Case: GOPAL PRASAD Vs. BIHAR SCHOOL EXAM BOARD &amp; OTHERS

3. The Appellant was appointed as Calligraphist-cum-Assistant of the Bihar School Examination Board on 20th May 1970, at about 15½ years of age . It is not in dispute, that on the date of appointment of the Appellant, that is, 20th May 1970 there was no minimum age prescribed for appointment to the post of Calligraphist-cum-Assistant. However, the minimum age of entry into pensionable service was 16 years. This meant that the period of service of an employee before attaining the age of 16 years, would not count towards pension4. By a Government circular dated 15th January 1998 issued by the Personnel and Administrative Reforms Department of the State of Bihar, the minimum age for appointment to an inferior service under the Government of Bihar was fixed at 18 years. The said circular, fixing the minimum age for appointment at 18 years, which was issued almost 18 years after the appointment of the petitioner, was prospective and applied only to appointments made after issuance of the said circular5. The terms and conditions of service of employees of the Bihar School Examination Board are governed by the Bihar Service Code. Rule 73 of the Bihar Service Code inter alia provides that The date of compulsory retirement of a Government Servant is the date on which he attains the age of 58 years. He may be retained in service after the date of compulsory retirement with the sanction of State Government on public grounds, which must be recorded in writing6. On 15th January 2004, the Bihar School Examination Board resolved to treat the age of entry into service, of those incumbents who were below 18 years at the time of joining service, as 18 years at the time of their appointment7. The relevant extract of the resolution, as translated in English, is extracted hereinbelow for convenience:-Today dated 15 th January, 2004 meeting of Board of Bihar Schools Examination Committee held in the Room of the Chairman. In which Dr. Jitender Singh, Chancellor, Patna University, Patna and Shri Subhash Chander Chaudhary, Assistant T eacher, C.M. High School, Siwan participated as Members in addition to the Chairman. ProceedingsAgenda No. 1 : …………8. On a bare reading of the said resolution, it is patently clear that employees 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 of their appointment and that they would superannuate on completion of 60 years of age if they were Category-4 employees and on completion of 58 years of age in case they were Category-3 employees. The age of 58 years for category-3 employees was, later, during the tenure of service of the Appellant, increased to 60 years9. The resolution may not have perfectly been worded. In my view, the resolution was a beneficial one in the interest of those employees who would otherwise have been deprived of pensionary benefits for the period of service rendered by them before attaining the age of 18 years. Such employees were to be deemed to be 18 years on the date of their appointment, so that they were not deprived of pensionary benefits for part of their service period, but were to retire on attaining the age of retirement as prescribed in Rule 73 of the Bihar Service Code. The resolution might also have been necessitated by reason of irregular appointments after the Circular dated 15th January 1998 of persons who had not attained 18 years of age, to put all disputes with regard to the legality of their appointment to rest. It does not appear that the resolution was intended to retire employees who had joined service before attaining the age of 18 years, before completion of their actual age of retirement, as per the Rules10. If it were the intent of the resolution, that employees appointed before attaining the age of 18 years, would retire before attaining the actual age of retirement, as per Rule 73 of the Bihar Service Code, the language and/or wording of the resolution would have been different. The resolution would then have expressly stated that, the date of birth of employees, appointed before attaining the age of 18 years, would, for the purpose of retirement, be deemed to be the date on which the concerned employee would have been born, if he/she were to complete 18 years of age on the date of appointment. The Resolution would clearly have stated that such employees would retire on attaining the age of retirement prescribed in the Bihar Service Code on the basis of their deemed date of birth, notwithstanding the fact that they may not have attained the age of retirement as per the Bihar Service Code as per their date of birth as recorded by the Bihar School Examination Board11. As observed above the date of retirement of the employees of the Bihar School Examination Board is governed by Rule 73 of the Bihar Service Code. No decision to decrease the age of retirement of employees who had joined service before attaining the age of 18 years, could in my view, have been taken without amending Rule 73 of the Bihar Service Code in accordance with law. There could be no question of amendment of any provision of the Bihar Service code merely by a resolution of the Bihar School Examination Board12. On 14th February 2004 an Office Order was issued to the Appellant, the contents of which, as translated, are extracted hereinbelow:-Shri Gopal Prasad, Assistant got appointment in Bihar School Examination 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 prescribed at 18 years. Decision has been taken in the meeting of the Bihar Schools Examination Committee held on 15.01.2004 that taking their age at 18 years as on the date of their appointment, they be superannuated on completion of age of 60 years in the case of Category-4 and on completion of age of 58 years in case of Category-3Therefore, treating the age of Shri Gopal Prasad, Assistant at 18 years as on the date of his appointment i.e. 27.05.1970, as per the directions, orders are issued to record his date of retirement in Service books as 31.05.201013. The order dated 14th February 2004 in so far as the same purports to record the date of retirement of the Appellant as 31st May 2010 in his Service Book, is contrary to Rule 73 of the Bihar Service Code and also beyond the scope and ambit of the resolution