IN THE HIGH COURT OF JUDICATURE AT PATNA
LPA No.373 of 2011
1. Bihar State Construction Corporation Through Its
Managing Director Khawaja Imli,Anishabad,Patna
2. Managing Director, Bihar State Construction
Corporation Khawaja Imli, Anishabad, Patna
.... Appellants/ Respondents
Versus
Ramesh Lal son of Sri Rudra Narayan Lal Das, Resident
of Vill and P.O. Vangaon (Vehata Tol), P.S. Vangaon,
Distt- Saharsa .... Respondent/ Petitioner
with
LPA No.409 of 2010
1. Bihar State Construction Corporation Through Its
Managing Director Khawaja Imli,Anishabad,Patna
2. Managing Director, Bihar State Construction
Corporation Khawaja Imli,Anishabad,Patna
.... Appellants/ Respondents
Versus
1. Ramanand Roy S/O Late Govind Roy R/O Vill
+P.O.Ufardaha,Via-Nehra,P.S.Bahera,Distt-Darbhanga
.... Respondent/ Petitioner
with
LPA No.1514 of 2010
1. Bihar State Construction Corporation Through Its
Managing Director Khawaja Imli, Anishabad, Patna
2. Managing Director Bihar State Construction,
Khawaja Imli, Anishabad, Patna
.... Appellants/ Respondents
Versus
1. Surendra Prasad Tiwari S/O Late Bindeshwari Tiwari
R/O Vill.+P.O.- Sikta, P.S.- Kuber Asthan, Distt.- Kushi
Nagar(U.P.)
.... Respondent/ Petitioner
with
LPA No.1515 of 2010
1. The Bihar State Construction Corporation Through Its
Managing Director Khawaja Imli, Anishabad, Patna
2. Managing Director Bihar State Construction Ltd.,
Mohalla- Khawaja Imli, Anishabad, P.S.- Gardanibagh,
Distt. Patna
.... Appellants/ Respondents
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Versus
1. Bindeshwar Prasad Thakur S/O Late Yogeshwar
Thakur R/O Vill.- Sri Nagar, Khairpatti, P.S.- Sahpur
Kamal, Distt.- Begusarai
.... Respondent/ Petitioner
2. The Director, Child Development Project, Indira
Bhawan, Ramcharitra Singh Path, Patna-1
3. The Child Development Project Officer, Bairiya,
Bariarpur, Begusarai
.... Respondent/ Respondents
2nd Set
with
LPA No.1598 of 2010
1. Bihar State Construction Corporation Through Its
Managing Directoer Khawaja Imli, Anishabad, Patna
2. Managing Director , Bihar State Construction
Corporation Khawaja Imli, Anishabad, Patna
.... Appellants/ Respondents
Versus
1. Uday Kumar S/O Late Bhagirath Singh R/O
Vill+P.O.Vishunpur, Via +P.S. Vajirganj, Distt-Gaya
..... Respondent/ Petitioner (1st set)
2. Managing Director, Bihar State Food & Civil Supplies
Corporation Limited Sone Bhawan, 5th Floor, Birchand
Patel Marg, Patna
...... Respondent/ Respondent (2nd set)
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For the Appellants : Mr R. K. Shukla, Advocate
For the Respondents : Mr N.N.Ojha, Advocate
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4 22.7.2011 Heard the parties.
2. The common issue falling for determination in all
these appeals is whether on account of resolution of the
Board of Directors dated 24.8.1976 against agenda item
no.2 relating to service conditions of the regular staff of
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the appellant, Bihar State Construction Corporation, its
regular staff such as the writ petitioners would
superannuate at the age of 58 or at the age of 60 years.
3. At the instance of individual employees, the writ
petitioners, the Writ Courts have held that on account of
the amendment of Rule 73 of the Bihar Service Code
some time in the year 2005, the age of superannuation of
the employees of the State Government was extended
from 58 years to 60 years and as a result, since the
regular staff of the Corporation were to be governed in
accordance with government rules in respect of service
conditions, they also got the benefit of such amendment
and extension of age of superannuation by two years.
