Case Note & Summary
The appellant, Gopal Prasad, was appointed as Calligraphist-cum-Assistant of the Bihar School Examination Board on 20 May 1970 at about 15½ years of age. At that time, no minimum age was prescribed for the post, though the minimum age for pensionable service was 16 years. In 1998, the State fixed the minimum age for appointment at 18 years, but this was prospective. On 15 January 2004, the Board resolved that employees appointed below 18 years would be deemed to have attained 18 years on their appointment date and would retire at 58 years (Category-3) or 60 years (Category-4) from that deemed date. Pursuant to this, an office order dated 14 February 2004 recorded the appellant's retirement as 31 May 2010 (later extended to 31 May 2012 due to increase in retirement age). The appellant's actual date of birth was 19 November 1954, making his actual retirement age 60 years on 18 November 2014. The appellant challenged the office order and a subsequent communication under RTI in the Patna High Court, which dismissed his writ petition relying on a Full Bench decision. The Supreme Court, in a dissenting judgment by Justice Indira Banerjee, allowed the appeal. The Court held that the resolution could not override Rule 73 of the Bihar Service Code, which governs retirement age. The resolution was intended to preserve pensionary benefits, not to reduce actual service. The office order was patently illegal and beyond the resolution's scope. The Court set aside the impugned orders and directed that the appellant be treated as having retired on 18 November 2014 (his actual 60th birthday) with all consequential benefits.
Headnote
A) Service Law - Retirement Age - Rule 73 of Bihar Service Code - Resolution dated 15.01.2004 - The Board resolved to treat employees appointed below 18 years as having attained 18 years on appointment date and retire them at 58/60 years from that deemed date. The Court held that the resolution could not override Rule 73, which prescribes retirement at 58/60 years based on actual date of birth. The resolution was intended to preserve pensionary benefits, not to reduce actual service. (Paras 5-11) B) Service Law - Retrospective Application - Minimum Age Circular dated 15.01.1998 - The circular fixing minimum age at 18 years was prospective and could not apply to appointments made before its issuance. The appellant was appointed in 1970 when no minimum age existed. (Paras 3-4) C) Service Law - Illegal Order - Acquiescence - An office order patently illegal and entailing adverse civil consequences is not precluded from challenge merely because the employee did not object, especially when similar orders were sub judice. (Para 14) D) Service Law - Pensionary Benefits - Deemed Age - The resolution dated 15.01.2004 was a beneficial measure to ensure pension for service rendered before age 18, not to prematurely retire employees. The office order dated 14.02.2004 fixing retirement as 31.05.2010 was beyond the resolution's scope and contrary to Rule 73. (Paras 8-13)
Issue of Consideration
Whether the Bihar School Examination Board could retire the appellant before he attained the actual age of retirement under Rule 73 of the Bihar Service Code, by deeming his age as 18 years on the date of appointment pursuant to a resolution dated 15.01.2004.
Final Decision
The Supreme Court allowed the appeal, set aside the impugned orders of the High Court and the office order dated 14.02.2004, and directed that the appellant be treated as having retired on 18.11.2014 (his actual 60th birthday) with all consequential benefits.
Law Points
- Retirement age governed by service rules
- not by resolution
- Resolution cannot retrospectively apply minimum age
- Deemed age cannot reduce actual retirement age
- Office order contrary to service code is illegal
- Acquiescence does not bar challenge to illegal order
