ORDER
S.J. Mukhopadhaya, J.
1. The petitioner in the instant writ petition has challenged the order, contained in letter No. 64, dated 31st December, 2002 issued by the 3rd respondent, Headmaster, High School, Peterwar, District-Bokaro. whereby and whereunder, giving reference to letter No. 408, dated 18th December, 2002, issued by the District Education Officer, Bokaro, he has informed the petitioner that he, having completed 40 years of service, has retired from his service. The petitioner has also assailed the said letter No. 408, dated 18th December, 2002, issued by the District Education Officer, Bokaro, whereby, it was informed that there being no provision to allow a person to continue beyond 40 of service, the petitioner would retire and the excess amount, received by him by continuing in service beyond the said period, be recovered from his gratuity.
2. In a similar case of Pranadhar Prasad v. State of Jharkhand and Ors. reported in , a Bench of this Court held that a Government servant cannot be retired by pushing back his date of birth arbitrarily, on completion of 40 years of service, and that the retirement on the ground of completion of 40 years of service in absence of any rule or guideline is illegal. The aforesaid judgment, having been noticed by the learned Single Judge, he has referred the instant writ petition for hearing by a Division Bench, doubting the correctness of the decision aforesaid on the ground that if the ratio, laid down in the said judgment, in accepted, then even a minor of tender age can also enter in the Government service.
3. The issues, thus, required to be determined, are:
(a) Whether a Government servant can be superannuated (compulsorily retired) from service on completion of 40 years of service even in absence of any such rule, taking aid of rule which only prescribes only age of superannuation?
(b) Whether after completion of 40 years of service, a person can be retired from service, treating his age as 18 years at the time of entry in service? and
(c) Whether a minor of tender age can be appointed in the Government service?
4. Normally the age of superannuation of an employee is fixed by provision of statutory Law or by framing Rules, Regulations or guidelines. Either age can be the basis of superannuation or the years of service, rendered by a person and/or the age of superannuation or the years of service, whichever is earlier, as may be prescribed by the employer.
5. So far as the State Government employees the concerned, they are guided by Bihar Service Code, 1952, Bihar Pension Rules, 1950 and other Rules, such as, Bihar Financial Rules etc. Those Rules are also applicable in the State of Jharkhand, having been either adopted with amendment under Section 85 of the Bihar Reorganization Act, 2000 or are continuing in view of Section 84 of the said Act, 2000.
The age limit for superannuation has been prescribed under Rule 73 of the Bihar Service Code, 1952. With regard to minimum and maximum age limit for appointment in the services of the State, there is no common Rule/Guideline, issued by the State Government and the eligibility varies from service to service.
6. Initially no minimum age for entry in the Government service was prescribed. Persons were used to be appointed in service, irrespective of age, major or minor. The only rider, that was put by the State Government, was that the services rendered prior to attaining the age of 16 years were not to be counted as pensionable service. This is evident from Rule 57 of the Bihar Pension Rules, 1950, as quoted hereunder:
57. If a Government servant in inferior service, qualifying service, shall not being only the Government servant concerned has attained the age of 16 years.
7. No common minimum age of 18 years has been laid down by the State Government (Bihar and Jharkhand). It varies from job to job and service to service. For example : Minimum age of 22 years has been prescribed for appointment in the Bihar Civil Services (Executive Branch), as evident from the Bihar Civil Services (Executive Branch) and Bihar Junior Civil Services (Recruitment) Rules, 1951. On the other hand, minimum age of 25 years has been prescribed for appointment in the Bihar Civil Services (Judicial Branch) under Bihar Civil Services (Judicial Branch) Rules 1955. For appointment of the officers in the Bihar Police Radio, minimum age of 19 years has been prescribed whereas for appointment in the Jharkhand Judicial Services (commonly known as Sub-ordinate Judicial Services) and Jharkhand Superior Judicial Services, minimum age of 25 years and 35 years respectively have been prescribed.
