Supreme Court of India
STATE OF BIHARversusDR. YOGENDRA SINGH COL. (RETD.) AND OTHER
- Citation
- 1982 INSC 27
- Decided
- 1 March 1982
- Disposal
- Appeal(s) allowed
- Bench
- P N BHAGWATI
Holding
The termination of Dr. Singh's service was valid; the State Government could, under section 6 of the Act, terminate his ad‑hoc employment and redetermine the age of superannuation.
Summary
Dr. Yogendra Singh, a Professor of Surgery at Magadh Medical College, was appointed under university regulations that fixed the retirement age at 62. After the Bihar Government took over the college under the Bihar Private Medical Colleges (Taking Over) Act, 1978, a Screening Committee recommended retiring teachers over 58, and the State issued a circular terminating services of those aged 58‑62 with one month's notice. Dr. Singh challenged the termination, and the Patna High Court held that the State could not terminate his service before 62. On appeal, the Supreme Court interpreted sections 3 and 6 of the Act, holding that upon takeover the staff ceased to be employees of the college and served the State on an ad‑hoc basis, making the termination valid and allowing the State to redetermine the age of superannuation. The Court set aside the High Court order and dismissed the writ petition.
Issues considered
- Whether the State Government could terminate Dr. Singh's service before he attained the statutory retirement age of 62 under the Bihar Private Medical Colleges (Taking Over) Act, 1978.
- Whether the contract of service of a teacher appointed before the takeover devolved on the State Government and the effect of sections 3 and 6 on that contract.
- Whether the Screening Committee had authority to recommend the age of superannuation and whether the State could redetermine it under section 6.
- Whether a teacher serving on an ad‑hoc basis could claim entitlement to service until the age of superannuation.
Legislation cited
Subjects
taking over of private medical collegesad hoc employmenttermination of serviceage of superannuationinterpretation of statutory provisionsBihar Private Medical Colleges Actscreening committeegovernment employee rights
Judgment
A 332
STATB OF BIHAR
p,
• DR. YOGBNDRA SINGH COL. (RBTD.)
ANDOTHBR
(P.N. BHAGWATI AND R.S. PATHAK, JJ.)
March 1, 1982
C Bihar Private Medical Col/ege1 (Taking over) Act 1978-Meaning and
effect of sections 3 ond 6, explained,
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 be 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 (Takmg Over) Act, 1978, the State Government
D appointed a Screening Committee which, inter aJia, recommended the retirement
of all teachers beyond the age of 58 years and their re-empolyment 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 Screenihg
Comniittee, issued a notice to Dr. Col. informing him that bis services will be
terminated with effect rrom 10-10-1980. A writ petition filed in the High Court
E 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 or 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 bis 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 terinination 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. [339!G-H, 340 A]
G
1:2. It is elementary that when a person is appointed on an ad hoc basis
his tenure is precarious and be 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 (l) of section 6
H which declared tbat the staff employed in the CoHege "shall continue to servo
the college on an ad hoc basis till a decision under sub-section (3) and (4) is taken
by the ~tat~ Government.'.' lq view of th~ clear and cxpli>il 1~rm1 of sub·
BlHAR v. VOGENDRA SJNGH 333
section (I) of section 6 providing that as Crom the date or the notification issued, A
undersub-section (I) or sect ion 3, "all the staff employed in the college shall
cease to be employees of the college body", the contract of Dr. Col with tho
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 or tho State on an ad hoc basis, disentling him to the benefit or
retirement at tho ago or 62. (338 C-G)
B
It was within the competence or the Screening Committee to make recom-
mendation in regard to the age of superannuation of the teaching staff of the
medical colleges iaken over by the State Government. Sub-section (2) or section
6 undoubtedly provides that the Committee or 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-
c
laid down bY. the Medical Council or India and will also take into consideration
all othe_r relevant material including length of service in the college and submit
its report to thC State Government. But sub-section (3) of section 6 also makes
it clear th at the Committee of experts appointed eunder sub-section (2) of that
section can make recommendations in regard to "rank, pay, allowances and other
conditions or service" of tho teaching staff. [338 H, 339 A-CJ D
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 pro~ide
that the services or 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 oi 62 years or more than 58 years. but less than 62 years, E
in consonance with the age of retir~ment of aJI other Government employees.
