IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.9770 of 2007 Dr.Mohan Lal Verma, son of late Kanhaiya Prasad, resident of Mohalla E/136, Doctor’s Colony, Lohia Nagar, P.S. Kankarbagh, District and Town Patna … Petitioner Versus 1. The State Of Bihar through Chief Secretary, Govt. of Bihar, Old Secretariat, Patna 2. Commissioner cum Secretary, Deptt. of Health Medical Education and Family Welfare, Govt. of Bihar, New Secretariat, Patna 3. Commissioner cum Secretary, Department of Finance, Govt. of Bihar, Old Secretariat, Patna 4. Commissioner cum Secretary, Personal and Administrative Reforms Deptt., Old Secretariat, Patna 5. The Principal, Patna Medical College and Hospital, Patna 6. The Principal Nalanda Medical College and Hospital, Patna … Respondents ---------------------------------- with Civil Writ Jurisdiction Case No.9700 of 2007 Prof.(Dr.)_Sushil Kumar Verma, son of late Harendra Kishore Verma, resident of Mohalla Rose Bud Lane, Opposite A.N.College, P.S. S.K.Puri, District Patna … Petitioner Versus 1. The State Of Bihar through Chief Secretary, Govt. of Bihar, Old Secretariat, Patna 2. Commissioner cum Secretary, Deptt. of Health Medical Education and Family Welfare, Govt. of Bihar, New Secretariat, Patna 3. Commissioner cum Secretary, Department of Finance, Govt. of Bihar, Old Secretariat, Patna 4. Commissioner cum Secretary, Personal and Administrative Reforms Deptt., Old Secretariat, Patna 5. The Principal, Patna Medical College and Hospital, Patna 6. The Principal Nalanda Medical College and Hospital, Patna … Respondents ---------------------------------- with Civil Writ Jurisdiction Case No.9896 of 2007 Dr.Sah Adwait Krishna, son of late Sah Ram Krishna, resident of Mohalla Mitan Ghat, Patna City, P.S. Chauk thana District and Town Patna … Petitioner Versus 1. The State Of Bihar through Chief Secretary, Govt. of Bihar, Old Secretariat, Patna 2. Commissioner cum Secretary, Deptt. of Health Medical Education and Family Welfare, Govt. of Bihar, New Secretariat, Patna 2 3. Commissioner cum Secretary, Department of Finance, Govt. of Bihar, Old Secretariat, Patna 4. Commissioner cum Secretary, Personal and Administrative Reforms Deptt., Old Secretariat, Patna 5. The Principal, Patna Medical College and Hospital, Patna 6. The Principal Nalanda Medical College and Hospital, Patna … Respondents ---------------------------------- with Civil Writ Jurisdiction Case No.9899 of 2007 Dr.Ramesh Prasad Singh, son of Sri Naresh Prasad Singh, resident of Mohalla Sector “O” A/1 Sachiwalaya Colony, P.S. Kankarbagh, District Patna … Petitioner Versus 1. The State Of Bihar through Chief Secretary, Govt. of Bihar, Old Secretariat, Patna 2. Commissioner cum Secretary, Deptt. of Health Medical Education and Family Welfare, Govt. of Bihar, New Secretariat, Patna 3. Commissioner cum Secretary, Department of Finance, Govt. of Bihar, Old Secretariat, Patna 4. Commissioner cum Secretary, Personal and Administrative Reforms Deptt., Old Secretariat, Patna 5. The Principal, Patna Medical College and Hospital, Patna 6. The Principal Nalanda Medical College and Hospital, Patna … Respondents ---------------------------------- 2. 19.10.2011 Heard Mr. Yugal Kishore, learned Senior counsel for the petitioners and the counsel for the State in all these four cases. The petitioners being the Members of Bihar Health Service Teaching Cadre have sought a direction from this Court for commanding the respondents to enhance the age of retirement of teachers of other teaching institution like Engineering College, Law College and other Colleges and also a consequential direction for the petitioners being not compelled to retire on attaining the age of 60 years. All the petitioners had retired on 31.7.2007 and after their retirement the writ application were filed though the counsel 3 for the petitioners would claim that all of them presented for filing prior to their retirement. The issue with regard to fixation of date of retirement is a part of service condition and it cannot be disputed that the petitioners on the date of their retirement as per their service condition fixed in Rule 73 of the Bihar Service Code were to retire on attaining the age of 60 years. The petitioners do not dispute this aspect but then they could remember just on the verge of their retirement that in this State teachers in other institutions are getting the benefit of continuing in service till 62 years or 65 years and therefore, they have filed these writ applications to be extended similar treatment as that of the teachers of the Engineering College, Law