High Court Patna High Court - Orders

Mohd.Anisul Haque &Amp; Ors vs The State Of Bihar &Amp; Ors on 20 July, 2010

Patna High Court – Orders
Mohd.Anisul Haque &Amp; Ors vs The State Of Bihar &Amp; Ors on 20 July, 2010
                     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
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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.

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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
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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
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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
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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
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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
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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.)