Author: Parnika Choudhary, 3rd year student at Bharati Vidyapeeth University.
Date of Decision: May 28, 2020
Bench: Ajay Rastogi & Indira Banerjee
Original Copy: View
Statutes Involved: Rule 73 of Bihar Service Code, 1952
- Whether the petitioner can be considered 18 years at the time of appointment or should his time of service be counted after the age he was appointed?
- Whether the decision about the retirement policy be fixed by the board members?
Background of the case:
- On 20th May 1970, the Appellant was hired as Caligraphist-cum-Assistant under the Bihar School Examination Board at 15 years of age. On the date of appointment, there was no prescribed age limit for the post of Caligrapist-cum-Assistant. However, for pensionable services, the age limit was fixed i.e., 16 years. It is also to be noted that if an employee was hired below the age of 16 years of service towards pension, it would not be considered.
- On January 15, 1998, the Bihar Personnel and Administrative Reforms Department published a circular imposing an age restriction of 18 years for appointment to an inferior service. The said order had a prospective effect thus, it was applied only to the appointments that were made after the circular was issued by the department. The issued circular did not affect the appointment of the Petitioner as it came into force after 18 days.
- Rule 73 of the Bihar Service Code which regulates the services of employees working under the Bihar School Examination Board stated that “the date of retirement for a government official is the date when he is of 58 years. He may, however, continue to serve on public grounds with the consent of the state government”.
- On 15th January 2004, a meeting was held consisting of the Chairman of the board and other additional members of the Bihar Examination Board where it was decided that the age to enter into the service of the employees whose joining date falls below the age of 18 years, would be considered 18 years at the time of their appointment. The employees who were hired below the prescribed age limit were considered to have attained 18 years when they were appointed. The said category of employees would retire at 60 years (category-4) and 58 years (category-3). However, the age of 58 years was increased to 60 years (category-3 employees) for the service period of Appellant.
- On 14th February 2004, an order was issued to the Appellant stating that he was appointed in the Bihar School Examination Committee before he was 18 years of age which was prescribed to be the minimum required age service in any of the Government (Semi-Government) Autonomous Institutions. Since the Bihar Schools Examination Committee had decided that taking age at 18 years as on the date of their appointment, they be superannuated on completion of the age of 60 years in the case of Category-4 and completion of the age of 58 years in case of Category-3, the retirement age of Appellant was recorded as May 31, 2010 and his appointment age as 18 years on May 27, 1970.
- The order issued on 14th February 2004, was against Rule 73 of the Bihar Service Code and the resolution that was taken on 15th January 2004, in the meeting. The circular regarding the prescribed age limit for appointment had a prospective effect thus, it could not retrospectively be applied to the appointment of the Appellant. On 16th February 2012, an application was filed by the Appellant’s son (Right to Information Act) regarding the date of retirement that was fixed for his father.
- On 26th March 2012, the board informed the Appellant’s son through a letter that the age of Appellant would be considered 18 years and his retirement would be on the date when he completes 58 years, i.e., on 31st May 2010. However, the retirement age was increased from 58 years to 60 years thus, his retirement age was shifted to May 31, 2012. Thereafter, the Appellant’s son filed a petition under Patna High Court regarding the application filed by him on 16th February 2012 and the order issued on 14th February 2004.
- On 24th April 2012, the petition got rejected and it was held that when the contract was entered into, both the parties had the knowledge that the petitioner was not of 18 years of age and hence could not have said to be in a valid service, when he had not reached the age of majority. The minimum age prescribed for entry into the government service was 18 years and the maximum age in the service was 58 years. Following, the total period of an employee in government service for pensionary benefits is 40 years and thus, due consideration was to be given to the said government circular. Where there was a clear rule provision, anything contrary to such provision would not have legally binding force.
- The writ petition was dismissed by the learned Single Judge, who relied on the Full Bench’s decision in Ragjawa Narayan Mishra (supra), and the appeal from the learned Single Judge’s order was dismissed by the Division Bench. Because judicial discipline necessitated the Benches of less, the learned Single Bench, as well as the learned Division Bench, had no choice but to follow Ragjawa Narayan Mishra (supra).
- The raising of the government servant’s minimum qualifying age for pensionable service from 16 to 18 years meant that if an employee joined the service before turning 18, the period of service from the actual date of appointment until reaching the qualifying age for pensionable service would not be counted in the computation of pension/pensionary advantages.
- The bench consisted of Justice Ajay Rastogi & Justice Indira Banerjee however, both of them had different opinions due to which they were unable to decide the said matter.
- Justice Indira Banerjee held that any decision regarding the retirement age of an employee has to be following the Bihar Service Code. She also stated that any such decision cannot be fixed merely by passing a resolution by the board members. At last, she held that the appeal should be considered and the judgment given by Patna High Court should be set aside.
- Justice Ajay Rastogi held that only the people who have attained the age of majority i.e. 18 years are legally competent to enter into a contract as stated under ‘Majority Act 1875’. He continued by stating that “the Pension Rules of 1950 already had prescribed age limits for entry and exit into the government service i.e. 18 years and 60 years, respectively, when the Appellant was appointed”. At last, he held that the appeal should be dismissed.
- However, due to the difference in opinions of the judges this matter has been referred to the Chief Justice of India and has not attained any finality yet.
- According to the Indian Contract Act 1872, legally a minor is not in a position to enter into a contract and the same is considered voidable. On attaining the majority, the minor may accept or cancel the contract he entered into when he was a minor.
- It is a settled proposition of law that, if a clear rule provision or order comes into effect, anything inconsistent with that will not have legal effect and will be considered invalid. This is done so that the right for which the rule was made does not get affected.
- In the mentioned case law, the Petitioners do not have the right to serve for more than 58 years of their age even though the government circular issued on 15th January 1998, benefited them.
- The final judgment is still pending but it is understandable from the facts and the proceedings that a government employee cannot serve for more than 40 years of period or the date on which he completed 58 years of his age.
- Furthermore, it is apparent and unambiguous that the retirement age as stated in Rule 73 of the Bihar Service Code will be enforced, and the maximum length of service for a government employee will be 40 years.