Binod Kumar Chaudhary v. State Of Bihar — 1992 DIGILAW 324 (PAT)

Judgment S. B. Sinha, J. 1. In this application the petitioner has prayed for quashing of order dated 10th March, 1991 as contained in Annexure-10 to the writ application whereby Dr. Rajendra Ram, respondent No.4 was directed to be appointed as Principal. 2. Both the petitioner and respondent No.4 are holding the posts of professor of the Dental College, Patna. 3. Their respective qualifications and experiences have been stated in paragraph No.5 of the counter-affidavit filed on behalf of respondents No.1 to 3 which reads as follows :- "to summarise the case of the petitioner in nutshell it is as follows :- The petitioner is having qualification of B D. S. and Ph. D. He was appointed to the post of tutor in Dental College, Patna on 2-9-1963, lecturer on 9-2-1974 and professor on 23-5-1978. Respondent having qualification of M. B. B. S. , B. D. S. and m. D. S. Respondent No.4 was appointed to the post of Tutor in Dental College, Patna on 22-4-1964, Lecturer on 25-12-1968 and Professor on 4-3-1975. Admittedly, respondent No.4 is senior to the petitioner from the date of appointment to the post of professor. However, the case of the petitioner is that the recommendation of Dental Council of India is that where two persons have the requisite teaching experience of 5 years as professor then the one whose ever all length of teaching experience is longer should be made Dean/principal of a college. That it is by way of self-interpretation of the Circular of Dental Council of India contained in memo No.1582 dated 15th July, 1986, that the petitioner is sought to be made senior to respondent No.4. " 4 From the aforementioned facts it is clear that the petitioner has total teaching experience to the extent of 25 years 4 months 29 days. The teaching experience of respondent No.4 is 24 years 9 months and 10 days as on 31st January, 1989. However, the teaching experience of the petitioner as Professor as on 31-9-1981 was 10 years 8 months and 8 days whereas that of respondent No.4 was 13 years 10 months and 28 days. It is necessary to mention that allegedly the post of the Principal, Dental college, Patna, fell vacant on 31-1-1989 when Dr. R. P. Singh retired as professor. 5. Mr. Basudeva Prasad, learned counsel for the petitioner has raised a short question in support of this writ application. It is necessary to mention that allegedly the post of the Principal, Dental college, Patna, fell vacant on 31-1-1989 when Dr. R. P. Singh retired as professor. 5. Mr. Basudeva Prasad, learned counsel for the petitioner has raised a short question in support of this writ application. The learned counsel submitted that as both the petitioner as also the respondent No.4 have the minimum basic qualification in terms of the resolution of the Dental council of India which is contained in Annexure-12 to the writ application (Annexure-A to the counter-affidavit), the petitioner was entitled to be appointed as Principal of the said college. The said resolution reads as follows :- "seniority vis-a-vis total teaching experience for the purposes of appointment as Dean/principal/director of a Dental Institution Regarding. The Council considered the following recommendation of its executive Committee meeting held on 14-12-1984 Bhubaneshwar regarding "minimum qualification, for the post of Principal/ dean of a Dental Institution" : - "minute No.24 (i) -Minimum qualifications for the post of Principal/ dean of a Dental Institution.-The Executive Committee considered the above issue that when 2 or more candidates are found to fulfil the minimum requirements of 5 years teaching experience as Professor, then the person having longest total teaching experience be considered senior for the purposes of appointment as Dean/principal of a Dental College. The Executive Committee agree with the above, subject to the condition that the 5 years teaching experience as Professor in a dental College only, should be considered in such cases and that the person having longest total teaching experience be considered senior for the purposes of appointment as Dean/ principal of a Dental College. " (The underlined portion is the amendment by the General Body ). 6 Mr. Mukherjee, learned counsel appearing on behalf of the respondent no.4, on the other hand, submitted that the case is covered by a Full bench decision of this Court in Dr C. M. Srivastava V/s. State of Bihar, 1972 pljr 182. The learned counsel brought to our notice that in that case respondent No.4 was arrayed as respondent No.5 and at that point of time the petitioner was no where in picture. The learned counsel in this connection had drawn to paragraphs 30, 43, 86 and 88 of the said decision. The learned counsel brought to our notice that in that case respondent No.4 was arrayed as respondent No.5 and at that point of time the petitioner was no where in picture. The learned counsel in this connection had drawn to paragraphs 30, 43, 86 and 88 of the said decision. The learned counsel further submitted that the Dental Council of india, in view of the provisions contained in Sections 20, 29 and 50 of the dental Council of India Act, had no jurisdiction to lay down the conditions of services governing the seniority of the employees, which, according to the learned counsel, is governed by the rules framed under the proviso appended to Article 309 of the Constitution of India and in that view of the matter as the seniority rules embodied in 1934, have been held to have statutory force. The respondent No.4 being admittedly senior to petitioner in the cadre of professor, he would rank senior to him. The learned counsel in this connection has relied upon a Full Bench decision of this Court in bishundeo Mahto V/s. The State of Bihar and others, 1982 BBCJ 45 , and in particular has drawn our attention to the paragraph 15 of the said judgment. 