Gopal Prasad vs Bihar School Exam. Board

REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.8225 OF 2012

Gopal Prasad … Appellant

versus

Bihar School Examination Board & Others … Respondent

JUDGMENT

Indira Banerjee, J.

I have gone through the draft judgment prepared by my

esteemed brother, but have unfortunately not been able to

agree that the appeal should be dismissed.

2. The appeal is against an order dated 3.8.2012, passed by a Signature Not Verified Digitally signed by CHETAN KUMAR

Division Bench of the High Court of Judicature at Patna, Date: 2020.05.28 15:31:34 IST Reason:

dismissing Letters Patent Appeal No.1090 of 2012 and affirming 2

the order of the Single Bench dated 24.4.2017 dismissing the

Writ Petition CWJC No. 7718 of 2012, filed by the Appellant.

3. The Appellant was appointed as Calligraphist-cum-Assistant

of the Bihar School Examination Board on 20 th May 1970, at

about 15½ years of age . It is not in dispute, that on the date of

appointment of the Appellant, that is, 20 th May 1970 there was

no minimum age prescribed for appointment to the post of

Calligraphist-cum-Assistant. However, the minimum age of entry

into pensionable service was 16 years. This meant that the

period of service of an employee before attaining the age of 16

years, would not count towards pension.

4. By a Government circular dated 15 th January 1998 issued

by the Personnel and Administrative Reforms Department of the

State of Bihar, the minimum age for appointment to an inferior

service under the Government of Bihar was fixed at 18 years.

The said circular, fixing the minimum age for appointment at 18

years, which was issued almost 18 years after the appointment

of the petitioner, was prospective and applied only to 3

appointments made after issuance of the said circular.

5. The terms and conditions of service of employees of the

Bihar School Examination Board are governed by the Bihar

Service Code. Rule 73 of the Bihar Service Code inter alia

provides that “The date of compulsory retirement of a

Government Servant is the date on which he attains the age of

58 years. He may be retained in service after the date of

compulsory retirement with the sanction of State Government

on public grounds, which must be recorded in writing.”

6. On 15th January 2004, the Bihar School Examination Board

resolved to treat the age of entry into service, of those

incumbents who were below 18 years at the time of joining

service, as 18 years at the time of their appointment.

7. The relevant extract of the resolution, as translated in

English, is extracted hereinbelow for convenience:-

“Today dated 15th January, 2004 meeting of Board of Bihar Schools Examination Committee held in the Room of the Chairman. In which Dr. Jitender Singh, Chancellor, Patna University, Patna and Shri Subhash Chander Chaudhary, Assistant Teacher, C.M. High 4 School, Siwan participated as Members in addition to the Chairman.

Proceedings

Agenda No. 1 : …………

Agenda No.2 :

Regarding employees After analysis of the legal advice received having age less than 18 in the light of the judgment taken in the years appointed in the meeting of the Committee held on Committee 18.11.2003 about the employees having age less than 18 years appointed in the Committee, Hon’ble Member Dr. Jitender

Singh, chancellor Patna University, Patna informed that proceedings should be initiated in Committee also under the letter No.1961 dated 12.11.1995 from the Secretary, Higher Education Department, Bihar Patna. According to the provision of the said letter, decision was taken unanimously that employees who have been appointed in the Bihar Schools Examination Committee at the age below 18 years, taking their age at 18 years as on the date of their appointment, they be superannuated on completion of age of 60 years in the case of Category-4 and on completion of age of 58 years in case of Category-3.

8. On a bare reading of the said resolution, it is patently clear

that employees who had been appointed before attaining the

age of 18 years, were to be deemed to have attained the age of

18 years on the date of their appointment and that they would

superannuate on completion of 60 years of age if they were

Category-4 employees and on completion of 58 years of age in

case they were Category-3 employees. The age of 58 years for 5

category-3 employees was, later, during the tenure of service of

the Appellant, increased to 60 years.

9. The resolution may not have perfectly been worded. In my

view, the resolution was a beneficial one in the interest of those

employees who would otherwise have been deprived of

pensionary benefits for the period of service rendered by them

before attaining the age of 18 years. Such employees were to

be deemed to be 18 years on the date of their appointment, so

that they were not deprived of pensionary benefits for part of

their service period, but were to retire on attaining the age of

retirement as prescribed in Rule 73 of the Bihar Service Code.

The resolution might also have been necessitated by reason of

irregular appointments after the Circular dated 15 th January

1998 of persons who had not attained 18 years of age, to put all

disputes with regard to the legality of their appointment to rest.

It does not appear that the resolution was intended to retire

employees who had joined service before attaining the age of

18 years, before completion of their actual age of retirement, 6

as per the Rules.

10. If it were the intent of the resolution, that employees

appointed before attaining the age of 18 years, would retire

before attaining the actual age of retirement, as per Rule 73 of

the Bihar Service Code, the language and/or wording of the

resolution would have been different. The resolution would then

have expressly stated that, the date of birth of employees,

appointed before attaining the age of 18 years, would, for the

purpose of retirement, be deemed to be the date on which the

concerned employee would have been born, if he/she were to

complete 18 years of age on the date of appointment. The

Resolution would clearly have stated that such employees

would retire on attaining the age of retirement prescribed in the

Bihar Service Code on the basis of their deemed date of birth,

notwithstanding the fact that they may not have attained the

age of retirement as per the Bihar Service Code as per their

date of birth as recorded by the Bihar School Examination

Board.

