State of Bihar Vs. Dr. Yogendra Singh
Col. (Retd.) and Other [1982] INSC 27 (1 March 1982)
BHAGWATI, P.N.
BHAGWATI, P.N.
PATHAK, R.S.
CITATION: 1982 AIR 882 1982 SCR (3) 332 1982
SCC (1) 664 1982 SCALE (1)122
ACT:
Bihar Private Medical Colleges (Taking over)
Act 1978- Meaning and effect of sections 3 and 6, explained.
HEADNOTE:
Dr. Yogendra Singh Col was appointed
Professor of Surgery in the Magadh Medical College and as per the Regulations
of the University he was entitled to continue in service until he reached the
age of superannuation, which was fixed at 62. Pursuant to the provisions of
sub-section (2) of section 6 of the Bihar Private Medical Colleges (Taking
Over) Act, 1978, the State Government appointed a Screening Committee which,
inter alia, recommended the retirement of all teachers beyond the age of 58
years and their reemployment up to the age of 62 years only if there were no
qualified substitutes available. On 11-9-1980, the Principal of the Magadh
College, based on the circular dated 3-9-1980 issued by the State Government,
after accepting the recommendation of the Screening Committee, issued a notice
to Dr. Col. informing him that his services will be terminated with effect from
10-10-1980. A writ petition filed in the High Court of Patna challenging the
said order of termination of his services was allowed by the High Court taking
the view that by virtue of sub-section (3) of section 3, the obligation to
continue Dr. Col in service upto the age of 62 years devolved on the State
Government on the taking over of the Magadh Medical College under sub-section
(1) of section 3 and the State Government had no power under sub-section (3) of
section 6 to terminate his services prior to his attaining the age of
superannuation and hence the order dated 11-9-1980 was invalid.
Allowing the appeal of the State, the Court ^
HELD 1:1. The termination of the service of Dr. Col.
was perfectly valid. Quite apart from the
power expressly conferred under sub-section (3) of section 6, the State
Government would have power to terminate the services of any person employed on
an ad hoc basis. [339G-H, 340 A] 1:2. It is elementary that when a person is
appointed on an ad hoc basis his tenure is precarious and he cannot claim to
continue in service until the age of superannuation. From and after the date of
notification under sub-section (1) of section 3 of the 1978 Act Dr. Col.
continued to serve the Magadh Medical College
on an ad hoc basis in terms of the proviso to sub-section (1) of section 6
which declared that the staff employed in the College "shall continue to
serve the college on an ad hoc basis till a decision under sub-section (3) and
(4) is taken by the State Government." In view of the clear and explicit
terms of sub 333 section (1) of section 6 providing that as from the date of
the notification issued, under sub-section (1) of section 3, "all the
staff employed in the college shall cease to be employees of the college
body", the contract of Dr. Col with the owners of the Magadh Medical College
under the letter of appointment given to him did not devolve on the State
Government but came to an end and he became the employee of the State on an ad
hoc basis, disentling him to the benefit of retirement at the age of 62. [338
C-G] It was within the competence of the Screening Committee to make
recommendation in regard to the age of superannuation of the teaching staff of
the medical colleges taken over by the State Government. Sub-section (2) of
section 6 undoubtedly provides that the Committee of exports appointed under
that provision will examine the bio-data of each member of the staff and
ascertain whether appointment promotion or confirmation of such person was made
in accordance with the University Regulations and in keeping with the
guidelines laid down by the Medical Council of India and will also take into
consideration all other relevant material including length of service in the
college and submit its report to the State Government. But sub- section (3) of
section 6 also makes it clear that the Committee of experts appointed under
sub-section (2) of that section can make recommendations in regard to
"rank, pay, allowances and other conditions of service" of the
teaching staff. [338 H, 339 A-C]
3. The State Government was clearly within
its powers under sub-section (3) of section 6 to re-determine the age of
superannuation and to provide that the services of all the teachers in the
medical colleges taken over by the State Government shall be terminated after
giving them one month's notice, if they have attained the age of 62 years or
more than 58 years, but less than 62 years, in consonance with the age of
retirement of all other Government employees.
