Allahabad High Court
Umesh Chandra Jaiswal Son Of Late Sri ... vs The State Of U.P. Through Secretary, ... on 19 November, 2007
Bench: S. Rafat Alam, Sudhir Agarwal
JUDGMENT
S. Rafat Alam and Sudhir Agarwal, JJ.
1. In the instant petition the sole petitioner has come up for quashing of the order of Public Service Commission, Allahabad dated 05.11.2007 intimating that his form and fee for appearing in the test for appointment to the post of Assistant Prosecution Officer is rejected on the ground that he was overage.
2. Learned Counsel for the petitioner vehemently contended that since he was born on 01.07.1966, he would complete 40 years of age on 01.07.2006, therefore, was not overage, and, rejection of his application form is wrong.
3. We do not find any force in the submission for the reason that under the Rules the maximum age for appointment in the State Government Services is 35 years for general category candidates. The cut-off date is 01.07.2006. Relaxation by 5 years is admissible to the candidates belonging to reserve category i.e. S.C., S.T. and O.B.C. Since the petitioner belongs to O.B.C. category, therefore, even if benefit of 5 years is given to him he was overage by one day on 01.07.2006. A person complete the year on the day preceding his date of birth. In the present case, the date of birth of the petitioner being 01.07.1966, he completed 35+5 years i.e. 40 years of age on 30.06.2006. The submission that he would complete 40 years of age on 01.07.2006 has no merit and based on misconception.
4. 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.
5. 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.
6. 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 born 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.
7. 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.
8. The apex Court has also approved the aforesaid principle and in Prabhu Dayal Sesma v. State of Rajasthan and Anr. AIR 1986 SC 1948 has held as under:
In calculating a person's age, the day of his birth must be counted as a whole day and he attains the specified age on the day preceding the anniversary of his birthday.
9. This view has been reiterated by this Bench also in Special Appeal No. (221) of 2004 Achhaibar Maurya v. State of U.P. and Ors. decided on 08.09.2006 wherein following the aforesaid exposition of law, it was held as under:
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.
Moreover, in the case in hand, the advertisement itself provides as under:
7. Age- The candidates must be of 21 years of age and not more than 35 years of age on 1st July, 2006 i.e. they must have born after 02.07.1971 and not later than 01.07.1985.
10. As per the specific condition contained in the advertisement itself, the petitioner was overage and, therefore, could not have been allowed to appear in the recruitment for the post of Assistant Prosecution Officer. The mere fact that the respondents No. 2 and 3 permitted the petitioner to appear in the preliminary test would not operate as estoppal against the respondents from rejecting his candidature on the ground that he was overage since it is a condition with respect to eligibility and if some error has crept in, on account whereof the authorities permitted candidate to participate at some stage of selection, that would not operate as waiver or estoppal against the authorities for permitting the candidate to appear in selection despite the fact that he is not eligible. In the present case, the petitioner having been born on 01.07.1966 was clearly overage on 01.07.2006 and, therefore, in our view, his candidature has rightly been cancelled by the U.P. Public Service Commission and we do not find any fault or reason to interfere in the said decision of the Commission.
The writ petition, therefore, lacks merit and is accordingly dismissed.