Harish Chandra Shrivastava vs The State Of Bihar

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO(S). OF 2022 (Arising out of SLP(C) No.10473 of 2018)

HARISH CHANDRA SHRIVASTAVA ….APPELLANT(S)

VERSUS

THE STATE OF BIHAR AND OTHERS ….RESPONDENT(S)

WITH

CIVIL APPEAL NO(S). OF 2022 (Arising out of SLP(C) No.11057 of 2018)

JUDGMENT

Rastogi, J.

1. Leave granted.

Signature Not Verified Digitally signed by POOJA SHARMA

2. Date: 2022.04.13 17:08:11 IST Reason: Since common question has been raised in both the appeals,

however, decided by the separate impugned judgments by the High

1 Court of Judicature at Patna on 18th September, 2017 and 30th

October, 2017 respectively, with the consent of parties, both the

appeals are disposed of by the present judgment.

3. In the present batch of appeals, all the five appellants have

approached this Court with the self­same grievance that they were

holders of degree in Ayurveda and were appointed as Lecturers in

between the period from 14th March, 1978 to 10th May, 1979 in the

respective private Ayurvedic Colleges and by passage of time, they

were promoted as Reader/Professor. Admittedly, their appointment

as a Lecturer was much prior to 25th March, 1984.

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 2 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 09 th 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 non­teaching employees,

including the present appellants vide order dated 24 th November,

1992.

7. It reveals from the record that the teaching/non­teaching

employees who were dissatisfied with the recommendation made by

the Screening Committee report dated 15 th 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

3 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 cut­off date, i.e. 01 st 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 12 th 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 non­teaching employee out of 167 was considered fit for

absorption.

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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 29 th 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 01 st November, 2006,

a fresh Review Screening Committee was constituted to examine the

qualifications of the teaching/non­teaching employees.

11. The Review Screening Committee in its report recommended

for absorption of 24 teaching employees and 42 non­teaching

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

5 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 non­suited 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 XVI­B 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 1978­1979, were ineligible for

6 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.

12. We have heard the learned counsel for the parties at length

and perused the material on record with their assistance.

13. Before we proceed to examine the grievance made by the

appellants, it will be apposite to take note of the scheme of the

Statute of the Bihar University and provisions relevant for the

purpose.

14. Chapter XVI­B of the Statutes of the Bihar University which

prescribes the essential qualifications for appointment of teachers in

faculty of Ayurveda and for the post of Lecturer in particular, with

which we are concerned, is reproduced hereunder:­

“1. The following shall be grades, pay scales and minimum qualifications of teachers and officers in the faculty of Ayurveda:­ ……..

(d) Lecturer Pay Scale­ 610­20­670­30­940­EB­35­1155.

Qualifications:­ Degree in Ayurveda from a University or a Board/ Council Established by a State or Central Government and recognized by the University with at least 3 years of teaching experience in a recognized Ayurvedic College, or with

7 at least 3 years experience as a Medical Officer in Government/ University Dispensary.

Provided further that a holder of M.B.B.S. degree University from any recognized shall also be eligible for appointment in Anatomy Physiology and Bio­Chemistry, Pathology, Jurisprudence, Health and Hygiene and holder of M.Sc. degree will be eligible for Basic Science in the subject concerned.”

15. It may be relevant to note that CCIM Act, 1970 also laid down

the self­same teaching qualification for teaching staff in Ayurvedic

degree colleges. The relevant clause of the CCIM Act, 1970 reads as

follows:­

"13. Qualifications prescribed for Teaching Staff Essential:

(a) Degree (diploma in Ayurved from a University established by law or a statutory Board/ Faculty/ Examining Body of Indian Medicine or equivalent OR Ayurvedacharya of All India Ayurved Vidyapeeth.

OR Other eminent Ayurvedic Scholars of established repute though not having any degree/ diploma, but fit for teaching Ayurvedic subjects.

(b) Teaching experience in any institution for ten years, five years and three years for the post of Professor, Reader and Lecturer respectively.

(c) Knowledge of Sanskrit.

Desirable:

(a) Post/graduate qualification in Ayurved from a recognized institution/ university established by law.

(b) Original published papers/ books as the subject."

