If employed as a minor, would age or years on the job determine the basis of retirement? Supreme Court Division Bench split

A two-judge bench of the Supreme Court comprising Justices Indira Banerjee and Ajay Rastogi could not reach consensus on the question of whether the age or number of years served on the job would determine the basis of retirement in cases where a person was employed before he attained majority. (Gopal Prasad v Bihar School Examination & Others_Judgement).The case before the Court concerned one, Gopal Prasad, an employee of the Bihar School Examination Board (Appellant), who was appointed to service on May 20, 1970, when he was 15½ years of age. .In January 1998, the age of appointment to inferior posts was increased prospectively to 18 from 16..Born on November 19, 1954, Prasad was to turn 58 years on November 19, 2012. The age of retirement was, however, increased from 58 years to 60 years, before November 18, 2012. The Appellant’s date of birth being November 19, 1954, he was to complete 60 years on November 18, 2014..However, in January 2004, the Bihar School Examination Board resolved to treat the age of entry into service, of those incumbents who were below 18 years at the time of joining service, as 18 years at the time of their appointment..Thereafter in February 2012, an RTI was filed enquiring about the date of superannuation fixed by the Board for Prasad..In March 2012, the Board informed Prasad that in view of the decision dated February 14, 2004, the Appellant’s age as on May 27, 1970, was to be considered 18 years. Therefore his retirement was deemed to be on May 31, 2010, on completion of 58 years. However, since the reitrement age had later been increased to completion of 60 years, the latest date of retirement would be May 31, 2012..However, Prasad contended that his retirement would only fall on November 18, 2014, in view of his actual date of birth. .The question was whether the government was correct in retiring him in May 2012 or should he be allowed to complete 60 years of age in service i.e. until November 2014..Justice Indira Banerjee ruled that the appeal should be allowed..“Rule 73 of the Bihar Service Code does not prescribe any length of service as criteria for retirement. The prescribed age of retirement for employees of the category to which the Appellant belonged was 58 years, later increased to 60 years. The decision of the respondents to retire the Appellant before he attained the age of 60 years as per his actual date of birth, as recorded in the service records cannot be sustained,” reads the judgment by Justice Banerjee..Justice Banerjee held that the Appellant is entitled to a declaration that the Appellant was entitled to continue in service till November 18, 2014, being the date on which he completed 60 years of age, as per his service records. She added that the appellant should be entitled to all consequential benefits including arrears of pay, if any, pensionary benefits etc..However, Justice Ajay Rastogi differing from Justice Banerjee, held that the appeal should be dismissed..Justice Rastogi held that in the instant case, when the appellant entered into service, he was 15 years and 6 months old and “had not attained the age of majority”..“When the appellant entered service, the minimum age at the entry point in terms of the Pension Rules, 1950 is 18 years and maximum age prescribed for exit point is 60 years as a logical consequence, the total length of service which one could render in the Government service may not exceed 42 years and when there is an unambiguous self explicit 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,” reads the judgment authored by Justice Ajay Rastogi..Justice Rastogi further opined that from the scheme of the Rules, it is apparent that the superannuation age prescribed under Rule 73 of the Bihar Service Code, 1952 will apply for retirement purposes and that the person cannot be continued beyond the age of completion of 42 years in service, taking note of the Pension Rules, 1950..Since the is a two-judge bench was unable to agree on the ruling, Justice Banerjee has now directed that the matter be placed before the Chief Justice of India for assignment to a larger bench..Read the Judgment: