Jharkhand High Court
Deepak Rajak Son Of Late Lila Devi vs Central Coalfields Ltd. Through ... on 5 September, 2022
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S) No. 3968 of 2020
Deepak Rajak son of Late Lila Devi, aged about 35 years, Resident of
Village-Jarba, P.O.-Jarba, P.S.-Charhi, District-Hazaribagh
... ... Petitioner
Versus
1. Central Coalfields Ltd. through its Chairman-cum-Managing
Director, having its office at Darbhanga House, Ranchi, P.O.-
G.P.O., P.S.-Kotwali, District-Ranchi, Jharkhand
2. Director (Personnel), Central Coalfields Ltd. having its office at
Darbhanga House, Ranchi, P.O.- G.P.O., P.S.-Kotwali, District-
Ranchi, Jharkhand
3. General Manager (MP & IR), Central Coalfields Ltd., having its
office at Darbhanga House, Ranchi, P.O.- G.P.O., P.S.-Kotwali,
District-Ranchi, Jharkhand
4. General Manager, Charhi Area, Central Coalfields Ltd. At + P.O. +
P.S. Charhi, District-Hazaribagh
5. The Staff Officer, (Personnel), G.M. Office, Charhi Area, Central
Coalfields Ltd., At + P.O. + P.S.-Charhi, District-Hazaribagh
... ... 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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09/05.09.2022 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. The petitioner
was examined by 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 i.e. 36 years 8 months and 7
days. 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 age determined 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 only document relied upon by the
petitioner in support of his age is the school leaving certificate dated
28.02.2020 (Annexure-3) wherein his date of birth has been recorded
as 10.08.1985 and on 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 passed in W.P.(S). No.3141 of 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)
to submit that there is always a possibility of error of plus minus two
years in the assessment of age.
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 of 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 have 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 as per 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 30.01.1996. 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 08/11.04.2022
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 I.I.76 of NCWA III. It
was also mentioned that in the light of various judgments, as per
Clause (D) of Annexure - 1 of I.I.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 I.I.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. From the perusal of the writ petition this court finds that the
mother of the petitioner while in employment under the Respondents
died in harness on 02.06.2017 and thereafter the petitioner applied for
compassionate appointment under clause-9.3.0.of NCWA on
18.09.2017 and also subsequently on 11.10.2017. The petitioner
claims his date of birth to be 10.08.1985 on the basis of school leaving
certificate as contained in Annexure-3 and claims that on the date of
death of his mother he was aged 31 years 10 months and 22 days and
therefore below 35 years of age. It is further case of the petitioner that
he was subjected to medical assessment and on 11.07.2018, his age
was declared to be between 35-40 years and considering the midpoint,
the petitioner was declared to be aged 37 years 6 months on
11.07.2018 and his date of birth was declared as 11.01.1981.
However, by the impugned order, the claim for compassionate
appointment of the petitioner was rejected by taking his date of birth
as 11.01.1981 by holding that he was above 35 years of age on the
date of application for employment i.e. 18.09.2017. It is further
specific case of the petitioner that the medical opinion is not
conclusive though it is useful guiding factor and has to be considered
along with other relevant factors and if there are two possible views, it
should lean in favour of the person seeking compassionate
appointment. The petitioner also claims that the petitioner's age was
determined by medical board on 11.07.2018 and obviously his age on
the date of application on 18.09.2017 and also on the date of death of
his mother was less than 35 years. As per medical board examination
on 11.07.2018 his date of birth comes to 11.07.1983 which is close to
his recorded date of birth in school leaving certificate i.e. 10.08.1985
and accordingly the date of birth recorded in school leaving certificate
should be taken as correct. The specific case of the petitioner is that
the case of the petitioner is squarely covered by a judgment rendered
by this Court on 13th March, 2018 passed in L.P.A. No. 343 of 2017
(Annexure-6). He refers to the order of L.P.A. wherein it was found
that the age assessment was done after expiry of whole year and
therefore the range of 35-40 years is to be taken from 34 years. This
court also considered that the medical report is given with plus/minus
two years of age. It has also been stated in the writ petition that the
special leave petition filed against the judgment of the L.P.A. No. 343
of 2017 has been upheld by the Hon'ble Supreme Court in as much as
the special leave petition has been dismissed.
11. The foundational dates are not in dispute. The father of the
petitioner was an employee of the respondent. Upon his death, the
mother of the petitioner was granted compassionate appointment on
07.06.1993. Mother expired on 02.06.2017. The petitioner applied for
compassionate appointment vide application dated
18.09.2017/11.10.2017. As per the service records the age of the
petitioner was more than 35 years on the date of death of his mother,
however, he produced a school leaving certificate dated 15.05.2005
issued by National Public School, Jarwa, Hazaribag showing his date
of birth as 01.01.1984 and the date of leaving the school as
10.04.1997. In view of the fact that pursuant to such school leaving
certificate the petitioner would have been less than 35 years of age as
on 02.06.2017, which was not matching with the age of petitioner
recorded as per the service linked records of his mother, the petitioner
was sent for examination by medical board for determination of his
actual age vide letter dated 22.10.2018. The petitioner was examined
by the Medical Board on 11.07.2018 and his age was found to be
between 35-40 years. The respondents took the mid-point and held
that the date of birth would come to 11.01.1981 and the petitioner
being over age on the date of death of his mother was denied
compassionate appointment.
