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Ompal Singh v. The Zila Basic Siksha Adhikari, Bareilly & Ors. - SPECIAL APPEAL No. 102 of 2006 [2006] RD-AH 3236 (13 February 2006)


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- 1st July is the date of birth. Retired on 30th June COURT NO. 34


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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