taken on 15th January 2004. Any prescription of minimum age for appointment, subsequent to the appointment of the Appellant, could not retrospectively be applied to the Appellant14. From the pleadings filed in connection with this appeal, it is not clear whether the Appellant objected to the said Office Order dated 14th February 2004. In any case, an office order which is patently illegal and entails adverse civil consequence is not precluded from challenge on the ground that the aggrieved employee may not have objected to the office order, and more so, when the legality of similar orders was awaiting adjudication in Courts of law. There were various writ petitions pending in the High Court, on the question of whether persons who had joined service before attaining the age of 18 years could unilaterally be retired before they actually attained the age of retirement stipulated in Rule 73 of the Bihar Service Rules, because they were to be deemed to have completed 18 years of age on the date of their appointment. It is also a matter of record that many of these writ petitions were decided in favour of the employees, instances of which have been given later in this judgment15. It is not in dispute that the Appellants date of birth is 19th November 1954 as per the records of the Bihar School Examination Board. It is nobodys case that the date of birth of the Appellant as recorded, that is 19th November 1954, is not his correct date of birth16. The Appellants date of birth being 19th November 1954 he was to complete 58 years of age on 19th November 2012. The age of retirement was, however increased to 60 from 58 years, before 18th November 2012. The Appellants date of birth being 19th November 1954, he was to complete sixty years of age on 18th November 201417. As observed above, long before the Appellant was appointed in service of the Bihar School Examination Board, Rule 5 in Appendix-5 of the Bihar Pension Rules was amended. The qualifying age of government servants for consideration of pensionary benefits was raised from 16 to 18 years. Governmental authorities, however, continued to appoint employees who had not attained eighteen years of age18. On or about 16th February 2012, the Appellants son filed an application under the Right to Information Act, enquiring about the date of superannuation fixed by the Board for his fathers retirement19. By a letter dated 26th March 2012 the Board informed the Appellants son that in view of the decision dated 14th February 2004, the Appellants age as on 27th May, 1970 was to be considered 18 years and therefore his retirement was to be on 31st May 2010, on completion of 58 years, which age had later been increased to completion of 60 years. The date of retirement would therefore be 31st May 201220. Thereafter, the Appellant filed the writ petition CWJC No.7718 of 2012 in the High Court of Patna challenging the communication dated 20th March 2012 under the Right to Information Act and also the order dated 14th February 200421. By an order dated 24th April 2012, the Single Bench dismissed the writ petition, relying upon the Full Bench judgment of the Patna High Court In Ragjawa Narayan Mishra and Another vs. Chief Executive Officer, Bihar Rajya Khadi Gramoudyog Board and Ors. 2006 (1) PLJR 410.    The Full Bench of Patna High Court had held:-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 on 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 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 years17. 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 India18. In our opinion, therefore, the impugned orders questioned in both the writ petitions, obviously, cannot be interfered with from any point of view as discussed hereinabove. The proposition of law, therefore, is made evidence and unambiguous that the superannuation age prescribed in Rule 73 of the Bihar Service Code will apply for retirement purpose and a person cannot be continued beyond the age of completion of 40 years in service. It is, therefore, evidently, clear that a Government servant who has completed 40 years of service or has attained the age of 58 years has to be superannuated in terms of the existing Rule provision. Our answer, therefore, is very clear and we answer this reference accordingly. The contradictory view in the aforesaid decisions referred to hereinbefore, shall not be a good law22. The mere fact that an employee may have been a minor at the time of his initial appointment is inconsequential in the absence of any law at the material time of his appointment, prohibiting appointment of 15/16 year old minors. The Appellant who was 15½ years old may have been a minor, but certainly not a toddler. It is absurd that any rational employer, far less a statutory body, would appoint a toddler. The hypothesis of appointment of a toddler is far fetched and unrealistic. The apprehension of claims in future to appointment from persons less than 18 years of age is also baseless in view of the circular dated 15th January 1998 which fixes 18 years as the minimum age of retirement. The circular would govern subsequent appointments23. It may be true that a minor is incompetent to enter into a contract, as observed by my esteemed brother. A contract may not be enforceable against a minor. A contract executed by a minor may be voidable at the option of the minor. The minor may, on attaining majority, repudiate or ratify and accept the contract24. It is nobodys case that any of the concerned employees repudiated their contract of appointment on attaining majority. An employer who 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 almost two decades after attaining majority. The contracts can be said to have been ratified 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 for appointment at the material time25. The learned Single Judge dismissed the writ petition relying on the decision of the Full Bench in Ragjawa Narayan Mishra (supra), and the Division Bench dismissed the appeal from the decision of the learned Single Judge. The learned Single Bench, as well as the learned Division Bench, had no option but to follow Ragjawa Narayan Mishra (supra), since judicial discipline required the Benches of lesser strength to follow the decision of the Full Bench.

