# Rama Shanker Shukla v. Zila Basic Shiksha Adhikari Sitapur and others

- **Citation:** (2011) 1 ILRA 437
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2011-04-11
- **Case number:** Service Single No. 1887 of 2011
- **Bench:** Devendra Kumar Arora
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rama-shanker-shukla-v-zila-basic-shiksha-adhikari-sitapur-and-others-41871
- **Pages:** 5

## Headnote

Sri Rakesh Kumar Tiwari
Sri Rakesh Kumar Tiwari

U. P. Recognised Basic Schools (Junior
High
Schools)
(Recruitment
and
Conditions of services of Teacher) Rules,
1978.-Rule-14-Date
of
retirement
teachers
working
in
recognized
institution-date of retirement shall be
the date on which 62th Date of Birth
celebrated-meaning
thereby
the
petitioner shall retire on 30.06.2011 as
the date of birth is 01.07.49-friction of a
day will be omitted-as the period of
counting will start from midnight of the
date of birth-62 years shall be the
midnight of 30.06.2011-by impugned
notice
rightly
made
to
retire
-No
illegality in impugned order.

Held: Para 6

The section embodies that in computing
the age of any person, the day on which
he was born is to be included as a whole
day and he must be deemed to have
attained majority at the beginning of the
eighteenth anniversary of that day."

On applying the principle laid down by
Hon'ble Supreme Court on the facts and
circumstances of the present case, the
petitioner
whose
date
of
birth
is
438 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
01.07.1949 will complete the age of 62
years on 30.06.2011, a day preceding to
the petitioner's birth day anniversary i. e.
01.07.2011 and, as such, petitioner has
been
rightly
given
notice
of
his
superannuation on attaining the age of
62 years on 30.6.2011. Since 30.6.2011
is the last date of the month as well as
end of the academic session, therefore,
as per Rule 14 of the U. P. Recognised
Basic Schools (Junior High Schools)
(Recruitment and Conditions of services
of Teacher) Rules, 1978 petitioner will
retire from service on 30.6.2011. There
is
no
illegality
in
the
impugned
notice/order
of
retirement
dated
01.1.2011.
Case law discussed:
1986 (4) SCC 59

## Text

1 All] Rama Shanker Shukla V. Zila Basic Shiksha Adhikari Sitapur and others
437
impugned
order
dated
26.3.1996.
However, back wages was not provided.

3. While assailing the impugned
order, it has been submitted by the
petitioner's counsel that the petitioner is
entitled for back wages as well as all
service benefit.

4. Learned Standing Counsel
submitted that the petitioner is not
entitled for back wages on the principle
of no work and no pay. Learned
Standing Counsel has no objection with
regard to petitioner's continuity in
service and other service benefits. It has
also been submitted that the petitioner
has been reinstated in terms of tribunal's
order.

5. So far as the back wages are
concerned, we are of the view that the
petitioner is not entitled for payment of
back wages. However, so far as other
benefits are concerned, the petitioner
has got right to claim the same.

6. Since the order of punishment
has been set aside by the tribunal, the
order of tribunal has attained finality to
the
extent
the
respondents
are
concerned.

7. In view of above, we dispose of
the writ petition with the direction to the
respondents to provide all consequential
benefits
treating
the
petitioner's
continuity in service except the back
wages.

8. Subject to above, the writ
petition is finally disposed of.
---------

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 11.04.2011

BEFORE
THE HON'BLE DEVENDRA KUMAR ARORA,J.

Service Single No. 1887 of 2011

Rama Shanker Shukla
 ...Petitioner
Versus
Zila Basic Shiksha Adhikari Sitapur and
others

 ...Respondent

Counsel for the Petitioner:
Sri R.K.Sharma

Counsel for the Respondent:
Sri Rakesh Kumar Tiwari
Sri Rakesh Kumar Tiwari

U. P. Recognised Basic Schools (Junior
High
Schools)
(Recruitment
and
Conditions of services of Teacher) Rules,
1978.-Rule-14-Date
of
retirement
teachers
working
in
recognized
institution-date of retirement shall be
the date on which 62th Date of Birth
celebrated-meaning
thereby
the
petitioner shall retire on 30.06.2011 as
the date of birth is 01.07.49-friction of a
day will be omitted-as the period of
counting will start from midnight of the
date of birth-62 years shall be the
midnight of 30.06.2011-by impugned
notice
rightly
made
to
retire
-No
illegality in impugned order.

Held: Para 6

The section embodies that in computing
the age of any person, the day on which
he was born is to be included as a whole
day and he must be deemed to have
attained majority at the beginning of the
eighteenth anniversary of that day."

