JUDGMENT
B.D. Singh, J.
1. This application has been filed under Article 226 of the Constitution of India for quashing and cancellation of Letter No. 921/R, dated 10-7-68 (Annexure 1 to the writ application) received by the petitioner from the Registrar of the Patna University (Respondent No. 3) under the direction of the Vice-Chancellor of the said University (respondent No. 1) requiring the petitioner to hand over charge of the office of the Principal, Prince of Wales Medical College, to Dr. G. Achari, Professor and Head of the Department of Pharmacology, Patna University (respondent No. 4) and to hand over his office of Professor of Surgery No. I to Dr. R. V. P. Sinha who was then Professor of Surgery No. II (respondent No. 5). The petitioner had further prayed for an order of interim iniunction restraining the respondent Vice-Chancellor and the respondent Registrar, or either of them, from interfering, or in any way intermeddling with the discharge of his duties by the petitioner as the University Professor of Surgery and Principal of the Prince of Wales Medical College. The said letter was based on another letter dated the 6th July, 1968, from the Secretary, Health Department, addressed to the Chancellor, Patna University in reply to the Vice-Chancellor’s letter No. 837, dated 13-6-68 informing him that the Government after due consideration have decided that Dr. Vijoy Narain Singh will not be re-employed in Government service after his retirement on 14r7-68 hi the forenoon. The Vice Chancellor was further directed to take action accordingly (Vide enclosure to An-nexure 1).
2. The facts which have given rise to the letters referred to above may briefly be summarised as follows :–
The petitioner is a Fellow of the Royal College of Surgeons (England) and had been in the Medical Service of the Provincial Government and of its successor, the State of Bihar (respondent No. 6), under whose authority the Medical service was recently re-organised and constituted and named as the Bihar Medical Health Service. The then Provincial Government used to depute its officers under the Medical Service for teaching jobs at the Prince of Wales Medical College maintained and run by the Government and affiliated to the Patna University constituted under the Patna University Act of 1917. The petitioner was appointed Professor of Clinical Surgery of the Prince of Wales Medical College by the State Government in the year 1947. On the repeal of the Patna University Act of 1917 and its re-enactment as the Patna University Act, 1951 (Bihar Act XXV of 1951) (hereinafter referred to as ‘the Act’) and on the re-constitution of the Patna University, the said Prince of Wales Medical College, along with some other colleges specified under Section 51 of the Act, was transferred to the control of the Patna University constituted under the Act. Consequential to the transference of the said college the University was enjoined under Section 52 of the Act to employ, on such terms as may be determined by the State Government, all members of the teaching staff and other servants of the State Government employed in the Colleges transferred to the University under Sub-section (1) of Section 51 of the Act, who, immediately before the commencement of the Act, were serving in, or were attached to the colleges. The services of the petitioner were transferred to the Patna University in January, 1952. According to the petitioner, he was appointed as Professor of Surgery and the Head of the University Department in 1958. Further since 1961 he was also working as the Principal of the Prince of Wales Medical College. On the 15th July, 1968, the petitioner, on attaining the age of 58 years, was to retire on his superannuation from the Health Service of the respondent State.
3. On the 31st of May, 1968, the Members of the Syndicate of the Patna University in its ordinary meeting held on the 31st of May. 1968, considered the question of re-appointment of the petitioner until the age of 62 years on his superannuation from the Government service after attaining the age of 58 years. The relevant portion of the resolution reads as follows :–
“Resolved that Dr. V. N. Singh, Professor of Surgery and Principal, Prince of Wales Medical College, who is due to superannuate from Government service on attaining the age of 58 years with effect from 14-7-1968, be re-employed in the University Service until he attains the age of 62 years subject to concurrence of the State Government.” (Vide Annexure 2)
By another ordinary meeting held on the 10th of June, 1968 the Members cf the Syndicate of the University deleted the last portion of the above resolution, namely, “subject to concurrence of the State Government” (vide Annexure 2/A).
4. According to the opinion of the Vice Chancellor the resolution dated the 10th of June, 1968, was not valid and in his opinion it was necessary to obtain the concurrence of the State Government. Therefore, he wrote letter No. 837, dated 13-6-68 to the Government for concurrence. In reply to his letter he received the aforesaid letter dated the 6th July 1968 intimating that the Government had decided not to re-employ Dr. Vijoy Narain Singh in the Government service after his retirement. After the receipt of the said letter the Vice-Chancellor directed the Registrar to send the letter dated 10-7-68 (Annexure 1) to the petitioner. The petitioner after receipt of the letter contained in Annexure 1, wrote a letter dated 13-7-68 to the Vice-Chancellor protesting against the direction contained in the said letter and requesting him to act in accordance with the decision of the Syndicate re-employing the petitioner against the posts held by him (vide Annexure 11). But the Vice-Chancellor insisted upon the compliance of the directions contained in Annexure 1. Hence this writ application was filed by the petitioner, which was admitted on 16-7-68 but the prayer for the stay or issue of Injunction was refused.
