Dr. Mohd. Mustaquim Ansari and Others vs The State of Bihar and Others

N.P. Singh, J.—The three applications have been filed on behalf of different petitioners for quashing an order dated 19th April, 1984, issued by the State Government declaring the appointment of the petitioners to Rai Bahadur Tunki Sah Homeopathic Medical College and Hospital (hereinafter referred to as ''the College'') as illegal. The aforesaid College and Hospital has been established by Rai Bahadur Tunki Sah. In the year 1978, the Bihar University granted temporary affiliation up to the degree course for the said College. In the year 1979, negotiation started between the management of the said College and the State Government for take over of the said College. On 10.3.1979, the management of the College addressed a letter to the State Government that it was prepared to hand over the College and the Hospital to the State Government without any compensation whatsoever on the conditions mentioned in the said communication including that the name of the College shall not be changed. However, the question of take over of the said College by the State remained under consideration of the State Government.

On 29.1.1081, a notification was issued by the State Government in exercise of the powers conferred by sub-section (1) of section 3 of the Bihar Provincialisation of Road and Hospitals Act, 1947 (hereinafter referred to as ''the Act''), saying that it has been decided to take over the Hospital aforesaid with effect from 1.4.1981 and as such any person interested may file an objection within one month from the date of publication of the said notification in the gazette. Thereafter another notification was issued on 16.4.1981 u/s 3(1) of the aforesaid Act itself saying that the Government of Bihar has been pleased to direct that the Hospital aforesaid shall vest in the State of Bihar with effect from 1.4.1981. The schedule of the notification which specified as to what has vested in the State Government is as follows:--

All lands, buildings, fixtures, medicines, stores, equipments furniture, chemical, laboratory and other articles appurtenant to the Rai Bahadur Tunki Sah Homeopathy Medical College and Hospital in the district of Muzaffarpur.

According to the petitioners, as they had been appointed against the different posts in the College and Hospital, after the take over of the College and Hospital, it shall be deemed that they became employees of the State Government with effect from 1.4.1981, the date of the take over. It was pointed out that once the College and Hospital has been taken over by the State Government, it is not open to the State Government to recognise the appointment of some and ignore the appointment of others. It was urged that in view of section 3(1) of the Act not only the lands, buildings and other appurtenants of the College and Hospital shall vest, but even the services of the employees of the College and Hospital shall be deemed to have been taken over, as the liability of the College and Hospital.

The stand of the State is that under the provisions of the Act what had been specified in the notification u/s 3 of the Act shall only vest in the State Government; section 3 or 4 of the Act do rot speak specifically that even the employees of such College and Hospital shall become the employees of the State Government since the date of take over. According to the respondents, in the offer which has made to the State Government by the management of the said College by the aforesaid communication dated 10.3.1979, there was no such condition that the State Government shall recognise even the services of the employees of the said College and Hospital after they vest In the State Government, it was pointed out that although there was neither any contractual nor statutory obligation on the part of the State Government to recognise the services of the employees of the College and the Hospital, still the State Government has recognised the services of most of the employees of the said College and Hospital, who were found to have been duly appointed. As the appointments of the petitioners were found to be fraudulent and invalid, after due enquiry, their services have not been recognised. It has been stated that the management of the College and the Hospital, after issuance of the aforesaid notification dated 29.1.1981 and knowing full well that the College and the Hospital is to vest in the State Government with effect from 1.4.1981, made mass appointments of Professors, Lecturers, Tutors, Clerks and Class IV grade employees between 28.3.1981 and 31.3.1981, i.e., within four days of the vesting of the College and the Hospital in the State Government. According to the respondents, in such a situation, they were left with no option but to examine and scrutinize such appointments and then to issue the impugned order saying that such appointments were not being recognised by the State Government.

During the hearing of the applications it was an admitted position that out of more than hundred petitioners in three applications, only 20 to 25 claimed to have been appointed prior to 29.1.1981. Even out of those 20 to 25 who claimed to have been appointed in the month of November, 1980, many of them have joined after 29.1.1981.

