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1993 DIGILAW 79 (KER)

Manager C. L. P, School v. Mary Leema

1993-02-05

JAGANNADHA RAO, SREEDHARAN

body1993
Judgment :- Sreedharan, J. These appeals arise from the judgment in O.P.8613/1992. Respondents 1 and 4 in O.P.8613/1992 arc the appellants in W.A.175/1993.5th respondent in that writ petition has preferred W.A.184/1993. Issues that arise for consideration in these appeals are the same. 2. The writ petitioner is working as a Lower Primary School Assistant in the school run by the first respondent. Her claim for promotion as Headmistress was not accepted by the Manager. Educational authorities requested the Manager, first respondent in the writ petition, to promote the rightful claimant, the writ petitioner, to the post of Headmistress without any delay. Since that was not complied with by the Manager, writ petitioner has approached this Court for the issuance of a writ of mandamus to respondents 1 to 3 to implement the above orders and to give petitioner regular promotion to the post of Headmistress with effect from 7-10-1991. Learned Single Judge, by the impugned judgment, declared that the writ petitioner is entitled to be promoted as Headmistress in preference to the 4th respondent with effect from the last date of the Account Test (Lower) examination held in June, 1991. 3. When a permanent vacancy of Headmistress arose in the school run by the first respondent, no one among the teaching staff was qualified to be promoted to that post,since no teacher had acquired the Account Test (Lower) qualification. 4th respondent in the writ petition was the senior-most teacher. Therefore, she was given temporary promotion as per R.45C of Chapter XIV-A of the Kerala Education Rules. Clause (2) of that Rule mandates that the teacher temporarily promoted to the post of Headmaster should be replaced as soon as possible by the member of the service who becomes entitled to the promotion as per the rules. Writ petitioner passed Account Te^t (Lower) Examination in the test conducted in June, 1991, as evidenced by Ext.P1 certificate dated 7-10-1991. On thus becoming qualified, 41h respondent in the writ petition, it is alleged, had to be replaced by the writ petitioner. She represented to the Manager for getting promotion as Headmistress of the School. Neither the Manager nor the Assistant Educational Officer took any step to redress the claims of the writ petitioner. Therefore, she moved the District Educational Officer. As there was delay in passing orders by the District Educatior al Officer, writ petitioner moved this Court by filing O.P.5038/1992. She represented to the Manager for getting promotion as Headmistress of the School. Neither the Manager nor the Assistant Educational Officer took any step to redress the claims of the writ petitioner. Therefore, she moved the District Educational Officer. As there was delay in passing orders by the District Educatior al Officer, writ petitioner moved this Court by filing O.P.5038/1992. This Court directed the third respondent to considerwrit petitioner's representation and to pass final order within one month. In the meantime, 41h respondent in the writ petition moved Government for getting exemption from test qualification, so that she can continue as Headmistress. Her request was 'turned down by the Government, as evidenced by Ext.P5 communication dated 19-5-1992. In spite of that, the District Educational Officer, purporting to be in compliance with the direction given by this Court in O.P.5J33/1992, passed Ext.P6 order dated 8-6-1992 rejecting writ petitioner's claim for promotion as Headmistress. That order was questioned in the writ petition. 4. First respondent in the writ petition, the Manager of the school, filed a detailed counter affidavit contending that 4th respondent has 20 years of teaching experience and completed 50 years of age on 30-1-1992. Writ petitioner is the junior-most teacher, having 4 years of service only. When the vacancy to the post of Headmistress arose on 1-6-1990, 4th respondent was the senior-most hand in the school and no member of the teaching staff had the test qualification. 4th respondent is exempted from test qualification by virtue of completion of 50 years of age. Government directed the Deputy Director to promote the writ petitioner as Headmistress of the school without hearing the 4th respondent. Writ petitioner being the junior-most hand in me school, has to vacate the post as a result of the staff fixation order consequent on the fall in the strength of students. Ext.P5 order is not valid. 5. 