Full Judgment Text
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PETITIONER:
PRABHU DAYAL SESMA
Vs.
RESPONDENT:
STATE OF RAJASTHAN & ANR.
DATE OF JUDGMENT28/08/1986
BENCH:
SEN, A.P. (J)
BENCH:
SEN, A.P. (J)
RAY, B.C. (J)
CITATION:
1986 AIR 1948 1986 SCR (3) 665
1986 SCC (4) 59 JT 1986 256
1986 SCALE (2)362
ACT:
Rajasthan State & Subordinate Services (Direct
Recruitment by Competitive Examination) Rules, 1962-Rule
IIB-Age-Determina- tion of-"Must have attained the age of 21
years and must not have attained the age of 28 years"-
Interpretation of.
Indian Majority Act, 1875-S. 4-Age-Computation of-How
determined.
Indian Administrative Service (Appointment by
Competitive Examination) Regulations, 1955-Rule 4-"must have
attained the age of 21 years and must not have attained the
age of 28 years"-Interpretation of.
HEADNOTE:
For direct recruitment to the Rajasthan Administrative
Service and allied services of the Government of Rajasthan
by a competitive examination to be held in 1983, the
Rajasthan Public Service Commission prescribed that the
candidate should have attained the age of 21 years on
January 1, 1984 and should not have attained the age of 28
years i.e. On the Ist day of January next following the last
date fixed for receipt of application. F
The appellant was allowed to appear in the written
examination, but later on he was intimated by the Commission
that his candidature was rejected on the ground that he had
attained the age of 28 years on January 1, 1984 and was
therefore ineligible for consideration.
The writ petition filed by the appellant under Art. 226
was allowed by a Single Judge holding that if the date of
birth of the appellant was January 2, 1956 he would complete
the age of 28 years only at the end of the day of January 1,
1984 and therefore he could not be said to have attained the
age of 28 years on that date.
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on appeal by the respondents, a Division Bench reversed
the Judgment of the Single Judge.
In appeal to this Court, on behalf of the appellant it
was con tended: (i) that the Division Bench erronously
introduced the legal concept of the age of majority as laid
down in s. 4 of the Indian Majority Act 1875 for the purpose
of interpreting r. 11-B of the Rajasthan State and
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Subordinate Services (Direct Recruitment by Competitive
Examination) Rules 1962 and (ii) that as commonly
understood, a person attains a particular age after he had
completed a given number of years and there is no reason why
the words of r. 11-B "must have attained the age of 21 years
and must not have attained the age of 28 years" should not
be understood in the ordinary sense.
Dismissing the appeal,
^
HELD: 1. In the absence of any express provision, while
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. One of
the well accepted rules for computation of time 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. This principle is in conformity with s. 4
of the Indian Majority Act 1875.[671F-G]
G. Vatsala Rani, P. M. C. Kini v . Selection Committee
for Admission to Medical Colleges, Bangalore Medical
College, Bangalore-2, AIR 1967 Mysore 135, Rex v.Scoffin, LR
[1930] l KB 741 & Shurey, Savory F. v. Shurey, I,R [1918] 1
Ch. 263, approved.
Halsbury’s Laws of England, 3rd edn. vol. 37, para 178
at 100, relied upon.
2. The object and intent in making r. llB of the
Rajasthan State & Subordinate Services (Direct Recruitment
by Competitive Examination) Rules, 1962 was to prescribe the
age limits upon which the eligibility of a candidate for
direct recruitment to the Rajasthan Admmistrative Service
and other allied services is governed. The expression "must
not have attained the age of 28 years on the first day of
January next following the last day fixed for receipt of
application" in r. llB has to be interpreted by applying the
aforesaid principle and not on the basis
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adopted by UPSC while interpreting r. 4 of the Indian
Administrative A Services (Appointment by Competitive
Examination) Regulations, 1955 framed by the Central
Government in pursuance or r. 7 of the IAS (Recruitment)
Rules 1954. [670A-B]
3. The last day fixed for receipt of application in
this case, was January 1, 1983. First day of January next
following that day would be January 1, 1984. the appellant
having been born on January 2, 1956, he had not attained the
age of 28 years but also completed the same at 12 o’clock on
the midnight of January 1, 1984. On the next day i.e. On
January 2, 1984, the appellant would be one day more than 28
years. The Division Bench of the High Court was, therefore,
right in holding that the appellant was disqualified for
direct recruitment of the Rajasthan Administrative Service
in the examination held by the Rajasthan Public Service
Commission in 1983. [673C-D]
The Court emphasised the need for a provision like the
proviso to r. 4 of the Indian Administrative Service
(Appointment by Competitive Examination) Regulations 1955
conferring the power of relaxation on the State Government
under certain conditions without which a deserving candidate
would be rendered ineligible for appointment and advised the
Government to consider the question of relaxing the upper
age limit in the case of the appellant in order to mitigate
the hardship, if otherwise permissible, because he exceeded
the upper age limit just by one day. [673E-F] E
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JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No 531 of
1986
From the Judgment and order dated 22.5.1984 of the
Rajasthan High Court in S.B. Civil Writ Petition No. 114 of
1985.