Sections 3 and 4 of the Act are as follows:--

Vesting of roads and hospitals in the Government.--The State Government may, by notification, direct that, with effect from such date as may be specified therein and subject to the provisions of section 6 and such conditions and exceptions as may be prescribed, any hospital or road which is vested in, or is under the control or administration of, the Commissioners of any Municipality, any District Board or other local authority or any Committee or Joint Committee or other body thereof constituted under the Bihar and Orissa Local Self-Government Act of 1985, the Bihar and Orissa Municipal Act, 1922, or any other law whereby the local authority was constituted or any person or trustee shall notwithstanding anything contained in any law for the time being in force, be vested in the State Government:

Provided that before issuing such notification, the State Government shall give such notice as it considers reasonable of its intention to issue notification and shall consider any objections or suggestions that may be put forward by the local authority concerned or other interested persons:

Provided further that nothing in this sub-section shall be deemed to apply to any hospital, which is vested in, or is under the control of administration of any religious or philanthropic mission.

(2) Subject as aforesaid, all rights and liabilities of the Commissioners of the Municipality, the District Board or other local authority or of any Committee, Joint committee, body, person or trustee referred to in sub-section (1) in, appertaining to, or arising out of, the property covered by the notification issued under that sub-section shall, with effect from the date mentioned in the notification pass and be transferred to the Government and the State Government shall from such date be in charge of the administration, control, maintenance and management of the said property.

Vesting of endowments and funds appertaining to a hospital.--All endowments or funds, which appertained to or were appropriated specifically for the purpose of any hospital immediately before it was vested in the State Government u/s 3, shall be vested in the State Government for those purposes and continue to be applied by the State Government to the same purposes as those to which they were lawfully applicable immediately before the date when the endowment or fund concerned was so vested.

Section 6 contains the provisions regarding payment of compensation whenever right and interest in any private hospital is acquired by the State Government.

In view of the express and explicit language of sections 3 and 4, the right of the State Government to take over the Hospital in question with effect from the date to be notified cannot be challenged. It is also apparent that after the right, title and interest of the private management in the property specified in the notification vest in the State Government, the State has to manage the affairs of the Hospital. The petitioners have not challenged the vesting of the College and the Hospital in the State Government. The only controversy, which is to be resolved in the present applications is as to whether having issued a notification u/s 3 of the Act the State Government is bound to recognise the appointments having been made by the erstwhile management irrespective of the question of the validity of such appointments.

The petitioners themselves have annexed a sample copy of the order of appointment issued by the Secretary of the said College and the Hospital. The order says that the service "is purely temporary and may be terminated at any time......". It was urged on behalf of the petitioners that merely by issuance of notification u/s 3(1) of the Act on 29.1.1981 notifying that the College and the Hospital shall vest in the State Government with effect from 1.4.1981, the then management did not forfeit the right to make further appointments in the said College and the Hospital, which right, according to the petitioners'' continued up to 31.1.1981 and as the appointments have been made during that period they have to be recognised by the State Government. It was pointed out that when sub section (2) of section 3 says "all rights and liabilities......of any Committee (joint committee, body, person or trustee) referred to in sub-section (1)............shall, with effect from the date mentioned in the notification pass and be transferred to the Government............", it means that even the services of these petitioners which shall be included in the expression "liabilities" have been transferred to the State Government and they shall be deemed to have become employees of the State Government with effect from 1.4.1981. In support of this contention reference was made to a judgment of the Delhi High Court in the case of Mohd. Yaqub Vs. The Union of India and Others, . In that case, due to reorganisation of State under the Punjab Reorganisation Act, a question arose as to whether after the dissolution of the Electricity Board its employees constituted the liability of the Board which had to be apportioned between the successor States. After referring to sub-sections (3) and (4) of section 67 of the Act aforesaid, it was observed as follows:--

