Ajay Kumar Mandal vs The State Of Jharkhand Through The ...
2021 Latest Caselaw 1142 Jhar

         IN THE HIGH COURT OF JHARKHAND AT RANCHI
                         W.P. (S) No.398 of 2019
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Ajay Kumar Mandal, aged 45 years, S/o Shri Upendra Prasad Mandal, R/o Chitolodhiya, P.S. Kunda, P.O. Deosangh, District Deoghar .... .... .... Petitioner Versus

1. The State of Jharkhand through the Chief Secretary, Government of Jharkhand, r/o at Project Bhawan, HEC, P.O. & P.S. Dhurwa, District Ranchi

2. The Principal Secretary, Department of Personnel, Administrative Reforms and Rajbhasha, Government of Jharkhand, r/o at Project Bhawan, HEC, P.O. & P.S. Dhurwa, District Ranchi

3. The Deputy Commissioner, Deoghar, Government of Jharkhand, r/o Deoghar Collectorate, P.O. & P.S. Deoghar, District Deoghar

4. Jharkhand Staff Selection Commission through its Secretary, r/o Kali Nagar, Chaibagan, P.O. & P.S. Namkum, District Ranchi

5. The Examination Controller, Jharkhand Staff Selection Commission, r/o Kali Nagar, Chaibagan, P.O. & P.S. Namkum, District Ranchi .... .... .... Respondents

CORAM : HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI

For the Petitioner : Mr. Deepak Kumar Bharati, Advocate For the Respondents-State : Mr. Ashok Kumar Yadav, G.A. I For the Respondent-JSSC : Mr. Sanjay Piprawall, Advocate

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10/08.03.2021 Heard Mr. Deepak Kumar Bharati, learned counsel for the petitioner and Mr. Ashok Kumar Yadav,, learned counsel for the respondent-State as well as Mr. Sanjay Piprawall, learned counsel for the respondent-JSSC.

This writ petition has been heard through Video Conferencing in view of the guidelines of the High Court taking into account the situation arising due to COVID-19 pandemic. None of the parties have complained about any technical snag of audio-video and with their consent this matter has been heard.

The petitioner has preferred this writ petition for quashing the order dated 05.12.2018 contained in Annexure-6 whereby the candidature of the petitioner has been rejected.

Jharkhand Staff Selection Commission published advertisement inviting applications for appointment on the post of Graduate Trained Teacher for various Districts within Jharkhand under Combined Graduate Trained Teacher Competitive Exam, 2016. The vacancy position was subject and District wise as per the advertisement. As per the advertisement, the post of Graduate Trained Teacher in Geography subject, the requirement was graduate with minimum 45% marks in concerned subject for which appointment was to be made with B.Ed. from recognized institution or

similar qualification from Rashtriya Adhyapak Shiksha Parishad. Pursuant to that, the petitioner has applied for appointment. The cut-off date of age was 01.01.2016 on which date minimum age required was 21 years and maximum age for Extremely Backward Class (List-I) and Backward Class (List-2) was 42 years. The petitioner appeared and was declared successful in the counselling. The documents of the petitioner was examined and while calculating the age of the petitioner, it was found that the petitioner has already crossed 42 years of age and reason was communicated to the petitioner that he has already entered into 43rd years of age. Aggrieved with this, the petitioner has approached this Court by way of filing this writ petition.

Mr. Deepak Kumar Bharati, learned counsel appearing for the petitioner submits that the petitioner has completed 41 years 11 months and 30 days of age on 31.12.2015 and on 01.01.2016, the petitioner was 42nd years of age. He submits that date of birth of the petitioner is 01.01.1974 and in the light of age calculator on the website of Jharkhand Staff Selection Commission, the petitioner was found 42 years on 01.01.2016. On this ground he submits that the case of the petitioner has been arbitrarily rejected.

Per contra, Mr. Sanjay Piprawall, learned counsel appearing for the respondent-JSSC submits that the age of the petitioner was calculated in terms of well settled procedure and precedent. He submits that the petitioner has already completed 42 years of age on 31.12.2015 and he has entered in 43rd years of age on 01.01.2016. To substantiate his argument, he draws this Court towards Rule 73 of Jharkhand Service Code and also pointed out that in Rule 5(3) of IAS (Appointment By Promotion), Regulations, 1955, calculation of age has been provided. He submits that in view of this Rule also, the case of the petitioner is not fit to be considered, however, JSSC after applying this, has rightly calculated the age. He submits that so far the age calculator on the website of JSSC is concerned that was erroneous and that is why was not required to be relied. He submits that that was not part of the advertisement that is why the said age calculator has been removed from the website of JSSC. He relied in the case of Pradeep Kumar Sonthalia Versus Dhiraj Prasad Sahu @ Dhiraj Sahu & Others reported in 2020 (1) JBCJ (HC). Para 84, 85 and 86 of the judgment is quoted hereinbelow:-