Appointments of minors even below 18 years of age are still permissible on one or other post, reference of some of them are given hereunder:
Employments by the State Government/Central Government for construction or maintenance of Roads, Runways, Dam, Irrigation Work etc. are guided by the Minimum Wages Act, 1948. 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 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 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 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 'adolescent', though minor, can be appointed for whom different wages may be fixed.
8. The State of Bihar has issued Police Order No. 209-82, circulated vide Memo No. 6568/P2/43-271-88, dated 11th 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 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 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.
9. However, there is a prohibition of employment of child in certain occupation and processes under Section 3 of The Child Labour (Prohibition and Regulation) Act, 1986. As per Section 2(iii)) of the Child Labour (Prohibition and Regulation) Act, 1986, 'child' means a person, who has not completed his fourteenth year of age, From the statement of objects and reasons, it will be evident that the Bill was intended to ban the employment of children ie, those, who have not completed their fourteenth year, in specified occupations and processes. Even under the said Act, there is no prohibition of employment of 'adolescent' i.e., those who have completed their fourteenth year but are below eighteenth year of age.
The Indian Majority Act, 1875 does not impose any prohibition of employment of a minor in the services of the State, Civil Body/Government Institution, Public Sector Undertaking or in any Government Organization. The said Act relates to marriage, dower divorce, adoption etc.
As such there is no minimum age limit prescribed, except for appointment against certain posts or services, as stated above. The general instruction, prescribing minimum age of 18 years, was issued by the State Government for the first time ie, sometime after 1964 but that guideline is applicable only where the Rule/Guideline relating to minimum age is silent.
10. So far as petitioner is concerned, he was appointed as Peon, a post in the 'inferior service' of the State, on 1st February, 1960. There is nothing on the record to suggest that any minimum age limit was prescribed at the time he was appointed.
After appointment, the date of birth of the petitioner was recorded in the service book as 1st February, 1947. Rule 73 of the Bihar Service Code prescribed the age of superannuation, which reads as follows:
73. 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 the State Government on public grounds, which must be recorded in writing.
11. The aforesaid rule has been amended by the State Government vide its Resolution bearing Memo No. 7/BBP- 56/2002 Ka 5826, dated 26th October, 2004, issued through its Personnel, Administrative Reforms and Rajbhasha Department, and the age of superannuation was enhanced from 58 years to 60 years. As per the old Rule 73, the petitioner was entitled to continue up to 1st February, 2005 according to his date of birth, as recorded in his service book. The rule having been amended prior to February, 2005, he was entitled to continue in service of the State up to 60 years i.e. up to 1st February, 2007. There is nothing on the record to suggest that the State Government has laid down any Rule/Guideline, prescribing different criteria for superannuation, such as, retirement on completion of 40 years of service. The statutory Rule 73 prescribes superannuation on attaining the age of 60 years. In this background, it was not open to the respondents to retire the petitioner on the ground that he had completed 40 years of service under the State.