The question with which we are concerned, is whether the employment of the employees of the Electricity Board constituted the liability of that Board. In this respect we find that the word "liability" has a wide connotation. It is a broad term of large and comprehensive significance and means legal responsibility or obligation to do a thing. According to Bouvier''s Law Dictionary, "liability" is "the state of being bound or obliged in law or justice''''. According to Anderson''s Law Dictionary "liability" means "the state of being bound or obliged in law or justice to do, pay or make good something, legal responsibility". Black''s Law Dictionary defines the word "liability" as meaning "the state of being bound or obliged in law or justice to do. pay or make good something: legal responsibility". The above definitions and some American cases were referred to by Tek Chand, J, in First National Bank Ltd. (in Liqn.) Vs. Seth Sant Lal, , and it was observed that the term "liability" was of large and comprehensive significance and when construed in its usual and ordinary sense, in which it is commonly employed, expresses the state of being under obligation in law or in justice.

Keeping the above connotation of the word "liability" in view we have no doubt in our mind that the employment of the employees of the Electricity Board did constitute the liability of the Electricity Board. The services of the employees of the Electricity Board like respondents 4 to 6 having not been terminated by the Board they had a right to be retained in the employment of the Board and this fact created a corresponding liability of the Board to keep them in employment. This liability, in terms of sub-section (2) of S. 67 of the Punjab Reorganisation Act, had to be apportioned between the successor States as has been done in the present case.

Similar view was expressed in the case of W.W. Joshi and Others Vs. State of Bombay and Others, where it was pointed out that there was no reason why a restricted meaning should be given to the word "liability" used in an Act. It was observed that on proper construction the provisions of the Act in question "intended to include in the word ''liability'' not only a financial obligation but also obligations of every other kind, including one of reinstating a government servant wrongly dismissed".

The learned Advocate General appearing for the State submitted that for the purpose of this case even it is assumed that the expression "liabilities" occurring in section 3(2) shall include the services of the persons appointed by the then management of the College and the Hospital in question, which stood transferred to the State Government with effect from 1.4.1981 : still only such liabilities stand transferred which can be held to be legal and valid. In other words, if the appointments are not legal and valid, then the services of such persons shall not stand transferred to the State Government as liabilities under subsection (2) of section 3 of the Act. In this connection it was pointed out that not only more than hundred persons were appointed as Professors, Lecturers, Tutors, Clerks and Peons after issuance of notification u/s 3(1) but even the procedures prescribed for such appointments were not followed.

The Bihar Development and Homeopathic System of Medicine Act, 1953 initially vested power of reorganisation and control of a Homeopathic Medical College in a Board constituted under that Act. However, in the year 1975, the said Act was amended by the Bihar Development of Homeopathic System of Medicine (Amendment) Ordinance, 1975. Section 36-A was introduced. Section 36-A is follows:--

36-A. Functions and powers of Universities with respect to institutions imparting training in homeopathic system of medicine-- (1) A University established by law in the State of Bihar may recognise educational institutions to give training in and lay down a course of training in homeopathic system of medicine, prescribe qualifications for admission to such a course, hold examinations and confer, grant or issue degrees, diploma or certificates in the Homeopathic system of medicine and frame rules and do such other acts as may be necessary for the above purposes.

(2) Every person who has been conferred, granted or issued degree, diploma or certificate in the homeopathic system of medicine by a University shall be entitled to have his name entered in the register referred to in section 22.

(3) A University may grant recognition to educational institutions for imparting instruction and for preparing students for examinations referred to in sub-section (1) and may suspend or withdraw such recognition if in the opinion of the University the statutes, ordinances, regulations or instructions of the University have not been satisfactorily complied with by the institution.

(4) An educational institution recognised by a University under sub-section (1) shall have the same relationship with the University as any college admitted to the privileges of the University with such modification, if any, as the University may, from time to time, decide to make.

