LEGAL ISSUE: Whether an employee who joined service as a minor should be retired based on a deemed age of 18 years at the time of joining, or on their actual date of birth.
CASE TYPE: Service Law
Case Name: Gopal Prasad vs. Bihar School Examination Board & Others
Judgment Date: 28 May 2020
Introduction
Date of the Judgment: 28 May 2020
Citation: 2020 INSC 416
Judges: Justice Indira Banerjee and Justice Ajay Rastogi (Divergent Opinion)
Can an employee be forced to retire before reaching the standard retirement age, simply because they joined service as a minor? The Supreme Court of India recently grappled with this question in a case involving an employee of the Bihar School Examination Board. This case highlights a conflict between the rules governing retirement age and the practical realities of employment, particularly for those who began their careers at a young age. The core issue revolves around whether an employee’s retirement should be based on their actual date of birth or a deemed date of birth calculated from when they would have been 18 years old at the time of joining service.
The judgment was delivered by a two-judge bench comprising Justice Indira Banerjee and Justice Ajay Rastogi. However, the two judges had a divergent opinion. Justice Banerjee authored a dissenting opinion, disagreeing with the dismissal of the appeal and advocating for the employee’s right to continue service until his actual retirement age. Justice Rastogi, on the other hand, upheld the High Court’s decision to retire the employee based on a deemed age.
Case Background
Gopal Prasad, the appellant, was appointed as a Calligraphist-cum-Assistant at the Bihar School Examination Board on 20 May 1970. At the time of his appointment, he was approximately 15 and a half years old. There was no minimum age prescribed for the post at the time of his appointment. However, the minimum age to enter pensionable service was 16 years, meaning that any service before the age of 16 would not count towards pension benefits.
Later, a government circular dated 15 January 1998, set the minimum age for appointment to an inferior service under the Government of Bihar at 18 years. This circular was prospective and did not apply to appointments made before its issuance. The service conditions of the employees of the Bihar School Examination Board are governed by the Bihar Service Code. Rule 73 of the Bihar Service Code states that the retirement age for a government servant is 58 years, which can be extended by the State Government on public grounds.
On 15 January 2004, the Bihar School Examination Board resolved that for employees who were below 18 years of age at the time of joining service, their age would be considered 18 years at the time of their appointment. This resolution meant that these employees would be superannuated on completion of 60 years of age for Category-4 employees and 58 years for Category-3 employees. The retirement age was later increased to 60 years for all employees.
Based on this resolution, an office order dated 14 February 2004, was issued to the appellant, stating that his date of retirement would be 31 May 2010, as he was deemed to be 18 years old on the date of his appointment (27 May 1970). The appellant’s actual date of birth, as per the records of the Bihar School Examination Board, was 19 November 1954.
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. The Board responded on 26 March 2012, informing that the appellant’s age was considered 18 years as on 27 May 1970, and thus, his retirement date was 31 May 2010, which was later extended to 31 May 2012, due to the increase in retirement age.
The appellant then filed a writ petition in the High Court of Patna, challenging the communication dated 20 March 2012, and the order dated 14 February 2004. The Single Bench of the High Court dismissed the petition, relying on a Full Bench judgment of the Patna High Court in the case of *Ragjawa Narayan Mishra and Another vs. Chief Executive Officer, Bihar Rajya Khadi Gramoudyog Board and Ors.* The Division Bench also dismissed the appeal, upholding the decision of the Single Bench.
Timeline
| Date | Event |
|---|---|
| 20 May 1970 | Gopal Prasad appointed as Calligraphist-cum-Assistant at Bihar School Examination Board. |
| 27 May 1970 | Gopal Prasad joins service. |
| 23 August 1950 | Rule 5 of Section IV (Qualifying Service) of the Pension Rules amended, raising the minimum age for pensionable service to 18 years. |
| 15 January 1998 | Government of Bihar issues circular fixing the minimum age for appointment to inferior service at 18 years. |
| 15 January 2004 | Bihar School Examination Board resolves to treat the age of employees below 18 years at the time of joining as 18 years on the date of their appointment. |
| 14 February 2004 | Office Order issued to Gopal Prasad, fixing his retirement date as 31 May 2010, based on the deemed age of 18 years at the time of joining. |
| 30 March 2005 | Bihar School Examination Board extends the retirement age of its employees from 58 to 60 years. |
| 26 March 2012 | Bihar School Examination Board informs Gopal Prasad’s son that his retirement date is 31 May 2012, based on the deemed age of 18 years at the time of joining. |
| 24 April 2012 | Single Bench of the High Court dismisses Gopal Prasad’s writ petition. |
| 3 August 2012 | Division Bench of the High Court dismisses the appeal. |
| 28 May 2020 | Supreme Court of India delivers its judgment. |
Course of Proceedings
The appellant initially filed a writ petition (CWJC No. 7718 of 2012) in the High Court of Judicature at Patna, challenging the communication dated 20 March 2012, which stated his retirement date based on a deemed age, and the order dated 14 February 2004. The Single Bench of the High Court dismissed the writ petition, relying on 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.* The Full Bench had held that a person could be said to have entered into valid service only when they had attained the age of majority and that the total length of government service for pensionary benefits would not exceed 40 years.
