Case: HARISH CHANDRA SHRIVASTAVA Vs. THE STATE OF BIHAR AND OTHERS

teachers as on the cut--off date i.e. 01st June, 1986 and on the conjoint reading of Section 6(2) of the Act 1985 read with notification dated 09th December, 1986, the State Government made its intention clear that as the decision has been taken to absorb the employee/teacher of the private Ayurvedic college as on 01st June, 1986, his bio--data is to be examined for various purposes, but while considering him for absorption, the Screening Committee constituted has to consider the eligibility of the employees/teachers regarding minimum qualifications and teaching skills as on the cut--off date i.e. 01st June, 1986 and the recommendation made by the Screening Committee will be considered by the State Government for absorption or for continuance in service or for termination, as the case may be, on case to case basis in terms of sub--Section (3) of Section 6 of the Act 1985. 23. The additional reason appears to be since the service of the teacher will be reckoned from the date of absorption in the Government, the past service rendered in the private Ayurvedic college in terms of the affidavit filed by the State Government stands obliterated for all practical purposes. This further supports the eligibility of the teacher to be looked into as on the cut--off date, i.e. 01st June, 1986. 24. Thus, the very premise on which the High Court has proceeded to examine the eligibility of the teachers as on the date they initially entered into service in the year 1978--1979 and arriving to the conclusion that the teachers who were not holding the post- qualification teaching experience of three years from recognized Ayurvedic college as referred to under the Statute would not be eligible for absorption in terms of the notification dated 09th December, 1986, in our considered view, is a clear misconception of law and deserves rejection. 25. We proceed to further examine as to whether the requirement of eligibility of the teaching staff of holding post qualification teaching experience of three years as a teacher/lecturer referred to under the Statute is possible for the incumbent to meet out on which the State counsel has put much emphasis. Our question to him was how far it is practically possible that when you dont permit a person to be recruited into service as a teacher on the basis of his academic qualification, how he will gain post-qualification teaching experience of three years as the condition of eligibility and how both these twin conditions would meet together. 26. Leaned counsel for the respondents even after seeking instructions from the department has come with the explanation that this being the statutory requirement, one is supposed to comply with at the time of initial appointment but he was unable to justify as to how the person on the basis of academic qualification, if not being permitted to teach, may acquire post qualification teaching experience as referred to under the Statute of the Bihar University Act or by CCIM Act, 1970 for entry into service and, in our considered view, the academic qualification and post qualification teaching experience of three years at the entry level post i.e. Lecturer in the instant case, are two different ends which are not possible to meet. 27. We are not going into this controversy any more and leave it at this stage for the reason that the requirement in terms of the notification dated 09th December, 1986 was never the subject matter of challenge and clause (c), in particular, clearly manifests that the verification of the list of eligible teaching employees working in the college would be considered by the Screening Committee duly constituted by the department as on the cut--off date i.e. 01st June, 1986 and it is the said date on which the minimum qualification and teaching skills of the individual has to be looked into by the Committee while adjudging his overall suitability for absorption. 28. Indisputedly, in the instant case, each of the appellants before this Court was holding the academic qualification while entered into service in the year 1978--1979 in the private Ayurvedic College and holding teaching experience of more than three years as on the cut- off date 01st June, 1986 in terms of notification dated 09th December 1986, when the Screening Committee was called upon to adjudge the overall suitability of the appellants for absorption and once the appellants were indeed eligible as on the cut--off date i.e. 01st June, 1986, the justification tendered by the Committee, in the first instance, that the appellants were not holding the post qualification teaching experience of three years on the date when they were initially appointed in the private Ayurvedic College in the year 1978- 1979, is not in conformity with the mandate of the Act 1985 read with notification dated 09th December, 1986. 29. In our considered view, the High Court under the impugned judgment has completely overlooked the scheme of the Act 1985 read with notification dated 09th December, 1986 pursuant to which the exercise was to be undertaken by the State Government for absorbing teaching/non--teaching employees of private Ayurvedic College and this was the apparent error committed by the High Court which, in our view, is not sustainable in law and deserves to be set aside. 30. Before parting with the order, it has been informed to this Court that in terms of the Government notification no. 6745 dated 30th July 2015, the age of superannuation of teachers has been extended upto 67 years and out of 5 teachers, 4 of them had attained the age of superannuation and one Dr. Mod Nath Mishra has time to serve the institution and may retire in the month of March, 2023. 31. Once we arrive at the conclusion that the finding of unfitness recorded by the Review Screening Committee was not sustainable in law which was the foundation for the Government to terminate the services of the appellants in consequence thereof, each one of them deserves to be reinstated in service with all consequential benefits.