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Ompal Singh v. The Zila Basic Siksha Adhikari, Bareilly & Ors. - SPECIAL APPEAL No. 102 of 2006  RD-AH 3236 (13 February 2006)
- 1st July is the date of birth. Retired on 30th June COURT NO. 34
SPECIAL APPEAL NO. 102 (D) OF 2006
Ompal Singh ------------- Appellant/Petitioner
The Zila Basic Siksha Adhikari,
Bareilly & Ors. ------------- Respondents
Hon'ble Dr. B.S. Chauhan, J.
Hon'ble Dilip Gupta, J.
(By Hon'ble Dr. B.S. Chauhan, J.)
This special appeal has been filed against the judgment and order dated 12.9.2005 of the learned Single Judge, by which the writ petition of the petitioner for seeking extension of service has been rejected.
The learned Single Judge has placed reliance upon two earlier Division Bench judgments of this Court in Committee of Management of Janta Inter College Vs. Sheel Chand Tyagi & Ors., (1993) 22 ALR 546; and Ram Lal Prasad Vs. State of U.P. & Ors., 1987 UPLBEC 566. By the said judgments a similar controversy has been decided considering the relevant Rule 29 of the U.P. Basic Education (Teachers) Service Rules, 1981, wherein it had been held that a teacher retiring on 30th June cannot be given the benefit of extension of service in terms of the said provision.
The case is squarely covered by the said two judgments, and therefore, no interference is called for.
We also find no force in the submissions made by Shri Pradip Kumar, learned counsel for the appellant/petitioner that as the date of birth of the appellant is 1st July, he should retire on 1st July, and thus, he is entitled for the benefit of the said Rule 20.
In the instant case, appellant's date of birth has been 1st July, 1942, and thus, it is submitted by Shri Pradip Kumar that he would have retired on 1st July, 2002 on attaining the age of 60 years. Thus, he was entitled for extension.
In G. Vatsala Rani Vs. Selection Committee for Admission to Medical Colleges, Bangalore, AIR 1967 Mys. 135, the Mysore High Court explained the provisions of Section 4 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."
The Court held that she completed the age of 16 years on 1-10-1966.
In Km. Sidheshwari Devi Srivastava Vs. State of U.P. & 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 Vs. State of Rajasthan & ors., 1998 (3) RLW 1769.
The Hon'ble Supreme Court has considered the issue in Prabhu Dayal Sesma Vs. State of Rajasthan & ors., AIR 1986 SC 1948 and placed reliance on the judgments of English Courts in Rex Vs. Scoffin, (1930) 1 KB 741; and Re: Shurey, Savory Vs. 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."
In view of the above, as the date of birth is to be excluded while determining the actual date of retirement, petitioner has attained the age of 60 years on 30th June, 2002, and he cannot claim to be eligible for further continuance.
Appeal is devoid of any merit and accordingly dismissed.
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