JUDGMENT Hon’ble Devi Prasad Singh, J.—This writ petition has been preferred under Art. 226 of the Constitution of India against the impugned order dated 29.11.1995, passed by the Superintendent, Central Jail, Bareilly, by which the petitioner’s candidature for appointment on the post of temporary Bandi Rakshak (Warder) has been rejected in spite of the fact that the petitioner was selected for the said post and his name finds place in the select list. 2. The brief matrix of the case is that the Superintendent, Central Jail, had notified vacancies on 7.9.1995 inviting applications for appointment on the post of Jail Warder. The last date for receipt of the application was 20.9.1995. According to the advertisement, the candidate must have attained the age of 18 years on 1.7.1995 and should not have exceeded 35 years of age on the said date. The other qualification provided by the advertisement was High School or equivalent thereto. The proforma of application form was also provided, a copy whereof has been filed as Annexure 2 to the writ petition. 3. The petitioner had moved an application for appointment on the post of Jail Warder indicating his date of birth as provided in the High School certificate, i.e. 2.7.1977. The petitioner claims that he had completed the age of 18 years on 1.7.1995 as his date of birth is July 2, 1977. A select list was released, in which the petitioner’s name finds place. However, at later stage, by the impugned order dated 29.11.1995, the petitioner’s candidature was rejected on the ground that he had not completed the age of 18 years on 1.7.1995. Feeling aggrieved with the order under challenge, the petitioner has approached this Court. 4. The short question involved in the present writ petition is that whether the petitioner had completed the age of 18 years on 1.7.1995, keeping in view the fact that his date of birth is 2.7.1977. It has not been disputed by the learned Standing Counsel that it was incumbent on the part of the petitioner to complete 18 years of age on 1.7.1995 which is condition precedent to make a candidate eligible to seek appointment on the post of Jail Warder. 5. While assailing the order under chdllenge, the petitioner’s Counsel proceeded to submit that on 1.7.1995, the petitioner had completed the age of 18 years. 5. While assailing the order under chdllenge, the petitioner’s Counsel proceeded to submit that on 1.7.1995, the petitioner had completed the age of 18 years. He relied upon the judgment of Hon’ble Supreme Court, reported in (1986) 4 SCC 59 , Prabhu Dayal Sesma v. State of Rajasthan and another and proceeded to submit that in view of the law settled by the Hon’ble Supreme Court, the petitioner shall be deemed to have completed the age of 18 years on 1.7.1995. It has been further submitted that the completion of 18 years of age is to be calculated after considering whole of the day up to 12 o’clock in the mid-night. 6. On the question whether after lapse of almost 12 years, the impugned order shoiuld be quashed and the respondents may be directed to appoint the petitioner on the post of Jail Warder, the petitioner’s Counsel submits that on account of the pendency of the present writ petition in this Court, the petitioner should not be allowed to suffer as no act of the Court should harm a litigant and it is the bounden duty of the Court to see that a person is not harmed by the procedural error of the Court. While giving weight of his arguments, the petitioner’s Counsel further submitted that the delay has been caused in disposal of the writ petition not because of his fault; rather owing to the prevailing system in the administration of justice. 7. However, the learned Standing Counsel while defending the impugned order proceeded to submit that while counting the period of 18 years, the cut-of-date, i.e. 1.7.1995 should not be counted. It is further submitted that since the petitioner is now over-age, no appointment letter can be issued even if the impugned order dated 29.11.1995 is set aside. No other ground has been raised by the learned Standing Counsel in the defence of the impugned order. I have given my anxious consideration to the arguments, advanced by the respective parties. 8. In the case of Prabhu Dayal (supra), Hon’ble Supreme Court was ceased with the identical controversy. It was observed by the Hon’ble Supreme Court that while counting the age of a person, whole of the day should be reckoned and it starts from 12 oclock in the midnight. Their Lordships of the Hon’ble Supreme Court have also considered the Indian Majority Act, 1875 and other identical provisions. It was observed by the Hon’ble Supreme Court that while counting the age of a person, whole of the day should be reckoned and it starts from 12 oclock in the midnight. Their Lordships of the Hon’ble Supreme Court have also considered the Indian Majority Act, 1875 and other identical provisions. Relevant portion from the judgment of Prabhu Dayal’s case (supra) is reproduced as under : “9........................................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 is 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, the question was whether the accused had or had not completed 21 years of age. 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 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 17, 1930 which was the Commission day of Manchester Assizes.” “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 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." 