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2012 DIGILAW 47 (JHR)

State of Jharkhand v. Arun Kumar Dhar

2012-01-09

P.P.BHATT, PRAKASH TATIA

body2012
ORDER Heard learned counsel for the parties. 2. The petitioner was appointed as Moharrir in the service of respondent on 21.9.1968. It is not in dispute that his actual date of birth is 12.07.1953. Not only this but also, his date of birth as recorded in the service book of the employer-appellant from very beginning is 12.07.1953. It is alleged by the employer that the petitioner was below the age of 18 years at the time of appointment and therefore, he can be superannuated on rendering 40 years of service because of simple reason that one can enter into the service only after attaining the age of 18 years and as per Rule-73 of the Jharkhand Service Code, 2001( earlier Bihar Service Code) he is to retire on completion of the actual 40 years of service and not on attaining the age of 58 years. 3. Learned counsel for the appellant relied upon a Full Bench Judgment of Patna High Court delivered in the case of Ragjawa Narayan Mishra and another Vrs. C.E.O. and others reported in 2006 (1) PLJR 410 where the issue was considered by taking in to law relating to contract and who is competent to contract by virtue of Section 11 of the Indian Contract Act, 1872 and Section 3 of Majority Act, 1875. Rule 57 of Bihar Pension Rules, 1950, was also considered. The Division Bench opined that since minimum age for entry in the Government service being 18 years and maximum age prescribed for exit being 58 years, total length of period of Government service would not exceed 40 years. The Division Bench also observed that a person who takes undue advantage by any reason at the entry point in service cannot be allowed to urge that he be given higher benefit. In addition to above, according to learned counsel for the appellant, there is yet another Division Bench Judgment of this Court reported in 2004(2) JLJR delivered in the case of Shri Rajaram Sharma Vrs. Ranchi Municipal Corporation and others, the same view has been taken by the Division Bench of this Court which is binding of this Coordinate Bench. 4. Learned counsel for the respondent-employer relied upon another judgment of a Division Bench of this Court delivered in the case of Ganesh Ram Vrs. Ranchi Municipal Corporation and others, the same view has been taken by the Division Bench of this Court which is binding of this Coordinate Bench. 4. Learned counsel for the respondent-employer relied upon another judgment of a Division Bench of this Court delivered in the case of Ganesh Ram Vrs. State of Jharkhand and others reported in 2006(2) JCR 489 (Jhr.) and another Division Bench Judgment of this Court delivered in the case of Ranchi University Grade-IV Staff Association and another Vrs. State of Jharkhand and others. 5. In the judgment of Ganesh Ram(supra), the issue has been considered in detail and after taking into account large number of previous judgments rendered on this very issue, the Division Bench of this Court expressed the views in para-18 which is as under:- “18. In view of the aforesaid discussions, our considered views are as follows: (i) A person, who has completed his 14th year of age but had not completed his 18th year [adolescentas defined under clause(a) of Section 2 of the Minimum Wages Act, 1948] is eligible for appointment, if Rule/Guideline, issued by the employer so permits; (ii) If a person, who has not attained 18th year of age, is appointed de hors the rule, his appointment can be held to be irregular but his age cannot be presumed to be 18 years for the purposes of superannuation(compulsory retirement); (iii) If a person, below 14 years of age, is appointed, penal order can be passed against the employer under the Child labour (Prohibition and Regulation) Act, 1986 but no order, penal in nature, be passed against the employee; (iv) Age of superannuation cannot be left to the whims of the employer. There should be a rule/guideline/law of superannuation. If superannuation is based on age, no person can be made to superannuate prior to attaining such age, except in the case of misconduct or inefficiency; (v) It is for the employer to fix the age of superannuation (compulsory retirement) as per the provisions of statutory Law, Rules, Regulations or Guidelines, which may be dependent on age or on completion of a certain number of years of service or either attaining the prescribed age or number of years of service, whichever is earlier. But once the age of superannuation is prescribed, in absence of contrary rule; like completion of certain years of service, a regular employee cannot be retired prior to attaining the age of superannuation, except in the case of misconduct or on the ground of public interest/unsatisfactory service etc., as may be permissible under the rule(s).” Thereafter, the Division Bench held that in view of Rule-73 of the Jharkhand Service Code, 2001, an employee cannot be made to retire on the ground of completion of 40 years of service. Since there are conflicting judgments on the same issue, therefore, in our opinion, the matter is required to be referred to the larger Bench. Therefore, we refer following questions to the larger Bench: i) Whether in spite of specific Rule-73 in Jharkhand Service Code, 2001 providing age of superannuation(compulsory retirement as it has been mentioned in Rule-73, which according to learned counsel for the parties, denotes superannuation), the employee can be superannuated on rendering service of 40 years on the ground that entry in service can be at the age of 18 years and one can enter into a contract after attaining the age of majoring which is 18 years in spite of fact that Rule only provides superannuation upon attaining age of 58 years. ii) Whether entering into service at the age of 18 years can be said to be against Section 11 of the Indian Contract Act, 1872 and is affected by Section 3 of the Majority Act, 1875 and the contracting party, who is below the age of 18 years (being minor) and whether that contract is illegal and void against such minor's interest so as to treat the service contract of such person who was not of the age of 18 years to be counted a valid contract from the age when he attains the age of 18 years? iii) When the language of Rule-73 is unambiguous and clear with respect to the age of superannuation, whether any help can be taken from other rules and provisions to draw inference that intention of legislature was to allow only 40 years of service and if it is so, then if one enters in service after age of 18 years, then whether he can continue beyond the age of 58 years? Before parting, we would like to mention that in service law “superannuation”, “compulsory retirement” and “voluntary retirement” are well defined events and as both the learned counsel for the parties pointed out that in Rule-73 of the Jharkhand Service Code, 2001, “compulsory retirement” denotes “superannuation” of a Government servant. We also require to make it clear that as per Rule 49 (IV-a) of the Civil Services (C.C.& A.) Rules 1930, the “compulsory retirement” is one of the punishment provided for the employees,”voluntary retirement” is voluntarily leaving of service of the employee whereas “compulsory retirement” requires pre-exercise by the employer and retirement is made compulsorily and it is not voluntarily. In that situation, it is for the State to think over the matter and make appropriate corrections in the Rules so as to make Rule of superannuation, not in the name of Rule of compulsory retirement. The matter be placed before the Chief Justice for appropriate order for placing it before the appropriate Bench. Learned counsel for the appellant may submit the paper books for the Bench.