The Writ Courts have mainly placed reliance upon a
Division Bench judgment of this Court in the case of
Lala Nand Kumar V. Bihar State Food and Civil
Supplies Corporation Limited, 2008(1) PLJR 579. That
Division Bench judgment considered the exact wordings
of a resolution of the Board of Directors of that
Corporation dated 21.5.1973 and as discussed in
paragraph 8 of that judgment, a conclusion was reached
that according to the resolution the future changes in the
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Bihar Service Code were also applicable to the
employees of the Corporation. The resolution extracted
in paragraph 5 of that judgment led to the conclusion by
the Division Bench that until the relevant rules are
framed by the Corporation, provisions in the Bihar
Service Code as applicable to the State Government
employees stood adopted for the employees of the
Corporation. The wordings permitted such interpretation
in favour of the employees and the Division Bench
followed judgment of the Supreme Court in the case of
Harwindra Kumar v. Chief Engineer, Karmik, AIR
2006 SC 365. In that case there was a clear scope to
hold that whatever be the rules in the Bihar Service Code
including amendments applicable to the State
Government employees, the same would be applicable to
the employees of that Corporation until the Corporation
framed its own service rules.
4. In our view, the resolution adopted by the Board
of Directors of Bihar State Food and Civil Supplies
Corporation cannot be of any help in deciding a similar
issue in the context of the appellant Corporation i.e.
Bihar State Construction Corporation. For a proper and
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just decision it is incumbent to look to the admitted
resolution of the Board of Directors dated 24.8.1976
against agenda item no.2 relating to service conditions of
the regular staff of the Corporation which runs as
follows:
” The Board resolved that the employees of
the Corporation who have been appointed
directly will be governed in accordance with
Government rules till 31.1.77 as preparation
of rules regarding service conditions is
likely to take time “.
5. The aforesaid resolution is available in the record
of CWJC No.11376 of 2009 as Annexure-1. Arguments
have been advanced by the parties on the basis of said
resolution that the same shall govern the rights of the
writ petitioners because no rules regarding service
conditions of the regular staff of the Corporation could
ever be framed by the Corporation. It is also admitted
that no other resolution was adopted by the Board of
Directors either to continue the effect of aforesaid
resolution dated 24.8.1976 or to provide otherwise.
According to learned counsel for the Corporation, the
said resolution is capable of only one meaning that the
government rules as they existed till 31.1.77 alone shall
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be applicable for determining service conditions of the
regular staff of the Corporation. According to him,
subsequent amendments including that of 2005
enhancing age of superannuation from 58 to 60 years
will not be applicable to the staff of the Corporation. On
the other hand, on behalf of the writ petitioners it has
been submitted that the date 31.1.77 limits only the
period till which the government rules were to govern
the service conditions of the employees of the
Corporation because the rules of the Corporation were
expected to be ready by that time. But it was the
intention of the Board of Directors that till the
Corporation prepares its own rules, the employees of the
Corporation would be governed in accordance with
government rules. According to learned counsel for the
writ petitioners, there was definitely no vacuum and the
date 31.1.77 de facto would stand extended and in fact
till date the staff of the Corporation is governed by the
government rules and hence, the term “till 31.1.77” is of
no consequence and the employees of the Corporation
must be given the benefit of government rules as
amended in the year 2005.
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6. Learned counsel for the appellant Corporation
has placed reliance upon a Division Bench judgment in
the case of State of Bihar V. Braj Mohan Prasad, 2010
(1) PLJR 707. In that case a similar claim on behalf of
the employees of Bihar State Ware Housing Corporation
was negatived by the Court after noticing the role of the
State Government in the matters relating to the said
Corporation in Sections 42 and 43 of the Warehousing
Corporations Act and express provision in regulation 13
of that Corporation whereunder 58 was the age fixed for
superannuation of the employees and the proviso enabled
the Corporation to engage any person above the age of
58 years only on contract. In such factual and legal
situation, the Division Bench in that case held that even
if the retirement age of employees in other public sector
undertakings of the Bihar government had been
increased on the basis of notification of the State
Government dated 24.3.2005 the age of the retirement of
the employees of Bihar State Ware Housing Corporation
would remain as 58 years as determined by the
Regulation.