5th respondent filed a counter affidavit stating that she has put in more than 12 years of service in the school and that she is a graduate with B.Ed, qualification. Writ petitioner is the junior-most teacher in the school. During the academic year 1992-93, there was fall in divisions. In that event, writ petitioner, being the junior-most, is likely to be retrenched. Date of birth of 4th respondent is 30-1-1942 and therefore she attained the age of 50 years on 30-1-1991. Writ petitioner is the junior-most teacher in the school. During the academic year 1992-93, there was fall in divisions. In that event, writ petitioner, being the junior-most, is likely to be retrenched. Date of birth of 4th respondent is 30-1-1942 and therefore she attained the age of 50 years on 30-1-1991. Consequently she is entitled to permanent exemption from acquiring the obligatory test qualification. 4th respondent having attained the age of 50 years on 30-1-1991, long prior to the date on which writ petitioner became qualified, is entitled to continue as Headmistress. 6. Learned Single Judge came to the conclusion that 4th respondent in the writ petition cannot be considered to have attained the age of 50 on 30-1-1991 because her date of birth is 30-1-1942. Writ petitioner having passed the test in the examination held in June, 1991, is entitled to be promoted to the post of Headmistress with effect from the last date of the examination, replacing the 4th counter petitioner. This conclusion arrived at by the learned judge is under challenge. 7. The main contention raised by the appellants is that the 41h respondent in the writ petition must be deemed' to have attained the age of 50 years as contemplated by clause (4) of R.45B of Chap. XIV-A K.E.R. on 30-1-1991, even though her date of birth is 30-1-1942. The argument is that she attained the age of 50 on 30-1-1991, though she completed the age of 50 years on 29-1-1992. In other words, the argument is, 4th respondent attained the age of 50 years on 30-1-1991. It is the appellants' contention that on the date on which 49th birth anniversary is celebrated, the 4th respondent in the writ petition must be deemed to have attained the age of 50. 8. The following facts are admitted in this case.-A regular vacancy in the post. of Headmaster, in the school run by the first respondent in the writ petition, arose on 1 6-1990. On that date, no member of the teaching staff had the Account Test (Lower) qualification for getting promotion to that post. 4th respondent in the writ petition is the senior-most member of the teaching staff. Her date of birth is 30-1-1942. She was promoted as Headmistress temporarily as per clause (1) of R.45C of Chapter XIV-A of Kerala Education Rules. On that date, no member of the teaching staff had the Account Test (Lower) qualification for getting promotion to that post. 4th respondent in the writ petition is the senior-most member of the teaching staff. Her date of birth is 30-1-1942. She was promoted as Headmistress temporarily as per clause (1) of R.45C of Chapter XIV-A of Kerala Education Rules. Writ petitioner acquired the Account Test (Lower) qualification by taking the examination held in June, 1991. Ext.P1 certificate dated 7-10-1991 evidences this fact.' 9. Eventhough 4(h respondent in the writ petition completed 50 years of age on 29-1-1992, her date of birth being 30-1-1942, it is argued that she must be deemed to have attained the u;::e of 50 years on 30-1-1991 when she completed the age of 49. Consequently u is argued that she is entitled to be permanently exempted from acquiring the Account Test (Lower) qualification as per clause (4) of R.45B of Chapter XIV-A K.E.R. Now the question that is to be considered is whether the 4th respondent in the writ petition, whose date of birth's 30-1-1942, can be deemed to have 'attained' the age of 50 years on 30-1-1991. 10. As per clause (4) of R.45B of Chapter XIV-A of the Kerala Education Rules, teachers who have attained the age of 50 years shall stand exempted permanently from acquiring qualification specified in sub-rule (1) of that Rule. The requirement of this rule is that a teacher should have attained the age of 50 years for getting permanent exemption from acquiring the qualification. According to counsel, one person attains the age of 50 from the date on which he completes the age of 49. Rule 45BB of Chapter XIV¬A states that every person holding the post of Headmaster in a Lower Primary School or in an Upper Primary School as on 10th of May, 1938, and who has completed 50 years of age or 25 years of service on that date, shall be eligible for permanent exemption from acquiring the qualification specified in sub-rule (1) of R.45B. In this rule, emphasis is made to the completion of 50 years of age. As per this rule, a Headmaster for getting permanent exemption from acquiring the qualification