The Single Bench held that since the appellant had completed 40/42 years of service, he was liable to be superannuated. The appellant then filed a Letters Patent Appeal (No. 1090 of 2012) before the Division Bench of the High Court, which also dismissed the appeal, affirming the order of the Single Bench. The Division Bench, bound by judicial discipline, followed the decision of the Full Bench.
Legal Framework
The case is primarily governed by the following legal provisions:
- Rule 73 of the Bihar Service Code: This rule specifies that the date of compulsory retirement of a government servant is the date on which they attain the age of 58 years. It also allows for retention in service after the date of compulsory retirement with the sanction of the State Government on public grounds.
- Rule 57 of the Bihar Pension Rules, 1950: This rule states that for a government servant in inferior service, qualifying service shall not begin until the government servant concerned has attained the age of 16 years.
- Rule 5 of Section IV (Qualifying Service) of the Pension Rules: Amended with effect from 23 August 1950, this rule raised the minimum age after which service for pension is counted from 16 to 18 years for government servants in inferior service.
The Bihar Service Code and the Bihar Pension Rules are crucial for determining the service conditions and retirement benefits of government employees in Bihar. The interplay between these rules and the government circulars forms the crux of the legal framework in this case. The Supreme Court also considered the provisions of the Indian Contract Act, 1872, and the Majority Act, 1875, to determine the age of majority for entering into a valid contract of service.
Arguments
Appellant’s Submissions:
- The appellant argued that he should be retired from service only upon completing 60 years of age, as per his date of birth recorded in the Board’s records and his service book.
- He contended that there is no rule that prescribes the length of service as a criterion for superannuation. Rule 73 of the Bihar Service Code only prescribes the age of retirement, not the length of service.
- The appellant submitted that the Full Bench of the Patna High Court erred in considering the length of service when Rule 73 of the Bihar Service Code prescribes a specific age of superannuation.
- The appellant argued that the circular of 1998, which fixed 18 years as the minimum age for appointment, could not be applied retrospectively to appointments made before its issuance.
- The appellant relied on the judgment of the Jharkhand High Court in *Ganesh Ram vs. State of Jharkhand and Ors.* which held that an employee could not be retired before completing the actual age of retirement as prescribed in Rule 73 of the Bihar Service Code on the basis of a deemed age.
Respondents’ Submissions:
- The respondents argued that the appellant was a minor at the time of his entry into service and that a minor is not eligible for public employment.
- They contended that the minimum age for entry into government service is 18 years, as per the Pension Rules, 1950, and the Majority Act, 1875.
- The respondents submitted that the maximum qualifying service one could render would be 42 years, considering the retirement age of 60 years and the minimum age of 18 years for entry into service.
- They relied on the Full Bench judgment of the Patna High Court in *Ragjawa Narayan Mishra and Ors. vs. Chief Executive Officer, Bihar Rajya Khadi Gramoudyog Board and Ors.*, which held that a person could be said to have entered into valid service only when they attained the age of majority.
- The respondents argued that the Board’s decision to retire the appellant after completing 42 years of service was in accordance with the rules and the Full Bench judgment of the Patna High Court.
