Liladhar Wamanrao Jichakar vs Shamrao Domaji Dongre and others

M.N. Chandurkar, J.—The only question which arises in this petition is whether the petitioner who was born on 26th September 1949 could be said to be "under twenty-five years of age" when the Sub-Divisional Magistrate, Morshi, rejected his claim for appointment as Police-patil on 25th September 1974 on the ground that he had not attained the age twenty-five years as required by clause 3 (a) of the Maharashtra Village Police-patils (Recruitment, Pay, Allowances and other conditions of Service) Order, 1968 (hereinafter referred to as the Police-patils Recruitment Order),

Facts in this case are not in dispute. There was a vacancy for the post of Police-patil of village Mendhi, Tahsil Morshi, District Amravati. Applications were invited by a proclamation which was issued on 23-1-1974. The applications were to be made before 15-2-1974. The petitioner and the respondent No. 1 were the applicants for the post of Police-patil. The police report in respect of both the candidates was satisfactory and both the candidates were reported to be of good moral character and fit for the post of Police-patil. The petitioner was educationally more qualified having studied up to the matriculation standard, the respondent No. 1 having passed the 6th standard. The petitioner was also younger in age than the respondent No. 1, who was thirty-six years of age. However, the Sub-Divisional Magistrate by his order dated 25th September 1974 took the view that the petitioner had not attained the age of twenty-five years. Consequently the respondent No. 1 was appointed as the Police-patil of Mendhi. The petitioner has now challenged this order passed by the Sub-Divisional Magistrate.

The only contention raised before us in that the view taken by the learned Sub-Divisional Magistrate was patently erroneous inasmuch as on the day on which the order was passed by the Sub-Divisional Magistrate the petitioner had completed twenty-five years of age and was,, therefore, duly qualified under clause 3 (a) of the Police-patils Recruitment Order. According to the petitioner, his claim could not, therefore, be overlooked on the ground that he was not eligible for appointment. The appointment of Police-patil is governed by the provisions of the Maharashtra Village Police Act, 1967, and section 5 (3) thereof provides that the recruitment, remuneration and other conditions of service of Police-patils shall be such as may, from time to time, be determined by the State Government by general or special order. The order contemplated by section 5 (3) was the Police-patils Recruitment Order issued by the State Government on 4-11-1968. Clause 3 of this Order refers to "eligibility for appointment". The material portion with regard to the qualifying age reads as follows:

"3. Eligibility for appointment: No person shall be eligible for being appointed as a Police-patil, who

(a) is under twenty-five years or over forty-five years of age at the time of appointment;

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Clause 5 of the Order prescribes the procedure for inviting applications for the post by issuing a proclamation in the village by beat of drum stating the date upto which, and the place at which, applications will be received. Under this clause, on receipt of the applications the competent authority has been empowered, after making such enquiries as it may deem necessary, to select from amongst the applicants eligible for appointment who in its opinion is best suited for the appointment. As already stated, the applications were to be made before 15-2-1974. Now, according to the learned counsel for the petitioner, eligibility so far as the age is concerned, has to be determined with reference to the time of appointment as expressly stated in clause 3 (a) of the Police-patils Recruitment Order, It is contended on behalf of the respondent No. 1 that the petitioner admittedly had not completed the age of twenty-five years on the date of the application and he was, therefore, rightly held to be not eligible for being appointed as Police-patil by, the Sub-Divisional Magistrate. On behalf of the State Government, it is contended by the learned Assistant Government Pleader that though the petitioner can be" said to have attained the age of twenty-five years on 25th September 1974, he had not completed twenty-five years of his age. which he would have completed only at the stroke of mid-night between 25th and 26th September 1974. Therefore, according to the learned Assistant Government Pleader, the petitioner was rightly held to be ineligible for appointment as Police-patil.