5. The main points which fall for consideration in this case are :
(i) Whether the resolution of the Syndicate for the re-employment of the petitioner as Professor of Surgery and. Principal, Prince of Wales Medical College in the University Service until he attains the age of 62 years without concurrence of the State Government is valid.
(ii) Whether the Vice-Chancellor was under a duty to Rive effect to the orders of the Syndicate regarding the appointment of the petitioner?
(iii) Whether internal remedy was available to the petitioner?
(iv) If in the absence of the Government’s approval the petitioner would not be able to teach in the hospital clinical subjects in surgery, is he entitled to claim re-employment as a Professor of Surgery alone in the University Department as per resolution of the Syndicate?
6. First I will take up for consideration the points Nos. (ii) and (iii) together. Mr. Balbhadra Prasad Singh, learned counsel appearing on behalf of the petitioner has contended that the Syndicate is the Chief Executive Body of the University and it has powers to appoint officers and teachers of the University and the Vice-Chancellor, according to him, was under a duty to give effect to the orders of the Syndicate regarding the appointment of the petitioner. After the said resolution was passed by the Syndicate, according to him. it was irregular for him to have written to the Government for its approval or concurrence. Learned Counsel in order to support his contention has referred to the various provisions of the Patna University Act and has drawn our attention that the said Act was repealed by the Bihar State Universities (University of Bihar, Bhagalpur and Ranchi) Act, 1960 (Bihar Act XIV of 1960) which in its turn in so far as it was applicable to the Patna University established under it, was repealed by Patna University Act, 1961 (Bihar Act III of 1962). In short, so far this case is concerned, only the two Acts, namely 1951 Act and 1962 Act, are relevant. The terms appearing in the 1951 Act substantially bear the same meaning in the definiton section as in the 1962 Act. Learned Counsel has referred to Section 20 of the 1962 Act which provides that the Syndicate shall be the executive body of the University. He has also referred to Section 21 of the Act which provides the power and the duties of the Syndicate and Clause (e) of the said section gives power to the Syndicate to appoint teachers of the University. According to him, the petitioner was rightly appointed by the Syndicate under the said provision. Then he has drawn our attention to Section 10, Clause 10, of the Act which provides that the Vice-Chancellor shall give effect to the orders of the Syndicate regarding the appointment etc. Learned. Counsel has, therefore, submitted that the Vice-Chancellor had no jurisdiction or power after the said order of the Syndicate to write to the Government for its approval contrary to the second resolution of the Syndicate.
7, On the other hand, Mr. B. C. Ghose, learned counsel appearing on behalf of the Vice-Chancellor has urged that the Vice-Chancellor has overriding power under Section 10, Clause 12 of the Act which reads to this effect :–
“It shall be the duty of the Vice-Chancellor to see that the proceedings of the University are carried on in accordance with the provisions of this Act. the Statutes, the Ordinances, the Regulations and the Rules and to report to the Chancellor every proceeding which is not in conformity with such provisions.”
Learned counsel has submitted that if the proceeding of the University is not in accordance with the provisions of this Act it is his bounden duty to report to the Chancellor. He also drew our attention to Section 9(4) of the Act which provides that the Vice-Chancellor may by order in writing annul any proceeding of the University which is not in conformity with the Act, the Statute, the Ordinance or the Regulations. He also submitted that the petitioner ought to have moved the Chancellor instead of filing this writ application. He had alternative remedy which he ought to have availed of. Mr. Basudeva Prasad appearing on behalf of the University including the Syndicate, as also learned counsel appearing on behalf of other respondents, have adopted the argument advanced by Mr. Ghose on this point, and have urged that this application should fail solely on the ground that the petitioner has alternative remedy.
In view of the provisions contained under Section 10(12) referred to above. I am inclined to hold that the Vice-Chancellor had power to write to the Government for the concurrence, if in his opinion the resolution of the Syndicate was not in accordance with the provisions of the Act. Therefore, the contention of learned counsel for the petitioner fails. However, considering the facts and circumstances of the case I am not inclined to hold that this application should fail merely because the petitioner had alternative remedy provided under Section 9 (4) of the Act. The impugned letter contained under Annexure 1 was demanding handing over the charge by the petitioner to respondents 4 and 5. Besides, even after protest made by the petitioner to the Vice-Chancellor, the latter insisted upon the compliance of the order contained in Annexure 1. In my opinion, there was no alternative left to the petitioner than to file this writ application before this Court, as the decision by the Vice-Chancellor might have taken longer time and meanwhile prejudice might have been caused to the petitioner. Thus, we are inclined to examine the merit of the resolution of the Syndicate as to whether it was in accordance with the provisions of the Act or not.
8. Now I turn to the consideration of point No. (i) which is of real importance. It is mainly dependent upon the interpretation of Section 50 of 1951 Act and Section 52 of 1962 Act, since the language used in both these sections, is more or less identical. Reference was made by the parties to Section 52 of 1962 Act which is to this effect :–
“Teachers of clinical subjects and Pathology in the Prince of Wales Medical
College to be nominated by Government –Notwithstanding that the Prince of Wales Medical College is a college the hospitals attached to that college shall not be transferred to the University until such date as the State Government may, by notification, appoint and until the date of such transfer, all teachers of clinical subjects and pathology in the said college shall be appointed in accordance with the provisions of this Act by the University from amongst officers nominated by the State Government and all teachers so appointed shall be deemed to be members of the staff of the hospitals attached to said college”.