8 16. Section 3 of the Act, 1985 postulates that the State

Government, by a notification and from the date mentioned therein,

is competent to take over the college and management of the private

Ayurvedic College. However, in terms of Section 6 of the Act 1985,

the State Government is vested with the power to lay down the

terms and conditions of the teaching staff and other employees of

the college. Section 3 and Section 6 of the Act 1985 relevant for the

purpose are reproduced hereunder:­

“3. Taking over of Private Medical (Indian System of Medicine) Colleges.­

(1) The State Government may, by a notified order and from the date mentioned therein, take over a College and the management and control thereof shall thereupon be exercised by the State Government in such manner as specified in the said order. (2) All the assets and properties of the college and the college body whether movable or immovable including land, building, library, laboratory and dispensary workshop, store, instruments, machinery, vehicles, cash balance, reserve fund, investments, taxes, furniture and others shall, on the date of take over stand transferred to and vested in, and be deemed to have come into possession of the State Government.

(3) All the liabilities and obligations of the College under any agreement or contract entered into bona fide before the date of taking over shall devolve and shall be deemed to have devolved on the State Government.

6. Determination of terms of the teaching staff and other employees of the College. – (1) From the date of the notified order, all

9 the staff employed in the College shall cease to be the employees of the College body :

Provided that they shall continue to serve the College on ad hoc basis till a decision under sub­sections (3) and (4) of this Section is taken by the state Government.

(2) The State Government will set up one or more committees 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 Act, Statue or Regulations of the University concerned and in keeping with the guidelines laid down by the Indian Medical Council of India and take into consideration all other relevant materials including length of his 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 the merits of each case whether to absorb him in government service or to terminate his service or to allow him to continue on an ad hoc basis for a fixed term on contract and shall, where necessary, redetermine the rank, pay allowances and other conditions of service.

(4) The State Government shall similarly determine the terms of appointment and other conditions of service of other categories of staff of the college on the basis of facts ascertained either by a committee or by an officer entrusted with the task and the provisions of sub­sections (2) and (3) of this Section shall apply mutatis mutandis to such cases.”

17. The Government later issued a Notification dated 09 th

December, 1986 of taking over of private medical colleges issued

in exercise of power under Section 3 of the Act 1985, the extract

of which relevant for the purpose is reproduced hereunder:­

“BIHAR GAZETTE, 24 DECEMBER 1986 Medical Education and Family Welfare Department NOTIFICATION 09/12/1986

10 No. Indem (H)M­2­186/84­940(DM)­M. E. ­ under Section 3 of Bihar Private (India System of Medicine) College (taking over) Act 1985 (Bihar Act, 10, 1985) and the powers provided therein the Bihar Government takes over Sri Dhanwantri Ayurved College, Buxar, Post Ahirauli District Bhojpur and the Hospitals attached to it with effect from 01/06/1986 with the following terms and conditions:­

(a) As a result of Nationalization (Sarkarikaran), all the movable and Immovable properties of the institution will vest in the State Government from the date of Nationalization. The verification of the certified list of the entire assets and liabilities of the said college would be done by the Department and from the date of the nationalization (take over). No responsibility of any liabilities would be on the Government except the salary of the teaching and non teaching employees of the said college.

(b) That no dues of any kind is owed by the said college as per the no dues certificate produced by the governing body of the college to the Department nor there is any dues on its land and the entire land of the college is in its peaceful possession.

(c) That the verification of the list of Teaching and Non Teaching employees working in the said college on the cut off date of 01/03/1983 would be done by a Screening Committee duly constituted by the Department and it would be seen that whether on the said date the employees and teachers were having minimum qualification and teaching skill or not for the post which they held on the said date.

(d) As per the Norms of Indian Medical Council the sanction/creation of approved posts of Gazetted and non gazetted would be done as per the approved pay by the State Government along with all the allowances and till then the employees working in the said institution would get their present pay.

By the order of the Governor Banshidhar Singh, Deputy Secretary”

18. It may be relevant to note that the cut­off date which has been

referred to as 01st March, 1983 in the aforementioned notification

11 dated 09th December, 1986 got replaced to 01 st June, 1986 in terms

of the judgment of the High Court dated 12 th July, 1988 passed in

C.W.J.C. No.992/1987.