7. Mr. P. K. Shahi, learned G. P.7, drew our attention to paragraph no.4 of the counter affidavit and submitted that the post of Principal of dental College has not yet been sanctioned by the State of Bihar. The learned counsel submitted that a senior most teacher is normally appointed as Professor-in-charge for the purpose of discharging the functions of principal. It was further submitted that this writ petition is not maintainable, as notings in the file by the Chief Minister which is yet to take shape of an order cannot be questioned. The learned counsel in support of this contention has relied upon a decision of the Supreme Court in Bachittar Singh V/s. State of Punjab and others, AIR 1963 SC 395 . 8. Mr. Basudeva Prasad, learned counsel for the petitioner, in reply, drew our attention to various documents of for the purpose of showing that the scale of pay admissible to the post of the principal of a Dental college has been also the subject-matter of consideration by the 4th Pay revision Committee and the scale of pay for the said post has also been fixed by the Accountant-General. 9. 9. The learned counsel further submitted that the principles enunciated by the Supreme Court in Bachittar Singhs case (supra) has no application in the facts of this case. 10. In view of the order proposed to be passed by us it is not necessary to consider all the rival submissions made by the learned counsels for the parties. 11. In paragraph 4 of the counter-affidavit respondents No.1 to 3 have stated as follows :- "that Patna Dental College, Patna, is the only Dental College in the state of Bihar. There ts no independent wholetime post of principal for the College. Since the very indeption of this college, a senior most Professor of this College is assigned with the duties of Principal to act as such in addition to his own duties as professor and for this additional duties, an extra amount of rs.150/- as special pay per month has been admissible to the incumbent. It is considered necessary to have an independent and whole time post of principal and a proposal to this effect is under active consideration of the State Government. " (Italicised portion is mine) 12 At this juncture, we further may mention that we had asked the advocate-General to ascertain as to whether, in fact, the State had uptil now accorded sanction for filling up the post of Principal, and we were informed that the State has not yet done so. 13. In this situation, it is clear that the entire exercise made by the state of Bihar in considering the rival claims of the petitioner vis-a-vis respondent No.4 for filling up the post of the Principal was in futility. 14. There cannot be any doubt that in terms of the Resolution adopted by the State of Bihar on 10-9-1960 with regard to the establishment of a Dental College at Patna, a post of the principal who Inter alia was to be the drawing and disbursing officer thereof was contemplated as is evident from Annexure-23 of the reply filed by the petitioner to the supplementary counter-affidavit filed on behalf of respondents No.4. 15. It is also evident that the 4th Pay Revision Committee recommended the scale of pay of principal of the Dental Service which had been accepted by the Finance Department in terms of its Resolution dated 30th December, 1981. 15. It is also evident that the 4th Pay Revision Committee recommended the scale of pay of principal of the Dental Service which had been accepted by the Finance Department in terms of its Resolution dated 30th December, 1981. It further appears that the Office of the Accpuntant-General (II)Bihar, Patna, has also in term had taken into consideration as to whether the post of the Dental Service should be a practising or non-practising post. 16. From the aforementioned documents it appears that the scale of pay of Principal of a Dental Medical College in terms of the recommendations of the 4th Pay Revision Committee as on 1-4-1981 was Rs.2225-75-2675/- whereas that of professor is rs 1900-75-2500/- It is also evident that all the posts in Dental Service excepting that of Principal of Dental which is practising post and therefore liable to be percentage deduction. 17. The question of filling up the post of the Principal Dental college, Patna by the State of Bihar has to be considered in the aforementioned backdrop. 18. Once the post of Principal is created, he has to be paid salary in terms of the recommendations of 4th Pay Revision Committee and the said post would be a non-practising one. The Resolution of the Dental council of India as contained in Annexure 12 to the writ application was required to be taken into consideration only when the post of principal is required to be filled up. As noticed hereinbefore, the categorical stand of the State of Bihar is that no post of Principal has yet been sanctioned but the duties and functions of the Principal including that of the drawing officer are to be performed by the professor Incharge who would merely be receiving a sum of Rs.150/- by way of allowance. 