Pramod Chandra Kalita vs A.S.E.B. and Another

D.N. Chowdhury, J.—The controversy centres round the computation of the age of a person.

By an order dated 31.8.94 (annexure-C) the Petitioner was released from the service of the Board with effect from 31.8.94 on attainment of the age of superannuation. On the own showing of the Petitioner his date of birth is 1.9.36 and as per the existing service rules of the Board the age of superannuation is 58 years. According to the Petitioner he was entitled to work upto 30.9.94 in terms of F.R. 56A. Mr. Malakar, learned Counsel for the Petitioner in support of his contention invited my attention to a decision of this Court passed on 21.3.91 in Civil Rule No. 216/81 (Achyut Chandra Das v. The State of Assam). The aforesaid decision took into consideration the unamended provision of FR 56(a) which is cited below:

56(a) The date of compulsory retirement of the Govt. Servant is the date of which he attains the age of 55 years. He may be retained in service after this age with the sanction of the State Government on public grounds which must be recorded in writing, and proposal for the retention of a Government servant in service after his age should not be made except in very special circumstances. The age of compulsory retirement of a Government servant has been raised to 58 years from 55 years vide notification No. AAP/143/77/37 dated 18.7.77.

Notwithstanding anything contained above, the retirement of Govt. employees should take effect from the afternoon of the last day of the month in which the employee concerned attains the age of superannuation.

The aforesaid rule was later on amended in the year 1991 by inserting an Explanation which is extracted below:

Explanation- For the purpose of this Sub-rule, a Govt. Servant whose date of birth falls on the first day of any months shall have attained the age of 58 years on the afternoon of the last day of the preceding month.

The judgment given by this Court in Achyut Chandra Das (supra) came up for consideration before Anr. Division Bench of this Court in Soru Nath Saikia v. State of Assam and Ors. reported in 1994 (1) GLJ 278 , and this Court did not follow the Achyut Chandra Das (supra) and declared that the said judgment as per incuriam in view of the decision of the Supreme Court in Prabhu Dayal Sesma Vs. State of Rajasthan and another,

I have given my anxious consideration on the matter. On examination of the legal provisions it emerges that if a person is born on a particular date of a calendar month, computation of his age begins from that day inclusive of that particular day and accordingly the person completes a year on completion of the last day prior to the date of birth in the next year. The explanation entered by the Rule making authority does not call for any departure from the normal rule, I, therefore, do not find any infirmity in the impugned order dated 31.8.94.

Accordingly, the writ petition is dismissed. No costs.