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PETITIONER: PRABHU DAYAL SESMA

       Vs.

RESPONDENT: STATE OF RAJASTHAN & ANR.

DATE OF JUDGMENT28/08/1986

BENCH: SEN, A.P. (J) BENCH: SEN, A.P. (J) RAY, B.C. (J)

CITATION:  1986 AIR 1948            1986 SCR  (3) 665  1986 SCC  (4)  59        JT 1986   256  1986 SCALE  (2)362

ACT:      Rajasthan  State   &   Subordinate   Services   (Direct Recruitment by  Competitive  Examination)  Rules,  1962-Rule IIB-Age-Determina- tion of-"Must have attained the age of 21 years and  must not  have attained  the age  of  28  years"- Interpretation of.      Indian Majority  Act, 1875-S.  4-Age-Computation of-How determined.      Indian   Administrative    Service   (Appointment    by Competitive Examination) Regulations, 1955-Rule 4-"must have attained the  age of 21 years and must not have attained the age of 28 years"-Interpretation of.

HEADNOTE:      For direct  recruitment to the Rajasthan Administrative Service and  allied services  of the Government of Rajasthan by a  competitive  examination  to  be  held  in  1983,  the Rajasthan Public  Service  Commission  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 Ist day of January next following the last date fixed for receipt of application. F      The appellant  was allowed  to appear  in  the  written examination, but later on he was intimated by the Commission 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 consideration.      The writ petition filed by the appellant under Art. 226 was allowed  by a  Single Judge  holding that if the date of birth of the appellant was January 2, 1956 he would complete the age of 28 years only at the end of the day of January 1, 1984 and therefore he could not be said to have attained the age of 28 years on that date. 666      on appeal by the respondents, a Division Bench reversed the Judgment of the Single Judge.      In appeal  to this Court, on behalf of the appellant it was con  tended: (i)  that  the  Division  Bench  erronously introduced the  legal concept of the age of majority as laid down in s. 4 of the Indian Majority Act 1875 for the purpose of  interpreting   r.  11-B   of  the  Rajasthan  State  and

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Subordinate  Services  (Direct  Recruitment  by  Competitive Examination)  Rules   1962  and   (ii)  that   as   commonly understood, a  person attains  a particular age after he had completed a given number of years and there is no reason why the words of r. 11-B "must have attained the age of 21 years and must  not have  attained the age of 28 years" should not be understood in the ordinary sense.      Dismissing the appeal, ^      HELD: 1. In the absence of any express provision, while 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. One of the well  accepted rules  for computation  of time  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.  This  principle is in conformity with s. 4 of the Indian Majority Act 1875.[671F-G]      G. Vatsala  Rani, P. M. C. Kini v . Selection Committee for  Admission   to  Medical   Colleges,  Bangalore  Medical College, Bangalore-2, AIR 1967 Mysore 135, Rex v.Scoffin, LR [1930] l  KB 741 & Shurey, Savory F. v. Shurey, I,R [1918] 1 Ch. 263, approved.      Halsbury’s Laws  of England, 3rd edn. vol. 37, para 178 at 100, relied upon.      2. The  object and  intent in  making  r.  llB  of  the Rajasthan State  & Subordinate  Services (Direct Recruitment by Competitive Examination) Rules, 1962 was to prescribe the age limits  upon which  the eligibility  of a  candidate for direct recruitment  to the  Rajasthan Admmistrative  Service and other  allied services is governed. The expression "must not have  attained the  age of  28 years on the first day of January next  following the  last day  fixed for  receipt of application" in r. llB has to be interpreted by applying the aforesaid principle and not on the basis 667 adopted by  UPSC while  interpreting  r.  4  of  the  Indian Administrative  A   Services  (Appointment   by  Competitive Examination)  Regulations,   1955  framed   by  the  Central Government in  pursuance or  r. 7  of the  IAS (Recruitment) Rules 1954. [670A-B]      3. The  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 appellant having been born on January 2, 1956, he had not 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  Division Bench of the High Court was, therefore, right in  holding that  the appellant  was disqualified  for direct recruitment  of the  Rajasthan Administrative Service in the  examination held  by the  Rajasthan  Public  Service Commission in 1983. [673C-D]      The Court  emphasised the need for a provision like the proviso  to  r.  4  of  the  Indian  Administrative  Service (Appointment by  Competitive Examination)  Regulations  1955 conferring the  power of  relaxation on the State Government under certain conditions without which a deserving candidate would be rendered ineligible for appointment and advised the Government to  consider the  question of  relaxing the upper age limit  in the case of the appellant in order to mitigate the hardship,  if otherwise permissible, because he exceeded the upper age limit just by one day. [673E-F] E

