GOPAL PRASAD versus BIHAR SCHOOL EXAMINATION BOARD AND OTHERS on 28 May 2020

1. There is no dispute that the service conditions of theemployees are ordinarily governed by the statutory rules or inits absence, under regulations or administrative decisions havinga binding force but the person who attains the age of majorityalone is competent enough to enter into valid contract of service.Section 11 of the Indian Contract Act, 1872 defines as to who iscompetent to contract and clearly manifests that for entering intovalid contract of service, one has to attain the age of majority interms of the Majority Act, 1875 and what could be the age ofmajority has been defined under Section 3 of the Majority Act,1875. [Paras 13, 14][181-C, E]

2. Indisputedly, the appellant, in the instant case, was minoron the date of entry into service in May 1970 and unless there isa specific rule to the contrary, minor is not eligible/qualified toseek public employment. It is true that the minimum age at theentry level shall always be prescribed by the rule makingauthority. In the instant case, the State authority under its PensionRules, 1950 prescribes the qualifying service of Governmentservant which was raised to 18 years by an amendment madeeffective from 23[rd] August, 1950. If the minimum age at therelevant time was not prescribed under the Bihar Service Code,1952, at least the Government is justified in taking assistance ofthe Pension Rules, 1950 to hold that the minimum age at theentry point shall be 18 years for all practical purposes. [Para15][181-G-H; 182-A-B]

3. Admittedly, in this case, when the appellant entered intoservice, he was 15 years and 6 months old and had not attainedthe age of majority and the minimum age at the entry point in A

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Aterms of the Pension Rules, 1950 is 18 years and maximum ageprescribed for exit point is 60 years as a logical consequence,the total length of service which one could render in thegovernment service may not exceed 42 years and when there isan unambiguous self-explicit provision, anything contrary to orinconsistent with or incompatible to it, any circular or resolutionBor order, will not have any legal and valid effect to abridge theright enshrined in the scheme of Rules. Indisputedly, the appellantcannot be allowed to contend that he has a right to continue uptothe age of 60 years as per his date of birth recorded in the Boardrecords in view of Rule 73 of the Bihar Service Code, 1952. FromCthe scheme of Rules, it is clear that the superannuation ageprescribed under Rule 73 of the Bihar Service Code, 1952 willapply for retirement purpose and the person cannot be continuedbeyond the age of completion of 42 years in service taking noteof the Pension Rules, 1950. In the instant case, apart from thescheme of rules of which a reference has been made, the appellantDcould not enter into service below the age of attaining majority, ifthere is no express provision of minimum age at the entry levelunder the Bihar Service Code as prayed, in isolation is acceptedand the age at the entry level is left open ended, it will lead to astage where a toddler or a minor of any given age can claim hisEeligibility to enter into public employment which is manifestlyillogical and impermissible in law. [Paras 16, 18, 20][182-C-D;184-C; 185-D-E]

Ragjawa Narayan Mishra and Ors. v. Chief ExecutiveOfficer, Bihar Rajya Khadi Gramoudyog Board andFOrs. 2006(1) PLJR 410 – approved.Nagaland Senior Government Employees WelfareAssociation and Others v. State of Nagaland and Others(2010) 7 SCC 643 : [2010] 7 SCR 630 – referred to.

Per Indira Banerjee, J.:G

HELD: 1.1 By Government circular dated 15[th] January 1998issued by the Personnel and Administrative Reforms Departmentof the State of Bihar, the minimum age for appointment to aninferior service under the Government of Bihar was fixed at 18years. The said circular, fixing the minimum age for appointmentH

at 18 years, which was issued almost 18 years after theappointment of the petitioner, was prospective and applied onlyto appointments made after issuance of the said circular. [Para4][186-E]

Conclusion

1.2 The terms and conditions of service of employees ofthe Bihar School Examination Board are governed by the BiharService Code. Rule 73 of the Bihar Service Code inter aliaprovides that “The date of compulsory retirement of a GovernmentServant is the date on which he attains the age of 58 years. He maybe retained in service after the date of compulsory retirement withthe sanction of State Government on public grounds, which must berecorded in writing.” On 15[th] January 2004, the Bihar SchoolExamination Board resolved to treat the age of entry into service,of those incumbents who were below 18 years at the time of joiningservice, as 18 years at the time of their appointment. As per thesaid resolution, employees who had been appointed beforeattaining the age of 18 years, were to be deemed to have attainedthe age of 18 years on the date of their appointment and that theywould superannuate on completion of 60 years of age if they wereCategory-4 employees and on completion of 58 years of age incase they were Category-3 employees. The age of 58 years forcategory-3 employees was, later, during the tenure of service ofthe Appellant, increased to 60 years. [Paras 5,6, 8][186-G-H;187-A-G]

1.3 The resolution may not have perfectly been worded.The resolution was a beneficial one in the interest of thoseemployees who would otherwise have been deprived of pensionarybenefits for the period of service rendered by them before attainingthe age of 18 years. Such employees were to be deemed to be 18years on the date of their appointment, so that they were notdeprived of pensionary benefits for part of their service period,but were to retire on attaining the age of retirement as prescribedin Rule 73 of the Bihar Service Code. The resolution might alsohave been necessitated by reason of irregular appointments afterthe Circular dated 15[th] January 1998 of persons who had notattained 18 years of age, to put all disputes with regard to thelegality of their appointment to rest. It does not appear that theresolution was intended to retire employees who had joined A

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Aservice before attaining the age of 18 years, before completionof their actual age of retirement, as per the Rules. If it were theintent of the resolution, the language and/or wording of theresolution would have been different. [Paras 9, 10][187-H;188-A-C]

B2. The date of retirement of the employees of the BiharSchool Examination Board is governed by Rule 73 of the BiharService Code. No decision to decrease the age of retirement ofemployees who had joined service before attaining the age of 18years, could have been taken without amending Rule 73 of theBihar Service Code in accordance with law. There could be noCquestion of amendment of any provision of the Bihar Service codemerely by a resolution of the Bihar School Examination Board.Any prescription of minimum age for appointment, subsequentto the appointment of the Appellant, could not retrospectively beapplied to the Appellant. [Paras 11, 13][188-F-G; 189-D]