7

11. As observed above the date of retirement of the employees

of the Bihar School Examination Board is governed by Rule 73 of

the Bihar Service Code. No decision to decrease the age of

retirement of employees who had joined service before

attaining the age of 18 years, could in my view, have been

taken without amending Rule 73 of the Bihar Service Code in

accordance with law. There could be no question of amendment

of any provision of the Bihar Service code merely by a resolution

of the Bihar School Examination Board.

12. On 14th February 2004 an Office Order was issued to the

Appellant, the contents of which, as translated, are extracted

hereinbelow:-

“Shri Gopal Prasad, Assistant got appointment in Bihar School Examination Committee in the age less than 18 years, The minimum age for appointment in service in any of the Government (Semi-Government) Autonomous Institutions has been prescribed at 18 years. Decision has been taken in the meeting of the Bihar Schools Examination Committee held on 15.01.2004 that taking their age at 18 years as on the date of their appointment, they be superannuated on completion of age of 60 years in the case of Category-4 and on completion of age of 58 years in 8 case of Category-3.

Therefore, treating the age of Shri Gopal Prasad, Assistant at 18 years as on the date of his appointment i.e. 27.05.1970, as per the directions, orders are issued to record his date of retirement in Service books as 31.05.2010.”

13. The order dated 14th February 2004 in so far as the same

purports to record the date of retirement of the Appellant as 31 st

May 2010 in his Service Book, is contrary to Rule 73 of the Bihar

Service Code and also beyond the scope and ambit of the

resolution taken on 15th January 2004. Any prescription of

minimum age for appointment, subsequent to the appointment

of the Appellant, could not retrospectively be applied to the

Appellant.

14. From the pleadings filed in connection with this appeal, it is

not clear whether the Appellant objected to the said Office Order

dated 14th February 2004. In any case, an office order which is

patently illegal and entails adverse civil consequence is not

precluded from challenge on the ground that the aggrieved

employee may not have objected to the office order, and more

so, when the legality of similar orders was awaiting adjudication

in Courts of law. There were various writ petitions pending in the 9

High Court, on the question of whether persons who had joined

service before attaining the age of 18 years could unilaterally be

retired before they actually attained the age of retirement

stipulated in Rule 73 of the Bihar Service Rules, because they

were to be deemed to have completed 18 years of age on the

date of their appointment. It is also a matter of record that many

of these writ petitions were decided in favour of the employees,

instances of which have been given later in this judgment.

15. It is not in dispute that the Appellant’s date of birth is 19 th

November 1954 as per the records of the Bihar School

Examination Board. It is nobody’s case that the date of birth of

the Appellant as recorded, that is 19 th November 1954, is not his

correct date of birth.

16. The Appellant’s date of birth being 19th November 1954 he

was to complete 58 years of age on 19 th November 2012. The

age of retirement was, however increased to 60 from 58 years,

before 18th November 2012. The Appellant’s date of birth being

19th November 1954, he was to complete sixty years of age on

18th November 2014.

10

17. As observed above, long before the Appellant was

appointed in service of the Bihar School Examination Board,

Rule 5 in Appendix-5 of the Bihar Pension Rules was amended.

The qualifying age of government servants for consideration of

pensionary benefits was raised from 16 to 18 years.

Governmental authorities, however, continued to appoint

employees who had not attained eighteen years of age.

18. On or about 16 th February 2012, the Appellant’s son filed

an application under the Right to Information Act, enquiring

about the date of superannuation fixed by the Board for his

father’s retirement.

19. By a letter dated 26th March 2012 the Board informed the

Appellant’s son that in view of the decision dated 14 th February

2004, the Appellant’s age as on 27th May, 1970 was to be

considered 18 years and therefore his retirement was to be on

31st May 2010, on completion of 58 years, which age had later

been increased to completion of 60 years. The date of

retirement would therefore be 31st May 2012.

20. Thereafter, the Appellant filed the writ petition CWJC 11

No.7718 of 2012 in the High Court of Patna challenging the

communication dated 20th March 2012 under the Right to

Information Act and also the order dated 14th February 2004.

21. By an order dated 24th April 2012, the Single Bench

dismissed the writ petition, relying upon the Full Bench judgment

of the Patna High Court In Ragjawa Narayan Mishra and

Another vs. Chief Executive Officer, Bihar Rajya Khadi

Gramoudyog Board and Ors.1. The Full Bench of Patna High

Court had held:-

“16. Be that as it may, one thing is certain that admittedly both the petitioners when they entered into the contract with the respondent Board they had not attained the age of majority. Apart from its legal impact and effect, the ramifications and end result on the status of a contract, in terms of the service relationship, a person could be said to have entered into a valid service, only, when he has attained the age of majority. So the minimum age prescribed at the entry point in the Government service has been 18 years. The maximum age prescribed for the exit point is 58 years. In other words, the total length of period of Government service in any case for pensionary benefits would not exceed 40 years. It is In this context, the Government Circular mentioned herein above needs to be considered. When there is a clear Rule provision anything contrary to or inconsistent with or incompatible to it, any circular or resolution or order, will not have any legal and valid effect to abridge the right enshrined in the Rule Provision. Even if the said circular of 1998 as relied upon by the petitioners is considered to be beneficial to them then, also, it cannot be read at this

1 . 2006 (1) PLJR 410 12 juncture with the existing statutory provision incorporated in the Bihar Pension Rules, as well as, the Bihar Service Code.

