S.Rafat Alam, Sudhir Agarwal - (1.) -We have heard Sri D. K. Maurya, learned counsel for the appellant and also perused the order of Hon'ble single Judge.
(2.) THE short controversy involved in this appeal is whether the petitioner/appellant whose date of birth is 1.7.1943, is entitled to get sessions benefit available to a person who attained the age of superannuation ongoing Session. The brief facts giving rise to this appeal are that the petitioner/ appellant was appointed as Assistant Teacher on 21.7.1975 in a Primary School namely Kishan Pura Madhyamic Vidyalaya, Itally Gazna, district Jaunpur. The date of birth of petitioner/appellant recorded in his service book is 1.7.1943. The recruitment and conditions of service of Assistant Teacher of Primary School in which the petitioner/appellant was appointed are governed by the U. P. Basic Education (Teachers) Service Rules, 1981 (hereinafter referred to as 1981 Rules) promulgated in exercise of power under sub-section (1) of Section 19 of U. P. Basic Education Act, 1972. The age of superannuation is prescribed under Rule 29. The aforesaid Rule was amended by U. P. Basic Education (Teachers) Service 3rd Amendment Rules, 1987, published on 12.6.1989 and under Rule 2 the definition of Academic Session was inserted. Rule 29 as amended reads as under : ...[VERNACULAR TEXT OMMITED]... A perusal of the aforesaid rule shows that if a person completes 60 years of age during the month he shall retire on the last date of such month. However, except such teachers who retire on 30th June, all other teachers who retire during an Academic Session would be allowed to continue till 30th June and the aforesaid period shall be deemed as extended period of employment. The date of birth of the petitioner/appellant being 1.7.1943, he attained 60 years of age on 30.6.2003.
(3.) HOWEVER, the learned counsel for the petitioner / appellant vehemently contended that his date of birth being 1.7.1943, he cannot be treated to have attained 60 years of age on 30th June, i.e., the day preceding the date of birth and since he attained the age of 60 years on 1.7.2003, therefore, is entitled for the benefit of Academic Session, i.e., to continue till 30.6.2004. The aforesaid submission, in our view, is not correct. There is a general misconception that person attains a particular age on the date on which he was born. The correct position is that in the absence of an express provision, the settled principle is that a specified age in law is to be computed as having been attained on the day preceding the anniversary of the birthday. In Halsbury's Laws of England, 3rd Edition, Vol. 37, para 178 at page 100 the law on the subject has been stated as under : "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 recorded as complete although it is short to the extent of a fraction of a day.................. similar, 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." The issue was considered in an English decision. In Re Shurey Savory v. Shurey, LR (1918) 1 Ch 263 : where the question came up for consideration was : does a person attain a specified age in law on the anniversary of his or her birthday or on the day preceding that anniversary. It was held that law does not take cognizance of part of a day and the consequence is that person attains required age on the day preceding the anniversary of his birthday. The same view is taken in another English case in Rex v. Scoffin, LR (1930) 1 KB 741.;