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2011 DIGILAW 716 (JHR)

Hernial Hazam v. State of Jharkhand

2011-07-22

P.P.BHATT

body2011
JUDGMENT P.P. Bhatt, J. 1. The present writ petition has been filed under Article 226 of the Constitution of India enter alia challenging the letter No. 926 dated 15.10.2003 issued by the District Education Officer, Bokaro (respondent No. 3) whereby following the instructions contained in said office order of the respondent No. 4. the Headmaster, State Subsidised High School, Bhendra, Bokaro forcefully superannuated the petitioner with effect from 31.12.1999 on the ground that he has already completed 40 years of service. Petitioner has also prayed that the order of refund of Rs. 2,31,000/- (Rupees Two Lakhs thirty one thousand), which is excessively paid to the petitioner from January, 2000 to June. 2003 is also to be quashed and set aside. 2. Learned counsel for the petitioner has submitted that the petitioner was appointed on 18.10.1959 in the State Subsidised High School, Bhendra, Bokaro and subsequently on 2.10.1980, the State Government took over the establishment of the said School. Learned counsel for the petitioner, has also pointed out that the date of birth of the petitioner is 2.3.1946. However, he was directed to retire on 31.12.1999, which according to him is premature retirement. It is submitted that under Rules 54 and 73 of Jharkhand Service Code 2001, the retirement age of Government servant is 58 years. It is also submitted that employee stands superannuated only on attaining age of superannuation and cannot be retired on the ground of completion of 40 years of service. It is also submitted that the action of the respondents authority pushing back his date of birth and assigning him imaginary date of birth as well as date of superannuation is arbitrary and there is no justification for the same. Learned counsel for the petitioner has also submitted that the petitioner has actually worked beyond 31st of December 1999 Le. from January, 2000 to June 2003 and G.P.F. was also deducted during that period. In support thereof, he placed reliance on Annexure-5 to the writ petition. It is submitted that petitioner is entitled for fixation of pension on the basis of his actual date of retirement le. on 31.3.2004 and he is entitled to full salary. 3. from January, 2000 to June 2003 and G.P.F. was also deducted during that period. In support thereof, he placed reliance on Annexure-5 to the writ petition. It is submitted that petitioner is entitled for fixation of pension on the basis of his actual date of retirement le. on 31.3.2004 and he is entitled to full salary. 3. Learned counsel for the petitioner placed reliance on the judgments rendered in the case of Mokhtar Ahmad v. Bihar State Road Transport Corporation & Ors., reported in PLJR 1995 (1) 183 and also in the case of Pranadhar Prasad v. State of Jharkhand & Ors., reported in 2003 (2) JCR 572. 4. It appears from the record that though respondent Nos. 1, 2, 4, 5, 6 and 8 have been arrayed as respondents, but no separate reply has been filed in the matter by each of them. It appears that on behalf of the said respondents, the respondent No. 3 has filed counter-affidavit as District Education Officer. Learned counsel for the State has referred to and relied upon the counter-affidavit filed by Mahip Kumar Singh, District Education Officer (respondent No. 3) in this writ petition while referring various paragraph of the said affidavit. Learned counsel for the State has submitted that fact of this case is that the date of birth of the petitioner is 2.3.1946 and he joined in service on 18.10.1959 therefore the appointment of the petitioner was made at the age of 13 years 9 months and 15 days le. in minor age, which is illegal and not permissible in Government rules and regulations. In Government service minimum age limit fixed for appointment is 18 years and the age of superannuation is 58 years. In other way the maximum tenure of service length is 40 years of service. It is submitted that entrance in Government Service normally available to a person who attained majority. It is well settled that contract with a minor is not permissible under law. If a person enters in Government Service at the age of about 13 years, such entry on the basis of a contract is void. As per the petitioner, his date of birth is 2nd of March, 1946 and he was initially appointed as a peon by the School Management Committee at the age of 13 years 9 months and 15 days and therefore, the same is questionable one. As per the petitioner, his date of birth is 2nd of March, 1946 and he was initially appointed as a peon by the School Management Committee at the age of 13 years 9 months and 15 days and therefore, the same is questionable one. The School was adopted by the Government on 2nd of October, 1980 and therefore, the petitioner's service has been counted from that only. It is submitted that the petitioner, despite knowing well that a Government Servant appointed below the age of 18 years can serve 40 years tenure of his service, he suppressed all the facts and even after completion of 40 years service, he did not inform to his Superannuation Authority. When the respondent authorities came to know about the matter then necessary actions were taken by the respondent authorities to pay the retiral benefits legally payable to him. It is also submitted that the excess amount taken by the petitioner during the period from 01.01.2000 to 30.06.2003 is recoverable from the petitioner. It is submitted that the petitioner, right from beginning, illegally appointed by School Management at the age of 13 years but after completion of 40 years of service, he has been superannuated by the respondent concerned. As per the rules and regulations, all retiral benefits legally payable in favour of the petitioner, has been paid. It is lastly submitted by learned counsel for the State that petitioner is not entitled for the relief as prayed for and his writ petition may be rejected. 