Holding

Superannuation must occur on attainment of the age prescribed in Rule 73 of the Bihar Service Code, 1952; length of service alone cannot be a ground for retirement unless expressly provided by the rules.

Summary

Gopal Prasad, appointed as Calligraphist‑cum‑Assistant of the Bihar School Examination Board in May 1970 at the age of 15½, was retired in May 2012 on the ground that he had completed 42 years of qualifying service, despite the statutory retirement age being 60 years. The Board had earlier resolved in 2004 to treat the age of employees who joined before 18 as 18 for the purpose of superannuation, thereby retiring them on completion of 60 years of age or 42 years of service. The appellant contended that retirement should occur only on attaining the prescribed age of superannuation under Rule 73 of the Bihar Service Code, 1952, and that length of service is not a retirement criterion. The Supreme Court examined the scheme of Rule 73, the Bihar Pension Rules, 1950, the Majority Act, 1875 and the Indian Contract Act, 1872, and held that the statutory provision expressly fixes age as the sole criterion for superannuation. The Court rejected the Board's resolution and the 1998 circular as having no power to alter the statutory retirement age. Consequently, the appellant was entitled to continue in service until he turned 60 on 19 November 2014. The appeal was allowed and the orders of the High Court set aside.

Issues considered

Whether a government employee who entered service before attaining the age of 18 can be superannuated before reaching the statutory retirement age solely on the basis of completing 42 years of qualifying service.
Whether Rule 73 of the Bihar Service Code, 1952, prescribes age as the exclusive criterion for superannuation and precludes retirement on length of service.
Whether the Board's 2004 resolution and the 1998 Government circular can validly modify the retirement age prescribed in the Service Code.
Whether the contract of service entered into by a minor becomes enforceable upon attaining majority for the purpose of superannuation.

Legislation cited

Subjects

superannuationretirement agelength of serviceBihar Service CodeBihar Pension Rulescontract of servicemajoritystatutory interpretationcivil service law

Judgment

170 [2020]REPORTS
SUPREME COURT 11 S.C.R. 170 [2020] 11 S.C.R.

A GOPAL PRASAD
v.
BIHAR SCHOOL EXAMINATION BOARD AND OTHERS
(Civil Appeal No. 8225 of 2012)
B 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
C
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
D 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
E
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
F 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
G
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
H service as criteria for retirement – Decision to retire appellant before
170
GOPAL PRASAD v. BIHAR SCHOOL EXAMINATION BOARD 171
AND OTHERS

he attained the age of 60 years as per his date of birth as recorded A
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 B
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 C
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 D
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 E
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 F
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 G
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
H
172 SUPREME COURT REPORTS [2020] 11 S.C.R.

A 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
B
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
C 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
D
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
E 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
F 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.:
G
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
H
GOPAL PRASAD v. BIHAR SCHOOL EXAMINATION BOARD 173
AND OTHERS

at 18 years, which was issued almost 18 years after the A
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 B
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 C
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 D
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; E
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 F
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 G
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
H
174 SUPREME COURT REPORTS [2020] 11 S.C.R.

A 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]
B 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
C 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]
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
E 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
F 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
G 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

H
GOPAL PRASAD v. BIHAR SCHOOL EXAMINATION BOARD 175
AND OTHERS

have been ratified by the employees concerned, on attaining A
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 B
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, C
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] D
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 E
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 F
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 G
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

H
176 SUPREME COURT REPORTS [2020] 11 S.C.R.

A 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]
B
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
C 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
D Per Ajay Rastogi, J.:
2006 (1) PLJR 410 approved Para 8
[2010] 7 SCR 630 referred to Para 19
Per Indira Banerjee, J.:
E 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
F
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.
G Anand Shankar Jha, Arjun Garg, Srikanth S., Manish Kumar, and
Gopal Singh, Advs. for the appearing parties.

H
GOPAL PRASAD v. BIHAR SCHOOL EXAMINATION BOARD 177
AND OTHERS

The Judgments of the Court were delivered by A
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 24 th April, B
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 C
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
19 th 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 D
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 E
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 F
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 G
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 H
178 SUPREME COURT REPORTS [2020] 11 S.C.R.

