Supreme Court of India
HARISH CHANDRA SHRIVASTAVAversusTHE STATE OF BIHAR AND OTHERS
- Citation
- 2022 INSC 423
- Decided
- 13 April 2022
- Disposal
- Appeal(s) allowed
- Bench
- AJAY RASTOGI
Holding
Eligibility for absorption under the Bihar Private Medical (Taking over) Act, 1985 must be determined as on the cut‑off date of 1 June 1986, and the retrospective imposition of a three‑year post‑qualification teaching‑experience requirement is a legal error; therefore the termination orders are set aside and the appellants reinstated.
Summary
The appellants were appointed as lecturers in private Ayurvedic colleges between 1978 and 1979. When the Bihar Private Medical (Indian System of Medicine) College (Taking over) Act, 1985 came into force, the State took over the colleges and, via a 1986 notification, set a cut‑off date of 1 June 1986 for assessing the eligibility of staff for absorption. The State’s Screening Committee later terminated the appellants’ services, contending they lacked the three‑year post‑qualification teaching experience required by the Bihar University statutes and the CCIM Act at the time of their original appointment. The Supreme Court held that eligibility must be judged as on the cut‑off date, not on the date of initial appointment, and that the requirement of three years post‑qualification experience could not be imposed retrospectively. Consequently, the termination orders were set aside and the appellants were ordered reinstated with all consequential benefits. The appeals were allowed.
Issues considered
- The correct date for assessing eligibility of private Ayurvedic college teachers for absorption under the 1985 Act – original appointment date (1978‑79) versus the statutory cut‑off date (1 June 1986).
- Whether the statutory requirement of three years post‑qualification teaching experience can be applied to teachers who were already in service before the Act.
- Whether the High Court erred in interpreting the provisions of the Bihar Private Medical (Taking over) Act, 1985 and the related notification.
- Whether the termination orders issued by the State are legally valid and whether the appellants are entitled to reinstatement and benefits.
Legislation cited
Subjects
Absorption of private medical college staffEligibility criteriaPost‑qualification teaching experienceBihar Private Medical (Taking over) Act, 1985CCIM Act, 1970Bihar University statutesTermination of serviceReinstatementPublic service lawArticle 226Screening Committee
Judgment
[2022] 2 S.C.R. 1065 1065
HARISH CHANDRA SHRIVASTAVA A
v.
THE STATE OF BIHAR AND OTHERS
(Civil Appeal No(S). 2943 of 2022)
B
APRIL 13, 2022
[AJAY RASTOGI AND ABHAY S. OKA, JJ.]
Bihar Private Medical (Indian System of Medicine) College
(Taking Over) Act, 1985: Termination – Appellants were appointed
as Lecturers in private Ayurvedic Colleges between the period from C
14 March 1978 to 10 May 1979 – The State by the Act of 1985 took
over the management of the Private Medical Colleges and upon the
recommendation of the Screening Committee constituted by it, the
appellants, amongst others were absorbed in service – Upon the
batch of writ petition, High Court directed constitution of fresh D
Screening Committee, upon the recommendation of which the
services of appellants were terminated – Appellants filed writ
petitions before High Court against the termination, as result of
which Review Screening Committee was constituted pursuant to the
order of the High Court – Review Screening Committee
E
recommended that the appellants, amongst others, were found unfit
for absorption – Appellants approached High Court against the
recommendation and the same was dismissed upon the grounds that
the appellants though had academic qualification but lacked three
years post qualification teaching experience from a recognised
Ayurvedic College as required by the Statute – Hence instant appeal F
– Held: The very premise on which the High Court proceeded to
examine the eligibility of the teachers as on the date they initially
entered into service in the year 1978-1979 and arrived to the
conclusion that the teachers who were not holding the post-
qualification teaching experience of three years from recognized G
Ayurvedic college as referred to under the Statute would not be
eligible for absorption is a clear misconception of law – State was
not able 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
H
1065
1066 SUPREME COURT REPORTS [2022] 2 S.C.R.
A of the Bihar University Act or by CCIM Act, 1970 for entry into
service – Therefore, 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 – It is a proven fact that the appellants were
holding required academic qualification and teaching experience
B
of more than three year as on cut-off date prescribed by the
Notification, the contention of State that the appellants lacked three
years post qualification teaching experience at the time of their
initial appointment as per the mandate of Act of 1985, is
unsustainable.
