Whether a person below 18 years of age can be appointed as government servant?

For the foregoing discussions, we answer the questions of reference, as follows:-

(i) In view of the specific provision in Rule 73 of the Jharkhand Service Code, 2001, providing the age of compulsory retirement as 60 years (now), a regular Government servant holding the post in substantive capacity, even if appointed prior to the age of 18 years, cannot be superannuated before actually attaining the age of 60 years according to his date of birth recorded in his service records, irrespective of his length of service, treating his age to be 18 years on the date of his appointment.

(ii) In absence of any provision in the Jharkhand Service Code, 2001, prohibiting the appointment of a Government servant prior to the age of 18 years, the appointment of a person prior to attaining the age of 18 years, cannot be said to be against Section 11 of the Indian Contract Act, 1872 read with Section 3 of the Majority Act, 1875.

(iii) Jharkhand Service Code, being a complete Code in itself, and Rule 73 thereof being specific and unambiguous in its terms, there is no scope of taking help of any other law or rule for drawing any inference that the intention of the Legislature was to allow only 40 years (or 42 years now) of service, as the maximum period of service, to which a Government servant can be allowed to continue in Government service. Accordingly, even if a person enters into the service prior to the age of 18 years, he shall be entitled to continue in service, until he actually attains the age of 60 years as per his date of birth recorded in his service records, which is the prescribed age of compulsory retirement from service, irrespective of his length of service.

IN THE HIGH COURT OF JHARKHAND AT RANCHI

L.P.A. No. 262 of 2011

Decided On: 08.05.2017

 The State of Jharkhand and Ors.Vs.Arun Kumar Dhar

Hon'ble Judges/Coram:

Harish Chandra Mishra, Aparesh Kumar Singh and Dr. S.N. Pathak, JJ.

Citation: AIR 2017 JHARKHAND 126 (FB)

1. By order dated 9.1.2012, this matter was referred to this Larger Bench, the questions of reference being as follows:-

(i) Whether in spite of specific Rule-73 in Jharkhand Service Code, 2001 providing age of superannuation (compulsory retirement as it has been mentioned in Rule-73, which according to learned counsel for the parties, denotes superannuation), the employee can be superannuated on rendering service of 40 years on the ground that entry in service can be at the age of 18 years and one can enter into a contract after attaining the age of majoring which is 18 years in spite of fact that Rule only provides superannuation upon attaining age of 58 years?

(ii) Whether entering into service at the age of 18 years can be said to be against Section 11 of the Indian Contract Act, 1872 and is affected by Section 3 of the Majority Act, 1875 and the contracting party, who is below the age of 18 years (being minor) and whether that contract is illegal and void against such minor's interest so as to treat the service contract of such person who was not of the age of 18 years to be counted a valid contract from the age when he attains the age of 18 years?

(iii) When the language of Rule-73 is unambiguous and clear with respect to the age of superannuation, whether any help can be taken from other rules and provisions to draw inference that intention of the legislature was to allow only 40 years of service and if it is so, then if one enters in service after age of 18 years, then whether he can continue beyond the age of 58 years?

2. The admitted facts of the case lie in a short compass. The writ petitioner-respondent was appointed as Moharrir on 21.09.1968, before completing the age of 18 years, as at the time of his entering into the service, he was aged only about 15 years and 2 1/2 months, his date of birth being 12.07.1953, which is also recorded in his service book. There is no dispute that at the time of entering into his service, there was no misrepresentation on the part of the writ petitioner about his age, rather, it was within the knowledge of the appointing authority that at the time of his appointment, the writ petitioner was aged only about 15 years and 2 1/2 months, according to his date of birth. There is no dispute with the fact that the petitioner worked to the satisfaction of all concerned during his entire length of service and there had never been any dispute with regard to his date of birth.