Under sub-section (3) of section 6 tho State Government bad power to re-
determine the rank, pay, allowances and other conditiOns of service of the
teaching staff and "other co~ditions of scrvicci'' would include the age of super..
annuation. (339 E-G]
F
CIVIL APPBLLATB 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. G
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 H
Respondent No. J.
334 SUPREME COURT REPClRTS (i982j 3s.c.a.
A P.P. Singh for Respondent No. 2.
R.P. Singh for Respondent No. 3.
The Judgment of the Court was delivered by
B 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 !st respondent and directing
that the Isl 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.
G
The Ist respondent was appointed Professor of Surgery in the
Magadh Medical College, Gaya in December; 1975 and he joined
bis post as Professor of Surgery on 27th December, 1975. The letter
of appointment which set • out· the terms and conditions of service
D 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 or superannuation shall be 62 years, and,
therefore, the I st respondent was entitled to continue as Professor of
Surgery until he reached the age of 62 y cars. But in or about the
E middle of 1976 a drastic change took place, as the Bihar Private
Medical Colleges (Taking of Management) Ordinance, 1976 .(herein•
after referred to at the Ordinance) was promulgated by the Gover-
nor 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
F might be a specified in the notification. Pursuant to the Ordinance y
a notification was issued by the State Government taking over the
management of the Magadh Medical College with effect from !st
July, 1978. The ordin.ance was subsequently replacecf by the Bihar
Private Medical Colleges (Taking Over) Act, 1978 (hereinafter
referred to as the Act). Section 3 of the Act provided for taking
G over of private Medical Colleges and it read as follows :
"3 (I). The State Government may, by a notified·
order and from the date mentioned therein, take over a
H 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;
•
i'ltl1AR v. YOGBNDRA SINGH (hhagwati, J.) . , 33S
(2) All the assets and properties of the College and A
the College body whether movable or immovable including
lands, buildings workshops, stores, instruments, machinery,
vehicles, cash balance, reserve fund, investments, taxes, fur- •
niture and others shall, on the date of take O> ~r. stand
transferred to and vested in, and be deemed to have come
into the possession of the State Government; B
(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." •
c
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 tbe true meaning and effect of the provisions
of this section, it would be convenient to set it out in full : D
''6, Determination of terms of the teaching staff and
other employees of the College-(!) As from the date of
the notified order, all the staff eipployed in.the College shall
cease to be the employees of the College body : l!l
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 Govern-
ment will set up one or more Committee' of experts and
knowledgeable persons which will examine the- bio data of F
each member of the teaching staff and ascertain whether
appointment promotion or confirmation was made in accor-
dance 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 scTce in the College, and submit its G
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 H
decide in respect ot' each member of teaching staff on the
merits of each case, whether to absorb him in Government
336 SuPRBMB COirltT RBPOllTS 119sil 3s.c.il..
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, allow-
ances and other conditions of service.
(4) The State Government. shall similarly determine
B 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 th.e provisions of sub·§ection (2)
and (3) shall apply mutandis mutandis to such cases.
c
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 Govern-
ment and all the assets and properties of the M.agadh Medical College
D stood transferred to and became vested in the State Government
and all its liabilities and obligations also devolved on the State
Government. The State Governmen thereafter appointed a Committee
called the Screening Committee under sub-section (2) of section 6
and the Screening Committee maµe a report which contained inter
a/ia the following recommen !Iations :
E
(a) All teachers. beyond the age of 58 years may be
retired subject to reappointment if there are no
qualified substitutes. This shou Id apply to all
State Medical Colleges and the re-employment
F .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 yeats be retained.
