IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.786 of 2010 1. SHADHU RAM, S/O LATE TOOFANI RAM, R/O MOHALLA- NEW AREA BISAR,P.S.- CIVIL LINE,DISTRICT- GAYA. 2. RAM BALAK, S/O LATE LALLU YADAV, R/O MOHALLA- GHUGHANI, TARN, P.S.- CIVIL LINE, DISTRICT- GAYA. 3. BISESAR, S/O MAHGOO YADAV, R/O MOHALLA - GHUGHNI TARN, P.S.- CIVIL LINE, DISTRICT-GAYA. 4. RAMESH PRASAD SINGH, S/O LATE SUKHDEO SINGH, R/O MOHALLA -RAM DHANPUR, P.S.- KOTWALI, DISTRICT- GAYA. ------------ Appellants/Petitioners Versus 1. THE STATE OF BIHAR THROUGH SECRETARY, URBAN DEVELOPMENT DEPARTMENT, PATNA 2. THE GAYA MUNICIPAL CORPORATION THROUGH THE MUNICIPAL CORPORATION, GAYA 3. THE EXECUTIVE OFFICER, DISTRICT WATER BOARD UNDER GAYA MUNICIPAL CORPORATION ,GAYA. 4. THE MUNICIPAL COMMISSIONER, WATER BOARD, GAYA NAGAR NIGAM, GAYA. ----------- Respondents/Respondents ----------- For the Appellants :- Mr. Mukul Prasad, Adv. For the Respondent :- Mr. Rabindra Kr. Priyardarshi, Adv. Mr. Sanjay Kumar, G.P. 14 ---------- 2 28.04.2010 I.A. No. 4178 of 2010 Having heard learned counsel for the parties as also upon taking into account the facts and circumstances mentioned in this application, the delay of 24 days in filing of this appeal is hereby condoned. I.A. No. 4178 of 2010 is accordingly allowed. 2 L.P.A. No. 786 of 2010 As we have condoned the delay, we are also inclined to dispose of the appeal on merits at the stage of admission itself. We have accordingly heard counsel for the parties. In this intra-court appeal, the appellant writ petitioners have assailed an order of the learned single Judge dated 24.12.2009 in C.W.J.C. No. 16983 of 2009 whereunder their prayer for quashing of the order dated 24.9.2009 of the Gaya Municipal Corporation, Gaya (hereinafter to be referred to as ‘the Corporation’) superannuating them with effect from 30.9.2009 upon completion of 40 years of service in the Corporation has been rejected. Bereft of all the niceties and keeping with the facts already recorded in the order of the learned single Judge, all that needs to be noticed in this appeal is that admittedly the appellant writ petitioners had entered in the service of the Corporation on 18.9.1969 at a point of time when the age of superannuation in the State Government was 58 years. Subsequently, the State Government by way 3 of policy decision as contained in its circular dated 28.1.2002 had decided that an employee cannot be allowed to continue in the employment after completion of service period of forty years. It is not in dispute that such circular was also made applicable to the employees of the Corporation and consequently the appellant writ petitioners on the basis of their completing forty years of service from the date of their joining in the Corporation i.e. 18.9.1969 were directed to superannuate with effect from 30.9.2009 in terms of the office order contained in memo no. 20 dated 24.9.2009. It is this order which was sought to be assailed in C.W.J.C. No. 16983 of 2009 by all the four appellants writ petitioners and the same was dismissed by the learned single Judge in the impugned order dated 24.12.2009 in C.W.J.C. No. 16983 of 2009 wherein the plea of the appellant writ petitioners as with regard to their continuance in service up to attaining the age of 60 years was rejected in view of the judgment of the Division Bench of this Court in the case of Gaya Municipal Corporation Vs. Jogendra Kumar Singh reported in 2007(4)PLJR 317. Learned counsel for the appellant writ 4 petitioners had made a desperate effort to distinguish the aforesaid judgment in the case of Jogendra Kumar Singh (supra) by taking a plea that the aforesaid circular of the State Government dated 28.1.2002 would no longer be applicable specially when the State Government had itself enhanced the age of superannuation for the Government servant from 58 years to 60 years in the year 2004. It has also been sought to be canvassed by the learned counsel for the appellant writ petitioners that the maximum span of service by the State Government in the circular dated 28.1.2002 was fixed at a point of time when the age of retirement was 58 years and therefore, no one could have continued in service for a period of more than 40 years but in the changed circumstances when the age of superannuation was itself enhanced from 58 years to 60 years, the possibility of the employees continuing in service up to 42 years could not be ruled out and as such, the appellant writ petitioners could have been allowed to continue in service up to completion of their age of 60 years. Per contra, learned counsel for the State 5 supporting the order of the learned single Judge has submitted that the State Government had fixed the maximum span of service of forty years for a Class-IV employees in the circular dated 28.1.2002 because large number of them had not even declared their correct age and/or date of birth at the time of entry in service and as such, it had become necessary to fix a firm time limit of maximum span of service. In this context, he has explained that no minor could be appointed as a Government servant and therefore, treating the minimum age of entry in Government service to be of 18 years, the Government had fixed maximum span of service to be forty years which was in keeping with the