A 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
B 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

C “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
D 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
E
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
F 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.
G 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
H
GOPAL PRASAD v. BIHAR SCHOOL EXAMINATION BOARD 179
AND OTHERS [AJAY RASTOGI, J.]

on 15th January, 2004 placed at Annexure P-2 of the paper book, relevant A
for the purpose is extracted hereunder:-
“….
Agenda no. 2
Regarding employees having age less than 18 After analysis of the legal advice received in the
years appointed in the Committee. light of the judgment taken in the meeting of the B
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 C
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.
D

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 31 st May,
2012 after completing 42 years of qualifying service. E

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 F
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 G
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.

1
2006(1) PLJR 410 H
180 SUPREME COURT REPORTS [2020] 11 S.C.R.

A 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
B
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
C 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
D 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
E 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
F 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
G 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.
H
GOPAL PRASAD v. BIHAR SCHOOL EXAMINATION BOARD 181
AND OTHERS [AJAY RASTOGI, J.]

12. The provisions of the aforesaid statutory rules which has been A
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
B
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 C
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 D
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 E
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. F
(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.”
G
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 H
182 SUPREME COURT REPORTS [2020] 11 S.C.R.

A 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
B
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
C 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
D 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
E 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
F 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
G 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
H
GOPAL PRASAD v. BIHAR SCHOOL EXAMINATION BOARD 183
AND OTHERS [AJAY RASTOGI, J.]

effect to abridge the right enshrined in the Rule Provision. Even if A
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
B
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 C
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, D
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 E
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 F
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.” G
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 H
184 SUPREME COURT REPORTS [2020] 11 S.C.R.

A 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
B
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
C 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
D 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.
E 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:-
F
“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.
G
(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.”

H
GOPAL PRASAD v. BIHAR SCHOOL EXAMINATION BOARD 185
AND OTHERS [AJAY RASTOGI, J.]

This Court further held that fixation of maximum length of service A
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. B
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 C
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 D
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 E
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 F
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. G
23. Pending application(s), if any, stand disposed of.

H
186 SUPREME COURT REPORTS [2020] 11 S.C.R.

A 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
B 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
C of the Bihar School Examination Board on 20th May 1970, at about 15½
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
D 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
E 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
F 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.”
G
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,
H is extracted hereinbelow for convenience:-
GOPAL PRASAD v. BIHAR SCHOOL EXAMINATION BOARD 187
AND OTHERS [INDIRA BANERJEE, J.]

“Today dated 15th January, 2004 meeting of Board of Bihar A
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.
B
Proceedings
Agenda No. 1 : …………
Agenda No.2 :
Regarding employees having After analysis of the legal advice received in the C
age less than 18 years light of the judgment taken in the meeting of the
appointed in t he Committee Committee held on 18.11.2003 about the
employees having age less than 18 years
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 D
No.1961 dated 12.11.1995 from the Secretary,
Higher Education Depart ment, Bihar 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
E
completion of age of 60 years in the case of
Category-4 and on completion of age of 58 years
in case of Category-3.

8. On a bare reading of the said resolution, it is patently clear that
employees who had been appointed before attaining the age of 18 years, F
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. G

9. The resolution may not have perfectly been worded. In my
view, 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.
H
188 SUPREME COURT REPORTS [2020] 11 S.C.R.

A 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
B
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.
C 10. If it were the intent of the resolution, that employees appointed
before attaining the age of 18 years, would retire before attaining the
actual age of retirement, as per Rule 73 of the Bihar Service Code, the
language and/or wording of the resolution would have been different.
The resolution would then have expressly stated that, the date of birth of
D employees, appointed before attaining the age of 18 years, would, for
the purpose of retirement, be deemed to be the date on which the
concerned employee would have been born, if he/she were to complete
18 years of age on the date of appointment. The Resolution would clearly
have stated that such employees would retire on attaining the age of
retirement prescribed in the Bihar Service Code on the basis of their
E deemed date of birth, notwithstanding the fact that they may not have
attained the age of retirement as per the Bihar Service Code as per their
date of birth as recorded by the Bihar School Examination Board.
11. As observed above the date of retirement of the employees of
the Bihar School Examination Board is governed by Rule 73 of the Bihar
F Service Code. No decision to decrease the age of retirement of
employees who had joined service before attaining the age of 18 years,
could in my view, 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
G resolution of the Bihar School Examination Board.
12. On 14th February 2004 an Office Order was issued to the
Appellant, the contents of which, as translated, are extracted
hereinbelow:-
“Shri Gopal Prasad, Assistant got appointment in Bihar School
H Examination Committee in the age less than 18 years, The
GOPAL PRASAD v. BIHAR SCHOOL EXAMINATION BOARD 189
AND OTHERS [INDIRA BANERJEE, J.]