Therefore, from that point of view also the petitioners cannot be allowed to contend that they have right to continue even beyond the age of 58 years though provided in Rule 73 of the Bihar Service Code which prescribes the superannuation age of 58 years.

17. Thirdly, it is settled and established proposition of law and principles of jurisprudence that a person who takes undue advantage by one or other reasons at the entry point in the service cannot be allowed to urge that he be given higher benefit and if it Is urged then clearly, it goes to show that something wrong or irregular has been done, at the entry point, in service. So the settled principle, also, creates a very strong impediment in getting the relief from this Court which is exercising extraordinary, prerogative, equitable and discretionary writ jurisdiction by invocation of the provision of Article 226 of the Constitution of India.

18. In our opinion, therefore, the impugned orders questioned in both the writ petitions, obviously, cannot be interfered with from any point of view as discussed hereinabove. The proposition of law, therefore, is made evidence and unambiguous that the superannuation age prescribed in Rule 73 of the Bihar Service Code will apply for retirement purpose and a person cannot be continued beyond the age of completion of 40 years in service. It is, therefore, evidently, clear that a Government servant who has completed 40 years of service or has attained the age of 58 years has to be superannuated in terms of the existing Rule provision. Our answer, therefore, is very clear and we answer this reference accordingly. The contradictory view in the aforesaid decisions referred to hereinbefore, shall not be a good law.”

22. The mere fact that an employee may have been a

minor at the time of his initial appointment is inconsequential

in the absence of any law at the material time of his

appointment, prohibiting appointment of 15/16 year old 13 minors. The Appellant who was 15½ years old may have

been a minor, but certainly not a toddler. It is absurd that any

rational employer, far less a statutory body, would appoint a

toddler. The hypothesis of appointment of a toddler is far

fetched and unrealistic. The apprehension of claims in future

to appointment from persons less than 18 years of age is also

baseless in view of the circular dated 15 th January 1998 which

fixes 18 years as the minimum age of retirement. The

circular would govern subsequent appointments.

23. It may be true that a minor is incompetent to enter

into a contract, as observed by my esteemed brother. A

contract may not be enforceable against a minor. A contract

executed by a minor may be voidable at the option of the

minor. The minor may, on attaining majority, repudiate or

ratify and accept the contract.

24. It is nobody’s case that any of the concerned

employees repudiated their contract of appointment on

attaining majority. An employer who knowingly appoints

minors with impunity, with its eyes open, cannot evade its

obligations under the contract of employment, and that too

after the employee has rendered service for almost two

decades after attaining majority. The contracts can be said

to have been ratified by the employees concerned, on

attaining majority. It cannot, also be said, that an employee

appointed when he was 15½ years old, attained any undue 14 advantage, when there was no minimum age for appointment

at the material time.

25. The learned Single Judge dismissed the writ petition

relying on the decision of the Full Bench in Ragjawa Narayan

Mishra (supra), and the Division Bench dismissed the appeal

from the decision of the learned Single Judge. The learned

Single Bench, as well as the learned Division Bench, had no

option but to follow Ragjawa Narayan Mishra (supra), since

judicial discipline required the Benches of lesser strength to

follow the decision of the Full Bench.

26. In my view, the interpretation of the Full Bench of

Rule 73 of the Bihar Service Code in Ragjawa Narayan

Mishra (supra) is misconceived and erroneous. Counsel

appearing on behalf of the Appellant has rightly argued that

there is no rule which prescribes the length of service as a

criteria for superannuation. Neither Rule 73 of the Bihar

School Code, nor Rule 57 of the Bihar Pension Rules, 1950

prescribed any limit to the length of service.

27. The Full Bench fell in error in proceeding on the basis

of the length of service, when Rule 73 of the Bihar Service 15

Code prescribes a specific age of superannuation. As argued

on behalf of the Appellant, Rule 73 of the Bihar Service Code

prescribes an age of retirement. The said Rule does not make

length of service a criteria for retirement.

28. The raising of the minimum qualifying age of the

government servant for pensionable service, from 16 to 18

years, meant that if an employee entered service before

attaining the age of 18 years, the period of service from the

actual date of appointment till attainment of the qualifying

age for pensionable service, would not count for the purpose

of computation of pension/pensionary benefits.

29. In Ragjawa Narayan Mishra (supra), the Full

Bench failed to appreciate that the circular of 1998 could have

no manner of application to appointments that had already

been made before the said circular was issued, and certainly

not to appointments made almost two decades before

issuance of the aforesaid circular, at a time when admittedly

there was no minimum age for appointment to government

service. Even assuming that the total length of Government 16

service for pensionary benefits cannot exceed the length of

time between the date of attaining of 18 years and the

attainment of age of 58/60 years as per Rule 73, that would

mean that pensionary benefits would have to be computed on

the basis of the length of service after completion of 18 years

of age. In no case can an employee be retired before

attaining 58 and/or 60 years of age, as prescribed in Rule 73

of the Bihar Service Code.

30. The finding of the Full Bench in Ragjawa Narayan Mishra

(surpa), that the superannuation age prescribed in Rule 73 of

the Bihar Service Code would apply for retirement purpose and

a person could not be continued after completion of the

retirement age is unexceptionable. In no circumstances could

a government servant claim any right to continue in service

after competion of the age of retirement prescribed in Rule 73

of the Bihar Service Code. However, since length of service is

not a criteria for retirement under the applicable rule, that is

Rule 73 of the Bihar Service Code, a government servant who

had not completed the age of retirement as per his/her actual 17

date of birth recorded in the service records, cannot be made

to retire on the ground of completion of 40 years of service or

service in excess of 40 years. At best, the length of service

would be deemed to be forty years for computation of

pensionary benefits.

31. With the greatest of respect to the Full Bench, I am

unable to agree that Rule 5 in Appendix-5 of the Bihar Pension

Rules prescribing the qualifying age of the government servant

for consideration of pensionary benefits and/or raising of such

age from 16 years to 18 years makes any difference to the age

of retirement prescribed under the Rule 73 of the Bihar Service

Code.

32. The age of retirement and qualifying service for the

purpose of retirement benefits are not one and the same.

Qualifying service for retirement means that the length of

service for the purpose of computation of retiral benefits would

commence from attainment of the age of qualifying service of

pension.

33. Thus, if the age of qualifying service for pension is 18 18

years, the length of service for computation of pensionary

benefits would have to be computed from the date of

attainment of 18 years of age. However, if the prescribed

age of retirement is completion of 60 years, an employee

cannot be forced to retire before attaining that age except on

grounds provided in Service Rules. For example, an employee

may prematurely be retired by way of disciplinary action, if

the rules so provide.

34. When the age of retirement is governed by express

rules, which do not prescribe length of service as a criteria of

retirement, but provide for retirement upon attainment of age,

an employee cannot be made to retire before attaining that

age of retirement, only because he/she has served for a

certain length of time, by a convoluted process of logical

reasoning. My judicial conscience, also does not permit me to

uphold the judgment under appeal, only because the High

Court has, for a while, followed the Full Bench decision of that

Court which has held the field for a while. The Full Bench

decision was, in my opinion, erroneous. This Court has time 19

and again reversed its own decisions including those of

Constitutional Benches, which have held the field for decades.

To cite an example, the Constitution Bench Judgment of this

Court in Atiabari Tea Co. Ltd. v. State of Assam 2 which

held the field for almost half century was overruled by a

judgment of nine-Judge Bench judgment n Jindal Stainless

Ltd v. State of Haryana3. I see no reason why the judgment

and order impugned should not be set aside.

35. The issues of whether a government servant could be

superannuated from service on completion of 40 years of

service even in the absence of any such rule, taking aid of

Rule 73 of the Bihar Service Code, which only prescribed the

age of superannuation and whether after completion of 40

years of service, a person could be retired from service,

treating his age as 18 years at the time of entry in service,

were considered by a Division Bench of the High Court of

Jharkhand presided over by S.J. Mukhopadhaya, J. in Ganesh

Ram vs. State of Jharkhand and Ors. numbered W.P.(S)

2 AIR 1961 SC 232 3 2016 SCC Online 1260 decided on 11.11.2016 20

No.1210 of 2003, reported in 2006(2) FLR 156 in the context

of Rule 73 of the Bihar Service Code. The Bihar Service Code

is applicable in the State of Jharkhand created pursuant to the

Bihar Reorganization Act, 2000, and comprising areas that

were earlier in the State of Bihar. The issues were answered

in the negative in favour of the employees and against the

State of Jharkhand and others. A copy of the judgment in

Ganesh Ram (supra) is also annexed to the Paper Book as

Annexure P-5.

36. In Ganesh Ram (supra) the Court found, and rightly,

that there was no common minimum age of 18 years

prescribed by the State of Bihar for appointment to service of

the State, or in the State of Jharkhand. The minimum

eligibility age varied from job to job. The Court observed

and held:-

“7…..The definition of 'employee', as laid down under Section 2(i) of the Act, means any person, who is employed for hire or reward or to do any work, skilled or unskilled, etc. and also includes an employee, employed by the appropriate Government i.e. State Government or Central Government. Clause (a) to Section 2 defines 21 "adolescent" means a person, who has completed his fourteenth year of age but has been completed his eighteenth year. "Adult" has been defined under Clause (aa) of Section 2, which means a person, who has completed his eighteenth year of age and "child", as defined under Clause (bb) of Section 2, means a person, who has not completed his fourteenth year of age. Section 3 of Minimum Wages Act, 1948 while prescribes the manner in which the appropriate Government will fix the minimum rates of wages, under Sub-section (3) appropriate Government is empowered to fix different minimum rates of wages for "adults", "adolescent", "children" and "apprentices". This simply shows that even in the Government employment, an "adolescent", though minor, can be appointed for whom different wages may be fixed.”

The High Court further noted:-

“8. The State of Bihar has issued Police Order No. 209-82, circulated vide Memo No. 6568/P2/43-271- 88, dated 11th August, 1988. This Police Order is also applicable in the State of Jharkhand, in view of Section 84 of the Bihar Reorganization Act, 2000. As per this Order, in every distinct, out of the sanctioned strength of police force, two posts can be reserved in which dependent children of police force, below 18 years of age, can be appointed on compassionate ground, if the police personnel dies while on duty. Those children, so appointed, are commonly known "as Bal-Arakshi" and are paid minimum of the scale of pay of the post, without annual increment, till they attain majority. It is only on attaining majority, if the "Bal-Arakshi" so wishes and is qualified, they are appointed as Constable against such posts. The children, on appointment, are provided with two half-pants, two shirts two-sets of socks, one pair of shoes etc. This simply goes to show that there is no bar on appointment of a minor in the services of the State.”

