# GOPAL PRASAD v. BIHAR SCHOOL EXAMINATION BOARD AND OTHERS

- **Citation:** [2020] 11 S.C.R. 170
- **Court:** Supreme Court of India
- **Decided:** 2020-05-28
- **Case number:** Civil Appeal No. 8225 of 2012
- **Bench:** Indira Banerjee, Ajay Rastogi
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/gopal-prasad-v-bihar-school-examination-board-and-others-34498
- **Pages:** 30

## Headnote

Bihar Service Code, 1952 - r.73 - Bihar Pension Rules, 1950
- Superannuation - Appellant was an employee of Bihar School
Examination Board - At the time of entry into service, his age was
15 years, 6 months - At that time, the retirement age was 58 years
which was by Board's meeting on 30.03.2005 was extended to 60
years - Under Pension Rules, 1950, the minimum age of the
qualifying service for pension is 18 years - Minimum age for
entering into service under Bihar Service Code, 1952 is not
prescribed - Board in its meeting held on 15.01.2004 took decision
that in case of those who have entered into service prior to attaining
age of 18 years, taking their age as 18 years as on the date of their
appointment, they will be superannuated on completion of 60 years
in case of category 4 and 58 years in case of category 3 - Taking
note of its Resolution dated 15.01.2004, the appellant was informed
that he has completed 42 years of qualifying service which an
employee could render and he stood retired from service after
completing 42 years of qualifying service - Whether a person can
be superannuated prior to his attaining the age of 60 years merely
because he completed 42 years of qualifying service - Held: Per
Ajay Rastogi, J. - From the scheme of Rules, it is clear that
superannuation age prescribed u/r. 73 of the Bihar Service Code,
1952 will apply for retirement purpose and a person cannot be
continued beyond the age of completion of 42 years in service taking
note of Pension Rules, 1950 - It clearly manifest that the government
servant who had completed 42 years of service on attaining the
age of 60 years, both implicit, has to be superannuated in terms of
scheme of Rules - Per Indira Banerjee, J. - A person can only be
retired on attainment of the prescribed age of retirement unless the
rules expressly make length of service a criteria for retirement -
r.73 of the Bihar Service Code does not prescribe any length of
service as criteria for retirement - Decision to retire appellant before
[2020] 11 S.C.R. 170
170
A
B
C
D
E
F
G
H
171
he attained the age of 60 years as per his date of birth as recorded
in the service records thus cannot be sustained - Matter referred to
larger bench in view of difference of opinion - Service Law -
Contract Act, 1872 - s.11 - Majority Act, 1875 - s.3.
Referring the matter to larger Bench, in view of difference
of opinion, the Court
HELD:
Per Ajay Rastogi, J.
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 23rd 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 enter

## Text

_Characters 0–39,768 of 68,595. This is a partial read: ask again with offset=39768 for what follows._

A
B
C
D
E
F
G
H
170
SUPREME COURT REPORTS
[2020] 11 S.C.R.
GOPAL PRASAD
v.
BIHAR SCHOOL EXAMINATION BOARD AND OTHERS
(Civil Appeal No. 8225 of 2012)
MAY 28, 2020
[INDIRA BANERJEE AND AJAY RASTOGI, JJ.]
