Two Judges SC Bench refers the matter to CJI, divergence of views in appeal

The SC on May 28, 2020 {Gopal Prasad vs Bihar School Examination Board & Others}, view of Justice Indira Banerjee, observed that the mere fact that an employee may have been a minor at the time of his initial appointment is inconsequential in the absence of any law at the material time of his appointment, prohibiting appointment of 15/16 year old minors. 

Justice Indira Banerjee also observed that it is nobody’s case that any of the concerned employees repudiated their contract of appointment on attaining majority. It was held that an employer who knowingly appoints minors with impunity, with its eyes open, cannot evade its obligations under the contract of employment, and that too after the employee has rendered service for almost two decades after attaining majority. It was held that the contracts can be said to have been ratified by the employees concerned, on attaining majority. It was also held that it cannot, also be said, that an employee appointed when he was 15½ years old, attained any undue advantage, when there was no minimum age for appointment at the material time.

The question which fell for consideration in present case was whether persons who had joined service before attaining the age of 18 years could unilaterally be retired before they actually attained the age of retirement stipulated in Rule 73 of the Bihar Service Rules, because they were to be deemed to have completed 18 years of age on the date of their appointment.

It was held by Justice Indira Banerjee that when the age of retirement is governed by express rules, which do not prescribe length of service as a criteria of retirement, but provide for retirement upon attainment of age, an employee cannot be made to retire before attaining that age of retirement, only because he/she has served for a certain length of time, by a convoluted process of logical reasoning. It was held by her that judicial conscience, also does not permit her to uphold the judgment under appeal, only because the High Court has, for a while, followed the Full Bench decision of that Court which has held the field for a while.

It was held by her that in this case Rule 73 of the Bihar Service Code does not prescribe any length of service as criteria for retirement. It was held that the prescribed age of retirement for employees of the category to which the Appellant belonged was 58 years, later increased to 60 years. It was held by her that 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. As per her, the appeal deserves to be allowed.

But as the other Judge on the Bench, Justice Ajay Rastogi did not agree upon that and gave his separate dissenting judgment by which he dismissed the appeal. Consequently, it was ordered that since the two Judges have not agreed, let the matter be placed before Hon’ble the Chief Justice of India for assignment to a larger Bench.