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3.1 The mere fact that an employee may have been a minorat the time of his initial appointment is inconsequential in theabsence of any law at the material time of his appointment,prohibiting appointment of 15/16 year old minors. The Appellantwho was 15½ years old may have been a minor, but certainly notEa toddler. It is absurd that any rational employer, far less a statutorybody, would appoint a toddler. The apprehension of claims infuture to appointment from persons less than 18 years of age isalso baseless in view of the circular dated 15[th] January 1998 whichfixes 18 years as the minimum age of retirement. The circularwould govern subsequent appointments. It may be true that aFminor is incompetent to enter into a contract. A contract may notbe enforceable against a minor. A contract executed by a minormay be voidable at the option of the minor. The minor may, onattaining majority, repudiate or ratify and accept the contract. Itis nobody’s case that any of the concerned employees repudiatedGtheir contract of appointment on attaining majority. An employerwho 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 almosttwo decades after attaining majority. The contracts can be said to H

have been ratified by the employees concerned, on attainingmajority. [Paras 22, 23, 24][192-B-F]

3.2 In Ragjawa Narayan Mishra, the Full Bench failed toappreciate that the circular of 1998 could have no manner ofapplication to appointments that had already been made beforethe said circular was issued, and certainly not to appointmentsmade almost two decades before issuance of the aforesaid circular,at a time when admittedly there was no minimum age forappointment to government service. Even assuming that the totallength of Government service for pensionary benefits cannotexceed the length of time between the date of attaining of 18years and the attainment of age of 58/60 years as per Rule 73,that would mean that pensionary benefits would have to becomputed on the basis of the length of service after completionof 18 years of age. In no case can an employee be retired beforeattaining 58 and/or 60 years of age, as prescribed in Rule 73 ofthe Bihar Service Code. [Para 29][193-E-G]

3.3 The finding of the Full Bench in Ragjawa NarayanMishra, that the superannuation age prescribed in Rule 73 of theBihar Service Code would apply for retirement purpose and aperson could not be continued after completion of the retirementage is unexceptionable. In no circumstances could a governmentservant claim any right to continue in service after completion ofthe age of retirement prescribed in Rule 73 of the Bihar ServiceCode. However, since length of service is not a criteria forretirement under the applicable rule, that is Rule 73 of the BiharService Code, a government servant who had not completed theage of retirement as per his/her actual date of birth recorded inthe service records, cannot be made to retire on the ground ofcompletion of 40 years of service or service in excess of 40 years.At best, the length of service would be deemed to be forty yearsfor computation of pensionary benefits. The age of retirementand qualifying service for the purpose of retirement benefits arenot one and the same. Qualifying service for retirement meansthat the length of service for the purpose of computation of retiralbenefits would commence from attainment of the age of qualifyingservice of pension. Thus, if the age of qualifying service for A

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Apension is 18 years, the length of service for computation ofpensionary benefits would have to be computed from the date ofattainment of 18 years of age. However, if the prescribed age ofretirement is completion of 60 years, an employee cannot beforced to retire before attaining that age except on groundsprovided in Service Rules. [Paras 30, 32, 33][193-H; 194-A-F]B

Ragjawa Narayan Mishra and Another v. ChiefExecutive Officer, Bihar Rajya Khadi GramoudyogBoard and Ors. 2006 (1) PLJR 410 – disapproved.

Atiabari Tea Co. Ltd. v. State of Assam AIR 1961 SCC232 : [1961] SCR 809; Jindal Stainless Ltd v. State ofHaryana (2016) SCC Online 1260; Ganesh Ram v. Stateof Jharkhand and Ors. 2006 (2) FLR 156 – referredto.

Case Law Reference

DPer Ajay Rastogi, J.:

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FCIVIL APPELLATE JURISDICTION: Civil Appeal No. 8225of 2012.

From the Judgment and Order dated 03.08.2012 by the High Courtof Judicature at Patna in Letters Patent Appeal No. 1090 of 2012.

GAnand Shankar Jha, Arjun Garg, Srikanth S., Manish Kumar, andGopal Singh, Advs. for the appearing parties.

GOPAL PRASAD v. BIHAR SCHOOL EXAMINATION BOARDAND OTHERS

The Judgments of the Court were delivered by RASTOGI, J.

1. The present appeal is directed against the judgment dated3[rd] August, 2012 passed by the Division Bench of the High Court ofJudicature at Patna in Letters Patent Appeal No. 1090 of 2012 confirmingthe judgment of the Single Bench of the High Court dated 24[th] April,2012 upholding that the appellant has rightly been retired from serviceon attaining the age of superannuation.

2. The brief facts relevant for the present purpose which manifestfrom the record are that the appellant was an employee of Bihar SchoolExamination Board(hereinafter being referred to as “Board”) and wasinitially appointed as a Calligraphist cum Assistant vide order dated20[th] May, 1970 pursuant to which he joined service on 27[th] May, 1970.Although the date of birth of the appellant as per school records was19[th] November, 1954 and at the time of entering into service on27[th] May, 1970, he was 15 years 6 months and 8 days old. At the time ofhis entry into service, the retirement age of the employees of the Boardwas 58 years but at a later stage, the age of retirement was extended bythe Government of Bihar from 58 years to 60 years, in consequence theBoard also in its meeting held on 30[th] March, 2005 decided to extend theage of retirement of its employees from 58 years to 60 years and pursuantthereto, the date of compulsory retirement of the Board employee becamethe date on which one attained the age of 60 years.

3. Before the matter is examined on merits, it will be apposite totake note of the material projection of the rules relevant for the purpose.The services of the State Government employees are governed by BiharService Code, 1952, Bihar Pension Rules, 1950. The age ofsuperannuation has been prescribed under Rule 73 of the Bihar ServiceCode, 1952. At the same time, Rule 57 of the Bihar Pension Rules, 1950effective from 20[th] January, 1950 prescribes the qualifying service, andfurther amended by Rule 5 of Section IV (Qualifying service) of thePension Rules amended with effect from 23[rd] August, 1950. The rulesrelevant for the purpose are extracted hereunder.