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JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil  Appeal No  531 of 1986      From the  Judgment and  order dated  22.5.1984  of  the Rajasthan High  Court in S.B. Civil Writ Petition No. 114 of 1985.      Sushil  Kumar   Jain  and   Sudhanshu  Atreya  for  the      Appellant.      B.D.Sharma for the Respondents.      The Judgment of the Court was delivered by G      SEN, J  The short  point involved  in  this  appeal  by special leave  pertains to  the determination  of age  at  a particular point  of  time.  The  question  is  whether  the appellant having  his date  of birth  as January 2, 1956 had attained the  age of  28 years  on January  1, 1984  and was therefore disqualified  from  being  considered  for  direct recruitment to 668 the Rajasthan  Administrative Service  under r. l l-B of the Rajasthan State & Subordinate Service (Direct Recruitment by Competitive  Examination)   Rules,  1962   (for  short  ’the Rules’).      Put very  briefly, the  essential facts  are these. The Rajasthan Public Service Commission invited applications for direct recruitment  to the  Rajasthan Administrative Service and allied  services of  the Government  of Rajasthan  by  a competitive examination  to  be  held  in  1983.  Under  the directions  issued   by  the  Commission,  the  minimum  age prescribed for  candidates was  21 years  and the maximum 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 was  allowed to  appear  in  the written examination,  but by  an order  dated June 12, 1984, the Assistant  Secretary to  the  Commission  intimated  the appellant 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  consideration.  Feeling aggrieved, the appellant moved the High Court under Art. 226 of the Constitution and contended that his date of birth was January 2,  1956 and  that he had not attained the age of 28 years on  January 1,  1984. His  claim was  contested by the respondents who  pleaded that the appellant had attained the age of  28 years  on January  1, 1984 and therefore his form was properly  rejected. During  the  pendency  of  the  writ petition, the High Court by an interim order dated September 14, 1984  directed the Commission to interview the appellant if he  was otherwise eligible for being considered except on the ground of age. The appellant was acoordingly interviewed but the  result was  withheld. A learned Single Judge by his judgment and  order dated  January 19, 1985 held that if the date of  birth of the appellant was January 2, 1956 he would complete the  age of  28 years only at the end of the day of January 1,  1984 and  there he  could not  be said  to  have attained the  age of  28 years  on that date. He accordingly 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  January  1,  1984  and therefore was not eligible for consideration.      On appeal,  a Division  Bench disagreed  with the  view expressed by  the learned  Single  Judge  and  reversed  his

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judgment on the ground that the words used in r. 11-B of the Rules are,  ’must not  have attained  the age of 28 years on the first  day of January next following the last date fixed for receipt  of application’  and not  that he  should  have completed the  age of 28 years on that day. They relied upon the 669 undisputed fact that the first day of January next following the last  A date  fixed for  receipt of  application in this case was  January l,  1984. Accordingly,  they held that the appellant was  born on  January 2, 1956 and, as such, he had attained the  age of  28 years  as soon  as the first day of January,  1984   commenced.  They   further  held  that  the appellant had not only attained the age of 28 years, but had also completed  the same  at 12  o’clock in  the midnight of January 1, 1984. According to the learned Judges, on January 2, 1984,  the appellant  would be one day more than 28 years and,  as   such,  he  was  disqualified  to  appear  at  the examination under  r. 11-B  of the  Rules. The conclusion of the learned Judges may best be stated in their own words:           "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."      In coming  to that conclusion the learned Judges relied upon the  language of  r. 11-B of the Rules which prescribes the age  limit for the said examination and also referred to s. 4  of the  Indian Majority Act, 1875. They have relied on certain decisions  of different High Courts, particularly to that in  G. Vatsala Rani represented by guardian and father, P.M.G. Kini  v. Selection Committee for Admission to Medical Colleges, Bangalore Medical College, Bangalore-2 represented by the  Secretary, AIR  1967 Mysore  135 and to some English decisions laying  down the  principle for  determination  of age.      It is  argued that  the learned Judges were in error in introducing the legal concept of the age of majority as laid down in  s. 4  of the  Indian Majority  Act,  1875  for  the purpose-of interpreting r. 11-B. It is said that the purpose of r.  11-B framed  by the  Government was  to prescribe the maximum and  minimum age limits for entry into the Rajasthan Administrative Service and allied services of the Government of Rajasthan. It is submitted that as commonly understood, a person attains  a particular  age after  he has  completed a given number  of years.  It is  said that there is no reason why the  words of  r. 11-B ’must have attained the age of 21 years and must not have attained the age of 28 years’ should not be understood in the ordinary sense. At first blush, the contention advanced  appears to  be rather attractive but on deeper consideration it cannot prevail.      Learned counsel for the appellant drew our attention to the fact  that the  Union Public Service Commission has been interpreting the 670 words ’must  have attained  the age of 21 years and must not have attained the age of 26 years on the first day of August next following’ in the way the appellant contends for. These words are  taken  from  r.4  of  the  Indian  Administrative Service    (Appointment    by    Competitive    Examination) Regulations,  1955  framed  by  the  Central  Government  in pursuance of  r. 7  of  the  Indian  Administrative  Service (Recruitment)  Rules,   1954.  Presumably,  there  would  be similar provisions  laying down  the qualification as to age in other  central services as well. R. 4 insofar as material reads:

