The employer cannot arbitrarily push back the date of birth of an employee appointed before attaining the age of 18 years, and the employer can waive the prohibition against appointment of a person below the age of 18 years.

The petitioner in this application is working as Traffic Inspector in the Bihar State Road Transport Corporation (hereinafter called as 'the Corporation.'). He seeks to challenge the order communicated to him under memo no. 7549, dated 22.07.94 in terms of which he was superannuated from service with effect from August 31, 1994, that is, about a year and a half before he would complete the age of 58 years on the basis of his date of birth as recorded in his service book.

2. The petitioner claims that his date of birth is February 1, 1938. This is evidenced from his matriculation certificate, a Photostat copy of which is at Annexure-1. It is also not in dispute that it was this date which was recorded as his date of birth in the service book opened shortly after his entry in service. The Corporation, in fact, does not deny or dispute this position. It is obvious that calculating from this date (01.02.38) the petitioner would complete the age of 58 years in February, 1996. It is also an admitted position that the petitioner was appointed as a Conductor on August 26, 1954, that is to say, when he was 16 years, 6 months and 25 days old. It is also admitted that the provisions of the Bihar Service Code have been adopted by the Corporation and apply to its employees.

3. The stand of the Corporation in superannuating the petitioner with effect from August 31, 1994 is founded on the premise that no person could gain employment before attaining the age of 18 years. Proceeding from this, it is stated that the petitioner's age on the date of his appointment, therefore, must be presumed to be 18 years and on that basis his date of birth would work out to be August 26, 1936. He would, thus, complete the age of 58 years on 26.08.94 and would, therefore, superannuate on August 31, 1994. This is what the impugned order, dated 22.07.94 (copy at Annexure-3) states.

4. It is self evident that unless the basic premise that no person could gain employment before attaining the age of 18 years was legally justified the impugned order must fall to the ground. Having heard learned counsel for the petitioner and the Corporation we are actually faced with this position. No statutory provision, either the Bihar Service Code or any other statutory rule or regulation was brought to our notice to justify the assumption that no one could get employment before attaining the age of 18 years. Rule 54 of the Bihar Service Code fixes the upper age limit for admission into pensionable Government service; it is in the following terms :

"54 : Except as otherwise expressly provided in rules regulating the methods of recruitment to a particular service or post a person whose age exceeds twenty five years and in the case of a person belonging to the scheduled castes and backward tribes whose age exceeds 28 years may not be admitted into pensionable service of Government. The State Government, however, may relax this rule in special cases." (emphasis added)

Rule 73 fixing the age of retirement is as follows :

"3: The day 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 day of compulsory retirement with the sanction of the State Government on public grounds, which must be recorded in writing."

5. It is to be noted at this stage that Rule 73 envisages that a person would retire only on attaining the age of 58 years and does not say that a person would retire either on attaining the age of 58 years or on completing 40 years in service. In our opinion, therefore, there can be no justification for retiring the petitioner by arbitrarily pushing back his date of birth and assigning him an imaginary date of birth.

6. This was only one aspect of the matter. In the facts of this case, however, we are of the opinion that it would be difficult to sustain the impugned order even if there was some provision imposing restriction on appointment of a person below the age of 18 years. This is for th