# Umesh Chandra Jaiswal v. State of U.P. and others

- **Citation:** (2007) 3 ILRA 1043
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2007-11-19
- **Case number:** Civil Misc. Writ Petition No. 56693 of 2007
- **Bench:** S. Rafat Alam, Sudhir Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/umesh-chandra-jaiswal-v-state-of-u-p-and-others-40996
- **Pages:** 4

## Headnote

Constitution of India, Art. 226-RejectionService law rejection of candidaturebeing overage-on 1.1.06 the cut off datepetitioner completed 40 years on 30.6.06
being O.B.C. candidate overage by one
day-even if allowed to participate in
preliminary test-can not be treated
estoppal-held-rejection-proper.

Held: Para 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.
Case law discussed:
L.R. (1918) I Ch.-263, L.R. (1930) 1 K.B.-741,
AIR 1967 Mysore 1359, AIR 1986 SC-1948 Spl.
Appeal No (221)/2004 decided on 8.9.06.

## Text

3 All] Umesh Chandra Jaiswal V. State of U.P. and others
1043
relied upon a decision of a Division
Bench of this Court in the case of Dr.
R.R.K.
Shukla
Vs.
Chancellor,
University of Lucknow and others (Writ
Petition No.1110 (SB) of 1993) and the
case of Dr. Banvir Singh Vs. Chancellor
of Lucknow University (Writ Petition
No.132 (SB) of 1993, both decided on
16th September 1996, wherein a similar
objection has been dealt with by a
Division Bench of this Court.

10. In view of what has been stated
above and law laid down, referred to
above, we find that the view taken by the
Chancellor does not suffer from any
illegality or infirmity which may warrant
interference by this Court under Article
226 of the Constitution of India. This
petition is, therefore, devoid of merits and
is accordingly dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.11.2007

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

Civil Misc. Writ Petition No. 56693 of 2007

Umesh Chandra Jaiswal
...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri D.K. Mishra
Sri R.K. Singh

Counsel for the Respondents:
S.C.

Constitution of India, Art. 226-RejectionService law rejection of candidaturebeing overage-on 1.1.06 the cut off datepetitioner completed 40 years on 30.6.06
being O.B.C. candidate overage by one
day-even if allowed to participate in
preliminary test-can not be treated
estoppal-held-rejection-proper.

Held: Para 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.
Case law discussed:
L.R. (1918) I Ch.-263, L.R. (1930) 1 K.B.-741,
AIR 1967 Mysore 1359, AIR 1986 SC-1948 Spl.
Appeal No (221)/2004 decided on 8.9.06.

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

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
1044 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
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 proceeding 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 is
incorrect 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
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
view is taken in another English case in
Rex Vs. Scoffin [LR (1930) 1 KB 741].

6.

Probably
the
legislature
recognizing
the
aforesaid
principle
expressly provided in section 4 of the
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:-
3 All] Umesh Chandra Jaiswal V. State of U.P. and others
1045
"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. This view has been reiterated by
this Bench also in Special Appeal No.
(221) of 2004 (Achhaibar Maurya Vs.
State of U.P. and others) 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.

11. The writ petition, therefore,
lacks merit and is accordingly dismissed.
---------
1046 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.11.2007

BEFORE
THE HON'BLE H.L. GOKHALE, C.J.
THE HON'BLE PANKAJ MITHAL, J.

Special Appeal No.1595 of 2007

Awadh Naresh Sharma
...Appellant
Versus
State of U.P. and others ...Respondents

Counsel for the Appellants:
Sri Ashok Khare, Senior Advocate
Sri P.N. Ojha.

Counsel for the Respondents:
Sri Girish Chandra Upadhyay
Sri R.P. Dubey
Sri P.K. Ganguly

Allahabad
High
Court
Rules
1952,
Chapter VI, Rule-7-part heard casesdirection of Single Judge to list the case
before him as part heard-even after
change
of
Roster-at
pre-admission
stage-held-in violation of Rule-can not
sustained-after change of roster all
direction/orders without jurisdiction.

Held: Para 20

In the circumstances, we accept the
contentions of the appellant that the
orders passed by the learned Single
Judge after change of roster were
without jurisdiction and are liable to be
treated as null and void.
Case law discussed:
2006 (8) SCC-294
1998 (1) SCC-I
1996 AWC 644 (FB)

(Delivered by Hon'ble H.L. Gokhale, C.J.)

1. Heard Sri Ashok Khare, Senior
Advocate appearing with Sri P.N. Ojha
for
appellant.,
Sri
G.C.
Upadhyay,
Standing Counsel for the State appearing
for respondents no.1, 3 and 4, Sri R.P.
Dubey appearing for respondent no.2 and
Sri P.K. Ganguli appearing for respondent
no.6.

2. Mr. Ashok Khare seeks to delete
respondent
no.5,
Committee
of
Management, Rani Murar Kumari Balika
Inter College, Bhojubir, Varansi as no
relief is sought against it. He is permitted
to do so during the course of the day.

3. The appellant herein is the Joint
Director of Education (Basic). He was
earlier working as the Secretary of
respondent
no.2,
U.P.
Secondary
Education
Service
Selection
Board,
Allahabad.

4. Respondent no.6 herein had
applied for the post of Assistant Teacher
in L.T. Grade in pursuance of an
advertisement no.1 of 2001 of U.P.
Secondary Education Service Selection
Board. She was amongst the successful
candidates
and
her
name
was
recommended for appointment at an
intermediate college at Lucknow after a
selection examination. On approaching
that college she was informed that there
was no vacancy. She was, therefore,
asked by the Board to approach another
intermediate college at Varanasi. She was
not absorbed there also. She then filed
Civil Misc. Writ Petition No.40684 of
2006. The prayer in this petition was to
direct the Board to consider the claim of
the petitioner for allocation of another
institution for the post of L.T. Grade
Teacher (Social Science).

5. The prayer in the petition was
thus very clear and it was directed against
the second respondent, Board. The