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         "4.  Conditions of Eligibility-                In order  to be  eligible to  compete at  the                examination, a  candidate  must  satisfy  the                following conditions,  namely: (i)  (ii) Age-                He must  have attained the age of 21, and not                attained the  age of  28 on  the first day of                August of  the year  in which the examination                is held:                     Provided that the upper age limit may be relaxed in respect of such categories of persons as may from time to  time, be  notified in  this behalf  by the  Central Government, to  the extent  and subject  to the  conditions, notified in respect of each category.. ’      Undoubtedly, the  Union Public  Service Commission  has been interpreting the provision as to attainment of age in a like manner.  This would  be clear  from  the  advertisement issued by it on December 8, 1984 which is in these terms:           "Age  limit:   (ka)  The   candidate  should  have           attained the  age of 21 years on 1st August. 1985.           hut should  not have attained the age of 26 years,           that is,  he should  not have  born before the 2nd           August, 1959 and after the 1st August, 1964," We are  afraid, the  interpretation of r. I l-B of the Rules cannot proceed  upon the  basis adopted  by the Union Public Service Commission.           Rule 11-B of the Rules provides:           "11-B.  Age.  Notwithstanding  anything  contained           regarding 671           age limit  in any  of the  service Rules governing           through the  A agency  of the  Commission  to  the           posts in  the State Service and in the Subordinate           Service mentioned in Schedule I and in Schedule II           respectively, a  candidate for  direct recruitment           to  the   posts  to   be  filled  in  by  combined           competitive   examinations    conducted   by   the           Commission under  these Rules  must have  attained           the age of 21 years and must not have attained the           age of  28 years  on the first day of January next           following the  last  date  fixed  for  receipt  of           application. "      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

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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 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 generally           paid to  fractions of a day, in the sense that the           period is regarded as comp- 672           lete 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  R on the day next before           the anniversary of his birth day."      We have come across two English decisions on the point. In Rex  v. Scoffin,  LR [1930]  1 KB  741 the  question  was whether the  accused had  or had  not completed  21 years of age. S.  l0(I) 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, CJ 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.      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 aniversary 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.      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).      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 an- 673           niversary 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

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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).      It is rather unfortunate that the appellant should upon the construction  placed on  r. 11-B  of the Rajasthan State and Subordinate  Services (Direct Recruitment by Competitive Examination) Rules.  1962 fail  to  secure  entry  into  the Rajasthan Administrative  Service and allied services of the Government of  Rajasthan merely because he exceeds the upper age limit  just by one day. The Government ought to consider the question  of relaxing the upper age limit in the case of the  appellant   in  order  to  mitigate  the  hardship,  if otherwise permissible.  There is  need for  a provision like the proviso  to r.  4 of  the Indian  Administrative Service (Appointment by  Competitive Examination) Regulations, 1955, conferring the  power of  relaxation on the State Government under certain conditions without which a deserving candidate would be rendered ineligible for appointment.      The  result  is  that  the  appeal  must  fail  and  is accordingly dismissed.  There shall be no order as to costs. G A.P.J.                                     Appeal dismissed. 674