3. A letter was issued by the appellant No. 5, Director, Land Records and Measurement, Jharkhand, Ranchi, on 31.03.2010, which has been brought on record as Annexure-2 to the present memo of appeal, directing all the Settlement Officers and Assistant Settlement Officers to examine the cases of the employees, who had been appointed prior to attaining the age of 18 years and it was directed that as per the advice of Finance Department, they shall superannuate at the age of 60 years, treating their age to be 18 years on the date of entry in service. Pursuant thereto, office order contained in Memo No. 231-I dated 20.8.2010, as contained in Annexure-4 to the memo of appeal, was issued by the In-charge Settlement Officer, Dhanbad, informing the writ petitioner that since his date of birth was 12.07.1953, recorded in his service book, treating him to have been appointed at the age of 18 years on the date of his appointment, i.e., 21.09.1968, he shall superannuate with effect from 30.09.2010, treating him to have attained the age of 60 years on that date. This order was challenged by the writ petitioner, in W.P.(S) No. 1910 of 2010, which, upon adjudication, was allowed by the Hon'ble Single Judge, by order dated 08.03.2011, quashing the aforesaid office order contained in Memo No. 231-I dated 20.8.2010, and the respondents-appellants were directed to permit the writ petitioner to continue in service and he be paid the emoluments till he actually attained the age of superannuation, according to his actual and recorded date of birth.

4. Aggrieved thereby, the present Letters Patent Appeal has been filed by the respondents-appellants challenging the aforesaid order passed by the Hon'ble Single Judge. During the hearing of this appeal before the Division Bench, reliance was placed upon a Full Bench decision of the Patna High Court in Ragjawa Narayan Mishra Vrs. The C.E.O., Bihar Rajya Khadi Gramoudyog Board & Ors., reported in MANU/BH/0404/2005 : 2006 (1) PLJR 410, wherein, the Patna High Court had laid down the law that minimum age of entry in the Government service being 18 years and maximum age prescribed for exit from service being 58 years (the prescribed age of superannuation as then was), the total length of period of Government service, in any case would not exceed 40 years and accordingly, the Full Bench of the Patna High Court has held 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 Rules. Reliance was also placed upon a decision of a Division Bench of this Court in Sri Raja Ram Sharma Vs. Ranchi Municipal Corporation & Ors., reported in MANU/JH/1062/2003 : 2004 (2) JLJR 1(Jhr), which had taken the same view holding that the action of the respondents in retiring the petitioner of the said case on completion of 40 years of service was legal and justified. While referring this matter to the larger Bench, the Division Bench of this Court also took note of yet another Judgment of the Division Bench of this Court in Ganesh Ram Vrs. State of Jharkhand & others, reported in MANU/JH/0353/2006 : 2006 (2) JCR 489 (Jhr), in which, a contrary view was taken by this Court and it was held inter alia, that 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). In view of these conflicting judgments on the same issue, the Division Bench of this Court by order dated 09.01.2012, referred the questions as detailed above for determination by this Larger Bench.

5. Before taking into consideration the rival contentions of learned counsels for both the sides, let us take note of Rule 73 of the Jharkhand Service Code, 2001, 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."

6. It is an admitted position that the aforesaid Rule has been amended by the State Government vide its Resolution, being Memo No. 7/BPP-56/2002-Ka-5826, dated 26th October 2004, issued through its Personnel Administrative Reforms and Rajbhasha Department, and the age of compulsory retirement of a Government servant has since been enhanced from 58 years to 60 years.

7. Learned Addl. Advocate General, arguing for the appellant State, has submitted that the impugned Judgment passed by the Hon'ble Single Judge is absolutely illegal and not sustainable in the eyes of law, and the Hon'ble Single Judge ought to have followed the Judgment of the Full Bench of Patna High Court in Ragjawa Narayan Mishra's case (supra). Learned Addl. Advocate General has submitted that the service is a contract and a service contract can be entered into by a person only, who is a major. It is submitted that according to Section 11 of the Indian Contract Act, 1872, only the person, who attained 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, can enter into a contract, and according to Section 3 of the Majority Act, 1875, a person domiciled in India, attains the majority on completing the age of 18 years and not before. Accordingly, it is submitted by learned Addl. Advocate General that the service contract also cannot be entered into by a Government servant prior to attaining the age of 18 years. Learned Addl. Advocate General has also placed reliance upon Rule 57 of the Bihar Pension Rules, which reads as thus:-

"57. For a Government Servant in inferior service, qualifying service, shall not begin until the Government servant concerned attained the age of 16 years."

(subsequently raised to 18 years by Rule 5 of the Liberalized Pension Rules as contained in Appendix-5).