Rule 73 of the Bihar Service Code, 1952

“The date of compulsory retirement of a Government servantis the date on which he attains the age of 58 years. He may beretained in service after the date of compulsory retirement A

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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 from20[th] January, 1950

“For a Government servant in inferior service, qualifyingservice, shall not begin until the Government servant concernedattained the age of 16 years.”

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Rule 5 of Section IV(Qualifying Service) of the PensionRules effective from 23[rd] August, 1950

C“The minimum age after which service for pension is raisedfrom 16 to 18 years in the case of Government servant belongingto an inferior service (1) who enters service of the Governmentof Bihar, after the date on which this order came into force or(2) who, having entered such service on or before that datedid not hold a lien or suspended lien on a permanent pensionableDpost under the Government of Bihar on that date.”

4. The reliance has also been placed by a Government Circulardated 15[th] January, 1998 issued by Personnel and Administrative reformsDepartment of the State of Bihar.

5. On a careful scanning of the aforesaid provisions, it clearlyEmanifest that the pension rules were introduced in 1950 and afteramendment was made under Rule 5 of the Pension Rules, 1950 effectivefrom 23[rd] August, 1950, the minimum age of the qualifying service forpension became 18 years. It is not disputed that minimum age for enteringinto service under Bihar Service Code, 1952 has not been prescribed butFstill there cannot be any entry into service before one has attained theage of majority, i.e. 18 years as prescribed under the Rules, 1950 unlessthere is a specific rule to the contrary. Keeping in view the age ofretirement, as in the instant case is of 60 years, the maximum qualifyingservice which one could render would be of 42 years.

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6. The Board in its meeting held on 15[th] January, 2004 took adecision that those who have entered into service prior to attaining theage of 18 years, taking their age as 18 years as on the date of theirappointment, they will be superannuated on competition of 60 years inthe case of category-4 and on competition of age of 58 years in the caseof category-3. The extract of the Resolution of the Board meeting held G

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on 15[th] January, 2004 placed at Annexure P-2 of the paper book, relevantfor the purpose is extracted hereunder:- “….

Agenda no. 2

7. Taking note of its resolution dated 15[th] January, 2004, theappellant was informed vide communication dated 26[th] March, 2012 thathe has completed 42 years of qualifying service which an employeecould render and accordingly he stood retired from service on 31[st] May,2012 after completing 42 years of qualifying service.

8. The claim of the appellant was that he should be retired fromservice on completing 60 years on the basis of his age recorded in theBoard as well as in his service book, i.e., 19[th] November, 1954. It appearsfrom the record that the controversy and conflict of opinion of the DivisionBench of the High Court of Bihar was resolved by the Full Bench videJudgment dated 5[th] January, 2005 by the High Court of Patna in the caseof Ragjawa Narayan Mishra and Ors. Vs. Chief Executive Officer,Bihar Rajya Khadi Gramoudyog Board and Ors.[1] which was noticedby the Single Bench of the High Court and confirmed by the DivisionBench in its impugned judgment while repudiating the claim of theappellant for continuation in service until he completes the age of 60years on the basis of his age recorded in the Board, i.e. 19[th] November,1954.

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A9. Learned counsel for the appellant submits that a person cannotbe superannuated prior to his attaining the age of 60 years merely becausehe completes 42 years of qualifying service, in the absence of any suchrule to the contrary. The aforesaid decision was in teeth of Rule 73 ofthe Bihar Service Code, 1952 which merely prescribes the age as thecriteria for superannuation. There is no rule prescribing length of serviceBas a criteria for superannuation and this has not been considered by theFull Bench which has been relied upon by the High Court in the impugnedjudgment in repelling the contention of the appellant.

10. Learned counsel for the respondents, on the other hand, whilesupporting the findings recorded by the Division Bench of the High CourtCin the impugned judgment submits that there was difference of opinionbetween the two Division Benches of the High Court and that has beenresolved by the Full Bench in Ragjawa Narayan Mishra and Ors.case (supra) and this has been followed consistently by the High Courtand further submits that the entry into public employment could not beDoffered before one attains the age of majority i.e. 18 years as per Section3 of The Majority Act, 1875, the age of superannuation would be 58years/60 years, as the case may be, the total service which logically onecould render may not exceed in any case beyond 40/42 years of serviceand 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 evenEby 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 BiharService Code, 1952 read with Rule 57 of the Bihar Pension Rules, 1950Fand Rule 5 of Section IV of the Pension Rules makes it clear that therecould not be any entry in the Government service before the personattains the age of 18 years even in the year 1970 when the appellantwas appointed and if the age at the entry level and the exit level hasbeen prescribed by the rule making authority, by no stretch, one could goGahead more than 40/42 years of service. In the given circumstances,when the appellant indisputedly had completed 42 years of service inMay 2012, the decision of the respondent to retire him on superannuationcannot be said to be faulted with and it may not be revisited at this stagemore so when it has been consistently followed by the High Court foralmost more than one and half decade and needs no interference.H

12. The provisions of the aforesaid statutory rules which has beenreferred to supra envisage that the Government, by virtue of anamendment inserted rule 5 to the Bihar Pension Rules which came intoeffect w.e.f. 23[rd] August, 1950, much before the appellant entered intoservice of the Board, the qualifying age of a Government servant forconsideration of pensionary benefits came to be 18 years in theGovernment service which came to be clarified by the Government byits order dated 15[th] January, 1998 making its intention clear to all itssubordinates that 18 years shall be the age of Government servantentering into service.

13. There is no dispute that the service conditions of the employeesare ordinarily governed by the statutory rules or in its absence, underregulations or administrative decisions having a binding force but theperson who attains the age of majority alone be competent enough toenter into valid contract of service. Section 11 of the Indian ContractAct, 1872 defines as to who is competent to contract.

“Who are competent to contract – Every person is competentto contract who is of the age of majority according to the law towhich he is subject, and who is of sound mind and is not disqualifiedfrom contracting by any law to which he is subject.”

14. The provision clearly manifests that for entering into validcontract of service, one has to attain the age of majority in terms of TheMajority Act, 1875 and what could be the age of majority has beendefined under Section 3 of The Majority Act, 1875 which is as under:- “3. Age of Majority of persons domiciled in India-(1) Everyperson domiciled in India shall attain the age of majority on hiscompleting the age of eighteen years and not before.

