# Mukund Ram Mishra v. State of U.P. and Ors

- **Citation:** (2013) 2 ILRA 813
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-06-28
- **Case number:** Service Single No.3592 of 2013
- **Bench:** Anil Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mukund-ram-mishra-v-state-of-u-p-and-ors-42609
- **Pages:** 6

## Headnote

Rules-1981-Rule 29- Retirement of Basic
Education teacher-date of birth of petitioner
is
01.07.1951-accordingly
retired
on
30.06.14-no question of the benefit of
academic session-petitioner dismissed.

Held: Para-13
Keeping in view the abovesaid facts, the
position of law as well as the fact of the
present case that the date of birth of the
petitioner is 01.07.1951 as well as Rule 29
of the Rules, I do not find any illegality or
infirmity in the impugned retirement notice
dated 13.03.2013 (Annexure No. 1) passed
by
O.P.No.
3/Basic
Shiksha
Adhikari,
Sitapur by which the petitioner is sought to
be retired from service after attaining the
age of superannuation on 30.06.2013.

Case Law discussed:
1987 UPLBEC 566; 1986(4)SCC 59; 2008 (2)
SCC 639; 1993(2) UPLBEC 1128; [1989 Supp.
2 SCC 486]; 1986 (4) SCC 59; AIR 1986 SC
1948; 2010 (28) LCD 1730.

## Text

2 All] Mukund Ram Mishra Vs. State of U.P. and Ors.
813
bribe or unfair selection. No candidate has
come
forward
with
any
case
of
malpractice
being
adopted
in
the
selection. The State itself allowed these
persons to continue for more than three
years. Naturally, the experience of these
people with the passage of time must have
enhanced. To throw them out and bring in
raw hand in the institution, which is very
sensitive and needs well oiled machinery
to cope with the process of electioneering,
will not be justified. It has been informed
that the petitioners are working till date.
Initially, a stay order was passed in favour
of the petitioners. I find no good reason to
deviate from that finding. The stay order
was never vacated by any other Court.

23. Accordingly, the impugned
orders of cancellation of appointment
individually issued against the petitioners
and collectively annexed as annexure
No.1 to the writ petition, is quashed.
Respondent No.4 is directed to issue
necessary
orders
for
treating
the
petitioners' services as regular service in
pursuance of the direct selection held in
July, 2001 and in continuation of the
petitioners' appointment orders dated
23.7.2001. All consequential benefits of
regular appointment of Class IV posts
may also be conferred on the petitioners.

24. The petition is allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 28.06.2013

BEFORE
THE HON'BLE ANIL KUMAR, J.

Service Single No.3592 of 2013

Mukund Ram Mishra

 ...Petitioner
Versus
State of U.P. & Ors.
 ...Respondents

Counsel for the Petitioner:
Sri Bhupal Singh Rathore

Counsel for the Respondents:
C.S.C., Sri Rajiv Singh Chauhan

U.P. Basic Education (Teachers) Service
Rules-1981-Rule 29- Retirement of Basic
Education teacher-date of birth of petitioner
is
01.07.1951-accordingly
retired
on
30.06.14-no question of the benefit of
academic session-petitioner dismissed.

Held: Para-13
Keeping in view the abovesaid facts, the
position of law as well as the fact of the
present case that the date of birth of the
petitioner is 01.07.1951 as well as Rule 29
of the Rules, I do not find any illegality or
infirmity in the impugned retirement notice
dated 13.03.2013 (Annexure No. 1) passed
by
O.P.No.
3/Basic
Shiksha
Adhikari,
Sitapur by which the petitioner is sought to
be retired from service after attaining the
age of superannuation on 30.06.2013.

Case Law discussed:
1987 UPLBEC 566; 1986(4)SCC 59; 2008 (2)
SCC 639; 1993(2) UPLBEC 1128; [1989 Supp.
2 SCC 486]; 1986 (4) SCC 59; AIR 1986 SC
1948; 2010 (28) LCD 1730.

(Delivered by Hon'ble Anil Kumar, J.)

1. Heard Sri Bhupal Singh Rathore,
learned counsel for petitioner, Sri A.N.
Trivedi,
learned
Additional
Chief
Standing Counsel and Sri Rajiv Singh
Chauhan on behalf of respondents and
perused the record.

2. By means of the present writ
petition, the petitioner has challenged the
impugned
retirement
notice
dated
13.03.2013 (Annexure No. 1) passed by
District Basic Education Officer, Sitapur
by which the petitioner is sought to be
814 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
retired
after
attaining
the
age
of
superannuation (62 years) on 30.06.2013.