Sushil Kumar Jain and Sudhanshu Atreya for the
Appellant.
B.D.Sharma for the Respondents.
The Judgment of the Court was delivered by G
SEN, J The short point involved in this appeal by
special leave pertains to the determination of age at a
particular point of time. The question is whether the
appellant having his date of birth as January 2, 1956 had
attained the age of 28 years on January 1, 1984 and was
therefore disqualified from being considered for direct
recruitment to
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the Rajasthan Administrative Service under r. l l-B of the
Rajasthan State & Subordinate Service (Direct Recruitment by
Competitive Examination) Rules, 1962 (for short ’the
Rules’).
Put very briefly, the essential facts are these. The
Rajasthan Public Service Commission invited applications for
direct recruitment to the Rajasthan Administrative Service
and allied services of the Government of Rajasthan by a
competitive examination to be held in 1983. Under the
directions issued by the Commission, the minimum age
prescribed for candidates was 21 years and the maximum 28
years. It was prescribed that the candidate should have
attained the age of 21 years on January 1, 1984 and should
not have attained the age of 28 years i.e. On the first day
of January next following the last date fixed for receipt of
application. The appellant was allowed to appear in the
written examination, but by an order dated June 12, 1984,
the Assistant Secretary to the Commission intimated the
appellant that his candidature was rejected on the ground
that he had attained the age of 28 years on January 1, 1984
and was therefore ineligible for consideration. Feeling
aggrieved, the appellant moved the High Court under Art. 226
of the Constitution and contended that his date of birth was
January 2, 1956 and that he had not attained the age of 28
years on January 1, 1984. His claim was contested by the
respondents who pleaded that the appellant had attained the
age of 28 years on January 1, 1984 and therefore his form
was properly rejected. During the pendency of the writ
petition, the High Court by an interim order dated September
14, 1984 directed the Commission to interview the appellant
if he was otherwise eligible for being considered except on
the ground of age. The appellant was acoordingly interviewed
but the result was withheld. A learned Single Judge by his
judgment and order dated January 19, 1985 held that if the
date of birth of the appellant was January 2, 1956 he would
complete the age of 28 years only at the end of the day of
January 1, 1984 and there he could not be said to have
attained the age of 28 years on that date. He accordingly
held that the Commission was not justified in rejecting the
candidature of the appellant on the ground that he had
attained the age of 28 years on January 1, 1984 and
therefore was not eligible for consideration.
On appeal, a Division Bench disagreed with the view
expressed by the learned Single Judge and reversed his
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judgment on the ground that the words used in r. 11-B of the
Rules are, ’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’ and not that he should have
completed the age of 28 years on that day. They relied upon
the
669
undisputed fact that the first day of January next following
the last A date fixed for receipt of application in this
case was January l, 1984. Accordingly, they held that the
appellant was born on January 2, 1956 and, as such, he had
attained the age of 28 years as soon as the first day of
January, 1984 commenced. They further held that the
appellant had not only attained the age of 28 years, but had
also completed the same at 12 o’clock in the midnight of
January 1, 1984. According to the learned Judges, on January
2, 1984, the appellant would be one day more than 28 years
and, as such, he was disqualified to appear at the
examination under r. 11-B of the Rules. The conclusion of
the learned Judges may best be stated in their own words:
"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 day."
In coming to that conclusion the learned Judges relied
upon the language of r. 11-B of the Rules which prescribes
the age limit for the said examination and also referred to
s. 4 of the Indian Majority Act, 1875. They have relied on
certain decisions of different High Courts, particularly to
that in G. Vatsala Rani represented by guardian and father,
P.M.G. Kini v. Selection Committee for Admission to Medical
Colleges, Bangalore Medical College, Bangalore-2 represented
by the Secretary, AIR 1967 Mysore 135 and to some English
decisions laying down the principle for determination of
age.