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

15. Indisputedly, the appellant, in the instant case, was minor onthe date of entry into service in May 1970 and unless there is a specificrule to the contrary, minor is not eligible/qualified to seek publicemployment. It is true that the minimum age at the entry level shallalways be prescribed by the rule making authority. In the instant case,the State authority under its Pension Rules, 1950 prescribes the qualifying A

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Aservice of Government servant which was raised to 18 years by anamendment made effective from 23[rd] August, 1950. If the minimum ageat the relevant time was not prescribed under the Bihar Service Code,1952, at least the Government is justified in taking assistance of thePension Rules, 1950 to hold that the minimum age at the entry point shallbe 18 years for all practical purposes. That apart, if the age at the entryBlevel is left open ended, the minor of whatever age, can seek his eligibilityfor public employment leaving no lifetime of service one could renderwhich is manifestly illogical and can never be the intention of the rulemaking authority.

16. Admittedly, in the instant case, when the appellant enteredCinto service, he was 15 years and 6 months old and had not attained theage of majority and the minimum age at the entry point in terms of thePension Rules, 1950 is 18 years and maximum age prescribed for exitpoint is 60 years as a logical consequence, the total length of servicewhich one could render in the Government service may not exceed 42Dyears and when there is an unambiguous self-explicit provision, anythingcontrary to or inconsistent with or incompatible to it, any circular orresolution or order, will not have any legal and valid effect to abridge theright enshrined in the scheme of Rules and this what has been consideredby the Full Bench of the Patna High Court which was relied upon by thesingle Judge of the High Court while repudiating claim of the appellant inERagjawa Narayan Mishra and Ors. (supra) as follows:- “16. Be that as it may, one thing is certain that admittedly both thepetitioners when they entered into the contract with the respondentBoard they had not attained the age of majority. Apart from itslegal impact and effect, the ramifications and end result on theFstatus of a contract, in terms of the service relationship, a personcould be said to have entered into a valid service, only, when hehas attained the age of majority. So the minimum age prescribedat the entry point in the Government service has been 18 years.The maximum age prescribed for the exit point is 58 years. InGother words, the total length of period of Government service inany case for pensionary benefits would not exceed 40 years. It isin this context, the Government Circular mentioned herein aboveneeds to be considered. When there is a clear Rule provisionanything contrary to or inconsistent with or incompatible to it, anycircular or resolution or order, will not have any legal and valid H

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effect to abridge the right enshrined in the Rule Provision. Even ifthe said circular of 1998 as relied upon by the petitioners isconsidered to be beneficial to them then, also, it cannot be read atthis juncture with the existing statutory provision incorporated inthe Bihar Pension Rules, as well as, the Bihar Service Code.Therefore, from that point of view also the petitioners cannot beallowed to contend that they have right to continue even beyondthe age of 58 years though provided in Rule 73 of the Bihar ServiceCode which prescribes the superannuation age of 58 years.

17. Thirdly, it is settled and established proposition of law andprinciples of jurisprudence that a person who takes undueadvantage by one or other reasons at the entry point in the servicecannot be allowed to urge that he be given higher benefit and if itIs urged then clearly, it goes to show that something wrong orirregular has been done, at the entry point, in service. So the settledprinciple, also, creates a very strong impediment in getting therelief from this Court which is exercising extraordinary,prerogative, equitable and discretionary writ jurisdiction byinvocation of the provision of Article 226 of the Constitution ofIndia.

18. In our opinion, therefore, the impugned orders questioned inboth the writ petitions, obviously, cannot be interfered with fromany point of view as discussed hereinabove. The proposition oflaw, therefore, is made evidence and unambiguous that thesuperannuation age prescribed in Rule 73 of the Bihar ServiceCode will apply for retirement purpose and a person cannot becontinued beyond the age of completion of 40 years in service. Itis, therefore, evidently, clear that a Government servant who hascompleted 40 years of service or has attained the age of 58 yearshas to be superannuated in terms of the existing Rule provision.Our answer, therefore, is very clear and we answer this referenceaccordingly. The contradictory view in the aforesaid decisionsreferred to hereinbefore, shall not be a good law.”

17. One view has been expressed by the full Bench of the PatnaHigh Court of which the reference has been made, the other view of theprospect which has been referred to by the Jharkhand High Court ofwhich a reference has been made by the appellant in the appeal butwhat persuaded me further is that the judgment of the Full Bench of the AB

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APatna High Court dated 5[th] December, 2005 at least in the State ofBihar has been consistently followed for almost a decade and a half andlearned Single Judge/Division Bench has passed several orders placingreliance on the Full Bench of the Patna High Court. The view which hasbeen expressed is one of the plausible view and, in my view, it would notbe advisable to overturn only for the reason that the view expressed byBthe Jharkhand High Court appears to be more plausible in appreciatingthe scheme of statutory rules of which a reference has been made.

18. Indisputedly, the appellant cannot be allowed to contend thathe has a right to continue upto the age of 60 years as per his date of birthrecorded in the Board records in view of Rule 73 of the Bihar ServiceCCode, 1952. From the scheme of Rules, it is clear that the superannuationage prescribed under Rule 73 of the Bihar Service Code, 1952 will applyfor retirement purpose and the person cannot be continued beyond theage of completion of 42 years in service taking note of the PensionRules, 1950. It clearly manifests that the Government servant who hadDcompleted 42 years of service on attaining the age of 60 years, bothimplicit, has to be superannuated in terms of the scheme of Rules andthis what has been considered by the Full Bench of the High Court in thejudgment which has been relied by the High Court of Patna in theimpugned judgment.

E19. A two Judge Bench of this Court in Nagaland SeniorGovernment Employees Welfare Association and Others Vs. Stateof Nagaland and Others 2010 (7) SCC 643 had an occasion to examinethe validity of Section 3 of the Public Employment Act, 1991 as amendedby the Public Employment(Amendment) Act, 2007 which was substitutedby the following provision:-F

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

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

GOPAL PRASAD v. BIHAR SCHOOL EXAMINATION BOARDAND OTHERS [AJAY RASTOGI, J.]

