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IN THE HIGH COURT OF JUDICATURE AT PATNA
DINESH KUMAR SINGH, PRABHAT KUMAR JHA, ARVIND SRIVASTAVA, JJ.
Ms.Shivani Chaudhary (since deceased and substituted through L.R. Deo Shankar Choudhary) – Appellant
Versus
The Principal Secretary, Department of Information Technology, Govt. of Bihar, Patna – Respondent
Letters Patent Appeal No. 78, 1612, 1294 of 2012 In Civil Writ Jurisdiction Case No.15213, 14388 of 2011, 8429 of 2010
Decided on : 27-09-2020
Bihar Service Code, 1952 – Rule 73 – State Government Circular dated 24.03.2005 – Age of retirement from service – Rejection of claim of employees of Bihar State Electronics Development Corporation Limited for enhancement of age of retirement of employees of Bihar State Electronics Development Corporation Limited from 58 years to 60 years – Resolution of 41st meeting of Corporation dated 27.10.1987 is a legislation by reference, since, no rule of Corporation has come into existence till date and there is no question of treating it a legislation by incorporation which needs transplantation of certain provision from previous enactment to subsequent enactment and if there is no rule, then there is nothing to regulate service condition of employees of Corporation – Ex-consequenti, all such employees who stood compulsorily superannuated before attaining age of 60 years, are entitled for consequential benefits provided they are able to show that they were not gainfully employed elsewhere – Letters Patent Appeals remitted to be placed before Division Bench after obtaining permission of Chief Justice. (Paras 55 and 56)
Interpretation of Statute – Where subsequent Act incorporates a provision of previous Act, position is that borrowed provision is bodily lifted from previous Act and placed in subsequent Act and becomes an integral and independent part of it, so as to remain unaffected by any repeal, change or amendment in previous Act – It is a rule of construction that where a statute is incorporated by reference into a second statute, repeal of first statute by a third does not affect second – Where provisions of an Act are incorporated by reference in a latter Act, repeal of earlier Act, in general, has no effect upon construction or effect of the Act in which provision has been incorporated – After provisions of previous Act is incorporated in subsequent Act, offspring (incorporated) provision survives even if previous Act is repealed, amended, declared a nullity or erased from statute book. (Paras 32 and 37)
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, reported in 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, reported in 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:
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) P.L.J.R. 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 Director
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