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2005 DIGILAW 253 (PAT)

Rajendra Prasad v. State of Bihar

2005-03-03

body2005
ORDER 1. Heard learned Counsel for the petitioner and the learned Counsel for the State. 2. This Court by an order dated 13.1.2005 had clarified the issue for determination-In the present case. The matter having been heard the court proceeds to dispose of the writ application. 3. The petitioner would contend that he having been appointed in government service in the year 1956, his date of birth was recorded in the Service Book as 1.8.1942. The respondents by an order dated 13.5.1999 purported to retire him from service with effect from 30.4.1999 on the premise that he has completed 40 years in service. In view of the government instruction dated 15.1.1998 that retirement be done on completion of 58 years of age and the fact of completion of 40 years of service was not relevant the petitioner was reinstated by an order dated 22.6.1999. Subsequently for the same reason the respondents have reissued order dated 30.10.1999 reiterating that the petitioner stood superannuated from 31.10.1999 on the premise of his having completed 40 years of service. 4. Learned Counsel for the petitioner in support of his Submission that the fact that the petitioner may have been appointed at an age below 13, initially, was not relevant and what was crucial was completion of age of 58 years in service (illegible) superannuation, relied upon a Division Bench Judgment reported in 1995 (1) PLJR 183 (Mokhtar Ahmad Vs. Bihar State Road Transport Corporation & Ors). Placing reliance on the aforesaid judgment it was submitted that the action of the respondents in retiring the petitioner with effect from 31.10.1999 was contrary to law and that the petitioner was entitled to continue in service till he would attain the age of 58 years in July 2000. The petitioner having been made to retire nine months earlier would be entitled to consequential benefits. 5. The counter affidavit on behalf of the respondents appears to be completely sketchy and hardly of any assistance to this Court in disposal of the writ application. Though the counter affidavit would contend that the minimum age provided in the Bihar Service Code, for appointment, was 18 years, no such material has been placed on record or during course of submission in support of the same. 6. This Court on consideration of the submissions made on behalf of the parties and the judgment in the case of Mokhtar Ahmad Vs. 6. This Court on consideration of the submissions made on behalf of the parties and the judgment in the case of Mokhtar Ahmad Vs. Bihar State Road Transport Corporation & Ors. referred to above, finds that the Division Bench held that Rule 54 of the Bihar Service Code would fix an upper age limit for pensionable service and Rule 73 fixes the age of retirement. Both the rules are quoted below for the sake of convenience. "54. Except as otherwise expressly provided in rules regulating the methods of recruitment to a particular service or post a person whose age exceeds twenty five years and in the case of a person belonging to the scheduled castes and backward tribes whose age exceeds 28 years may not be admitted into pensionable service of government. The State Government, however, may relax this rule in special cases" "Rule 73 fixing the age of retirement is as follows: "3. The day 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 day of compulsory retirement with the sanction of the State Government on public grounds, which must be recorded in writing." 7. Based on tl1ese consideration the Division Bench held in para 5 as follows:- 5. It is to be noted at this stage that Rule 73 envisages that a person would retire only on attaining the age of 58 years and does not say that a person would retire either on attaining the age of 58 years or on completing 40 years in service. In our opinion, therefore, there can be no justification for retiring the petitioner by arbitrarily pushing back his date of birth and assigning him an imaginary date of birth." 8. The Division Bench in para 7 of the judgment then proceeded to pass orders on the aforesaid reasoning upholding the entry of the petitioner therein in government service at the young age of 16 years and six months. This Court however finds that the entire basis for the concJusion of the Division Bench arid recorded in opening lines of para 4 which this Court considers proper to quote here to the extent relevant. "4. This Court however finds that the entire basis for the concJusion of the Division Bench arid recorded in opening lines of para 4 which this Court considers proper to quote here to the extent relevant. "4. It is self evident that unless the basis premise that no person could gain employment before attaining the age of 18 years was legally justified, the impugned order must fall to the ground. Having heard learned Counsel for the petitioner and the Corporation we are actually faced with this position........." It would thus be apparent that the Division Bench proceeded on the assumption that unless there be any law debarring the employment under the age of 18 years there would be no illegality in such an appointment so as to deny the benefit to the person like the present petitioner 9. This Court would hold that the appointment in government service or a job in government service would undoubtedly be a contract. Once the employee enters into a contract with the employer the employee would then be governed by the Service Rules. Thus the stage of' entering into a contract would be prior in point of time. Only if there be a proper contract in law the question of applicability of service rules arise. This Court would therefore refer to Section 11 of the Contract Act which is quoted below for ready reference. "11. Who are competent to contract.-Every person is competent to contract who is of the age of majority according to the law to which he is subject, and who is of sound mind, and is not disqualified from contracting by any law to which he is subject." 10. The basic premise for entering into contract is competence by a person who is of the age of majority according to law, according to which he be subject. This in the Indian context is upheld to be 18 years for males. In the circumstances, it cannot be doubted that the petitioner was incompetent to enter into the contract for government service on the date when he did do so being under 18 years of age. If that be so, to grant relief to the petitioner by quashing of the order dated 13.10.99 for reasons of the order dated 22.6.1999 would be a travesty of justice. It would quite simply result in revival of all illegal situation. If that be so, to grant relief to the petitioner by quashing of the order dated 13.10.99 for reasons of the order dated 22.6.1999 would be a travesty of justice. It would quite simply result in revival of all illegal situation. In the circumstances this Court holds that the equity would require that the period which the petitioner gained advantage by entering into government service prior to his attaining the age of 18 years be deducted from his service that he claims by virtue of completion of 58 years of age. In the present case the difference being only of nine months between when he has been retired and the date that he would complete the age of 58 years no relief whatsoever could be granted to the petitioner in the present application. 11. Even while this Court would respectfully accord its reasons for the present order at variance with the Division Bench, this Court considers it proper to record with humility that this aspect of the issue as discussed in the present order does not appear to have been raised by the respondents before the Division Bench. This application is accordingly dismissed.