This Court further held that fixation of maximum length of serviceas an alternative criterion for retirement from public service, by no stretchof imagination, can be held to be violative of any recognized norms ofemployment planning. Para 40 is extracted hereunder:- “40. We are afraid, K. Nagaraj case [(1985) 1 SCC 523 insteadof helping the appellants, rather supports the stand of the State.Fixation of maximum length of service as an alternative criterionfor retirement from public service, by no stretch of imagination,can be held to be violative of any recognised norms of employmentplanning. There may be a large number of compelling reasonsthat may necessitate the Government (or for that matter thelegislature) to prescribe the rule of retirement from the governmentservice on completion of specified years. If the reasons aregermane to the object sought to be achieved, such provision canhardly be faulted.”

20. In the instant case, apart from the scheme of rules of which areference has been made, the appellant could not enter into service belowthe age of attaining majority, if there is no express provision of minimumage at the entry level under the Bihar Service Code as prayed, in isolationis accepted and the age at the entry level is left open ended, it will takeus to a stage where a toddler or a minor of any given age can claim hiseligibility to enter into public employment which is manifestly illogicaland impermissible in law.

21. Thus, under the existing scheme of Rules, the qualifying servicewhich one could render in any manner would not exceed 42 years andthis what has been clarified by the Government by its circular dated 15[th]January, 1998 and that was taken note of by the Board in its meetingheld on 15[th] January, 2004 which was not the subject matter of challengeand the appellant was communicated of retirement on attaining fullemployment of 42 years rendered on 31[st] 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.

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186SUPREME COURT REPORTS

[2020] 11 S.C.R.

AINDIRA BANERJEE, J.

1. I have gone through the draft judgment prepared by myesteemed brother, but have unfortunately not been able to agree that theappeal should be dismissed.

2. The appeal is against an order dated 3.8.2012, passed by aBDivision Bench of the High Court of Judicature at Patna, dismissingLetters Patent Appeal No.1090 of 2012 and affirming the order of theSingle 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-AssistantCof the Bihar School Examination Board on 20[th] May 1970, at about 15½years of age. It is not in dispute, that on the date of appointment of theAppellant, that is, 20[th] May 1970 there was no minimum age prescribedfor appointment to the post of Calligraphist-cum-Assistant. However,the minimum age of entry into pensionable service was 16 years. This

Dmeant that the period of service of an employee before attaining the ageof 16 years, would not count towards pension.

4. By a Government circular dated 15[th] January 1998 issued bythe Personnel and Administrative Reforms Department of the State ofBihar, the minimum age for appointment to an inferior service under theEGovernment of Bihar was fixed at 18 years. The said circular, fixing theminimum age for appointment at 18 years, which was issued almost 18years after the appointment of the petitioner, was prospective and appliedonly to appointments made after issuance of the said circular.

5. The terms and conditions of service of employees of the BiharFSchool Examination Board are governed by the Bihar Service Code.Rule 73 of the Bihar Service Code inter alia provides that “The date ofcompulsory retirement of a Government Servant is the date on whichhe attains the age of 58 years. He may be retained in service afterthe date of compulsory retirement with the sanction of StateGovernment on public grounds, which must be recorded in writing.”G

6. On 15[th] January 2004, the Bihar School Examination Boardresolved to treat the age of entry into service, of those incumbents whowere below 18 years at the time of joining service, as 18 years at thetime of their appointment.

7. The relevant extract of the resolution, as translated in English,His extracted hereinbelow for convenience:-

“Today dated 15[th] January, 2004 meeting of Board of BiharSchools Examination Committee held in the Room of theChairman. In which Dr. Jitender Singh, Chancellor, PatnaUniversity, Patna and Shri Subhash Chander Chaudhary,Assistant Teacher, C.M. High School, Siwan participated asMembers in addition to the Chairman.

Proceedings

Agenda No. 1 : …………

Agenda No.2 :

8. On a bare reading of the said resolution, it is patently clear thatemployees 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 oftheir appointment and that they would superannuate on completion of 60years of age if they were Category-4 employees and on completion of58 years of age in case they were Category-3 employees. The age of 58years for category-3 employees was, later, during the tenure of serviceof the Appellant, increased to 60 years.

9. The resolution may not have perfectly been worded. In myview, the resolution was a beneficial one in the interest of those employeeswho would otherwise have been deprived of pensionary benefits for theperiod of service rendered by them before attaining the age of 18 years.

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ASuch employees were to be deemed to be 18 years on the date of theirappointment, so that they were not deprived of pensionary benefits forpart of their service period, but were to retire on attaining the age ofretirement as prescribed in Rule 73 of the Bihar Service Code. Theresolution might also have been necessitated by reason of irregularappointments after the Circular dated 15[th] January 1998 of persons whoBhad not attained 18 years of age, to put all disputes with regard to thelegality of their appointment to rest. It does not appear that the resolutionwas intended to retire employees who had joined service before attainingthe age of 18 years, before completion of their actual age of retirement,as per the Rules.C

10. If it were the intent of the resolution, that employees appointedbefore attaining the age of 18 years, would retire before attaining theactual age of retirement, as per Rule 73 of the Bihar Service Code, thelanguage and/or wording of the resolution would have been different.The resolution would then have expressly stated that, the date of birth ofDemployees, appointed before attaining the age of 18 years, would, forthe purpose of retirement, be deemed to be the date on which theconcerned employee would have been born, if he/she were to complete18 years of age on the date of appointment. The Resolution would clearlyhave stated that such employees would retire on attaining the age ofretirement prescribed in the Bihar Service Code on the basis of theirEdeemed date of birth, notwithstanding the fact that they may not haveattained the age of retirement as per the Bihar Service Code as per theirdate of birth as recorded by the Bihar School Examination Board.

11. As observed above the date of retirement of the employees ofthe Bihar School Examination Board is governed by Rule 73 of the BiharFService Code. No decision to decrease the age of retirement ofemployees who had joined service before attaining the age of 18 years,could in my view, have been taken without amending Rule 73 of theBihar Service Code in accordance with law. There could be no questionof amendment of any provision of the Bihar Service code merely by aGresolution of the Bihar School Examination Board.