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]19. It is not disputed that each of the appellants was holding the essential academic qualifications prescribed for teaching staff as on the date of their initial appointment in the year 1978--1979 in the private Ayurvedic College and were serving the institution when the Act, 1985 came into force on 07th August, 1985.20. The State Government in exercise of its power under Section 3 of the Act 1985 vide its notification dated 09th December, 1986 w.e.f. 01st June, 1986 took over the college and management of the private Ayurvedic College on certain terms and conditions and Clause (c) of the notification of 09th December, 1986 of which reference has been made above clearly manifest that the verification of the list of teaching and non--teaching employees working in the said college on the cut--off date i.e. 01st June, 1986 would be considered by the Screening Committee duly constituted by the department and it will be seen by the Committee whether on the said date, the employees and teachers were having minimum qualifications and teaching skills for the post that they held on the cut--off date and not on the date of appointment.21. Clause (c) of the notification dated 09th December, 1986 leaves no manner of doubt that the Screening Committee constituted by the State Government has to look into the eligibility and other minimum qualifications and teaching skills as on the said date i.e. 01st June, 1986.22. We find a complete fallacy in the submission made by the State Counsel for the reason that Section 6(2) authored the Committee constituted by the State Government to examine the bio- data of each of the member of the teaching staff in reference to appointment, promotion and confirmation made in accordance with the relevant Statute and the State Government in terms of Section 6(3) of the Act will take a call in respect of each member of teaching staff on merits of each case whether to absorb him in the Government service or terminate his service or allow him to continue on ad hoc basis on a fixed term, as the case may be, but once a State Government in its wisdom has come out with the statutory notification issued in exercise of power under Section 3 of the Act dated 09th December, 1986 while taking assets of private Ayurvedic College and the hospitals attached thereto, at the same time, under Clause (c), a specific mandate has been authored to the Screening Committee to consider the minimum qualifications and teaching skills of the teachers as on the cut--off date i.e. 01st June, 1986 and on the conjoint reading of Section 6(2) of the Act 1985 read with notification dated 09th December, 1986, the State Government made its intention clear that as the decision has been taken to absorb the employee/teacher of the private Ayurvedic college as on 01st June, 1986, his bio--data is to be examined for various purposes, but while considering him for absorption, the Screening Committee constituted has to consider the eligibility of the employees/teachers regarding minimum qualifications and teaching skills as on the cut--off date i.e. 01st June, 1986 and the recommendation made by the Screening Committee will be considered by the State Government for absorption or for continuance in service or for termination, as the case may be, on case to case basis in terms of sub--Section (3) of Section 6 of the Act 1985.23. The additional reason appears to be since the service of the teacher will be reckoned from the date of absorption in the Government, the past service rendered in the private Ayurvedic college in terms of the affidavit filed by the State Government stands obliterated for all practical purposes. This further supports the eligibility of the teacher to be looked into as on the cut--off date, i.e. 01st June, 1986.24. Thus, the very premise on which the High Court has proceeded to examine the eligibility of the teachers as on the date they initially entered into service in the year 1978--1979 and arriving to the conclusion that the teachers who were not holding the post- qualification teaching experience of three years from recognized Ayurvedic college as referred to under the Statute would not be eligible for absorption in terms of the notification dated 09th December, 1986, in our considered view, is a clear misconception of law and deserves rejection.26. Leaned counsel for the respondents even after seeking instructions from the department has come with the explanation that this being the statutory requirement, one is supposed to comply with at the time of initial appointment but he was unable to justify as to how the person on the basis of academic qualification, if not being permitted to teach, may acquire post qualification teaching experience as referred to under the Statute of the Bihar University Act or by CCIM Act, 1970 for entry into service and, in our considered view, the academic qualification and post qualification teaching experience of three years at the entry level post i.e. Lecturer in the instant case, are two different ends which are not possible to meet.27. We are not going into this controversy any more and leave it at this stage for the reason that the requirement in terms of the notification dated 09th December, 1986 was never the subject matter of challenge and clause (c), in particular, clearly manifests that the verification of the list of eligible teaching employees working in the college would be considered by the Screening Committee duly constituted by the department as on the cut--off date i.e. 01st June, 1986 and it is the said date on which the minimum qualification and teaching skills of the individual has to be looked into by the Committee while adjudging his overall suitability for absorption.28. Indisputedly, in the instant case, each of the appellants before this Court was holding the academic qualification while entered into service in the year 1978--1979 in the private Ayurvedic College and holding teaching experience of more than three years as on the cut- off date 01st June, 1986 in terms of notification dated 09th December 1986, when the Screening Committee was called upon to adjudge the overall suitability of the appellants for absorption and once the appellants were indeed eligible as on the cut--off date i.e. 01st June, 1986, the justification tendered by the Committee, in the first instance, that the appellants were not holding the post qualification teaching experience of three years on the date when they were initially appointed in the private Ayurvedic College in the year 1978- 1979, is not in conformity with the mandate of the Act 1985 read with notification dated 09th December, 1986.29. In our considered view, the High Court under the impugned judgment has completely overlooked the scheme of the Act 1985 read with notification dated 09th December, 1986 pursuant to which the exercise was to be undertaken by the State Government for absorbing teaching/non--teaching employees of private Ayurvedic College and this was the apparent error committed by the High Court which, in our view, is not sustainable in law and deserves to be set aside.30. Before parting with the order, it has been informed to this Court that in terms of the Government notification no. 6745 dated 30th July 2015, the age of superannuation of teachers has been extended upto 67 years and out of 5 teachers, 4 of them had attained the age of superannuation and one Dr. Mod Nath Mishra has time to serve the institution and may retire in the month of March, 2023.31. Once we arrive at the conclusion that the finding of unfitness recorded by the Review Screening Committee was not sustainable in law which was the foundation for the Government to terminate the services of the appellants in consequence thereof, each one of them deserves to be reinstated in service with all consequential benefits.