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2012 DIGILAW 1443 (MAD)

D. Vivekanandan v. State Government of Tamil Nadu

2012-03-21

K.SUGUNA, M.M.SUNDRESH

body2012
Judgment :- (M.M. SUNDRESH, J.) 1. The only question involved in this writ petition is as to whether the petitioner who has crossed the maximum age limit of 27 years as on 01.07.2012, is eligible to sit for the written examination for the post of Civil Judge (Junior Division), scheduled to take place on the 24 and 25th instant. 2. The petitioner herein is a practising lawyer. A notification dated 21.01.2012 was issued by the second respondent calling for applications from eligible candidates for appointment to the post of Civil Judges-Junior Division in the Tamil Nadu Judicial Service, by way of direct recruitment. The petitioner is one of the applicants. The application made by the petitioner was rejected by the second respondent herein on the ground that his age was barred as he has completed 27 years as on 01.07.2012. Challenging the said rejection order, the present writ petition has been filed. 3. The learned counsel for the petitioner would submit that the petitioner would be completing the age of 27 years only on 02.07.2012. In other words, the learned counsel for the petitioner would submit that as on 01.07.2012, the petitioner's age is only 27 years; if a day is construed between 12'o clock midnight of the preceding day30.06.1985 to the midnight of 01.07.1985, the petitioner would be well within the zone of consideration of the age limit prescribed under the notification. In support of this contention, the learned counsel for the petitioner has placed reliance upon the judgment of a learned Single Judge of the Andhra Pradesh High Court in M. Khamar Pasha vs. Commissioner and Director of .... 1998 (4) ALT 600 . 4. Per contra, the learned Senior Counsel appearing for the second respondent would submit that a candidate ought to have completed only 27 years as on 01.07.2012; admittedly, the petitioner has completed 27 years as on 30.06.2012 itself; since the petitioner has crossed the age of 27 years, he is not eligible to be considered. In support of this contention, the learned Senior Counsel has placed reliance upon the judgment in Prabhu Dayal Sesma vs. State of Rajasthan and another, (1986) 4 SCC 59 , which judgment has been quoted with approval by a subsequent judgment in Eerati Laxman vs. State of Andhra Pradesh, (2009) 3 SCC 337 . 5. In support of this contention, the learned Senior Counsel has placed reliance upon the judgment in Prabhu Dayal Sesma vs. State of Rajasthan and another, (1986) 4 SCC 59 , which judgment has been quoted with approval by a subsequent judgment in Eerati Laxman vs. State of Andhra Pradesh, (2009) 3 SCC 337 . 5. As submitted by the learned Senior Counsel appearing for the second respondent, the issue involved in this writ petition is no longer res integra. 6. Considering the very same issue, the Apex Court, in Prabhu Dayal Sesma vs. State of Rajasthan and another, (1986) 4 SCC 59 , referred to supra, has held as follows: "9.) It is plain upon the language of r. l l-B that a candidate 'must have attained the age of 21 years and must not have attained the age of 21 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 r. 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 birth day. 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 attain a particular age unless and until he has completed a given number of years. 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 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 birth day. 12.) In Re. Shurey, Savory v. Shurey, LR [1918] I 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 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 s. 9 of the Family Law Reforms Act, 1969 has abrogated the old common law rule stated in Re. Shurey, Savory v.Shurey (supra). 14.) It is in recognition of the difference between how a person's age is legally construed how it is understood in common parlance. The Legislature has expressly provided in s. 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 s. 3, at the beginning of the twenty-first anniversary of that day, and if he falls within the second A paragraph of s. 3, at the beginning of the 18th 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 untill 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 decisions in G. Vatsala Rani's case, (supra)." 7. Applying the ratio laid down in the judgment referred to above, in the subsequent pronouncement, the Apex Court, in Eerati Laxman v. State of Andhra Pradesh, (2009) 3 SCC 337 , after considering the provisions of the Majority Act, 1875, was pleased to hold in the following manner: "14.) 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. This aspect of the matter has recently been considered in Achhaibar Maurya vs. State of Uttar Pradesh & ors. [(2008) 2 SCC 639], wherein it was held: "14.) It is interesting to note, however, that the common law rule stated in Shurey, Re, Savory, LR (1918) 1 Ch 263, in respect of anniversaries has been abrogated by virtue of the Family Law Reform Act, 1969. The effect of the change is that, in respect of anniversaries falling after 1-1-1970, the time at which a person attains a particular age expressed in years is the commencement of relevant anniversary of the date of his birth. (See Halsbury's Laws of England, 4th Edn., Reissue, p. 209.) We do not have such statute. We have, therefore, to determine the cases on the touchstone of statute operating in the field and in absence thereof by common law principle." 