- The respondents also relied on the Supreme Court judgment in *Nagaland Senior Government Employees Welfare Association and Others vs. State of Nagaland and Others*, which upheld the validity of a provision that prescribed retirement from public employment on completion of a specified number of years of service or attaining a specific age, whichever is earlier.
| Main Submission | Sub-Submission (Appellant) | Sub-Submission (Respondent) |
|---|---|---|
| Retirement Age | Should be based on actual date of birth as per service records. | Should be based on deemed age of 18 years at the time of joining. |
| Length of Service | Not a criterion for superannuation under Rule 73 of Bihar Service Code. | Maximum qualifying service is 42 years, considering entry at 18 and retirement at 60. |
| Applicability of Rules | Circular of 1998 cannot be applied retrospectively. | Pension Rules, 1950, and Majority Act, 1875, mandate a minimum age of 18 for entry into service. |
| Validity of Appointment | Appointment valid as there was no minimum age prescribed at the time of joining. | Appointment invalid due to the appellant being a minor at the time of entry into service. |
| Reliance on Authorities | Relied on *Ganesh Ram vs. State of Jharkhand and Ors.* | Relied on *Ragjawa Narayan Mishra and Ors. vs. Chief Executive Officer, Bihar Rajya Khadi Gramoudyog Board and Ors.* and *Nagaland Senior Government Employees Welfare Association and Others vs. State of Nagaland and Others*. |
Issues Framed by the Supreme Court
The Supreme Court did not explicitly frame issues in a separate section, but the core issues can be inferred from the divergent opinions of the judges:
- Whether an employee who joined service as a minor should be retired based on a deemed age of 18 years at the time of joining, or on their actual date of birth as per service records.
- Whether the length of service can be a criterion for retirement when the applicable rule (Rule 73 of the Bihar Service Code) only prescribes the age of superannuation.
- Whether the Full Bench judgment of the Patna High Court in *Ragjawa Narayan Mishra* was correctly decided.
- Whether the circular of 1998, fixing 18 years as the minimum age for appointment, can be applied retrospectively to appointments made before its issuance.
Treatment of the Issue by the Court
| Issue | How the Court Dealt with It | Brief Reasons |
|---|---|---|
| Retirement based on deemed age vs. actual date of birth | Justice Banerjee held that retirement should be based on actual date of birth; Justice Rastogi held that retirement should be based on deemed age. | Justice Banerjee: Rule 73 prescribes age of retirement, not length of service; Justice Rastogi: Minimum age for entry is 18 years, total service cannot exceed 42 years. |
| Length of service as a criterion for retirement | Justice Banerjee held that length of service is not a criterion for retirement under Rule 73 of the Bihar Service Code; Justice Rastogi held that length of service is an alternative criterion for retirement. | Justice Banerjee: Rule 73 only prescribes age of retirement; Justice Rastogi: Maximum qualifying service is 42 years, considering entry at 18 and retirement at 60. |
| Correctness of *Ragjawa Narayan Mishra* judgment | Justice Banerjee held that the Full Bench judgment was erroneous; Justice Rastogi upheld the Full Bench judgment. | Justice Banerjee: The Full Bench erred in considering length of service; Justice Rastogi: The Full Bench judgment is consistently followed by the High Court. |
| Retrospective application of the 1998 circular | Justice Banerjee held that the 1998 circular cannot be applied retrospectively; Justice Rastogi did not directly address this issue but implied it was valid. | Justice Banerjee: The circular was prospective and did not apply to appointments made before its issuance; Justice Rastogi: The circular was a clarification of the existing rules. |
Authorities
The Supreme Court considered the following authorities:
| Authority | Court | Legal Point | How it was used |
|---|---|---|---|
| *Ragjawa Narayan Mishra and Another vs. Chief Executive Officer, Bihar Rajya Khadi Gramoudyog Board and Ors.* 2006 (1) PLJR 410 | High Court of Judicature at Patna (Full Bench) | Minimum age for entry into government service and length of service for retirement. | Justice Rastogi relied on this case, stating that a person could enter into valid service only when they attained the age of majority and that the total length of government service for pensionary benefits would not exceed 40 years. Justice Banerjee held that it was wrongly decided. |
| *Ganesh Ram vs. State of Jharkhand and Ors.* 2006(2) FLR 156 | High Court of Jharkhand | Retirement age based on actual date of birth vs. deemed age. | Justice Banerjee relied on this case, which held that an employee could not be retired before completing their actual age of retirement as prescribed in Rule 73 of the Bihar Service Code on the basis of a deemed age. |