minimum age for appointment in service in any of the Government A
(Semi-Government) Autonomous Institutions has been prescribed
at 18 years. Decision has been taken in the meeting of the Bihar
Schools Examination Committee held on 15.01.2004 that taking
their age at 18 years as on the date of their appointment, they be
superannuated on completion of age of 60 years in the case of
B
Category-4 and on completion of age of 58 years in case of
Category-3.
Therefore, treating the age of Shri Gopal Prasad, Assistant at
18 years as on the date of his appointment i.e. 27.05.1970, as per
the directions, orders are issued to record his date of retirement in
Service books as 31.05.2010.” C

13. The order dated 14th February 2004 in so far as the same
purports to record the date of retirement of the Appellant as 31st May
2010 in his Service Book, is contrary to Rule 73 of the Bihar Service
Code and also beyond the scope and ambit of the resolution taken on
15th January 2004. Any prescription of minimum age for appointment, D
subsequent to the appointment of the Appellant, could not retrospectively
be applied to the Appellant.
14. From the pleadings filed in connection with this appeal, it is
not clear whether the Appellant objected to the said Office Order dated
14th February 2004. In any case, an office order which is patently illegal E
and entails adverse civil consequence is not precluded from challenge
on the ground that the aggrieved employee may not have objected to the
office order, and more so, when the legality of similar orders was awaiting
adjudication in Courts of law. There were various writ petitions pending
in the High Court, on the question of whether persons who had joined F
service before attaining the age of 18 years could unilaterally be retired
before they actually attained the age of retirement stipulated in Rule 73
of the Bihar Service Rules, because they were to be deemed to have
completed 18 years of age on the date of their appointment. It is also a
matter of record that many of these writ petitions were decided in favour
of the employees, instances of which have been given later in this G
judgment.
15. It is not in dispute that the Appellant’s date of birth is 19 th
November 1954 as per the records of the Bihar School Examination
Board. It is nobody’s case that the date of birth of the Appellant as
recorded, that is 19th November 1954, is not his correct date of birth. H
190 SUPREME COURT REPORTS [2020] 11 S.C.R.

A 16. The Appellant’s date of birth being 19th November 1954 he
was to complete 58 years of age on 19th November 2012. The age of
retirement was, however increased to 60 from 58 years, before
18th November 2012. The Appellant’s date of birth being 19th November
1954, he was to complete sixty years of age on 18th November 2014.
B 17. As observed above, long before the Appellant was appointed
in service of the Bihar School Examination Board, Rule 5 in Appendix-5
of the Bihar Pension Rules was amended. The qualifying age of
government servants for consideration of pensionary benefits was raised
from 16 to 18 years. Governmental authorities, however, continued to
appoint employees who had not attained eighteen years of age.
C
18. On or about 16th February 2012, the Appellant’s son filed an
application under the Right to Information Act, enquiring about the date
of superannuation fixed by the Board for his father’s retirement.
19. By a letter dated 26th March 2012 the Board informed the
D Appellant’s son that in view of the decision dated 14th February 2004,
the Appellant’s age as on 27th May, 1970 was to be considered 18 years
and therefore his retirement was to be on 31st May 2010, on completion
of 58 years, which age had later been increased to completion of 60
years. The date of retirement would therefore be 31st May 2012.

E 20. Thereafter, the Appellant filed the writ petition CWJC No.7718
of 2012 in the High Court of Patna challenging the communication dated
20th March 2012 under the Right to Information Act and also the order
dated 14th February 2004.
21. By an order dated 24th April 2012, the Single Bench dismissed
F the writ petition, relying upon the Full Bench judgment of the Patna High
Court In Ragjawa Narayan Mishra and Another vs. Chief Executive
Officer, Bihar Rajya Khadi Gramoudyog Board and Ors.1. The Full
Bench of Patna High Court had held:-
“16. Be that as it may, one thing is certain that admittedly
both the petitioners when they entered into the contract with
G
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
1
H 2006 (1) PLJR 410
GOPAL PRASAD v. BIHAR SCHOOL EXAMINATION BOARD 191
AND OTHERS [INDIRA BANERJEE, J.]

valid service, only, when he has attained the age of majority. A
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
B
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 effect to abridge the right enshrined in the Rule
Provision. Even if the said circular of 1998 as relied upon by C
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
D
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 E
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 F
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 G
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
H
192 SUPREME COURT REPORTS [2020] 11 S.C.R.