3. Sri B.S. Rathore, learned counsel
for
petitioner
while
assailing
the
impugned
order
submits
that
the
petitioner was initially appointed on the
post of Assistant Teacher in Primary
Pathshala
Naseerpur
Kodar,
Rewsa,
Sitapur on 18.07.1985. Presently, he is
working as Headmaster, Senior Basic
School, Ramipur, Gondwa, Sitapur.

4. He further submits that the date of
birth of the petitioner is 01.07.1951, so
keeping in view the said fat as per the
provisions as provided under Rule 29 of the
U.P. Basic Education (Teachers) Service
Rules, 1981 (hereinafter referred to as the
Rules) which is amended by Uttar Pradesh
Basic Shiksha (Teachers) Service Rules 15
Amendment Rules, 2012 dated 31.08.2012,
the action on the part of O.P. No. 3 to issue
the impugned notice of retirement dated
13.03.2013 (Annexure No. 1) that the
petitioner is to retire on 30.06.2013 is
arbitrary in nature and contrary to the said
rule, as he is entitled to get the service benefit
till the end of academic session i.e. to work
and discharge his duties till 30.06.2014,
hence the same is liable to be set aside. In
support of his argument, he placed reliance in
the case of Ram Lal Prasad Vs. State of
U.P. and others, 1987 UPLBEC 566.

5. Sri A.N. Trivedi, learned
Additional Chief Standing Counsel and
Sri Rajiv Singh Chauhan, learned counsel
appearing on behalf of opposite parties
while defending the impugned notice
under challenge in the present case submit
that in view of the provisions as provided
under Rule 29 of the Rules, there is no
illegality or infirmity in the impugned
notice by which the petitioner is sought to
be retired on 30.06.2013 after attaining
the age of 62 years. In support of their
argument, reliance has been placed on the
judgment given by Hon'ble the Apex
Court in the case of Prabhu Daya Sesma
Vs. State of Rajasthan and another,
1986 (4) SCC 59.

6. I have heard learned counsel for
parties and gone through the record.

7. In the state of U.P., the basic
Schools are governed by the Uttar
Pradesh Basic Education Act, 1972 (U.P.
Act No. 34 of 1972) hereinafter referred
to as the 1972 Act. Under this Act, U.P.
Board of Basic Education has been
constituted.

8. Section 13 of the 1972 Act
empowers the State Government to
control the Board and issue directions
from time to time. Section 19 empowers
the State Government to make rules for
carrying on the purposes of the Act which
includes the power to make rules in
regard to the recruitment and the
conditions of service of the persons
appointed to the post of officers, teachers
and other employees of the schools.

9. In pursuance of the powers given
under Section 19 of the 1972 Act U.P.
Basic
Education
(Teachers)
Service
Rules, 1981 have been framed. Rule 29 of
these Rules provide for the age of
superannuation of teachers. Rule 29 is
quoted below:-

"29 Every teacher shall retire from
service in the afternoon of the last day of
the month in which he attains the age of
60 years:

Provided that a teacher who retires
during an academic session (July 1 to
2 All] Mukund Ram Mishra Vs. State of U.P. and Ors.
815
June 30) shall continue to wok till the end
of the academic sessions that is, June 30
and such period of service will be deemed
as extended period of employment."

10. In the case of Achhaibar
Maurya Vs. State of U.P. and Ors, 2008
(2) SCC 639, where the facts are that the
petitioner (Sri Achhaibar Maurya) was
born on 1st of July, 1943 and appointed as
Assistant Teacher on 21st of July, 1975 in
a Primary School known as Kisan Purva
Madhyamak
Vidyalay,
Itally
Gazna,
Jaunpur and his service conditions are
governed by the Uttar Pradesh Basic
Education Act, 1972 and the Rules known
as
Uttar
Pradesh
Basic
Education
Teachers)
Service
Rules,
1981
has
challenged his order of retirement on the
ground that he should be given a session
benefit, by filing a writ petition before
this Court at Allahabad, dismissed.
Subsequently, the Special Appeal filed by
him was also dismissed. Aggrieved by the
said
fact,
he
(Achhaibar
Maurya)
approached Hon'ble the Supreme Court
for redressal of his grievances. And in the
said matter, after taking into consideration
the provisions as provided under Rule 29
of the Rules as well as earlier law laid
down by the Apex Court in the case of
Khan Chandra Madhu Vs. Deputy
Director of Education, 3rd Division,
Bareilly and Ors, 1993 (2) UPLBEC
1128, S. Benerjee v. Union of India &
Ors. [1989 Supp.2 SCC 486], Prabhu
Daya Sesma Vs. State of Rajasthan and
another, 1986 (4) SCC 59, held as
under:-

"As the appellant was born on 1st
July, 1943, he would retire on 30th June,
2003. The question as to whether he
would obtain the benefit of extended
period of service upto 30th June and the
next year will depend upon the situation
as to whether the teacher retires on or
after 1st July or not.