Under sub-section (3) of section 6 the State
Government had power to redetermine the rank, pay, allowances and other
conditions of service of the teaching staff and "other conditions of
service" would include the age of superannuation. [339 E-G]
CIVIL APPELLATE JURISDICTION : Civil Appeal
No. 3420 of 1981.
Appeal by special leave from the judgment and
order dated the 29th July, 1981 of the Patna High Court in C.W.J.C. No. 3032 of
1980.
L.N. Sinha, Attorney General of India, K.G.
Bhagat and D. Goburdhan, for the Appellant.
Dr. Y. S. Chitale, B.P. Singh, Ranjit Kumar
and S.
Goswami for Respondent No. 1.
334 P.P. Singh for Respondent No. 2.
R.P. Singh for Respondent No. 3.
The Judgment of the Court was delivered by
BHAGWATI, J. This is an appeal by special leave directed against a judgment of
the Patna High Court quashing and setting aside the termination of service of
the 1st respondent and directing that the 1st respondent shall continue in
service until he reaches the age of 62 years.
The facts giving rise to the appeal are few
and may be briefly stated as follows.
The 1st respondent was appointed Professor of
Surgery in the Magadh Medical College, Gaya in December, 1975 and he joined his
post as Professor of Surgery on 27th December, 1975. The letter of appointment
which set out the terms and conditions of service provided that the appointment
would be subject to such regulations as might be in force from time to time in
the Magadh University to which the Magadh Medical College was affiliated. These
regulations provided that the age of superannuation shall be 62 years, and,
therefore, the 1st respondent was entitled to continue as Professor of Surgery
until he reached the age of 62 years. But in or about the middle of 1976 a
drastic change took place, as the Bihar Private Medical Colleges (Taking of
Management) Ordinance, 1976 (hereinafter referred to at the Ordinance) was
promulgated by the Governor of Bihar authorising the State Government by a
notification to take over the management of any private Medical College and to
exercise such functions of management in regard to such College as might be a
specified in the notification. Pursuant to the Ordinance a notification was
issued by the State Government taking over the management of the Magadh Medical
College with effect from 1st July, 1978. The ordinance was subsequently
replaced by the Bihar Private Medical Colleges (Taking Over) Act, 1978
(hereinafter referred to as the Act). Section 3 of the Act provided for taking
over of private Medical Colleges and it read as follows:
"3(1). The State Government may, by a
notified order and from the date mentioned therein, take over a College and the
management and control thereof shall thereupon be exercised by the State
Government in such manner as may be laid down in the said Order;
335 (2) All the assets and properties of the
College and the College body whether movable or immovable including lands,
buildings workshops, stores, instruments, machinery, vehicles, cash balance,
reserve fund, investments, taxes, furniture and others shall, on the date of takeover,
stand transferred to and vested in, and be deemed to have come into the
possession of the State Government;
(3) All the liabilities and obligations of
the College under any agreement or contract entered into bona fide before the
date of taking over shall devolve and shall be deemed to have devolved on the
State Government." Section 6 dealt with the determination of terms of
teaching staff and other employees of the Medical College taken over by the
State Government and since the controversy in the present case has turned
almost entirely upon the true meaning and effect of the provisions of this
section, it would be convenient to set it out in full:
"6. Determination of terms of the
teaching staff and other employees of the College-(1) As from the date of the
notified order, all the staff employed in the College shall cease to be the
employees of the College body:
Provided that they shall continue to serve
the College on an ad hoc basis till a decision under sub- section (3) and (4)
is taken by the State Government.
(2) The State Government will set up one or
more Committee of experts and knowledgeable persons which will examine the bio
data of each member of the teaching staff and ascertain whether appointment
promotion or confirmation was made in accordance with the University
Regulations and in keeping with the guidelines laid down by the Medical Council
of India and taking into consideration all other relevant materials including
length of service in the College, and submit its report to the State
Government.