should have completed 50 years of age or 25 years of service as on 10th May, 1988. In this rule, emphasis is made to the completion of 50 years of age. As per this rule, a Headmaster for getting permanent exemption from acquiring the qualification should have completed 50 years of age or 25 years of service as on 10th May, 1988. When two different terminologies, namely "attained the age of 50 years" and "completed 50 years of age" are used in two consecutive rules, the words "attained" and "completed" cannot be deemed to have been used in the same sense. They must connote different circumstances. In this view of the matter, it is contended, teachers who have completed the age of 49 and thereby attained the age of 50 years should stand exempted permanently from acquiring the qualification as per R.45B(4) of Chapter XIV-A. In R.45BB, two circumstances arc contemplated, whereby a Headmaster who held the post on 10th May, 1988 could claim permanent exemption. Those circumstances are "completed 50 years of age" or "25 years of service". When these two conditions are connected by the word "or", word "attained" could not be used instead of "completed" before the words "50 years of age". So, the draftsman made use of the word "completed", which will apply both to the "age' and service'. As will be presently stated, words "attained" and "completed" are of same connotation. As per Random House Dictionary of the English Language, College Edition, the meaning of the word "attain" is to reach; achieve; or accomplish and meaning of "complete" is having all its parts or eic.tr; r;v whoK 'T entire; finished; concluded. As per the Chambcis °(/tl dictionary, New Edition 1983, when the word "attain" is used as verb, it mc:ni, , Acii or gain by effort; to arrive at; and meaning of the word "complete" is to finish; to make perfect or entire; to accomplish. According to she Concise Oxford Dictionary, the word "attain" means arrive at; reach; gain; accomplish and the meaning of word "complete" is having all its parts; entire; finished; accomplished. Thus it is seen that in common parlance the words "attain" and "complete" arc used to mo'.;n the same State of affairs. When can a person said to have attained the age of 50? The ;;.-,ua! under.- landing of phrase "attaining age of 50" is that a person has reached his 50th binhday. Thus it is seen that in common parlance the words "attain" and "complete" arc used to mo'.;n the same State of affairs. When can a person said to have attained the age of 50? The ;;.-,ua! under.- landing of phrase "attaining age of 50" is that a person has reached his 50th binhday. In other words, a person does not attain the age of 50 until his 501h birthday (vide Words and Phrases, Permanent Edition, Volume 4A page 454). The question as to when can a person be deemed to have attained a particular age came up for consideration before the Supreme Court in Prablui Dayai Sesma v. State of Rajasthan ((1986) 4 SCC 59). Rajas than Public Service Commission invited applications for direct recruitment by a competitive examination. The minimum a-ge prescribed for candidates was 21 years and maximum 28 years. The candidate should have attained the age of 21 years on 1st January, 1984 and should not have attained the age of 28 years on the first day of January next following the last date fixed for receipt of applications. The last date fixed for the receipt of application was January 1, 1983. The 1st day of January next following that day is 1st January, 1984, The appellant, born on 2nd January, 1956, had attained the age of 28 years, i.e. he havingcompleted the same at 12.00 O'clock on the mid-night of January 1, 1984. On January 2,1984, he would be more than one day of 28 years. Their Lordships observed: "In the absence of any express provision, it is well settled that any specified age in law is to be com puled as having been attained on the day preceding the anniversary of the birthday". Thus a person can be deemed to have attained the age of 50 years only on the day preceding the anniversary of the 50th birthday. 