Patna High Court
Ganesh Sinha vs The B.R.A.Bihar University &Or on 22 April, 2009
Author: Mihir Kumar Jha
Bench: Mihir Kumar Jha
IN THE HIGH COURT OF JUDICATURE AT PATNA
CWJC No.11890 of 2005
Ganesh Sinha, Son of Late Yadu Sinha, resident of mohalla-
Gannipur, P.O.- Ramana, P.S.- Kazi Mahamadpur, District-
Muzaffarpur, prersently posted as Accountant, Ram Dayalu Singh
College, Muzaffarpur comes under B.R.A. Bihar University,
Muzaffarpur.
........ Petitioner
Versus
1. The B.R.A. Bihar University, Muzaffarpur thrugh the Vice-
Chancellor, B.R.A. Bihar University, Muzaffarpur.
2. The Vice-Chancellor, B.R.A. Bihar University, Muzaffarpur.
3. The Registrar, B.R.A. University, Muzaffarpur.
4. The Principal, Ram Dayalu Singh College, Muzaffarpur.
...... Respondents
For the Petitioner : Mr. Chakradhari Sharan Singh, Advocate
For the University : Mr. Ajay Bihari Sinha, Advocate.
P R E S E N T
THE HON'BLE MR. JUSTICE MIHIR KUMAR JHA
-------------
Mihir Kr. Jha, J In this writ application, the
petitioner, working as an Accountant of Ram
Dayalu Singh College, Muzaffarpur, a
constituent college under B.R.A. Bihar
University, Muzaffarpur (hereinafter to be
referred to as „the University‟), has assailed
the order passed by the Registrar of the
University dated 1st September, 2005 for
superannuating him from service with effect
from 18th of August, 2004 on the basis that he
had already completed 44 years of service in
the college.
Learned counsel for the petitioner,
while assailing the impugned order, submits
2
that the appointment of the petitioner was
made on a Class-4 post in Ram Dayalu Singh
College (hereinafter to be referred to as the
„College‟) on 18.8.1960 at the age of 16 years
5 months and 22 days, his date of birth being
10th February, 1944. Learned counsel for the
petitioner had also explained that the
petitioner had acquired the qualification of
Intermediate in Commerce in the year 1966 and
thereafter he was promoted by the College on
the post of Clerk on 1.10.1966 and as such,
when the College become a constituent unit of
the University in the year 1976, his services
were absorbed as a Class-III non-teaching
employee against the post of Clerk. Learned
counsel has further submitted that it was the
University which had also promoted the
petitioner on the post of Accountant on
14.2.1996 and as such, the University could
not have superannuated the petitioner without
completing 62 years of age in terms of Section
67 of the Bihar State Universities Act
hereinafter referred to as the Act. He has,
therefore, submitted that the petitioner was
entitled to continue in service till February,
3
2006 and as such, the impugned order
superannuating him with effect from 18th
August, 2004 on the basis of completion of 44
years of service was in teeth of the
provisions under Section 67 of the Act.
Learned counsel for the University on
the other hand has contended that the
University had found that the petitioner was
initially engaged as a Peon on 2.2.1957 in the
College against a leave vacancy of one Sri
Nand Kishore Pandey and infact, he had worked
from 2.2.1957 to 3.3.1960 and thereafter when
his service was terminated w.e.f. 4.3.1960 he
came to be reappointed as a Peon only of the
fourteen days, w.e.f. 18.8.1960. He would,
therefore, submit that the very basis for the
petitioner to claim that his date of birth was
10th February, 1944 and such date of birth was
declared at the time of his initial
appointment was itself shrouded in mystery.
Counsel for the University had, therefore,
submitted that if the date of birth of the
petitioner is accepted to be 10th of February,
1944, he would be deemed to have been
appointed in the College at the age of less
4
than 13 years as his first appointment in the
college is said to be made in the College on
2.2.1957. Counsel for the University in this
context had submitted that as the petitioner
had passed all his examination including the
Matriculation after his entry in service in
the College on 2.2.1957, they could not be
treated to be an authentic proof of his date
of birth and in that view of the matter, the
decision of the University in the light of the
Government decision to allow a person to have
a maximum tenure of 44 years treating his age
on the date of appointment to be 18 years,
cannot be said to be irrational. Counsel for
the University in this context had referred to
and relied on a Full Bench Judgment of this
Court in the case of Ragiawa Narayan Mishra
Vs. Chief Executive Officer, Bihar Rajya Khadi
Gramoudyog Board & Ors. reported in 2006(1)
PLJR 410 as also a Division Bench Judgment of
this Court in the case of Baidyanath Prasad
Sinha Vs. The State of Bihar & Ors. reported
in 1983 Labour & Industrial Cases 162.