9. In case the principle laid down by the Supreme Court in the case of Prabhu Dayal (supra) is applied, then needless to say that the petitioner had completed the age of 18 years on 1.7.1995, i.e. the preceding day of July 2, the date of birth of the petitioner. Accordingly, since the advertisement published by the respondents provides that the candidate must have completed 18 years of age on 1.7.1995, the petitioner shall be deemed to be eligible on the said date as he had completed 18 years of age on 1.7.1995. The present controversy is squarely covered by Prabhu Dayal’s case (supra). 10. Accordingly, since the advertisement published by the respondents provides that the candidate must have completed 18 years of age on 1.7.1995, the petitioner shall be deemed to be eligible on the said date as he had completed 18 years of age on 1.7.1995. The present controversy is squarely covered by Prabhu Dayal’s case (supra). 10. Now, coming to the next question, involved in the case in hand, i.e. whether on account of pendency of the present writ petition, the petitioner can be denied to seek appointment in pursuant to the selection held in the year 1995. In a case reported in (1999) 6 SCC 49 , Purushottam v. Chairman, M.S.E.B. and another, where a person selected for the post of Assistant Personnel Officer was denied appointment, he approached the Bombay High Court. However, the High Court of Bombay has dismissed the writ petition. Assailing the said order of dismissal, the petitioner of that case approached the Hon’ble Supreme Court. A defence was taken that since the period of select list has expired, no appointment can be made. 11. In the case of Purushottam (supra), it has been ruled by Hon’ble Supreme Court that in case right of appointment is illegally taken away and person is suffering on account of no fault on his part, the State cannot deny appointment only because the term of select list has expired or some delay has been caused on account of the litigation between the parties. Relevant portion from the judgment of Purushottam (supra) is reproduced as under : “.................The right of the appellant to be appointed against the post to which he has been selected cannot be taken away on the pretext that the said panel has in the meantime expired and the post has already been filled up by somebody else. Usurpation of the post by somebody else is not on account of any defect on the part of the appellant, but on the erroneous decision of the employer himself. In that view of the matter, the appellant’s right to be appointed to the post has been illegally taken away by the employer.” 12. Usurpation of the post by somebody else is not on account of any defect on the part of the appellant, but on the erroneous decision of the employer himself. In that view of the matter, the appellant’s right to be appointed to the post has been illegally taken away by the employer.” 12. In a case reported in 1993(1) LCD 486, S.S. Barathokey v. Chairman, U.P. Seeds and Tarai Development Corporation Limited and another, where an ex parte interim order was passed without serving notice on the caveator, Hon’ble Single Judge of this Court has relied upon the judgment of the Apex Court, reported in AIR 1966 SC 1631 , Jang Singh v. Brij Lal, where their Lordships of the Supreme Court held that no act of the Court should harm the litigant. It has been observed by the Supreme Court in the case of Jang Singh (supra) that the faith of the litigant in our system of administration should be maintained and if a litigant acts on the faith of the Court, then he should not suffer for the damage caused due to it. The principle of Actus curiae neminem gravabit was applied by the Supreme Court in the case of Jang Singh (supra). The aforesaid principle (supra) enunciated by Hon’ble Supreme Court was applied by this Court in one another case reported in 2005 (23) LCD 1130, Mudit Verma and others v. Cooperative Tribunal and another, for correction of the error committed by the Court. 13. The principle of Actus curiae neminem gravabit is founded on common sense to maintain public faith in the administration of justice. 13. The principle of Actus curiae neminem gravabit is founded on common sense to maintain public faith in the administration of justice. In Broom’s Legal Maxims (Tenth Edition) Indian Economy, Actus curiae neminem gravabit has been elaborated as under; to reproduce : “The preceding examples will probably be sufficient to illustrate the general doctrine, which is equally founded on common sense and on authority, that the act of a Court of law shall prejudice no man; and in conformity with this doctrine, it has been observed, that, as long as there remains a necessity, in any stage of the proceedings in an action, for an appeal to the authority of the Court, or any occasion to call upon it to exercise its jurisdiction, the Court has, even if there has been some express arrangement between the parties, an undoubted right, and is, moreover, bound to interfere, if it perceives that its own process or jurisdiction is about to be used for purposes which are not consistent with justice(k).” 14. In the present case, though there is nothing like error on the part of the Court on judicial side but since the right of livelihood is involved, it is always expected that such cases, filed in this Court should be expeditiously taken up and rights of the parties should be adjudicated as early as possible so that no irreparable loss and injury is caused to a person who approaches this Court—whether under Art. 226 of the Constitution of India or any other statutory provisions. For pendency of the case for about 12 years, the petitioner cannot be blamed at all. The petitioner’s Counsel submits that in spite of all efforts having been made, he could not pursue the Court to decide the matter finally. Merely because a case is pending in this Court for unreasonable period or the judgment is delayed for one or the other ground, the petitioner cannot be divested of his fundamental right of livelihood protected by the Constitution or a statute. In case the writ petition would have been decided within reasonable period after filing in this Court, needless to say that the petitioner would have succeeded to get appointment in the year 1995. 