Mukund Ram Mishra vs State Of U.P. Thru Secy. Basic ...
2013 Latest Caselaw 3394 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Reserved 
 
Court No. - 18
 

 
Case :- SERVICE SINGLE No. - 3592 of 2013
 

 
Petitioner :- Mukund Ram Mishra
 
Respondent :- State Of U.P. Thru Secy. Basic Education U.P. Govt. & Ors
 
Counsel for Petitioner :- Bhupal Singh Rathore
 
Counsel for Respondent :- C.S.C.,Rajiv Singh Chauhan
 

 
Hon'ble Anil Kumar,J.

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.

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 retired after attaining the age of superannuation (62 years) on 30.06.2013.

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.

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.

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.

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

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.

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.

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 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."

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 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".

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 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 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. 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 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 the beginning of the 18th anniversary of that day."

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."

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.

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.

In the result, writ petition lacks merit and is dismissed.

No order as to costs.

Order Date :- 28.06.2013

Ravi/