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2020 Supreme(Pat) 243
IN THE HIGH COURT OF JUDICATURE AT PATNA
Dinesh Kumar Singh, Prabhat Kumar Jha, Arvind Srivastava, JJ.
Shivani Chaudhary (since Deceased And Substituted - Appellant
Versus
Principal Secretary, Department Of Information Technology , Govt Of Bihar, Patna - Respondent
Letters Patent Appeal No. 1294 of 2012, 78 of 2012, 1612 of 2012; Civil Writ Jurisdiction Case No. 14388 of 2011, 15213 of 2011, 8429 of 2010
Decided On : 27-09-2020
Mukul Sinha, Advocate, Ajit Kumar, Advocate, Niranjan Kumar, Advocate, Lalit Kishore, Advocate, Sajid Salim Khan, Advocate, Girijesh Kumar, Advocate, Avinash Kumar, Advocate, Krishna Chandra, Advocate, Rajesh Kumar, Advocate, Nalin Vilochan Tiwary, Advocate, Raisul Haque, Advocate, Binay Kumar, Advocate
Headnote:
Enhancement of age of superannuation of employees of Bihar State Electronics Development Corporation Limited (BSEDC) - Applicability of amendment in Rule 73 of Bihar Service Code - Whether the resolution of the Board of Directors of BSEDC adopting the service rules/financial rules of the State Government amounts to a legislation by incorporation or legislation by reference - Whether in the absence of formulation of any Service Code in the Corporation of its own followed by the adoption through reference of Bihar Service Code till the time a proper service condition is formulated for the employees of the Corporation, the amendment in the Bihar Service Code would have made available, ipso facto, to the employees of the Corporation or not.
Fact of the Case:
The writ petitioners, employees of BSEDC, sought enhancement of their age of superannuation from 58 years to 60 years in light of the amendment in Rule 73 of the Bihar Service Code. The BSEDC contended that the amendment did not apply to its employees as the Board of Directors' resolution adopting the service rules of the state government was subject to government approval, which was not granted. The government also took a decision that corporations running in loss would not be eligible for the age enhancement benefit.
Finding of the Court:
The court held that the resolution of the Board of Directors of BSEDC adopting the service rules/financial rules of the State Government amounted to a legislation by reference, not by incorporation. Since no rule of the Corporation had come into existence till date, there was no question of treating it as a legislation by incorporation. Consequently, the amendment in Rule 73 of the Bihar Service Code did not apply to the employees of BSEDC ipso facto.
Issues: 1. Whether the 41st Meeting of the Board of Directors dated 27.10.1987 adopting the service rules/financial rules of the State Government amounts to a legislation by incorporation or legislation by reference? 2. Whether in view of the admitted position that the rules in the Corporation have not been framed till date, hence the resolution dated 27.10.1987 can or cannot be treated as legislation by incorporation? 3. Whether in the case of legislation by reference, any amendment in the parent Act/legislation would, ipso facto, apply to those organizations in which the parent Act has been adopted through reference? 4. Whether in view of the absence of formulation of any Service Code in the Corporation of its own followed by the adoption through reference of Bihar Service Code till the time a proper service condition is formulated for the employees of the Corporation, the amendment in the Bihar Service Code would have made available, ipso facto, to the employees of the Corporation or not? 5. Whether the employees of the Corporation in the aforesaid backdrop are entitled to the benefit of enhancement of age of retirement from 58 years to that of 60 years carried out by the State Government by amending Rule 73 of the Code and issuance of Resolution bearing No. 1500 dated 24.03.2005? 6. Whether for treating the legislation by incorporation, the existence of two Acts and Rules is a pre-condition whereas in the present case there is only Bihar Service Code and there is no other rule?
Ratio Decidendi: 1. Where a subsequent Act incorporates provisions of a previous Act, the borrowed provision becomes an integral and independent part of the subsequent Act and is unaffected by any repeal or amendment in the previous Act. 2. However, this principle does not apply where: - the subsequent Act and the previous Act are supplemental to each other; - the two Acts are in pari materia; - the amendment made in the previous Act, if not imported into the subsequent Act also, would render the subsequent Act wholly unworkable and ineffectual; - the amendment of the previous Act, either expressly or by necessary intendment, applies the said provisions to the subsequent Act. 3. In the present case, the resolution of the Board of Directors of BSEDC adopting the service rules of the state government was subject to government approval, which was not granted. Therefore, the amendment in Rule 73 of the Bihar Service Code did not apply to the employees of BSEDC ipso facto.
