Jharkhand High Court
Deepak Rajak vs Central Coalfields Ltd. And Ors on 29 August, 2022
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S) No. 3968 of 2020
Deepak Rajak ... ... Petitioner
Versus
Central Coalfields Ltd. and Ors. ... ... Respondents
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CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
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For the Petitioner : Mr. Abhishek Kumar, Advocate
: Mr. Uday Prakash, Advocate
For the Respondents : Mr. Dilip Kr. Chakraverty, Advocate
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08/29.08.2022 Learned counsel for the parties are present.
2. This writ petition has been filed for the following reliefs:
"(a) For quashing and setting aside the order dated 05.11.2018
(Annexure - 4) passed by the respondent no.5, whereby and where
under petitioner's claim of employment on compassionate ground
under the provision 9.3.0 of National Coal Wage Agreement (in short
'NCWA') has been rejected on the ground, that, as per Medical Board
report he was aged above to 35 years, on the date of application for
employment.
And
(b) For a direction upon the respondents to consider
petitioner's claim of employment under the provision 9.3.0 of NCWA
and provide him employment, as such, forthwith."
3. Learned counsel for the petitioner has submitted that the mother
of the petitioner expired on 02.06.2017 and the petitioner filed his
application for grant of compassionate appointment in terms of
provisions of 9.3.0 of National Coal Wage Agreement and the
petitioner was examined vide Medical Board on 11.07.2018 and was
found to be between 35 to 40 years of age and taking the midpoint, his
date of birth was determined to be 11.01.1981. On the basis of such
assessment, the petitioner was found to be more than 35 years of age
on the date of application i.e., 18.09.2017 and his age came to 36
years 8 months and 7 days on the date of application i.e., on
18.09.2017. The learned counsel submits that by the impugned order,
the claim for compassionate appointment of the petitioner has been
rejected on the ground that he was more than 35 years of age on the
date of his application by taking the midpoint of the range of his age
between 35 years to 40 years as on 11.07.2018. During the course of
argument, it transpired that even on the date of death i.e., on
02.06.2017, the age of the petitioner would be more than 35 years if
the method of assessment of age as per the impugned order is taken
into consideration.
4. Learned counsel has relied upon a judgment dated 28.10.2016
passed in W.P.(S). No.3141 of 2016 and he submits that it has been
held that the age assessment by Medical Board cannot be taken to be a
gospel truth and the age assessment by the board in that case was not
accepted. In this writ petition, the petitioner has also relied upon a
school leaving certificate dated 28.02.2020 (Annexure-3) wherein his
age has been recorded as 10.08.1985 and that basis it has been stated
in the writ petition that the age of the petitioner would be 31 years 10
months and 22 days and therefore the impugned order calls for
interference.
5. Learned counsel has also submitted that the said judgment
dated 28.10.2016 was challenged in Letters Patent Appeal being
L.P.A. No.343 of 2017 and the appeal was dismissed. He has referred
to para 3 and 4 of the judgment passed by Hon'ble Division Bench in
L.P.A. No.343 of 2017 (Annexure - 6).
6. Learned counsel for the petitioner has further submitted that
since the compassionate appointment is a beneficial piece of
provision, therefore, the age assessed by the Medical Board ought to
have been taken as 35 years instead of taking the middle of 35 to 40
years. Learned counsel for the petitioner has also relied upon the
judgment passed by Hon'ble Patna High Court reported in 1999 SCC
OnLine Pat 1060 equivalent to (2000) 3 PLJR 65 (Bihar Electricity
Board Vs. Bihar Powers Workers Union & Ors.).
7. Learned counsel for the respondents, on the other hand, has
referred to the counter-affidavit and submits that no illegality has been
committed by the respondents. He has submitted that as per the
service records of ex-employee, the date of birth of the petitioner was
recorded as 12 years as on 07.06.1993 (date of birth computed as
07.06.1981) which indicated that the petitioner had already crossed 35
years at the time death of ex-employee as well as on the date of his
application for employment.
8. Learned counsel has also referred to other documents relating to
the service of the ex-employee which has been annexed along with the
counter-affidavit to submit that as on 15.03.1994, the petitioner was
shown to be 12 years in the document filed before Coal Mines Family
Pension Scheme, 1971 and in Form PS - 3, the petitioner was shown
to be 17 years as on 27.05.1998. Learned counsel has also submitted
that the petitioner had also filed a school leaving certificate at
Annexure - E which was issued on 15.05.2005 by one school namely
National Public School at Hazaribagh wherein, his date of birth was
shown as 01.01.1984 as per the records of the school. He also submits
that another school leaving certificate was issued from Project High
School, Charhi Hazaribagh wherein the date of birth of the petitioner
as per the records was mentioned as 10.08.1985 and the said school
leaving certificate was issued on 28.02.2020 which has been annexed
as Annexure - 3 to the writ petition and Annexure - E /1 of the
counter-affidavit. Learned counsel has also pointed out that as per
Annexure - E, the entry in the school has been shown as 05.05.1995
and the petitioner had left the school on 10.04.1997 and as per the
Annexure - E /1 the entry in the school has been shown as 30.01.1996
and the petitioner had left the school on 28.02.2020 and there is over
lapping period between the two documents, as per Annexure - E, the
petitioner had left the school i.e., National Public school on
10.04.1997 and as per Annexure - E /1, the petitioner had taken
admission in another school on 30.1.1996. Learned counsel has also
submitted that Annexure - E /1 on which the petitioner has relied in
the writ petition was issued after the passing of the impugned order
though it was produced by the petitioner before the respondents.
9. Learned counsel has also referred to letter dated 08.04.2022 as
contained in Annexure - F wherein, it was advised to ensure that the
recommendation regarding the age of dependent by Age Assessment
Committee should be in line with provision of 1.1.76 of NCWA III. It
was also mentioned that in the light of various judgments, as per
Clause (D) of Annexure - 1 of 1.1.76 of NCWA III, age assessment
committee/ medical board is required to take the evidences such as the
details of age mentioned in service linked records/ documents etc. of
ex-employee, into account for determination of dependent's age as per
Clause (E) of 1.1.76, the medical board will as far as possible, indicate
the accurate age assessed and not approximately. Learned counsel has
further referred to Annexure -G as an example to submit that the
medical board while assessing the age in a tabular form has referred
to the various documents which were available for the purposes of
claim and counter claim regarding the age of the applicant. Learned
counsel has also referred to Annexure - C to the counter-affidavit to
submit that as per the circular issued by Eastern Coal Fields Limited,
at the time of new appointment, the medical examination is to be
conducted by the medical board and the determination of age is to
indicate the range of 5 years and the mid-point is required to be taken.
However, admittedly the said circular has not been issued by the
respondents CCL, but the counsel submits that all the coal companies
are governed by the Nodal body i.e., Coal India Limited and, therefore
there is no impediment in relying upon the circular issued by the
Eastern Coal Fields Limited.
10. Arguments concluded.
11. Post this case for 'Orders' on 05.09.2022.
(Anubha Rawat Choudhary, J.)
Saurav
