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2000 DIGILAW 290 (PAT)

Birendra Yadav v. State of Bihar

2000-02-18

SUDHANSU JYOTI MUKHOPADHAYA

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JUDGEMENT S.J. MUKHOPADHAYAYA, J.- The writ petition has been preferred by petitioner against the order dated 20th February, 1990, as contained in Memo No. 88 (Annexure-1), whereby and where under, it was decided to withhold payment of salary, till the enquiry relating to approval of service is completed by the Respondents. 2. According to the petitioner, he was appointed as Assistant Teacher prior to 1971 in Primary School, Rakhaut, Block Sonbarsa within the district of Saharsa. It was being run by the private Managing Committee and was taken over in pursuance of Bihar Non Government Elementary Schools (Taking Over of Control) Ordinance, 1976, followed by Act 30 of 1976, with effect from 1.1.1971, whereby the services of the teachers were also taken over. 3. So far as approval of service of petitioner is concerned, on enquiry made by the authorities, communicated vide letter no. 59 dated 8th May, 1989 and on the recommendation of the District Establishment Committee, made vide meeting dated 24th October, 1989, the Director, Primary Education approved the services of petitioner, vide his letter no. 3009 dated 3rd December, 1989. Formal order to that effect was issued and forwarded to petitioner, vide Memo No. 40-3 dated 5th January, 1990 under the signature of the D.S.E., Saharsa and it was ordered to pay salary. It is alleged that in view of a general direction given by the Director, Human Resources Department, vide letter dated 20th February, 1990 (Annexure 1), the salary has been withheld on the ground of enquiry being made with respect to the approval, though in certain cases it has been ordered to pay, vide letter no. 3072 dated 8th December, 1992. 4. The Respondents in their counter affidavit have raised dispute relating to legality and propriety of appointment and its approval on the ground that the petitioner was under-age on the date of take over (1.1.1971) being 16 years 9 months and 24 days on the said date. The fact that the school was taken over and the service of petitioner was approved by the Director, Primary Education, has not been disputed. 5. The question to be determined is as to whether the Respondents can withhold the salary of petitioner on the ground that he was under-age as on 1.1.1971 i.e. the date of take over. 6. The fact that the school was taken over and the service of petitioner was approved by the Director, Primary Education, has not been disputed. 5. The question to be determined is as to whether the Respondents can withhold the salary of petitioner on the ground that he was under-age as on 1.1.1971 i.e. the date of take over. 6. To determine the aforesaid question, it is necessary to discuss rules/guidelines issued by the State, from time to time, laying down the age limit for appointment against one or other post. 7. Previously, no minimum age limit was laid down for appointment in the Government service under the Bihar & Orissa Service Code. Subsequently, statutory rule under proviso to Article 309, commonly known as "Bihar Service Code" was promulgated and came into effect from 1952. Under Rule 54 therein, though maximum age limit was prescribed, no maximum age limit was prescribed for appointment under the State For the first time, the minimum age limit was prescribed by the State of Bihar, vide its Circular, issued in the year 1975. 8. Thereby, it will be evident that no minimum age limit was prescribed for appointment in the services of the State as on 1.1.1971 and the same cannot be made a ground for withholding the salary or to challenge the legality or propriety of an order of appointment. 9. The aforesaid fact will be also evident from Rule 57 of Bihar Pension Rules, 1950, another statutory Rule framed under section 241 (1) of Government of India Act, 1935, 'wherein it has been stipulated that the qualifying service shall not begin, in respect of inferior service, until the Government servant concerned attains the age of 16 years, meaning thereby the appointment could have been made, even prior to the 18 years of age. 10. In the aforesaid circumstances, though it was open to the authorities not to count the period of service rendered prior to 18 years of age, for the purpose of determination of pension/gratuity etc., it is not open to them to doubt the appointment on the ground that the person was underage. 11. 10. In the aforesaid circumstances, though it was open to the authorities not to count the period of service rendered prior to 18 years of age, for the purpose of determination of pension/gratuity etc., it is not open to them to doubt the appointment on the ground that the person was underage. 11. In the facts and circumstances, while I set aside the order, contained in Memo No. 88 dated 20th February, 1990, direct the Respondents to pay the petitioner his salary to which he was entitled under the law, including the arrears within a period of four months from the date of receipt/production of a copy of this judgment. 12. The writ petition is allowed with the aforesaid observations and directions. 13. There shall, however, be no order, as to costs.