12. On 14[th] February 2004 an Office Order was issued to theAppellant, the contents of which, as translated, are extractedhereinbelow:- “Shri Gopal Prasad, Assistant got appointment in Bihar SchoolHExamination 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 prescribedat 18 years. Decision has been taken in the meeting of the BiharSchools Examination Committee held on 15.01.2004 that takingtheir age at 18 years as on the date of their appointment, they besuperannuated on completion of age of 60 years in the case ofCategory-4 and on completion of age of 58 years in case ofCategory-3.

Therefore, treating the age of Shri Gopal Prasad, Assistant at18 years as on the date of his appointment i.e. 27.05.1970, as perthe directions, orders are issued to record his date of retirement inService books as 31.05.2010.”

13. The order dated 14[th] February 2004 in so far as the samepurports to record the date of retirement of the Appellant as 31[st] May2010 in his Service Book, is contrary to Rule 73 of the Bihar ServiceCode and also beyond the scope and ambit of the resolution taken on15[th] January 2004. Any prescription of minimum age for appointment,subsequent to the appointment of the Appellant, could not retrospectivelybe applied to the Appellant.

14. From the pleadings filed in connection with this appeal, it isnot clear whether the Appellant objected to the said Office Order dated14[th] February 2004. In any case, an office order which is patently illegaland entails adverse civil consequence is not precluded from challengeon the ground that the aggrieved employee may not have objected to theoffice order, and more so, when the legality of similar orders was awaitingadjudication in Courts of law. There were various writ petitions pendingin the High Court, on the question of whether persons who had joinedservice before attaining the age of 18 years could unilaterally be retiredbefore they actually attained the age of retirement stipulated in Rule 73of the Bihar Service Rules, because they were to be deemed to havecompleted 18 years of age on the date of their appointment. It is also amatter of record that many of these writ petitions were decided in favourof the employees, instances of which have been given later in thisjudgment.

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 ExaminationBoard. It is nobody’s case that the date of birth of the Appellant asrecorded, that is 19[th] November 1954, is not his correct date of birth.

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A16. The Appellant’s date of birth being 19[th] November 1954 hewas to complete 58 years of age on 19[th] November 2012. The age ofretirement was, however increased to 60 from 58 years, before18[th] November 2012. The Appellant’s date of birth being 19[th] November1954, he was to complete sixty years of age on 18[th] November 2014.B17. As observed above, long before the Appellant was appointed A

B17. As observed above, long before the Appellant was appointedin service of the Bihar School Examination Board, Rule 5 in Appendix-5of the Bihar Pension Rules was amended. The qualifying age ofgovernment servants for consideration of pensionary benefits was raisedfrom 16 to 18 years. Governmental authorities, however, continued toappoint employees who had not attained eighteen years of age.C

18. On or about 16[th] February 2012, the Appellant’s son filed anapplication under the Right to Information Act, enquiring about the dateof superannuation fixed by the Board for his father’s retirement.

19. By a letter dated 26[th] March 2012 the Board informed theDAppellant’s son that in view of the decision dated 14[th] February 2004,the Appellant’s age as on 27[th] May, 1970 was to be considered 18 yearsand therefore his retirement was to be on 31[st] May 2010, on completionof 58 years, which age had later been increased to completion of 60years. The date of retirement would therefore be 31[st] May 2012.

E20. Thereafter, the Appellant filed the writ petition CWJC No.7718of 2012 in the High Court of Patna challenging the communication dated20[th] March 2012 under the Right to Information Act and also the orderdated 14[th] February 2004.

21. By an order dated 24[th] April 2012, the Single Bench dismissedFthe writ petition, relying upon the Full Bench judgment of the Patna HighCourt In Ragjawa Narayan Mishra and Another vs. Chief ExecutiveOfficer, Bihar Rajya Khadi Gramoudyog Board and Ors.[1]. The FullBench of Patna High Court had held:- “16. Be that as it may, one thing is certain that admittedlyboth the petitioners when they entered into the contract withGthe respondent Board they had not attained the age of majority.Apart from its legal impact and effect, the ramifications andend result on the status of a contract, in terms of the servicerelationship, a person could be said to have entered into a H1 2006 (1) PLJR 410

valid service, only, when he has attained the age of majority.So the minimum age prescribed at the entry point in theGovernment service has been 18 years. The maximum ageprescribed for the exit point is 58 years. In other words, thetotal length of period of Government service in any case forpensionary benefits would not exceed 40 years. It is In thiscontext, the Government Circular mentioned herein aboveneeds to be considered. When there is a clear Rule provisionanything contrary to or inconsistent with or incompatible toit, any circular or resolution or order, will not have any legaland valid effect to abridge the right enshrined in the RuleProvision. Even if the said circular of 1998 as relied upon bythe petitioners is considered to be beneficial to them then,also, it cannot be read at this juncture with the existing statutoryprovision incorporated in the Bihar Pension Rules, as wellas, the Bihar Service Code. Therefore, from that point of viewalso the petitioners cannot be allowed to contend that theyhave right to continue even beyond the age of 58 years thoughprovided in Rule 73 of the Bihar Service Code whichprescribes the superannuation age of 58 years.

17. Thirdly, it is settled and established proposition of lawand principles of jurisprudence that a person who takes undueadvantage by one or other reasons at the entry point in theservice cannot be allowed to urge that he be given higherbenefit and if it Is urged then clearly, it goes to show thatsomething wrong or irregular has been done, at the entrypoint, in service. So the settled principle, also, creates a verystrong impediment in getting the relief from this Court whichis exercising extraordinary, prerogative, equitable anddiscretionary writ jurisdiction by invocation of the provisionof Article 226 of the Constitution of India.

18. In our opinion, therefore, the impugned orders questionedin both the writ petitions, obviously, cannot be interfered withfrom any point of view as discussed hereinabove. Theproposition of law, therefore, is made evidence andunambiguous that the superannuation age prescribed in Rule73 of the Bihar Service Code will apply for retirement purposeand a person cannot be continued beyond the age of AB

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Acompletion of 40 years in service. It is, therefore, evidently,clear that a Government servant who has completed 40 yearsof service or has attained the age of 58 years has to besuperannuated in terms of the existing Rule provision. Ouranswer, therefore, is very clear and we answer this referenceaccordingly. The contradictory view in the aforesaid decisionsBreferred to hereinbefore, shall not be a good law.”