Learned counsel has contended that the provisions of the above Section 52 are not applicable in the case of the petitioner. He has urged that the concurrence or approval of the State Government was not required in the case of the re-employment of the petitioner as resolved by the Syndicate. Once the Syndicate has decided, the Government has no say in the matter. In order to support his contention he has referred to the notification dated the 8th July, 1960 of the State Government which was issued in pursuance of Clause (1) of Section 52 of the 1951 Act. By the said notification the terms were laid down on which the Patna University was to employ the members of the teaching staff, and the other servants of the State Government employed in the Prince of Wales Medical College who were transferred to that University under Sub-section (1) of Section 51 of the 1951 Act. He has drawn our attention to Clause 18 of the said notification the relevant portion of which is to this effect :–
“(1) The rules regulating the retirement of Government Servants shall apply to transferred Government servants.
(2) If the University decides to re-employ such Government servants, such re-employment will be treated as fresh appointment under the University and will not affect his pension and leave accounts in respect of his service (under) the State Government. Such a Government servant on re-employment shall draw the initial pay of the post in which he is re-employed unless the University sanctions advance increments.”
According to learned counsel, the resolution of the Syndicate contained in Annexure 2 read with Annexure 2/A, was in accordance with the provisions of Clause 18 (2) quoted above. He has drawn our attention to paragraphs 12 to 15 of the writ application wherein it is specifically stated that the Senate of the Patna University pn the 25th November, 1954, created University Departments including, inter alia, Medicine and Surgery. An extract from the minute of the Senate has been marked as Annexure 4 to the application. In the aforesaid University Department of Surgery, Dr. U. P. Sinha was appointed as Professor of Surgery, On the retirement of Dr. Sinha. the petitioner was appointed as the Head of the University Department of Surgery. Learned counsel has drawn our attention to the copy of the letter of the appointment of petitioner dated the 16th October, 1968, which is marked as Annexure 6. With reference to paragraph 16 of the application learned counsel has submitted that the petitioner was later appointed as Principal of the Prince of Wales Medical College in addition to his own duties as Head of the University Department of Surgery on the retirement of Dr. Gaya Prasad with effect from the 21st of April, 1961 as per notification which is marked as Annexure 7. This fact is also borne out from a true copy of demi-official letter received by the petitioner from the then Vice-Chancellor which is marked as Annexure 8. According to learned counsel, the petitioner was thus appointed by the University Department in order to teach the post-graduate course in that Department, according to the powers of the University contained under Section 4 read with Section 53 of the 1962 Act. He has referred to Section 4. Sub-section (7). which gives power to the University to institute Professorships, Readerships, Lecturerships and any other teaching posts required by the University and to appoint persons to such Professorships, Readerships, Lecturerships and post. Then he has referred to Sub-section (15) of the said section, which reads as follows :–
“The purposes and powers of the University shall be the following, namely :–
(15) to undertake the conduct of postgraduate teaching, research and work in departments established and maintained by the University;
Provided that if the University, at any time decides to conduct the post-graduate teaching in any college, it shall be lawful for the University to arrange and provide for the post-graduate teaching in that subject in that college, and to utilise, for the said purpose, the buildings of that college or any portion thereof and such members of the staff and the articles of furniture, library, books, laboratories, stores, instruments and other equipments of that college as may be prescribed in the Statutes.’
9. Learned counsel has also drawn our attention to Section 2(g) of the 1962 Act which defines Head of the University Department as “the Head of any department established and maintained by the University for imparting instruction to the students of the University in the postgraduate standard under conditions prescribed in the Statutes …..” He has also referred to Section 2, Clause (u) of the said Act which defines University Professor as “a teacher engaged in giving instruction in a department established and maintained by the University for imparting instruction in the post-graduate standard or in an institute and possessing such qualifications as may be prescribed by the Statutes.”
10. Learned counsel has submitted that since the petitioner was appointed as the Head of the University Department of Surgery and as University Professor to teach post-graduate students in the University Department, the provisions contained under Section 52 are not applicable at all in his case. According to him, the unambiguous words used in Section 52 clearly indicate that the application of its provision is confined only to the teachers or professors of clinical subjects and Pathology in the Prince of Wales Medical College meant for teaching undergraduate students. Therefore, he concluded that the resolution of the Syndicate contained in Annexure 2 read with An-nexure 2/A re-employing the petitioner as Professor of Surgery and Principal, Prince of Wales Medical College until he attains the age of 62 years, without concurrence by the State Government, is valid and in accordance with the provisions contained in the two University Acts referred to above.
