Case: Gopal Prasad v. Bihar School Examination Board & Others
The appellant was appointed as a Calligraphist-cum-Assistant of the Bihar School Examination Board, at the age of 15. The minimum age to enter into pensionable service was 16 years, although there was no minimum age requirement for the post. Therefore to get the pension for this post, the period of service before attaining the age of sixteen years, will not be counted.
In the year 1998, a new circular was passed which required minimum 18 years of age for the post, which had prospective effect that is applied only to appointments made after the circular was passed.
Rule 73 of the Bihar Service Code provides that the date of retirement for a government service, is the day when they attains the age of 58 years. However, they may continue their service after this compulsory retirement, if the State government sanctions such employment in writing.
In 2004, the Examination Board determined the age of entry of service as 18 years. And that employees who were appointed before the age of 18 years, were deemed to have attained the age of 18 years at the time appointment, were to retire at the age of 58 years.
Earlier, the bench comprising of Justice Ajay Rastogi and Justice Indira Banerjee were unable to decide in this matter, later the matter was placed before the Chief Justice of India.
Justice Banerjee had held that any decision to change the age of retirement has to be taken in consonance with the Rule 73 of Bihar Service Code, and that the decision cannot be merely taken by passing a resolution by the Board. She held that the appeal should be allowed and the judgment of Patna High Court should be set aside.
Justice Rastogi, however, held that as per the Majority Act, 1875, only the persons who attains the age of 18 years are legally allowed to enter into a valid contract. At time when the appellant had joined the service, the Pension Rules of 1950 required minimum age of 18 years for appointment and age of 60 years for retirement. Hence, Justice Rastogi directed for the dismissal of the appeal petition.
Due to this difference of opinions, the matter was further placed in front the CJI for reference to a larger bench.