College and/or other general Colleges. It is not in doubt that the service conditions of the teachers of Law College and other teachers of general Colleges are governed by the Bihar State Universities Act/ Patna University Act or the statute framed thereunder which specifically provides that their age of retirement will be 62 years and the date of retirement of a teaching employee will be the same which would be decided by the University Grant Commission in future. Obviously the legislature has made the basis of U.G.C. also applicable for age of retirement in the Law College and other general Colleges and since the Medical College is not covered by the provisions of Bihar State Universities Act/ Patna University Act, the petitioners will have no difficulty in at least conceding to this extent that their 4 service condition including their retirement cannot be the same as that of the teachers of Law College and/or other general Colleges. It is a settled law that every Government servant or a servant of the University will be governed by the service conditions framed by the employer and therefore, two incomparable cases of the petitioners being the Government servant governed by the Bihar Service Code and the teachers of the University including that of the Law College and other general Colleges being governed by the Bihar State Universities Act/ Patna University Act, cannot claim parity in the date of retirement fixed with such teachers of the Law College/ general Colleges. The over emphasised reliance on the Government Resolution dated 28.8.2006 whereby and whereunder the State Government had enhanced the age of retirement of the teachers of different Engineering Colleges/ Polytechnic also seems to be wholly misconceived. From the reading of the Resolution it would be clear that prior to 5.1.1979 the age of retirement of the teachers of the Government Polytechnic was 60 years and the age of retirement of teachers of Government Engineering Colleges between 1979 to 2003 was 58 years and their age of retirement was enhanced to 60 years only on 30.12.2003. It was in this background that the AICTE norms was sought to be followed similarly for both the institutions i.e. Government Polytechnic and the Government Engineering Colleges and that is how the age of 60 years of retirement was fixed for teachers of both Polytechnic 5 and Engineering Colleges. As a matter of fact since the age of 62 years was subsequently fixed for retirement of the teachers of Government Polytechnic by the Government with effect from 1.1.1996, that was again sought to be made applicable in the case of teachers of Engineering Colleges and that is how the resolution of the State Government in respect of the teachers of the Engineering Colleges and Polytechnic would give an impression that the Government had sought to remove the disparity in the age of retirement between the teachers of Polytechnic and the Engineering College. Thus it cannot be said at least from the reading of the Resolution dated 28.8.2006 that only because the AICTE had recommended to fix the date of retirement of the teachers of the Engineering College as 62 years, that such a decision for enhancement of age of superannuation had been taken. AICTE can only lay down the norms of qualification and prescribe the standard for teaching but cannot dictate terms for age of retirement on the employer and it will be always open for the State Government, the employer, to frame service condition including fixing date of retirement. As noted above, two different age of retirement of the teachers of Polytechnic and Engineering Colleges being under consideration of the Government, that cannot be made the basis to give the same age of retirement in the case of the petitioners who were doctors belonging initially to Bihar Health Service and later on upon creation of the cadre of teachers of Bihar 6 Health Service were made the members of a separate teaching cadre. It has to be always kept in mind and infact the history of the Bihar Health Service will bear it out that till the year 1991 there was no separate teaching cadre and only the persons of general cadre with the prescribed qualification used to be made teachers in the Medical Colleges but then both of them had same date of age of retirement. Subsequently upon creation of a separate cadre of teachers of Medical Colleges the Government has taken a decision to fix a separate date of retirement for them initially by bringing them at par of the Government decision of the year 2004 enhancing the age of retirement of 58 to 60 years