Bihar Service Code, 1952 - r.73 - Bihar Pension Rules, 1950
- Superannuation - Appellant was an employee of Bihar School
Examination Board - At the time of entry into service, his age was
15 years, 6 months - At that time, the retirement age was 58 years
which was by Board's meeting on 30.03.2005 was extended to 60
years - Under Pension Rules, 1950, the minimum age of the
qualifying service for pension is 18 years - Minimum age for
entering into service under Bihar Service Code, 1952 is not
prescribed - Board in its meeting held on 15.01.2004 took decision
that in case of those who have entered into service prior to attaining
age of 18 years, taking their age as 18 years as on the date of their
appointment, they will be superannuated on completion of 60 years
in case of category 4 and 58 years in case of category 3 - Taking
note of its Resolution dated 15.01.2004, the appellant was informed
that he has completed 42 years of qualifying service which an
employee could render and he stood retired from service after
completing 42 years of qualifying service - Whether a person can
be superannuated prior to his attaining the age of 60 years merely
because he completed 42 years of qualifying service - Held: Per
Ajay Rastogi, J. - From the scheme of Rules, it is clear that
superannuation age prescribed u/r. 73 of the Bihar Service Code,
1952 will apply for retirement purpose and a person cannot be
continued beyond the age of completion of 42 years in service taking
note of Pension Rules, 1950 - It clearly manifest that the government
servant who had completed 42 years of service on attaining the
age of 60 years, both implicit, has to be superannuated in terms of
scheme of Rules - Per Indira Banerjee, J. - A person can only be
retired on attainment of the prescribed age of retirement unless the
rules expressly make length of service a criteria for retirement -
r.73 of the Bihar Service Code does not prescribe any length of
service as criteria for retirement - Decision to retire appellant before
[2020] 11 S.C.R. 170
170
A
B
C
D
E
F
G
H
171
he attained the age of 60 years as per his date of birth as recorded
in the service records thus cannot be sustained - Matter referred to
larger bench in view of difference of opinion - Service Law -
Contract Act, 1872 - s.11 - Majority Act, 1875 - s.3.
Referring the matter to larger Bench, in view of difference
of opinion, the Court
HELD:
Per Ajay Rastogi, J.
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 23rd 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
GOPAL PRASAD v. BIHAR SCHOOL EXAMINATION BOARD
AND OTHERS
A
B
C
D
E
F
G
H
172
SUPREME COURT REPORTS
[2020] 11 S.C.R.
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
A
B
C
D
E
F
G
H
173
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 15th 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
GOPAL PRASAD v. BIHAR SCHOOL EXAMINATION BOARD
AND OTHERS
A
B
C
D
E
F
G
H
174
SUPREME COURT REPORTS
[2020] 11 S.C.R.
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 151⁄2 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
A
B
C
D
E
F
G
H
175
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
GOPAL PRASAD v. BIHAR SCHOOL EXAMINATION BOARD
AND OTHERS
A
B
C
D
E
F
G
H
176
SUPREME COURT REPORTS
[2020] 11 S.C.R.
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.
Case Law Reference
Per Ajay Rastogi, J.:
2006 (1) PLJR 410
approved
Para 8
[2010] 7 SCR 630
referred to
Para 19
Per Indira Banerjee, J.:
2006 (1) PLJR 410
disapproved
Para 21
[1961] SCR 809
referred to
Para 34
(2016) SCC Online 1260
referred to
Para 34
2006 (2) FLR 156
referred to
Para 37
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 8225
of 2012.
From the Judgment and Order dated 03.08.2012 by the High Court
of Judicature at Patna in Letters Patent Appeal No. 1090 of 2012.
Anand Shankar Jha, Arjun Garg, Srikanth S., Manish Kumar, and
Gopal Singh, Advs. for the appearing parties.
A
B
C
D
E
F
G
H
177
The Judgments of the Court were delivered by
RASTOGI, J.
1. The present appeal is directed against the judgment dated
3rd August, 2012 passed by the Division Bench of the High Court of
Judicature at Patna in Letters Patent Appeal No. 1090 of 2012 confirming
the judgment of the Single Bench of the High Court dated 24th April,
2012 upholding that the appellant has rightly been retired from service
on attaining the age of superannuation.
2. The brief facts relevant for the present purpose which manifest
from the record are that the appellant was an employee of Bihar School
Examination Board(hereinafter being referred to as "Board") and was
initially appointed as a Calligraphist cum Assistant vide order dated
20th May, 1970 pursuant to which he joined service on 27th May, 1970.
Although the date of birth of the appellant as per school records was
19th November, 1954 and at the time of entering into service on
27th May, 1970, he was 15 years 6 months and 8 days old. At the time of
his entry into service, the retirement age of the employees of the Board
was 58 years but at a later stage, the age of retirement was extended by
the Government of Bihar from 58 years to 60 years, in consequence the
Board also in its meeting held on 30th March, 2005 decided to extend the
age of retirement of its employees from 58 years to 60 years and pursuant
thereto, the date of compulsory retirement of the Board employee became
the date on which one attained the age of 60 years.
