Calcutta High Court (Appellete Side)
Birendra Prasad Singh & Anr vs Eastern Coalfields & Ors on 11 January, 2021
11.01.2021
Item No. 10
Ct. No. 04
PG
M.A.T. 1929 of 2019
I.A. No. CAN 1 of 2019(Old No. CAN 12629 of 2019)
With
I.A.No. CAN 2 of 2019(Old No. CAN 12630 of 2019)
(Via Video Conference)
r
Birendra Prasad Singh & Anr.
Vs.
Eastern Coalfields & Ors.
Ms. Madhu Priya
Mr. Arindom Chatterjee.........for appellants
Mr. Bijoy Kumar..........for respondents
Ms. Priya, learned advocate appears on
behalf of appellants, who are father and son. Her
clients are aggrieved by order dated 5 th November,
2019, on which their writ petition was disposed of.
She submits, her clients suffered from permanent
disability, of being unable to see. She refers to order
dated 2nd July, 2018 disposing of earlier writ petition
of her clients [W.P. 1579(W) of 2018)]. Following from
said order is reproduced below:
".......The case of the petitioners is that
the petitioner No. 1 was an employee of the
Company and was suffering from diminishing
vision. In June, 2016 he made an application to
the authorities for being declared medically
unfit and for appointment of his son in his
place in the Company. The respondents did not
act with promptitude and after about a year
called the petitioner No. 1 to appear before the
Medical Board.
The Court directed the respondent
Company to clarify certain points in the report
which do not appear to have been seriously
done by them. There is hardly any explanation
for the very unusual delay in calling the
petitioner No. 1 for medical examination when
the Company had a regular hospital with
Ophthalmology department. The feeble effort
made by the respondents to give some
information about the movement of the file from
one authority to another certainly leaves a very
big question mark about the sincerity with
which the respondents acted in this respect.
The decision of the Apex Medical Board was
under active consideration of the Appellate
Medical Board. Hardly any justification is there
for not taking the medical examination of the
petitioner No. 1 within a year's time."
She submits, impugned order should be set
aside since both her clients have been wrongly
deprived of relief. She relies on judgment of Supreme
Court in S. Krishna Sradha vs. The State of Andhra
Pradesh & Ors. reported in A.I.R. 2020 SC 47.
Paragraph 3 from Manupatra print is reproduced
below:
"3. At the outset, it is required to be
noted that in the present case, in spite of
submitting the necessary material in support of
the claim of the Appellant for reservation in the
sports and game category for admission into
MBBS Course, she was denied due priority in
admission into MBBS Course. Therefore, the
Appellant immediately approached the High Court
seeking admission in the reserved quota of sports
and games category. However, it was found that
at the time the petition was heard, the Academic
Session for the year in question already
commenced from 01.09.2015 and as per the
decision of this Court the last date for admission
would be 30.09.2015, the High Court considering
the decision of this Court in the case Jasmine
Kaur (supra) observed that no direction can be
issued to the Appellant for grant of admission for
the Academic Session 2015-16. However, relying
upon the decision of this Court in the case of
Jasmine Kaur (Supra), the High Court granted
compensation of Rs. 5 lakhs. It is required to be
noted that the High Court came to a categorical
and unequivocal conclusion that the Appellant
was entitled to get priority. It was also found that
the Appellant was more meritorious than others
on the basis of the marks obtained. However, the
High Court denied the admission solely on the
ground that time limit has expired. The High Court
has relied upon the decision of this Court in the
case of Jasmine Kaur (Supra). In the case of Asha
(Supra) this Court held that in rarest of rare
cases, when the Court returns the finding that (i)
no fault is attributable to the candidate; (ii ) the
candidate has pursued her rights and legal
remedies expeditiously and without delay; (iii)
where there is fault on the part of the authorities
and apparent breach of Rules and Regulations,
an exception may be made to 30 th September cut-
off date and in an exceptional case the Court can
direct for admission even in a case where cut-off
date as directed by this Court had expired. As
observed hereinabove, the contrary view is taken
subsequently, in the case of Jasmine Kaur (Supra)
and therefore, the matter is referred to a larger
Bench to consider the aforesaid issue.".
Mr. Kumar, learned advocate appears on
behalf of respondents and also relies on said order
dated 2nd July, 2018. The following therefrom is
reproduced below:
"The petitioners should have
approached this Court long before when the
petitioner No. 1 found that he had not been
referred to the appropriate Medical Board or
the Apex Medical Board has not published
its decision. The date of his retirement was
very much known to him. He has
approached this Court only a fortnight before
his date of retirement. The essential pre-
requisite for appointing a dependent of a
worker is that he has been permanently
disabled and the employee concerned must
be declared so disabled before his
retirement."
It appears, appellant no. 1 asserted that he
had been permanently disabled. As a consequence
appellant no. 2 had moved the writ Court earlier for
direction upon respondents to, as a consequence,
grant him employment. Submission of appellants is
that the employer referred appellant no. 1 to Apex
Medical Board only after appellant no. 2 had earlier
moved the writ Court. If the employer had acted,
when approached by appellants, appellants then
would have had time to seek remedy on the relief,
denied because of tardy action on part of the
employer. In this context S. Krishna Sradha (supra)
is relied upon by appellants.
We notice from said order dated 2 nd July,
2018, there were laches on both sides. While the
employer responded with delay, in referring appellant
no. 1 to Apex Medical Board, the writ petition of
appellant no. 2 was brought just before scheduled
retirement of appellant no. 1. However, laches on the
part of parties cannot alter the fact that even on
delayed reference to the Apex Medical Board, finding
was returned that appellant no. 1 was fit. This finding
was confirmed by the Appellate Medical Board.
Concurrent findings of being fit stared in the face of
appellant no.1 as going against his contention that he
was suffering from permanent disability. Hence, he
achieved age of superannuation when was subsisting
concurrent findings of him being fit. In the
circumstances, we are in agreement with view
expressed in impugned order as is reproduced below:
"....As the petitioner has already retired
the prayer of the petitioner for
cancellation/withdrawal of the decision of the
Appellate Medical Board will not serve any
purpose at this stage.
The petitioner will be at liberty to
initiate appropriate proceeding against the
respondents for the damages suffered by them on
account of the delay in communicating the
decision of the Apex Medical Board, if so
advised."
The applications and the appeal are being
dealt with together. Mr. Kumar waives service of
notice of appeal. All formalities are dispensed with.
In view of what we have said above, we do
not find merit in this appeal and the same is
dismissed. The connected applications are
accordingly disposed of.
(Arindam Sinha, J.)
(Suvra Ghosh, J.)
