IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.14633 of 2001 RAJ KISHOR S/O late Mohan Mahto resident of Mohalla Medini Mall Post Hajipur District Vaishali at Hajipur. Versus 1. BABA SAHEB BHIM ROY AMBEDKAR UNIVERSITY at Muzaffarpur through its Registrar. 2. Vice Chancellor B.R.A. University, at Muzaffarpur. 3. Principal R.N. College, Hajipur at Hajipur a Constituent College of B.R. Ambedkar University. 4. Vibhesh Kumar Yadav Sonof not known, Principal R.N. College, Hajipur at Hajipur. ----------- 4 31.08.2010 Heard counsel for the petitioner and counsel for the B.R. Ambedkar University. Though, prayer of the petitioner in this writ application when it was filed on 7.11.2001 read as follows, “That this is an application for direction to respondents authorities to appoint this petitioner on compassionate ground accepting his application for the same and pay the death cum retirement benefits declaring the action of the Principal of the College dt. 7.9.2000 Memo No. G/ 488 as non and void.” Learned counsel for the petitioner at the out set would submit that for the present he would not like to press the claim for compassionate appointment of the petitioner. That being so, this application so far it relates to prayer for compassionate appointment is dismissed as not pressed. As with regard to the remaining relief of the petitioner for declaration of action of the Principal of the College dated 7.9.2000 to be void in terms of Section 67 of the Bihar State Universities Act, his submission is that the father of the petitioner 2 was initially appointed in an affiliated College on 22.8.1956 on the basis of his date of birth as 31.8.1939 against a Class-IV post of peon and therefore when the College became a constituent unit of B.R. Ambedkar Bihar University the provisions of section 67 of the Bihar State Universities Act had given him protection of continuing in service up to 62 years and as such the action of the respondent Principal in making the father of the petitioner superannuated on completion of 44 years of service w.e.f. 31.8.2000 was absolutely illegal. He would, therefore, submit that this Court should hold that such forcible superannuation of father of the petitioner on 31.8.2000 to be bad with consequential relief of payment of salary for the period father of the petitioner could have continued in service on the basis of his date of birth as 31.8.1939 i.e. up to 31st August, 2001. Counsel in this regard would also submit that the procedure prescribed for compulsory retirement was not followed, inasmuch as, father of the petitioner was also not given three months notice or salary in lieu thereof and as such the father of petitioner would be deemed to have continued in service till 31.8.2001 and thus entitled for payment of his salary for two years i.e. 1.9.1999 to 31.8.2001 . Counsel for the University, on the other hand, has taken a simple plea that there is no evidence to show that the College of the petitioner, at the time it was affiliated, had recorded the date of birth of the petitioner at the time of his initial appointment in the year 1956 to be 31.8.1939. He would also point 3 out that the solitary document, Annexure-2, Transfer Certificate issued in the format prescribed by the District Superintendent of Education, Vaishali and bearing the signature of Headmaster of the School cannot be treated to be an authentic document for establishing the claim of father of the petitioner of his date of birth being 31.8.1939. He has also pointed out that there were large number of similar cases wherein it was found that the employees without giving true statements of their date of birth were continuing in service even after completion of 44 years of total length of service and as such in keeping with the decision of the State Government, the University had also adopted the provision that the maximum length of service to an employee will be for a period of 44 years, inasmuch as, no one could have taken the advantage of being employed as minor for continuing in service beyond the permissible maximum length of service i.e. 44 years. In this context he would refer to the judgment of the Full Bench in the case of Ragiawa Narayan Mishra Vs. Chief Executive Officer, Bihar Rajya Khadi Gramoudyog Board & Ors. reported in 2006(1) PLJR 410 and a direct judgment of this Court on this very aspect relating to a Class-IV employee of this very University, being C.W.J.C. No. 11890 of 2005 Ganesh Sinha Vs. B.R.A. Bihar University and others disposed of on 22.4.2009. In the considered opinion of this Court, the only prayer for declaration of action of the Principal dated 7.9.2000 to be bad or void could have been examined if the petitioner had 4 challenged the main order of the University/ Circular of the University prescribing the maximum length of 44 years of service to an employee of the University. The Principal of the constituent College, in fact, had only acted upon a direction of Registrar of the University to superannuate each and every employee who had continued in service for a maximum length of 44 years. It was on that basis that since date of appointment of the petitioner in the College was 22.8.1956 he was superannuated w.e.f. 31.8.2000. Now question would arise as to whether action of the University in prescribing 44 years of maximum continuation of service is bad on any score. This aspect, in fact, has been answered by this Court in the case of Ganesh Sinha (supra) wherein it has been held as follows:- Such problems in fact have been faced by almost all the organizations, in this State, the Universities being no exception. The State Government in order meet such situation had issued Circular with regard to maximum length of service by treating the minimum age of employee to be 18 years on the date of appointment. When such decision of the State Government was assailed before this court a Full Bench of this Court in the case of Rajiawa Narayan Mishra (supra) had laid down the law in relation to a similar 1998 circular of State Government confining the