3. Before the matter is examined on merits, it will be apposite to
take note of the material projection of the rules relevant for the purpose.
The services of the State Government employees are governed by Bihar
Service Code, 1952, Bihar Pension Rules, 1950. The age of
superannuation has been prescribed under Rule 73 of the Bihar Service
Code, 1952. At the same time, Rule 57 of the Bihar Pension Rules, 1950
effective from 20th January, 1950 prescribes the qualifying service, and
further amended by Rule 5 of Section IV (Qualifying service) of the
Pension Rules amended with effect from 23rd August, 1950. The rules
relevant for the purpose are extracted hereunder.
Rule 73 of the Bihar Service Code, 1952
"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
GOPAL PRASAD v. BIHAR SCHOOL EXAMINATION BOARD
AND OTHERS
A
B
C
D
E
F
G
H
178
SUPREME COURT REPORTS
[2020] 11 S.C.R.
with the sanction of the State Government on public grounds,
which must be recorded in writing."
Rule 57 of the Bihar Pension Rules, 1950 effective from
20th January, 1950
"For a Government servant in inferior service, qualifying
service, shall not begin until the Government servant concerned
attained the age of 16 years."
Rule 5 of Section IV(Qualifying Service) of the Pension
Rules effective from 23rd August, 1950
"The minimum age after which service for pension is raised
from 16 to 18 years in the case of Government servant belonging
to an inferior service (1) who enters service of the Government
of Bihar, after the date on which this order came into force or
(2) who, having entered such service on or before that date
did not hold a lien or suspended lien on a permanent pensionable
post under the Government of Bihar on that date."
4. The reliance has also been placed by a Government Circular
dated 15th January, 1998 issued by Personnel and Administrative reforms
Department of the State of Bihar.
5. On a careful scanning of the aforesaid provisions, it clearly
manifest that the pension rules were introduced in 1950 and after
amendment was made under Rule 5 of the Pension Rules, 1950 effective
from 23rd August, 1950, the minimum age of the qualifying service for
pension became 18 years. It is not disputed that minimum age for entering
into service under Bihar Service Code, 1952 has not been prescribed but
still there cannot be any entry into service before one has attained the
age of majority, i.e. 18 years as prescribed under the Rules, 1950 unless
there is a specific rule to the contrary. Keeping in view the age of
retirement, as in the instant case is of 60 years, the maximum qualifying
service which one could render would be of 42 years.
6. The Board in its meeting held on 15th January, 2004 took a
decision that those who have entered into service prior to attaining the
age of 18 years, taking their age as 18 years as on the date of their
appointment, they will be superannuated on competition of 60 years in
the case of category-4 and on competition of age of 58 years in the case
of category-3. The extract of the Resolution of the Board meeting held
A
B
C
D
E
F
G
H
179
on 15th January, 2004 placed at Annexure P-2 of the paper book, relevant
for the purpose is extracted hereunder:-
"....
Agenda no. 2
Regarding employees having age less than 18
years appointed in the Committee.
After analysis of the legal advice received in the
light of the judgment taken in the meeting of the
Committee
held
on
18.11.03
about
the
employees having age less than 18 year
appointed in the Committee, Hon'ble Member
Dr. Jitender Singh, Chancellor Patna University,
Patna informed that proceedings should be
initiated in Committee also under the letter No.
1961 dated 12.11.1995 from the Secretary, High
Education Department, Patna. According to the
provision of the said letter, decision was taken
unanimously that employees who have been
appointed in the Bihar Schools Examination
Committee at the age below 18 years, taking
their age at 18 years as on the date of their
appointment,
they
be
superannuated
on
competition of age of 60 years in the case of
Category-4 and on completion of age of 58
years in case of Category-3.
7. Taking note of its resolution dated 15th January, 2004, the
appellant was informed vide communication dated 26th March, 2012 that
he has completed 42 years of qualifying service which an employee
could render and accordingly he stood retired from service on 31st May,
2012 after completing 42 years of qualifying service.
