Research › Search › Judgment

Patna High Court · body

2000 DIGILAW 275 (PAT)

Md. Azim v. High Court Of Judicature At Patna

2000-02-17

ASOK KUMAR GANGULY, B.P.SINGH

body2000
Judgment 1. Heard counsel for the parties. 2. In the Bihar Service Code, the date of compulsory retirement of a Government servant is the date on which he attains the age of 58 years. However, he may be retained in service after the date of compulsory retirement with the sanction of the State Government on public ground which must be recorded in writing. 3. Counsel for the appellant submits that under Rule 3(a) of the Bihar Service Code, it has been specifically provided that these rules shall not operate to deprive any person, of any right or privilege to which he is entitled by or under any law, or by the terms of any contract of agreement subsisting between such person and the Government. The Bihar Service Code came into force with effect from 1st December, 1952. 4. It is not disputed that the petitioner was appointed as a peon in the year, 1958. Thus, on the date on which Bihar Service Code came into existence, the appellant did not have any right or privilege of which he could be deprived by operation of the Code. 5. It is submitted that under Rule 148(a) of the Bihar Pension Rules, 1950 the Government servant in inferior service shall retire when he attains the age of 60 years. The rule provides that if a person is appointed before 1st January, 1945, he may continue in service until he has qualified for the maximum pension admissible according to the rules made by the State Government, or until he has attained the age of 65 years, which event occurs first. This is subject to his physical and mental fitness. 6. Bihar Pension Rules do not lay down the terms and conditions of the service. The age of superannuation is a condition of service and therefore this is governed by the Bihar Service Code, 1952 . 7. It is well settled that the terms and conditions of the service may be unilaterally changed, and it appears that with effect from 29.9.1973 Rule-73 was amended and the date of retirement of a Government servant after such amendment is the date on which he attains the age of 58 years. 8. In view of amended Rule-73, the appellant cannot claim as a matter of right that he should retire when he attains the age of 60 years. 8. In view of amended Rule-73, the appellant cannot claim as a matter of right that he should retire when he attains the age of 60 years. Reliance placed upon Rule-148 (a) of the Bihar Pension Rules, 1950 is futile, because the age of superannuation is determined by the Bihar Service Code, which is framed by the Governor of Bihar under the Proviso to Article-309 of the Constitution, to regulate conditions of service, pay, allowances etc. In the case of inconsistency between the Bihar Service Code and the Bihar Pension Rules, the Bihar Service Code shall prevail so far as it relates to the conditions of service. 9. We, therefore, find no merit in this appeal and the same is accordingly dismissed.