath Jha. 16. Ugra Narayan Jha, son of late Tej Narayan Jha. 17. Laxmi Devi, wife of Sri Laxmi Paswan. All are at present working as Class IV employees in Government Maharani Rameshwari Bhartiya Chikitsa Vigyan Sansthan, Mohanpur, District Darbhanga. ----------- Petitioners Versus 1. The State of Bihar. 2. The Commissioner and Secretary, Department of Health, Government of Bihar, Patna. 3. The Director, Deshi Chikitsa, Government of Bihar, Patna. 4. The Principal, Government Maharani Rameshwari Bhartiya Chikitsa Vigyan Sansthan, Mohanpur, P.O. Mohanpur, District Darbhanga. ---------- Respondents ----------- 5 27.08.2010 Heard Mr. Durganand Jha, learned counsel for the petitioners and counsel for the State. The prayer of the petitioners in this writ application reads as follows:- “1(i) Issuance of a writ in the nature of certiorari for quashing the office orders contained in Memo No. M.R./214/2001 dated 30.8.2001, issued by Respondent 2 No.4 (Annexure-9) so far it relates to the date from which first time bound promotion has been allowed to petitioners and similarly situated other persons. (ii) Issuance of a consequential writ in the nature of Mandamus directing and commanding the respondents to grant first time bound promotion to the petitioners from the date on which they completed ten years of their service from the date of their initial appointment made against the sanctioned post and thereby to pay them the entire arrears of difference of salary and other emoluments from the date of such promotion. (iii) Issuance of an appropriate holding and declaration that once the petitioners were appointed against sanctioned posts after following all the procedures of appointment in a constituent college and their services have been adjusted in Government services, they are fully entitled to their first time bound promotion after completion of ten years of services from their initial appointment not after 10 years of their services from the date the institution was taken over by Government. 3 (iv) Issuance of appropriate writ in the nature of certiorari for quashing the letter No. MR/34/03 dated 01.2.2003 issued under the signature of Principal of Government. Maharani Rameshwari Indian Institute of Medical Sciences whereby and whereunder modification of office order contained in MR/214/2001 dated 30.8.2001 has been denied on the plea that the order dated 30.8.2001 is still under consideration of Divisional Commissioner, Darbhanga. (v) Issuance of an appropriate holding that once the Screening Committee recommended for takeover of the services of petitioners with posts in Government on being transferred from the University service from the date of their initial appointment, there was no justification to calculate the ten years of service for grant of first time bound promotion from the date of take over of the Institute by the Government. (vi) Issuance of an order to Respondent Principal to modify the office order dated 30.8.2001 by shifting back the date of 1st time bound promotion and thereby to pay to petitioners the entire arrears of difference of pay etc. with 18% interest and 4 adequate amount of compensation.” Mr. Jha, learned counsel for the petitioners with regard to the aforementioned prayers, would straightway refer to the provision of Bihar Private Medical (Indian System of Medicine College (Taking Over) Act, 1985 to contend that as the college of the petitioners, having been taken over by the State Government in view of the aforesaid Act, the petitioners would be entitled to recount their earlier services rendered while the college was under the control of the University. He would, therefore, challenge the order dated 30.8.2001 giving the benefit of time bound promotion to the petitioners with effect from 10.1.1995 treating the take over of the services of the petitioners from 10.1.1985. It is his own submission that when the services of the petitioners were taken over in terms of the aforesaid Act, the petitioners’ services for the time bound promotion had to be counted from the date their initial appointment was made by the concerned authority of the University and therefore, the period prior to the take over 5 also was to be taken into account for computing the period of 10 years and 25 years for grant of time bound promotion. Mr. Jha when asked about the impact of Section 6 of the Act had referred to a document contained in Annexure-7 dated 29.5.1997 to support his submission that the services of the petitioners in fact were taken over by the Health Department’s letter no. 345 dated 20.05.1997/29.05.1997 with effect from their original appointment in the college. In this case, a counter affidavit has been filed wherein it has been clearly stated that the period prior to the takeover of the college on 10.1.1985, when the institution was under direct control of the Kameshwara Singh Darbhanga Sanskrit University was not taken into account and in fact the institute was taken over only with effect from 10.1.1985. Additionally, it was contended that the effective date of petitioners becoming government servant was only 10.1.1985 and thus the period of ten years for time bound promotion was to be 6 counted in terms of the Government decision dated 30.12.1981 envisaging grant of time bound promotion on completion of 10 years as government servant which is the case of the petitioners could be conferred only on 10.1.1995. In the opinion of this Court, from reading of the Statute i.e. the Act and its Section-6, it becomes very clear that the position of the employees of the taken over institute was to be determined by the screening committee and the recommendation of the screening committee was to be finalized by the State Government. Section 6 of the Act, therefore, being relevant, is quoted hereinbelow:- “6. Determination of terms of the teaching staff and other employees of the College.- (1) From the date of the notified order, all the staff employed in the College shall cease to be the employees of the College body: Provided that they shall continue to serve the College on ad hoc basis till a decision under sub-sections(3) and (4) of this Section is taken by the State Government. (2) The State Government will set up one or more committees of experts and knowledgeable persons which will examine 7 the bio-date of each of the teaching staff and ascertain whether appointment, promotion or confirmation was made in accordance with the Act, Statute or Regulation of the University concerned and in keeping with the guidelines laid down by the Indian Medical Council of India and take into consideration all other relevant materials including length of his 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 the merits of each case whether to absorb him in government service or to terminate his service or to allow him to continue on an ad-hoc basis for a fixed term on contract and shall, where necessary, redetermine the rank, pay allowances and other conditions of service. (4) The State Government shall similarly determine the terms of appointment and other conditions of service 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 task and the provisions of sub-sections (2) and (3) of this Section shall apply mutatis mutandis to such cases.” Now, in view of Section 6 of the Act, there is no dispute that the screening 8 committee was constituted and its recommendations were made subject matter of the consideration of the State Government, whereafter, the State Government had issued notification no. 345 dated 20.5.1997/ 29.5.1997, wherein, Schedule-1 and Schedule-2 had contained not only the name of the persons but the post on which their services were to be absorbed with effect from the respective date. Unfortunately, this document (Annexure-7) as filed by the petitioners is truncated and incomplete document and does not contain the most relevant portion i.e. its schedule 1 and 2. In that view of the matter, this Court, for the time being, would hold that the date of 10.1.1985 is the date of take over of the services of the petitioners and only if the petitioners can at any point of time demonstrate by any authentic Government order that the Government in terms of Section-6 of the Act had intended to notify the date of take over of their services from the date of original appointment, the respondents would be under obligation to re- 9 consider the claim of the petitioners for back dating the time bound promotion beyond the one contained in Annexure-9, the impugned order i.e. 10.1.1995. It is, however, made clear that barring the aforesaid contingency, the impugned order would not require any other modification or change, inasmuch as, it is the impact of Section-6 which has to be also given effect to in case of every employee of the institute taken over by the State Government. For this limited purpose, it would be open for the petitioners to move before the Director, Indigenous Medicine, Government of Bihar in terms of Section 6 of the Act, who after verification of the date of take- over of the service of the petitioners in terms of Section 6 of the Act, would, if necessary, make modification in the date of time bound promotion of the petitioners in the light of the observations and findings given above. Such exercise, however, must be completed within a period of six months from 10 the date of receipt/production of a copy of this order. With the aforementioned observation and direction, this application is disposed of. Rsh (Mihir Kumar Jha, J.)