C
Allowing the appeals, the Court
HELD: 1. 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 1978-1979 and
D 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 09th December, 1986, is a clear misconception of law and
deserves rejection. [Para 24][1076-E-G]
E
2. The respondents were 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, therefore,
F
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. [Para 26][1077-B-C]
3. In the instant case, each of the appellants before this
G
Court was holding the academic qualification while entered into
service in the year 1978-1979 in the private Ayurvedic College
and holding teaching experience of more than three years as on
H
HARISH CHANDRA SHRIVASTAVA v. THE STATE OF BIHAR 1067
the cut-off date 01st June, 1986 in terms of notification dated A
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 cut-off date i.e. 01st June, 1986, the justification tendered by
the Committee, in the first instance, that the appellants were not
B
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. [Para 28][1077-F-H]
C
4. 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/non-teaching employees of private Ayurvedic
College and this was the apparent error committed by the High D
Court which is not sustainable in law and deserves to be set aside.
[Para 29][1078-A-B]
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2943
of 2022.
E
From the Judgment and Order dated 30.10.2017 of the High Court
of Judicature at Patna in LPA No.1497 of 2018.
With
Civil Appeal No.2944 of 2022.
F
V. N. Sinha, Sr, Adv., Sandeep Jha, Ram Ekbal Roy, Shiv Nath
Tripathi, Binay Kumar Das, Kanhaiya Priyadarshi, Advs. for the
Appellant.
Ms. Madhvi Divan, ASG, Ms. V. Mohana, Sr. Adv., Samir Ali
Khan, Saket Singh, Ms. Sangeeta Singh, Ms. Somyashree, Mrs. Niranjana G
Singh, Abhishek Kumar, Venkatesh, Ms. Vimla Sinha, Ms. Aakansha
Kaul, Chetan Joshi, Raj Bahadur Yadav, Advs. for the Respondents.
H
1068 SUPREME COURT REPORTS [2022] 2 S.C.R.
A The Judgment of the Court was delivered by
AJAY RASTOGI, J.
1. Leave granted.
2. Since common question has been raised in both the appeals,
B however, decided by the separate impugned judgments by the High 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
C approached this Court with the self-same 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.
D
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,
E 1985 and published in Bihar Gazette, Extraordinary No.687, dated 04 th
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 Ayurved
College, Buxar Post Ahirauli, District Bhojpur and the hospitals attached
F 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,
G 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 non-teaching employees, including the present appellants vide order
dated 24th November, 1992.
H
HARISH CHANDRA SHRIVASTAVA v. THE STATE OF BIHAR 1069
[AJAY RASTOGI, J.]
7. It reveals from the record that the teaching/non-teaching A
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 that a fresh Screening Committee
B
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 cut-off date, i.e. 01st June, C
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 D
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 non-teaching employee out of 167 was considered fit
for absorption. E
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. F
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 G
of LPAs by judgment dated 01st November, 2006, a fresh Review
Screening Committee was constituted to examine the qualifications of
the teaching/non-teaching employees.
11. The Review Screening Committee in its report recommended
for absorption of 24 teaching employees and 42 non-teaching employees H
1070 SUPREME COURT REPORTS [2022] 2 S.C.R.
A 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 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 non-suited under the impugned judgment of the Division Bench
B
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
C Lecturer and that being also the requirement under Chapter XVI-B 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
D
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 1978-1979, were ineligible for 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
E 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
F the Bihar University and provisions relevant for the purpose.
14. Chapter XVI-B 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:-
G
“1. The following shall be grades, pay scales and minimum
qualifications of teachers and officers in the faculty of Ayurveda:-
……..
(d) Lecturer
H Pay Scale- 610-20-670-30-940-EB-35-1155.
HARISH CHANDRA SHRIVASTAVA v. THE STATE OF BIHAR 1071
[AJAY RASTOGI, J.]
Qualifications:- Degree in Ayurveda from a University or a 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 at least 3 years experience as a Medical
Officer in Government/ University Dispensary.
B
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 Bio-Chemistry,
Pathology, Jurisprudence, Health and Hygiene and holder
of M.Sc. degree will be eligible for Basic Science in the
subject concerned.” C
15. It may be relevant to note that CCIM Act, 1970 also laid
down the self-same teaching qualification for teaching staff in Ayurvedic
degree colleges. The relevant clause of the CCIM Act, 1970 reads as
follows:-
D
“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 E
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 F
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. G
Desirable:
(a) Post/graduate qualification in Ayurved from a recognized
institution/ university established by law.
