IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.10308 of 2005 Mahendra Yadav, son of Late Dwarika Prasad Yadav, resident of village-Trimuhanighat, P.S.-Bahera, District-Darbhanga, at present posted as Poldar in the Office of State Food Corporation, Darbhanga. ………Petitioner Versus 1. The State Of Bihar 2. Bihar State Food and Civil Supplies Corporation Limited through its Managing Director, Sone Bhawan, Bir Chand Patel Path, Patna. 3. Chief of the Administration, Bihar State Food and Civil Supplies Corporation Limited, Sone Bhawan, Bir Chand Patel Path, Patna 4. District Manager, State Food Corporation, Darbhanga. ………Respondents ---------------------------------- 04. 12.08.2011 The writ petitioner has prayed for quashing the order of respondent No. 4 dated 23.07.2005, whereby petitioner has been informed that on completion of 58 years of age, he will retire from service on 31.08.2005. Prayer has also been made for a direction to the respondent authority to not to retire the petitioner on attaining the age of 58 years in view of the circular of the Government of Bihar issued by Finance Department vide Sankalp Sankhya-3A-7MHO-01/2005- 1500 Vi(2) dated 24.03.2005, whereby the retirement age of the Government servant has been enhanced from 58 years to 60 years and to provide all the financial benefits to the petitioner. It is submitted that petitioner was working as District Manager, State Food Corporation, Darbhanga under Bihar State Food and Civil Supplies Corporation Limited when the order as contained in Annexure-1 was issued. Petitioner was appointed as 4th Grade employee in 1967, when his date of birth was recorded as 11.08.1947. The Bihar State Food and Civil Supplies Corporation Limited, on 27th of May, 1973 took a resolution for adopting the Bihar Service Code applicable to the State Government employees until the service code and financial rules are framed by the Corporation. Rule 73 of Bihar Service Code stipulates the date of retirement on attaining the age of 58 years, which came to be modified by the Government Circular issued by the Finance Department on 24.03.2005 as contained in Annexure-2, whereby superannuation age of the Government servants was increased from 58 years to 60 years. The question of applicability of the modified Rule 73 was considered in the case of Lala Nand Kumar & Ors versus The Bihar State Food & Civil Supplies Corporation Limited & Ors reported in 2008(1) PLJR 579, whereby the Division Bench of this Court held as follows:- “8. A look at the resolution dated 21st May, 1973 makes it absolutely clear that the Bihar Service Code applicable to the State Government employees was adapted for the employees of the Corporation. This adaptation, no doubt, was made of the Code as was then in existence. The question is whether this adaptation was made of the future changes which may be incorporated in the Code in future or not. The resolution is required to be read as a whole. The Code as applicable to the State Government employees until Service Code and Financial Rules as framed by the Corporation were adapted for the employees of the Corporation. Therefore, time until when adaption will remain in force had been indicated and that is until Service Code and Financial Rules are framed by the Corporation. The true meaning of the resolution, therefore, would be that until Service Code and Financial Rules are framed by the Corporation, the Bihar Service Code as applicable to the State Government Employees shall apply to the employees of the Corporation. This resolution dated 21st May, 1973 admittedly had not been withdrawn until 29th July, 2006. Much prior thereto on 24th March, 2005 the Service Code was altered as regards the age of superannuation. By that time or even thereafter no Service Code or Financial Rules had been framed by the Corporation. While on and from 24th March, 2005 in terms of the Service Code as applicable to the State Government employees, the State Government employees became entitled to serve up to the age of 60 years, since by that time no Service Code or Financial Rules had been framed by the Corporation, in terms of the resolution dated 21st May, 1973 the officers and employees of the Corporation became entitle to the same benefit. 9. In Harwindra Kumar vs. Chief Engineer, Karmik, reported in AIR 2006 SC 365, regulations were framed by a Nigam under the Act and Regulation 31 thereof laid down, amongst others, that the conditions of service of the employees of the Nigam shall be governed by such rules, regulations and orders which are equally applicable to other serving Government servants functioning in the State. While the age of superannuation of the employees of the State Government had been increased, simultaneous increase of the age of superannuation of the employees of the Nigam had not been granted. The employees of the Nigam, who did not get the benefit of enhanced age of superannuation, approached the Supreme Court and the Supreme Court by the judgment referred to above held that by framing the said regulation a decision had already been taken to equally treat the employees of the Nigam with that of the employees of the Government. In the instant case also, the words “applicable to the State Government employees” have been used in the resolution dated 21st May, 1973 while adopting the provisions contained in Bihar Service Code until such time the Service Code, Financial Rules etc. are not framed by the Corporation. Therefore, on 21st May, 1973, it was decided to make available to the officers and employees of the Corporation the changes that may be effected in the Service Code applicable to the State Government employees till such time the Corporation itself frames its Service Code and other Financial Rules” It is submitted by learned counsel for the respondent Board that the aforesaid LPA order was challenged in SLP before Apex Court but SLP, review application and curative petition were dismissed by the Apex Court, hence this Court may not consider the pleadings made in the counter affidavit which was filed earlier. Learned counsel for the Corporation does not dispute that petitioner’s case is fully covered by the decision of the Division Bench. Since the petitioner could not work due to passing of the impugned order as contained in Annexure-1, hence petitioner is entitled for all consequential financial benefits. Since the petitioner should have retired on attaining the age of sixty years i.e. on 31.08.2007, let the respondent Bihar State Food and Civil Supplies Corporation Limited issue necessary orders accordingly and pay all the consequential financial benefits to the petitioner within a period of four months of production of the copy of this order. With the observations made above, the writ application stands allowed. Shageer (Dinesh Kumar Singh, J)