2020 Supreme(SC) 382

SUPREME COURT OF INDIA
Indira Banerjee, Ajay Rastogi, JJ.
Gopal Prasad – Appellant
versus
Bihar School Examination Board & Others – Respondent
Civil Appeal No. 8225 of 2012
Decided on : 28-05-2020

Headnote:

Per Ajay Rastogi, J.

(A) Service Law – Retirement – Claim for benefit of enhanced age of 60 years – Minimum age for entering into service under Bihar Service Code, 1952 has not been prescribed but still there cannot be any entry into service before one has attained age of majority, i.e. 18 years as prescribed under Rules, 1950 unless there is specific rule to the contrary – Keeping in view age of retirement, as in instant case is of 60 years, maximum qualifying service which one could render would be of 42 years – Board in its meeting held on 15th January, 2004 took decision that those who have entered into service prior to attaining age of 18 years, taking their age as 18 years as on date of their appointment, they will be superannuated on competition of 60 years in case of category 4 and on competition of age of 58 years in the case of category 3 – Appellant was minor on the date of entry into service in May 1970 and unless there is specific rule to the contrary, minor is not eligible/qualified to seek public employment – If minimum age at relevant time was not prescribed under Bihar Service Code, 1952, at least Government is justified in taking assistance of Pension Rules, 1950 to hold that minimum age at entry point shall be 18 years for all practical purposes – That apart, if age at entry level is left open ended, 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 intention of rule-making authority – Appellant cannot be allowed to contend that he has a right to continue upto age of 60 years as per his date of birth recorded in Board records in view of Rule 73 of Bihar Service Code, 1952 – Government servant who had completed 42 years of service on attaining age of 60 years, both implicit, has to be superannuated in terms of scheme of Rules – Appeal dismissed. [Rule 73 of Bihar Service Code, 1952 – Rule 73; Bihar Pension Rules, 1950 – Rule 57] (Paras 5, 6, 13, 15, 18, 21 and 22)

(B) Contract Act, 1872 – Section 11 – Majority Act, 1875 – Section 3 – Entry into service – For entering into valid contract of service, one has to attain age of majority – Service conditions of employees are ordinarily governed by statutory rules or in its absence, under regulations or administrative decisions having a binding force but person who attains age of majority alone be competent enough to enter into valid contract of service. (Paras 13 and 14)

Per Indira Banerjee, J. (Dissenting View)

(C) Service Law – Retirement – Bihar School Examination Board’s Resolution dated 15-1-2004 – Claim for benefit of enhanced age of 60 years – Resolution was a beneficial one in interest of those employees who would otherwise have been deprived of pensionary benefits for period of service rendered by them before attaining 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 age of retirement as prescribed in Rule 73 of Bihar Service Code – Resolution might also have been necessitated by reason of irregular appointments after Circular dated 15th January 1998 of persons who had not attained 18 years of age, to put all disputes with regard to legality of their appointment to rest – It does not appear that resolution was intended to retire employees who had joined service before attaining age of 18 years, before completion of their actual age of retirement, as per Rules – Date of retirement of employees of Bihar School Examination Board is governed by Rule 73 of Bihar Service Code – No decision to decrease age of retirement of employees who had joined service before attaining age of 18 years, could have been taken without amending Rule 73 of Bihar Service Code in accordance with law – There could be no question of amendment of any provision of Bihar Service code merely by a resolution of Bihar School Examination Board – Order dated 14th February 2004 in so far as same purports to record date of retirement of Appellant as 31st May 2010 in his Service Book, is contrary to Rule 73 of Bihar Service Code and also beyond scope and ambit of resolution taken on 15th January 2004 – Any prescription of minimum age for appointment, subsequent to appointment of Appellant, could not retrospectively be applied to Appellant – Mere fact that an employee may have been a minor at the time of his initial appointment is inconsequential in absence of any law at the material time of his appointment, prohibiting appointment of 15/16 years old minor – Since length of service is not a criteria for retirement under applicable rule, that is Rule 73 of Bihar Service Code, a government servant who had not completed age of retirement as per his/her actual date of birth recorded in service records, cannot be made to retire on ground of completion of 40 years of service or service in excess of 40 years – At best, length of service would be deemed to be forty years for computation of pensionary benefits – Judgment and order of Division Bench and Single Bench be set aside – Appeal allowed. [Rule 73 of Bihar Service Code, 1952 – Rule 73; Bihar Pension Rules, 1950 – Rule 57] (Paras 9, 11, 13, 22, 30 and 44)

(D) Judicial Review – Scope and Ambit – An office order which is patently illegal and entails adverse civil consequence is not precluded from challenge on the ground that aggrieved employee may not have objected to office order – More so, when legality of similar orders was awaiting adjudication in Courts of law. (Para 14)

(E) Contract Act, 1872 – Section 11 – Contract by/against a minor – A minor is incompetent to enter into a contract – A contract may not be enforceable against a minor – A contract executed by a minor may be voidable at option of minor – Minor may, on attaining majority, repudiate or ratify and accept the contract – It is nobody’s case that any of 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 contract of employment and that too after employee has rendered service for almost two decades after attaining majority – Contracts can be said to have been ratified by employees concerned, on attaining majority. (Paras 23 and 24)

(F) Service Law – Retirement – Age of retirement and qualifying service for the purpose of retirement benefits are not one and same – Qualifying service for retirement means that length of service for the purpose of computation of retiral benefits would commence from attainment of age of qualifying service of pension – When age of retirement is governed by express rules which do not prescribe length of service as a criteria of retirement, but provide for retirement upon attainment of age, an employee cannot be made to retire before attaining that age of retirement, only because he/she has served for a certain length of time, by a convoluted process of logical reasoning – An employee may prematurely be retired by way of disciplinary action, if rules so provide – A person can only be retired on attainment of prescribed age of retirement unless rules expressly make length of service a criteria of retirement. (Paras 32, 33, 34 and 39)

Facts of the Case:

Present appeal is directed against judgment dated 3rd August, 2012 passed by Division Bench of High Court of Judicature at Patna in Letters Patent Appeal No. 1090 of 2012 confirming the judgment of the Single Bench of the High Court dated 24th April, 2012 upholding that the appellant has rightly been retired from service on attaining the age of superannuation.

Findings of the Court:

In view of dissenting views, matter to be placed before Hon’ble Chief Justice of India for assignment to a larger Bench.

Result : Matter referred to Larger Bench.