37. Of Course, as noted in the judgment in Ganesh Ram 22 (supra) after the enactment and enforcement of the Child Labour

(Prohibition and Regulation) Act, 1986 employment of a child

which means a person who has not completed 14 years of age is

prohibited for certain types of work. However, the said Child

Labour (Prohibition and Regulation) Act, 1986 is of no application

in this case, because the petitioner was appointed long before

the enactment and enforcement of the said Act and in any case

he was above 14 years of age at the time of appointment.

38. The issue of whether an employee could be made to retire

before completion of actual age of retirement as prescribed in

Rule 73 of the Bihar Service Code on the basis of a deemed age

was answered in the negative, against an employer and in

favour of the employee in the following cases referred to in

Ganesh Ram (supra):-

1. Mokhtar Ahmad v. B.S.R.T.C. and Ors. (1995(1) PLJR 183(DB)

2. Mantu v. C.C.L. (2001 (1) JCR 181)

3. Kalanand Jha v. State of Jharkhand and Ors. (2001 (3) JCR 228)

4. Balkeshwar v. Central Coalfields Ltd. (2002 (1) JCR 175

5. Pranadhar Prasad v. State of Jharkhand and Ors.

(MANU/JH/1137/2002.

39. I am of the view that the law has correctly been interpreted

by the Division Bench of the High Court of Jharkhand in Ganesh

Ram (supra). A person can only be retired on attainment of the

prescribed age of retirement unless the rules expressly make

length of service a criteria of retirement, as in the case of

employees of the Bihar State Electricity Board, governed by 23 Notification dated 9th September 1997, issued under Section 79

(c) of the Electricity Supply Act, 1948, under which the date of

superannuation prescribed was completion of 60 years of age or

completion of 42 years of service, whichever is earlier.

40. The judgment in Nagaland Senior Government

Employees Welfare Association and others (supra) referred

to by my esteemed brother is in my view clearly distinguishable.

39. In the aforesaid case the applicable Rules expressly made

completion of the length of service prescribed, a criteria for

retirement.

41. This Court upheld the validity of Section 3 of the Nagaland

Retirement from Public Employment Act, 1991 which provided:-

"S.-3. Retirement from public employment: (1) Notwithstanding anything contained in any rule or orders for the time being in force, a person in public employment shall hold office for a term of thirty- three years from the date of his joining public employment or until he attains the age of fifty-seven years whichever is earlier :

Provided that in special circumstances, a person under public employment may be granted extension by the State Government upto a maximum of one year;

Provided further that the Government may have the cases of all persons under public employment screened from time to time to determine their suitability for continuation in public employment after the attainment of the age of fifty years.

(2) All persons under public employment shall retire on the afternoon of the last day of the month in which he attains the age of fifty-seven years or on completion of thirty-three years of public employment whichever is earlier.” 24

42. By the Nagaland Retirement from Public Employment

(Amendment) Act, 2007 (the First Amendment Act, 2007) the

age of retirement was enhanced to 60 years from 57 years. By

the Nagaland Retirement from Public Employment (Second

Amendment) Act, 2009 (the Second Amendment Act, 2009) the

length of service of the State Government employees was

increased to 35 years instead of 33 years. This Court held :-

“a provision such as that at issue which prescribes retiring the persons from public employment in the State of Nagaland on completion of 35 years’ service from the date of joining or until attaining the age of 60 years, whichever is earlier, does not suffer from the vice of arbitrariness or irrationality and is not violative of Articles 14 and 16 of the Constitution. The appeal has no merit and is dismissed with no order as to costs.”

43. As observed above, in this case Rule 73 of the Bihar

Service Code does not prescribe any length of service as criteria

for retirement. The prescribed age of retirement for employees

of the category to which the Appellant belonged was 58 years,

later increased to 60 years. The decision of the respondents to

retire the Appellant before he attained the age of 60 years as

per his actual date of birth, as recorded in the service records

cannot be sustained.

44. I am of the view that the appeal should be allowed and

the judgment and order of the Division Bench and the Single 25 Bench be set aside. The Appellant is entitled to a declaration

that the Appellant was entitled to continue in service till 18 th

November 2014, being the date on which he completed 60

years of age, as per his service records, and shall be entitled to

all consequential benefits including arrears of pay, if any,

pensionary benefits etc.

45. Since we have not agreed, let the matter be placed before

Hon’ble the Chief Justice of India for assignment to a larger

Bench.

.................................J (INDIRA BANERJEE) MAY 28, 2020 NEW DELHI REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO(S). 8225 OF 2012

GOPAL PRASAD ….APPELLANT(S)

VERSUS

BIHAR SCHOOL EXAMINATION BOARD AND OTHERS ….RESPONDENT(S)

JUDGMENT

Rastogi, J.

1. The present appeal is directed against the judgment dated

3rd August, 2012 passed by the Division Bench of the High Court

of Judicature at Patna in Letters Patent Appeal No. 1090 of 2012

confirming the judgment of the Single Bench of the High Court

dated 24th April, 2012 upholding that the appellant has rightly

been retired from service on attaining the age of superannuation.

1

2. The brief facts relevant for the present purpose which

manifest from the record are that the appellant was an employee

of Bihar School Examination Board(hereinafter being referred to

as “Board”) and was initially appointed as a Calligraphist cum

Assistant vide order dated 20 th May, 1970 pursuant to which he

joined service on 27th May, 1970. Although the date of birth of

the appellant as per school records was 19th November, 1954 and

at the time of entering into service on 27 th May, 1970, he was 15

years 6 months and 8 days old. At the time of his entry into

service, the retirement age of the employees of the Board was 58

years but at a later stage, the age of retirement was extended by

the Government of Bihar from 58 years to 60 years, in

consequence the Board also in its meeting held on 30 th March,

2005 decided to extend the age of retirement of its employees

from 58 years to 60 years and pursuant thereto, the date of

compulsory retirement of the Board employee became the date on

which one attained the age of 60 years.