A 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
B
referred to hereinbefore, shall not be a good law.”
22. 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
C 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 hypothesis
of appointment of a toddler is far fetched and unrealistic. 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
D 1998 which fixes 18 years as the minimum age of retirement. The circular
would govern subsequent appointments.
23. It may be true that a minor is incompetent to enter into a
contract, as observed by my esteemed brother. A contract may not be
enforceable against a minor. A contract executed by a minor may be
E voidable at the option of the minor. The minor may, on attaining majority,
repudiate or ratify and accept the contract.
24. 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
F 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. It cannot,
also be said, that an employee appointed when he was 15½ years old,
attained any undue advantage, when there was no minimum age for
G appointment at the material time.
25. The learned Single Judge dismissed the writ petition relying
on the decision of the Full Bench in Ragjawa Narayan Mishra (supra),
and the Division Bench dismissed the appeal from the decision of the
learned Single Judge. The learned Single Bench, as well as the learned
H
GOPAL PRASAD v. BIHAR SCHOOL EXAMINATION BOARD 193
AND OTHERS [INDIRA BANERJEE, J.]

Division Bench, had no option but to follow Ragjawa Narayan Mishra A
(supra), since judicial discipline required the Benches of lesser strength
to follow the decision of the Full Bench.
26. In my view, the interpretation of the Full Bench of Rule 73 of
the Bihar Service Code in Ragjawa Narayan Mishra (supra) is
misconceived and erroneous. Counsel appearing on behalf of the B
Appellant has rightly argued that there is no rule which prescribes the
length of service as a criteria for superannuation. Neither Rule 73 of the
Bihar School Code, nor Rule 57 of the Bihar Pension Rules, 1950
prescribed any limit to the length of service.
27. The Full Bench fell in error in proceeding on the basis of the C
length of service, when Rule 73 of the Bihar Service Code prescribes a
specific age of superannuation. As argued on behalf of the Appellant,
Rule 73 of the Bihar Service Code prescribes an age of retirement. The
said Rule does not make length of service a criteria for retirement.
28. The raising of the minimum qualifying age of the government D
servant for pensionable service, from 16 to 18 years, meant that if an
employee entered service before attaining the age of 18 years, the period
of service from the actual date of appointment till attainment of the
qualifying age for pensionable service, would not count for the purpose
of computation of pension/pensionary benefits.
E
29. In Ragjawa Narayan Mishra (supra), 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 F
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 G
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.
30. The finding of the Full Bench in Ragjawa Narayan Mishra
(surpa), that the superannuation age prescribed in Rule 73 of the Bihar
Service Code would apply for retirement purpose and a person could
H
194 SUPREME COURT REPORTS [2020] 11 S.C.R.

A 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 competion 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
B
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.
C 31. With the greatest of respect to the Full Bench, I am unable to
agree that Rule 5 in Appendix-5 of the Bihar Pension Rules prescribing
the qualifying age of the government servant for consideration of
pensionary benefits and/or raising of such age from 16 years to 18 years
makes any difference to the age of retirement prescribed under the
D Rule 73 of the Bihar Service Code.
32. 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
E qualifying service of pension.
33. 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
F cannot be forced to retire before attaining that age except on grounds
provided in Service Rules. For example, an employee may prematurely
be retired by way of disciplinary action, if the rules so provide.
34. When the age of retirement is governed by express rules,
which do not prescribe length of service as a criteria of retirement, but
G provide for retirement upon attainment of age, an employee cannot be
made to retire before attaining that age of retirement, only because he/
she has served for a certain length of time, by a convoluted process of
logical reasoning. My judicial conscience, also does not permit me to
uphold the judgment under appeal, only because the High Court has, for
a while, followed the Full Bench decision of that Court which has held
H
GOPAL PRASAD v. BIHAR SCHOOL EXAMINATION BOARD 195
AND OTHERS [INDIRA BANERJEE, J.]