(b) Original published papers/ books as the subject.” H
1072 SUPREME COURT REPORTS [2022] 2 S.C.R.
A 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
B
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
C 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
D 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
E 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.
F
6. Determination of terms of the teaching staff and other
employees of the College. – (1) From the date of the notified
order, all 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
G
basis till a decision under sub-sections (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 bio-
data of each member of the teaching staff and ascertain whether
H
HARISH CHANDRA SHRIVASTAVA v. THE STATE OF BIHAR 1073
[AJAY RASTOGI, J.]
appointment, promotion or confirmation was made in accordance A
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.
B
(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 C
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 D
provisions of sub-sections (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 E
relevant for the purpose is reproduced hereunder:-
“BIHAR GAZETTE, 24 DECEMBER 1986
Medical Education and Family Welfare Department
NOTIFICATION F
09/12/1986
No. Indem (H)M-2-186/84-940(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, G
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
H
1074 SUPREME COURT REPORTS [2022] 2 S.C.R.
A 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
B
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
C 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
D 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
E 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
F Banshidhar Singh, Deputy Secretary”
18. It may be relevant to note that the cut-off date which has
been referred to as 01st March, 1983 in the aforementioned notification
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.
G 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 1978-1979 in the private
Ayurvedic College and were serving the institution when the Act, 1985
H came into force on 07th August, 1985.
HARISH CHANDRA SHRIVASTAVA v. THE STATE OF BIHAR 1075
[AJAY RASTOGI, J.]
20. The State Government in exercise of its power under Section A
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
B
non-teaching employees working in the said college on the cut-off 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 skills for the post that they held on
the cut-off date and not on the date of appointment. C
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 D
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 bio-data
of each of the members of the teaching staff and to ascertain whether
appointment, promotion and confirmation was made in accordance with
E
the Act, Statute or Regulations of the University concerned keeping in
view the guidelines of statutory authority and the recommendation made
under sub-Section (2) of Section 6 was to be considered by the State
Government for taking a final decision under sub-Section (3) of Section
6 of the Act 1985.
F
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 G
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
H
1076 SUPREME COURT REPORTS [2022] 2 S.C.R.
A 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 cut-off date i.e. 01st June, 1986 and on the conjoint reading of
Section 6(2) of the Act 1985 read with notification dated 09 th December,
B
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 bio-data 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/
C teachers regarding minimum qualifications and teaching skills as on the
cut-off 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 sub-Section (3) of Section 6 of
the Act 1985.
D
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 eligibility of the teacher to
E be looked into as on the cut-off 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 1978-1979 and arriving to the conclusion
that the teachers who were not holding the post-qualification teaching
F 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
G 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
H into service as a teacher on the basis of his academic qualification, how
HARISH CHANDRA SHRIVASTAVA v. THE STATE OF BIHAR 1077
[AJAY RASTOGI, J.]
he will gain post-qualification teaching experience of three years as the A
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 B
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 C
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 D
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 college would be
considered by the Screening Committee duly constituted by the
department as on the cut-off date i.e. 01st June, 1986 and it is the said
date on which the minimum qualification and teaching skills of the E
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 1978-1979 in the private Ayurvedic College and holding F
teaching experience of more than three years as on the cut-off 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 cut-off date i.e. 01st June, 1986, the justification tendered G
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.
H
1078 SUPREME COURT REPORTS [2022] 2 S.C.R.
A 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/non-teaching employees of private Ayurvedic College and this
was the apparent error committed by the High Court which, in our view,
B
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 30 th
July 2015, the age of superannuation of teachers has been extended
C 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
D law which was the foundation for the Government to terminate the
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
E 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.
F 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
G
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 and
30th October, 2017 respectively are hereby quashed and set aside in the
observations made above.
H
HARISH CHANDRA SHRIVASTAVA v. THE STATE OF BIHAR 1079
[AJAY RASTOGI, J.]
35. We direct the respondents to pass necessary order regarding A
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.
B
36. Pending application(s), if any, stand disposed of.
Devika Gujral Appeals allowed.
C
D
E
F
G
H
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