Full Judgment Text
*IN THE HIGH COURT OF DELHI AT NEW DELHI
th
% Date of decision: 19 October, 2012
+ W.P.(C) No.3475/1999
M.P. VAISH ..... Petitioner
Through: Ms. Zeenat Masoodi, Adv. for Mr.
S.K. Dubey, Adv.
Versus
UNION OF INDIA & ORS. ..... Respondents
Through: None.
CORAM :-
HON’BLE MR. JUSTICE RAJIV SAHAI ENDLAW
RAJIV SAHAI ENDLAW, J
1. Mr. S.K. Dubey counsel for the petitioner is not available.
Adjournment is sought on his behalf. However considering that the writ
petition is of the year 1999, it is not deemed appropriate to await his
presence any further. The paper book has been perused.
2. The petitioner, born on 01.05.1940, was appointed as a Clerk in the
Defence Accounts Department of the Government of India on 26.03.1962.
He was in the year 1997 working as the Senior Auditor. Vide Circular dated
14.05.1997 published by the Office of the Controller of Defence Accounts
(Army), Meerut Cantt., where the petitioner was posted, he was informed of
his impending retirement on 30.04.1998 on attaining the age of
superannuation of 58 years. The petitioner, in or about December, 1997
Page 1 of 8
W.P.(C) No.3475/1999
submitted his pension papers etc., again mentioning his date of impending
retirement as 58 years.
3. The Ministry of Personnel, Public Grievances and Pensions
(Department of Personnel and Training) in exercise of powers conferred by
proviso to Article 309 and Clause (5) of Article 148 of the Constitution of
India, vide Notification dated 13.05.1998 enhanced the age of retirement
from 58 to 60 years. The petitioner, as aforesaid had retired prior thereto on
30.04.1998.
4. The petitioner contends that the same Notification also carried out the
amendment in Fundamental Rule 56 whereby it was provided that the
Government servants shall retire from service on the afternoon of the last
day of the month in which they attain the age of sixty years; however a
Government servant whose date of birth is first day of a month shall retire
from service on the afternoon of the last day of the preceding month on
attaining the age of sixty years. The case of the petitioner is that the said
Rule 56 is arbitrary in discriminating between those who are born on the first
day of the month and those who are born on any other day of the month;
while those born on the first day of the month are made to retire on the
afternoon of the last day of the preceding month, those born on any other
day including on the second day of the month are made to retire on the last
day of that month. It is further the case of the petitioner that if those born on
first day of the month, as the petitioner is, were to also retire on the last day
of the month, the petitioner would not have been made to retire on
30.04.1998 and would have continued in employment till 31.05.1998 and
Page 2 of 8
W.P.(C) No.3475/1999
would have been the beneficiary of the enhancement in retirement age from
that of 58 years to 60 years.
5. Rule was issued in the petition.
6. The respondent has filed a counter affidavit pleading that the
petitioner was informed of his date of retirement much in advance and had
submitted his pension papers on 08.12.1997 stating the date of his retirement
as 30.04.1998 and did not raise any objection and cannot now make any
challenge thereto. It is pleaded that the Government has to fix a cut-off date
and so long as it is uniformly applicable, there is no question of
discrimination. It is yet further pleaded that the said Rule has been upheld in
Prabhu Dayal Sesma Vs. State of Rajasthan AIR 1986 SC 1948.
7. I have considered the matter on merits. Though the petitioner has
st
portrayed that classification between those born on 1 day of the month and
those born on remaining days of the month has been introduced only vide
amendment dated 13.05.1998 to Fundamental Rule 56 but such version of
the petitioner is obviously incorrect. Had the said provision come into
existence for the first time on 13.05.1998, the petitioner thereunder could not
have been retired prior thereto on 30.04.1998. The Fundamental Rule 56,
since 05.04.1975, provides so. The petitioner appears to have portrayed that
such classification came into being only with effect from 13.05.1998
perhaps, so as to be not accused of delay and laches in making the challenge
to the Rule only post his retirement. It is thus clear that such classification
exists since 05.04.1975 and the Notification dated 13.05.1998 only enhances
the age of retirement from 58 years to 60 years.