the field for a while. The Full Bench decision was, in my opinion, A
erroneous. This Court has time and again reversed its own decisions
including those of Constitutional Benches, which have held the field for
decades. To cite an example, the Constitution Bench Judgment of this
Court in Atiabari Tea Co. Ltd. v. State of Assam2 which held the field
for almost half century was overruled by a judgment of nine-Judge Bench
B
judgment n Jindal Stainless Ltd v. State of Haryana3. I see no reason
why the judgment and order impugned should not be set aside.
35. The issues of whether a government servant could be
superannuated from service on completion of 40 years of service even
in the absence of any such rule, taking aid of Rule 73 of the Bihar Service
Code, which only prescribed the age of superannuation and whether C
after completion of 40 years of service, a person could be retired from
service, treating his age as 18 years at the time of entry in service, were
considered by a Division Bench of the High Court of Jharkhand presided
over by S.J. Mukhopadhaya, J. in Ganesh Ram vs. State of Jharkhand
and Ors. numbered W.P.(S) No.1210 of 2003, reported in 2006(2) FLR D
156 in the context of Rule 73 of the Bihar Service Code. The Bihar
Service Code is applicable in the State of Jharkhand created pursuant to
the Bihar Reorganization Act, 2000, and comprising areas that were
earlier in the State of Bihar. The issues were answered in the negative
in favour of the employees and against the State of Jharkhand and others.
A copy of the judgment in Ganesh Ram (supra) is also annexed to the E
Paper Book as Annexure P-5.
36. In Ganesh Ram (supra) the Court found, and rightly, that
there was no common minimum age of 18 years prescribed by the State
of Bihar for appointment to service of the State, or in the State of
Jharkhand. The minimum eligibility age varied from job to job. The Court F
observed and held:-
“7…..The definition of ‘employee’, as laid down under Section
2(i) of the Act, means any person, who is employed for hire
or reward or to do any work, skilled or unskilled, etc. and
also includes an employee, employed by the appropriate G
Government i.e. State Government or Central Government.
Clause (a) to Section 2 defines “adolescent” means a person,
who has completed his fourteenth year of age but has been
2
AIR 1961 SC 232
3
2016 SCC Online 1260 decided on 11.11.2016 H
196 SUPREME COURT REPORTS [2020] 11 S.C.R.

A completed his eighteenth year. “Adult” has been defined under
Clause (aa) of Section 2, which means a person, who has
completed his eighteenth year of age and “child”, as defined
under Clause (bb) of Section 2, means a person, who has not
completed his fourteenth year of age. Section 3 of Minimum
Wages Act, 1948 while prescribes the manner in which the
B
appropriate Government will fix the minimum rates of wages,
under Sub-section (3) appropriate Government is empowered
to fix different minimum rates of wages for “adults”,
“adolescent”, “children” and “apprentices”. This simply
shows that even in the Government employment, an
C “adolescent”, though minor, can be appointed for whom
different wages may be fixed.”
The High Court further noted:-
“8. The State of Bihar has issued Police Order No. 209-82,
circulated vide Memo No. 6568/P2/43-271-88, dated 11th
D August, 1988. This Police Order is also applicable in the State
of Jharkhand, in view of Section 84 of the Bihar
Reorganization Act, 2000. As per this Order, in every distinct,
out of the sanctioned strength of police force, two posts can
be reserved in which dependent children of police force, below
E 18 years of age, can be appointed on compassionate ground,
if the police personnel dies while on duty. Those children, so
appointed, are commonly known “as Bal-Arakshi” and are
paid minimum of the scale of pay of the post, without annual
increment, till they attain majority. It is only on attaining
majority, if the “Bal-Arakshi” so wishes and is qualified, they
F are appointed as Constable against such posts. The children,
on appointment, are provided with two half-pants, two shirts
two-sets of socks, one pair of shoes etc. This simply goes to
show that there is no bar on appointment of a minor in the
services of the State.”
G 37. Of Course, as noted in the judgment in Ganesh Ram (supra)
after the enactment and enforcement of the Child Labour (Prohibition
and Regulation) Act, 1986 employment of a child which means a person
who has not completed 14 years of age is prohibited for certain types of
work. However, the said Child Labour (Prohibition and Regulation) Act,
H 1986 is of no application in this case, because the petitioner was appointed
GOPAL PRASAD v. BIHAR SCHOOL EXAMINATION BOARD 197
AND OTHERS [INDIRA BANERJEE, J.]

