JUDGMENT B.S. Chauhan, J.
1. This writ petition has been filed for quashing the order dated 24.2.2004 (Annex 4 and 5), by which the application forms of the petitioners of U.P. Judicial Service Civil Judge (Junior Division) Preliminary Examination, 2003 have been rejected on the ground of being over age.
2. Facts and circumstances giving rise to this case are that an advertisement has been issued on 22/28.11.2003 for holding Preliminary [Examination 2003 for the posts of U.P. Judicial Service Civil Judge (Junior ! Division), and as per the advertisement, maximum age of the candidates on 1st July, 2004 should not be more than 35 years. It further provides that there has been an amendment in the Rules of U.P. Judicial Service Rules in 2003. Thus, those candidates who were eligible, i.e., less than 35 years of age on 1st July, 2001 and Ist July, 2002, they shall also be eligible to apply. Petitioners applied for the said post. However, their candidatures have been rejected being over age.
3. We have heard the learned counsel for the petitioners and Shri Pushpendra Singh, learned counsel appearing for respondent No. 2.
4. The question does arise as to whether petitioners were less than 35 years of age on. 1.7.2001. In addition to the advertisement, the statutory Rules provide for eligibility, i.e. Rule 10 of U.P. Judicial Services Rules provides that candidates should not be more than 35 years in age as on the 1st day of July next following the year in which the Notification for the examination is being issued. Thus, the only question in the case is whether petitioners can claim eligibility of age, i.e. 35 years of age on 1st July, 2001.
5. Thus, this provision requires interpretation as to whether the day on which the candidate was born and the day on which his birthday falls, are to be included or excluded for determining the eligibility.
6. In G. Vatsala Rani v. Selection Committee for Admission to Medical Colleges, Bangalore, AIR 1967 Mys. 135, the Mysore High Court explained the provisions of Section 3 of the Majority Act, 1875. In the said case, question arose as to whether petitioner therein, who was born on 2-10-1950, would complete 16 years of age on 2-10-1966 or on 1-10-1966. The Court held that even for the purpose of admissions, age is to be determined excluding the date on which his/her birthday falls. The Court held as under:-
" But in the absence of any such express provision,... 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 birthday, that is, the day preceding the day of the calendar corresponding to the day of birth of the person."
7. The Court held that she completed the age of 1.6 years on 1-10-1966.
8. In Km. Sidheshwari Devi Srivastava v. State of U.P. and Ors., 1991 A.W.C. 561, the Allahabad High Court considered the same issue and held that the date on which an employee is born, has to be included and day of his anniversary is to be excluded for calculation while determining the exact date of superannuation. Similar view has been reiterated by the Rajasthan High Court in Kistoor Singh v. State of Rajasthan and Ors., 1998 (3) RLW 1769.
9. The Hon'ble Supreme Court has considered the issue in Prabhu Dayal Sesma v. State of Rajasthan and Ors., AIR 1986 SC 1948 and placed reliance on the judgments of English Courts in Rex v. Scoffin, (1930) 1 KB 741; and Re: Shurey, Savory v. Shurey, (1918) 1 Ch. 263, wherein the issue had arisen as to whether a person attains a specified age in law on the anniversary of his birthday or on the day preceding that anniversary and considered the entire law on the subject and came to the conclusion that the date comes on the preceding and not on the date his anniversary falls. The Apex Court observed as under:-
"In calculating a person's age the day of his birth must be counted as a. whole day and he attains a specified age on the day preceding the anniversary of his birth day. We have to apply well accepted rules for computation of time. One such rules is that fractions of a day will be omitted in computing a period of time in years or months in the sense that a fraction of a day will be treated as a full day. A legal day commences at 12 O'clock midnight a continues until the same hour the following night. There is a popular misconception that a person does attain a particular age unless and until he has completed a given number of years. In the absence of any express provisions, it Is well-settled that any specified age in law is to be computed as having been attained on the day preceding the anniversary of the birth day."
10. In view of the above, as the date of birth is to be excluded while determining the eligibility, petitioners had attained the age of 35 years on 30th June, 2001 and they cannot claim to be eligible for the post.
11. Petition is devoid of any merit. No fault can be found with the impugned orders issued by the respondent No. 2.
12. The petition is, accordingly, dismissed.