Court's reasoning:
13. There is no dispute that the service conditions of the employees are ordinarily governed by the statutory rules or in its absence, under regulations or administrative decisions having a binding force but the person who attains the age of majority alone be competent enough to enter into valid contract of service15. Indisputedly, the appellant, in the instant case, was minor on the date of entry into service in May 1970 and unless there is a specific rule to the contrary, minor is not eligible/qualified to seek public employment. It is true that the minimum age at the entry level shall always be prescribed by the rule making authority. In the instant case, the State authority under its Pension Rules, 1950 prescribes the qualifying service of Government servant which was raised to 18 years by an amendment made effective from 23 rd August, 1950. If the minimum age at the relevant time was not prescribed under the Bihar Service Code, 1952, at least the Government is justified in taking assistance of the Pension Rules, 1950 to hold that the minimum age at the entry point shall be 18 years for all practical purposes. That apart, if the age at the entry level is left open ended, the minor of whatever age, can seek his eligibility for public employment leaving no lifetime of service one could render which is manifestly illogical and can never be the intention of the rule making authority16. Admittedly, in the instant case, when the appellant entered into service, he was 15 years and 6 months old and had not attained the age of majority and the minimum age at the entry point in terms of the Pension Rules, 1950 is 18 years and maximum age prescribed for exit point is 60 years as a logical consequence, the total length of service which one could render in the Government service may not exceed 42 years and when there is an unambiguous self-explicit 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 scheme of Rules and this what has been considered by the Full Bench of the Patna High Court which was relied upon by the single Judge of the High Court while repudiating claim of the appellant in Ragjawa Narayan Mishra and Ors.(supra) as follows:-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 on 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 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 years17. 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 India18. In our opinion, therefore, the impugned orders questioned in both the writ petitions, obviously, cannot be interfered with from any point of view as discussed hereinabove. The proposition of law, therefore, is made evidence and unambiguous that the superannuation age prescribed in Rule 73 of the Bihar Service Code will apply for retirement purpose and a person cannot be continued beyond the age of completion of 40 years in service. It is, therefore, evidently, clear that a Government servant who has completed 40 years of service or has attained the age of 58 years has to be superannuated in terms of the existing Rule provision. Our answer, therefore, is very clear and we answer this reference accordingly. The contradictory view in the aforesaid decisions referred to hereinbefore, shall not be a good law17. One view has been expressed by the full Bench of the Patna High Court of which the reference has been made, the other view of the prospect which has been referred to by the Jharkhand High Court of which a reference has been made by the appellant in the appeal but what persuaded me further is that the judgment of the Full Bench of the Patna High Court dated 5th December, 2005 at least in the State of Bihar has been consistently followed for almost a decade and a half and learned Single Judge/Division Bench has passed several orders placing reliance on the Full Bench of the Patna High Court. The view which has been expressed is one of the plausible view and, in my view, it would not be advisable to overturn only for the reason that the view expressed by the Jharkhand High Court appears to be more plausible in appreciating the scheme of statutory rules of which a reference has been made18. Indisputedly, the appellant cannot be allowed to contend that he has a right to continue upto the age of 60 years as per his date of birth recorded in the Board records in view of Rule 73 of the Bihar Service Code, 1952. From the scheme of Rules, it is clear that the superannuation age prescribed under Rule 73 of the Bihar Service Code, 1952 will apply for retirement purpose and the person cannot be continued beyond the age of completion of 42 years in service taking note of the Pension Rules, 1950. It clearly manifests that the Government servant who had completed 42 years of service on attaining the age of 60 years, both implicit, has to be superannuated in terms of the scheme of Rules and this what has been considered by the Full Bench of the High Court in the judgment which has been relied by the High Court of Patna in the impugned judgment20. In the instant case, apart from the scheme of rules of which a reference has been made, the appellant could not enter into service below the age of attaining majority, if there is no express provision of minimum age at the entry level under the Bihar Service Code as prayed, in isolation is accepted and the age at the entry level is left open ended, it will take us to a stage where a toddler or a minor of any given age can claim his eligibility to enter into public employment which is manifestly illogical and impermissible in law.21. Thus, under the existing scheme of Rules, the qualifying service which one could render in any manner would not exceed 42 years and this 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 meeting held on 15th January, 2004 which was not the subject matter of challenge and the appellant was communicated of retirement on attaining full employment 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.