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 1978­1979 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 09 th 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 non­teaching employees working in the said college on

the cut­off 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 12 skills for the post that they held on the cut­off date and not on the

date of appointment.

21. Clause (c) of the notification dated 09 th 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. At this stage, we would like to take note of the

submission made by learned counsel for the respondent State that

the notification dated 09th December, 1986 has to be read alongwith

Section 6(2) of the Act which casts an obligation on the Committee

of experts to examine the bio­data of each of the members of the

teaching staff and to ascertain whether appointment, promotion and

confirmation was made in accordance with the Act, Statute or

Regulations of the University concerned keeping in view the

guidelines of statutory authority and the recommendation made

under sub­Section (2) of Section 6 was to be considered by the State

Government for taking a final decision under sub­Section (3) of

Section 6 of the Act 1985.

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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 cut­off date i.e. 01 st June,

1986 and on the conjoint reading of Section 6(2) of the Act 1985

14 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 bio­data 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 cut­off date i.e. 01 st 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 sub­Section (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

15 eligibility of the teacher to be looked into as on the cut­off 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 1978­1979 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 09 th

December, 1986, in our considered view, is a clear misconception of

law and deserves rejection.

25. We proceed to further examine as to whether the requirement

of eligibility of the teaching staff of holding post qualification

teaching experience of three years as a teacher/lecturer referred to

under the Statute is possible for the incumbent to meet out on

which the State counsel has put much emphasis. Our question to

him was how far it is practically possible that when you don’t permit

a person to be recruited into service as a teacher on the basis of his

academic qualification, how he will gain post­qualification teaching

16 experience of three years as the condition of eligibility and how both

these twin conditions would meet together.

26. Leaned counsel for the respondents even after seeking

instructions from the department has come with the explanation

that this being the statutory requirement, one is supposed to

comply with at the time of initial appointment but he was unable to

justify as to how the person on the basis of academic qualification, if

not being permitted to teach, may acquire post qualification

teaching experience as referred to under the Statute of the Bihar

University Act or by CCIM Act, 1970 for entry into service and, in

our considered view, the academic qualification and post

qualification teaching experience of three years at the entry level

post i.e. Lecturer in the instant case, are two different ends which

are not possible to meet.

27. We are not going into this controversy any more and leave it at

this stage for the reason that the requirement in terms of the

notification dated 09th December, 1986 was never the subject matter

of challenge and clause (c), in particular, clearly manifests that the

verification of the list of eligible teaching employees working in the

17 college would be considered by the Screening Committee duly

constituted by the department as on the cut­off date i.e. 01 st 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 1978­1979 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 09 th 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 cut­off date i.e. 01 st 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.

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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/non­teaching 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

19 services of the appellants in consequence thereof, each one of them

deserves to be reinstated in service with all consequential benefits.

32. So far as Dr. Mod Nath Mishra is concerned, since he has not

attained the age of superannuation, we direct the respondents to

pass necessary order regarding his reinstatement within a period of

one month and he shall be entitled for all notional benefits

including pay, seniority and other consequential benefits to which

he is entitled for under the rules but shall not be entitled for salary

during the period he has not served the institution.

33. The other four appellants who have attained the age of

superannuation shall be treated to be in continuous service and

their service shall be treated as a qualifying service for all practical

purposes, including for pension and other retiral benefits, which

each of the appellants is legitimately entitled for under the rules.

However, we make it clear that the appellants shall not be entitled

for salary for the intervening period during which they have not

served the institution.

34. These appeals succeed and are accordingly allowed and the

impugned judgments of the High Court dated 18 th September, 2017 20 and 30th October, 2017 respectively are hereby quashed and set

aside in the observations made above.

35. We direct the respondents to pass necessary order regarding

release of their pension and other retiral dues to which the

individual appellant/teacher is entitled for within one month and

arrears of retiral dues shall be paid to each of them within three

months after due computation, failing which it shall carry interest @

12% per annum until actual payment. No costs.

36. Pending application(s), if any, stand disposed of.

…………………………….J. (AJAY RASTOGI)

…………………………….J. (ABHAY S. OKA) NEW DELHI APRIL 13, 2022.

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