# Achhaibar Maurya v. State of U.P. and others

- **Citation:** (2007) 1 ILRA 114
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2006-09-08
- **Bench:** S. Rafat Alam, Sudhir Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/achhaibar-maurya-v-state-of-u-p-and-others-40733
- **Pages:** 3

## Headnote

Rules, 1981-Rule 29-Benefit of academic
session-Assistant
teacher
in
primary
school-date of birth as recorded in
service book 1.7.43 petitioner shall
achieve
the
age
of
60
years
on
30.6.2003-not entitled for benefit of
academic
session-petition
rightly
dismissed.

Held: Para 9

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.
Case law discussed:
LR (1918) 1 Ch. 263
LR (1930) 1 K.B.-741
AIR 1967 Maysore-135
AIR 1986 SC-1948

## Text

114 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
petitioner has been passed without there
being any evidence or material on record
to show that the petitioner had used the
material, or could have used the same for
answering
the
questions
in
the
examination. As such, while allowing this
writ petition, in my view, the petitioner
would also be entitled to costs as he has,
for no fault of his, lost one valuable year
of his academic career. In my assessment,
a token cost of Rs.5,000/- (Rs. Five
thousand) should be imposed on the
University authorities, although the same
may not be sufficient compensation to the
petitioner for the loss of his one year.

9. Accordingly, this writ petition
stands allowed. The order dated 12.4.2006
passed by Deputy Registrar (Exam.) is
quashed. The petitioner shall be entitled
to cost of Rs.5,000/- (Rs. Five thousand)
from the respondent no.2.

Petition Allowed.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.09.2006

BEFORE
THE HON'BLE S. RAFAT ALAM, J.
THE HON'BLE SUDHIR AGARWAL, J.

Special Appeal No. (221) of 2004

Achhaibar Maurya

...Appellant
Versus
State of U.P. and others ...Respondents

Counsel for the Appellant:
Sri S.C. Kushwaha
Sri D.K. Maurya

Counsel for the Respondents:
Sri B.P. Singh
S.C.

U.P. Basic Education (Teachers Service
Rules, 1981-Rule 29-Benefit of academic
session-Assistant
teacher
in
primary
school-date of birth as recorded in
service book 1.7.43 petitioner shall
achieve
the
age
of
60
years
on
30.6.2003-not entitled for benefit of
academic
session-petition
rightly
dismissed.

Held: Para 9

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.
Case law discussed:
LR (1918) 1 Ch. 263
LR (1930) 1 K.B.-741
AIR 1967 Maysore-135
AIR 1986 SC-1948

(Delivered by Hon'ble S.Rafat Alam, J.)

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
1 All] Achhaibar Maurya V. State of U.P. and others
115
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 aforesaid Rule 29
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
Vs. 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
116 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
view is taken in another English case in
Rex Vs. Scoffin [LR (1930) 1 KB 741].

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 Vs. 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 Vs. State of Rajasthan
and another 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. 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.

10. 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.

Appeal Dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.10.2006

BEFORE
THE HON'BLE A.K. YOG, J.
THE HON'BLE PRAKASH KRISHNA, J.
THE HON'BLE (MRS.) SAROJ BALA, J.

Reference No. 1 of 1994

Ramesh Chandra Srivastava ...Applicant
Versus
State of U.P. and others ...Respondents

Counsel for the Applicant:
Sri Sharad Malviya

Counsel for the Respondents:
Sri S.M.A. Kazmi, Adv. General
Sri R.V. Singh