On applying the principle laid down by
Hon'ble Supreme Court on the facts and
circumstances of the present case, the
petitioner
whose
date
of
birth
is
438 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
01.07.1949 will complete the age of 62
years on 30.06.2011, a day preceding to
the petitioner's birth day anniversary i. e.
01.07.2011 and, as such, petitioner has
been
rightly
given
notice
of
his
superannuation on attaining the age of
62 years on 30.6.2011. Since 30.6.2011
is the last date of the month as well as
end of the academic session, therefore,
as per Rule 14 of the U. P. Recognised
Basic Schools (Junior High Schools)
(Recruitment and Conditions of services
of Teacher) Rules, 1978 petitioner will
retire from service on 30.6.2011. There
is
no
illegality
in
the
impugned
notice/order
of
retirement
dated
01.1.2011.
Case law discussed:
1986 (4) SCC 59

(Delivered by Hon'ble D.K.Arora,J. )

1. By means of present writ petition,
the petitioner prays for a writ, order or
direction in the nature of certiorari for
quashing of the order of retirement dated
01.01.2011, issued by opposite party no.
3. Petitioner further prays for a writ in the
nature of mandamus commanding the
opposite parties to retire on 31.7.2011 and
give extended period of employment till
30.6.2012 as envisaged under Rule 14 of
the Service Rules.

2. Submission of learned counsel for
the petitioner is that the petitioner was
appointed as Assistant Teacher in Shri
Gomteshwar
Madhyamik
Vidyalaya,
Hindaur, Sitapur (hereinafter referred to
as 'institution') vide appointment letter
dated 25.6.1977 (Annexure No. 2). He
joined his duties in the institution on
01.7.1977. The institution came under
grant in
aid
w.e.f.
01.4.1980 and
petitioner's services were approved on
18.7.1980. Further submission of learned
counsel for the petitioner is that the
service and service conditions of the
petitioner
are
governed
by
U.
P.
Recognised Basic Schools (Junior High
Schools) (Recruitment and Conditions of
services
of
Teacher)
Rules,
1978.(hereinafter referred to as 'Service
Rules') framed under section 19 (2) of the
U.P. Basic Education Act. Rule 14 of the
Service Rules provides that an Assistant
Teacher will retire in the afternoon of the
last day of the month in which he attains
the age of 62 years. The Rule further
provides that an Assistant Teacher who
retires during an academic session, shall
continue to work till June 30, following
next after the date of his retirement and
such period of service shall be deemed as
extended period of employment. The
petitioner will attain the age of 62 years
on 01.7.2011 as per his date of birth
mentioned in High School Certificate and
in Service Book. Thus, according to Rule
14, the petitioner will retire in the
afternoon of 31st July, 2011 and he will
also be entitled to the extended period of
employment till 30th June, 2012. The
Manager of the institution gave a notice
of retirement dated 01.01.2011 to the
petitioner indicating therein that since
date of birth of the petitioner is 01.7.1949,
as such, he will retire on 30.6.2011. The
petitioner on receipt of notice dated
01.1.2011
made
a
representation/objection to the Manager
of the institution on 20.1.2011 mentioning
therein that he cannot be retired prior to
the
age
of
his
superannuation
as
envisaged under Rule 14 of the Service
Rules. The petitioner demonstrated in his
representation that he is being retired one
day before the age of 62 years. The
petitioner also sought his extension of
employment till 30th June, 2012. When
the petitioner did not receive any reply
from
the
opposite
parties
of
his
1 All] Rama Shanker Shukla V. Zila Basic Shiksha Adhikari Sitapur and others
439
representation dated 20.1.2011, he sent a
reminder on 23.3.2011.

3. It is also submitted by learned
counsel for the petitioner that since the
opposite parties are intending to retire the
petitioner one day before the age of 62
years, therefore, he is compelled to
approach this Court by means of the
present writ petition.

Heard learned counsel for parties and
perused the record.

The main controversy involved in the
present writ petition is "Whether the
petitioner will compete the age of 62
years on 30.6.2011 or on 1st July, 2011,
keeping in view the fact that his date of
birth is 01.7.1949."

4. The services of the petitioner are
governed by U. P. Recognised Basic
Schools
(Junior
High
Schools)
(Recruitment and Conditions of services
of Teacher) Rules, 1978.(hereinafter
referred to as 'Service Rules'). As per
Rule 14 of the Service Rules an Asst.
Teacher will retire on the last day of the
month in which he attained the age of
superannuation (62) years. It further
provides that an Asst. Teacher who retires
during
the
academic
session,
shall
continue to work till 30th June following
next after the date of his retirement and
such period shall be deemed as extended
period of employment.

5. The Hon'ble Supreme Court while
analyzing the similar controversy in the
case of Prabhu Dayal Sesma vs. State of
Rajasthan and another reported in
1986 (4) SCC 59 was pleased to observe
that while counting the age of a person,
whole of the day should be reckoned and
it starts from 12 O'clock in the mid-night
and he attains the specified age on the
preceding, the anniversary of his birth
day. The observation of Hon'ble Supreme
Court in paras- 9 to 14 read as under:-

"9........... 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
birthday. 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 is
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
(sic not) 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 birthday.