11. On the other hand, Mr. B. C. Ghose, appearing on behalf of the Vice-Chancellor, has contended that according to Clause (a) of paragraph 1 of the terms under the notification dated 18th July, 1960, read with Section 48 of the 1951 Act, the State Government gave an option to the members of its Services either to retain their lien in the State Service or to opt for the University service. The petitioner opted to retain his lien. In the service of the State which fact the petitioner has also admitted in paragraph 10 of his petition. Therefore, he has urged that the petitioner’s services were merely a loan to the University. The University never appointed him as a University Professor nor he was ever described as such. He further submitted that the University could not create a post of University Professor of Surgery in the Faculty of Medicine and this fact is clearly stated in paragraph 8 of the counter-affidavit which has been filed on behalf of the University on 15-7-68 the relevant portion of which reads as :–
“In 1956 the Patna University Senate passed a Resolution for the creation of posts of University Professors in the Faculty of Medicine against existing posts, but, it did not materialise, for the State Government did not concur in the proposal.”
Therefore, he urged that the petitioner was never appointed as a University Professor to impart instruction to post-graduate students. Even for teaching the post-graduate students, according to him, it is not necessary to appoint a University Professor. In this connection he has referred to the proviso to Clause 15 of Section 4 of the 1962 Act which has already been quoted earlier; and he has laid stress on the expression “it shall be lawful for the University to arrange and provide for the post-graduate teaching in that subject in that college, and to utilise for the said purpose, the buildings of that college or any portion thereof and such members of the staff and the articles of furniture…..” He also submitted that if the petitioner was the Head of the Department it does not mean that he was also University Professor and, according to him, a Head of the Department need not be a University Professor according to the definition under Section 2(g) of the 1962 Act. and has emphasised upon the expression in the said clause which stands :–
“and includes the Director of any institution established by the University for the promotion of research …..”
Therefore, he submitted that the Head of a University Department may even be the Director of any institution. In conclusion, he urged that when the question of his re-employment was taken up by the syndicate, the petitioner was a teacher of clinical subjects in surgery and he was not a University Professor. Therefore. Section 52 of 1962 Act was clearly applicable in his case and the Government’s approval for his re-appointment was necessary according to the provisions of the Act.
The subsequent resolution of the Syndicate contained in Annexure 2/A deleting the expression “subject to the concurrence by the State Government” is invalid and not in accordance with law. According to
him, the petitioner could not be re-employed without the concurrence of the State Government,
12. Mr. Basudeva Prasad, learned counsel appearing on behalf of the University, adopted the arguments advanced by Mr. Ghose on behalf of the Vice-Chancellor and he further added that the resolution which was passed by the Syndicate contained in Annexure A, could not have been modified by the subsequent resolution of the Syndicate contained in Annexure 2/A. In other words, the second ordinary meeting of the Syndicate was called to transact the formal business of the previous resolution of the Syndicate. Therefore, the subsequent resolution could not have deleted any part of the resolution, which was passed in the previous meeting of the Syndicate. In this connection he has referred to Blackwell’s Law of Meeting, 1937 Edition, page 57. I am not inclined, to accept this part of his argument. In my opinion, the Syndicate in the subsequent meeting could have deleted the said portion of the resolution. They had such power to do so provided all other formalities of calling the meetings etc. were observed. But none has challenged that the formalities of calling the meeting, quorum etc., were not observed. But whether the Syndicate had power to re-employ the petitioner as Professor of Surgery and the Principal of Prince of Wales Medical College is a different question altogether. That will depend upon the interpretation of Section 52 of the 1962 Act and upon the question whether the petitioner was appointed University Professor of the University Department in order to impart education to the post-graduate students. Mr. Basudeba Prasad has further contended that if the subsequent resolution deleting the requirement of the concurrence by the State Government is invalid, no writ will lie to perpetuate the illegality.
13. Mr. B, K. Baner.ii, learned counsel appearing on behalf of Dr. G. Achari, respondent No. 4, also adopted the argument of Mr. B. C. Ghose, and further added that the terms of transfer contained in the notification dated the 8th July, 1960, completely control the tenure of service of the Government servant irrespective of the fact whether he is paid by the University or working for the University. He has drawn our attention to paragraph 3 of the said notification which says that a transferred Government servant who is member of the Bihar Civil Medical Service, shall, subject fo the provisions of the Act, continue to be a member of that service, so long as he is a teacher in the College. He also referred to paragraph 5 in which it is mentioned that when the confirmation of a transferred Government servant against a post in the cadre under the State Government is due the University shall refer the matter for the orders of the State Government. He has laid stress upon paragraph 6 thereof in which it is clearly stated that the standards for the crossing of efficiency bar of the transferred Government servants shall be determined by the University, subject, in the case of the teachers in the clinical department, to the approval of the State Government, Learned counsel has contended that the petitioner’s case was considered for reappointment by the Syndicate when he was a teacher in clinical surgery in the Prince of Wales Medical College. According to him, therefore, the approval of the State Government was imperative if he was going to be re-employed by the University, He has further submitted that under Section 52 of the 1962 Act no appointment other than that of the Government Officers can be made by the Patna University in the Clinical and Pathology Department of the Prince of Wales Medical College; and in the case of the petitioner the Government has categorically mentioned in the letter dated the 6th July, 1968, addressed to the Chancellor that the Government have decided that the petitioner will not be re-employed in Government service after his retirement on 14-7-68. He has also drawn our attention to paragraph 3 of the counter-affidavit which has been filed on behalf of the State of Bihar wherein it is stated that according to Section 52 of the Patna University Act no appointment other than that of the Government officers can be made by the Patna University in the Clinical and Pathological Department of the Prince of Wales Medical College and it is also mentioned therein that in the case of Dr. V. N. Singh the Government decided, after due consideration, not to grant him re-employment in Government service after retirement.