3. Before the matter is examined on merits, it will be apposite

to take note of the material projection of the rules relevant for the

purpose. The services of the State Government employees are

2 governed by Bihar Service Code, 1952, Bihar Pension Rules,

1950. The age of superannuation has been prescribed under

Rule 73 of the Bihar Service Code, 1952. At the same time, Rule

57 of the Bihar Pension Rules, 1950 effective from 20 th January,

1950 prescribes the qualifying service, and further amended by

Rule 5 of Section IV(Qualifying service) of the Pension Rules

amended with effect from 23 rd August, 1950. The rules relevant

for the purpose are extracted hereunder.

Rule 73 of the Bihar Service Code, 1952

“The date of compulsory retirement of a Government servant is the date on which he attains the age of 58 years. He may be retained in service after the date of compulsory retirement with the sanction of the State Government on public grounds, which must be recorded in writing.” Rule 57 of the Bihar Pension Rules, 1950 effective from 20 th January, 1950

“For a Government servant in inferior service, qualifying service, shall not begin until the Government servant concerned attained the age of 16 years.” Rule 5 of Section IV(Qualifying Service) of the Pension Rules effective from 23rd August, 1950 “The minimum age after which service for pension is raised from 16 to 18 years in the case of Government servant belonging to an inferior service (1) who enters service of the Government of Bihar, after the date on which this order came into force or (2) who, having entered such service on or before that date did not hold a lien or suspended lien on a permanent pensionable post under the Government of Bihar on that date.”

3

4. The reliance has also been placed by a Government Circular

dated 15th January, 1998 issued by Personnel and Administrative

reforms Department of the State of Bihar.

5. On a careful scanning of the aforesaid provisions, it clearly

manifest that the pension rules were introduced in 1950 and

after amendment was made under Rule 5 of the Pension Rules,

1950 effective from 23rd August, 1950, the minimum age of the

qualifying service for pension became 18 years. It is not disputed

that minimum age for entering into service under Bihar Service

Code, 1952 has not been prescribed but still there cannot be any

entry into service before one has attained the age of majority, i.e.

18 years as prescribed under the Rules, 1950 unless there is a

specific rule to the contrary. Keeping in view the age of

retirement, as in the instant case is of 60 years, the maximum

qualifying service which one could render would be of 42 years.

6. The Board in its meeting held on 15 th January, 2004 took a

decision that those who have entered into service prior to

attaining the age of 18 years, taking their age as 18 years as on

the date of their appointment, they will be superannuated on

competition of 60 years in the case of category­4 and on

4 competition of age of 58 years in the case of category­3. The

extract of the Resolution of the Board meeting held on 15 th

January, 2004 placed at Annexure P­2 of the paper book,

relevant for the purpose is extracted hereunder:­

“….

Agenda no. 2 Regarding employees having age After analysis of the legal advice less than 18 years appointed in the received in the light of the judgment Committee. taken in the meeting of the Committee held on 18.11.03 about the employees having age less than 18 year appointed in the Committee, Hon’ble Member Dr. Jitender Singh, Chancellor Patna University, Patna informed that proceedings should be initiated in Committee also under the letter No. 1961 dated 12.11.1995 from the Secretary, High Education Department, Patna. According to the provision of the said letter, decision was taken unanimously that employees who have been appointed in the Bihar Schools Examination Committee at the age below 18 years, taking their age at 18 years as on the date of their appointment, they be superannuated on competition of age of 60 years in the case of Category­4 and on completion of age of 58 years in case of Category­3.

7. Taking note of its resolution dated 15 th January, 2004, the

appellant was informed vide communication dated 26 th March,

2012 that he has completed 42 years of qualifying service which

5 an employee could render and accordingly he stood retired from

service on 31st May, 2012 after completing 42 years of qualifying

service.

8. The claim of the appellant was that he should be retired

from service on completing 60 years on the basis of his age

recorded in the Board as well as in his service book, i.e., 19 th

November, 1954. It appears from the record that the controversy

and conflict of opinion of the Division Bench of the High Court of

Bihar was resolved by the Full Bench vide Judgment dated 5 th

January, 2005 by the High Court of Patna in the case of

Ragjawa Narayan Mishra and Ors. Vs. Chief Executive

Officer, Bihar Rajya Khadi Gramoudyog Board and Ors. 1

which was noticed by the Single Bench of the High Court and

confirmed by the Division Bench in its impugned judgment while

repudiating the claim of the appellant for continuation in service

until he completes the age of 60 years on the basis of his age

recorded in the Board, i.e. 19 th November, 1954.

9. Learned counsel for the appellant submits that a person

cannot be superannuated prior to his attaining the age of 60

1 2006(1) PLJR 410 6 years merely because he completes 42 years of qualifying service,

in the absence of any such rule to the contrary. The aforesaid

decision was in teeth of Rule 73 of the Bihar Service Code, 1952

which merely prescribes the age as the criteria for

superannuation. There is no rule prescribing length of service as

a criteria for superannuation and this has not been considered

by the Full Bench which has been relied upon by the High Court

in the impugned judgment in repelling the contention of the

appellant.