8. The claim of the appellant was that he should be retired from
service on completing 60 years on the basis of his age recorded in the
Board as well as in his service book, i.e., 19th November, 1954. It appears
from the record that the controversy and conflict of opinion of the Division
Bench of the High Court of Bihar was resolved by the Full Bench vide
Judgment dated 5th January, 2005 by the High Court of Patna in the case
of Ragjawa Narayan Mishra and Ors. Vs. Chief Executive Officer,
Bihar Rajya Khadi Gramoudyog Board and Ors.1 which was noticed
by the Single Bench of the High Court and confirmed by the Division
Bench in its impugned judgment while repudiating the claim of the
appellant for continuation in service until he completes the age of 60
years on the basis of his age recorded in the Board, i.e. 19th November,
1954.
GOPAL PRASAD v. BIHAR SCHOOL EXAMINATION BOARD
AND OTHERS [AJAY RASTOGI, J.]
1 2006(1) PLJR 410
A
B
C
D
E
F
G
H
180
SUPREME COURT REPORTS
[2020] 11 S.C.R.
9. Learned counsel for the appellant submits that a person cannot
be superannuated prior to his attaining the age of 60 years merely because
he completes 42 years of qualifying service, in the absence of any such
rule to the contrary. The aforesaid decision was in teeth of Rule 73 of
the Bihar Service Code, 1952 which merely prescribes the age as the
criteria for superannuation. There is no rule prescribing length of service
as a criteria for superannuation and this has not been considered by the
Full Bench which has been relied upon by the High Court in the impugned
judgment in repelling the contention of the appellant.
10. Learned counsel for the respondents, on the other hand, while
supporting the findings recorded by the Division Bench of the High Court
in the impugned judgment submits that there was difference of opinion
between the two Division Benches of the High Court and that has been
resolved by the Full Bench in Ragjawa Narayan Mishra and Ors.
case (supra) and this has been followed consistently by the High Court
and further submits that the entry into public employment could not be
offered before one attains the age of majority i.e. 18 years as per Section
3 of The Majority Act, 1875, the age of superannuation would be 58
years/60 years, as the case may be, the total service which logically one
could render may not exceed in any case beyond 40/42 years of service
and this what has been resolved by the Board in its meeting held on 15th
January, 2004 and this was never the subject matter of challenge even
by the appellant when he was communicated by letter dated 26th March,
2012 that he would be attaining the age of superannuation on 31st May,
2012 on completing 42 years of service.
11. Learned counsel further submits that Rule 73 of the Bihar
Service Code, 1952 read with Rule 57 of the Bihar Pension Rules, 1950
and Rule 5 of Section IV of the Pension Rules makes it clear that there
could not be any entry in the Government service before the person
attains the age of 18 years even in the year 1970 when the appellant
was appointed and if the age at the entry level and the exit level has
been prescribed by the rule making authority, by no stretch, one could go
ahead more than 40/42 years of service. In the given circumstances,
when the appellant indisputedly had completed 42 years of service in
May 2012, the decision of the respondent to retire him on superannuation
cannot be said to be faulted with and it may not be revisited at this stage
more so when it has been consistently followed by the High Court for
almost more than one and half decade and needs no interference.
A
B
C
D
E
F
G
H
181
12. The provisions of the aforesaid statutory rules which has been
referred to supra envisage that the Government, by virtue of an
amendment inserted rule 5 to the Bihar Pension Rules which came into
effect w.e.f. 23rd August, 1950, much before the appellant entered into
service of the Board, the qualifying age of a Government servant for
consideration of pensionary benefits came to be 18 years in the
Government service which came to be clarified by the Government by
its order dated 15th January, 1998 making its intention clear to all its
subordinates that 18 years shall be the age of Government servant
entering into service.
13. 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 be 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.
"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."
14. The provision 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 which is as under:-
"3. Age of Majority of persons domiciled in India-(1) Every
person domiciled in India shall attain the age of majority on his
completing the age of eighteen years and not before.
