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

4. The State of Bihar in exercise of its legislative power enacted the Act called The Bihar Private Medical (Indian System of Medicine) College (Taking over) Act, 1985 (hereinafter referred to as the Act 1985) for taking over of Private Medical (Indian System of Medicine) Colleges of the State of Bihar, which received assent on 07th August, 1985 and published in Bihar Gazette, Extraordinary No.687, dated 04th December, 1985.5. The State Government in exercise of its power under Section 3 of the Act 1985 took over the management of Sri Dhanwantri Ayurved College, Buxar Post Ahirauli, District Bhojpur and the hospitals attached to it w.e.f. 01st June, 1986 on certain terms and conditions in terms of the notification dated 09th December, 1986.6. The State Government thereafter constituted a Screening Committee vide its notification dated 09th October, 1990 to submit its report to the State Government. The Screening Committee constituted, after scrutiny of records of the individual teachers submitted its report, which was published in the Bihar Gazette on 15th January, 1992 and in terms of the recommendation made by the Screening Committee, the State Government took a decision to absorb the services of 103 teaching and non--teaching employees, including the present appellants vide order dated 24th November, 1992.7. It reveals from the record that the teaching/non--teaching employees who were dissatisfied with the recommendation made by the Screening Committee report dated 15th January, 1992 challenged the recommendation by filing of various writ petitions before the High Court under Article 226 of the Constitution and while deciding the batch of writ petitions, the High Court directed that a fresh Screening Committee be constituted by the State Government consisting of Secretary cum Health Commissioner, Department of Health and one more IAS officer holding a responsible post under different department of State Government and also any member of Central Council of Indigenous Medicine (CCIM) and this Committee was directed to examine the cases of the employees of the college as on the cut--off date, i.e. 01st June, 1986 and to submit a report to the State Government.8. Although at one stage, the grievance was raised by the other set of employees who were aggrieved by the directions of the High Court in constituting a fresh Screening Committee but finally the second Screening Committee constituted by the Government pursuant to the judgment of the High Court dated 12th May, 1995 submitted its report dated 18th June, 1999 and in terms of the recommendation of the second Screening Committee report dated 18th June, 1999, the State Government accepted the recommendations and absorbed 23 teaching employees out of 84 and no non--teaching employee out of 167 was considered fit for absorption.9. The State Government, in consequence thereof, issued order of termination in terms of the recommendations made by the second Screening Committee by order dated 29th August, 2003 containing a list of 229 persons including the present appellants whose services were not found fit for absorption and accordingly their services were terminated.10. The recommendation of the second Screening Committee dated 18th June, 1999, followed with the order of termination passed by the State Government dated 29th August, 2003 became the subject matter of challenge by filing writ petitions before the High Court under Article 226 of the Constitution and after the Division Bench decided the batch of LPAs by judgment dated 01st November, 2006, a fresh Review Screening Committee was constituted to examine the qualifications of the teaching/non--teaching employees.11. The Review Screening Committee in its report recommended for absorption of 24 teaching employees and 42 non--teaching employees and rest of 99 found to be unfit for absorption and the appellants unfortunately fall in the category of teachers who were found unfit for absorption amongst 99 persons and that again became the subject matter of grievance before the High Court by filing of writ petitions under Article 226 of the Constitution and in the third round of litigation, they were finally non--suited under the impugned judgment of the Division Bench on the premise that in terms of the qualifications prescribed by Central Council of Indian Indigenous Act, 1970 (hereinafter being referred to as the CCIM Act, 1970) for teaching staff in Ayurvedic degree Colleges apart from academic qualification, one is supposed to hold post qualification teaching experience in any institution of three years for the post of Lecturer and that being also the requirement under Chapter XVI-B of the Statutes of Bihar University regarding minimum qualification of teacher and officer in the faculty of Ayurveda for the post of Lecturer, one is supposed to have a degree of Ayurveda from University established by law with at least three years of post qualification teaching experience from a recognised Ayurvedic College and since none of the appellants were holding three years of post qualification teaching experience on the date they were initially appointed as a teacher/lecturer in private Ayurvedic College in the year 1978--1979, were ineligible for absorption in terms of notification dated 09th December, 1986 and that became the subject matter of challenge at the instance of the appellants by filing of appeals in this Court.

Reasoning: 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.