Research › Search › Judgment

Gauhati High Court · body

2009 DIGILAW 429 (GAU)

Nagendra Nath Lahkar v. State of Assam

2009-06-23

C.R.SARMA

body2009
JUDGMENT C.R. Sarma, J. 1. Heard Mr. R.C. Saikia, learned Counsel appearing for the writ Petitioner. Also heard Mr. B.K. Sharma, learned GA appearing for the Respondent No. 3 and 4. None appears for the Respondent Nos. 1, 2 and 5. 2. The short point involved in this writ petition relates to determination of the date of birth. The question is whether the date of birth of the Petitioner, whose age was 18 years 2 months on 1st March, 1965, was 1st January, 1947 or 2nd January, 1947. The writ Petitioner joined in the State Government service on 9.11.73 as Jr. Accountant-cum-Assistant. Subsequently, he was confirmed as Jr. Accountant on 1.7.1978 and thereafter promoted to the post of Sr. Accountant on 6.5.1988, which post he was holding till the date of his retirement. As per the certificate issued by the Board of Secondary Education (Annexure-A) the Petitioner attained the age of 18 years 2 months on the first day of March, 1965. Therefore, according to the Petitioner taking the whole day of first January, 1947 into account the date of birth of the Petitioner was 2nd January, 1947. The gradation list (Annexure-C) published by the authority included the name of the Petitioner at Sl. No. 14 and his date of birth was shown as 1.1.1947. In the subsequent gradation list also published by the concerned authority the date of birth of the Petitioner was shown as 1.1.1947. Accordingly, due (sic) said wrong entry of the date of birth of the Petitioner, he submitted representations dated 19.8.1994 (Annexure-F) and 16.4.1998 (Annexure-I) before the Deputy Commissioner, Kamrup (Treasury Establishment), Guwahati with a prayer to correct the date of birth as 2.1.1947. But the Respondent No. 4, without correcting the date of birth, vide his order dated 16.11.2004 asked the Petitioner to go on retirement with effect from 31.12.2004 (forenoon) on attaining the age of superannuation. The Respondent No. 5 also by his letter dated 31.12.2004, while appreciating the services rendered by the Petitioner, released him from service on attaining the age of superannuation on 31.12.2004. On being so released, the Petitioner submitted representations (Annexures L and M). The Respondent No. 5 also by his letter dated 31.12.2004, while appreciating the services rendered by the Petitioner, released him from service on attaining the age of superannuation on 31.12.2004. On being so released, the Petitioner submitted representations (Annexures L and M). On receipt of the said representations, the Under Secretary to the Government of Assam, Finance (Establishment) Department, Dispur by his letter dated 15.2.2005 informed the Petitioner that the date of birth was required to be corrected three years before the date of retirement and as such there was no scope to correct the date of birth at that stage. In response to the said letter, the Petitioner by submitting Anr. representation (Annexure-O) informed the Respondent No. 2 i.e. the Under Secretary to the Government of Assam that on receipt of the gradation list dated 17.8.1994 the proprietor came to know that his date of birth and the date of superannuation were wrongly shown and that he had submitted his representation well ahead of time i.e. on 19.8.1994. Vide notification dated 25.1.2005 (Annexure-Q) the Government of Assam raised the age of superannuation of the State Government employees from 58 years to 59 years indicating therein that this decision would be applicable to all the State Government employees who were due to retire after 1.1.2005 (sic) and that those employees who retired on 31.12.2004 on superannuation will not be entitled to get this benefit. According to the Petitioner as his correct date of birth should have been recorded as 2nd January, 1947 he would have got the benefit of the notification dated 25.1.2005 aforesaid, but due to failure of the Respondents to rectify the mistake in respect of the entry regarding his date of birth of the Petitioner, he was deprived from continuing with his service for one year. Thus, being aggrieved, the Petitioner has come up with this writ petition seeking direction for correction of his date of birth as 2.2.1947 instead of 1.1.1947. 3. Notices having been issued, the Respondent No. 4 i.e. the Treasury Officer, Kamrup filed an affidavit-in-opposition. Thus, being aggrieved, the Petitioner has come up with this writ petition seeking direction for correction of his date of birth as 2.2.1947 instead of 1.1.1947. 