Decided on July 29,1981

STATE OF BIHAR Respondents


- (1.)This is an application under Articles 226 and 227 of the Constitution of India for quashing annexures 5,6 and 8 to the petition. The petitioner is a Professor and Head of the Department of surgery, Magadh Medical College, Gaya which was originally a private medical college but has now been taken over by the State Government. Through annexure 5 the Special Secretary of the Health Department has intimated to the Principals of all the private medical colleges, since taken over by the State Government, that the services of all the directly appointed teachers who had attained the age of 62 or those who had crossed 58 but were below 62 be terminated on one month's notice. Through annexure 6 the Principal of the Magadh Medical College in his turn wrote to the petitioner on 12-9-80 that since he had crossed the age of 58 his services would automatically stand terminated at the end of the period of 30 days. Annexure 8 is an office order of the Principal, Magadh Medical College saying that the services of certain teachers named therein including the petitioner stood terminated with effect from 10-10-80 While praying to quash these three annexures (5,6 and 8) the petitioner has also prayed for permitting him to continue on his post by issuing a writ of mandamus on the respondents viz the State Government and University or College authorities. When the writ was admitted the operation of the aforesaid annexures were stayed.
(2.)The petitioner an ex-serviceman had retired while he was holding the rank of a colonel. On the recommendation of the Ministry of Defence, New Delhi his bio-data was called for by the Secretary of the Governing Body of the college in 1975 itself and ultimately he was appointed by the management a professor of surgery (vide the letter of appointment annexure 2). It was specifically mentioned in the appointment letter that his appointment was subject to regulations and as might be enforced from time to time by the Magadh University and adopted by the institution. At that time the Magadh Medical College was a private institution affiliated to the Magadh University. He actually joined on 27-12-75. These facts are not all disputed.
(3.)As it was felt by the State Government that the private medical colleges were being managed in a manner highly detrimental to the interest of the students and circumstances existed which rendered it necessary to take immediate action for taking over of the management of such colleges for a limited period in order to secure the proper management of the same, the Bihar Private Medical Colleges (Taking over of Management) Ordinance, 1976 (Bihar Ordinance No. 131 of 1976) was promulgated which empowered the State Government, to appoint through a notification, a body of persons (Board of Control) to take over the management of any private medical college and to exercise such functions of management of such college as would be specified in the notification (vide Section 3 of the Ordinance). It is under similar repromulgated Ordinance of 1978 that the Magadh Medical College was also taken over with effect from 1-7-78 (vide annexure 3).. Subsequently the above Ordinance culminated into the Bihar Private Medical Colleges (Taking over) Act, 1978 (Bihar Act 5 of 1978 (hereinafter referred to as the Act), and a fresh notification (annexure 3A) taking over the college was issued. It is thus this Act under which the Magadh Medical College now stands taken over by the State Government and the management and control thereof is sought to be exercised by the State Government. This is provided in Sub-section (1) of Section 3 of the Act. By virtue of Sub-section (2) all the assets stands transferred to the State Government. By virtue of Sub-section (3) all the liabilities and obligations of the college under any agreement or contract entered into bonafide before the date of the taking over devolves and would be deemed to have devolved on the State Government, Section 4 deals with effect of notification issued under Section 3 and Section 5 deals with the power of the State Government to vary or cancel certain contracts. There is no dispute in respect of these provisions,
3. The main dispute centres round the provision contained in Section 6 which provides that from the date of notification all the staff employed in the college cease to be the employees of the College body. A proviso thereto say that they (staff) would continue to serve the College on ad-hoc basis till a certain decision regarding them is taken by the State Government. It is on the strength of this provision (Section 6) that the State Government has issued the instruction contained in annexure 5. The logic behind issuing such instruction is that when the staff of the private medical colleges has ceased to be the employees of the College body and when the college has been taken over by the State Government, all the members of the staff employed in the college become Government servants, and once they become Government servants they are governed by Bihar Service Code under which any employee has compulsorily to retire on attaining the age of 58. This position is refuted by the petitioner who contends that Section 6 of the Act does not authorise the State Government to vary the service conditions of the staff, particularly the petitioner, so as to effect his date of superannuation. According to the petitioner his date of superannuation would be the date when he would complete the age of 62 as fixed by the regulations and statutes which governed his college when he had joined. At the time of argument a plea that he has not been heard m the matter has also been taken. Thus annexures 5 6 and 8 are challenged on the ground of their being illegal without jurisdiction and violative of principle of natural justice.


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