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2002 DIGILAW 1068 (JHR)

Md. Jamiruddin Khan v. State Of Jharkhand

2002-09-26

SUDHANSU JYOTI MUKHOPADHAYA

body2002
ORDER S.J. Mukhopadhaya, J. 1. By the Court.--The writ petition has been preferred by petitioner to set aside the order dated 9th July, 2001 whereby and whereunder the Deputy Commissioner, Ranchi superannuated the petitioner w.e.f. 20th July 2000 on the ground that the petitioner has completed 40 (forty) years of service. The aforesaid order has been passed giving a reference of an order passed by this Court on 10th March, 1995 in the case Radhe Shyam Pathak v. Municipal Commissioner of Dhanbad Municipality, CWJC No. 553/94 (R). 2. The case of petitioner, Md. Jamiruddin Khan is that he was appointed on 20th July, 1960. After his appointment in the service book date of birth was recorded as 5th of July 1943 as per Matriculation Certificate. In usual course he should superannuate from service on 31st July, 2001 on attaining the age of 58 (fifty eight) years as per Rule 73 of the Bihar Service Code, 1952. 3. The counsel for the respondents placed reliance on the decision in this Court in the case of Radhe Shyam Pathak v. Municipal Commissioner of Dhanbad Municipality. CWJC NO. 553/94 (R) disposed of on 10th March, 1995 and submitted that the High Court having upheld the order by which one Radhe Shyam Pathak was retired from the service of the Municipality on completion of 40 (forty) years of service, the impugned order dated 9th July, 2001 was passed and cannot be held to be illegal. 4. However, such submission cannot be accepted, as the decision of the Court in the case of Radhe Shyam Pathak is not applicable in the case of State Government employees. 5. The question as to when an employee is to superannuate depends on the service Rules/guidelines applicable. It may be the age when an employee attains or number of completion of service as may be prescribed under the Rules/guideline as is applicable. 6. The petitioner was an employee of the State of Bihar (now State of Jharkhand). He is guided by the rules of the State, namely, Bihar Service Code, 1952, relevant of which is Rule 73, as quoted below :-- The date of compulsory retirement of a Government servant is the date on which he attains the age of 58 years. 6. The petitioner was an employee of the State of Bihar (now State of Jharkhand). He is guided by the rules of the State, namely, Bihar Service Code, 1952, relevant of which is Rule 73, as quoted below :-- The date 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 date of compulsory retirement with the sanction of the State Government on public grounds, which must be recorded in writing." 7. As per the aforesaid Rule 73 a Government servant stands superannuated from service on attaining the age of 58 years. No authority of any other Rule except, as a penal measure under discipline and appeal rules or Rule 74 of the Bihar Service Code, 1952 in public interest after three months notice. 8. Similar question fell for consideration before this Court in the case of Kalanand Jha v. State of Jharkhand, CWJC No. 2289 of 2001 disposed on 10th July 2001. In the said case the Court noticed that no minimum age was prescribed at the time the petitioner of the said case was appointed (in 1962). The Rule 54 of the Bihar Service Code, 1952 though prescribes maximum age limit for appointment in the services of the State , no minimum age limit is prescribed under the Bihar Service Code, 1952. 9. The language of Rule 57 of the Bihar Pension Rules, 1950 also suggests that no minimum age was prescribed earlier for appointment in the services of the State, which reads as follows :-- "For a Government Servant in inferior service, qualifying service, shall not begin until he Government Servant concerned attained the age of 16 years." 10. A Division Bench of Patna High Court in the case of Mokhtar Ahmad v. BSRTC, reported in 1995 (1) PLJR 183 held that an employee can be superannuated only at attaining the age of superannuation and cannot be retired on the ground of completion of 40 years of service. 11. So far as the case of Radhe Shyam Pathak v. Municipal Commissioner of Dhanbad Municipality, CWJC No. 553 of 1994 (R) is concerned. The State of Jharkhand cannot derive any advantage of the said case. That was a case where minimum age was prescribed under the Bihar and Orissa Municipal Act and Rule. 11. So far as the case of Radhe Shyam Pathak v. Municipal Commissioner of Dhanbad Municipality, CWJC No. 553 of 1994 (R) is concerned. The State of Jharkhand cannot derive any advantage of the said case. That was a case where minimum age was prescribed under the Bihar and Orissa Municipal Act and Rule. For the said reason, the Court upheld the order of superannuation on completion of 40 years of service, 12. In the present case as no minimum age was prescribed at the time when the petitioner was appointed, the respondents cannot derive advantage of the said case. Further, the petitioner having right to continue in the services of, the State till the age of superannuation i.e. 58 years as per Rule 73 of the Bihar Service Code, 1952 the respondents cannot superannuate him prior to such date, except as a penal measure. 13. For the reason aforesaid, the order dated 9th July, 2001 being illegal is set aside. The petitioner will be deemed to have continued in the service and retired on attaining the age of 58 years i.e on 31st July, 2001. The respondents will pay the petitioner salary and other retrial benefits, accordingly. 14. If any amount was recovered from the petitioner in pursuance of the order dated 9th July 2001 it should be refunded to the petitioner, immediately. 15. The writ petition is allowed aforesaid observation and direction.