| *Mokhtar Ahmad v. B.S.R.T.C. and Ors.* (1995(1) PLJR 183(DB) | High Court of Patna | Retirement age based on actual date of birth vs. deemed age. | Cited in *Ganesh Ram (supra)* as a case where the court held that an employee could not be retired before completing their actual age of retirement on the basis of a deemed age. |
| *Mantu v. C.C.L.* (2001 (1) JCR 181) | High Court of Jharkhand | Retirement age based on actual date of birth vs. deemed age. | Cited in *Ganesh Ram (supra)* as a case where the court held that an employee could not be retired before completing their actual age of retirement on the basis of a deemed age. |
| *Kalanand Jha v. State of Jharkhand and Ors.* (2001 (3) JCR 228) | High Court of Jharkhand | Retirement age based on actual date of birth vs. deemed age. | Cited in *Ganesh Ram (supra)* as a case where the court held that an employee could not be retired before completing their actual age of retirement on the basis of a deemed age. |
| *Balkeshwar v. Central Coalfields Ltd.* (2002 (1) JCR 175) | High Court of Jharkhand | Retirement age based on actual date of birth vs. deemed age. | Cited in *Ganesh Ram (supra)* as a case where the court held that an employee could not be retired before completing their actual age of retirement on the basis of a deemed age. |
| *Pranadhar Prasad v. State of Jharkhand and Ors.* (MANU/JH/1137/2002) | High Court of Jharkhand | Retirement age based on actual date of birth vs. deemed age. | Cited in *Ganesh Ram (supra)* as a case where the court held that an employee could not be retired before completing their actual age of retirement on the basis of a deemed age. |
| *Nagaland Senior Government Employees Welfare Association and Others vs. State of Nagaland and Others* 2010(7) SCC 643 | Supreme Court of India | Validity of retirement based on length of service. | Justice Rastogi relied on this case, which upheld the validity of a provision that prescribed retirement from public employment on completion of a specified number of years of service or attaining a specific age, whichever is earlier. |
| *Atiabari Tea Co. Ltd. v. State of Assam* AIR 1961 SC 232 | Supreme Court of India | Overruled precedent | Cited by Justice Banerjee to demonstrate that the Supreme Court has reversed its own decisions, including those of Constitutional Benches. |
| *Jindal Stainless Ltd v. State of Haryana* 2016 SCC Online 1260 | Supreme Court of India | Overruling of a precedent | Cited by Justice Banerjee to demonstrate that the Supreme Court has reversed its own decisions, including those of Constitutional Benches. |
The court also considered the following legal provisions:
- Rule 73 of the Bihar Service Code: Prescribes the age of superannuation for government servants.
- Rule 57 of the Bihar Pension Rules, 1950: Specifies the qualifying service for pension.
- Rule 5 of Section IV (Qualifying Service) of the Pension Rules: Raised the minimum age for pensionable service to 18 years.
- Section 11 of the Indian Contract Act, 1872: Defines who is competent to contract.
- Section 3 of the Majority Act, 1875: Defines the age of majority.
Judgment
| Submission | How it was treated by the Court (Justice Banerjee) | How it was treated by the Court (Justice Rastogi) |
|---|---|---|
| Retirement should be based on actual date of birth. | Accepted. The employee should be retired based on his actual date of birth, not a deemed date. | Rejected. The employee should be retired based on the deemed age of 18 at the time of joining. |
| Length of service is not a criterion for retirement. | Accepted. Rule 73 of the Bihar Service Code only prescribes the age of retirement, not length of service. | Rejected. Length of service is an alternative criterion for retirement. |
| The 1998 circular cannot be applied retrospectively. | Accepted. The circular is prospective and does not apply to appointments made before its issuance. | Not directly addressed, but the judgment implies it was valid. |
| The Full Bench judgment in *Ragjawa Narayan Mishra* is erroneous. | Accepted. The Full Bench erred in considering the length of service. | Accepted. The Full Bench judgment is consistently followed by the High Court. |
How each authority was viewed by the Court?
- *Ragjawa Narayan Mishra and Another vs. Chief Executive Officer, Bihar Rajya Khadi Gramoudyog Board and Ors.* [2006 (1) PLJR 410]: Justice Banerjee disagreed with the interpretation of the Full Bench, stating that it was misconceived and erroneous. Justice Rastogi relied on this judgment, stating that it was consistently followed by the High Court.
- *Ganesh Ram vs. State of Jharkhand and Ors.* [2006(2) FLR 156]: Justice Banerjee agreed with the interpretation of the Division Bench of the High Court of Jharkhand, stating that a person can only be retired on attainment of the prescribed age of retirement.
