J.N.Bhatt, J.

1. In this group of two writ petitions virtually a common question has been placed in focus as to whether a person employed in Bihar State Khadi Gramoudyog Board, (respondent No. 1) could be superannuated on completion of the age of 58 years even if the total length of service is more than 40 years by invocation of the provision of Art. 226 of the Constitution of India.

2. This reference is the outcome and has been necessitated, as such, by virtue of the reference order, on hand, dated 14.5.2004, in CWJC No. 3929 of 2004, wherein a similar question arose as to whether an employee of the Board who has completed 40 years, of service from the date of joining could be retired on completion of 40 years of service or on superannuation age of 58 years.

3. With a view to appreciate the said contention, the learned single Judge considered a Division Bench decision of this Court in the case of Mokhtar Ahmad v. Bihar State Road Transport Corporation 1995 (1) PLJR 183, wherein, it was urged that the employer cannot change the date of birth of the employee and in accordance with law. Rules and Regulations a person can be retired on completion of superannuation age and not on completion of full length of service like 40 years.

4. As against that, reliance was placed by the other side on a judgment of a Single Bench of this Court in the case of Shyam Babu V/s. State of Bihar and Ors. 2001 (2) PLJR 161, and it was urged that in terms of a circular dated 28.5,1991 an employee cannot be allowed to continue in the employment after completion of service period of 40 years.

5. It is in this context, the learned single Judge in the aforesaid decision had not taken into consideration the Division Bench decision of this Court in the case of Mokhtar Ahmad (supra). Again, it was further submitted before him that the Division Bench which had adjudicated upon the case of Mokhtar Ahmad (supra) had not considered the judgment of the Division Bench of this Court recorded in CWJC No. 8067 of 1992.

6. It is In this set of totality of the circumstances it was felt by the learned Single Judge that in view of a sharp conflict between th two Division Bench decisions of this Court, reference to a larger Bench has been expedient and this is how the reference has come up before us.

7. Let it be recorded at this stage that there are two writ petitions and the material three dates which have direct relevance for the consideration and adjudication of the issue in focus in this reference may be highlighted as the question of law formulated herein before is an end in both the writ petitions : In CWJC NO- 3929 of 2004

(i) The date of birth of the petitioner is 23.9.1947,

(ii) The date of appointment of the petitioner in the Board is 4.3.1964,

(iii) The date of retirement of the petitioner is 31.3.2004 which is annexed in this writ petition as Annexure-3.

In CWJC No. 4114 of 2004

(a) The date of birth of the petitioner is 15.6.1941,

(b) The date of appointment of the petitioner is 16.12.1963,

(c) The date of retirement of the petitioner is 31.12.2003.

8. Thus, the entry age in service of the petitioner of the first writ petition is 16 years, 5 months and 19 days, whereas, in second writ petition the age of the petitioner is 17 years, 6 months and 1 day. It is, therefore, an admitted fact that both the petitioners got entry into employment of the respondent Board before attaining the age of majority.

9. There is no dispute about other aspects that both the petitioners were directed to be superannuated by the impugned orders in both the writ petitions on completion of the service period of 40 years, and not the superannuation age of 58 years which has been raised as a grievance by both the petitioners by knocking the door of justice by invocation of the provisions and filing these two writ petition under Art. 226 of the Constitution of India.

10. Before the merits of the main issue in focus is examined in its greater details, let there be skeleton mater