8. It is submitted by the learned Addl. Advocate General that these provisions clearly show that a person could not be taken into a Government service prior to attaining the age of 18 years, and accordingly, even if a person is employed in Government service prior to attaining the age of 18 years, his age on the date of entering into his service, has to be taken as 18 years and he has to be compulsorily retired from service upon completion of the age of 60 years, treating his age as 18 years on the date of entry in the service. It is submitted that this point was considered in length by the Full Bench of Patna High Court in Ragjawa Narayan Mishra's case (supra) and the law has been laid down as follows:-

"16. Be that as it may, one thing is certain that admittedly both the petitioners when they entered into the contract with the respondent Board they had not attained the age of majority. Apart from its legal impact and effect, the ramifications and end result on the status of a contract in terms of the service relationship, a person could be said to have entered into a valid service, only, when he has attained the age of majority. So the minimum age prescribed at the entry point in the Government service has been 18 years. The maximum age prescribed for the exit point is 58 years. In other words, the total length of period of Government service in any case for pensionary benefits would not exceed 40 years. It is in this context, the Government Circular mentioned herein above needs to be considered. When there is a clear Rule provision anything contrary to or inconsistent with or incompatible to it, any circular or resolution or order, will not have any legal and valid effect to abridge the right enshrined in the Rule Provision. Even if the said circular of 1998 as relied upon by the petitioners is considered to be beneficial to them then, also, it cannot be read at this juncture with the existing statutory provision incorporated in the Bihar Pension Rules, as well as, the Bihar Service Code. Therefore, from that point of view also the petitioners cannot be allowed to contend that they have right to continue even beyond the age of 58 years though provided in Rule 73 of the Bihar Service Code which prescribes the superannuation age of 58 years.

*** *** ***

18. In our opinion, therefore, the impugned orders questioned in both the writ petitions, obviously, cannot be interfered with from any point of view as discussed hereinabove. The proposition of law, therefore, is made evident and unambiguous that the superannuation age prescribed in Rule 73 of the Bihar Service Code will apply for retirement purpose and a person cannot be continued beyond the age of completion of 40 years in service. It is, therefore, evidently, clear that a Government servant who has completed 40 years of service or has attained the age of 58 years has to be superannuated in terms of the existing Rule provision. Our answer, therefore, is very clear and we answer this reference accordingly. The contradictory view in the aforesaid decisions referred to hereinbefore, shall not be a good law."

(Emphasis supplied).

9. Learned Addl. Advocate General has also placed reliance upon the decision of the Division Bench of this Court in Sri Raja Ram Sharma's case (supra), wherein, the employee, was a Tax Collector in Ranchi Municipality. He was appointed on 7.10.1960 and his date of birth was 3.6.1943. Said employee was made to retire on 6.10.2000 upon completing 40 years of service. He filed the writ petition in this Court claiming that he shall attain the age of 58 years on 2.6.2001. This Court taking note of Rule 4(b) of Municipality Officer and Servant (Appointment, Duties, Disciplines and Appeal) Rules, which provided that no officer or servant of the Corporation shall be appointed unless he is above 18 years, held that the action of the respondent-Corporation in retiring the said employee on completion of 40 years was legal and justified.

10. Learned Addl. Advocate General, placing reliance on these decisions reiterated that since a Government servant cannot be employed prior to attaining the age of 18 years, there is no illegality or irregularity in the action of the respondents-appellants in superannuating the writ petitioner with effect from 30.9.2010, considering his age on that date to be 60 years, treating the age of the writ petitioner as 18 years on the date of his appointment.

11. Per Contra, learned counsel for the writ petitioner-respondent has submitted that there is no minimum age prescribed for entering into Government service, in the Jharkhand Service Code. It is submitted by learned counsel that Rule 73 of the Jharkhand Service Code only states that the date of compulsory retirement of a Government servant is the date on which he attains the age of 58 years (now 60 years). In this Rule, there is no provision prescribing any maximum period of service as 40 years, upon completion of which a Government Servant must compulsorily retired. Learned counsel has also submitted that there is no prohibition for entering into the Government service prior to attaining the age of 18 years, as is evident from Article 24 of the Constitution of India also, which prescribes that no child below the age of 14 years shall be employed to work in any factory or mines or engaged in any hazardous employment. It is submitted that in that view of the matter, there was no prohibition for the petitioner's appointment prior to attaining the age of 18 years.