(2) In computing the age of any person, the date on which he was
born is to be included as a whole day and he shall be deemed to
have attained majority at the beginning of the eighteenth
anniversary of that day."
15. 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
GOPAL PRASAD v. BIHAR SCHOOL EXAMINATION BOARD
AND OTHERS [AJAY RASTOGI, J.]
A
B
C
D
E
F
G
H
182
SUPREME COURT REPORTS
[2020] 11 S.C.R.
service of Government servant which was raised to 18 years by an
amendment made effective from 23rd 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. That apart, if the age at the entry
level is left open ended, the minor of whatever age, can seek his eligibility
for public employment leaving no lifetime of service one could render
which is manifestly illogical and can never be the intention of the rule
making authority.
16. Admittedly, in the instant 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 and this what has been considered
by the Full Bench of the Patna High Court which was relied upon by the
single Judge of the High Court while repudiating claim of the appellant in
Ragjawa Narayan Mishra and Ors. (supra) as follows:-
"16. Be that as it may, one thing is certain that admittedly both the
petitioners when they entered into the contract with the respondent
Board they had not attained the age of majority. Apart from its
legal impact and effect, the ramifications and end result on the
status of a contract, in terms of the service relationship, a person
could be said to have entered into a valid service, only, when he
has attained the age of majority. So the minimum age prescribed
at the entry point in the Government service has been 18 years.
The maximum age prescribed for the exit point is 58 years. In
other words, the total length of period of Government service in
any case for pensionary benefits would not exceed 40 years. It is
in this context, the Government Circular mentioned herein above
needs to be considered. When there is a clear Rule provision
anything contrary to or inconsistent with or incompatible to it, any
circular or resolution or order, will not have any legal and valid
A
B
C
D
E
F
G
H
183
effect to abridge the right enshrined in the Rule Provision. Even if
the said circular of 1998 as relied upon by the petitioners is
considered to be beneficial to them then, also, it cannot be read at
this juncture with the existing statutory provision incorporated in
the Bihar Pension Rules, as well as, the Bihar Service Code.
Therefore, from that point of view also the petitioners cannot be
allowed to contend that they have right to continue even beyond
the age of 58 years though provided in Rule 73 of the Bihar Service
Code which prescribes the superannuation age of 58 years.
17. Thirdly, it is settled and established proposition of law and
principles of jurisprudence that a person who takes undue
advantage by one or other reasons at the entry point in the service
cannot be allowed to urge that he be given higher benefit and if it
Is urged then clearly, it goes to show that something wrong or
irregular has been done, at the entry point, in service. So the settled
principle, also, creates a very strong impediment in getting the
relief from this Court which is exercising extraordinary,
prerogative, equitable and discretionary writ jurisdiction by
invocation of the provision of Article 226 of the Constitution of
India.
18. 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 evidence 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."
17. One view has been expressed by the full Bench of the Patna
High Court of which the reference has been made, the other view of the
prospect which has been referred to by the Jharkhand High Court of
which a reference has been made by the appellant in the appeal but
what persuaded me further is that the judgment of the Full Bench of the
GOPAL PRASAD v. BIHAR SCHOOL EXAMINATION BOARD
AND OTHERS [AJAY RASTOGI, J.]
A
B
C
D
E
F
G
H
184
SUPREME COURT REPORTS
[2020] 11 S.C.R.
Patna High Court dated 5th December, 2005 at least in the State of
Bihar has been consistently followed for almost a decade and a half and
learned Single Judge/Division Bench has passed several orders placing
reliance on the Full Bench of the Patna High Court. The view which has
been expressed is one of the plausible view and, in my view, it would not
be advisable to overturn only for the reason that the view expressed by
the Jharkhand High Court appears to be more plausible in appreciating
the scheme of statutory rules of which a reference has been made.
18. 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. It clearly manifests that the Government servant who had
completed 42 years of service on attaining the age of 60 years, both
implicit, has to be superannuated in terms of the scheme of Rules and
this what has been considered by the Full Bench of the High Court in the
judgment which has been relied by the High Court of Patna in the
impugned judgment.