This Court would find that the very
basis for the petitioner to claim that his
5
date of birth was recorded in the service book
as 10th February, 1944 which could have
entitled him the protection of Section 67 of
the Act itself suffers from an apparent
fallacy inasmuch as that there is nothing on
the record to show that at the time of
appointment of the petitioner in the College
in the year 1957, he had declared his date of
birth as 10th of February, 1954. The photocopy
of the extracts of his service book which was
produced by the petitioner himself to support
his date of birth of being 10th February, 1944,
and has been kept on records of this case,
would go to show that the service book of the
petitioner infact was opened on 18.9.1997 i.e.
almost after 40 years of his entry in service
of the College. Obviously, this service book,
therefore, cannot be accepted as authentic
proof of his date of birth. It is not denied
by the petitioner that appointment in the
college was made on 2.2.1957 which would make
him to be less than 13 years of age at the
time of his first appointment. It would also
mean that the petitioner was a minor and yet
was found eligible to be employed in an
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affiliated college. There can be no quarrel
that the appointment of a person is a contract
between him and the employer and a minor
cannot have the capacity of enter into such a
contract. A 13 year old boy infact could not
have been appointed even in an affiliated
college, and as such, it is difficult to
accept that the age of the petitioner was 13
years on the date of his appointment.
It has to be noted that the petitioner
on his own showing had passed his
matriculation examination while continuing in
the service of the College which is admitted
by him in paragraph no.6 of the writ
application. Thus, the petitioner cannot also
rely on the date of birth on his matriculation
certificate which was neither the basis of his
entry in the College nor was ever acted upon
at the time of his joining in the year, 1957.
The moment this fact remains uncontroverted
that the petitioner in the year 1957 was not
even a matriculate, his subsequent passing of
matriculation examination while continuing in
College at least could not be made the basis
for computing his age specially when the
7
service book, noting his date of birth on the
basis of matriculation certificate, was opened
in the year 1997 i.e. after 40 years of his
entry in service.
Obviously, the petitioner at the time of
entry in service of the College on 2.2.1957
had taken advantage of his own declaration of
being a major i.e. 18 years or even the date
on which he was reappointed i.e. on 18.8.1960
when he in view of aged declared in
matriculation certificate was either 13 years
or 16 years of age respectively. In that view
of the matter, the ratio laid down by the
Division Bench of this Court in the case of
Baidyanath Prasad Sinha (supra) would squarely
apply to the facts wherein the Division Bench
had held that a person having obtained an
advantage by declaration of his higher age
which was really not available at the time of
his initial appointment, he could not be given
further benefit for continuing in service on
the basis of date of birth mentioned in
matriculation certificate, when the same was
not declared by him at the time of entry in
service.
8
The petitioner thus is also bound by his
own conduct of entering into contract of a
service representing himself to be a major as
on 2.2.1957 and thus he can not be permitted
to take a contrary plea of a different date of
birth to the one which he had declared at the
time of his first appointment in the College.
That is precisely the concept of estoppel by
conduct under Section 115 of the Indian
Evidence Act which lays down that :-
"When one person has, by his
declaration, act or omission
intentionally caused or permitted
another person to believe a thing to be
true and to act upon such belief,
neither he nor his representative, shall
be allowed, in any suit or proceeding
between himself and such person or his
representative, to deny the truth of
that thing."
The Privy Counsel in the case of Durga
Prasad Singh Vs. Tata Iron and Steel Co. Ltd.
reported in AIR 1918 P.C. 125 had explained
the estoppel by conduct to mean that a party
is prevented from relying on true facts on
account of his conduct or language. Judged in
this background when there is nothing to show
9
that even on 2.2.1957 when the petitioner was
first appointed in the College, he had
declared his date of birth as 10.2.1944 and
yet he was appointed he has to be held as a
major having atleast 18 years of age on this
day. Such problems in fact have been faced by
almost all the organizations, in this State,
the Universities being no exception. The State
Government in order meet such situation had
issued Circular with regard to maximum length
of service by treating the minimum age of
employee to be 18 years on the date of
appointment. When such decision of the State
Government was assailed before this court a
Full Bench of this Court in the case of
Rajiawa Narayan Mishra (supra) had laid down
the law in relation to a similar 1998 circular
of State Government confining the continuance
of service of a Government Servant for a
period of 40 years, treating entry at the age
of 18 years and continuance up to the age of
58 years. The following statement of law laid
down in the Full Bench Judgment in fact would
also cover also the case of the petitioner:-
.........13. The plain perusal of the
aforesaid statutory provision would,
10
undoubtedly, go to suggest that the
Government by virtue of an amendment by
addition Rule 5 in Appendix-5 in the Bihar
Pension Rules which came into effect, on
23.8.1950, long before the petitioners
came to be admitted in the service of the
Board and it is very clear there from that
the qualifying age of the Government
servants for consideration of the
pensionary benefits came to be raised from
16 years to 18 in the Government service.