(3) The State Government on receipt of the
report of the Committee or Committees, as the case may be, will decide in
respect of each member of teaching staff on the merits of each case, whether to
absorb him in Government 336 service or whether to terminate his service or to
allow him to continue on an ad hoc basis for a fixed term or on contract and
shall, where necessary redetermine the rank, pay, allowances and other
conditions of service.
(4) The State Government shall similarly
determine the term of appointment and other conditions of service of other
categories of staff of the College on the basis of facts to be ascertained
either by a Committee or by an officer entrusted with the task and the
provisions of sub-section (2) and (3) shall apply mutandis to such cases.
It appears that pursuant to section 3 of the
Act a notification was issued by the State Government taking over the Magadh
Medical College with the result that the management and control of the Magadh
Medical College became exercisable by the State Government and all the assets
and properties of the Magadh Medical College stood transferred to and became
vested in the State Government and all its liabilities and obligations also
devolved on the State Government. The State Government thereafter appointed a
Committee called the Screening Committee under sub-section (2) of section 6 and
the Screening Committee made a report which contained inter alia the following
recommendations:
(a) All teachers beyond the age of 58 years
may be retired subject to reappointment if there are no qualified substitutes.
This should apply to all State Medical Colleges and the re-employment may be
made up to maximum of 62 years of age.
(b) In no case service of teachers who have
already attained the age of 62 years be retained.
The State Government on the basis of this
recommendation issued a circular letter dated 3rd September, 1980 addressed to
the Principals of various Medical Colleges taken over by the State Government
which included the Magadh Medical College, advising the Principals that "services
of all the Directly appointed teachers in the Medical Colleges who have
attained the age of 62 years or more than 58 years but less than 62 years be
terminated after giving them one month's notice." Now the Ist respondent
had already attained 337 the age of 58 years and the Principal of the Magadh
Medical College, therefore, addressed a letter dated 11th September, 1980 to
the 1st respondent informing him that since his age was more than 58 years, his
service was being terminated after 30 days from the date of issue of that
letter as per the order of the State Government. The result was that by virtue
of this letter addressed by the Principal to the 1st respondent, the service of
the 1st respondent was terminated with effect from 10th October, 1980.
The first respondent thereupon filed a writ
petition in the High Court of Patna challenging the termination of his service
by the Principal of the Magadh Medical College and claiming a declaration that
he is entitled to continue in service until he reaches the age of 62 years. The
High Court of Patna upheld the contention of the first respondent, and took the
view that by virtue of subsection (3) of section 3, the obligation to continue
the first respondent in service upto the age of 62 years devolved on the State
Government on the taking over of the Magadh Medical College under sub- section
(1) of section 3 and the State Government had no power under sub-section (3) of
section 6 to terminate the service of the first respondent prior to his
reaching the age of superannuation and the termination of his service by the
Principal of Magadh Medical College was therefore, invalid. The writ petition
filed by the first respondent was accordingly allowed and a writ was issued
quashing and setting aside the termination of service of the first respondent
and declaring that he is entitled to continue in service until he reaches the
age of 62 years. The State of Bihar thereupon preferred the present appeal
after obtaining special leave from this Court.