22. The mere fact that an employee may have been a minor atthe time of his initial appointment is inconsequential in the absence ofany law at the material time of his appointment, prohibiting appointmentof 15/16 year old minors. The Appellant who was 15½ years old mayChave been a minor, but certainly not a toddler. It is absurd that any rationalemployer, far less a statutory body, would appoint a toddler. The hypothesisof appointment of a toddler is far fetched and unrealistic. Theapprehension of claims in future to appointment from persons less than18 years of age is also baseless in view of the circular dated 15[th] JanuaryD1998 which fixes 18 years as the minimum age of retirement. The circularwould govern subsequent appointments.

23. It may be true that a minor is incompetent to enter into acontract, as observed by my esteemed brother. A contract may not beenforceable against a minor. A contract executed by a minor may beEvoidable 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 employeesrepudiated their contract of appointment on attaining majority. Anemployer who knowingly appoints minors with impunity, with its eyesFopen, cannot evade its obligations under the contract of employment,and that too after the employee has rendered service for almost twodecades after attaining majority. The contracts can be said to have beenratified 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 advantage, when there was no minimum age forGappointment at the material time.

25. The learned Single Judge dismissed the writ petition relyingon the decision of the Full Bench in Ragjawa Narayan Mishra (supra),and the Division Bench dismissed the appeal from the decision of thelearned Single Judge. The learned Single Bench, as well as the learned H

Division Bench, had no option but to follow Ragjawa Narayan Mishra(supra), since judicial discipline required the Benches of lesser strengthto follow the decision of the Full Bench.

26. In my view, the interpretation of the Full Bench of Rule 73 ofthe Bihar Service Code in Ragjawa Narayan Mishra (supra) ismisconceived and erroneous. Counsel appearing on behalf of theAppellant has rightly argued that there is no rule which prescribes thelength of service as a criteria for superannuation. Neither Rule 73 of theBihar School Code, nor Rule 57 of the Bihar Pension Rules, 1950prescribed any limit to the length of service.

27. The Full Bench fell in error in proceeding on the basis of thelength of service, when Rule 73 of the Bihar Service Code prescribes aspecific age of superannuation. As argued on behalf of the Appellant,Rule 73 of the Bihar Service Code prescribes an age of retirement. Thesaid Rule does not make length of service a criteria for retirement.

28. The raising of the minimum qualifying age of the governmentservant for pensionable service, from 16 to 18 years, meant that if anemployee entered service before attaining the age of 18 years, the periodof service from the actual date of appointment till attainment of thequalifying age for pensionable service, would not count for the purposeof computation of pension/pensionary benefits.

29. In Ragjawa Narayan Mishra (supra), the Full Bench failedto appreciate that the circular of 1998 could have no manner of applicationto appointments that had already been made before the said circularwas issued, and certainly not to appointments made almost two decadesbefore issuance of the aforesaid circular, at a time when admittedlythere was no minimum age for appointment to government service. Evenassuming that the total length of Government service for pensionarybenefits cannot exceed the length of time between the date of attainingof 18 years and the attainment of age of 58/60 years as per Rule 73, thatwould mean that pensionary benefits would have to be computed on thebasis of the length of service after completion of 18 years of age. In nocase can an employee be retired before attaining 58 and/or 60 years ofage, 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 BiharService Code would apply for retirement purpose and a person could A

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Anot be continued after completion of the retirement age is unexceptionable.In no circumstances could a government servant claim any right tocontinue in service after competion of the age of retirement prescribedin Rule 73 of the Bihar Service Code. However, since length of serviceis not a criteria for retirement under the applicable rule, that is Rule 73 ofthe Bihar Service Code, a government servant who had not completedBthe age of retirement as per his/her actual date of birth recorded in theservice records, cannot be made to retire on the ground of completion of40 years of service or service in excess of 40 years. At best, the lengthof service would be deemed to be forty years for computation ofpensionary benefits.C

31. With the greatest of respect to the Full Bench, I am unable toagree that Rule 5 in Appendix-5 of the Bihar Pension Rules prescribingthe qualifying age of the government servant for consideration ofpensionary benefits and/or raising of such age from 16 years to 18 yearsmakes any difference to the age of retirement prescribed under theDRule 73 of the Bihar Service Code.

32. The age of retirement and qualifying service for the purposeof retirement benefits are not one and the same. Qualifying service forretirement means that the length of service for the purpose of computationof retiral benefits would commence from attainment of the age ofEqualifying service of pension.

33. Thus, if the age of qualifying service for pension is 18 years,the length of service for computation of pensionary benefits would haveto 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 employeeFcannot be forced to retire before attaining that age except on groundsprovided in Service Rules. For example, an employee may prematurelybe 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, butGprovide for retirement upon attainment of age, an employee cannot bemade to retire before attaining that age of retirement, only because he/she has served for a certain length of time, by a convoluted process oflogical reasoning. My judicial conscience, also does not permit me touphold the judgment under appeal, only because the High Court has, fora while, followed the Full Bench decision of that Court which has held H

the field for a while. The Full Bench decision was, in my opinion,erroneous. This Court has time and again reversed its own decisionsincluding those of Constitutional Benches, which have held the field fordecades. To cite an example, the Constitution Bench Judgment of thisCourt in Atiabari Tea Co. Ltd. v. State of Assam[2 ]which held the fieldfor almost half century was overruled by a judgment of nine-Judge Benchjudgment n Jindal Stainless Ltd v. State of Haryana[3]. I see no reasonwhy the judgment and order impugned should not be set aside.

35. The issues of whether a government servant could besuperannuated from service on completion of 40 years of service evenin the absence of any such rule, taking aid of Rule 73 of the Bihar ServiceCode, which only prescribed the age of superannuation and whetherafter completion of 40 years of service, a person could be retired fromservice, treating his age as 18 years at the time of entry in service, wereconsidered by a Division Bench of the High Court of Jharkhand presidedover by S.J. Mukhopadhaya, J. in Ganesh Ram vs. State of Jharkhandand Ors. numbered W.P.(S) No.1210 of 2003, reported in 2006(2) FLR156 in the context of Rule 73 of the Bihar Service Code. The BiharService Code is applicable in the State of Jharkhand created pursuant tothe Bihar Reorganization Act, 2000, and comprising areas that wereearlier in the State of Bihar. The issues were answered in the negativein 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 thePaper Book as Annexure P-5.

