Gopal Prasad vs Bihar School Examination Board and Others

1. There is no dispute that the service conditions of the employees are ordinarily governed by the statutory rules or in its absence, under regulations or administrative decisions having a binding force but the person who attains the age of majority alone is competent enough to enter into valid contract of service. Section 11 of the Indian Contract Act, 1872 defines as to who is competent to contract and clearly manifests that for entering into valid contract of service, one has to attain the age of majority in terms of the Majority Act, 1875 and what could be the age of majority has been defined under Section 3 of the Majority Act, 1875. [Paras 13, 14][181-C, E]

2. Indisputedly, the appellant, in the instant case, was minor on the date of entry into service in May 1970 and unless there is a specific rule to the contrary, minor is not eligible/qualified to seek public employment. It is true that the minimum age at the entry level shall always be prescribed by the rule making authority. In the instant case, the State authority under its Pension Rules, 1950 prescribes the qualifying service of Government servant which was raised to 18 years by an amendment made effective from 23 rd August, 1950. If the minimum age at the relevant time was not prescribed under the Bihar Service Code, 1952, at least the Government is justified in taking assistance of the Pension Rules, 1950 to hold that the minimum age at the entry point shall be 18 years for all practical purposes. [Para 15][181-G-H; 182-A-B]

3. Admittedly, in this case, when the appellant entered into service, he was 15 years and 6 months old and had not attained the age of majority and the minimum age at the entry point in terms of the Pension Rules, 1950 is 18 years and maximum age prescribed for exit point is 60 years as a logical consequence, the total length of service which one could render in the government service may not exceed 42 years and when there is an unambiguous self-explicit provision, anything contrary to or inconsistent with or incompatible to it, any circular or resolution or order, will not have any legal and valid effect to abridge the right enshrined in the scheme of Rules. Indisputedly, the appellant cannot be allowed to contend that he has a right to continue upto the age of 60 years as per his date of birth recorded in the Board records in view of Rule 73 of the Bihar Service Code, 1952. From the scheme of Rules, it is clear that the superannuation age prescribed under Rule 73 of the Bihar Service Code, 1952 will apply for retirement purpose and the person cannot be continued beyond the age of completion of 42 years in service taking note of the Pension Rules, 1950. In the instant case, apart from the scheme of rules of which a reference has been made, the appellant could not enter into service below the age of attaining majority, if there is no express provision of minimum age at the entry level under the Bihar Service Code as prayed, in isolation is accepted and the age at the entry level is left open ended, it will lead to a stage where a toddler or a minor of any given age can claim his eligibility to enter into public employment which is manifestly illogical and impermissible in law. [Paras 16, 18, 20][182-C-D; 184-C; 185-D-E]

Ragjawa Narayan Mishra and Ors. v. Chief Executive Officer, Bihar Rajya Khadi Gramoudyog Board and Ors. 2006(1) PLJR 410 – approved.

Nagaland Senior Government Employees Welfare

Association and Others v. State of Nagaland and Others (2010) 7 SCC 643 : [2010] 7 SCR 630 – referred to. Per Indira Banerjee, J.:

HELD: 1.1 By Government circular dated 15th January 1998 issued by the Personnel and Administrative Reforms Department of the State of Bihar, the minimum age for appointment to an inferior service under the Government of Bihar was fixed at 18 years. The said circular, fixing the minimum age for appointment at 18 years, which was issued almost 18 years after the appointment of the petitioner, was prospective and applied only to appointments made after issuance of the said circular. [Para 4][186-E]

1.2 The terms and conditions of service of employees of the Bihar School Examination Board are governed by the Bihar Service Code. Rule 73 of the Bihar Service Code inter alia provides that “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 State Government on public grounds, which must be recorded in writing.” On 15th January 2004, the Bihar School Examination Board resolved to treat the age of entry into service, of those incumbents who were below 18 years at the time of joining service, as 18 years at the time of their appointment. As per the said resolution, employees who had been appointed before attaining the age of 18 years, were to be deemed to have attained the age of 18 years on the date of their appointment and that they would superannuate on completion of 60 years of age if they were Category-4 employees and on completion of 58 years of age in case they were Category-3 employees. The age of 58 years for category-3 employees was, later, during the tenure of service of the Appellant, increased to 60 years. [Paras 5,6, 8][186-G-H; 187-A-G]