In view of sub-section (1) of section 36-A, the University of Bihar had the power to recognise any Homeopathic College as an educational institution for training in homeopathic system of medicine. Sub-section (4) of said section 36-A says in clear and unambiguous terms that an educational institution meaning thereby a Homeopathic College recognised by the University under sub-section (1) of section 36-A shall have the same relationship with the University as any College admitted to the privilege of the University. In other words, after introduction of section 36-A, in the year 1975, the College and Hospital in question was to have the same relationship with the University of Bihar as any other affiliated college subject to the control of the University. The result will be that in view of the aforesaid sub-section (4) of section 36-A, the provisions of the Bihar State Universities Act, including section 60 and the regulations framed by the University in respect of affiliated Colleges became applicable even to the College in question. That is why temporary affiliation appears to have been granted to the College in the year 1978, as already mentioned above, and on the basis of that affiliation only the students of the College must have been appealing at the examination of the University. This aspect of the matter has been examined recently in the case of Dr. Narendra Narain Sinha v. The University of Bihar and others (C.W.J.C. No. 2723 of 1987) disposed of on 20.2.1988 by a Bench of this Court. It has been held that after the amendment in the year 1975 aforesaid even a Homeopathic Medical College had to seek affiliation from the University and provisions of the State Universities Act and Regulations framed thereunder for constitution of Governing Body and Ad hoc Committee became applicable.

It was pointed out on behalf of the State that in view of section 35 of the Bihar State Universities Act, while the College in question was an affiliated College of the University of Bihar, no appointments could have been made without the prior approval of the State Government. The relevant part of section 35 is as follows:--

No post for appointment shall be created without the prior sanction of the State Government--Notwithstanding any thing contained in this Act, no University or any College affiliated to such a University, except such College--

(a) as is established, maintained or governed by the State Government; or

(b) as is established by a religious or linguistic minority;

(i) shall, after the commencement of this Act, create any teaching or non teaching post involving financial liability without the prior approval of the State Government:

(2) Notwithstanding anything contained in this Act, no College other than one mentioned is clauses (a) and (b) of subsection (1), shall, after the commencement of this Act, appoint any person on any post without the prior approval of the State Government:

Provided that the approval of the State Government shall not be necessary for filling up a sanctioned post of a teacher for a period not exceeding six months, by a candidate possessing the prescribed qualification.

It is an admitted position that the then management of the College and the Hospital never sought any prior approval of the State Government before creating the posts of making the appointments in question.

The relevant part of section 60 of the Bihar State Universities Act is as follows:--

(5) The Governing body/Managing Committee for the management and administration of a College owned and maintained by the State Government, or established and administered by a minority community, on the ground of religion or language and declared, from time to time, as such by the State Government according to yardsticks laid down by it, or of an affiliated technical or medical college, shall be constituted in accordance with the provisions prescribed in the Statutes.

In the aforesaid judgment in the case of Dr. Narendra Narain Sinha v. The University of Bihar and others (C.W.J.C. No. 2723 of 1987, it has been examined, in detail, as to whether the expression "Medical College" occurring in section 60(5) of the Act aforesaid shall include even a Homeopathic Medical College and it has been held that it shall so include. As such once affiliation hid been granted by the University, in the year 1978, then the College had to follow the procedure prescribed in the Act and the statutes.