12. Similar issue fell for consideration before a Division Bench of Patna High Court in the case of Mokhtar Ahmad v. B.S.R.T.C. and Ors. reported in 1995 (1) PLJR 183. In the said case, similar plea was taken by the Corporation that its employee, having completed 40 years of service, cannot continue. The Patna High Court, having noticed the relevant provisions, held that an employee stands superannuated only on attaining the 'age of superannuation' and cannot be retired on the ground of completion of 40 years of service. This Court in a similar case in Mantu v. C.C.L. and Ors. reported in 2001 (1) JCR 181 (Jhr) : 2001 (1) JLJR 117 took similar view. That was a case of an employee of Central Coalfields Limited where 60 years was the age prescribed for superannuation. Treating the minimum age of entry in the service as 18 years, the Company retired him on the ground that he had completed 42 years of service. This Court held that the age of superannuation being 60 years, the person cannot be retired on the ground of completion of 42 years of service. Similar view was expressed by this Court in the case of Kalanand Jha v. State of Jharkhand and Ors. reported in 2001 (3) JCR 228 (Jhr), wherein, the State Government employee was retired on the ground of completion of 40 years of service but this Court declared the same illegal. The ratio, laid down in these cases, were also followed in the cases of Balkeshwar v. Central Coalfields Ltd. reported in 2002 (2) JLJR 418 : 2001 (1) JCR 175 (Jhr) and Pranadhar Prasad v. State Of Jharkhand and Ors. reported in 2003 (2) JCR 572 (Jhr),
13. In an unreported case of Ram Klshore Ojha v. B.S.E.B. CWJC No. 2873 of 1999, a Single Judge by judgment dated 19th April, 2001, however, dismissed the case where employee of Bihar State Electricity Board was retired from service having completed 42 years of service. The judgment, rendered in many of the aforesaid cases, were noticed but they were distinguished in view of a notification dated 9th September, 1997, issued under Section 79(c) of the Electricity (Supply) Act, 1948, whereby and whereunder, the date of superannuation (compulsory retirement) of the workmen of Electricity Board was prescribed as 60 years of age or completion of 42 years of service, whichever is earlier.
14. In the case of Raja Ram Sharma v. Ranchi Municipal Corporation reported in , a Division Bench of this Court having noticed the Bihar Municipal Officers and Staff (Appointment, Duties, Discipline and Appeal) Rules, 1955 and Rule 4(b) of the said Rules, wherein the age of superannuation was prescribed, and taking into consideration that no officer or servant of the Corporation can be appointed unless he attains 18 years of age, upheld the order, superannuating the Corporation employee, on completion of 40 years of service. The Division Bench decision of Patna High Court in the case of Mokhtar Ahmad (supra) was distinguished.
15. In another case of Baidyanath Singh v. State of Bihar reported in 2003 (1) PLJR 341, Patna High Court, having noticed the fact, held that the age of superannuation being 58 years, 40 years of service should be a prudent policy and a rule of common sense. The Patna High Court upheld the order, by which the employee was superannuated on the ground that he had completed 40 years of service but in the said judgment, the Patna High Court neither laid down any ratio nor noticed the ratio, laid down by its earlier Division Bench in the case of Mokhtar Ahmad v. B.S.R.T.C. and Ors. reported in 1995 (1) PLJR 183].
16. So far as the age of superannuation is concerned, in case of Miss Raj Soni v. Air Officer Incharge (Administration) reported in AIR 1990 SC 1305. the Supreme Court held that the age of superannuation cannot be left to the whims of the employer. The employer cannot retire different employees at different ages. 16. Similar issue like the present one fell for consideration before a Division Bench of this Court in the case of Ranchi University v. State of Jharkhand reported in . In the said case, 60 years of age was prescribed for superannuation (compulsory retirement) of teaching/non-teaching employees of the University/Constituent Colleges, but the employees were retired on the ground that they had completed 42 years of service. In the said case, it was argued that a 'minor' cannot be appointed in the Government service, there being prohibition to appoint a person, below 18 years of age. Having noticed the Indian Majority Act, 1975 and The Child Labour (Prohibition and Regulation) Act, 1986, the Division Bench held as follows:
20. So far as the Indian Majority Act, 1875, as referred by the learned Single Judge, is concerned, there is no prohibition, made therein, for appointment of a minor in the services of State, Civil Body, Government Institution, Public/Private Sector Undertakings or in any other Organisation. The said Act mainly relates to marriage, dower, divorce, adoption etc. The prohibition of child labour came into effect for the first time on 23rd December, 1986 when 'Child Labour (Prohibition and Regulation) Act, 1986' was enacted. The definition of 'child', as given under Clause (ii) of Section 2 of the Child Labour (Prohibition and Regulation) Act, 1986, means a person, who has not completed his 14th year of age. Section 3 of the said Act prohibits employment of children in certain occupations and processes. No bar has been made there- in for appointment of those, who have completed more than 14 years of age.