Final Decision: The court answered the reference points accordingly and remitted the Letters Patent Appeals to be placed before the Division Bench after obtaining the permission of the Hon'ble Chief Justice.
JUDGMENT
Dinesh Kumar Singh, J. - We have heard Mr. Mukul Sinha, learned counsel for the appellant (in LPA No. 1294 of 2012), Mr. Rajesh Kumar, learned counsel for the appellant (in L.P.A. No.1612 of 2012) and Mr. Ajit Kumar, learned counsel for the appellant (in L.P.A. No. 78 of 2012), Mr. Lalit Kishore, learned Advocate General Bihar and Mr. Girijesh Kumar, learned counsel for the Corporation in all the cases.
2. The above mentioned three Letters Patent Appeals have been referred to a larger Bench vide order dated 31.10.2017 passed by a Division Bench of this Court in view of the conflicting views expressed by Division Bench of this Court. In LPA No. 1558 of 2011 (Namindra Singh Vs. The State of Bihar and Anr.) decided on 18.11.2011 and LPA No. 533 of 2014 ( Budha Dev Biswas vs. The State of Bihar and Ors.) decided on 17.3.2017, whereby the claim of the employees of the Bihar State Electronics Development Corporation Limited (hereinafter referred to as the Corporation) for enhancement of age of retirement from service has been rejected in view of the government decision and consequential amendment in Rule 73 of the Bihar Service Code (hereinafter referred to as the Code) and similar view has been taken by the Division Bench in LPA No. 1074 of 2014 (The State of Bihar through the Principal Secretary, Department of Industries & Ors.Vs. Chandra Bhushan Choudhary, (2016) 1 PLJR 764 whereas a contrary view has been taken by another Division Bench in the case of Lala Nand Kumar & Ors. Vs. The Bihar State Food and Civil Supplies Corporation Ltd. & Ors, (2008) 1 PLJR 579 with regard to the extension of age of retirement of the employees of the Bihar State Food Corporation in the light of the amendment under Rule 73 of the Code, allowing the age of superannuation from 58 years to 60 years. The reference order dated 31.10.2017 reads as follows:
"While hearing the matter today, two judgments of this Court passed by Division Benches in two appeals, one being L.P.A. No.1558 of 2011 decided on 18.11.2011 and another being L.P.A. No.533 of 2014 decided on 17.3.2017, have been brought to our notice by the learned Advocate General appearing for the Corporation to say that the appeal has to be dismissed and the enhanced age of superannuation, as incorporated by amendment in the Bihar Service Code, will not ipso facto apply to the employees of the Corporation and this contention of the Corporation has been upheld in the aforesaid two judgments.
However, learned Counsel for the appellants invites our attention to an earlier judgment by a Division Bench of this Court in the case of Lala Nand Kumar & Ors. Vs. The Bihar State Food & Civil Supplies Corporation Ltd. & Ors., (2008) 1 PLJR 579 , and takes us to the findings recorded in para 8 of the said judgment and the resolution of the Bihar State Food Corporation made on 21st of May 1973 which in the relevant extract reads as under:-
"Resolved that until such time as the Service Code, Financial Rules etc. are framed by the Corporation, provisions made in the Bihar Service Code ...... applicable to the State Government employees be adopted for the employees of the Corporation."
He invites our attention to the resolution passed by the present Corporation which is available on the record of the writ petition as Annexure 1 dated 13.11.1987 passed by the respondent Bihar State Electronics Development Corporation Limited which reads as under:-
"The Board of Directors in its meeting held on 26.10.87 has accorded post facto approval for application of Service Rules/Financial Rules of the State Govt, which are being followed in the corporation also.
2. This is being agreed as long as the corporation does not frame it own rules.
3. This is also subject to certain limitation prescribed by the State Government/Board of Directors of the Bihar State Electronics Development/ Board of Directors of the Bihar State Electronics Development Corporation Ltd."
and argues that the wordings of the resolution of the respon