Page 3 of 8
W.P.(C) No.3475/1999
8. I have however, in the absence of counsel for the petitioner proceeded
to examine the challenge to the classification on the ground of
discrimination, rather than deal with the plea of delay / laches /
acquiescence.
9. Prabhu Dayal Sesma supra relied upon by the respondent in its
counter affidavit was not concerned with Fundamental Rule 56 as pleaded
by the respondent. The Supreme Court in that case was concerned with the
Rules fixing the minimum and maximum age for recruitment and in that
context also examined the Indian Administrative Service (Appointment by
Competitive Examination) Regulations, 1955 framed by the Central
Government in pursuance of Rule 7 of the Indian Administrative Service
(Recruitment) Rules, 1954 and held:
“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 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 birth day.
9. In Halsbury's Laws of England. 3rd edn., vol. 37, para 178 at
p. 100, the law was stated thus:
Page 4 of 8
W.P.(C) No.3475/1999
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 on the
day next before the anniversary of his birth day.”
Reference was also made to Section 4 of the Indian Majority Act, 1875 and
it was held:
“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 until the same hour the following night. It would
therefore appear that the appellant having been born 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).
14. 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
Page 5 of 8
W.P.(C) No.3475/1999
permissible. There is need for a provision like the proviso to
Rule 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.
15. The result is that the appeal must fail and is accordingly
dismissed.”
However the present is not a case of recruitment but of retirement and
the question of hardship thus does not arise.
It would thus be seen that it is only the principle of the aforesaid
judgment which can be applied, but the judgment cannot be said to be
upholding the provision of Fundamental Rule 56.
10. The judgment of the Supreme Court in Achhaibar Maurya Vs. State
of Uttar Pradesh (2008) 2 SCC 639 is also relevant in this regard. The
appellant therein was born on 01.07.1943 and as per the Uttar Pradesh Basic
Education (Teachers) Service Rules, 1981 by which he was governed, he
was to retire in the afternoon of the last day of the month in which he
attained the age of 60 years. However the Rule further provided that a
teacher retiring during an academic session July 1 – June 30 shall continue
to work till the end of academic session i.e. June 30. Thus, if the appellant
th
was to be said to retire on 30 June, he was not to be entitled but if he was to
st
be held to retire on 1 July, he would be entitled to work till the end of the
th
next academic session i.e. till June 30 of the next year. The Supreme Court
held the appellant to be retiring of 30.06.2003 and held that the legislature is
Page 6 of 8
W.P.(C) No.3475/1999
entitled to fix a cut off date and a cut off date fixed by a statute may not be
struck down unless held to be arbitrary. It was further held that though it
may seem unfortunate as some people may miss the extended period of
service by a day but for that reason a valid provision cannot be said to be
invalid on the touchstone of Article 14 or 16 of the Constitution of India.
The Supreme Court further held that a statute cannot be declared
unconstitutional for conferring benefit to a section of the people.
11. I find the same question to have arisen before the High Court of
Karnataka also in Union of India by its Secretary, Ministry of Defence Vs.
Col. Bhupinder Singh (Retd.) MANU/KA/0632/2009 Rule 16(a) of the
Army Rules, 1954 para materia to Fundamental Rule 56 was under
consideration therein. There also, merely for the reason of one day, the
th
benefit of 5 Pay Commission was being denied. It was however held that
the respondent in that case, born on 01.01.1944 would retire on 31.12.1995
th
and not on 01.01.1996 when the benefits of 5 Pay Commission came into
force.
12. It would thus be seen that the question raised in this petition is no
longer res integra . There is rationale in law, as discussed in Prabhu Dayal
Sesma , in putting those born on the first day of the month in one category
and those born on the other days of the month in the other category for the
purposes of computing the date and time of retirement. This classification
cannot be thus said to be discriminatory, as held in Achhaibar Maurya
supra.
Page 7 of 8
W.P.(C) No.3475/1999
13. No merit is thus found in the petition; the same is dismissed.
No costs.
RAJIV SAHAI ENDLAW, J
OCTOBER 19, 2012
‘gsr’..
