JUDGMENT S. Rafat Alam and Sudhir Agarwal, JJ.
1. We have heard Sri D.K. Maurya, learned Counsel for the appellant and also perused the order of Hon'ble Single Judge.
2. The short controversy involved in this appeal is whether the petitioner/appellant whose date of birth is 1st July, 1943 is entitled to get Sessions benefit available to a person who attained the age of superannuation ongoing Session.
3. The brief facts giving rise to this appeal are that the petitioner/appellant was appointed as Assistant Teacher on 21st July 1975 in a Primary School namely Kishan Pura Madhyamic Vidyalaya, Itally Gazna, District Jaunpur. The date of birth of petitioner/appellant recorded in his service book is 1st July, 1943. The recruitment and conditions of service of Assistant Teacher of Primary School in which the petitioner/appellant was appointed are governed by the U.P. Basic Education (Teachers) Service Rules, 1981 (hereinafter referred to as 1981 Rules) promulgated in exercise of power under Sub-section 1 of Section 19 of U.P. Basic Education Act, 1972. The age of superannuation is prescribed under Rule 29. The aforesaid Rule was amended by U.P. Basic Education (Teachers) Service 3rd Amendment Rule, 1987 published on 12th June, 1989 and under Rule 2 the definition of Academic Session was inserted. Rule 29 as amended reads as under:
izR;sd v/;kid ml ekl ds ftlesa mlus viuh vk;q ds 60 o"kZ iwjs dj fy;s gksa vfUre fnu vijkgu esa lsok fuo`Rr gksxkA ijUrq 30 twu dks lsok fuo`Rr gksus okys fdlh v/;kid dks NksM+dj dksbZ vU; v/;kid tks f'k{kk l= ds nkSjku lsok fuo`Rr gksrk gSA lsok fuo`fRr ds fnukad ds i'pkr vkxkeh 30 twu rd dk;Z djrk jgsxk vkSj lsok dh ,slh vof/k dks fu;kstu dh foLrkfjr vof/k le>k tk;sxkA
4. A perusal of the aforesaid Rule shows that if a person completes 60 years of age during the month he shall retire on the last date of such month. However, except such teachers who retire on 30th June, all other teachers who retire during an Academic Session would be allowed to continue till 30th June and the aforesaid period shall be deemed as extended period of employment. The date of birth of the petitioner/appellant being 1st July, 1943, he attained 60 years of age on 30th June, 2003.
5. However, the learned Counsel for the petitioner/appellant vehemently contended that his date of birth being 1st July, 1943 he cannot be treated to have attained 60 years of age on 30th June, i.e. the day preceding the date of birth and since he attained the age of 60 years on 1st July, 2003, therefore, is entitled for the benefit of Academic Session i.e. to continue till 30th June, 2004. The aforesaid submission, in our view, is not correct. There is a general misconception that person attains a particular age on the date on which he was born. The correct position is that in the absence of an express provision, the settled principle is that a specified age in law is to be computed as having been attained on the day preceding the anniversary of the birthday. In Halsbury's Laws of England, 3rd Edition, Vol. 37, para 178 at page 100 the law on the subject has been stated as under:
In computing a period of time, at any rate when counted in years or months no regard is, as a general rule, paid to fractions of a day, in the sense that the period is recorded as complete although it is short to the extent of a fraction of a day similar, in calculating a person's age the day of his birth counts as a whole day, and he attains a specified age on the day next before the anniversary of his birthday.
6. The issue was considered in an English decision. In Re Shurey Savory v. Shurey LR (1918) 1 Ch. 263 where the question came up for consideration was: does a person attain a specified age in law on the anniversary of his or her birthday or on the day preceding that anniversary. It was held that law does not take cognizance of part of a day and the consequence is that person attains required age on the day preceding the anniversary of his birthday. The same view is taken in another English case in Rex v. Scoffin LR (1930) 1 KB 741.
7. Probably the legislature recognizing the aforesaid principle, expressly provided in Section 4 of Indian Majority Act, 1875, criteria for computation of age of majority. Section 4 of the Act of 1875 reads as under:
4. Age of majority how compute:-In computing the age of any person, the day on which he was horn is to be included as a whole day, and he shall be deemed to have attained majority, if he falls within the first paragraph of Section 3, at the beginning of the twenty-first anniversary of that day, and if he falls within the second paragraph of Section 3, at the beginning of eighteenth anniversary of that day.
8. A Division Bench of Hon'ble Mysore High Court in AIR 1967 Mysore 135 G. Vatsala Rani v. Selection Committee following the aforesaid judgments, has also taken same view and has observed as under:
But in the absence of any such express provision, we think, it is well settled that any specified age in law has to be computed as having been attained or completed on the day preceding the anniversary of the birth day, that is, the day preceding the day of calendar corresponding to the day of birth of the person.
9. The apex Court has also approved the aforesaid principle and in Prabhu Dayal Sesma v. State of Rajasthan and Anr. has held as under:
In calculating a person's age, the day of his birth must he counted as a whole day and he attains the specified age on the day preceding the anniversary of his birthday.
10. The appellant having born on 1st July, the day of his birth is to be counted as a whole day and that being so, he completed one year of age on 30th June in the next year. Thus he attained 60 years of age on 30th June, 2003. That being so, he is not entitled for the benefit of extended employment up to 30th June inasmuch as Rule 29 as amended in 1987 clearly exclude such teachers who attain age of superannuation on 30th June.
11. In the result we are of the view that the Hon'ble Single Judge has rightly dismissed the writ petition since the petitioner is not entitled for any relief. Accordingly, the special appeal lacks merit and is dismissed without any order as to costs.