14. Mr. Jagdish Chandra Sinha, learned counsel appearing on behalf of Dr. E. V. P. Sinha, respondent No. 5, adopted the arguments advanced by Mr. Ghose and other counsel for the respondents. He also submitted that since the prayer for injunction was refused, Dr. R. V. P. Sinha has already taken charge from the petitioner and hence the petitioner’s application has become infructuous.
In my opinion, this contention of learned counsel is unacceptable. If it is held that the order of the Syndicate re-employing the petitioner is valid, certainly order can be passed by this Court directing Dr. K. V. P. Sinha to hand over charge to the petitioner.
15. Mr. Tara Kant Jha, appearing on behalf of the State of Bihar, contended that the concurrence of the State Government for the re-employment of the petitioner was imperative and he has referred to paragraphs 2 and 3 of the counter-affidavit, which has been filed on behalf of the State of Bihar.
16. Mr. Singh, learned counsel for the petitioner, however, maintained that the University has created University Department and the petitioner was appointed University Professor. In this connection he has referred to the Statutes with relevant extracts from the Act of 1951 and the Rules to be found in the Book published by the University in the year 1955. He has drawn our attention to its Chapter I at page 5 where under the heading “Representative Members of the Senate” it is mentioned that thirty-five seats allotted to the teachers under Section 15fl)r Class III(i), shall be distributed among the colleges and the University Departments. Under the heading “Colleges”, in item No. 4 the Prince of Wales Medical College is mentioned amongst other colleges. In the ‘University Departments’, among departments like English, History, Economics etc. the following are mentioned
” * * * * *
27. Physiology 23. Medicine
29. Surgery
30. Obstetrics and Gynaecology
31. Ophthalmology and Octorhino-laryngology
32. Pathology
33. Pharmacology
34. Anatomy”.
Further at page 7 it is mentioned that three teachers are to be elected, one from each of the following University Departments, by rotation, in the cyclic order according to the list of priority as indicated below :–
1. Physiology 2. Ophthalmology and Octorhino-laryngology 3. Anatomy 4. Obstetrics and Gynaecology 5. Pharmacology 6. Medicine 7. Pathology 8. Surgery.
He has also drawn our attention to page 26 where it is mentioned that the two Principals and four Heads of University Departments shall hold office by rotation in a cyclic order as members of the Syndicate according to the list of priority, their terms of office being one year from the date of their office. In the list of priority of principals in item No. 2, P. W. Medical College is mentioned; whereas in the list of priority of Heads of University Departments among others, in item No. 12. Surgery is mentioned. He has also referred to Chapter X of the Book dealing with the “Organisation of Teaching under the University” under Section 7(2) of the 1951 Act and the University framed Statutes. In paragraph 1 of the Statute it is mentioned that all recognised teaching in the University shall be conducted in the University Departments or Institutes established and maintained by the University or in colleges maintained or controlled by it. In paragraph 2 it is mentioned that each University Department shall be under the Head of University Department who shall be a teacher of the subject of the rank of the University Professor, Professor or Reader. He has also drawn our attention to paragraph 3 of the Statutes which says that the University Department may be located in the building directly under the University or in any of its colleges. Paragraph 4 thereof deals with the teaching in the colleges which shall be conducted in the departments each of which shall be under the Head of College Department who shall be a teacher of the subject of the rank of a Professor or Reader. Paragraph 5 says that the Head of the University or the College Department shall be responsible to the Dean of Faculty for the organisation of teaching in the Department. Paragraph 6 provides that where a University Department and a College Department in a subject are located in the same premises, the Head of the University Department shall co-ordinate the teaching in the two departments in consultation with the Head of the College Department. Lastly paragraph 7, which is also relevant for the disposal of this case, says that a teacher assigned to a University Department shall participate in the teaching work of the College Department and vice versa, if called upon to do so by the Dean of the Faculty.
17. Learned counsel for the petitioner, by reference to these provisions in the Statute, has contended that the University has kept the Universiey Department and the colleges separately so far the appointment of the staff of the University Department and the colleges are concerned. This also indicates that the University Department was created by the University and the University Professors were appointed. This further shows that the University Department and the college may be located in the same premises and the teacher of the University Department may also teach in the College Department if he is called upon to do so by the Dean of the Faculty.
