Case: State of Bihar Vs. Dr. Yogendra Singh Col. (Retd.) and Others

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 asThe 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;(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 transfer red 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."

Reasoning:
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 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 Coll ege 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 p rovided 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 ofthe 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 rega rd 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 ascerta in 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 supe rannuation 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 mo re 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 attain ed the age of 58 years should be terminated after giving one months 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 of the first respondent was therefore, perfectly valid and the High Court was in error in granting relief to the first respondent.