15. In case the writ petition would have been decided within reasonable period after filing in this Court, needless to say that the petitioner would have succeeded to get appointment in the year 1995. 15. Ordinarily, while deciding a controversy in a pending matter, the rights, title and status of the parties should be considered from the facts and circumstances prevailing at the time when the litigant has approached this Court. The litigants cannot be divested of their valuable right of employment or source of livelihood only because of the pendency of a writ petition. 16. As discussed hereinabove, right to livelihood is fundamental right protected by Article 21 of the Constitution of India, vide 1991 Suppl. (1) SCC 600, Delhi Transport Corporation v. D.T.C. Mazdoor Congress. Accordingly, once it has been held that the petitioner was entitled for appointment on the post of Jail Warder in pursuance to the selection in question and a finding has been recorded that he was illegally deprived by the opposite parties to get an employment, then whether such right shall extinguish only because of lapse of time and the petitioner shall be remediless? Heavy burden lies on the Court to protect the fundamental right of the citizens. Delay in disposal of the cases is a common phenomena and all efforts should be made to safeguard the fundamental right of the citizen. As far as possible, a citizen should not be deprived of his constitutional rights only because of pendency of a litigation. In case a person is left remedyless because of inordinate delay in disposal of a case in this Court, then what Robert Burton (1577-1640) has said shall become true. To quote : “So he that goes to law, as the proverb is, holds a wolf by the cars, or, as a sheep in a storm runs for shelter to a briar.” 17. Ubi Jus Ibi Remedium, i.e. there is no wrong without a remedy should be applied to evolve a principle to protect the fundamental rights of a citizen who may likely to suffer because of pendency of litigation. According to the maxim, whenever the common law gives a right or prohibits an injury, it also gives a remedy. In other words, whenever citizen possess certain constitutional guarantee or statutory right, that must be protected by Courts. 18. According to the maxim, whenever the common law gives a right or prohibits an injury, it also gives a remedy. In other words, whenever citizen possess certain constitutional guarantee or statutory right, that must be protected by Courts. 18. While referring the maxim, “lex semper dabit remedium”, learned author in Brooms Legal Maxims (supra) has observed as under : “If a man has a right, he must, it has been observed, “have a means to vindicate and maintain it, and a remedy if he is injured in the exercise and enjoyment of it; and, indeed, it is a vain thing to imagine a right without a remedy, for want of right and want of remedy are reciprocal”. 19. Under the facts and circumstances of the case, the petitioner is entitled for appointment in pursuance to the selection held in the year 1995, though he shall be entitled for service benefits only from the date of appointment in pursuance of the order, passed by this Court. It shall be bounden duty of the respondents to relax the age and appoint the petitioner as the impugned order dated 29.11.1995 has been held to be arbitrary and illegal. 20. While exercising extraordinary jurisdiction under Art. 226 of the Constitution of India the Court has got ample power to provide remedy to a person who approaches this Court under Art. 226 of the Constitution and adjudicate the controversy to restore the rights which a litigant is entitled at the time of filing of the writ petition. 21. In view of the above, the petitioner cannot be left in lurch and remedyless. The right of livelihood which was available in the year 1995 at the time of impugned selection should be restored. The petitioner is entitled for adjudication of the present controversy keeping in view the facts and circumstances and legal proposition of law available to him at the time of filing of present writ petition. 22. In view of the above, the writ petition deserves to be and is hereby allowed. A writ in the nature of certiorari is issued quashing the impugned order dated 29.11.1995, passed by the Superintendent, Central Jail, Bareilly, as contained in Annexure 1 to the writ petition with all consequential benefits. 23. 22. In view of the above, the writ petition deserves to be and is hereby allowed. A writ in the nature of certiorari is issued quashing the impugned order dated 29.11.1995, passed by the Superintendent, Central Jail, Bareilly, as contained in Annexure 1 to the writ petition with all consequential benefits. 23. A writ in the nature of mandamus is also issued directing the opposite parties to appoint the petitioner on the post of Jail warder forthwith in pursuance to the select list contained in Annexure 3 to the writ petition. In case the post is not available, the respondents shall create supernumerary post to appoint the petitioner and whenever a regular vacancy arises, he shall be adjusted against the said vacancy. The respondents are also directed to consider the relaxation of age, keeping in view the observations made hereinabove. Let necessary exercise be done within two months from the date of production of present judgment. 24. The writ petition is allowed accordingly. 25. No order as to costs. ————