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22. At the cost of repetition, learned counsels representing the petitioners again submit that the stand of the State or Patna High Court CWJC No.9653 of 2011 dt.14-02-2012 21 the reason given by the State in annexure-9 that the Institution is an autonomous Institution and is an institution of excellence for teaching is totally belied by the two significant aspects which emerges from the documents itself that till date the State government is still trying to convince the Medical Council of India to permit it to allow teaching in the said Institute which they have not succeeded till date. There are, therefore, neither any faculty appointed so far nor are there any student who can be taught right till date. Attention of the Court has also been drawn to annexure-15 which is dated 26.08.2011 which is an information furnished to one of the petitioners, namely, Smt. Prabha Sinha on an application filed under Right to Information Act before the Health Department, Government of Bihar. The communication has significance because this information has been provided by the Deputy Director-cum-Information Officer of the Department who has this to say :

26. Learned counsel representing the State was called upon by the Court to justify the decision contained in annexure-5 which has to be further tested in light of the ground of rejection contained in annexure-9 coupled with the varied materials and submissions made thereon at the Bar virtually demolishing the rationale and the foundation behind extending the benefit to the doctors of I.G.I.C., the so called autonomous Institution or an Institution of excellence, imparting teaching. Patna High Court CWJC No.9653 of 2011 dt.14-02-2012 28
27. Since none of the attributes, according to the petitioners, have been established by the State, merely harping that the Institute is a different class will not do.
28. The sheet-anchor of the argument of the learned counsel representing the State is a resolution of the State government issued under the signature of the then Secretary-cum-Commissioner to the department of Health, Government of Bihar on 16.04.1984. This resolution has been annexed as annexure-1 to the writ application and is also a resolution which is being relied upon by the State in the counter affidavit which has been filed by them. The same notification is annexure-B to the reply on behalf of respondent no. 2 to the I.A. The Court has been taken through the body of the said resolution to show that as far back as on 16.04.1984 there was a resolution of the State government to create the said Institution into an autonomous or independent Institution with the object of making it into an Institution of excellence. This resolution, therefore, is a complete answer to all the submissions which have been made at the Bar on behalf of the petitioners. If the Institute in question has been treated by the State government to be a class by itself, then the plea of discrimination ought not to be entertained, for after all the State does have authority to create a class amongst class if the objective of the same is founded on intelligent differentia and for a better purpose.
32. With due respect to the learned counsel for the State if parameters which have been laid down by the Hon'ble Apex Court is applied to the present case then the State fails hopelessly in passing the test or meeting the yard stick which has been noted by this Court in the earlier part of the order, while dealing with the ratio of the case of Nergesh Meerza and D. S. Nakara (Supra). In the opinion of this Court, the test which have been laid down by the Apex Court and the basis of classification is not being met in the present case because there is no incumbent facts available to show and decisively demonstrate that the so called resolution of the Health Department issued in the year 1984 contained in annexure-1 to the writ application was ever carried forward and implemented in letter and spirit. There could have been an occasion for the State to decide in principle, to give I.G.I.C. an exalted position but mere wish by itself does not give the Institution the status of an autonomous body or an Institution of excellence if there is still material to show that the Department of Health does not treat the said Institution to be an autonomous Institution when information provided by the Health Department under Right to Information Act annexed as annexure -15 is looked into, as well as when there are materials to show that till date the Institution is still to get an identity of its own including in the field of Patna High Court CWJC No.9653 of 2011 dt.14-02-2012 31 teaching as no recognition has been given by the Medical Council of India till date. Even the State Government has not taken any steps by resorting to any legislation or any enactment including notification of any rule to grant to this Institution an autonomous status with the objective of creating an Institution of excellence. There cannot be a better example of that failure since there are materials to show that despite 28 years having gone past since issuance of annexure-1, there is no separate rule for recruitment, appointment or service condition for the so called doctors or employees of the I.G.I.C. Though the said Institution was carved out from the Patna Medical College and Hospital but still appointments are being made from the talent drawn from the general pool of the Bihar Health Services cadre.