18. But I find that In paragraph 2 of the Statute it is also mentioned that “pending the appointment of University Professor, Professor or Reader in the Department the seniormost Lecturer in the subject shall be acting as Reader and Head of the Department.” This may go against
the contention of learned counsel that the petitioner was appointed as University Professor as it has been stated in paragraph 8 of the affidavit filed on behalf of the respondent Patna University that in 1956 the Patna University Senate passed a resolution for the creation of the post of the University Professors in the Faculty of Medicine against the existing posts but it did not materialise, for, the State Government did not concur in the proposal. The University has, therefore, categorically denied the creation of University Professors in the Faculty of Medicine; whereas the petitioner has nowhere in his petition stated that he was appointed as a University Professor nor he has annexed any letter of the University showing that he was appointed as a University Professor.
19. However, learned counsel for the petitioner, in order to establish that the University Department was created and the petitioner was also appointed as a University Professor, has referred to the various printed budgets of the University of those years which were available to the petitioner. He has drawn our attention to page 34 of the budget for the year 1954-55 which relates to the Prince of Wales Medical College. In Item No. 9 at page 35, under the heading “name of post” Professor of Surgery is mentioned and under the heading “name and incumbent” Dr. U. P. Sinha is written. It also mentions his grade with scale of pay as well as his salary. Similarly, under item No. 10, Professor, Clinical Surgery, is mentioned and the name of incumbent is Dr. V. N. Singh (petitioner). Likewise his grade of pay and salary are also mentioned. Learned counsel has submitted that this related to the time when no separate University Department of Surgery was created.
20. He has then referred to the next budget for the year 1955-56. Here also, at page 16 which relates to the Prince of Wales Medical College, in item No. 11, name of post is Professor of Surgery, incumbent is the same Dr. U. P. Sinha and in item No. 12 the name of post is Professor of Clinical Surgery and the incumbent is Dr. V. N. Singh (petitioner). Upto this time also there was no creation of a separate University Department.
21. Next he has referred to the budget for the year 1958-59 at pages 16-17 under the Department of Surgery, the relevant portion of which reads as follows :–
“Details of post : University Professor-1
Professors or Readers-3
Lecturers –5
Tutor –1
(a) University Department – 4
1. Dr. U. P. Sinha
2. Dr. B. Mukhopadhyaya
3. Dr. S. K, Sinha
4. Vacant.
(b) P. W. Medical College
1. Dr. V. N. Singh (petitioner)
2. Dr. E. V. P. Sinha (respondent No. 5)
3. Dr. U. N. Sahi
4. Dr. R. N. Sinha
5. Dr. Avoy Singh
6. Vacant .”
Learned counsel contended that this
clearly indicates that the University
created University Department, Out of the
above 10 posts, 4 were for the University
Department and 6 were for the Colleges.
At that stage Dr. U. P. Sinha was in the
University Department and Dr. V. N.
Singh, the petitioner, was in the Prince
of Wales Medical College.
22. Then he referred to the budget for the year 1960-61 at page 32. Here also the details of the post are : University Professor 1, Professors or Readers 3, Readers 4 and Tutor 1. Under the University Department there were 4 posts which are as follows :–
1. Prof. V. N. Singh (petitioner)
2. Dr. S. K. Sinha
3. Dr. B. Mukhopadhyaya
4. Vacant.
In the Prince of Wales Medical College there were the following 5 posts : —
1. Vacant
2. Dr. R. V. P. Sinha (Respondent No. 5)
3. Dr. U. N. Sahi
4. Dr. R. N. Sinha
5. Dr. A. Singh.
This related to the year in which, according to the petitioner, he was appointed the University Professor on the retirement of Dr. U. P. Sinha from the University Department. In order to support this, he has also drawn our attention to a letter dated the 16th October, 1958 from the then Registrar, Patna University, addressed to the Dean of the Faculty of Medicine of the Patna University, which he has annexed to his petition and marked as Annexure 6, the relevant portion of which reads as follows :–
“I am directed to inform you that the Vice-Chanceilor has been pleased to appoint Dr. V. N. Singh, Professor of Clinical Surgery, P. W. Medical College, Patna to act as Head of the University Department of Surgery vice Dr. U. P. Sinha retired.”
In my opinion, this letter does not indicate that he was appointed as a University Professor. Rather, it indicates that he was appointed as Head of the University Department in Surgery on the retirement of Dr. U. P. Sinha. The expression “Professor of Clinical Surgery” used in the letter clearly mentions that it related to his being a Professor of Clinical Surgery in the Prince of Wales Medical College. The expression “Head of the Department” does not mean that he was
University Professor because Head of the Department as defined in the Act may also include Director of any Institute maintained by the University for the promotion of the research, whereas the University Professor is defined separately in the Act vide Section 2(u) of the 1962 Act. The definition of teacher is to be found in Section 2(r) of the said Act which is as follows :–
” ‘Teachers’ means Principals. University Professors, Professors, lecturers, demonstrators and any other person imparting instruction in departments established and maintained by the University or in any of its colleges or institutes;”
Paragraph 7 of the Statute also, which has been mentioned earlier, says that a teacher assigned to the University Department shall participate in the teaching work of the College Department and vice versa.