continuance of service of a Government Servant for a period of 40 years, treating entry at the age of 18 years and continuance up to the age of 58 years. The following statement of law laid down in the Full Bench Judgment in fact would also cover also the case of the petitioner:- ………13. The plain perusal of the aforesaid statutory provision would, undoubtedly, go to suggest that the Government by virtue of an amendment by 5 addition Rule 5 in Appendix-5 in the Bihar Pension Rules which came into effect, on 23.8.1950, long before the petitioners came to be admitted in the service of the Board and it is very clear there from that the qualifying age of the Government servants for consideration of the pensionary benefits came to be raised from 16 years to 18 in the Government service. Otherwise, also, the aforesaid circular of 1998 has a purpose and policy behind it. It is clarificatory. There is no dispute about the fact that the service between the employer and the employees is a matter of contract. Once, a person is validly entered into the service of the Government he is offered the contractual and statutory protection and the initial entry in the service always is the outcome of the contractual relationship. Who would be competent to contract? It has been provided in Section 11 of the Indian Contract Act, 1872, as to who is the competent to contract. Section 11 of the said Act reads herein as under: Who are competent to contract. – Every person is competent to contract who is of the age of majority 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. It is very clear and evident from the said provision that in, so far as, the competence for a valid contract in terms of the age is concerned, one has to attain the age of majority and majority obviously would be according to law. The provision of Sectioin 3 of the Majority Act, 1875, clearly provides as to what is the age of a person domiciled in India. It is in this context, it would be necessary and profitable to refer the provision of Section 3 of the Majority Act, 1875 which is reproduced as hereunder: 6 “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 day 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. It leaves no any manner of doubt that in this country the age of majority of a person, domiciled in India, has been on his attaining the age of eighteen years and not before. Of course, it would be not very material at this stage to consider that in computing the age of a person, the day on which he borns is to be included as a whole day. 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 of 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 7 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 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………” This Court, therefore, following the ratio of the Full Bench Judgment of this Court in the case of Ragiawa Narayan Mishra (supra) must hold that the decision of the University in the impugned order does not suffer from any infirmity factual or legal, and as such the impugned order superannuating the petitioner on completing 44 years of his service in College with effect from 18th of August, 2004 cannot be interfered." Once this aspect becomes clear that the University’s decision had fixed 44 years to be maximum length of service of a non teaching employee of the University is valid in the eye of law and there will be any scope for interference inasmuch as it is an 8 admitted fact that the father of the petitioner had also completed 44 years of service before being made to retire w.e.f. 31.8.2000. In that view of the matter there would be hardly any scope for this Court to declare action or order of Principal of the College to be bad muchless void. This Court, while coming to the aforementioned conclusion that father of the petitioner had completed 44 years, has also been guided by the fact that there is no authentic document at least brought on the record which could have shown the date of birth of father of the petitioner to be 31.8.1939. As a matter of fact, the aforementioned transfer certificate under the format of the District Superintendent of Education, Vaishali at Hazipur, which office itself came to be created after creation of the Vaishali district in the year 1975-76, cannot be a proof of petitioner’s father having studied in izkFkfed@ek/;fed fo/kky;] esnuhey] in the district of Vaishali for the period 8.1.1948 to 31.12.1050. Obviously, this certificate has been created after creation of Vaishali district in 1976 and therefore this document cannot be the actual proof on the basis of which the date of birth of father of the petitioner was recorded at the time of his appointment in the year 1956 in the affiliated college. If this document is discredited and it must be done so even for other reasons such as the blank column of the date of issue, the date of signature of the Headmaster of the School with a rubber stamp of the School at Hazipur, Vaishali, sufficient to show that this certificate was 9 issued at much later at least 20 years after father of the petitioner had already appointed in the affiliated College, there is no other documentary proof to establish that the date of birth of the petitioner was 31.8.1939 . Once this Court would therefore find that there was no authentic document with regard to father of the petitioner having his date of birth as 31.8.1939 and that he was employed in an affiliated College becoming a constituent unit of the University in 1950 when he was admittedly a minor, the decision taken by the University to also superannuate the petitioner upon completion of 44 years of the age cannot be held to be bad. This Court, therefore following the ratio of judgment of this Court in the cases of Ragiawa Narayan Mishra (supra) and Ganesh Sinha (supra) would hold that retirement of father of the petitioner on 31.8.2000 was rightly made and there is no error in taking of such a decision. That being so, this application is wholly misconceived and is accordingly dismissed. Abhay Kumar ( Mihir Kumar Jha, J.)