5. It appears from the record that respondent No. 7, Accountant General (A & E-l), Jharkhand, has not filed any reply. However, learned counsel appearing on behalf of the respondent No. 7 has made submission regarding the relevant rules applicable in the instant case and he invited attention to Rule 57 of the Bihar Pension Rules, 1950, which shows that a Government Servant in inferior service, qualifying service, shall not begin until the Government servant concerned attained the age of 16 years. The said Rule was subsequently amended and because of amendment minimum age increased from 16 years to 18 years. Learned counsel for the Accountant General has also referred Rule 58, 59, 60 and 61 in context of Rule 59 of the Bihar Pension Rules, 1950 so as to show that the service of the petitioner does not qualify for the purpose for calculating pension under those Rules. Learned counsel for the Accountant General has also referred Rule 58, 59, 60 and 61 in context of Rule 59 of the Bihar Pension Rules, 1950 so as to show that the service of the petitioner does not qualify for the purpose for calculating pension under those Rules. The service of the petitioner cannot be counted as Government service from the date of his entry in service in the said Private Institution. In the present case the date of entry in Government service will count from 2.10.1980 when the School Management was taken by the Government. Learned counsel for the respondent No. 7 further submitted that in the present case, 19 years qualifying service is calculated for the purpose of fixation of pension. The petitioner has been paid retiral dues accordingly. It is submitted that considering his date of appointment in the Government Le. 2.10.1980 the date of retirement is 31st of December, 1999. 6. Therefore the question which requires consideration is that whether an employee can be forced to be retired on the completion of 40 years service in absence of any rule or guideline particularly, when Rules 54 and 73 of Jharkhand Service Code, 2001 prescribes the retirement age of Government servant as 58 years and secondly as to whether considering the provisions contained in Rules 54 and 73 of Jharkhand Service Code, 2001, an employee will superannuate only on the attaining the age of superannuation and cannot be retired on the ground of completion of 40 years of service. Similar question arose in the case of Venudhnr Malanti v. State of Jharkhand & Ors., reported in 2003 (1) JCR 320 (Jhr) and it has been held that an employee cannot be ordered to be retired on completion of 40 years of service in absence of any rule or guideline particularly when Rule 73 of Bihar Service Code prescribes the retirement age as 58 years. The case of Mokhtar Ahmad v. B.S.R.T.C., reported in 1995 (1) PLJR 183 as well as Another case of Kalanand Jha v. State of Jharkhand and Others, reported in 2001 (2) JLJR 297 having similar issues were also considered in the said judgment. Similar view was also taken in case of Pranadhar Prasad v. State of Jharkhand and Others, reported in 2003 (2) JCR 572 (Jhr). Similar view was also taken in case of Pranadhar Prasad v. State of Jharkhand and Others, reported in 2003 (2) JCR 572 (Jhr). Admittedly no rule/guideline has been prescribed by the State for superannuation of a Government employee on completion of 40 years of service. The age of superannuation has been prescribed under Rule 73 of the Bihar Service Code in terms of which a person stands retired on attaining 58 years of age. In aforesaid cases cited above, the impugned order regarding the retirement of the petitioner on the basis of completion of 40 years of service was ordered^ to be set aside as there was no counter-affidavit filed by the State and, no relevant rule was placed before the Court. In the instant case, learned counsel for the Accountant General Le. respondent No. 7 has placed reliance on Rules 57, 58 and 60 of the Jharkhand Pension Rules, 2000 which provide as under :-- 57. For a Government servant in inferior service, qualifying service, shall not begin until the Government servant concerned attained the age of 16 years. (Comments.-- See Rule 5 of Liberalized Pension Rules in Appendix-5 raising, minimum age of 16 years mentioned in this rule to 18 years.] 58. The service of a Government servant does not qualities for pension unless it conforms to tile following three condition.-- First--The service must be under Government. Second--The employment must be substantive and permanent. Third--The service must be paid by Government. These three conditions are fully explained in the following sub-sections. 60. The Service of a Government servant does not quality unless lie is appointed and his duties and pay are regulated by the Government, or under conditions determined by the Government. The following are examples of Government servant excluded from pension by this rule (i) Employees of municipality; (ii) Employees of grant-in-aid schools and institutions. (iii) Service on an establishment paid from the house hold allowance of the Governor or from his contract establishment allowance. The aforesaid rules provides qualifying service for pension. In view of the provisions contained in the aforesaid rules, mainly there are three requirements, firstly qualifying service shall not begin until a Government servant attained the age of 18 years. (iii) Service on an establishment paid from the house hold allowance of the Governor or from his contract establishment allowance. The aforesaid rules provides qualifying service for pension. In view of the provisions contained in the aforesaid rules, mainly there are three requirements, firstly qualifying service shall not begin