10. Learned counsel for the respondents, on the other hand,

while supporting the findings recorded by the Division Bench of

the High Court in the impugned judgment submits that there

was difference of opinion between the two Division Benches of the

High Court and that has been resolved by the Full Bench in

Ragjawa Narayan Mishra and Ors. case(supra) and this has

been followed consistently by the High Court and further submits

that the entry into public employment could not be offered before

one attains the age of majority i.e. 18 years as per Section 3 of

The Majority Act, 1875, the age of superannuation would be 58

years/60 years, as the case may be, the total service which

7 logically one could render may not exceed in any case beyond

40/42 years of service and this what has been resolved by the

Board in its meeting held on 15 th January, 2004 and this was

never the subject matter of challenge even by the appellant when

he was communicated by letter dated 26 th March, 2012 that he

would be attaining the age of superannuation on 31 st May, 2012

on completing 42 years of service.

11. Learned counsel further submits that Rule 73 of the Bihar

Service Code, 1952 read with Rule 57 of the Bihar Pension Rules,

1950 and Rule 5 of Section IV of the Pension Rules makes it clear

that there could not be any entry in the Government service

before the person attains the age of 18 years even in the year

1970 when the appellant was appointed and if the age at the

entry level and the exit level has been prescribed by the rule

making authority, by no stretch, one could go ahead more than

40/42 years of service. In the given circumstances, when the

appellant indisputedly had completed 42 years of service in May

2012, the decision of the respondent to retire him on

superannuation cannot be said to be faulted with and it may not

be revisited at this stage more so when it has been consistently

8 followed by the High Court for almost more than one and half

decade and needs no interference.

12. The provisions of the aforesaid statutory rules which has

been referred to supra envisage that the Government, by virtue of

an amendment inserted rule 5 to the Bihar Pension Rules which

came into effect w.e.f. 23rd August, 1950, much before the

appellant entered into service of the Board, the qualifying age of a

Government servant for consideration of pensionary benefits

came to be 18 years in the Government service which came to be

clarified by the Government by its order dated 15 th January, 1998

making its intention clear to all its subordinates that 18 years

shall be the age of Government servant entering into service.

13. There is no dispute that the service conditions of the

employees are ordinarily governed by the statutory rules or in its

absence, under regulations or administrative decisions having a

binding force but the person who attains the age of majority

alone be competent enough to enter into valid contract of service.

Section 11 of the Indian Contract Act, 1872 defines as to who is

competent to contract.

“Who are competent to contract – Every person is competent to contract who is of the age of majority

9 according to the law to which he is subject, and who is of sound mind and is not disqualified from contracting by any law to which he is subject.”

14. The provision clearly manifests that for entering into valid

contract of service, one has to attain the age of majority in terms

of The Majority Act, 1875 and what could be the age of majority

has been defined under Section 3 of The Majority Act, 1875

which is as under:­

“3. Age of Majority of persons domiciled in India­(1) Every person domiciled in India shall attain the age of majority on his completing the age of eighteen years and not before.

(2) In computing the age of any person, the date on which he was born is to be included as a whole day and he shall be deemed to have attained majority at the beginning of the eighteenth anniversary of that day.”

15. Indisputedly, the appellant, in the instant case, was minor

on the date of entry into service in May 1970 and unless there is

a specific rule to the contrary, minor is not eligible/qualified to

seek public employment. It is true that the minimum age at the

entry level shall always be prescribed by the rule making

authority. In the instant case, the State authority under its

Pension Rules, 1950 prescribes the qualifying service of

Government servant which was raised to 18 years by an

10 amendment made effective from 23 rd August, 1950. If the

minimum age at the relevant time was not prescribed under the

Bihar Service Code, 1952, at least the Government is justified in

taking assistance of the Pension Rules, 1950 to hold that the

minimum age at the entry point shall be 18 years for all practical

purposes. That apart, if the age at the entry level is left open

ended, the minor of whatever age, can seek his eligibility for

public employment leaving no lifetime of service one could render

which is manifestly illogical and can never be the intention of the

rule making authority.

16. Admittedly, in the instant case, when the appellant entered

into service, he was 15 years and 6 months old and had not

attained the age of majority and the minimum age at the entry

point in terms of the Pension Rules, 1950 is 18 years and

maximum age prescribed for exit point is 60 years as a logical

consequence, the total length of service which one could render

in the Government service may not exceed 42 years and when

there is an unambiguous self­explicit provision, anything

contrary to or inconsistent with or incompatible to it, any circular

or resolution or order, will not have any legal and valid effect to

11 abridge the right enshrined in the scheme of Rules and this what

has been considered by the Full Bench of the Patna High Court

which was relied upon by the single Judge of the High Court

while repudiating claim of the appellant in Ragjawa Narayan

Mishra and Ors.(supra) as follows:­

“16. Be that as it may, one thing is certain that admittedly both the petitioners when they entered into the contract with the respondent Board they had not attained the age of majority. Apart from its legal impact and effect, the ramifications and end result on the status of a contract, in terms of the service relationship, a person could be said to have entered into a valid service, only, when he has attained the age of majority. So the minimum age prescribed at the entry point in the Government service has been 18 years. The maximum age prescribed for the exit point is 58 years. In other words, the total length of period of Government service in any case for pensionary benefits would not exceed 40 years. It is in this context, the Government Circular mentioned herein above needs to be considered. When there is a clear Rule provision anything contrary to or inconsistent with or incompatible to it, any circular or resolution or order, will not have any legal and valid effect to abridge the right enshrined in the Rule Provision. Even if the said circular of 1998 as relied upon by the petitioners is considered to be beneficial to them then, also, it cannot be read at this juncture with the existing statutory provision incorporated in the Bihar Pension Rules, as well as, the Bihar Service Code. Therefore, from that point of view also the petitioners cannot be allowed to contend that they have right to continue even beyond the age of 58 years though provided in Rule 73 of the Bihar Service Code which prescribes the superannuation age of 58 years.