- *Nagaland Senior Government Employees Welfare Association and Others vs. State of Nagaland and Others* [2010(7) SCC 643]: Justice Rastogi relied on this case to support the view that the length of service can be a criterion for retirement. Justice Banerjee distinguished this case, stating that the applicable rules in that case expressly made completion of the length of service a criteria for retirement.
What weighed in the mind of the Court?
Justice Banerjee’s Reasoning:
Justice Banerjee emphasized that Rule 73 of the Bihar Service Code prescribes the age of retirement and not the length of service. She found that the resolution of the Bihar School Examination Board was a beneficial one for those employees who would otherwise have been deprived of pensionary benefits for the period of service rendered before attaining the age of 18 years. She also highlighted that the Full Bench of the Patna High Court in *Ragjawa Narayan Mishra* had erroneously proceeded on the basis of the length of service, when the rule only prescribes an age of superannuation. She stated that the circular of 1998 could not be applied retrospectively to appointments made before its issuance.
Justice Rastogi’s Reasoning:
Justice Rastogi focused on the fact that the appellant was a minor at the time of his entry into service and that a minor is not eligible for public employment. He stated that the minimum age for entry into government service is 18 years, as per the Pension Rules, 1950, and the Majority Act, 1875. He also highlighted that the maximum qualifying service one could render would be 42 years, considering the retirement age of 60 years and the minimum age of 18 years for entry into service. He relied on the Full Bench judgment of the Patna High Court in *Ragjawa Narayan Mishra*, which held that a person could be said to have entered into valid service only when they attained the age of majority.
| Sentiment | Percentage |
|---|---|
| Emphasis on Rule 73 of Bihar Service Code (Justice Banerjee) | 30% |
| Beneficial interpretation of the resolution (Justice Banerjee) | 20% |
| Rejection of Full Bench judgment in Ragjawa Narayan Mishra (Justice Banerjee) | 25% |
| Emphasis on the employee being a minor at the time of joining (Justice Rastogi) | 30% |
| Reliance on the Full Bench judgment of the Patna High Court (Justice Rastogi) | 25% |
| Emphasis on the maximum qualifying service (Justice Rastogi) | 15% |
| Ratio | Percentage |
|---|---|
| Fact | 30% |
| Law | 70% |
Logical Reasoning (Justice Banerjee):
Logical Reasoning (Justice Rastogi):
Final Decision
The Supreme Court delivered a split verdict. Justice Ajay Rastogi dismissed the appeal, upholding the decision of the High Court to retire the employee based on a deemed age of 18 years at the time of joining service. Justice Indira Banerjee, however, authored a dissenting opinion, disagreeing with the dismissal of the appeal and advocating for the employee’s right to continue service until his actual retirement age based on his date of birth.
Since there was a split verdict, the matter was placed before the Hon’ble Chief Justice of India for appropriate directions.
Implications of the Judgment
This judgment highlights the complex issues surrounding the retirement age of employees who joined service as minors. The divergent opinions of the two judges underscore the lack of clarity in the applicable rules and regulations. The case raises several important questions, including:
- Whether a person who joined service as a minor should be penalized for it by being forced to retire earlier than their actual retirement age.
- Whether the length of service can be considered a criterion for retirement when the applicable rules only prescribe the age of superannuation.
- Whether a government circular fixing a minimum age for appointment can be applied retrospectively to appointments made before its issuance.
The split verdict means that the legal position on this issue is still not settled. The matter was placed before the Hon’ble Chief Justice of India for appropriate directions. The case will have significant implications for the service conditions of employees who joined service at a young age, and it may lead to further litigation on this issue. The judgment also highlights the need for clear and consistent rules regarding the retirement age of government employees.
Conclusion
The case of *Gopal Prasad vs. Bihar School Examination Board* is a significant judgment that deals with the complex issue of retirement age for employees who joined service as minors. The Supreme Court delivered a split verdict, with Justice Indira Banerjee dissenting and advocating for the employee’s right to continue service until his actual retirement age. The case highlights the conflict between the rules governing retirement age and the practical realities of employment, particularly for those who began their careers at a young age. The judgment raises important questions about the interpretation of service rules and the need for clear and consistent guidelines regarding the retirement age of government employees. The case will have lasting implications for the service conditions of employees who joined service at a young age and may lead to further litigation on this issue.