and later on again enhancing their age of retirement in the year 2007 from 60 years to 62 years and recently in the year 2011 from 62 to 65 years. The service history of the petitioners, the members of Bihar Health Services, therefore, is wholly incomparable with the teachers of the Engineering Colleges and simply because there job is one and the same i.e. teaching either in Engineering College or Medical College will not make them comparable. Every Government servant will be governed by his own service condition and thus once it becomes clear that the teachers of Medical Colleges are governed by the Bihar Service Code whereas the teachers of the Engineering Colleges are governed by the separate service condition incorporated in the cadre Rules, it will not be possible for this Court to hold that in their case also the 7 Government ought to have notified enhancement of age of retirement with effect from the date on which the Medical Council of India in its meeting held on 28.4.2007 had resolved to recommend for enhancement of age of retirement. It has to be also noted that this resolution of the Medical Council of India, as contained in Annexure 2, appears to be an off-shoot of a proceeding of the earlier meeting held on 28.4.2007 and incomplete extract of such proceeding of the meeting produced by the petitioners does not give any inkling of its recommendation. As a matter of fact when the Medical Council of the India had ultimately communicated its recommendation to the respective State Government for its being taken into consideration for enhancement of age of the teachers in the Medical College no writ of mandamus at least can be issued on the basis of this truncated document contained in Annexure 2 which as a matter of fact cannot be even otherwise treated as a directive to the State Government in view of limited role assigned to Medical Council of India in respect of laying down teaching standard for the Medical Colleges. The Government decision, therefore, taken on 23.11.2007 to enhance the age of retirement of the teachers of Medical College from 60 to 62 years by which time all the petitioners had retired from service could not have been made applicable in their case, inasmuch as the Government notification dated 23.11.2007 reads as follows: 8 “vf/klwpuk la[;k&3,&5&ls0fu0&04@2006 -----------@Hkkjrh; lafo/kku ds vuqPNsn 309 ds ijUrqd }kjk iznr 'kfDr;ksa dk iz;ksx djrs gq, fcgkj jkT;iky ,rn~ }kjk fcgkj lsok lafgrk 1952 esa fuEufyf[kr la'kks/ku djrs gSa& 1- fcgkj lsok ¼la'kks/ku½ lafgrk 2007 ¼A½ ;g fcgkj lsok ¼la'kks/ku½ lafgrk 2007 dgk tk ldsxkA ¼AA½ ;g rqjar izHkko ls izo~r gksxkA 2- fcgkj lsok lafgrk ds fu;e 73 fuEufyf[kr }kjk izfrLFkkfir fd;k tk,xk ¼A½ ljdkjh lsod dh vfuok;Z lsokfuo`fr dh frfFk og frfFk gS ftl frfFk dks og 60 o"kZ dh vk;q iwjh dj ysrk gS% ijUrq fcgkj LokLF; lsok ,oa fcgkj fpfdRlk f'k{kk lsok ds lnL; ds vfuok;Z lsokfuo`fr dh frfFk og gksxh ftl frfFk dks og 62 o"kZ dh vk;q iwjh dj ysrk gSA ¼AA½ mi fu;e ¼A½ ds v/khu lsokfuo`fr dh frfFk ftk ekg esa iM+rh gS ml ekg dh vafre frfFk dks ljdkjh lsod lsokfuo`r gksxk] fdUrq ;fn lsokfuo`fr dh frfFk ekg dh igyh frfFk dks iM+rh gks rks og mlds iwoZorhZ ekg dh vafre frfFk dks lsokfuo`r gksxkA fcgkj jkT;iky ds vkns'k ls g0@& ¼lquhy izlkn JhokLro½ ljdkj ds mi lfpo] foRr foHkkx ** The cut off date of 23.11.2007 cannot be held to be bad on mere ipsi dixit of the petitioners who, as noted above, have not been even careful to produce the actual date on which the M.C.I. is said to have sent its recommendation to the State Government. In that view of the matter, their main contention that M.C.I. norms should have been followed in the same manner in which AICTE norms was followed by the Government in the case of teachers of Engineering Colleges and Polytechnic has to be rejected even otherwise in absence of any specific date of recommendation made by the M.C.I. As the things stand now the petitioners cannot get the benefit of enhancement of age of retirement by the Government 9 notification dated 23.11.2007 and in fact their writ petition filed just at the verge of their retirement would expose their over enthusiasm to continue in Government service though they were aware that the Government had enhanced the age of the teachers of the Engineering Colleges way back in August, 2006 from 60 to 62 years whereas the teachers of Polytechnic were being retired at the age of 60 years right from 1979. In that view of the matter, this Court does not find any merit in these writ applications and the same are accordingly dismissed. (Mihir Kumar Jha,J.) Surendra/