17. Thirdly, it is settled and established proposition of law and principles of jurisprudence that a person who takes undue advantage by one or other reasons at the

12 entry point in the service cannot be allowed to urge that he be given higher benefit and if it Is urged then clearly, it goes to show that something wrong or irregular has been done, at the entry point, in service. So the settled principle, also, creates a very strong impediment in getting the relief from this Court which is exercising extraordinary, prerogative, equitable and discretionary writ jurisdiction by invocation of the provision of Article 226 of the Constitution of India.

18. In our opinion, therefore, the impugned orders questioned in both the writ petitions, obviously, cannot be interfered with from any point of view as discussed hereinabove. The proposition of law, therefore, is made evidence and unambiguous that the superannuation age prescribed in Rule 73 of the Bihar Service Code will apply for retirement purpose and a person cannot be continued beyond the age of completion of 40 years in service. It is, therefore, evidently, clear that a Government servant who has completed 40 years of service or has attained the age of 58 years has to be superannuated in terms of the existing Rule provision. Our answer, therefore, is very clear and we answer this reference accordingly. The contradictory view in the aforesaid decisions referred to hereinbefore, shall not be a good law.”

17. One view has been expressed by the full Bench of the Patna

High Court of which the reference has been made, the other view

of the prospect which has been referred to by the Jharkhand

High Court of which a reference has been made by the appellant

in the appeal but what persuaded me further is that the

judgment of the Full Bench of the Patna High Court dated 5 th

December, 2005 at least in the State of Bihar has been

consistently followed for almost a decade and a half and learned

13 Single Judge/Division Bench has passed several orders placing

reliance on the Full Bench of the Patna High Court. The view

which has been expressed is one of the plausible view and, in my

view, it would not be advisable to overturn only for the reason

that the view expressed by the Jharkhand High Court appears to

be more plausible in appreciating the scheme of statutory rules of

which a reference has been made.

18. Indisputedly, the appellant cannot be allowed to contend

that he has a right to continue upto the age of 60 years as per his

date of birth recorded in the Board records in view of Rule 73 of

the Bihar Service Code, 1952. From the scheme of Rules, it is

clear that the superannuation age prescribed under Rule 73 of

the Bihar Service Code, 1952 will apply for retirement purpose

and the person cannot be continued beyond the age of

completion of 42 years in service taking note of the Pension

Rules, 1950. It clearly manifests that the Government servant

who had completed 42 years of service on attaining the age of 60

years, both implicit, has to be superannuated in terms of the

scheme of Rules and this what has been considered by the Full

14 Bench of the High Court in the judgment which has been relied

by the High Court of Patna in the impugned judgment.

19. A two Judge Bench of this Court in Nagaland Senior

Government Employees Welfare Association and Others Vs.

State of Nagaland and Others 2010(7) SCC 643 had an

occasion to examine the validity of Section 3 of the Public

Employment Act, 1991 as amended by the Public

Employment(Amendment) Act, 2007 which was substituted by

the following provision:­

“3. (1) Notwithstanding anything contained in any rule or orders for the time being in force, a person in public employment shall hold office for a term of 35 years from the date of joining public employment or until he attains the age of 60 years, whichever is earlier.

(2) A person under public employment shall retire on the afternoon of the last day of the month in which he attains the age of 60 years, or in which he completes 35 years of public employment, whichever is earlier.”

This Court further held that fixation of maximum length of

service as an alternative criterion for retirement from public

service, by no stretch of imagination, can be held to be violative

of any recognized norms of employment planning. Para 40 is

extracted hereunder:­

15 “40. We are afraid, K. Nagaraj case [(1985) 1 SCC 523 instead of helping the appellants, rather supports the stand of the State. Fixation of maximum length of service as an alternative criterion for retirement from public service, by no stretch of imagination, can be held to be violative of any recognised norms of employment planning. There may be a large number of compelling reasons that may necessitate the Government (or for that matter the legislature) to prescribe the rule of retirement from the government service on completion of specified years. If the reasons are germane to the object sought to be achieved, such provision can hardly be faulted.”

20. In the instant case, apart from the scheme of rules of which

a reference has been made, the appellant could not enter into

service below the age of attaining majority, if there is no express

provision of minimum age at the entry level under the Bihar

Service Code as prayed, in isolation is accepted and the age at

the entry level is left open ended, it will take us to a stage where

a toddler or a minor of any given age can claim his eligibility to

enter into public employment which is manifestly illogical and

impermissible in law.

21. Thus, under the existing scheme of Rules, the qualifying

service which one could render in any manner would not exceed

42 years and this what has been clarified by the Government by

its circular dated 15th January, 1998 and that was taken note of

16 by the Board in its meeting held on 15 th January, 2004 which

was not the subject matter of challenge and the appellant was

communicated of retirement on attaining full employment of 42

years rendered on 31st May, 2012, which, in my opinion, could

not be said to be in contravention to the scheme of rules.

22. The appeal is without substance and is accordingly

dismissed.

23. Pending application(s), if any, stand disposed of.

………………………………….J. (AJAY RASTOGI) NEW DELHI MAY 28, 2020

17