12. Learned counsel for the respondent has also placed strong reliance upon the decision of this Court in Ganesh Ram's case (supra), wherein, this Court has cited examples that a person could be employed in Government service even prior to attaining the age of 18 years, one being in the Police Department, where a person below the age of 18 years, could be appointed on the compassionate ground as Bal Arakshi, who upon attaining the majority, is appointed as Constable against such posts. The Division Bench of this Court taking into consideration the various precedents on this point has laid down the law as follows:-

"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 purpose 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 for 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)."

(Emphasis supplied).

13. Learned counsel for the respondent has also placed reliance upon the decision of the Hon'ble Supreme Court of India in Union of India and Ors., Vrs. Arun Kumar Roy, reported in MANU/SC/0514/1986 : (1986) 1 SCC 675, wherein, it has been held as follows:-

"18.--------------. It is now well settled that a government servant whose appointment though originates in a contract, acquires a status and thereafter is governed by his service rules and not by the terms of contracts. The powers of the government under Article 309 to make rules, to regulate the service conditions of its employees are very wide and unfettered.-------------."

14. Placing reliance on these provisions and decisions, learned counsel for the writ petitioner-respondent submitted that since the rules have been framed by the State Government, being Jharkhand Service Code, which only states that the Government servant shall be compulsory retired when he attains the age of 60 years (now), and there being nothing in the Jharkhand Service Code to prescribe the maximum period of service for compulsory retirement, the petitioner-respondent could not be made to superannuate prior to actually attaining the age of 60 years, according to his date of birth recorded in the service records. It is submitted that according to his date of birth recorded in the service records as 12.07.1953, the petitioner was to continue in service till 31.7.2013. Learned counsel accordingly, submitted that there is no illegality in the impugned Judgment passed by the Hon'ble Single Judge, quashing the office order dated 20.8.2010, as contained in Annexure-4 to this memo of appeal.

15. Having heard learned counsels for both the sides and upon going through the record, we find that the reliance placed by the learned Addl. Advocate General on Sri Raja Ram Sharma's case (supra) is absolutely misconceived. Sri Raj Ram Sharma was an employee of Ranchi Municipal Corporation and there was a clear prohibition in Rule 4(b) of the Municipality Officer and Servant (Appointment, Duties, Disciplines and Appeal) Rules, prohibiting any appointment of a person in the Corporation prior to attaining the age of 18 years. In that view of the matter, the appointment of Sri Raj Ram Sharma before attaining the age of 18 years was absolutely irregular and as such, his age was rightly considered to be 18 years on the date of entering into service and he was made to superannuate upon completion of 40 years of service. There being no such corresponding rule in Jharkhand Service Code, the decision of this Court in Sri Raj Ram Sharma's case (supra), is not at all applicable to the facts of the present case. In fact, it cannot be said that a contrary view has been taken by the Division Bench of this Court in Sri Raj Ram Sharma's case (supra).

16. We find that the Full Bench of the Patna High Court in Ragjawa Narayan Mishra's case (supra) has decided the issue taking into consideration the fact that a person cannot enter into a service contract before attaining the age of 18 years and for that, the Full Bench has taken note of Section 11 of the Indian Contract Act, 1872, as also Section 3 of the Majority Act, 1875. On the other hand, we find that Article 24 of the Constitution of India only prohibits a child below the age of 14 years from being employed to work in any factory or mines or engaged in any other hazardous employment. Thus, there is no provision even in the Constitution of India, prohibiting the employment of a person above the age of 14 years up to the age of 18 years. From the decision of this Court in Ganesh Ram's case (supra), we find that there are instances, in which, in absence of any prohibition, there is scope of employment of a person in a Government service, prior to attaining the age of 18 years, and this fact is not disputed even by the appellants. In that view of the matter, we in a respectful disagreement with the law laid down by the Full Bench of Patna High Court in Ragjawa Narayan Mishra's case (supra), holding that there is a prohibition in appointment of a person in Government service prior to the age of 18 years, on the basis of Section 11 of the Indian Contract Act, 1872, Section 3 of the Majority Act, 1875, and Rule 57 of the Bihar Pension Rules. With all due respects to the decision of the Full Bench of Patna High Court, we are of the considered view that the law laid down therein is not the correct law.

