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PETITIONER: STATE OF BIHAR

       Vs.

RESPONDENT: DR. YOGENDRA SINGH COL. (RETD.) AND OTHER

DATE OF JUDGMENT01/03/1982

BENCH: BHAGWATI, P.N. BENCH: 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  upto 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

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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 ago 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]

JUDGMENT:      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.

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    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  Ist  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  take over,  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

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    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

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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

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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 recommenda- 339 tion 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, Subsec.(2) of section 6  undoubtly 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

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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. 341