IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.891 of 2008 Sudama Singh Son of Late Bishundeo Singh, resident of village and P.O. Aiyara, P.S. Karpi, District Jehanabad. Versus 1. The State of Bihar. 2. The Registrar, Co-operative Societies, Bihar, Patna. 3. The Bihar State Co-operative Land Development Bank through its Managing Director, Budh Marg, Patna. 4. The Managing Director, Bihar State Co-operative Land Development Bank, Budh Marg, Patna. 5. The Deputy Managing Director, Bihar State Cooperative Land Development Bank, Budh Marg, Patna. 6. The Branch Manager, Bihar State Co-operative Land Development Bank, Bermo, District Giridih. ----------- For the Appellant : Mr. Shashi Shekhar Dwivedi, Sr. Advocate Mr. Shakti Suman Kumar. For the Respondents 1 & 2: Mrs. Madhuri Kumari, J.C. to AAG I For the Respondent nos. 3 to 6: Mr. Rajesh Prasad Choudhary. ------------ P R E S E N T Hon'ble the Chief Justice & Hon'ble Mr. Justice Kishore K. Mandal ------------ Dated, the 17th November, 2008. We heard Mr. Shashi Shekhar Dwivedi, Senior Counsel for the appellant. 2. A similar issue came up for consideration before us today in L.P.A. No. 848 of 2008 wherein we considered the matter thus : “Counsel for the appellant submits that the Bihar Service Code and particularly Rule 74 (b) is not applicable to the employees of the Bihar State Co- operative Land Development Bank Ltd. (for short „Bank‟) and, therefore, the order retiring the appellant compulsorily - 2 - on the ground of public interest is bad in law. 2. The argument does not deserve to be accepted for more than one reason. Firstly, this argument does not seem to have been specifically raised before the Single Judge as is apparent from the impugned order dated 24th September, 2008. Secondly, and more importantly, the Service Rules framed by the Bank for its employees do provide for compulsory retirement who has committed 21 years of duty and 25 years of total service if the efficiency or conduct of such employee is not such as to justify his retention in service. Rule 232 of the Service Rules reads thus: “ The Bank may any bank employee who has committed 21 years of duty and 25 years of total service calculated from the date of his first appointment to retire from the Bank‟s service if it is considered that the efficiency or conduct of the employee is not such as to justify his retention in service. Where any Bank employee is so require to retire, no claim to any special compensation shall be entertained.” 3. Thus, there is provision for compulsory retirement in the Service Rules itself. Then there is Rule 237 which provides that the issues not covered in the Service Rules shall be governed by the provisions of the Bihar Service Code and other relevant Rules of the State Government. Although, there is a provision for compulsory retirement as provided in Rule 232 of the Rules but for what has not been provided in the rule 237, the aid can be taken from the provisions of the Bihar Service Code and, therefore, Rule 74(b) of the Bihar Service Code cannot be said to be excluded. Even if it be assumed that Rule 232 is a self-contained provision for the purposes of compulsory retirement and that excludes the applicability of the Bihar Service Code, the order of compulsory retirement is not rendered bad in law merely because it refers to rule 74(b) of the Bihar Service Code as the power to compulsorily retire an employee in the Bank can be traced to Rule 232. It is trite principle of law that wrong mentioning of provision does not vitiate the exercise of power if it is traceable to some provision in law. 4. That the appellant has committed 21 years of duty and 25 years of total service from the date of his first appointment is not in dispute. He has not been able to achieve the target set for him. Thus, the order of compulsory retirement in public interest is in conformity with the Service Rules. - 3 - 5. The Letters Patent Appeal has no merit. It is dismissed in limine.” 3. Thus, in view thereof this appeal is liable to be dismissed. 4. Besides that the Single Judge has relied upon a decision dated 24th September, 2008 by the Single Judge in the case of Bhola Prasad Singh Arun Vs. State of Bihar and others (C.W.J.C. No. 3646 of 2000) wherein the Single Judge dismissed the writ petition raising identical issue by considering the matter thus: “ In (1995) Suppl. (1) SCC 184 (Collector, Allahabad & anr. Vrs. Chhote Lal) the delinquent was subjected to disciplinary enquiry and punishment imposed. The High Court quashed the order of compulsory retirement as based on that very understanding and in the nature of punishment. The Apex Court set aside the High Court‟s order holding that the disciplinary enquiry and the punishment was the basis for entry in his character roll for taking a view that he needs to be compulsorily retired in public interest. The last submission of the petitioner that the Bank has framed its own service rules and that Section 74 of the Bihar Service Code is not applicable, does not appeal to this Court when in the service regulation framed by the Bank powers for compulsory retirement is provided for in Regulation 232 thereof. Learned counsel for the Bank however found it difficult to defend the action of the Bank in non-payment of salary for the period 1992 to 1998 in absence of any departmental proceeding leading to orders of punishment. The writ application is dismissed on merits but with direction to pay the arrears of salary of the petitioner from 1992 to1998 and other salary dues, if any, within a maximum period of three months from the date of receipt and/or production of a copy of this order.” 5. Nothing has been shown that the order dated 24th September, 2008 passed in the case of Bhola Singh Arun has not attained finality. For this reason also, the dismissal of the writ petition - 4 - by the Single Judge cannot be faulted. 6. Senior Counsel would submit that in the case of Ashutosh Singh Vs. State of Bihar & Others (C.W.J.C. No. 3262 of 2000) by order dated 15th May, 2002 the Single Judge of Jharkhand High Court held that rule 74(b)(ii) of the Bihar Service Code was not applicable to the employees of the Bank as the Board of Directors have not adopted the said Rule. Senior Counsel also relied upon the order of the Division Bench of Jharkhand High Court confirming the order of the Single Judge in Ashutosh Singh. We carefully perused the said orders and we find that Rule 232 of the Service Rules framed by the Bank was not brought to the notice of Jharkhand High Court. 7. Letters Patent Appeal does not deserve to be admitted. It is dismissed in limine. R. M. Lodha, CJ Kishore K. Mandal, J AMIN/-