HARISH CHANDRA SHRIVASTAVA VS THE STATE OF BIHAR AND OTHERS

HARISH CHANDRA SHRIVASTAVA VS THE STATE OF BIHAR AND OTHERS

Landmark Cases of India / सुप्रीम कोर्ट के ऐतिहासिक फैसले



REPORTABLE
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)
J U D G M E N T
Rastogi, J.
1.  Leave granted.
2. Since common question has been raised in both the appeals,
however, decided by the separate impugned judgments by the High
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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
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Ayurved   College,   Buxar   Post   Ahirauli,   District   Bhojpur   and   the
hospitals attached to it w.e.f. 01st June, 1986 on certain terms and
conditions in terms of the notification dated 09th December, 1986.  
6. The   State   Government   thereafter   constituted   a   Screening
Committee vide its notification dated 09th October, 1990 to submit
its   report   to   the   State   Government.   The   Screening   Committee
constituted,   after   scrutiny   of   records   of   the   individual   teachers
submitted its report, which was published in the Bihar Gazette on
15th January, 1992 and in terms of the recommendation made by
the Screening Committee, the State Government took a decision to
absorb the services of 103 teaching and non­teaching employees,
including the present appellants vide order dated 24th  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   15th  January,   1992
challenged the recommendation by filing of various writ petitions
before the High Court under Article 226 of the Constitution and
while deciding the batch of writ petitions, the High Court directed
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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. 01st June, 1986
and to submit a report to the State Government. 
8. Although at one stage, the grievance was raised by the other
set of employees who were aggrieved by the directions of the High
Court in constituting a fresh Screening Committee but finally the
second   Screening   Committee   constituted   by   the   Government
pursuant to the judgment of the High Court dated 12th May, 1995
submitted its report dated 18th  June, 1999 and in terms of the
recommendation of the second Screening Committee report dated
18th  June,   1999,   the   State   Government   accepted   the
recommendations and absorbed 23 teaching employees out of 84
and no 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 29th August, 2003 containing a
list of 229 persons including the present appellants whose services
were not found fit for absorption and accordingly their services were
terminated. 
10. The recommendation of the second Screening Committee dated
18th June, 1999, followed with the order of termination passed by
the State Government dated 29th August, 2003 became the subject
matter of challenge by filing writ petitions before the High Court
under Article 226 of the Constitution and after the Division Bench
decided the batch of LPAs by judgment dated 01st November, 2006,
a fresh Review Screening Committee was constituted to examine the
qualifications of the teaching/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
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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
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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
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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."
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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
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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   09th
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
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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
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dated 09th December, 1986 got replaced to 01st June, 1986 in terms
of the judgment of the High Court dated 12th 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 09th December, 1986 w.e.f.
01st June, 1986 took over the college and management of the private
Ayurvedic College on certain terms and conditions and Clause (c) of
the notification of 09th December, 1986 of which reference has been
made   above   clearly   manifest   that   the   verification   of   the   list   of
teaching and 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
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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 09th December, 1986 leaves
no manner of doubt that the Screening Committee constituted by
the   State   Government   has   to   look   into   the   eligibility   and  other
minimum qualifications and teaching skills as on the said date i.e.
01st  June, 1986. 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 biodata 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. 01st June,
1986 and on the conjoint reading of Section 6(2) of the Act 1985
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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. 01st June, 1986 and the
recommendation   made   by   the   Screening   Committee   will   be
considered   by   the   State   Government   for   absorption   or   for
continuance in service or for termination, as the case may be, on
case to case basis in terms of 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
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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   postqualification   teaching   experience   of   three   years   from   recognized
Ayurvedic college as referred to under the Statute would not be
eligible   for   absorption   in   terms   of   the   notification   dated   09th
December, 1986, in our considered view, is a clear misconception of
law and deserves rejection. 
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
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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
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college   would   be   considered   by   the   Screening   Committee   duly
constituted by the department as on the cut­off date i.e. 01st June,
1986 and it is the said date on which the minimum qualification
and teaching skills of the individual has to be looked into by the
Committee while adjudging his overall suitability for absorption. 
28. Indisputedly, in the instant case, each of the appellants before
this Court was holding the academic qualification while entered into
service in the year 1978­1979 in the private Ayurvedic College and
holding teaching experience of more than three years as on the cutoff date 01st June, 1986 in terms of notification dated 09th December
1986, when the Screening Committee was called upon to adjudge
the overall suitability of the appellants for absorption and once the
appellants were indeed eligible as on the cut­off date i.e. 01st June,
1986,   the   justification   tendered   by   the   Committee,   in   the   first
instance, that the appellants were not holding the post qualification
teaching experience  of three  years on  the  date when  they  were
initially appointed in the private Ayurvedic College in the year 1978­
1979, is not in conformity with the mandate of the Act 1985 read
with notification dated 09th December, 1986.
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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
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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 18th 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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