1.3 The resolution may not have perfectly been worded. The resolution was a beneficial one in the interest of those employees who would otherwise have been deprived of pensionary benefits for the period of service rendered by them before attaining the age of 18 years. Such employees were to be deemed to be 18 years on the date of their appointment, so that they were not deprived of pensionary benefits for part of their service period, but were to retire on attaining the age of retirement as prescribed in Rule 73 of the Bihar Service Code. The resolution might also have been necessitated by reason of irregular appointments after the Circular dated 15 th January 1998 of persons who had not attained 18 years of age, to put all disputes with regard to the legality of their appointment to rest. It does not appear that the resolution was intended to retire employees who had joined service before attaining the age of 18 years, before completion of their actual age of retirement, as per the Rules. If it were the intent of the resolution, the language and/or wording of the resolution would have been different. [Paras 9, 10][187-H; 188-A-C]

2. The date of retirement of the employees of the Bihar School Examination Board is governed by Rule 73 of the Bihar Service Code. No decision to decrease the age of retirement of employees who had joined service before attaining the age of 18 years, could have been taken without amending Rule 73 of the Bihar Service Code in accordance with law. There could be no question of amendment of any provision of the Bihar Service code merely by a resolution of the Bihar School Examination Board. Any prescription of minimum age for appointment, subsequent to the appointment of the Appellant, could not retrospectively be applied to the Appellant. [Paras 11, 13][188-F-G; 189-D]

3.1 The mere fact that an employee may have been a minor at the time of his initial appointment is inconsequential in the absence of any law at the material time of his appointment, prohibiting appointment of 15/16 year old minors. The Appellant who was 15½ years old may have been a minor, but certainly not a toddler. It is absurd that any rational employer, far less a statutory body, would appoint a toddler. The apprehension of claims in future to appointment from persons less than 18 years of age is also baseless in view of the circular dated 15th January 1998 which fixes 18 years as the minimum age of retirement. The circular would govern subsequent appointments. It may be true that a minor is incompetent to enter into a contract. A contract may not be enforceable against a minor. A contract executed by a minor may be voidable at the option of the minor. The minor may, on attaining majority, repudiate or ratify and accept the contract. It is nobody’s case that any of the concerned employees repudiated their contract of appointment on attaining majority. An employer who knowingly appoints minors with impunity, with its eyes open, cannot evade its obligations under the contract of employment, and that too after the employee has rendered service for almost two decades after attaining majority. The contracts can be said to have been ratified by the employees concerned, on attaining majority. [Paras 22, 23, 24][192-B-F]

3.2 In Ragjawa Narayan Mishra, the Full Bench failed to appreciate that the circular of 1998 could have no manner of application to appointments that had already been made before the said circular was issued, and certainly not to appointments made almost two decades before issuance of the aforesaid circular, at a time when admittedly there was no minimum age for appointment to government service. Even assuming that the total length of Government service for pensionary benefits cannot exceed the length of time between the date of attaining of 18 years and the attainment of age of 58/60 years as per Rule 73, that would mean that pensionary benefits would have to be computed on the basis of the length of service after completion of 18 years of age. In no case can an employee be retired before attaining 58 and/or 60 years of age, as prescribed in Rule 73 of the Bihar Service Code. [Para 29][193-E-G]

3.3 The finding of the Full Bench in Ragjawa Narayan Mishra, that the superannuation age prescribed in Rule 73 of the Bihar Service Code would apply for retirement purpose and a person could not be continued after completion of the retirement age is unexceptionable. In no circumstances could a government servant claim any right to continue in service after completion of the age of retirement prescribed in Rule 73 of the Bihar Service Code. However, since length of service is not a criteria for retirement under the applicable rule, that is Rule 73 of the Bihar Service Code, a government servant who had not completed the age of retirement as per his/her actual date of birth recorded in the service records, cannot be made to retire on the ground of completion of 40 years of service or service in excess of 40 years. At best, the length of service would be deemed to be forty years for computation of pensionary benefits. The age of retirement and qualifying service for the purpose of retirement benefits are not one and the same. Qualifying service for retirement means that the length of service for the purpose of computation of retiral benefits would commence from attainment of the age of qualifying service of pension. Thus, if the age of qualifying service for pension is 18 years, the length of service for computation of pensionary benefits would have to be computed from the date of attainment of 18 years of age. However, if the prescribed age of retirement is completion of 60 years, an employee cannot be forced to retire before attaining that age except on grounds provided in Service Rules. [Paras 30, 32, 33][193-H; 194-A-F] Ragjawa Narayan Mishra and Another v. Chief

Executive Officer, Bihar Rajya Khadi Gramoudyog Board and Ors. 2006 (1) PLJR 410 – disapproved.

Atiabari Tea Co. Ltd. v. State of Assam AIR 1961 SC

232 : [1961] SCR 809; Jindal Stainless Ltd v. State of Haryana (2016) SCC Online 1260; Ganesh Ram v. State of Jharkhand and Ors. 2006 (2) FLR 156 – referred to.