until a Government servant attained the age of 18 years. Secondly the service must be in Government and thirdly, the service of a Government servant does not qualify unless he is appointed and his duties and pay are regulated by the Government or under conditions determined by the Government. In the instant case, the petitioner was initially appointed in the State Subsidised High School, Bhendra, Bokaro on 18.10.1959 and the said School was subsequently taken over by the Government on 02.10.1980 therefore in the light of aforesaid provisions contained in Jharkhand Pension Rules, 2000 the qualifying service for the purpose of pension shall be considered accordingly. Considering the initial date of appointment le. on 18.10.1959, the petitioner has completed 40 years of service on 31st of December, 1999. In Government service minimum age limit fixed for appointment is 18 years and the age of superannuation is 58 years. The maximum tenure of (end) by in service is 40 years. Considering the initial date of appointment of the petitioner taking into account his date of birth le. on 2nd of March, 1946, the petitioner was initially appointed on attaining the age of 13 years 9 months and 15 days which becomes questionable one. Normally in Government service, a person, who attains majority is being appointed. Therefore, the respondent authorities have rightly considered 40 years of service from 1959 and asked the petitioner to be retired on 31st of December, 1999 on completion of 40 years of service. Any Government servant cannot be allowed to serve beyond 40 years service unless specific order passed by Government for granting extension of service. In the instant case, no such order has been passed in favour of the petitioner. On the contrary, the respondent authorities have decided to retire him from service with effect from 31st December, 1999 on completion of 40 years service, which is maximum available to the petitioner. In the instant case, no such order has been passed in favour of the petitioner. On the contrary, the respondent authorities have decided to retire him from service with effect from 31st December, 1999 on completion of 40 years service, which is maximum available to the petitioner. There is no express Rule in the Jharkhand Service Code regarding the superannuation after 40 years, but in view of requirement of qualifying services provided under Jharkhand Pension Rules, 2000 it goes without saying that even if a person joined service at the age of 18 years then his age of retirement will be 58 years as provided in Rule 57 of the Jharkhand Service Code. Meaning thereby the maximum service available to any Government servant is 40 years. No Government servant has any right to continue in service beyond 40 years unless there is specific order granting extension of service. Admittedly, in the instant case no such extension has been granted in favour of the petitioner. Moreover, the Jharkhand Pension Rule, 2000 provides qualifying service for the pension and as provided under Rule 57 of the said Rule, a person cannot be appointed in Government service unless and until he attains the age of 18 years. Considering the aforesaid provisions, the petitioner has already completed 40 years service on 31st of December, 1999 as he was initially appointed on 18.10.1959. 7. It appears from the record that the petitioner was asked to retire with effect from 31st of December, 1999, only in the month of June, 2003 meaning thereby the petitioner has actually rendered services with the State Government from January, 2000 to June. 2003. Therefore, this Court is of the view that the petitioner is entitled to get the pay during that period. The recovery of pay asked by the State Government during that period cannot be sustained in the eyes of law as the petitioner has actually worked during that period. At the same point of time, in view of position of Rules referred above and looking to the facts of the case the period from 1.1.2000 to 31.3.2004 cannot be considered or counted for the purpose of fixation of pension. The date of retirement which is fixed by the State Government le. 31st of December, 1999 is carrect on the basis of service record of the petitioner and in view of position contained in the Rules referred hereinabove. The date of retirement which is fixed by the State Government le. 31st of December, 1999 is carrect on the basis of service record of the petitioner and in view of position contained in the Rules referred hereinabove. It is stated in counter-affidavit filed by the respondent No. 3 that the petitioner has been paid retiral dues and benefit payable to him. However this Court makes it clear that the petitioner is eligible and entitle to get retirement benefit and fixation of pension as on 31.12.1999 considering his total length of service in accordance with law. The respondent authorities are therefore directed to make payment if not done so far in respect of retiral benefits and dues if any. The judgment cited by learned counsel for the petitioner will not help the case of the petitioner as the facts of the present case are different from the facts of the judgments cited by the learned counsel for the petitioner. 8. Having regard to the aforesaid facts and circumstances of the case, this writ petition is partly allowed. The prayer with regard to the quashing of order/letter No. 926 dated 15.10.2003 is rejected. 9. So far as recovery of Rs. 2,31,000/-(Rupees Two Lakhs thirty one thousand) is concerned, as the petitioner has actually worked during the period from January, 2000 to June, 2003 the same cannot be allowed to the recovered in view of the settled legal position. The letter No. 946 dated 9.11.2004 (Annexure-7 to the writ petition) is therefore quashed and set aside. 10. This writ petition is partly allowed and stands disposed of accordingly. Petition allowed.