84. The Supreme Court of India, while dilating on the period of 45 days as the limitation for filing an election petition from the date of election sought to be challenged, had held in Raj Kumar Yadav Vs. Samir Kumar Mahaseth and others reported in (2005) 3 SCC 601 that the 45th day would expire on the midnight immediately preceding commencement of the next day. It was propounded that the word 'day' is not defined in the Act, 1951 and has to be assigned its ordinary meaning as understood in law. It was explained that the word 'day' as per English Calendar begins at the midnight and covers a period of 24 hours thereafter, in the absence of there being anything to the contrary in the context. It was underlined that when the statute prescribes a particular date and day as the last day for any act being performed, it can be so done up to as late as the midnight immediately preceding the commencement of the next day. The relevant paragraph of "Raj Kumar Yadav vs. Samir Kumar Mahaseth and Others (2005) 3 SCC 601" is quoted below:

"6. The limitation provided by Section 81 of the Act expires on the 45th day from the date of election. The word "day" is not defined in the Act. It shall have to be assigned its ordinary meaning as understood in law. The word "day" as per English calendar begins at midnight and covers a period f 24 hours thereafter, in the absence of there being anything to the contrary in the context. (See Ramkisan Onkarmal Agrawal v. State of Maharashtra AIR 1994 Bom 87, AIR at p. 94, Municipal Council of Cuddalore v. S. Subrahmania Aiyar 16 MLJ 101 and P. Ramanatha Aiyar, The Law Lexicon, pp. 470, 471.)................"

85. In Eerati Laxman vs. State of Andhra Pradesh (2009) 3 SCC 337, the Supreme Court was confronted with the plea of the petitioner who claimed to be a juvenile, contending that as his date of birth was 10.05.1978, he had not completed 16 years on 09.05.1994, the date of the incident. The Supreme Court approved its earlier rendition in Prabhu Dayal Sesma vs. State of Rajasthan reported in (1986) 4 SCC 59 that in absence of any express provision, while calculating a person's age, the day of his birth must be counted as a whole day and any specified age in law is to be computed as having been attained on the day preceding the anniversary of the birthday. It has held as well that a legal day commences at 12 o'clock midnight and continues until the same hour the following night. The relevant paragraphs of "Eerati Laxman vs. State of Andhra Pradesh (2009) reported in 3 SCC 337, is quoted below:

"12. Section 3 of the Majority Act, 1875 provides for age of majority of persons domiciled in India and the criteria for computation of age of majority. It reads as under:

'3. Age of majority of persons domiciled in India.--(1) Every person domiciled in India shall attain the age of majority on his completing the age of eighteen years and not before. (2) 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 at the beginning of the eighteenth anniversary of that day.'

14. The appellant, therefore, having been born on 10-5-1978, the said day was to be counted as a whole day and, thus, he had not attained the age of 16 years before 12 o'clock in the midnight of the previous day i.e. 9-5-1978 (sic 9-5-1994)."

86. It is respectfully submitted that in Prabhu Dayal Sesma vs. State of Rajasthan (1986)4 SCC 59, the Hon'ble Supreme Court has held that:

1. "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 the Rajasthan Administrative Service under Rule 11-B of the Rajasthan State and Subordinate Services (Direct Recruitment by Competitive Examination) Rules, 1962 (for short "the Rules").

9. It is plain upon the language of Rule 11-B that a candidate 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. 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 Rule 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 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 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 (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 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 LR (1930) 1 KB 741, 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 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.

12. In Re Shurey Savory v. Shurey LR (1918) 1 Ch 263 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, 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 twentyfirst or twenty-fifth birthday or other birthday, as the case may be.

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."

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 decision in G. Vatsala Rani case.

Mr. Ashok Kumar Yadav,, learned counsel for the respondent-State submits that the petitioner has already completed 42 years of age on 31.12.2015. He further submits that so far the calculation of age is concerned, JSSC is competent authority who has exercised calculation of age.

Having heard learned counsel for the parties, the Court has gone through the materials available on record. In the advertisement, it has been clearly stated that maximum age for Extremely Backward Class (List-I) and Backward Class (List-2) 42 years. The petitioner belongs to this Class. The cut-off date was fixed for calculating the age as on 01.01.2016. The date of birth of the petitioner is 01.01.1974. On calculation of date of birth of petitioner, it transpires that the petitioner has completed 42 years of age on 31.12.2015. It is well settled precedent that if a person born on 1st of a month is said to complete on entire year in terms of age on the last date of the previous month of next year. In the advertisement, in clear terms, it has been substantiated that maximum age is 42 years. The petitioner has already completed 42 years on 31.12.2015. He has entered in 43 rd years on 01.01.2016, In the light of advertisement, the Court under Article 226 of Constitution of India, will not deviate from the advertisement. The age of petitioner has been rightly calculated and as such no relief can be extended to the petitioner.

Accordingly, the writ petition is dismissed.

(Sanjay Kumar Dwivedi, J.)

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