3. Notices having been issued, the Respondent No. 4 i.e. the Treasury Officer, Kamrup filed an affidavit-in-opposition. In the said affidavit-in-opposition at paragraph 5, while admitting the receipt of the representation dated 19.8.1994 submitted by the Petitioner regarding correction of the date of birth in the gradation list and the service book of the Petitioner, the contesting Respondent averred that the draft gradation list was published on 3.7.1986, but the Petitioner raised the objection on 19.8.1994 i.e. after lapse of 8 years. Regarding subsequent representations submitted by the Petitioner, the contesting Respondent submitted that the gradation list was correctly prepared by showing the date of birth of the Petitioner as 1.1.1947 and as such the Petitioner was asked to go on retirement on 31.12.2004. In the affidavit-in-opposition aforesaid, more particularly at paragraph 15, it has been averred by the Respondent No. 4 that had the Petitioner prayed for the correction well ahead of time, the date of birth could have been corrected and that no application for such correction was received. Mr. R.C. Saikia, learned Counsel for the Petitioner submitted that the representation dated 19.08.1994, which was admitted to have been received by the Respondent No. 5 was submitted about 10 (ten) years prior to the date of superannuation of the Petitioner and as such the prayer for correction having been made more than 3 (three) years prior to the date of retirement and in view of the letter dated 15th February, 2005 issued by the Respondent No. 2, the date of birth should have been corrected. From Paragraph-5 of the affidavit filed by the Respondent No. 5 it appears that the representation was received by the authority. In the said application dated 19.8.94, the Petitioner, inter alia, submitted as follows: I have the honour to state that it appears in the draft gradation list at Sl. No. 33, column 4 that my date of birth has shown (sic) to be 1.1.1947. But in my H.S.L.C. examination passed certificate my age was 18 (eighteen) years 2 (two) months on the "1st of March, 1965 and as such my date of birth ought to have been shown in the said draft gradation list issued under No. KTA. 14/93/12/1154 dated 17.8.94 as 2.1.1947. But in my H.S.L.C. examination passed certificate my age was 18 (eighteen) years 2 (two) months on the "1st of March, 1965 and as such my date of birth ought to have been shown in the said draft gradation list issued under No. KTA. 14/93/12/1154 dated 17.8.94 as 2.1.1947. In the circumstances as stated above, I cordially request you kindly to correct my date of birth in the final gradation list and also in the service book and for this act of your kindness, I shall be ever grateful to you. 4. Receipt of the said application dated 19.08.1994 has been admitted in the affidavit filed by the Respondent No. 4. In view of the above, it appears that the Petitioner had approached the authority well ahead of the prescribed time by filing an application for correcting the date of birth as 2.1.1947 instead of 1.1.1947. Therefore, I find no force in the contention of the Respondent that the Petitioner did not file application for correction of his date of birth in appropriate time. As the Petitioner had filed the said application within time for correction of his date of birth much prior to his date of retirement it was the duty of the authority to act upon the said application. Mr. R.C. Saikia, learned Counsel for the Petitioner referring to the judgment dated 23.11.2002 in Civil Rule No. 2369 of 1990 Sri Lilaram Datta v. Assam Administrative Tribunal and Ors. wherein the case of Prabhudayal v. State of Rajasthan AIR 1986 SC 1948 was referred has submitted that the Respondents committed mistake in calculating the date of birth of the Petitioner by failing to take into account the date of birth as a whole day. It is submitted that as the Petitioner's age was 18 years 2 months on 1.3.65 if the whole day of first January, 1947 was taken into account as the date of birth of the Petitioner then his date of birth would have fallen on the next date i.e. on 2nd January, 1947. In the case of Lilaram Datta (supra) the Petitioner's age in matriculation certificate was given as 17 years 2 months on 1st March, 1948 and as such his date of retirement was shown as 2nd March, 1989. In the case of Lilaram Datta (supra) the Petitioner's age in matriculation certificate was given as 17 years 2 months on 1st March, 1948 and as such his date of retirement was shown as 2nd March, 1989. The Assam Administrative Tribunal in deciding the case No. 124 ATA/1990 rejected the said entry holding as follows: We know from our experience that in such cases schools and universities do not include the reference date (1.3.1948 in this case) while calculating the complete age. In other words, the matriculation certificate means that the Petitioner completed 17 years 2 months on the midnight of 29th February and 1st March, 1948 thereby giving his date of birth as 1.1.1931. 