It is argued that the learned Judges were in error in
introducing the legal concept of the age of majority as laid
down in s. 4 of the Indian Majority Act, 1875 for the
purpose-of interpreting r. 11-B. It is said that the purpose
of r. 11-B framed by the Government was to prescribe the
maximum and minimum age limits for entry into the Rajasthan
Administrative Service and allied services of the Government
of Rajasthan. It is submitted that as commonly understood, a
person attains a particular age after he has completed a
given number of years. It is said that there is no reason
why the words of r. 11-B ’must have attained the age of 21
years and must not have attained the age of 28 years’ should
not be understood in the ordinary sense. At first blush, the
contention advanced appears to be rather attractive but on
deeper consideration it cannot prevail.
Learned counsel for the appellant drew our attention to
the fact that the Union Public Service Commission has been
interpreting the
670
words ’must have attained the age of 21 years and must not
have attained the age of 26 years on the first day of August
next following’ in the way the appellant contends for. These
words are taken from r.4 of the Indian Administrative
Service (Appointment by Competitive Examination)
Regulations, 1955 framed by the Central Government in
pursuance of r. 7 of the Indian Administrative Service
(Recruitment) Rules, 1954. Presumably, there would be
similar provisions laying down the qualification as to age
in other central services as well. R. 4 insofar as material
reads:
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"4. Conditions of Eligibility-
In order to be eligible to compete at the
examination, a candidate must satisfy the
following conditions, namely: (i) (ii) Age-
He must have attained the age of 21, and not
attained the age of 28 on the first day of
August of the year in which the examination
is held:
Provided that the upper age limit may be
relaxed in respect of such categories of persons as may from
time to time, be notified in this behalf by the Central
Government, to the extent and subject to the conditions,
notified in respect of each category.. ’
Undoubtedly, the Union Public Service Commission has
been interpreting the provision as to attainment of age in a
like manner. This would be clear from the advertisement
issued by it on December 8, 1984 which is in these terms:
"Age limit: (ka) The candidate should have
attained the age of 21 years on 1st August. 1985.
hut should not have attained the age of 26 years,
that is, he should not have born before the 2nd
August, 1959 and after the 1st August, 1964,"
We are afraid, the interpretation of r. I l-B of the Rules
cannot proceed upon the basis adopted by the Union Public
Service Commission.
Rule 11-B of the Rules provides:
"11-B. Age. Notwithstanding anything contained
regarding
671
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 l-B 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
this 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. 11-B 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 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
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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 comp-
672
lete 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 twenty-
fifth 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 an-
673
niversary of that day, and if he falls within the
second A paragraph of s. 3, at the beginning of
the 18th anniversary of that day."
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. As
already stated, a legal day commences at 12 o’clock midnight
and continues untill the same hour the following night. It
would therefore appear that the appellant having been born
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on January 2, 1956, he had not only attained the age of 28
years but also completed the same at 12 o’clock on the
midnight of January 1, 1984. On the next day i.e. On January
2, 1984, the appellant would be one day more than 28 years.
The learned Judges were therefore right in holding that the
appellant was disqualified for direct recruitment to the
Rajasthan Administrative Service and as such was not
entitled to appear at the examination held by the Rajasthan
Public Service Commission in 1983. We affirm the view taken
by the learned Judges as also the decisions in G. Vatsala
Rani’s case, (supra).
It is rather unfortunate that the appellant should upon
the construction placed on r. 11-B of the Rajasthan State
and Subordinate Services (Direct Recruitment by Competitive
Examination) Rules. 1962 fail to secure entry into the
Rajasthan Administrative Service and allied services of the
Government of Rajasthan merely because he exceeds the upper
age limit just by one day. The Government ought to consider
the question of relaxing the upper age limit in the case of
the appellant in order to mitigate the hardship, if
otherwise permissible. There is need for a provision like
the proviso to r. 4 of the Indian Administrative Service
(Appointment by Competitive Examination) Regulations, 1955,
conferring the power of relaxation on the State Government
under certain conditions without which a deserving candidate
would be rendered ineligible for appointment.
The result is that the appeal must fail and is
accordingly dismissed. There shall be no order as to costs.
G
A.P.J. Appeal dismissed.
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