Page 8 of 8
W.P.(C) No.3475/1999
th
% Date of decision: 19 October, 2012
+ W.P.(C) No.3475/1999
M.P. VAISH ..... Petitioner
Through: Ms. Zeenat Masoodi, Adv. for Mr.
S.K. Dubey, Adv.
Versus
UNION OF INDIA & ORS. ..... Respondents
Through: None.
CORAM :-
HON’BLE MR. JUSTICE RAJIV SAHAI ENDLAW
RAJIV SAHAI ENDLAW, J
1. Mr. S.K. Dubey counsel for the petitioner is not available.
Adjournment is sought on his behalf. However considering that the writ
petition is of the year 1999, it is not deemed appropriate to await his
presence any further. The paper book has been perused.
2. The petitioner, born on 01.05.1940, was appointed as a Clerk in the
Defence Accounts Department of the Government of India on 26.03.1962.
He was in the year 1997 working as the Senior Auditor. Vide Circular dated
14.05.1997 published by the Office of the Controller of Defence Accounts
(Army), Meerut Cantt., where the petitioner was posted, he was informed of
his impending retirement on 30.04.1998 on attaining the age of
superannuation of 58 years. The petitioner, in or about December, 1997
Page 1 of 8
W.P.(C) No.3475/1999
submitted his pension papers etc., again mentioning his date of impending
retirement as 58 years.
3. The Ministry of Personnel, Public Grievances and Pensions
(Department of Personnel and Training) in exercise of powers conferred by
proviso to Article 309 and Clause (5) of Article 148 of the Constitution of
India, vide Notification dated 13.05.1998 enhanced the age of retirement
from 58 to 60 years. The petitioner, as aforesaid had retired prior thereto on
30.04.1998.
4. The petitioner contends that the same Notification also carried out the
amendment in Fundamental Rule 56 whereby it was provided that the
Government servants shall retire from service on the afternoon of the last
day of the month in which they attain the age of sixty years; however a
Government servant whose date of birth is first day of a month shall retire
from service on the afternoon of the last day of the preceding month on
attaining the age of sixty years. The case of the petitioner is that the said
Rule 56 is arbitrary in discriminating between those who are born on the first
day of the month and those who are born on any other day of the month;
while those born on the first day of the month are made to retire on the
afternoon of the last day of the preceding month, those born on any other
day including on the second day of the month are made to retire on the last
day of that month. It is further the case of the petitioner that if those born on
first day of the month, as the petitioner is, were to also retire on the last day
of the month, the petitioner would not have been made to retire on
30.04.1998 and would have continued in employment till 31.05.1998 and
Page 2 of 8
W.P.(C) No.3475/1999
would have been the beneficiary of the enhancement in retirement age from
that of 58 years to 60 years.
5. Rule was issued in the petition.
6. The respondent has filed a counter affidavit pleading that the
petitioner was informed of his date of retirement much in advance and had
submitted his pension papers on 08.12.1997 stating the date of his retirement
as 30.04.1998 and did not raise any objection and cannot now make any
challenge thereto. It is pleaded that the Government has to fix a cut-off date
and so long as it is uniformly applicable, there is no question of
discrimination. It is yet further pleaded that the said Rule has been upheld in
Prabhu Dayal Sesma Vs. State of Rajasthan AIR 1986 SC 1948.
7. I have considered the matter on merits. Though the petitioner has
st
portrayed that classification between those born on 1 day of the month and
those born on remaining days of the month has been introduced only vide
amendment dated 13.05.1998 to Fundamental Rule 56 but such version of
the petitioner is obviously incorrect. Had the said provision come into
existence for the first time on 13.05.1998, the petitioner thereunder could not
have been retired prior thereto on 30.04.1998. The Fundamental Rule 56,
since 05.04.1975, provides so. The petitioner appears to have portrayed that
such classification came into being only with effect from 13.05.1998
perhaps, so as to be not accused of delay and laches in making the challenge
to the Rule only post his retirement. It is thus clear that such classification
exists since 05.04.1975 and the Notification dated 13.05.1998 only enhances
the age of retirement from 58 years to 60 years.
