S K SINHA Vs. PATNA UNIVERSITY

JUDGEMENT

(1.) This is an application under Articles 223 and 227 of the Constitution of India, in which the petitioner, a doctor employed as a lecturer in surgery in Prince of Wales Medical College at Patna, has prayed that a direction, order or writ in the nature of mandamus and/or prohibition may be issued against the Patna University, restraining it from making permanent appointments of two professors for the Medical College, and calling upon the said University to act in accordance with the relevant provisions of the Patna University Act (Bihar Act III of 1962), Statutes and Rules, read with certain terms of transfer laid down by the Governor of Bihar in 1960. This case had been heard by a Division Bench of this Court presided over by Mahapatra and Tarkeshwar Nath, JJ., who have, by their judgments, dated the 15th May, 1964, differed in some of their conclusions. In the result, Mahapatra, J. has held that the Patna University should be prohibited from making the appointments to the two posts of professors of surgery in the Medical College at Patna in question, on the basis of the recommendation of the State Public Service Commission, whereas Tarkeshwar Nath, J. has held that the petitioner has failed to make out a proper case for issue of any direction, order or writ in the nature of mandamus or prohibition. The learned Judges have formulated the points on which they have differed and thus this case has been placed before me for decision.

(2.) In view of the elaborate statements of fact given in the judgments of my learned colleagues. I would state only the necessary facts and the salient features of the case, without going into minute details. The petitioner is a civil assistant surgeon in the Bihar Medical Service and is now in the employment of the Patna University as a lecturer in surgery in the Prince of Wales Medical College at Patna (to be called hereinafter the College). He was posted as a lecturer in surgery in the College in July, 1951. Opposite Party No. 3, Dr. R. V. P. Sinha, was posted as a lecturer in the College in July, 1947, find Opposite Party No. 4, Dr. U. N. Shahi, was posted as a lecturer in the name College in January, 1949. Upto the time of the posting of the petitioner as a lecturer in the College, the control and management of the College and the Patna Medical College Hospital attached to the College were with the State Government. Then came the Patna University Act (Bihar Act No. 25 of 1951), which came into force on the 2nd January, 1952. Under Section 51(1) of that Act several colleges, including this College, were transferred to the maintenance and control of the Patna University (to be hereinafter called the University) as its Colleges. The hospital attached to the College was, however, not transferred from the control of the Government. Under Section 52(1) of the 1961 Act it was enacted that the University shall employ, on such terms as may be determined by the State Government, all members of the teaching staff employed in the colleges transferred to the University, who immediately before the commencement of this Act, were serving in or were attached to the Colleges. Thus, the petitioner and Opposite Party Nos. 3 and 4 came under the employment of the University. [Such teachers have been referred to by the parties in the case as the transferred teachers]. By notification No. 211164/H, dated the 8th July, 1960, the Governor of Bihar laid down the terms of employment by the University of the members of the teaching staff and other servants of the State Government employed in the colleges, which had been transferred to the University. Clause (8)(c)(1) of the notification had as follows:

(3.) The main point which had been argued on behalf of the petitioner, before the Division Bench, was whether in filling up the two posts of professors by promotion of teachers, was it incumbent upon the University to require that the provisions of Rules 13 to 14, mentioned above, were complied with, and, was it incumbent upon the Commission to follow strictly the provisions of these rules. It appears that the contention on behalf of the petitioner was that in the proposed appointments, the terms of transfer, read with the rules must apply to all the nominated teachers, transferred or otherwise, whereas the contention on behalf of the opposite parties was that the posis must now be filled up according to the requirements of the 1962 Act. The second point of importance that had been urged was, whether the petitioner should be allowed to move this Court under Article 226 of the Constitution of India, in view of the fact that after the University has acted finally on the recommendation of the Commission, the petitioner can move the Chancellor of the University under Section 9(4) of the 1962 Act. On the first point, Mahapatra, J. has held that the terms of transfer and the rules would be applicable in this case to all the persons nominated by the Government and, therefore, the recommendation of the Commission wits invalid and inoperative. Nath, J. has held, on the other hand, that the terms of transfer and the rules cannot be applied in respect of a composite panel of transferred and non-transferred teachers, sent by the Government and the relevant provisions of the 1962 Act will apply to all the persons nominated in this case. On the second question, the view of Mahapatra, J. is that the alterative remedy under Section 9(4) of the 1962 Act was not available to the petitioner at the stage when he came to this Court and mere existence of an alternative remedy is not an impediment in the petitioner's way in asking this Court for the reliefs claimed. According to Nath. J. when the Chancellor can annul the proceedings of the University under Section 9(4) of the 1962 Act, no relief should be granted to the petitioner at this stage. A third subsidiary point had also been urged before the Division Bench, as to whether the petitioner can claim his reliefs against the University alone, without asking for any relief against the Commission. The answer given by Mahapatra, J. is in the affirmative whereas Nath, J. has held that any relief given to the petitioner against the University, would be futile in the absence of any direction or order passed against the Commission.