existing position as with regard to the working employees in the year 2002. In this context, he has also placed reliance on a Full Bench judgment of this Court in the case of Ragjawa Narayan Mishra Vs. The Chief Executive Officer, Bihar Rajya Khadi Gramoudyog Board & Ors. reported in 2006(1)PLJR 410. Having given our anxious consideration to the aforementioned submissions as also the materials on record, it becomes clear that the age of superannuation of an 6 employee of the Corporation has to be fixed by the Corporation. The Corporation has adopted the Government resolution and decision dated 28.1.2002 as with regard to the maximum length of service of an employee being of 40 years. Such decision of the Corporation in fact was made subject matter of a writ petition filed by Jogendra Kumar Singh (supra) an employee of the Corporation who had been similarly directed to superannuate upon completion of forty years of service by an order of the Corporation dated 22.4.2006. He, however, had taken a plea that as the State Government had enhanced the age of superannuation from 58 years to 60 years vide its decision dated 24.3.2005, the employee of the Corporation should also have been given benefit thereof and ought to have been continued in service at least till completion of their age of 60 years or 42 years of service. The learned single Judge in fact had also allowed such prayer of Jogendra Kumar Singh by an order dated 17.8.2006 in C.W.J.C. No. 4871 of 2005 by issuing a direction for his continuance in service up to 60 years irrespective of the number of years served by him in the Corporation. The appeal of the Corporation, however, was 7 allowed by the Division Bench in the case of Jogendra Kumar Singh (supra) wherein it was held as follows:- “3. The moot question arose for consideration is as to whether on account of enhancement of the age of superannuation from 58 years to 60 years, the writ petitioner is liable to be superannuated on completion of the total period of service of 40 years or is entitled to continue in service for another two years i.e. till he attains the enhanced age of superannuation i.e. 60 years.” The Division Bench having thus passed the aforesaid question had also answered the same wherein it was held that:- “------- 11. We have heard the submissions of the learned Senior counsel appearing for both parties and have examined the provisions of Rule 73 of the Bihar Service Code, perused the relevant decision of the respondent-Corporation, as contained in their resolution dated 22.2.2006 (Annexure-9 series) as also the clarifications issued by the State Government on the subject in question, as contained in its letter dated 28.1.2002 (Annexure-A). We have also examined the Full Bench decision of court in the case of Rajiawa Narayan Mishra & Ors. Vs. The C.E.O., Bihar Rajya Khadigrama Udyog & Ors., reported in 2006(1) P.L.J.R. 401(F.B.). 12. The law has been settled in the aforesaid decision upon examining the relevant provisions of the Bihar Service Code, as aforesaid, that an employee cannot be allowed to continue in service beyond the period of 40 years. As such, an employee who completes 40 years of service or has attained the age of superannuation, whichever is the earlier, deserves to be superannuated as 8 the Rule inbuilts that total length of service cannot be more than 40 years and that is the rational for fixing the entry age of 18 years when a person attains majority under the Indian Majority Act and the age of superannuation of 58 years under the provisions of the Rule 73 of the Bihar Service Code. It is apparent that the basic consideration is the total length of service one can serve between the entry point in service and the age of superannuation. Therefore, from the above, it leaves no manner of doubt that an employee is entitled to continue in service after enhancement of age of superannuation, till he attains the age of 60 years or a total length of service of 40 years, whichever occurs first. 13. In the above background, the prayer of the writ petitioner that he is entitled to continue in service till he attains the age of 60 years irrespective of his length of service is devoid of any merit, and as such, it must be rejected.------” Thus, apart from the aforementioned authoritative pronouncement by a coordinate bench relying on a judgment of the Full Bench in the case of Ragjawa Narayan Mishra (supra), this Court is even otherwise of the view that the enhancement of age of the Government employee ipso-facto cannot be made applicable to the employees of the Corporation unless the same is adopted by the Corporation, which has a separate juristic entity being a body corporate having its perpetual succession and common seal. The Corporation, therefore, even otherwise could not 9 have continued the appellant writ petitioners in service after their completion of forty years of service, inasmuch as, it is the total length of service of forty years which has been decided to be followed for superannuation of all its employees. In that view of the matter, this Court would find no error in the order of the learned single Judge. Consequently, this appeal is devoid of any merit and is accordingly dismissed without any order as to costs. Rishi (Dipak Misra, CJ.) (Mihir Kumar Jha, J.)