10. 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, as a general rule,
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
440 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
birth counts as a whole day; and he
attains a specified age on the day next
before the anniversary of his birthday."

11. We have come across two
English decisions on the point. In Rex. v.
Scoffin, the question was whether the
accused had or had not completed 21
years of age. Section 10 (1) 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, C.J. Held that the accused
completed 21 years of age on February
17, 1930 which was the Commission day
of Manchester Assizes.

12. In Re Shurey, Savory v.
Shurey, the question that arose for
decision was this: Does a person attain a
specified age in law on the anniversary of
his or her birthday, or on the day
preceding
that
anniversary?
After
reviewing the earlier decisions, Sargent, 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 twenty-fifth birthday
or other birthday, as the case may be.

13.
From
Halsbury's
Laws
of
England, 4th Edn., vol. 45, para 1143 at
p. 550 it appears that Section 9 of the
Family Law Reforms Act, 1969 has
abrogated the old common law rule stated
in Re Shurey Savory v. Shurey.

14. It is in recognition of the difference
between how a person's age is legally
construed and how it is understood in
common parlance. The legislature has
expressly provided in Section 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 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 the eighteenth
anniversary of that day."

6. The section embodies that in
computing the age of any person, the day on
which he was born is to be included as a
whole day and he must be deemed to have
attained majority at the beginning of the
eighteenth anniversary of that day."

On applying the principle laid down by
Hon'ble Supreme Court on the facts and
circumstances of the present case, the
petitioner whose date of birth is 01.07.1949
will complete the age of 62 years on
30.06.2011, a day preceding to the
petitioner's birth day anniversary i. e.
01.07.2011 and, as such, petitioner has been
rightly given notice of his superannuation
on attaining the age of 62 years on
30.6.2011. Since 30.6.2011 is the last date
of the month as well as end of the academic
session, therefore, as per Rule 14 of the U.
P. Recognised Basic Schools (Junior High
Schools) (Recruitment and Conditions of
services of Teacher) Rules, 1978 petitioner
will retire from service on 30.6.2011. There
is no illegality in the impugned notice/order
of retirement dated 01.1.2011.

7. In view of the aforesaid facts and
reasons, the writ petition lacks merits and
deserves
to
be
dismissed.
1 All] Ram Pheran Yadav V. Commissioner, Devi Patan Division, Gonda and another
441

8. Writ Petition is dismissed. No
order as to costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 01.04.2011

BEFORE
THE HON'BLE BALA KRISHNA NARAYANA,J.

Misc. Single No. - 1979 of 2011

Ram Pheran Yadav

 ...Petitioner
Versus
Commissioner,
Devi
Patan
Division,
Gonda and another
 ...Respondent

Counsel for the Petitioner:
Sri Avadhesh Kumar Singh

Counsel for the Respondent:
C.S.C.

Constitution
of
India,
Article
226attachment of petitioner-fair price shop-on
ground after dismissal of Appeal in default
stay
order
not
extended-held
before
attachment the authority concern ought to
have give opportunity to get the order
extended-order impugned not sustainable.

Held: Para 9

Once, the Appellate Authority had passed
an interim order in the appeal preferred by
the
petitioner
against
the
order
of
respondent no.2 by which he had cancelled
the petitioner's fair price shop license,
staying the implementation and operation
of the order passed by the opposite party
no.2 and the stay order could not be
extended not on account of any fault on
behalf of the petitioner but due to nonavailability of the respondent no.1 on the
date fixed, it was incumbent upon the
respondent
no.2
to
have
given
a
reasonable opportunity to the petitioner to
get the interim order extended before
proceeding to attach the card-holders of
his fair price shop with some other shop.

(Delivered by Hon'ble B.K.Narayana,J. )

1. Notice on behalf of opposite party
nos. 1 and 2 has been accepted by learned
Chief Standing Counsel.

2. Heard learned counsel for the
petitioner and learned standing counsel and
perused the records.

3. Counsel for the petitioner is
permitted to make amendments in the
prayer of the writ petition.

4. Learned counsel for the petitioner
submitted that license of fair price shop of
the petitioner was cancelled by the
respondent no.2 vide order dated 06.01.201.
Against the said order the petitioner
preferred an appeal before the respondent
no.1 which was registered as Appeal No.
80-03 and in which on 12.01.2011 an
interim order was passed by the respondent
no.1 in favour of the petitioner by which the
effect and implementation of the order
passed by the opposite party no.2 was
directed to be kept in abeyance till
23.02.2011.

5. It appears that the respondent no.1
was not available on 23.02.2011, as a result,
the interim order dated 12.01.2011 granted
in favour of the petitioner could not be
extended, although the petitioner had
moved an application in this regard on that
very date, as a result, the card-holders of the
petitioner's shop were attached with some
other shop by the respondent no.2 vide his
order dated 18.03.2011, copy whereof has
been filed as Annexure No.4 to the writ
petition.

6. This writ petition has been filed by
the petitioner with a prayer to quash the