Page 3 of 8
W.P.(C) No.3475/1999
8. I have however, in the absence of counsel for the petitioner proceeded
to examine the challenge to the classification on the ground of
discrimination, rather than deal with the plea of delay / laches /
acquiescence.
9. Prabhu Dayal Sesma supra relied upon by the respondent in its
counter affidavit was not concerned with Fundamental Rule 56 as pleaded
by the respondent. The Supreme Court in that case was concerned with the
Rules fixing the minimum and maximum age for recruitment and in that
context also examined the Indian Administrative Service (Appointment by
Competitive Examination) Regulations, 1955 framed by the Central
Government in pursuance of Rule 7 of the Indian Administrative Service
(Recruitment) Rules, 1954 and held:
“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 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 birth day.
9. In Halsbury's Laws of England. 3rd edn., vol. 37, para 178 at
p. 100, the law was stated thus:
Page 4 of 8
W.P.(C) No.3475/1999
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 on the
day next before the anniversary of his birth day.”
Reference was also made to Section 4 of the Indian Majority Act, 1875 and
it was held:
“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 until the same hour the following night. It would
therefore appear that the appellant having been born 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).
14. 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
Page 5 of 8
W.P.(C) No.3475/1999
permissible. There is need for a provision like the proviso to
Rule 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.
15. The result is that the appeal must fail and is accordingly
dismissed.”
However the present is not a case of recruitment but of retirement and
the question of hardship thus does not arise.
It would thus be seen that it is only the principle of the aforesaid
judgment which can be applied, but the judgment cannot be said to be
upholding the provision of Fundamental Rule 56.
10. The judgment of the Supreme Court in Achhaibar Maurya Vs. State
of Uttar Pradesh (2008) 2 SCC 639 is also relevant in this regard. The
appellant therein was born on 01.07.1943 and as per the Uttar Pradesh Basic
Education (Teachers) Service Rules, 1981 by which he was governed, he
was to retire in the afternoon of the last day of the month in which he
attained the age of 60 years. However the Rule further provided that a
teacher retiring during an academic session July 1 – June 30 shall continue
to work till the end of academic session i.e. June 30. Thus, if the appellant
th
was to be said to retire on 30 June, he was not to be entitled but if he was to
st
be held to retire on 1 July, he would be entitled to work till the end of the
th
next academic session i.e. till June 30 of the next year. The Supreme Court
held the appellant to be retiring of 30.06.2003 and held that the legislature is
Page 6 of 8
W.P.(C) No.3475/1999
entitled to fix a cut off date and a cut off date fixed by a statute may not be
struck down unless held to be arbitrary. It was further held that though it
may seem unfortunate as some people may miss the extended period of
service by a day but for that reason a valid provision cannot be said to be
invalid on the touchstone of Article 14 or 16 of the Constitution of India.
The Supreme Court further held that a statute cannot be declared
unconstitutional for conferring benefit to a section of the people.
11. I find the same question to have arisen before the High Court of
Karnataka also in Union of India by its Secretary, Ministry of Defence Vs.
Col. Bhupinder Singh (Retd.) MANU/KA/0632/2009 Rule 16(a) of the
Army Rules, 1954 para materia to Fundamental Rule 56 was under
consideration therein. There also, merely for the reason of one day, the
th
benefit of 5 Pay Commission was being denied. It was however held that
the respondent in that case, born on 01.01.1944 would retire on 31.12.1995
th
and not on 01.01.1996 when the benefits of 5 Pay Commission came into
force.
12. It would thus be seen that the question raised in this petition is no
longer res integra . There is rationale in law, as discussed in Prabhu Dayal
Sesma , in putting those born on the first day of the month in one category
and those born on the other days of the month in the other category for the
purposes of computing the date and time of retirement. This classification
cannot be thus said to be discriminatory, as held in Achhaibar Maurya
supra.
Page 7 of 8
W.P.(C) No.3475/1999
13. No merit is thus found in the petition; the same is dismissed.
No costs.
RAJIV SAHAI ENDLAW, J
OCTOBER 19, 2012
‘gsr’..
Page 8 of 8
W.P.(C) No.3475/1999