9. In Khan Chandra Madhu (supra),
the learned Judge proceeded on the basis
that the academic session starts on 2nd
July and ends on 30th June. A benefit of
getting an extended period of service must
be conferred by a statute? The Legislature
is entitled to fix a cut off date. A cut off
date fixed by a statute may not be struck
down unless it is held to be arbitrary.
What would, therefore, be an employees
last working date would depend on the
wordings of the Rules. It may seem
unfortunate as some people may miss the
extended period of service by a day; but
therefor a valid provision may not be held
to be invalid on the touchstone of Articles
14 or 16 of the Constitution of India. A
statute
cannot
be
declared
unconstitutional for conferring benefit to
a section of the people. We, therefore, do
not agree with the view taken in Khan
Chandra Madhu (supra).

10. In S. Benerjee v. Union of India &
Ors. [1989 Supp.2 SCC 486], whereupon
reliance has been placed, the fact situation
obtaining was completely different. In that
case, the appellant filed an application for
voluntary retirement which was accepted
from the forenoon of 1st January, 1986. In
that view of the matter, he was found to be
entitled to the benefit of paragraph 17.3 of
the
recommendations
of
the
Pay
Commission. It was urged that the appellant
was entitled to a hearing as the matter
relating to retirement from service depended
upon the statutory provisions. A person
retires automatically on the day when he
completes the age of superannuation.
Principles of natural justice, therefore,
cannot be said to have any application in a
816 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
case of this nature. A person attains a
specified age on the day next before the
anniversary of his birthday or in other words
on the day preceding that anniversary. [See
Re Shurey Savory v. Shurey (L.R. (1918) 1
Ch.263) and Rex v. Scoffin (L.R. (1930) 1 KB
741)].

11. This Court inPrabhu Daya
Sesma Vs. State of Rajasthan and
another, AIR 1986 SC 1948 held :

In calculating a persons 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.

12. It is interesting to note, however,
that the common law rule stated in Re
Shurey Savory (supra) in respect of
anniversaries has been abrogated by virtue
of the Family Law Reform Act, 1969. The
effect of the change is that, in respect of
anniversaries falling after 1 January, 1970,
the time at which a person attains a
particular age expressed in years is the
commencement of relevant anniversary of
the date of his birth. [See Halsburys Laws,
4th Edition Reissue, Page 209]. We do not
have such statute. We have, therefore, to
determine the cases on the touchstone of
statute operating in the field and in absence
thereof by common law principle.

13. For the reasons aforementioned,
we do not find any merit in this appeal. It
is dismissed accordingly. However, as
nobody has appeared on behalf of the
Respondent-State, there shall be no order
as to costs".

11. Hon'ble the Supreme Court in
the case of Prabhu Daya Sesma (Supra)
while interpreting the Rule 11-B of the
Rajasthan State State and Subordinate
Services
(Direct
Recruitment
by
Competitive Examination) Rules, 1962
held as under:-

"Rule 11-B of the Rules provides:

11-B. Age. Notwithstanding anything
contained regarding age limit in any of
the service Rules governing through the A
agency of the Commission to the posts in
the State Service and in the Subordinate
Service mentioned in Schedule I and in
Schedule II respectively, a candidate for
direct recruitment to the posts to be filled
in by combined competitive examinations
conducted by the Commission under these
Rules must have attained the age of 21
years and must not have attained the age
of 28 years on the first day of January
next following the last date fixed for
receipt of application. "

It is plain upon the language of r. l lB that a candidate 'must have attained the
age of 21 years and must not have
attained the age of 21 years on the first
day of January next following the last date
fixed for receipt of application'. Last day
fixed for receipt of application in his case,
was January 1, 1983. First day of January
next following that day would be January 1,
1984. The object and intent in making r. 11B was to prescribe the age limits upon which
the eligibility of a candidate for direct
recruitment to the Rajasthan Administrative
Service and other allied services is governed.
At first impression, it may seem that a person
born on January 2, 1956 would attain 28
years of age only on January 2, 1984 and not
on January 1, 1984. But this is not quite
accurate. 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 birth
2 All] Mukund Ram Mishra Vs. State of U.P. and Ors.
817
day. We have to apply well accepted rules for
computation of time. One such rule 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 and
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
provision, 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 Halsbury's Laws of England. 3rd
edn., vol. 37, para 178 at p. 100, the law
was stated thus:

"In computing a period of time, at
any rate, when counted in years or
months, no regard is generally paid to
fractions of a day, in the sense that the
period is regarded as complete although
it is short to the extent of a fraction of a
day Similarly, in calculating a person's
age the day of his birth counts as a whole
day; and he attains a specified age R on
the day next before the anniversary of his
birth day."

