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2006 DIGILAW 71 (GAU)

Nagendra Nath Talukdar v. State of Assam

2006-01-18

I.A.ANSARI

body2006
JUDGMENT I.A. Ansari, J. 1. The present writ petition invites this Court to determine the principles, which govern computation of the date of birth of a person and the date of retirement of a Government servant on superannuation. 2. I have heard Mr. A.M. Buzarbaruah, learned Counsel for the Petitioner, and Ms. M. Gogoi, learned standing counsel, Education Department, Assam, appearing on behalf of the Respondents. 3. While the Petitioner was functioning as the Head of the Department of Physics of B. Barooah College, Guwahati, he was retired by the Respondents/authorities concerned, on superannuation, on attaining the age of 60 years with effect from 31.1.2001. Claiming that his date of birth ought to have been treated as 2.2.1941, for, he had completed 14 years 1 month on 1.3.1955 and he ought to have, therefore, been treated to have attained his age of superannuation on 2.2.2001 and retired accordingly with effect from 28.2.2001 and not with effect from 31.1.2001, the Petitioner has approached this Court, with the help of this writ petition, seeking issuance of appropriate writ(s) for remedy p£ his grievances. In short, what the Petitioner contends is that according to F.R. 56(a), the retirement of a Govt. servant should take effect from the afternoon of the last day of the month in which the Government servant concerned attains the age of superannuation and under the proviso to F.R. 56(a), if a Govt. servant's date of birth falls on the 1st day of any month, he shall attain the age of 60 years on the afternoon of the last day of the preceding month. In the present case, according to the Petitioner, since the Petitioner had attained the age of superannuation on 2.2.2001, the retirement of the Petitioner ought to have been given effect from the afternoon of 28.2.2001, but the Respondents/authorities concerned, as a result of incorrect interpretation of FR 56(a) and by wrong application thereof, retired the Petitioner with effect from 31.1.2001 treating his date of birth as 1.2.1941. 4. In view of the fact that the Respondents have not filed any affidavit disputing and/or denying the averments made in the writ petition by the Petitioner, the averments made by the writ Petitioner to, at least, the effect that he was 14 years 1 month on 1.3.1955 and that he had, thus, completed 14 years on 1.2.1955 are not in dispute. This apart, there is really no dispute before me that since the Petitioner was, admittedly, 14 years 1 month old on 1.3.1955, he must be taken to have completed 14 years on 1.2.1955. Based on these averments, I am, now, required to determine as to what the date of birth of the Petitioner was and on what date, he ought to have been retired on superannuation. 5. While considering the controversy raised in the present writ petition, what needs to be borne in mind is that a legal day commences at 12 O' clock midnight and continues until the same hour of the following night and that in computing the age of any person, the date on which he was born has to be included as a whole day. What I am, now, really required to determine, in the present writ petition, is as to whether the Petitioner shall be treated to have been born on 1.2.1941 or on 2.2.1941 and, on attaining the age of 60 years, whether he could have been retired with effect from 31.1.2001 or he ought to have been retired with effect from 28.2.2001. While considering these aspects of the matter, it may be pointed out that in Prabhu Dayal Sesma v. State of Rajasthan and Anr. (1986) 4 SCC 59 , the Apex Court considered and relied upon the law as reflected by Halsbury's Law of England, 3rd end., Vol. 37, para 178 at p. 100, to the effect that 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. In Prabhu Dayal Sesma (supra), the Supreme Court has illustrated the point by citing two English decisions in paragraph Nos. 10, 11 and 12, which I quote hereinbelow: 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, 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 17th February, 1909. Lord Hewart, CJ held that the accused completed 21 years of age on 16th February, 1930 and that he was one day more than 21 years of age on 17th February, 1930 which was the Commission day of Manchester Assizes. 12. Shurey, Savory v. Shurey, In re., 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 proceeding 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. 6. From what has been indicated in paragraph Nos. 10, 11 and 12, it clearly follows that in Scoffin (supra), since the accused was born on 17.2.1909 and the question was as to when he shall be treated to have completed 21 years of age. The court, in Scoffin (supra), held to the effect that since the accused was born on 17.2.1909, he must be treated to have completed 21 years of age on 16.2.1930 and that on 17.2.1930, he would be one day more than 21 years of age. In the second English decision, i.e., Shurey (supra), what was held is that a person attains the age of 21 years or 25 years on the day preceding the anniversary of his 21st or 25th birth anniversary. In the second English decision, i.e., Shurey (supra), what was held is that a person attains the age of 21 years or 25 years on the day preceding the anniversary of his 21st or 25th birth anniversary. Applying the principles with regard to computation of the age of a person as reflected in Halsbury's Law of England as well as the two English decisions aforementioned, the Apex Court, in Prabhu Dayal Sesma (supra), held that since the Appellants date of birth was 2.1.1956, he had attained the age of 28 years at 12 O' click mid-night of 1.1.1983 and completed the age of 28 years at 12 O' clock midnight of 1.1.1984. 7. In the present case, since the Petitioner had completed the age of 14 years on 1.2.1955, it clearly follows that his date of birth was 2.2.1941 and not on 1.2.1941. Thus, when the Petitioner's date of birth was 2.2.1941, the Petitioner could complete 59 years of age on 1.2.2001 and1 his 60th anniversary commenced at 12 O' clock midnight of 2.2.2001, for, the date on which the Petitioner was born has to be included as a whole day for the purpose of computing the completion of 59 years and for the purpose of determining the date of his attaining the age of 60 years. In short, the Petitioner attained the age of 60 years on 2.2.2001 and not on 1.2.2001. 8. From a careful reading of FR 56(a), what transpires is that under FR 56(a), every Government servant shall, ordinarily, retire from service on the afternoon of the last day of the month in which he attains the age of 60 years. The first proviso to FR 56(a) makes an exception, in this regard, by laying down that if a Government servant's date of birth is 1st of a month, he should retire from service on the 31st day of the preceding month. Thus, if a Government servant attains the age of 60 years on 1.2.2001, he would retire on 31.1.2001; and if he attaints the age of 60 years on 2.2.2001, then, he would retire on 28.2.2001. 9. In the case in hand, since the Petitioner had attained the age of 60 years on 2.2.2001, the retirement of the Petitioner, on superannuation would have legally taken effect from the afternoon of 28.2.2001. 9. In the case in hand, since the Petitioner had attained the age of 60 years on 2.2.2001, the retirement of the Petitioner, on superannuation would have legally taken effect from the afternoon of 28.2.2001. It is, therefore, abundantly clear that the explanation to FR 56(a), which states that a Government servant, whose date of birth falls on the 1st day of a month, shall retire from service on the afternoon of the last day of the preceding month, was wrongly applied to the case of the Petitioner and the Petitioner was, thus, wrongly retired from service with effect from 31.1.2001 instead of 28.2.2001. 10. In the result and for the foregoing reasons, this writ petition stands allowed and the Respondents authorities concerned are hereby directed to treat the date of retirement of the Petitioner with effect from the afternoon of 28.2.2001 and pay him the salary and allowances and also pension and other retiral benefits accordingly. 11. With the above observations and directions, this writ petition shall stand disposed of. 12. No order as to costs. Petition allowed.