5. Being aggrieved by the said order the Petitioner approached this Court by filing the Civil Rule No. 2369 of 1990. In the said case the Petitioner placed reliance on the decision of the Supreme Court held in Prabhu Dayal's case (supra), wherein the Hon'ble Apex Court held as follows: In calculating a person's age, the date 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 fraction of a day will be omitted in computing a period of time in years and 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 not attain the 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 the said case the Hon'ble Apex Court observed as follows: 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 30(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. In Rex. v. Scoffin, the question was whether the accused had or had not completed 21 years of age. Section 30(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, 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 on 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. 13. From Halsbury's Laws of England, 4th edn., vol. 45, para 1143 at p. 550 it appears that Section 9 of the Family Law Reforms Act, 1969 has abrogated the old common law rule stated in Re Shurey Savory v. Shurey. 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. 6. 6. In the said case the Hon'ble Apex Court further held that "a legal day commences at 12 O'clock midnight and continues until the same hour the following night." In the case of Prabhu Dayal (supra) the question came up before the Hon'ble Apex Court in respect of a special leave application regarding determination of age at a particular point of time. The question was whether the Appellant having his date of birth as 2nd January, 1956 had attained the age of 28 years on 1st January, 1984 and was therefore disqualified from being considered for direct recruitment under Rajasthan Administrative Service. Under the directions issued by the Commission the minimum age prescribed for candidates was 21 years while the maximum age was 28 years. It was prescribed that the candidate should have attained the age of 21 years on January 1, 1984 and should not have attained the age of 28 years i.e. on the first day of January next following the last date fixed for receipt of application. The Appellant whose date of birth was 2.1.56 claimed that he did not attain the age of 28 years on 1st January, 1984. Though the Appellant was allowed to appear in the written examination, the Assistant Secretary to the Commission intimated him that his candidature was rejected on the ground that he had attained the age of 28 years on January 1, 1984 and was, therefore, ineligible for construction. Feeling aggrieved the Appellant moved the High Court under Article 226 of the Constitution contending that he did not attain the age of 28 years on 1.1.1984. The learned Single Judge of the High Court held that as the date of birth of the appellant was 2nd January, 1956 he would complete the age of 28 years only at the end of the day of 1st January, 1984 and as such he could not be said to have attained the age of 28 years on that date. The learned Judge held that the Commission was not justified in rejecting the candidature of the Appellant on the ground that he had attained the age of 28 years on 1.1.1984 and was not eligible for consideration. On appeal the Division Bench disagreed with the view expressed by the learned Single Judge and reversed the judgment by holding that the candidate had attained the age of 28 years on the 1st January. On appeal the Division Bench disagreed with the view expressed by the learned Single Judge and reversed the judgment by holding that the candidate had attained the age of 28 years on the 1st January. It was held that the Appellant had not only attained the age of 28 years on 1st January but had completed the same at 12 O'clock on 1st January, 1984 and as such he would be one day more than 28 years on 2nd January, 1984. The Hon'ble Apex Court accepted the view taken by the Hon'ble Judges of the Division Bench of the High Court holding that the date of birth must be counted as a whole day and the person attaining the specified age on the day preceding the anniversary of his birth day. 7. In view of the above principle and law laid down by the Hon'ble Apex Court it can be deduced that the date of birth of the person, who completed 28 years of age on 1st January, 1984, would be 2nd January, 1956 (1.1.1984 - 28 years - 1.1.1956 + 1 day = 2.1.1956). 