MIRA BAGCHI CHOWDHURY Vs. GOBINDA CHANDRA PAL

JUDGEMENT

(1.) The notification being No. (258-Edn(A)) / (18-2/86) dated 9th April, 1986 of the Education Department, Government of West Bengal was assailed by the writ petitioner in the court below with success and the learned Judge has struck down the said notification. After hearing the learned Counsel for the parties we are however satisfied, and this we say with due respect to the learned trial Judge, that the judgement of the learned trial Judge was erroneous. The impugned notification dated 9th April, 1986 from the Deputy Secretary to the Government of West Bengal to the Director of Public Instruction relates to "the determination of seniority of the typists of Education Directorate who were employed in Government service before attaining 18 (eighteen) years of age" and it was notified, in consultation with the Finance Department, Government of West Bengal that seniority of an employee cannot be affected on the ground that he/she was a minor at the time of appointment".

(2.) Taking it as a matter of first impression, we do not find any thing unreasonable, illegal, unfair or unjust in this impugned order and therefore we have failed, and this again we say with respect, to understand how the learned trial Judge thought it fit to invoke the principles laid down by the Supreme Court in Royappa or Maneka and other post-Maneka decisions. As we see it, appointment of a person below the age of 18 is not illegal. Reference in this connection may be made to the relevant provisions of the Indian Contract Act which makes it unmistakably clear that appointment of a minor as an agent is perfectly illegal. The learned Counsel for the writ petitioner has also urged that the petitioners are not interested in challenging the legality of the appointment of the Typists who were appointed at below the age of 18 years. But his concession apart, as we have already indicated, we have not been able to find anything in the general law under which it can be ruled that appointment of a servant below the age of 18 is illegal. If once we hold that the appointment is not illegal, we find no reason to hold that the Government have acted unreasonably, illegally, unfairly or in any way contrary to the principles of justice in holding that the entire period of service put in by an employee, though appointed before the attainment of the age of 18 years, shall be taken into account in determining his seniority. Since the appointment before the age of 18 is not being challenged as impermissible and we have also found to reason to doubt its legality, it would, in our view, rather be unreasonable, unjust and unfair to exclude the period upto the date of attainment of that age for the purpose of seniority or other matters relating to service, even though the appointees have in fact put in service during that period. We are rather inclined to hold that the principle in Royappa and Maneka and Kasturi Lal and all that mandating every State action to be reasonable, right, fair and just, would militate against such exclusion.

(3.) Our attention has been drawn to the Notification No.645 Mis. dated 21st May, 1941 labelled as "Rules for recruitment of typists in the Secretariat and in certain other Government offices", wherein it has been provided that a person in order to be qualified for the appointment as Typist "must be less than 25 years". There is no minimum age limit in that Notification and that being so it cannot be urged with any amount of plausibility that the appointment of any person below 18 would have been contrary to this Notification or otherwise illegal.