DR. PRABHUNATH CHOUDHARY Vs. THE STATE OF BIHAR & OTHERS

JUDGEMENT

(1.) The question which has to be answered in this writ application is as to whether the petitioner who is a registered medical practitioner having been registered in the first batch of registration of Homeopathic System of Medicine Act, 1953 (hereinafter called 'the Act') is entitled to scale of pay as recommended by the Pay Revision Committee. The salient fact will be stated here for answering the aforesaid question The petitioner read in Sathi Homeopathic College, Laheriasarai and passed from there in the year 1950. Thereafter he got appointment in Samastipur Municipality as a doctor in the Homeopathic Dispensary run by the said Municipality. Annexure -1 is a copy of the appointment letter dated 28th February, 1935 (sic) The appointment of the petitioner was to take effect from 1.3.1955. Though the Act known as Bihar Development of Homeopathic System Act, 1953 was published, but it did not come into force. It actually came into force from 1.3.1955 i.e. the date when the petitioner joined the service of the Municipality. Thereafter under Annexure -2 dated 21.10.1955 the petitioner's appointment was confirmed in an ordinary meeting of the Commissioners of the said Municipality. Thereafter the petitioner applied for enlistment of his name in the register maintained under the Act. This application for registration was filed under Sec. 29 of the Act read with the Rules known as 'the Bihar Development of Homeopathic System of Medicines (Enlistment of Homeopathic Practitioners) Rules, 1956, hereinafter called 'the' Rules', end after due enquiry the petitioner was registered and his name entered in the Enlistment Register maintained in form 'B' of Rule 6 of the Rules and certificate was granted. A copy of the said certificate is Annexure 3 and is dated 15.5.1961. The said certificate shows that it was granted under the signature of the Registrar, State Board of Homeopathic Medicine, Bihar. The petitioner thereafter was promoted to the post of doctor in charge in the Municipal Homeopathic Dispensary in which he was initially appointed. This promotion was given to him as per decision taken, by the Municipal Board. After promotion the petitioner was confirmed by the Municipal Board under Annexure -4 dated 29.12.1955. Thereafter the second pay Commission's, recommendation was issued in the year 1970. According to that, the pay scale of the Local Board employees in Bihar was increased from 130/ - to Rs. 210/ for Hakim, Vaidya and Homeopathic, and far the certificate holders an equivalent scale was increased from Rs. 100/ - to Rs. 150/ -. After this issue of recommendation, the petitioner was recommended by the Sub -committee of the Municipality the pay scale of Rs. 130/, -to Rs. 210/ - A copy of this resolution dated 31.07.1974 is Annexure -5 to this writ application. However, Annexure -5 shows that there was a rider to the effect that if there would be audit objection in future then the petitioner would be responsible to compensate the loss and, accordingly, the petitioner was made to give in writing the said undertaking. The petitioner thereafter gave his undertaking in writing as is apparent from Annexure -A dated 2.8.1974 to the supplementary counter affidavit. After this undertaking the petitioner received the said pay scale and continued to get the same scale from 1.4.1974 to 28.9.1978.

(2.) I may state here that the facts are not very much in controversy in this writ application. The question canvassed on behalf of the petitioner was as to whether in the circumstance of the case, the Sub -committee's report contained in Annexure -8 and the acceptance of the said report by the Municipal Board (Annexure -8A) are legal and valid or they are illegal, invalid and without jurisdiction and, therefore, liable to be quashed.

(3.) It is not disputed that on the date when the Act came into force on 1.3.1975, the petitioner joined the service of the Municipality as Assistant Doctor in the Homeopathic Dispensary and since then he is in continuous service. He has also, as already stated above, got himself registered under the Act and was one of the candidates in the first batch who was granted certificate and, therefore, he became a registered practitioner under the Act. This certificate was obtained in May, 1961, and thereafter the petitioner was duly promoted in his service and was confirmed in December, 1966 under Annexure -4. It is also not disputed that the recommendation of the second pay commission increased the scale of pay payable to Hakim, Vaidya and Homeopath and according to that recommendation, the petitioner was granted that scale of pay by the Municipal Board under Annexure 5 dated 1.7.74. However it appears that in view of the letter (Annexure -6) issued by the Urban Development Department, Government of Bihar, in the audit inspection, the auditor raised objection to the payment of the said scale of pay to the petitioner since he was neither a decree holder nor a diploma holder. It was thereafter when the Executive officer issued a direction for adjustment of the excess amount paid to the petitioner that the dispute has arisen. All these facts are not disputed.