8. (See Halsbury's Laws of England, 4th Edn., Reissue, p. 209.) We do not have such statute. We have, therefore, to determine the cases on the touchstone of statute operating in the field and in absence thereof by common law principle." 8. Therefore, applying the ratio laid down by the Apex Court, we are of the view that the petitioner, having completed the age of 27 years as on 30.06.2012, is not eligible to be considered for the post of Civil Judge as his age is barred under the notification. 9. The judgment relied on by the learned counsel for the petitioner is also not applicable to the facts of the case in hand. In M.Khamar Pasha vs. Commissioner and Director of ...., 1998 (4) ALT 600 , the learned Single Judge of the Andhra Pradesh High Court has held as follows: "4.) The petitioner is admittedly born on 1st July, 1960 and the case of the respondents is that she completed 36 years of age on 30th June, 1996 the cut-off date was 1st July, 1996 and therefore she was not eligible as she had completed 36 years of her age one day prior to the cut-off date as given in the notification. It is well settled that in Gregorian calendar the day starts at 12.00 hours in the midnight as I has been laid down by the judgment of Supreme Court in New India Assurance Co.Lld, vs. Ram Dayal, , and also a judgment of High Court of Jammu & Kashmir in United India Insurance Company Ltd v. Master Bunty, . Applying the judgment of the Supreme Court to the facts of the present case one will definitely come to the conclusion that by midnight of 30th June, 1996 and 1st July, 1996 the petitioner completed 36 years of her age and her age would exceed by one day by midnight of 1st July, 1996 and 2nd July, 1996. The requirement under the notification was that she should not exceed 36 years, the requirement under the notification was not that she should not be more than 36 years of age on 1st July, 1996. Exceeding 36 years means that she should exceed her age atleast by one day because one day is the basic minimum unit in the calendar which can be taken for the purpose of computing the age. Exceeding 36 years means that she should exceed her age atleast by one day because one day is the basic minimum unit in the calendar which can be taken for the purpose of computing the age. Therefore, I am of the view that she would exceed 36 years by midnight of 1st and 2nd July, 1996 and not by midnight of 30th June, 1996 and 1st July, 1996, It is true that she had completed 36 years on 1st July, 1996 but she had not exceeded 36 years of age on 1st July, 1996 which was the requirement under the notification. The contrary interpretation is also possible but I am favouring the interpretation as given herein above on the ground that for 14 years the petitioner did not get a chance of consideration for employment and this is her last chance to be considered because of her age and if she is not considered now she loses chance of getting a job in the Government permanently. The Courts have always tried to interpret even the statutes in a manner in which potentiality of injustice is avoided. In a judgment reported in Union of India v. B.S. Agarwal, while interpreting a statute concerning the service of a person the Supreme Court was of the view: "The Court should lean in favour of such interpretation of a statute which conforms to justice and fair play and prevents potentiality to injustice by liberally construing the provision without intrinsically violating the language of the statute and the purpose intended to be achieved." 10. A perusal of the said judgment would show that the learned Single Judge has clearly held that by mid-night of 30.06.1996 and 01.07.1996, the petitioner therein had completed 36 years of age and in the said case, the notification has clearly stated that the age of a candidate should not exceed 36 years. Therefore, drawing a distinction between the case involved of completion of age and exceeding the age, the learned Single Judge of the Andhra Pradesh High Court was pleased to hold that the petitioner therein is eligible to be considered. Further, in the said case, the petitioner was issued with a hall ticket. Moreover, the learned Single Judge of the Andhra Pradesh High Court has not considered the ratio laid down by the judgments of the Apex Court referred to supra. 11. Further, in the said case, the petitioner was issued with a hall ticket. Moreover, the learned Single Judge of the Andhra Pradesh High Court has not considered the ratio laid down by the judgments of the Apex Court referred to supra. 11. Admittedly, in the instant case, the petitioner has not challenged the notification. What is sought before this Court is only an attempt to interpret the notification. Therefore, in view of the clear dictum laid down by the Apex Court in the judgments referred to supra, we do not find any reason to interfere with the order impugned. Accordingly, the writ petition fails and accordingly, the same is dismissed. No costs. Connected, Miscellaneous Petition is closed.