23. Learned counsel has then referred to the budget for the year 1963-64 at page 31. Here also the details of the post are : University Professor 1, Professors or Readers 2, Lecturers 4 and Tutors 4. In the University Department there were 3 posts which were held by (1) Dr. V. N. Singh (petitioner). (2) Dr. S. K. Sinha, and (3) Dr. A. Singh. and in the Prince of Wales Medical College Dr. R. V. P. Sinha (respondent No. 5) held the first post; the names of other doctors mentioned therein are not necessary to be mentioned here for the purposes of this case.
24. Lastly, he has referred to the budget for “the year 1967-63 at pages 31-32. Here also under the heading “Details of post” in the Department of Surgery it is mentioned as follows :
University Professor – 1
Professors or Readers – 2
Lecturers-4
Tutors — 4.
In the University Department there were 3 posts which were held by (1) Dr. V. N. Singh (petitioner), (2) Dr. S. K. Sinha, and (3) Dr. Abhay Singh. In the Prince of Wales Medical College there were 5 plus 3 = 8 posts out of which the first was held by Dr. R. V. P. Sinha (respondent No. 5) in place of Dr. V. N. Singh (petitioner) who was appointed as Professor in the University Department. The remaining posts need not be mentioned here in this judgment.
Learned counsel has emphasised that so far the creation of University Department and the appointment of the petitioner as Professor are concerned, the same is clearly established by these budgets. He has drawn our attention to paragraph 15 of the application where the petitioner has stated that he has been drawing his salary in accordance with the provisions made in the University budget in respect of the salary of the Head of the University Department of Surgery.
But in this paragraph also the petitioner has not stated that he was drawing his salary as University Professor. I have already pointed out earlier the distinction between the Head of the Department and University Professor. I have already referred to the counter-affidavit which was filed on behalf of the University on 15-7-68 denying the creation of the posts of University Professors in the Faculty of Medicine. Further, I find that in paragraph 7(D) of the supplementary counter-affidavit which was filed on 29-7-68 on behalf of the University and also in paragraph 14 of the counter-affidavit which was filed on behalf of the University on 22-8-68 it has been reiterated that in 1956 the Patna University Senate passed a resolution for the creation of posts of University Professors in the Faculty of Medicine against existing post but it did not materialise, for, the State Government did not concur in the proposal and in the former affidavit it is further stated that after this the Patna University Syndicate framed statutes. The relevant statutes are in the following terms :–
“5.2 Recognition of Teachers : The Pleads of University Departments, who possess the qualifications laid down
in the Statutes for University Professors may be recognised as University Professors by the Vice-Chancellor for the purpose of appointment as Dean of the Faculty concerned.
Provided that the recognition of a teacher under this Statute shall not in any way have the effect of altering conditions of service, emoluments and other privileges of the teacher concerned.
Provided further that in Departments where there are posts of University Professors no such recognition as aforesaid shall be given.”
25. Therefore, it was rightly contended on behalf of the University that, according to the aforesaid Statute the status of the Head of the University Department was recognised as equivalent to a University Professor for the purpose of appointment of Deans of the Faculties only. Further, in sub-paragraph (E) of the same paragraph it is also stated that the Syndicate of the Patna University had already resolved that all appointments of the transferred clinical teachers shall be subject to the sanction of the Government and it is categorically stated that the said resolution was never modified or rescinded. In sub-paragraph (E) of paragraph 24 of the said counter-affidavit, with reference to paragraph 15 of the application of the petitioner, it is stated that before the petitioner was appointed to act as Head of the University Department of Surgery in place of Dr. U. P. Sinha, he was appointed as Professor of Surgery in accordance with law on his nomination for the purpose, by the State Government under Section 50 of the Patna University Act, 1951. It is true that by reference to the budgets of the University it appears that the University Department was created and the petitioner was appointed University Professor in the Department of Surgery, but in my opinion, from this we cannot rebut the specific assertions made in the various counter-affidavits filed on behalf of the University. Besides, considering the terms of transfer quoted earlier, the petitioner’s exercise of option to retain his Hen in the service of the respondent State, and considering the other facts and circumstances of this case referred to above in my opinion, the resolution of the Syndicate contained in Annexure 2, read with the subsequent resolution contained in Annexure 2/A, re-employing the petitioner as Professor of Surgery and Principal, Prince of Wales Medical College until the age of 62 years on his superannuation from the Government service on attaining the age of 58 years without the concurrence of the State Government is not in accordance with law. Since in this case it cannot be cearly established that the petitioner was appointed as a University Professor, in my opinion^ the provisions contained under Section 52 of the University Act, 1962 shall apply. However, it has been urged on behalf of the petitioner that even if the Government has refused to re-employ the petitioner in the Government service after his retirement on 14-7-68 by its letter dated the 6th July, 1968, the Syndicate could have appointed the petitioner as University Professor of Surgery for teaching non-clinical surgery and for that admittedly no sanction will be required.
