Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.1912 of 2013 ====================================================== Kamal Agrawal, S/o Amrit Deo Agrawal @ Amrit Deo Arya, resident of Mohalla Bahurani Saree Centre, Saraiyaganj, P.S. Nagar, District Muzaffarpur, in capacity of a legal guardian of Kritika Agrawal, D/o Kamal Agrawal, resident of Mohalla Bahurani Saree Centre, Saraiyaganj, P.S. Nagar, District Muzaffarpur .... .... Petitioner Versus 1. The Chairman Central Board of Secondary Education „Shiksha‟-2 Community Centre, Preet Vihar, Delhi-110301 2. The Joint Secretary, Central Board of Secondary Education, „Shiksha Kendra-2, Community Centre, Preet Vihar, Delhi- 110301, Fax No. 011-22515826 .... .... Respondents ====================================================== Appearance : For the Petitioner/s : Mr. Sunil Kumar Pandey, Advocate For the Respondent/s : Mr. Vinay Krishna Tripthy, Advocate ====================================================== CORAM: HONOURABLE MR. JUSTICE MIHIR KUMAR JHA ORAL ORDER 2 30-01-2013 Heard counsel for the parties. 2. In this writ application the petitioner has assailed the impugned order dated 9.1.2013 (Annexure 1) whereby and whereunder the representation filed by him on behalf of his daughter Miss. Kritika Agrawal for allowing her to appear in the National Eligibility cum Entrance Test (NEET-UG), 2013 to be conducted by the Central Board of Secondary Education (C.B.S.E.) has been rejected by the Joint Secretary, C.B.S.E. on the ground that she did not fulfil the requisite condition of age as prescribed by the C.B.S.E. in its Prospectus.
Legal Reasoning
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 birthday.” 12. The same view was also taken by a Division Bench of this Court in the case of Santosh Kumar Singh vs. the State of Bihar & ors., reported in 2003(4) PLJR 840, wherein having Patna High Court CWJC No.1912 of 2013 (2) dt.30-01-2013 7 followed the law laid down by the Apex Court in the case of Prabhu Dayal Sesma (supra) it was held as follows: “The law on this point is well settled that in calculating a person‟s age, the day of his birth must be counted as a whole day and any specified age in law is to be computed as having been attained on the day preceding the anniversary of the birthday. In this case, the appellant will complete 19 years on 1st January, 1999 itself and on the day of his birth i.e. 2nd January, 1999, he would be one day more than 19 years.” 13. In view of the aforementioned authoritative and binding pronouncement both of the Apex Court as also the Division Bench of this Court there will be no difficulty for me in holding that the daughter of the petitioner with her date of birth as 1.1.1997 will complete the age of 17 years as on 31.12.2013, the cut-off date given in the eligibility clause of the Information Bulletin, as contained in Annexure 3 to the writ application. 14. That being so, it is held that the authorities of the C.B.S.E. have failed to decide the issue objectively and in accordance with law despite an order of this Court dated 19.12.2012 in C.W.J.C.No. 23594/2012, i.e. in the earlier writ application filed by the petitioner. 15. In the result, this application is allowed and the impugned order, as contained in Annexure 1, is accordingly Patna High Court CWJC No.1912 of 2013 (2) dt.30-01-2013 8 quashed. The respondents are hereby directed to not only accept the application of the daughter of the petitioner, namely, Miss. Kritika Agrawal but also allow her to appear in the examination to be held by the C.B.S.E. on 5.5.2013. 16. It is made clear that this order has been passed in presence of Mr. Tripathy, counsel for the C.B.S.E. who will be now under obligation to communicate this order to the respondents for doing the needful both in respect of acceptance of application of the daughter of the petitioner as also for allowing her to appear in the examination scheduled to be held on 5.5.2013. 17. Let a copy of this order be accordingly given to Mr. Vinay Krishna Tripathy, learned counsel for the C.B.S.E. for its communication to the C.B.S.E. for its strict compliance. 18. A copy of this order be also sent to the respondents by Fax if the cost for the same is deposited by the learned counsel for the petitioner. (Mihir Kumar Jha, J) surendra/-
Arguments