Apart from that, even if the appointments of the petitioners are examined bereft of the provisions above mentioned, they present a very peculiar state of affairs in which the petitioners are said to have been appointed. It appears that a notice was put on the Board of the College and the Hospital giving out details of the qualifications for Lecturers. Tutors, Compounders, Nurses and other employees who were to be appointed. It is said that pursuant to that notice the petitioners applied on 10.8.1980 and appeared for interview. In the counter affidavit which has been filed on behalf of the State and sworn by the Deputy Director (Homeopath) Indigenous Medicine, Department of Health, it has been stated that having come to know that the College in question was going to be taken over by the State Government, the then management of the College and the Hospital with ulterior motive and for extraneous considerations purported to appoint the petitioners against different posts without following the procedure prescribed for such appointments. It has been stated that there was no advertisement inviting applications. The Secretary of the institution with an ulterior motive convened a meeting of the Governing Body on 10.2.1981. The Commissioner, Tirhut Division, who was the President of the said Governing Body, objected the convening of the meeting. The Commissioner, Trihut Division, protested to the Secretary of the Governing Body saying that the meeting was being convened not in the interest of the College and the Hospital but for ulterior purpose and he insisted that the agenda be placed before him which was going to be considered in the meeting. In spite of several directions given by the Commissioner of the Division, when the meeting was not postponed, he sent his resignation dated 6.2.1981 to the Department of Health. A copy of that resignation letter has been annexed to the supplementary counter affidavit filed on behalf of the State. In the aforesaid letter, the Commissioner has stated that the Secretary of the College was going to hold a meeting and to take important decisions when it has already been notified that the College and the Hospital was going to be taken over by the State. He further pointed out, in that letter, that the sole purpose of the meeting was to serve the personal interest of the Secretary and other persons connected with the College and the Hospital. In the counter affidavit, a copy of letter dated 6.2.1981 which was addressed by the Commissioner of the Division to the Secretary of the Governing Body has also been annexed. The Commissioner has pointed out, in that letter, to the Secretary of the College that there was no justification to convene a meeting of the Governing Body and to take any important decision when the College and the Hospital was going to be taken over by she State Government. On 6.2.1981 itself, the Commissioner had said that there was no doubt that the meeting was being held for with an ulterior motive which was not in the interest of the College and the Hospital and as such he was resigning from the Presidentship of the Governing Body of the said College. There is no dispute that except 20 to 25 petitioners more than hundred petitioners of the three applications were appointed after the resignation by the Commissioner, who was the President of the Governing Body. It is an admitted position that they have been appointed after his resignation on 6.2.1981 between 28.3.1981 and 30.3.1981 within four days of the vesting of the Colleges and the Hospital in the State Government. In my view, under the circumstances mentioned above, it is difficult to hold that the appointment of the petitioners which were admittedly made after the publication of the notification u/s 3(1) of the Act on 29.1.1981 and in the manner mentioned above, can be held to be legal and valid. There is no dispute that the petitioners had been appointed purely on temporary basis by the then Governing Body. If the appointments themselves are not in accordance with law and procedure prescribed for making appointment even in an affiliated College, then the State Government cannot be directed to recognise the services of such petitioners and to bear burden as liabilities u/s 3(2) of the Act. It has been stated on behalf of the State that even according to the salary fixed by the Governing Body in the letters of appointments the total liability each year shall be more than Rs. 8,00,000/- (eight lacs). Normally this Court is always sympathetic whenever State Government purports to ignore an appointment made by a competent authority but, in this case, in my view, it is not possible to hold that the petitioners bad been duly appointed and as such their services stood transferred to the State Government with effect from 1.4.1981.

The learned Advocate General pointed out that although persons, who had been appointed in the year 1980, had been appointed in contravention of section 35 of the Bihar State Universities Act read with section 36-A of the Bihar Development of Homeopathic System of Medicine Act as amended in the year 1975 but, on compassionate ground, their appointments have been upheld by the State Government but it was not possible for the State Government to recognise the appointments of persons who are said to have been appointed after the issuance of notification u/s 3(1) of the Act on 29.1.1981 because on the face of it such appointments had been made by the Secretary of the then Governing Body on extraneous considerations and with the sole object to pass on the liability to the State Government. In my view, there is much force in this contention. In spite of repeated queries, the counsel for the petitioners could not give any reasonable explanation as to why more than hundred persons, who are petitioners in these applications, were appointed between 28.3.1981 and 30.3.1981 when the College and the Hospital were to vest in the State Government with effect from 1.4.1981. In view of the stand taken by the State itself, I direct that the services of the persons, who had been appointed prior to 29.1.1981, should be recognised but the writ applications so far the petitioners who have been appointed on or after 29.1.1981 is dismissed. In the circumstances of the case, however, there will be no order as to costs.

B.N. Agrawal, J.

I agree.