26. This brings us to the consideration of the last point, i. e., point No. (iv). It is admitted case of the parties that in view of the aforesaid letter of the Government the petitioner could not have gone to the said college to teach clinical subjects in surgery. I have referred to Dorland’s Illustrated Medical Dictionary, 23rd edition, for the meaning of the word “clinical” which stands : “Pertaining to a clinic or to bedside; pertaining to or founded on actual observation and treatment of patients, as distinguished from theoretical or experimental.” More or less similar meaning is given in the Oxford English Dictionary, Vol. II, published in 1933 and reprinted in 1961. According to it, the word “clinical” means “of or pertaining to the sick-bed, spec, to that of indoor hospital patients : used in connexion with the practical instruction given to medical students at the sick-beds in hospitals; Clinical lecture — a lecture at the bedside of the patient upon his case; Clinical medicine, surgery, medicine or surgery as learnt or taught at the bedside ‘usually applied to hospital practice in which the physician, in going round the wards, comments upon the cases under his care’.
It seems the petitioner could have been re-employed by the University only as a Professor of Surgery. In the University budget for the year 1954-55 I find that Professor of Surgery was Dr. U. P. Sinha whereas the petitioner was the Professor of Clinical Surgery in the Prince of Wales Medical College. Therefore, it would have been possible for the University to appoint two Professors, one as Professor of Surgery and the other as Professor of Clinical Surgery. The petitioner, in that case, would have taught only the theoretical side of surgery to the post-graduate students.
27. Mr. Basudeva Prasad, learned counsel appearing on behalf of the University has contended that when the petitioner was proposed to be re-employed by the Syndicate and before the petitioner retired, he was teaching clinical surgery and the Syndicate by the resolution contained under Annexure 2 clearly meant to re-employ him as Professor of Surgery for teaching clinical subjects and that was the intention of the Syndicate. Now the said resolution cannot be stretched to mean that the Syndicate wanted to re-employ him only as Professor of Surgery for teaching non-clinical subjects to the post-graduate students. Besides, the Syndicate never meant to appoint two University Professors, one for teaching clinical subjects and the other for teaching non-clinical subjects, in surgery. He further submitted that for postgraduate teaching the clinical training plays very important role. Reference may be made to the counter-affidavit which was filed on 22-8-68 on behalf of respondent Nos. 1 to 3 in reply to the surrebutter filed on behalf of the petitioner. In paragraph 11 of the said affidavit the relevant Syndicate resolution has been reproduced wherein it is stated that the post-graduate degree is not only in the nature of research degree, but a degree of higher scholarship in the clinical and other subjects and that the alumni are to receive guidance in their studies from the professors and lecturers of surgery in the Prince of Wales Medical College either assigned to the University Department or not, and they carry on their research in the laboratory of the Patna Medical College Hospital and not in any laboratory established and maintained by the University. The University never established any laboratory separately for Faculty of post-graduate teaching in surgery. The post-graduate teaching in surgery is conducted in the different wards of the Patna Medical College Hospital which are owned, controlled and maintained by the Government, and thus it would be clear that the studies pursued by the aforesaid alumni are mainly clinical studies.
28. Further, that paragraph also contains the relevant Syndicate resolution regarding the post-graduate studies in clinical subjects. Paragraph 4 of the memorandum of resolution specifically mentions that the period of training for the diploma course may extend for a period of one academic year, M.Sc. and Ph.D. courses will ordinarily extend for a period of two years of which at least two terms will be devoted to lectures, demonstrations and clinical training. Even the course of M. D. and M. S. Examination contains special clinical lecturers. Further, Mr. Prasad has also drawn our attention to the application form for permission to appear at the Master of Surgery Examination, In that printed form there is a column for a certificate to be granted to the applicant by the Head of the University Department. The relevant portion of the certificate to be given reads :–
“Certified that Dr. ….. has
worked under my supervision at the Patna Medical College Hospital for a period of 4 terms and has completed his thesis under my guidance. The thesis embodies result of the candidate’s own research work.”
Therefore, he submitted that the research including the clinical part of it, has to be done by the Head of the University Department of Surgery. In the circumstances, there is no doubt in my mind that the clinical part of the training plays important role in surgery. I have also referred to the Patna University Regulation compiled in the year 1965 regarding the M. D. Examination which shall consist of (1) Thesis, (2) 4 theoretical papers, (3) oral examination, and (4) clinical examination. Therefore, from that point of view also, clinical teaching must nave been an important consideration when the Syndicate had proposed the re-employment of the petitioner. Hence, this contention of learned counsel for the petitioner also fails.
29. Since, however, the application is being dismissed on the ground that the post of Professor, Clinical Surgery, implies attendance in the hospital which is under the control of the Government and not of the University, it must be stated that if the University could manage to engage the petitioner in an administrative job which would not imply any clinical work in the hospital or he could be assigned the job of purely theoretical teaching in surgery, our order in the present writ petition cannot affect the power of the University in regard to the Prince of Wales Medical College. Patna.
30. In the result, there is no merit in this application which is accordingly dismissed; but in the circumstances of the case there will be no order as to costs.
Misra, C.J.
31. I agree.