3. Assailing the impugned order learned counsel for the petitioner has submitted that the authorities of the C.B.S.E. have Patna High Court CWJC No.1912 of 2013 (2) dt.30-01-2013 2 failed to appreciate the actual requirement of age as laid down by the Medical Council of India in its regulation and the decision of the C.B.S.E. holding the daughter of the petitioner to be under age is wholly incorrect both on fact and in law. 4. Mr. Vinay Krishna Tripathy, learned counsel appearing on behalf of the C.B.S.E., while defending the impugned order passed by the C.B.S.E. has submitted that the daughter of the petitioner would be under age as on the cut-off date, inasmuch as she would not be completing 17 years of age on account of her date of birth being 1.1.1997. 5. In the considered opinion of this Court the whole approach of the authorities of the C.B.S.E. in holding the daughter of the petitioner to be ineligible for appearing in the Entrance Test on the ground of her being under age is misconceived. Admittedly the date of birth of the daughter of the petitioner is 1.1.1997 and the relevant clause of eligibility in the Information Bulletin of the NEET-UG, 2013 for admission to MBBS/ BDS courses issued by the C.B.S.E., as contained in Annexure 3, lays down as follows: “9. ELIGIBILITY AND QUALIFICATION 9.1 Indian Nationals and Overseas Citizen of India (OCI) are Eligible for appearing in the National Eligibility cum Entrance Test (NEET-UG). 9.2 Eligibility for All India Quota Seats Patna High Court CWJC No.1912 of 2013 (2) dt.30-01-2013 3 (i) He/ She has completed age of 17 years at the time of admission or will complete the age on or before 31st December of the year of his/her admission to the 1st year MBBS/BDS course and is an Indian National. (ii) The upper age limit for candidates seeking admission under 15% All India Quota Seats is 25 years as on 31st December of the year of the entrance examination. Further provided that this upper age limit shall be relaxed by a period of 5 (five) years for the candidates of Scheduled Castes/ Scheduled Tribes/ Other Backward Classes. Candidates must born on or between (a) 1.1.84 to 1.1.97 (SC/ST/OBC category) (b) 1.1.89 to 1.1.97 (Other Category)” (underlining for emphasis) 6. A bare perusal of the aforementioned clause fixing the requirement of age would leave nothing for speculation that the cut-off date for calculation of age would be 31st December of the year in which the examination is going to be held. Admittedly the admission in the 1st year MBBS/BDS course as per Information Bulletin is for the year 2013 and therefore, there would be no difficulty in holding that the daughter of the petitioner having her date of birth on 1.1.1997 would complete age of 17 years as on 31.12.2013. 7. In calculating a person‟s age the date of his birth must be counted as a whole day and he/ she attains the specified age on Patna High Court CWJC No.1912 of 2013 (2) dt.30-01-2013 4 the day preceding, the anniversary of his/her birthday. To that extent it would be also useful to refer to Para 178 of Halsbury‟s Laws of England, 3rd Edition, Vol.37 at page 100, where the law was stated thus: “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 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.” 8. This principle was followed in two English decisions. In Rex v. Scoffin, reported in LR (1930) 1 KB 741, the question was whether the accused had or had not completed 21 years of age. Section 10(1) 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, C.J. 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. 9. In Re Shurey, Savory v. Shurey, reported in LR (1918) 1 Ch 263, the question that arose for decision was as to Patna High Court CWJC No.1912 of 2013 (2) dt.30-01-2013 5 whether a person attains 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. 10. The aforesaid English judgments were also referred to and approved by our Supreme Court in the case of Prabhu Dayal Sesma vs. State of Rajasthan & anor., reported in (1986) 4 SCC 59, wherein it was held that in absence of any express provision, while calculating a person‟s age, the day of his birth must be counted as a whole day and any specified age in law is to be computed as having been attained on the day preceding the anniversary of the birthday, inasmuch as a legal day commences at 12 o‟clock midnight and continues until the same hour the following night. 11. The Apex Court in the aforesaid case of Prabhu Dayal Sesma (supra) had accordingly upheld the claim of the appellant to be qualified for appointment on the post which required the candidate to have attained the age of 21 years and Patna High Court CWJC No.1912 of 2013 (2) dt.30-01-2013 6 must not have attained the age of 28 years on the 1st day of January next, inasmuch as on the basis of his date of birth of 2nd January, 1956 he was held to be qualified with the age of 28 years on 1st January, 1984. In this regard the Supreme Court had held as follows: “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 (sic not) attain a particular age unless and until he has completed a given number of years. In the absence of any express