We have come across two English
decisions on the point.

In Rex v. Scoffin, LR [1930] 1 KB
741 the question was whether the accused
had or had not completed 21 years of age.
S.
l0(I)
of
the
Criminal
Justice
Administration Act, 1914 provides that a
person might be sent to Borstal if it
appears to the court that he is not more
than 21 years of age. The accused was
born on February 17, 1909. Lord Hewart,
CJ held that the accused completed 21
years of age on February 16,1930 and
that he was one day more than 21 years of
age on February 17, 1930 which was the
Commission day of Manchester Assizes.

In Re. Shurey, Savory v. Shurey, LR
[1918] I Ch. 263 the question that arose
for decision was this: Does a person
attain a specified age in law on the
aniversary of his or her birthday, or on
the day preceding that anniversary? After
reviewing the earlier decisions, Sargant,
J. said that law does not take cognizance
of part of a day and the consequence is
that person attains the age of twenty-one
years or of twenty-five years, or any
specified age, on the day preceding the
anniversary
of
his
twenty-first
or
twentyfifth birthday or other birthday, as
the case may be.

From Halsbury's Laws of England,
4th edn., vol 45, para 1143 at p. 550 it
appears that s. 9 of the Family Law
Reforms Act, 1969 has abrogated the old
common law rule stated in Re. Shurey,
Savory v.Shurey (supra).

It is in recognition of the difference
between how a person's age is legally
construed how it is understood in common
parlance. The Legislature has expressly
provided in s. 4 of the Indian Majority
Act, 1875 that how the age of majority is
to be computed. It reads:

"4. Age of majority how computed-
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 s. 3, at
the
beginning
of
the
twenty-first
anniversary of that day, and if he falls
within the second A paragraph of s. 3, at
818 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
the beginning of the 18th anniversary of
that day."

12. A Full Bench of this Court in the
case of Smt. Sumitra Dhulia Vs.
Director of Education and others, 2010
(28) LCD 1730, held as under:-

The object of giving benefit of extension
of service beyond the prescribed age of
superannuation to the teachers upto end of
the academic session i.e. 30th June
uniformally, without any reference of
individual
case,
except
in
case
of
unsatisfactory work and failing health, is to
maintain the continuity in teaching work in
educational institutions. In order to ensure
that the students do not suffer, on account of
the change of teachers in the middle of the
academic session, the teachers teaching
regular subjects are given extension of
service upto the end of academic session
commonly known as sessions benefit. The
teaching of any subject and the incomplete
academic session, are the twin requirements
for allowing the benefit of extension of
service to such teachers. If any of these
requirements are missing, the teacher is
not getting the benefit of the policy, to
continue
beyond
the
age
of
superannuation."

13. Keeping in view the abovesaid
facts, the position of law as well as the fact of
the present case that the date of birth of the
petitioner is 01.07.1951 as well as Rule 29 of
the Rules, I do not find any illegality or
infirmity in the impugned retirement notice
dated 13.03.2013 (Annexure No. 1) passed
by O.P.No. 3/Basic Shiksha Adhikari,
Sitapur by which the petitioner is sought to
be retired from service after attaining the age
of superannuation on 30.06.2013.

14. Further, the petitioner cannot
derive any benefit from the law as laid
down by this Court in the case of Ram
Lal Prasad (Supra) in view of the facts
state hereinabove.

15. In the result, writ petition lacks
merit and is dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 10.05.2013

BEFORE
THE HON'BLE PANKAJ MITHAL, J.

Civil Misc. Writ Petition No. 3933 of 2012

Om Prakash Umar
 ...Petitioner
Versus
State of U.P. and Ors.
 ...Respondents

Counsel for the Petitioner:
Sri A.N. Pandey

Counsel for the Respondents:
C.S.C.
Indian Stamp Act, 1899-Section 17,
2(14)- Demand of Stamp duty-document
executed before notary-by which-rights
and title given to petitioner-relating to a
landlord-for
consideration
of
Rs.
50,000/-held
within
definition
of
document under Section 2(14)-demand
of stamp duty-proper.

Held: Para-9
In view of the aforesaid facts and
circumstances,
in
my
opinion,
the
authorities below have not erred in law
in
holding
the
document
dated
14.12.2009 as chargeable to stamp duty
and to direct for realizing stamp duty on
the
market
value
of
the
property
purported to have been transferred
therein.

(Delivered by Hon'ble Pankaj Mithal, J.)