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.
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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
2the 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.
3
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
5
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
6
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
7
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
8
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
9
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.)