We are of the view that it is impossible to
sustain the judgment of the High Court. It proceeds upon a complete mis-
apprehension of the true meaning and effect of the relevant provisions of
sections 3 and 6 of the Act. Sub-section (1) of section 3 provides for taking
over of private medical colleges and by virtue of the notification issued by
the State Government under that provision, the Magadh Medical College was taken
over by the State Government and its management and control became exercisable
by the State Government. Whatever assets and properties appertained to the
Magadh Medical College became vested in the State Government under sub-section
(2) of section 3. Section 3 sub-section (3) provided for devolution of all the
liabilities and obligations of Magadh 338 Medical College on the State
Government and therefore, if sub-section (3) were the only provision in the
statute, it would have been possible for the first respondent to contend that
by virtue of the contract contained in his letter of appointment, he was
entitled to continue in service until the age of 62 years and this obligation
of the Magadh Medical College devolved on the State Government. But section 6
dealt specifically with the subject of determination of terms of the teaching
staff and other employees of the Magadh Medical College and if this special
enactment contained any provision relating to termination of service of the
first respondent, it would obviously prevail over the general provision enacted
in sub-section (3) of section 3. Now sub-section (1) of section 6 provided in
clear and explicit terms that as from the date of the notification issued under
sub-section (1) of section 3 "all the staff employed in the college shall
cease to be employees of the College body." The direct effect of this provision
was that the first respondent ceased to be the employee of the owners of the
Magadh Medical College. The proviso to sub-section (1) of section 6 proceeded
to declare that the staff employed in the College "shall continue to serve
the College on an ad hoc basis till a decision under sub-sections 3 and 4 is
taken by the State Government." The first respondent, therefore, continued
to serve the Magadh Medical College on an adhoc basis from and after the date
of the notification under sub-sec. (1) of section 3. The result was that the
contract of the first respondent with the owners of the Magadh Medical College
under the letter of appointment given to him did not devolve on the State
Government but came to an end and the first respondent became an employee of
the State Government on an ad hoc basis. The first respondent could not
thereafter contend that he was entitled to continue in service until he reaches
the age of 62 years. That would be directly contradictory of the position that
he continued to serve the State Government on an ad hoc basis. It is elementary
that when a person is appointed on an ad hoc basis, his tenure is precarious
and he cannot claim to continue in service until the age of superannuation.
Now the State Government appointed a
Committee called the Screening Committee under sub-section (2) of section 6 and
the Screening Committee recommended that all teachers beyond the age of 58
years may be retired subject to reappointment, if there are no qualified
substitutes. The argument of the first respondent which appealed to the High
Court was that the Screening Committee had no power under sub-section (2) of
section 6 to make a recommendation in regard to the age of superannuation of
the teaching staff of the Medical College taken over by the State Government.
This argument is, in our opinion, fallacious, in as much as it is based on
reading of sub-section (2) of section 6 as if it stood alone and does not take
into account the effect of sub-section (3) upon it, Sub sec.(2) of section 6 un-doubtlly
provides that the Committee of Experts appointed under that provision will
examine the bio-data of each member of the staff and ascertain whether
appointment, promotion or confirmation of such person was made in accordance
with the University Regulations and in keeping with the guidelines laid down by
the Medical Council of India and will also take into consideration all other
relevant material including length of service in the college and submit its
report to the State Government. But it is clear from sub-section (2) of section
6 that the Committee of Experts appointed under sub-section (2) of that section
can also make recommendations in regard to "the rank, pay, allowances and
other conditions of service" of the teaching staff. It was therefore, not
beyond the competence of the Screening Committee to make recommendations in
regard to the age of superannuation of the teaching staff of the Medical
Colleges taken over by the State Government. But, even if we are wrong in
taking this view, it is clear that under sub- section (3) of section 6 the
State Government had power to redetermine "the rank, pay, allowances and
other conditions of service" of the teaching staff and "other
conditions of service" would include the age of superannuation. The State
Government was therefore, clearly within its power under sub-section (3) of
section 6 to redetermine the age of superannuation and provide that the
services of all teachers in the Medical Colleges taken over by the State
Government shall be terminated after giving them one month notice, if they have
attained the age of 62 years or more than 58 years, but less than 62 years.
Obviously, when a member of the teaching staff becomes an employee of the State
Government, he would be governed by the same age of superannuation which is
applicable to other governments servants, namely, 58 years and it was for this
reason that the State Government redetermined the age of superannuation of the
teaching staff of the Medical Colleges taken over by it at 58 years and
directed that the services of those who have attained the age of 58 years
should be terminated after giving one month's notice. We may point out that,
quite apart from the power expressly conferred under sub- section (3) of
section 6, the State Government would have power to terminate the services of
any person employed on an ad hoc basis. The termination of service 340 of the
first respondent was therefore, perfectly valid and the High Court was in error
in granting relief to the first respondent.
We accordingly allow the appeal, set aside
the order passed by the High Court and dismiss the writ petition of the first
respondent. Having regard to the fact that the first respondent is merely a
teacher in a Medical College, we direct that there will be no order as to costs
throughout.
S.R. Appeal allowed.
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