GOPAL PRASAD versus BIHAR SCHOOL EXAMINATION BOARD AND OTHERS

Citation: [2020] 11 S.C.R. 170 · Decided: 28-05-2020 · Supreme Court of India · Bench: INDIRA BANERJEE · Disposal: Matter referred to larger bench

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Judgment (excerpt)

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SUPREME COURT REPORTS
[2020] 11 S.C.R.
GOPAL PRASAD
v.
BIHAR SCHOOL EXAMINATION BOARD AND OTHERS
(Civil Appeal No. 8225 of 2012)
MAY 28, 2020
[INDIRA BANERJEE AND AJAY RASTOGI, JJ.]
Bihar Service Code, 1952 – r.73 – Bihar Pension Rules, 1950
– Superannuation – Appellant was an employee of Bihar School
Examination Board – At the time of entry into service, his age was
15 years, 6 months – At that time, the retirement age was 58 years
which was by Board’s meeting on 30.03.2005 was extended to 60
years – Under Pension Rules, 1950, the minimum age of the
qualifying service for pension is 18 years – Minimum age for
entering into service under Bihar Service Code, 1952 is not
prescribed – Board in its meeting held on 15.01.2004 took decision
that in case of those who have entered into service prior to attaining
age of 18 years, taking their age as 18 years as on the date of their
appointment, they will be superannuated on completion of 60 years
in case of category 4 and 58 years in case of category 3 – Taking
note of its Resolution dated 15.01.2004, the appellant was informed
that he has completed 42 years of qualifying service which an
employee could render and he stood retired from service after
completing 42 years of qualifying service – Whether a person can
be superannuated prior to his attaining the age of 60 years merely
because he completed 42 years of qualifying service – Held: Per
Ajay Rastogi, J. – From the scheme of Rules, it is clear that
superannuation age prescribed u/r. 73 of the Bihar Service Code,
1952 will apply for retirement purpose and a person cannot be
continued beyond the age of completion of 42 years in service taking
note of Pension Rules, 1950 – It clearly manifest that the government
servant who had completed 42 years of service on attaining the
age of 60 years, both implicit, has to be superannuated in terms of
scheme of Rules – Per Indira Banerjee, J. – A person can only be
retired on attainment of the prescribed age of retirement unless the
rules expressly make length of service a criteria for retirement –
r.73 of the Bihar Service Code does not prescribe any length of
service as criteria for retirement – Decision to retire appellant before
[2020] 11 S.C.R. 170
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he attained the age of 60 years as per his date of birth as recorded
in the service records thus cannot be sustained – Matter referred to
larger bench  in view of difference of opinion – Service Law –
Contract Act, 1872 –  s.11 – Majority Act, 1875 – s.3.
Referring the matter to larger Bench, in view of difference
of opinion, the Court
HELD:
Per Ajay Rastogi, J.
1. There is no dispute that the service conditions of the
employees are ordinarily governed by the statutory rules or in
its absence, under regulations or administrative decisions having
a binding force but the person who attains the age of majority
alone is competent enough to enter into valid contract of service.
Section 11 of the Indian Contract Act, 1872 defines as to who is
competent to contract and clearly manifests that for entering into
valid contract of service, one has to attain the age of majority in
terms of the Majority Act, 1875 and what could be the age of
majority has been defined under Section 3 of the Majority Act,
1875. [Paras 13, 14][181-C, E]
2. Indisputedly, the appellant, in the instant case, was minor
on the date of entry into service in May 1970 and unless there is
a specific rule to the contrary, minor is not eligible/qualified to
seek public employment. It is true that the minimum age at the
entry level shall always be prescribed by the rule making
authority.  In the instant case, the State authority under its Pension
Rules, 1950 prescribes the qualifying service of Government
servant which was raised to 18 years by an amendment made
effective from 23rd August, 1950. If the minimum age at the
relevant time was not prescribed under the Bihar Service Code,
1952, at least the Government is justified in taking assistance of
the Pension Rules, 1950 to hold that the minimum age at the
entry point shall be 18 years for all practical purposes. [Para
15][181-G-H; 182-A-B]
3. Admittedly, in this case, when the appellant entered into
service, he was 15 years and 6 months old and had not attained
the age of majority and the minimum age at the entry point in
GOPAL PRASAD v. BIHAR SCHOOL EXAMINATION BOARD
AND OTHERS
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[2020] 11 S.C.R.
terms of the Pension Rules, 1950 is 18 years and 

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