11. In Rex v. Scoffin (LR (1930) 1 KB 741), a question arose as to whether the accused had completed 21 years of age on the date of commission of an offence. He was born on February 17,1909. Hewart, C.J. held that the accused completed 21 years of age on February 16,1930 and Iha t he was one day more than 21 years of age on February 17,1930, on which day he committed the offence, thereby disentitling the privilege of being sent to Borstal. He was born on February 17,1909. Hewart, C.J. held that the accused completed 21 years of age on February 16,1930 and Iha t he was one day more than 21 years of age on February 17,1930, on which day he committed the offence, thereby disentitling the privilege of being sent to Borstal. InReShurey, Savony v. Shurey (LR (1918)1 Ch. 263), a question arose as to when a person attains a specified age in law. After reviewing all earlier decisions, Sargant, J., said that a person attains the age of 21 years or 25 years of age on the day preceding the anniversary of his 21st or 251h birthday as the case may be. 12. In Sushila Devi v. Prem Kumar (AIR 1981 All. 83) a learned Single Judge, after a survey of all the decisions, took the view thai it is well-settled that the specified age in law has to be computed as having been attained or completed on the day preceding the anniversary of the birthday. With respect, we agree with this statement of the law. 13. As per the provisions contained in the Indian Majority Act, 1875, a person born on 1st day of January 1850 and has a guardian appointed, attains majority at the first moment of the 1st day of January, 1871. Thus it is abundantly clear that a person can attain the age of 50 years only on the day previous to 50th birth anniversary. 14. Article 124 and Art.217 of the Constitution inter-alia provide that judges of the Supreme Court and High Courts shall hold office until he attains the age of 65 years or 62 years, as the case may be. This provision entitles the judges to hold office till the day previous to the 651h or 62nd birth anniversary, as the case may be. This shows that a person attains the age of 50, 62 or 65 only on the day previous to the 50th, 62nd or 65th birth anniversary, as the case may be. 15. Reference may also be made to the provisions contained in R.60 of Part I of Kerala Service Rules. As per that provision, the date of compulsory retirement of an officer shall take effect from the afternoon of the last day of the month in which heattains the age of 55 years. 15. Reference may also be made to the provisions contained in R.60 of Part I of Kerala Service Rules. As per that provision, the date of compulsory retirement of an officer shall take effect from the afternoon of the last day of the month in which heattains the age of 55 years. While dealing with the members of the teaching staff, it is provided therein that a member of the teaching staff who complete the age of 55 years during the course of an academic yearshall continue in service till the last day of the month in which the academic year ends. So, in the case oZpoveroI-fcnt employees, they are to retire from service on the last day of the month in which he attains the age of 55 years. If the meaning attributed to the word "attain" given by counsel representing the appellants is to be adopted, then the Government servants will have to retire from service from the afternoon of the last day of the month in which the 54th birth anniversary falls. In the case of teaching staff of educational institutions, they can continue till the last day of the month in which the academic year ends during the course of which he complete the age of 55 years. This will lead to an absurd situation. So, we have no hesitation in holding that the words "attained" and "completed" are having the same connotation in Service Rules. 16. As stated earlier, 41h respondent in the writ petition completed 50 years of age only on 29-1-1992. Long prior to that, writ petitioner acquired the test qualification. So, as provided by R.45C(2) of Chap.XIV-A, 4th respondent in the writ petition must be reverted from the nost of Headmistress and writ petitioner must be posted as Headmistress. 17. It was contended that writ petitioner being the junior-most, must face retrenchment on account of the fall in strength of the students during the year 1992-93. This contention cannot hold good because writ petitioner, who is treated as the Headmistress of the school with effect from the last day of the Account Test (Lower) Examination held in June, 1991, is not to face retrenchment consequent on the fall in the strength of students. In view of what has been stated above, we find no ground to interfere with the decision rendered by the learned Single Judge. Writ Appeals are accordingly dismissed. In view of what has been stated above, we find no ground to interfere with the decision rendered by the learned Single Judge. Writ Appeals are accordingly dismissed. An oral application has been made for grant of certificate for leave to appeal. We are of the view that the cases do not involve any substantial question of law of general importance which, in our opinion, needs to be decided by the Supreme Court. We are, therefo c, unable to grant any certificate under Art. 134-A read with Art.133 of the Constitution of India. The oral application is accordingly dismissed. Issue photocopy of the judgment to the parties on usual terms.