17. We also find that Jharkhand Service Code is a complete Code in itself, prescribing the service conditions of Government servants. This being a complete Code, there appears to be no reason to take any help from other rules or law to draw any inference that the intention of the Legislature was to allow only 40 years (now 42 years) of service to be the maximum period of service, to which a Government servant could be employed in a Government service. No help can be taken even from the Rule 57 of the Bihar Pension Rules, as the Pension Rules is applicable only for purposes of payment of pension and retirement dues. In absence of any provision in the Jharkhand Service Code, prohibiting the appointment of a Government servant prior to attaining the age of 18 years, it cannot be said that the appointment of the writ petitioner prior to attaining the age of 18 years, was in any way either irregular or illegal. Indeed, admittedly the petitioner-respondent was appointed upon attaining the age of about 15 years and 2 1/2 months and not prior to the age of 14 years, when there is a Constitutional bar upon appointment of children under Article 24 of the Constitution of India.

18. This apart, Part-XIV of the Constitution of India, deals with the Services under the Union and the States. Article 309 therein stipulates that the appropriate Legislature may regulate the recruitment, and conditions of service of persons appointed to public services and posts in connection with affairs of the Union or of any State. Proviso to Article 309 of the Constitution of India empowers the President, in connection with the affairs of the Union, and the Governor of a State, in connection with the affairs of the State, to make rules regulating the recruitment, and the conditions of service of persons to be so appointed. Article 311 of the Constitution of India, ensures protection to a member of civil service from dismissal, removal or reduction in rank, without following the due process of law.

19. Thus, from a conjoint reading of these provisions, it is apparent that once a person enters into a Government service, he cannot be removed or compulsorily retired prior to attaining the age of his superannuation, except in the case of misconduct or on the ground of public interest or unsatisfactory service upon compliance of the due process of law.

20. This being the position in law, we are in complete agreement with the law laid down by the Division Bench of this Court in Ganesh Ram's case (supra), and we hereby, reiterate the law that the matter of superannuation of a Government servant cannot be left to the whims of the employer, and in absence of any contrary provision, a regular employee cannot be compulsorily retired prior to attaining the age of his superannuation, except in the case of misconduct or on the ground of public interest, unsatisfactory service etc., upon compliance of due process of law.

21. For the foregoing discussions, we answer the questions of reference, as follows:-

(i) In view of the specific provision in Rule 73 of the Jharkhand Service Code, 2001, providing the age of compulsory retirement as 60 years (now), a regular Government servant holding the post in substantive capacity, even if appointed prior to the age of 18 years, cannot be superannuated before actually attaining the age of 60 years according to his date of birth recorded in his service records, irrespective of his length of service, treating his age to be 18 years on the date of his appointment.

(ii) In absence of any provision in the Jharkhand Service Code, 2001, prohibiting the appointment of a Government servant prior to the age of 18 years, the appointment of a person prior to attaining the age of 18 years, cannot be said to be against Section 11 of the Indian Contract Act, 1872 read with Section 3 of the Majority Act, 1875.

(iii) Jharkhand Service Code, being a complete Code in itself, and Rule 73 thereof being specific and unambiguous in its terms, there is no scope of taking help of any other law or rule for drawing any inference that the intention of the Legislature was to allow only 40 years (or 42 years now) of service, as the maximum period of service, to which a Government servant can be allowed to continue in Government service. Accordingly, even if a person enters into the service prior to the age of 18 years, he shall be entitled to continue in service, until he actually attains the age of 60 years as per his date of birth recorded in his service records, which is the prescribed age of compulsory retirement from service, irrespective of his length of service.

22. Consequently, we hold that the Hon'ble Single Judge has rightly decided the connected writ application, W.P.(S) No. 1910 of 2010, quashing the impugned office order dated 20.8.2010, which was Annexure-10 to the writ application and is Annexure-4 to the present memo of appeal. We do not find any illegality and/or irregularity in the impugned Judgment dated 08.03.2011 passed by the Hon'ble Single Judge in W.P.(S) No. 1910 of 2010, which we hereby, affirm.

23. There is no merit in this Letters Patent Appeal and the same is accordingly, dismissed. No costs.