19. In this view of the matter, in our opinion, the question as to whether the resolution of the Dental Council of India is binding upon the state of Bihar and/or is ultra vires the Dental Council of India Act as also article 309 of the Constitution of India need not be decided at this stage. 20. Further in Bachhittar Singhs case (supra) the Supreme Court has clearly laid down as follows : "the business of State is a complicated one and has necessarily to be conducted through the agency or a large number of officials and authorities. 20. Further in Bachhittar Singhs case (supra) the Supreme Court has clearly laid down as follows : "the business of State is a complicated one and has necessarily to be conducted through the agency or a large number of officials and authorities. The Constitution, therefore, requires and so did the Rules of Business framed by the Rajpramukh, Pepsu provides that the action must be taken by the authority concerned in the name of the Rajpramukh. It is not till this formality is observed that the action can be regarded as that of the state or here, by the Rajpramukh We may further observe that, constitutionally speaking, the Minister is no more than an adviser and that the Head of the State, the Governor or rajpramukh is to act with the aid and advice of his Council of Ministers. The refore, until such advice is accepted by the governor whatever the Minister or Council of Ministers may say in regard to a particular matter does not become the action of the State until the advice of the Council of Ministers is accepted or deemed to be accepted by the Head of the State. Indeed it is possible that after expressing one opinion about a particular matter at a particular stage a Minister or council of Ministers may express a quite different opinion, one which may completely be opposed to the earlier opinion, which of them can be regarded as the order, of the State of government Therefore, to make the opinion amount to a decision of a Government it must be communicated to the persons concerned. In this connection we may quote the following from the judgment of this Court in the State of punjab V/s. Sodhi Sukhdeo Singh, AIR 1961 SC 493 at p.512. "mr. Gopal Singh attempted to argue that before the final order was passed the Council of Ministers had decided the respondents representation and to reinstate him, and that, according to him, the respondent 6 to prove by calling the two original orders. We are unable to understand. "mr. Gopal Singh attempted to argue that before the final order was passed the Council of Ministers had decided the respondents representation and to reinstate him, and that, according to him, the respondent 6 to prove by calling the two original orders. We are unable to understand. Even if, the Council of Ministers had provisionally decided to reinstate the respondent that would not prevent the council from reconsidering the matter and coming to a contrary conclusion, latter on until a final decision is reached by them and is communicated to the Rajpramukh in the form of advice and acted upon by him by issuing an order in that behalf to the respondent" "thus it is of the essence that the order has to be communicated to the persons who would be affected by that order before the State and that persons can be found by that order. For, until the order is communicated to the person affected, it would be open to the Council of Ministers to consider the matter over and over again and, therefore, till its communication the order cannot be regarded as anything more than provisional in character. " 21. A mere noting in the file, in our opinion, in absence of anything else could not confer any right upon any person so as to maintain a writ application either for enforcing or questioning toe same. In this situation, we are of the view that it is for the State to consider the inter se seniority between the petitioner and respondent No 4 for purpose of appointing one of them as Professor-Incharge of the Dental College, Patna. 22. The aforementioned decision of Bachhittar Singh (supra) has been followed by the Supreme Court in its various subsequent decisions including 1988 (2) SCC 299 (328) ; M/s Dovpack Systems Pvt. Ltd. v union of India and Ors,, 1990 (4) SCC 178 ; D. B. Raju V/s. H. J. Kantharaj 23. Befors parting with this case, however, we must mention that it was stated on behalf of respondents No 1 to 3 that the State of Bihar is contemplating to sanction the post of Principal Dental College Patna. 24. Befors parting with this case, however, we must mention that it was stated on behalf of respondents No 1 to 3 that the State of Bihar is contemplating to sanction the post of Principal Dental College Patna. 24. If this be the position, we hope and trust that the State shall take a final decision in the matter and fill up the said post with utmost expedition and preferably within a period of two months from the date of a copy of this order. 25. However, at the cost of repetition, we may say that the State should appoint a regular Professor Incharge pending creation and appointment in the post of principal as early as possible. 26. This writ application is disposed of with the aforementioned directions and observation but without any order as to costs.