Dr. Yadubir Sinha and Another vs Dr. Dinesh Narayan Singh and Others

Birendra Prasad Sinha, J.—The plaintiff, Dr. Dinesh Narayan Singh (Opposite Party No. 1), has filed a suit and has prayed for the following reliefs:

(a) That on consideration and adjudication on the facts and circumstances of the case the court be pleased to declare that the plaintiff. has become the Principal of the Sinha Homeo Medical College and Hospital, Laheriasarai, Darbhanga, in due and normal course on retirement of Dr. Yadubir Sinha from the said post and that in any view of the matter the advertisement published in the Searchlight dated 6-6-1976 and in the Indian Nation dated 8-6-76 for inviting applications for the appointment of Principal of the Sinha Homeo Medical College and Hospital is null and void, ultra vires, without jurisdiction, illegal and unjust and that the defendants No. 1 to 4 of the suit have no right to proceed in follow-up action or to make appointment in accordance with the aforesaid advertisement and that defendant No. 1 or, so to say, defendants Nos. 1 to 4 have no right to give charge of the office of the principal of the said Sinha Homeo Medical College, Laheriasarai to Dr. N. N. Sinha (defendant No. 6) and no right to debar or deprive the plaintiff from the charge of Principalship of the said College.

(b) That the court be pleased to pass a decree for permanent injunction against defendants Nos. 1 to 4 restraining them from proceeding further in any follow-up action and making appointment in accordance with the said impugned advertisement and further from giving charge of the post of Principalship to Dr. N.N. Sinha (defendant No. 6) who also be restrained from taking such charge or to anybody else except the plaintiff and from debarring and depriving the plaintiff from getting and assuming charge of Principalship of the said College.

The plaintiff''s case, inter alia, is that the said College is a public institution and is registered under the Societies Registration Act and is affiliated and recognised by the Bihar State Board of Homeopathic Medicine under the Bihar Development of Homeopathic System of Medicine Act, 1953. Its management has been carried on by a regularly constituted Governing Body under the Bihar Development of Homeopathic System of Medicine Regulations, 1961. The plaintiff joined the College as a teacher in the year 1958. Dr. Yadubir Sinha (defendant No. 1) remained Principal of the College till recently when he retired after a long term. The plaintiff claimed himself to be the Vice-Principal of the College. Dr. N.N. Sinha, who is the son of Dr. Yadubir Sinha, also joined as a teacher in the College sometime in the year 1964. In 1969, Dr. Yadubir Sinha wanted to make Dr. N.N. Sinha as senior to the plaintiff and other teachers. A suit was filed by the plaintiff in which there was a compromise and the plaintiff''s seniority was maintained. The plaintiff further claimed that since the post of Prinicipal fell vacant on the retirement of Dr. Yadubir Sinha, the plaintiff Had become the Principal of the said institution in due and normal course. The said Dr. Yadubir Sinha, in collusion with the other members of the Governing Body, maneuvered to publish an advertisement in the Searchlight and the Indian Nation inviting applications for appointment to the post of Principal of the College for which the maximum age of the candidate has been fixed as 40 years. The plaintiff being more than 40 years of age has thus been deprived of his right even for applying for the post of Principal. The minimum qualification for the post has also been fixed to suit. Dr. N. N. Sinha and to exclude the plaintiff from applying. According to the plaintiff, the advertisement is in utter negation of the right of the plaintiff and is unjust, improper and mala fide. The plaintiff also stated in the plaint that the College and the Hospital was in the process of going under the control of the Bihar University under the Bihar Ordinance. The defendants "have no right or authority to debar or remove the plaintiff from the post of Principal of the said Sinha Homeo Medical College which he had acquired in due and normal course on the retirement of defendant No. 1 as the Principal". The plaintiff filed an application for ad-interim injunction.

The defendants, by filing a show cause, resisted the claim of the plaintiff. According to the defendants, the Governing Body of the institution had absolute right to appoint members of the teaching staff. There was no rule or regulation under any statute to control the power of the Governing Body which had the sole responsibility of regulating the affairs of the institution. According to them, there was no post of Vice-Principal in the College. The Principal, Dr. Yadubir Sinha, had not yet retired and had only expressed his desire to be relieved. As such the post of Principal had not yet fallen vacant. The advertisement had been made only with abundant precaution.

After hearing the parties, the trial court found that there was a prima facie case. The balance of convenience was in favour of the plaintiff had that the plaintiff would suffer irreparable loss. The Trial Court, therefore, restrained defendants Nos. 1 to 4 from proceeding with any follow-up action in pursuance of and in accordance with the advertisement referred to above for appointment of Principal of the College, and in case the Principal retired from his post, he was restrained from making over charge of the office to Dr. N.N. Sinha or to anybody else except the plaintiff. An appeal was taken by defendants Nos. 1 to 4 which was dismissed by the Additional District Judge III, Darbhanga. The defendants Nos. 1 and 2 have filed this application challenging the orders of the courts below.