long before the enactment and enforcement of the said Act and in any A
case he was above 14 years of age at the time of appointment.
38. The issue of whether an employee could be made to retire
before completion of actual age of retirement as prescribed in Rule 73
of the Bihar Service Code on the basis of a deemed age was answered
in the negative, against an employer and in favour of the employee in the B
following cases referred to in Ganesh Ram (supra):-
1. Mokhtar Ahmad v. B.S.R.T.C. and Ors. (1995(1) PLJR
183(DB)
2. Mantu v. C.C.L. (2001 (1) JCR 181)
C
3. Kalanand Jha v. State of Jharkhand and Ors. (2001 (3)
JCR 228)
4. Balkeshwar v. Central Coalfields Ltd. (2002 (1) JCR 175
5. Pranadhar Prasad v. State of Jharkhand and Ors. (MANU/
JH/1137/2002. D
39. I am of the view that the law has correctly been interpreted
by the Division Bench of the High Court of Jharkhand in Ganesh Ram
(supra). A person can only be retired on attainment of the prescribed
age of retirement unless the rules expressly make length of service a
criteria of retirement, as in the case of employees of the Bihar State E
Electricity Board, governed by Notification dated 9th September 1997,
issued under Section 79 (c) of the Electricity Supply Act, 1948, under
which the date of superannuation prescribed was completion of 60 years
of age or completion of 42 years of service, whichever is earlier.
40. The judgment in Nagaland Senior Government Employees F
Welfare Association and others (supra) referred to by my esteemed
brother is in my view clearly distinguishable.
39. In the aforesaid case the applicable Rules expressly made
completion of the length of service prescribed, a criteria for retirement.
41. This Court upheld the validity of Section 3 of the Nagaland G
Retirement from Public Employment Act, 1991 which provided:-
“S.-3. Retirement from public employment: (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 thirty-three years from the date of H
198 SUPREME COURT REPORTS [2020] 11 S.C.R.

A his joining public employment or until he attains the age of
fifty-seven years whichever is earlier :
Provided that in special circumstances, a person under public
employment may be granted extension by the State Government
upto a maximum of one year;
B Provided further that the Government may have the cases of
all persons under public employment screened from time to
time to determine their suitability for continuation in public
employment after the attainment of the age of fifty years.
(2) All persons under public employment shall retire on the
C afternoon of the last day of the month in which he attains the
age of fifty-seven years or on completion of thirty-three years
of public employment whichever is earlier.”
42. By the Nagaland Retirement from Public Employment
(Amendment) Act, 2007 (the First Amendment Act, 2007) the age of
retirement was enhanced to 60 years from 57 years. By the Nagaland
D Retirement from Public Employment (Second Amendment) Act, 2009
(the Second Amendment Act, 2009) the length of service of the State
Government employees was increased to 35 years instead of 33 years.
This Court held :-
“a provision such as that at issue which prescribes retiring the
E persons from public employment in the State of Nagaland on
completion of 35 years’ service from the date of joining or until
attaining the age of 60 years, whichever is earlier, does not suffer
from the vice of arbitrariness or irrationality and is not violative of
Articles 14 and 16 of the Constitution. The appeal has no merit
and is dismissed with no order as to costs.”
F
43. As observed above, in this case Rule 73 of the Bihar Service
Code does not prescribe any length of service as criteria for retirement.
The prescribed age of retirement for employees of the category to which
the Appellant belonged was 58 years, later increased to 60 years. The
decision of the respondents to retire the Appellant before he attained the
G age of 60 years as per his actual date of birth, as recorded in the service
records cannot be sustained.
44. I am of the view that the appeal should be allowed and the
judgment and order of the Division Bench and the Single Bench be set
aside. The Appellant is entitled to a declaration that the Appellant was
H entitled to continue in service till 18th November 2014, being the date on
GOPAL PRASAD v. BIHAR SCHOOL EXAMINATION BOARD 199
AND OTHERS [INDIRA BANERJEE, J.]

which he completed 60 years of age, as per his service records, and A
shall be entitled to all consequential benefits including arrears of pay, if
any, pensionary benefits etc.
45. Since we have not agreed, let the matter be placed before
Hon’ble the Chief Justice of India for assignment to a larger Bench.
B
Devika Gujral Matter referred to larger Bench.

C

D

E

F

G

H