Otherwise, also, the aforesaid circular of
1998 has a purpose and policy behind it.
It is clarificatory. There is no dispute
about the fact that the service between
the employer and the employees is a matter
of contract. Once, a person is validly
entered into the service of the Government
he is offered the contractual and
statutory protection and the initial entry
in the service always is the outcome of
the contractual relationship. Who would be
competent to contract? It has been
provided in Section 11 of the Indian
Contract Act, 1872, as to who is the
competent to contract. Section 11 of the
said Act reads herein as under:
Who are competent to contract.
- Every person is competent 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. It is very clear and evident
from the said provision that in, so far
11
as, the competence for a valid contract in
terms of the age is concerned, one has to
attain the age of majority and majority
obviously would be according to law. The
provision of Sectioin 3 of the Majority
Act, 1875, clearly provides as to what is
the age of a person domiciled in India. It
is in this context, it would be necessary
and profitable to refer the provision of
Section 3 of the Majority Act, 1875 which
is reproduced as hereunder:
"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.
(2) In computing the age of
any person, the day 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."
15. It leaves no any manner of doubt
that in this country the age of majority
of a person, domiciled in India, has been
on his attaining the age of eighteen years
and not before. Of course, it would be not
very material at this stage to consider
that in computing the age of a person, the
day on which he borns is to be included as
a whole day.
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
12
had not attained the age of majority.
Apart from its legal impact and effect,
the ramifications and end result of 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.
17. Thirdly, it is settled and
13
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
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,
prerogative, equitable and discretionary
writ jurisdiction by invocation of the
provision of Article 226 of the
Constitution of India........."
If case of the petitioner is examined in
the light of aforesaid law laid down by the
Full Bench of this Court, Section 67 of the
Act will be of no avail. It is true that under
Section 67 of the Act, there is a provision
that the date of retirement of a non-teaching
employee who is in the service of the
University prior to the commencement of the
Act, shall be the date on which he would
attain the age of 62 years. The question still
would be as to what would be the basis for the
petitioner to contend that as a non-teaching
employee when he had entered in service of the
College in the year 1957 he was aged about 13
14
years and yet got employed in the College.
There being no proof of this fact from any
records and the service book produced and
relied by the petitioner being of the year
1997, this Court would find it very difficult
to accept the submission of the petitioner
that his date of birth should be accepted as
10.2.1944, for being continued in service till
attaining of his age of 62 years i.e. upto
February, 2006.
This Court, therefore, following the
ratio of the Full Bench Judgment of this Court
in the case of Ragiawa Narayan Mishra (supra)
must hold that the decision of the University
in the impugned order does not suffer from any
infirmity factual or legal, and as such the
impugned order superannuating the petitioner
on completing 44 years of his service in
College with effect from 18th of August, 2004
cannot be interfered.
As a matter of fact, the University has
been rather kind and considerate to the
petitioner because admittedly the petitioner
had been appointed in the College for the
first time on 2.2.1957 and if the 44 years
15
period is reckoned from that date, the
petitioner‟s retirement could have been made
effective with effect from February, 2001. The
petitioner has in fact got benefitted of a
period of three years service even for the
purposes of counting of his length of service
for calculation of his pension and post
retirement benefit and should be thankful to
his stars because had the University acted
upon the entries made in the service book, the
petitioner could have been in fact made to
retire with effect from February, 2001.
One thing, however, should be clarified
here that even though, the length of service
for the purposes of calculating of pension and
post retirement benefit of the petitioner
would be up to 18th of August, 2004 as per the
impugned order, the petitioner having already
worked till 1st September, 2005, the date of
issuance of the impugned order, he would be
entitled for payment of salary and allowances
till 1.9.2005 as he had admittedly worked on
the post of Accountant in the College till
that date when he was sought to be removed
from service by way of his superannuation.
16
Subject to the aforementioned
clarification, this Court would find no reason
to interfere with impugned order and
consequently, the writ application of the
petitioner, being devoid of any merit, must be
and is hereby dismissed.
There would be however no order as to
cost.
Patna High Court (Mihir Kumar Jha, J.)
Dated the 22nd April, 2009
A.F.R./Rishi