19. A two Judge Bench of this Court in Nagaland Senior
Government Employees Welfare Association and Others Vs. State
of Nagaland and Others 2010 (7) SCC 643 had an occasion to examine
the validity of Section 3 of the Public Employment Act, 1991 as amended
by the Public Employment(Amendment) Act, 2007 which was substituted
by the following provision:-
"3. (1) Notwithstanding anything contained in any rule or orders
for the time being in force, a person in public employment shall
hold office for a term of 35 years from the date of joining public
employment or until he attains the age of 60 years, whichever is
earlier.
(2) A person under public employment shall retire on the afternoon
of the last day of the month in which he attains the age of 60
years, or in which he completes 35 years of public employment,
whichever is earlier."
A
B
C
D
E
F
G
H
185
This Court further held that fixation of maximum length of service
as an alternative criterion for retirement from public service, by no stretch
of imagination, can be held to be violative of any recognized norms of
employment planning. Para 40 is extracted hereunder:-
"40. We are afraid, K. Nagaraj case [(1985) 1 SCC 523 instead
of helping the appellants, rather supports the stand of the State.
Fixation of maximum length of service as an alternative criterion
for retirement from public service, by no stretch of imagination,
can be held to be violative of any recognised norms of employment
planning. There may be a large number of compelling reasons
that may necessitate the Government (or for that matter the
legislature) to prescribe the rule of retirement from the government
service on completion of specified years. If the reasons are
germane to the object sought to be achieved, such provision can
hardly be faulted."
20. 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 take
us 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.
21. Thus, under the existing scheme of Rules, the qualifying service
which one could render in any manner would not exceed 42 years and
this what has been clarified by the Government by its circular dated 15th
January, 1998 and that was taken note of by the Board in its meeting
held on 15th January, 2004 which was not the subject matter of challenge
and the appellant was communicated of retirement on attaining full
employment of 42 years rendered on 31st May, 2012, which, in my opinion,
could not be said to be in contravention to the scheme of rules.
22. The appeal is without substance and is accordingly dismissed.
23. Pending application(s), if any, stand disposed of.
GOPAL PRASAD v. BIHAR SCHOOL EXAMINATION BOARD
AND OTHERS [AJAY RASTOGI, J.]
A
B
C
D
E
F
G
H
186
SUPREME COURT REPORTS
[2020] 11 S.C.R.
INDIRA BANERJEE, J.
1. I have gone through the draft judgment prepared by my
esteemed brother, but have unfortunately not been able to agree that the
appeal should be dismissed.
2. The appeal is against an order dated 3.8.2012, passed by a
Division Bench of the High Court of Judicature at Patna, dismissing
Letters Patent Appeal No.1090 of 2012 and affirming the order of the
Single Bench dated 24.4.2017 dismissing the Writ Petition CWJC No.
7718 of 2012, filed by the Appellant.
3. The Appellant was appointed as Calligraphist-cum-Assistant
of the Bihar School Examination Board on 20th May 1970, at about 151⁄2
years of age. It is not in dispute, that on the date of appointment of the
Appellant, that is, 20th May 1970 there was no minimum age prescribed
for appointment to the post of Calligraphist-cum-Assistant. However,
the minimum age of entry into pensionable service was 16 years. This
meant that the period of service of an employee before attaining the age
of 16 years, would not count towards pension.
4. By a 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.
5. 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."
6. 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.
7. The relevant extract of the resolution, as translated in English,
is extracted hereinbelow for convenience:-
A
B
C
D
E
F
G
H
187
GOPAL PRASAD v. BIHAR SCHOOL EXAMINATION BOARD
AND OTHERS [INDIRA BANERJEE, J.]
"Today dated 15th January, 2004 meeting of Board of Bihar
Schools Examination Committee held in the Room of the
Chairman. In which Dr. Jitender Singh, Chancellor, Patna
University, Patna and Shri Subhash Chander Chaudhary,
Assistant Teacher, C.M. High School, Siwan participated as
Members in addition to the Chairman.
Proceedings
Agenda No.