12. As per the P.S.- 3 Form dated 27.05.1998 the petitioner was 17
years of age and therefore on the date of death of his mother i.e. on
02.06.2017 he was more than 36 years of age. As per the Coal Mines
Provident Fund Form, the age of petitioner was 12 years as on
15.03.1994 and consequently his age on the date of death of his
mother i.e. on 02.06.2017 was more than 35 years.
13. Thus there was no document in the service record of the ex-
employee showing that the petitioner could be below 35 years of age
as on the date of death of his mother and it was only because of his
school leaving certificate dated 15.05.2005, the petitioner was sent for
medical examination for determination of age to iron out the
differences between the service record of the ex-employee and the
claim of the petitioner.
14. Surprisingly, the petitioner has neither relied upon the school
leaving certificate dated 15.05.2005 in the writ petition nor has
referred to the same in the writ petition. Rather the petitioner has
produced a different school leaving certificate issued from a different
school issued on 28.02.2020 showing a different date of birth as
10.08.1985. Upon being pointed out, the learned counsel for the
petitioner has not been able to satisfy this court about the
inconsistencies between the two school leaving certificates one dated
15.05.2005, which was the reason to send the petitioner to medical
board for age assessment and other issued on 28.02.2020.
15. The only document which has been relied upon by the
petitioner in the present writ petition is the school leaving certificate
issued on 28.02.2020 (Annexure-3) which shows the date of birth of
the petitioner as 10.08.1985 and entry in the school on 30.01.1996.The
certificate dated 28.02.2020 (Annexure-3) has been issued by the
school namely Project High School, Charhi, Hazaribagh and the
period spent in the school has been shown as 30.01.1996 to
28.02.2020.
16. The petitioner has not filed any rejoinder to the counter
affidavit in the present case and there is no denial on the part of the
petitioner that he had produced a different school leaving certificate
which was dated 15.05.2005 and annexed with the counter affidavit,
before the respondents. Not only the date of birth recorded in the two
school leaving certificates are different but they have been issued from
different schools and the period spent in the school is also overlapping
to some extent. The earlier school leaving certificate dated
15.05.2005 showed the period spent in the school from 05.05.1995 to
10.04.1997 and thus upon comparison of two school leaving
certificates, it is apparent that the petitioner was simultaneously in two
different schools between 30.01.1996 to 10.04.1997. The subsequent
school leaving certificate dated 28.02.2020 (annexure-3) which is the
sole document relied upon by the petitioner in the writ petition has
been obtained after rejection of his claim by the respondents by the
impugned order.
17. The following chart projects the comparison to the two school
leaving certificates of the petitioner:-
Date of issuance school Period of Date of
schooling Birth
28.02.2020 Project High School , 30.1.1996 to 10.08.1985
(Annexure-3) Charhi , Hazaribagh 28.02.2020
15.05.2005 National Public School , 05.05.1995 to 01.01.1984
(Annexure-E to Hazaribagh 10.04.1997.
counter
affidavit)
18. In view of the aforesaid discrepancy in the two school leaving
certificates, none of them is worth relying upon. The petitioner has
himself demolished his case by producing two different school leaving
certificates which cannot be reconciled. Thus, the very reason for
referring the case of the petitioner for determination of age by medical
board i.e. the school leaving certificate dated 15.05.2005 is
demolished by an inconsistent school leaving certificate issued on
28.02.2020 which has been relied upon by the petitioner in the writ
petition. Thus, there is no cogent material to contradict the age of the
petitioner as recorded in the records of ex-employee of the respondent
company and consequently the very reason to refer to medical board
for age determination has been lost. The petitioner has suppressed the
material facts from this court regarding filing of his school leaving
certificate dated 15.05.2005 before the respondents and has relied
upon another school leaving certificate dated 28.02.2020 in the writ
records which is ex-facie contradictory to the school leaving
certificate dated 15.05.2005 and accordingly none of the two can be
permitted to be relied upon by the petitioner to claim that his age was
below 35 years on the date of death of his mother-the ex-employee of
the respondent company.
19. As a cumulative effect of the aforesaid findings, the petitioner
is not entitled to any relief as prayed for under Article 226 of the
Constitution of India. Accordingly, this writ petition is dismissed.
(Anubha Rawat Choudhary, J.)
Binit/Pankaj