36. In Ganesh Ram (supra) the Court found, and rightly, thatthere was no common minimum age of 18 years prescribed by the Stateof Bihar for appointment to service of the State, or in the State ofJharkhand. The minimum eligibility age varied from job to job. The Courtobserved and held:- “7…..The definition of ‘employee’, as laid down under Section2(i) of the Act, means any person, who is employed for hireor reward or to do any work, skilled or unskilled, etc. andalso includes an employee, employed by the appropriateGovernment i.e. State Government or Central Government.Clause (a) to Section 2 defines “adolescent” means a person,who has completed his fourteenth year of age but has been 2 AIR 1961 SC 232

3 2016 SCC Online 1260 decided on 11.11.2016

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completed his eighteenth year. “Adult” has been defined underClause (aa) of Section 2, which means a person, who hascompleted his eighteenth year of age and “child”, as definedunder Clause (bb) of Section 2, means a person, who has notcompleted his fourteenth year of age. Section 3 of MinimumWages Act, 1948 while prescribes the manner in which theappropriate Government will fix the minimum rates of wages,under Sub-section (3) appropriate Government is empoweredto fix different minimum rates of wages for “adults”,“adolescent”, “children” and “apprentices”. This simplyshows that even in the Government employment, an“adolescent”, though minor, can be appointed for whomdifferent wages may be fixed.”

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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 11thAugust, 1988. This Police Order is also applicable in the Stateof Jharkhand, in view of Section 84 of the BiharReorganization Act, 2000. As per this Order, in every distinct,out of the sanctioned strength of police force, two posts canbe reserved in which dependent children of police force, below18 years of age, can be appointed on compassionate ground,if the police personnel dies while on duty. Those children, soappointed, are commonly known “as Bal-Arakshi” and arepaid minimum of the scale of pay of the post, without annualincrement, till they attain majority. It is only on attainingmajority, if the “Bal-Arakshi” so wishes and is qualified, theyare appointed as Constable against such posts. The children,on appointment, are provided with two half-pants, two shirtstwo-sets of socks, one pair of shoes etc. This simply goes toshow that there is no bar on appointment of a minor in theservices of the State.”

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37. Of Course, as noted in the judgment in Ganesh Ram (supra)after the enactment and enforcement of the Child Labour (Prohibitionand Regulation) Act, 1986 employment of a child which means a personwho has not completed 14 years of age is prohibited for certain types ofwork. However, the said Child Labour (Prohibition and Regulation) Act,H1986 is of no application in this case, because the petitioner was appointed long before the enactment and enforcement of the said Act and in anycase he was above 14 years of age at the time of appointment.

38. The issue of whether an employee could be made to retirebefore completion of actual age of retirement as prescribed in Rule 73of the Bihar Service Code on the basis of a deemed age was answeredin the negative, against an employer and in favour of the employee in thefollowing cases referred to in Ganesh Ram (supra):-

1. Mokhtar Ahmad v. B.S.R.T.C. and Ors. (1995(1) PLJR183(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 interpretedby the Division Bench of the High Court of Jharkhand in Ganesh Ram(supra). A person can only be retired on attainment of the prescribedage of retirement unless the rules expressly make length of service acriteria of retirement, as in the case of employees of the Bihar StateElectricity Board, governed by Notification dated 9[th] September 1997,issued under Section 79 (c) of the Electricity Supply Act, 1948, underwhich the date of superannuation prescribed was completion of 60 yearsof age or completion of 42 years of service, whichever is earlier.

40. The judgment in Nagaland Senior Government EmployeesWelfare Association and others (supra) referred to by my esteemedbrother is in my view clearly distinguishable.

39. In the aforesaid case the applicable Rules expressly madecompletion of the length of service prescribed, a criteria for retirement.

41. This Court upheld the validity of Section 3 of the NagalandRetirement from Public Employment Act, 1991 which provided:- “S.-3. Retirement from public employment: (1)Notwithstanding anything contained in any rule or orders forthe time being in force, a person in public employment shallhold office for a term of thirty-three years from the date of A

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Ahis joining public employment or until he attains the age offifty-seven years whichever is earlier :

Provided that in special circumstances, a person under publicemployment may be granted extension by the State Governmentupto a maximum of one year; BProvided further that the Government may have the cases ofall persons under public employment screened from time totime to determine their suitability for continuation in publicemployment after the attainment of the age of fifty years.

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

42. By the Nagaland Retirement from Public Employment(Amendment) Act, 2007 (the First Amendment Act, 2007) the age ofretirement was enhanced to 60 years from 57 years. By the NagalandDRetirement from Public Employment (Second Amendment) Act, 2009(the Second Amendment Act, 2009) the length of service of the StateGovernment employees was increased to 35 years instead of 33 years.This Court held :- “a provision such as that at issue which prescribes retiring theEpersons from public employment in the State of Nagaland oncompletion of 35 years’ service from the date of joining or untilattaining the age of 60 years, whichever is earlier, does not sufferfrom the vice of arbitrariness or irrationality and is not violative of Articles 14 and 16 of the Constitution. The appeal has no meritand is dismissed with no order as to costs.”F

43. As observed above, in this case Rule 73 of the Bihar ServiceCode does not prescribe any length of service as criteria for retirement.The prescribed age of retirement for employees of the category to whichthe Appellant belonged was 58 years, later increased to 60 years. Thedecision of the respondents to retire the Appellant before he attained theGage of 60 years as per his actual date of birth, as recorded in the servicerecords cannot be sustained.

44. I am of the view that the appeal should be allowed and thejudgment and order of the Division Bench and the Single Bench be setaside. The Appellant is entitled to a declaration that the Appellant wasHentitled 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, andshall be entitled to all consequential benefits including arrears of pay, ifany, pensionary benefits etc.

45. Since we have not agreed, let the matter be placed beforeHon’ble the Chief Justice of India for assignment to a larger Bench.

Devika Gujral

Matter referred to larger Bench.

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