The State Government on the basis of this recommendation issued
G a circular letter dated 3rd September, J980 addressed to the Princi-
pals of various Medical Colleges taken over by the State Govern-
ment 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
ff than 58 years but less than 62 years be terminated after giving them
one month's notice." ?llow the !st resp9nd~nt had already attained
hlHAR •• YOGE1'DRA SINGH (Bhagwati, J.) 337
> A
the age of 58 years and the Principal of the Magadh.Medical
College, therefore; addressed a letter dated 11th September, _l 980 to
the 1st respondent informing him that since bis age was more thal!
58 years, bis service was being terminated after 30 days from the
date of issue of that letter as pe~ the order of the State Government.
The result was that by virtue of this letter addressed by the B
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 decla- c
ration 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 sub-
section (3) of section 3, the obligation to continue the first respon-
dent in service upto the age of 62 years devolved on the State
Government on the taking over of the Magadh Medical College
D
under sub-section (I) 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 superannuatbn·
and the termination of his service by the Principal of Magadh Medical
College was therefore, invalid. The writ petition filed by the first E
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 judg-
ment of the High Court.. It proceeds upon a complete mi;-appre-
hension of the true meaning and effect of the relevant provisions of
sections 3 and 6 of the Act. Sub-section (l} of section 3 provides
for taking over of private medical colleges and by virtue of the noti- G
fication 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 e•ercisable by the State
Government. Whatever assets and properties appertained to the
Magadh Medical College became vested in the State Government H
-Y under sub-section (2) of section 3. Section 3 sub-section (3) provided
for devoluti.)n of all th~ liabilities ancl obli~ations of Magadu
\
338 SUPREME COURT REPORTS (1982) 3 s.c.a.
A Medica~ 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 yirtue 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
8 the Magadh Medical College devolved on the State Government.
But section 6 dealt specifically with the subject of deiermination of
terms of the teaching staff and other employees of the Magadh
Medical College and if this special enactment contained any provi-
sion relating to termination of service of the first respondent, it
would obviously prevail over the general provision enacted in sub-
c section (3) of section 3. Now sub-section (I) of section 6 provided
in clear and explicit terms that as from the date of the notification
issued under sub-section (I) of section 3 "all the staff employed in
the e91lege 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
0 proviso to sub-section (I) 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. (I) of section 3. The result
E 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 Govern-
ment on an ad hoc basis. The first respondent could not thereafter
•
contend that he was entitled to continue in service until be 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 persol) is appointed c .1 an '~I
ad hoc basis, his tenure is precarious and he cannot claim to conti-
nue in service until the age of superannuation.
G
Now the State Government appointed a Committee called t c
Screening Committee under sub-section (2) of section 6 and the
Screening Committee r~commended 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
H
appealed to the High Court was that the Screening Committee had
po power under sub-section (2) of section 6 to make a recommenda-
\
PIHAR v. YOGENDRA SINGH (Bhagwati, J.) 339
A
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. Sub-
sec.(2) of section 6 undoubtly provides that the Committee of Experts B
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 considera-
tion all other relevant material. including length of service in the c
·college and submit its report to the State Government. But it is
clear fro,m sub-section (2) of section 6 that the Committee of Experts
appointed under sub-section (2) of that section can also make re-
commendations 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 recom- D
mendations in regard to the age of superannuation of the teaching
stalf of the Medical Colleges taken over by the State Government.
But, even if we are wrong in iaking 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" E
would include the age of superannuation. The State Government
was therefore, clearly within its power unner 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
·~
,::: F
. 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
G
age of superannuation of the teaching staff of the Medical Colleges
taken over by it at 53 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 H
State Government would have power to terminate the services of ·
·- any person employed on an ;i.d. l!oc basis. The termination of service
340 SUPREME COURT REPORTS (J982j 3 S.C.ll.
A 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
B teacher in a Medical College, we direct that there will be no order
as to costs throughout.
S.R. Appeal allowed.
.,,
y
'
Search Indian case law
Ask in plain English, not just keywords. 25,000 AI words free, no card.
Try "taking over of private medical colleges"Sign in to search