Research › Search › Judgment

Patna High Court · body

2012 DIGILAW 1018 (PAT)

Arun Kumar Verma v. State Of Bihar

2012-07-24

CHAKRADHARI SHARAN SINGH

body2012
JUDGMENT CHAKRADHARI SHARAN SINGH, J. 1. Heard Mr. Sanjiv Kumar Mishra, learned counsel appearing on behalf of petitioner and Mr. Tej Bahadur Singh, learned Additional Advocate General, appearing on behalf of the State of Bihar and other official respondents. 2. Petitioner is aggrieved by the communication dated 15.05.2002 (Annexure-5) whereby the Executive Engineer, Patliputra Building Division, Patna, gave a notice to the petitioner to the effect that he would be retiring from service after completing forty years of Government service with effect from 30.11.2002. The petitioner, as consequence to the quashing of the order has sought for a direction to the respondents to allow him to continue to discharge his duties till he attains the age of 58 years. 3. The petitioner, as per the writ petition, was appointed on the post of „Work Sarkar? in the Building Construction Department on 01.11.1962. He passed matriculation examination in the year 1961 and as per the certificate issued by the Bihar School Examination Board, Patna, his date of birth is 21.12.1945. According to pleadings in the writ petition, in view of Rule-73 of the Bihar Service Code, the petitioner would have retired on 30th December, 2003, after attaining the age of superannuation i.e., 58 years. 4. The writ petition was filed with the plea that no provision under the Bihar Service Code or any other rule provided that a Government servant under State of Bihar would retire after completing forty years of Government service and therefore, it has been contended that the impugned order dated 15.05.2002 is in the teeth of Rule-73 of Bihar Service Code. Vide order dated 26.12.2002, this writ petition was admitted on the sole issue as to whether a minor could enter into the contract with the State Government as its employee, there being no provision prescribing minimum age for entering into service in Bihar Government. Learned counsel for the petitioner Mr. Sanjiv Kumar Mishra, has fairly conceded, in view of Full Bench judgment of this Court reported in 2006 (1) PLJR 410 (Ragawa Narayan Mishra Vs. Learned counsel for the petitioner Mr. Sanjiv Kumar Mishra, has fairly conceded, in view of Full Bench judgment of this Court reported in 2006 (1) PLJR 410 (Ragawa Narayan Mishra Vs. Chief Executive Officer, Bihar Rajya Khadi Gramoudyog Board) that the legality of the impugned order cannot be questioned as it has been specifically held in paragraph-18 of the said judgment which is being quoted below for ready reference that a Government servant who has completed 40 years of service or has attained age of 58 years has to be superannuated:- “In our opinion, therefore, the impugned orders questioned in both the writ petitions, obviously, cannot be interfered with from any point of view as discussed hereinabove. The proposition of law, therefore, is made evident and unambiguous that the superannuation age prescribed in Rule 73 of the Bihar Service Code will apply for retirement purpose and a person cannot be continued beyond the age of completion of 40 years in service. It is, therefore, evidently, clear that a Government servant who has completed 40 years of service or has attained the age of 58 years has to be superannuated in terms of the existing Rule provision. Our answer, therefore, is very clear and we answer this reference accordingly. The contradictory view in the aforesaid decisions referred to hereinbefore, shall not be a good law.” 5. The judgment of Division Bench of this Court reported in 1995(1) PLJR 183, Mokhtar Ahmad Vs. Bihar State Road Transport Corporation, on which reliance was placed by the petitioner by annexing the said judgment as part of his representation (Annexure-6) to the writ application, has been overruled by the Full Bench judgment in case of Ragawa Narayan Mishra (Supra). In the said judgment in Mokhtar Ahmad case (Supra), rendered by Division Bench, it was held that employer can not change the date of birth of the employee and a person can be retired on completion of superannuation age in accordance with law, rule and regulation, and not on completion of full length of service like forty years. This proposition laid down by the Division Bench having been held not to be good law by Full Bench judgment, there is no merit in the writ application which has been fairly conceded by learned counsel appearing on behalf of the petitioner. 6. This application is, accordingly, dismissed. 7. No order as to costs.