21. Even if it is presumed that some provision of either Indian Majority Act. 1875 or Child Labour (Prohibition and Regulation) Act, 1986 has been violated, penal actions are there to be taken against the erring persons or the initial appointment can be held to be irregular. But it has no nexus with the age of retirement/date of retirement.
22. So far as retirement is concerned, a person is guided by the relevant provisions of the Act/Rule/Regulation/Byelaw/Guidelines, as the case may be.
23. In the case of teaching/non-teaching employees of the Universities/Constituent Colleges, even if a person was appointed while he was a minor and thereby any provision of the Indian Majority Act, 1875 and Child Labour (Prohibition and Regulation) Act, 1986 was violated, for that the employee cannot be punished by reducing the age of his/her superannuation nor a notional age of superannuation can be fixed, treating the employee major as on the date of his/her initial appointment. Even in such cases, the retirement will be dependent on the age of superannuation or the period of service rendered, as prescribed under the law i.e. Act/Rule/Regulation/Guideline etc.
17. In fact, in the case of Ranchi University v. State of Jharkhand reported in , the Division Bench had already answered the main issues, as raised in the present case.
18. In view of the aforesaid discussions, our considered views are as follows:
(i) A person, who has completed his 14th year of age but had not completed his 18th year [adolescent-as defined under Clause (a) of Section 2 of the Minimum Wages Act, 1948] is eligible for appointment, if Rule/Guideline, issued by the employer so permits:
(ii) If a person, who has not attained 18th year of age, is appointed de hors the rule, his appointment can be held to be irregular but his age cannot be presumed to be 18 years for the pur poses of superannuation (compulsory retirement);
(iii) If a person, below 14 years of age, is appointed, penal order can be passed against the employer under the Child Labour (Prohibition and Regulation) Act, 1986 but no order, penal in nature, be passed against the employee;
(iv) Age of superannuation cannot be left to the whims of the employer. There should be a rule/guideline/law of superannuation. If superannuation is based on age, no person can be made to superannuate prior to attaining such age, except in the case of misconduct or inefficiency;
(v) It is for the employer to fix the age of superannuation (compulsory retirement) as per the provisions of statutory Law, Rules, Regulations or Guidelines, which may be dependent on age or on completion of a certain number of years of service or either attaining the prescribed age or number of years of service, whichever is earlier. But once the age of superannuation is prescribed, in absence of contrary rule; like completion of certain years of service, a regular employee cannot be retired prior to attaining the age of superannuation, except in the case of misconduct or on the ground of public interest/unsatisfactory service etc., as may be permissible under the rule(s).
19. The issues, raised in the present case, are, thus, answered accordingly.
20. In the case of the petitioner, as 58 years is the prescribed age of superannuation, under Rule 73 of the Bihar Service Code, his date of birth having been recorded in the service book as 1st February, 1947, it was not open to the respondents to retire him on the ground of completion of 40 years of service. The impugned letter No. 408, dated 18th December, 2002, issued by the District Education Officer, Bokaro, and the consequential letter No. 64, dated 31st December, 2002 issued by the Headmaster, High School, Peterwar, District Bokaro, being illegal and against the provisions of Rule 73, are hereby quashed. In the result, the petitioner stands reinstated in service from the date he was made to retire. The age of superannuation having been enhanced from 58 to 60 years for the employees of the State of Jharkhand by Resolution bearing Memo No. 7/BBP-56/2002 Ka 5826, dated 26th October, 2004, the petitioner will continue in the service till attaining the age of 60 years. He is also entitled for all consequential benefits, including arrears of full salary. The respondents are directed to pay the petitioner the arrears of salary for the intervening period, after adjusting the pen-sionery benefits, if released in the meantime, which is to be paid within two months from the date of receipt/production of a copy of this order. The writ petition is accordingly allowed with the aforesaid observations and directions. However, in the facts and circumstances there shall be no order as to costs.
Narendra Nath Tiwari, J.
21. I agree.