8. In light of the above the date of birth of a person who attained the age of 18 years 2 months on the 1st day of March, 1965 would be 2nd January, 1947. If 1st January, 1947 is taken as his date of birth, then he would be one day more than 18 years 2 months on 1st March, 1965. The following calculation will make it easy to show that the date of birth of the Petitioner, who attained the age of 18 years 2 months on 1.3.65 was 2.1.47. 1. From 2.1.47 to 1.1.48 = 1 year 2. From 2.1.48 to 1.1.49 = 1 year 3. From 2.1.49 to 1.1.50 = 1 year 4. From 2.1.50 to 1.1.51 = 1 year 5. From 2.1.51 to 1.1.52 = 1 year 6. From 2.1.52 to 1.1.53 = 1 year 7. From 2.1.53 to 1.1.54 = 1 year 8. From 2.1.54 to 1.1.55 = 1 year 9. From 2.1.55 to 1.1.56 = 1 year 10. From 2.1.56 to 1.1.57 = 1 year 11. From 2.1.57 to 1.1.58 = 1 year 12. From 2.1.58 to 1.1.59 = 1 year 13. From 2.1.59 to 1.1.60 = 1 year 14. From 2.1.60 to 1.1.61 = 1 year 15. From 2.1.61 to 1.1.62 = 1 year 16. From 2.1.55 to 1.1.56 = 1 year 10. From 2.1.56 to 1.1.57 = 1 year 11. From 2.1.57 to 1.1.58 = 1 year 12. From 2.1.58 to 1.1.59 = 1 year 13. From 2.1.59 to 1.1.60 = 1 year 14. From 2.1.60 to 1.1.61 = 1 year 15. From 2.1.61 to 1.1.62 = 1 year 16. From 2.1.62 to 1.1.63 = 1 year 17. From 2.1.63 to 1.1.64 = 1 year 18. From 2.1.64 to 1.1.65 = 1 year Therefore, period from 2.1.1947 to 1.1.65 = 18 years. Hence, the Petitioner completed the specified age of 18 years at 12 O'clock i.e. on the midnight of the preceding day of the anniversary of 18th birth day. From 2.1.65 to 1.2.65 = 1 month From 2.2.65 to 1.3.65 = 1 month Therefore, he completed 18 years 2 months on 1.3.65. Hence his date of birth was 2.1.47 and not 1.1.1947. 9. To make it more specific and simple the following illustration would be appropriate. If on 25th May, 2009 the age of 'A' is 3 days only then his date of birth can be calculated in the following order by taking the whole day of 25th May as the 3rd day. Admittedly, the 25th May commenced at 12 O'clock mid night and continued until the same hours of the following night i.e. 25th May will continue till 12 O'clock midnight. Therefore, counting the reverse way from midnight of 25th May to midnight of 24th May would be one day, from midnight of 24th May to midnight of 23rd May would be one day and from midnight of 23rd May till the midnight of 22nd May would be one day. Thus, a completed 3 (three) days from the midnight of 22nd May till the midnight of 25th May and he attained the age of 3 days at midnight of 25th May. Admittedly, the day 22nd May came to an end immediately after 12 O'clock midnight of 22nd May and from the 0 hours at night the 23rd May commenced. Thus the first day started after the midnight of 22nd May and continued till the midnight of 23rd May and as such his date of birth would be 23rd May and not (25 - 3 - 22) 22nd May. 10. Thus the first day started after the midnight of 22nd May and continued till the midnight of 23rd May and as such his date of birth would be 23rd May and not (25 - 3 - 22) 22nd May. 10. In view of the above discussion, I find sufficient force in the contention of the learned Counsel for the Petitioner that the date of birth of the Petitioner, who attained the age of 18 years 2 months on 1st March, 1965 was 2nd January, 1947 and not 1st January, 1947. If 1st January is taken as his date of birth then his age would be one day more than 18 years 2 months on 1st March, 1965. Therefore, after receipt of Petitioner's application dated 19.8.94 about 10 (ten) years prior to the date of retirement of the Petitioner, it was the duty of the Respondent to correct the entry showing the date of birth of the Petitioner as 2.1.1947 instead of 1.1.1947 in the relevant gradation list and service records. But the Respondents without any sufficient reason failed to rectify the said defect and thus, compelled the Petitioner to retire on 31st December, 2005, which act was not lawful. Apparently this act on the part of the Respondents deprived the Petitioner from enjoying the benefit of the extended age of retirement and in getting service benefits, which caused prejudice to him. 11. In view of above, I find sufficient merit in this writ petition requiring issuance of a direction to correct the date of birth of the Petitioner as 2.1.1947. 12. Accordingly, this writ petition is allowed and the Respondents are directed to take appropriate steps to correct the date of birth of the Petitioner in his service book as well as in the gradation list. The said exercise be completed within a period of four months from the date of receipt of this order. No costs. Petition allowed.