7. Learned counsel for the writ petitioners has
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placed reliance upon a judgment and order passed by one
of us (Shiva Kirti Singh, J.) dated 18.3.2008 in CWJC
No.16333 of 2006 (Md. Nijam v. the State of Bihar &
ors.) to submit that in one of the paragraphs, reliance was
placed upon the judgment of this Court in the case of
Lala Nand Kumar (supra) in the context of Bihar State
Industrial Development Corporation, the appellant and it
was observed that as per decision of the Corporation, the
writ petitioner would be entitled to the same service
conditions as are available to government employees
and, therefore, his age of superannuation would also
stand extended to 60 years in the light of principle laid
down by the Division Bench in the case of Lala Nand
Kumar. In reply, learned counsel for the appellants has
rightly submitted that the said judgment was in the
context of validity of an order repatriating the writ
petitioner to the Corporation and the issues did not
involve examining the relevant resolution of the Board of
Directors dated 24.8.1976. According to him, the
observation was a casual observation without going into
relevant materials and in fact, the said judgment was
challenged through LPA No.556 of 2008 preferred by
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the State of Bihar leading to judgment and order of the
Division Bench dated 7.9.2009. That judgment also
governed a related LPA No.492 of 2008 (Md. Nijam v.
State of Bihar). The LPA Bench held that the order of
repatriation should not have been quashed but since the
employee was to superannuate from government
department within few months, it would not interfere in
the matter. It was also clarified that the order in that case
shall not be treated as a precedent.
8. What flows from the judgment cited by the rival
parties is that rights of the employees of the Corporation
would depend upon the intention of the Board of
Directors flowing from the resolution governing their
service conditions or from the service rules or
regulations, if any. In the present case, admittedly there
are no rules or regulations and the relevant resolution of
the Board of Directors has already been noticed above.
The intention of the Board of Directors in the present
case was not to grant parity for all times to come
between the employees of the Corporation and those of
State government in the matters of service conditions
including age of superannuation. The expressions
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required to convey such parity are available in the case
of Lala Nand Kumar (supra) which related to Bihar State
Food and Civil Supplies Corporation Limited and in the
case of Harwindra Kumar (supra) which related to U.P.
Jal Nigam. In the present case, the Board of Directors
indicated no intention of granting absolute parity but
provided for an interim arrangement till a particular date
i.e. 31.1.77 for application of government rules to the
employees of the Corporation. This can, at best, imply
adoption of service condition rules as applicable till
31.1.77. The fact that no rules of the Corporation were
prepared cannot have any relevant bearing to the
intention of the Board of Directors on 24.8.1976 that
they wanted and hence provided that the government
rules will govern the employees of the Corporation till
31.1.77. In view of such phraseology used by the Board
of Directors, amendments in the government rules till
31.1.77 will apply to the employees of the Corporation
but subsequent amendments including those of 2005
whereby the age of superannuation was enhanced from
58 to 60 years for the government employees cannot
apply to the employees of the Corporation. In that view
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of the matter, the judgments and orders passed by the
Writ Courts which are under appeal in the present Letters
Patent Appeals have to be set aside. We order
accordingly.
9. In support of our aforesaid view, it will be useful
to refer to and rely upon another Division Bench
judgment of this Court in the case of Rajdeo Paswan v.
State of Bihar, 2009 (1) PLJR 150 wherein it was held
that in absence of any resolution by the competent
authority, employees of other legal bodies cannot get the
benefit of increase in the retirement age of employees of
Bihar Government.
10. It may also be useful to refer here a letter of the
Finance Department dated 21.11.2009 and to another
letter of the parent department i.e. Water Resources
Department dated 18.8.2009 contained in Annexures 1
and 2 to the memorandum of appeal. These letters show
that the State Government which is the master of public
enterprises like the appellant Corporation had taken a
policy decision that extension in the retirement age of
employees of public corporations and enterprises shall be
granted only for such corporations and enterprises which
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are running in profit regularly since five years and have
overcome their accumulated losses. In that light, by
order dated 18.8.2009 the Managing Director of the
appellant Corporation was informed that no extension in
the retirement age could be given to the employees of the
appellant Corporation which according to uncontroverted
averments is in losses for last so many years and
practically non- functional.
11. In the result, the writ petitions are dismissed
and all the appeals are allowed. There shall be no order
as to costs.
(Shiva Kirti Singh, J.)
(Shivaji Pandey, J.)
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