Now, the express words used in sub-clause (a) of clause 3 of the Police- patils Recruitment Order do not leave any room for doubt as to the point of time with reference to which the completion of twenty-five years of age by the applicant has to be determined. The words used in sub-clause (a) are "at the time of appointment". In view of these clear words about which there is no ambiguity, it will not be permissible to consider the eligibility clause as laying down that the applicant for the post of police patil should have completed twenty-five years of age on the date of the application. Notwithstanding, therefore, the fact that the petitioner admittedly had not completed twenty-five years of age on the date of the application which was to be made before 15-2-1974, if he could show that he had completed twenty-five years of age on the date on which the appointment was made, his claim to be considered for appointment could not be overlooked on the ground that he had not completed twenty-five years of age. The question which, therefore, falls for consideration is whether the petitioner had completed twenty-five years of age on 25th September 1974 when the order was passed by the Sub-Divisional Magistrate or whether he could be said to he under twenty-five years of age on that date. Now, so far as the computation of age is concerned, it is to be computed as having been attained or completed on the day preceding the anniversary of the birthday according to the calendar. In the instant case, the petitioner was born on 26th September 1949. The twenty fifth anniversary of his birthday would no doubt have fallen on 26th September 1974, but the completion of twenty-five years took place on the previous day i. e. on 25th September 1974. We are not inclined to accept the submission of the learned Assistant Government Pleader that the petitioner would have completed the age of twenty-five years only at the stroke of midnight between 25th and 26th September 1974. As pointed out by Sargent J. in Shurey In re, Sayory v. Shurey (1918) 1 Ch.263, "the law does not take cognizance of part of a. day, and the consequence is that a 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." We may also refer to a decision of Lord Hewart C. J: in The King v. Scoffin (1930)1 KB 741. The question in that case was whether the accused who was born on 17th February 1909 and who was sentenced to three years detention in a Borstal institution by Manchester Assizes on 18th February 1930 was rightly sent to the Borstal institution because an accused who was under twenty-one years of age alone could be sent to the Borstal institution. Lord Hewart C. J. held that the accused was born on February 17, 1909 and he, therefore, completed twenty-one years on February 16, 1930. Thus, on February 18, 1930, when he was sentenced he was two days more than twenty-one, and since he was above the age mentioned in the statute, he must forego the benefits of Borstal treatment and instead go to prison. It was thus held by Lord Hewart C. J. that the accused had completed twenty-one years on the day preceding the twenty-first anniversary of the birthday of the accused.

We may also refer to a Division Bench decision of the Mysore High Court in Vatsala Rani v. Selection Committee AIR 1967 Mys. 135. The petitioner in that case was born on 2-10-1950. She had passed the Pre-University Examination and had applied for selection to the pre-professional course in Medicine, the Regulations for which prescribed that the applicant for admission to the Pre professional course shall have completed sixteen years of age on the 1st October of the year in which he seeks admission. The Selection Committee took the view that the petitioner had not completed sixteen years of age on 1st October 1966 but will complete it only on 2nd October 1966. This view was challenged by the petitioner and it was contended that she had completed sixteen years of age on 1st October 1966 and she was, therefore, not underage. The Division Bench held that the petitioner who was born on 2nd October 1960 must be regarded as completing the age of sixteen years on 1st October 1966. A reference was made to the following paragraph from Halsbury''s laws of England, Simond''s Edition. Volume 37, paragraph 178, page 100:

"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 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."

The Division Bench also pointed out that there was no distinction in substance between attaining and completing a specified age. This view of the Division Bench has our respectful concurrence.

In the instant case the petitioner who was born on 26th September 1949 must be said to have completed the age of twenty-five years on the day nest before the anniversary of his birthday, the day thus being 25th September 1974. He cannot, therefore, be said to be under twenty-five years of age on the date on which the appointment order was passed. Consequently it must be held that the Sub-Divisional Magistrate had erroneously declined to consider the petitioners claim for being appointed as Police-patil. His order appointing the respondent No. 1 who was the only other applicant left will, therefore, have to be quashed. The matter is, therefore, remanded to the Sub-Divisional Magistrate for a fresh consideration of the claims of the petitioner and the respondent No. 1, and he shall deal with the matter according to law. The petition is thus allowed, but in the circumstances of the case there will be no order as to costs.