There is nothing on the record to show that Dr. Yadubir Sinha, the Principal of the College, has retired. On the other hand, the plaintiff admitted in the court below as well as before me that Dr. Yadubir Sinha still continues to be the Principal and has not vacated his office. From paragraph seven of the trial court''s order it will appear that the plaintiff also conceded that there was no rule or regulation by any legislative enactment for the management and control of the institution and also for the conditions of service of the staff of the Homeopathic Medical Colleges in this State and that the Governing Bodies are all in all. It was submitted on behalf of the plaintiff that in the educational institutions of the State the Vice-Principal or the seniormost teacher of the institution was promoted to the post of Principal, when such vacancies arose, in the natural course, which should be followed in this institution also. According to the plaintiff, if the Governing Body of this institution was not checked by the order of the court in appropriate cases and cases of injustice to the staff, it may be encouraged to commit more and more of injustice causing breach of the peace, dissatisfaction and uncertainty in the smooth running of the College. This appears to have influenced the trial court in coming to the conclusion that the plaintiff had a prima facie case. The trial court thought that if injunction was not granted, the plaintiff will lose the post he deserves and will suffer mental agony and irreparable injury to his social prestige and position.

Learned Counsel appearing for the petitioners submitted that the College is only a registered society under the Societies Registration Act and the remedies sought for in the plaint were not available to the plaintiff. Therefore, no injunction could be granted in favour of the plaintiff as there, was no violation of any Act, Rule or Regulation. According to learned Counsel, there was only a relationship of master and servant and the plaintiff, even if dismissed, had no right to claim reinstatement.

The declaration that the plaintiff has sought for is that he has become the Principal of the College and, consequently, the defendants should be restrained from appointing any person as the Principal in terms of the advertisement. The admitted position is that the post of principal has still not fallen vacant, since Dr. Yadubir Sinha still continues to hold the said office. Although it was mentioned at several places in the plaint that the plaintiff had become Principal on the retirement of Dr. Yadubir Sinha this claim seems to have been given up. Unless the present principal, retires, such a declaration obviously, cannot be given in favour of the plaintiff. Besides this, nothing has been shown to me nor anything seems to have been placed before the courts below showing that the Vice Principal or, for that matter, the senior-most teacher has a right to be promoted to the post of principal. If there is no such legal right, it is difficult to accept as to whether the plaintiff can claim promotion to the post of principal. This aspect of the matter appears to have been lost sight of by both the Courts below. The lower appellate court seems to think that for the present the plaintiff-opposite parry is not claiming any promotion to the post of Principal and that his grievance is only against the terms and conditions mentioned in the advertisement. The lower appellate court is not right. The plaintiff has sought for a declaration that being Vice-Principal or the seniormost teacher in the College, he has already become the principal of the College on the retirement of Dr. Yadubir Sinha. The lower appellate court having come to the conclusion that Dr. Yadubir Sinha had not retired, it could not have granted the relief of injunction inasmuch as the relief of injunction is basically dependent upon the aforesaid declaration.

Learned Counsel appearing for the opposite party placed before me Sections 14 and 15 of the Homeopathy Central Council Act, 1973, which show that certain qualifications granted by the medical institutions outside India, and included in the Third Schedule, are recognized medical qualifications for the purposes of this Act. According to Section 15 of the Act persons possessing qualifications included in the Third Schedule are entitled for enrolment in any State Register of Homeopathy and can become a practitioner of Homeopathy. The plaintiff possesses one of the qualifications mentioned in the Third Schedule. There is, however, no much controversy over this. This only enables the plaintiff-opposite party to become a Homeopathic practitioner. Certain regulations were framed u/s 52 of the Bihar Development of Homeopathic System of Medicine Act, 1953. According to regulation 6, any institution shall be under the management of a regularly constituted Governing Body consisting of not more than eleven persons. This also does not carry us any farther. No provision was shown to me under which the plaintiff acquired a right of promotion. At the time of hearing of the petition a counter affidavit was filed on the half of the plaintiff-opposite party stating, inter alia, that the College has now come under the control of the Bihar University and until the University took over the College, it was under the Control and management of a Governing Body of eleven persons. In reply to the said counter-affidavit, the petitioner have stated that the University has no power to interfere with the management of the College, however objectionable or bad it may be, until the institution had been recognised by the University. Nothing was shown to me that this institution had been recognised by the Bihar University. Moreover, the Bihar University is not a party in this case upon the pleadings of the parties, as they are, this question also does not arise at the moment. It may be mentioned that this question has to be decided upon the pleadings of the parties concerned.

The lower appellate court has not given any categorical finding about the balance of convenience and irreparable injury. The trial court has only stated that the balance of convenience in this case leaned towards the plaintiff and that the plaintiff cannot be compensated in terms of money as there shall be loss or injury to the social prestige and position and also he shall have mental agony. I fail to understand how the plaintiff will have the balance of convenience in his favour if he has not been able to show that he has a right of promotion. So far as irreparable injury is concerned, if the plaintiff wins he can be surely compensated in terms of money.

At the time of hearing, Shri Kailash Roy, learned Counsel appearing for the petitioners, very fairly stated that if the main grievance of the plaintiff was that he had been debarred from applying for the post of Principal in terms of the advertisement on the grounds of age, the petitioners were ready to permit him to apply for the post and thus waive the restriction of age. This offer was not accepted by the plaintiff-opposite party. This also indicates that his main grievance was not against terms of the advertisement. It has been stated above that he wants a declaration that he has already become the Principal of the College. Obviously, no such relief can be granted to him in a case in which the office of the Principal is not yet vacant. In my opinion, the courts below failed to appreciate the facts and committed a material irregularity in the exercise of their jurisdiction in granting injunction in favour of the plaintiff-opposite party.

This application, therefore, succeeds and the orders passed by the court below are set aside. The order of injunction stands vacated. In the fact and circumstances of this case, there shall be no order as to costs.