The High Court
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(S) No. 977 of 2023 Vinod Kumar, aged about 33 years, son of Lt. Gopal Mahto, resident of Village- Chotki Pona, P.O. - Badki Pona, P.S. - Rajrappa, District - Ramgarh (Jharkhand). 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. 2. The Director (Personnel), Central Coalfields Ltd. having its office at Darbhanga House, Ranchi, P.O. - G.P.O., P.S. - Kotwali, District - Ranchi 3. The General Manager (P & IR), Central Coalfields Ltd. having its office at Darbhanga House, Ranchi, P.O. - G.P.O., P.S.- Kotwali, District - Ranchi. 4. The General Manager, Rajrappa Area, Central Coalfields Ltd., P.O.- Rajrappa Project &, P.S.- Rajrappa, District - Ramgarh. 5. Area Personnel Officer, Rajrappa Area, Central Coalfields Ltd., having its office in office of General Manger, Rajrappa Area, Central Coalfields Ltd., P.O.- Rajrappa Project &, P.S.- Rajrappa, District - … Respondents Ramgarh. … --- CORAM :HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY For the Petitioner For the Respondents --- : Mr. Kumar Harsh, Advocate : Mr. Surya Prakash, Advocate : Mr. Suraj Kishore Prasad, Advocate : Mrs. Debolina Sen Hirani, Advocate : Ms. Kashyapi, Advocate --- 09/20.03.2024
Legal Reasoning
Heard the learned counsel for the parties. 2. This writ petition has been filed for the following reliefs: “(a) For issuance of a writ, order or direction for quashing the order dated 9.12.2022 (Annexure-6) passed by Respondent No. 5., whereby and whereunder the claim of the Petitioner for compassionate appointment has been rejected on the ground that the company medical board has assessed the age of the petitioner to be above 35 years; (b) After quashing the order dated 9.12.2022 (Annexure-6) the Respondent No.5 be directed to issue letter of appointment in terms of relevant clause of the National Coal Wage Agreement ('NCWA' in short).” Arguments of the Petitioner 3. The learned counsel for the petitioner has submitted that the father of the petitioner expired on 04.12.2021 and his name was struck off from the service roll of the respondents on 27.12.2021. Initially, the mother of the petitioner filed an application on 20.12.2021 seeking compassionate appointment for the petitioner and formal application by the petitioner was filed on 03.01.2022. However, the claim of the petitioner for compassionate appointment has been rejected on the ground that the petitioner was overage and on 20.12.2021 his age was 36 years 4 months 22 days; consequently, even on the date of death of his father he was more than 35 years of age. 4. The learned counsel for the petitioner has referred to the Aadhaar card of the petitioner and submits that the Aadhaar card shows his date of birth as 01.07.1989. The issue date of the Aadhaar card is 31.12.2012. His driving license also shows the same date of birth, which was issued on 27.09.2017. A birth certificate dated 25.03.2022 has also been issued which shows date of birth of the petitioner as 01.07.1989. The learned counsel has submitted that the birth certificate was issued after due inquiry. He has also submitted that the corresponding document in connection with inquiry regarding his date of birth prior to issuance of birth certificate has been annexed along with the rejoinder. He submits that even in the school records, his date of birth has been recorded as 01.07.1989. 5.
Legal Reasoning
The learned counsel submits that there are clinching documents on record to suggest that the date of birth of the petitioner was 01.07.1989 and therefore, the impugned order passed by the authority rejecting his application for grant of compassionate appointment on the ground that he was overage, cannot be sustained in the eyes of law. 6. The learned counsel for the petitioner has relied upon the judgment passed by this Court in the case of “Lilwa Bhuiyan Vs. Central Coalfields Limited and others” reported in 2021 SCC Online Jhar. 1301. By referring to paragraphs 21, 24, and 27 to 33 of the said judgment, the learned counsel submits that it has been held that if there is a range of age i.e. 35 to 40 years, in such case, the age 35 years is to be taken into consideration. 7. The learned counsel has also referred to another judgment passed in LPA No. 372 of 2021 (M/s Central Coalfields Limited and others Vs. Chandradeo Singh), decided on 07.06.2022 (paragraphs 10 to 14) to submit that in the matter of age assessment, there can 2 always be a possibility of plus-minus 2 years. The learned counsel has submitted that as per the supplementary counter-affidavit, the age of the petitioner was assessed between 35 years to 40 years as on 28.07.2022, and the age has been determined to be 37 years. He submitted that in view of the ratio of the aforesaid two judgments, the age of the petitioner on the date of death of his father, and even on the date of filing his application, was less than 35 years. Arguments of the Respondents 8. The learned counsel appearing on behalf of the respondents, on the other hand, has relied upon a judgment passed by this Court in LPA No. 275 of 2017 reported in 2022 SCC Online Jhar. 50 (Central Coalfields Ltd. Vs. Tirath Mahto and others) decided on 27th January 2022, and has submitted that the judgment passed in the case of Lilwa Bhuiyan (Supra) has been taken into consideration and the said judgment has been distinguished. 9. The learned counsel has further referred paragraph 13 of the counter-affidavit by submitting that the various recordings in the service records of the deceased employee have been mentioned in paragraph 13 which shows that even on 01.12.1988, in the LTC form, the name of the petitioner has been shown and his age was shown as 4 years on 01.12.1988. 10. The learned counsel also submits that all the materials including the medical board examination and different entries with regard to date of birth of the petitioner, including his Aadhaar card, birth certificate, etc., have been taken into consideration and the documents which were never produced at the time of age assessment, cannot be relied upon by the petitioner for the first time in writ proceedings, that too by filing a rejoinder to the counter-affidavit. Findings of this Court 11. It is not in dispute that the maximum cut-off age for grant of compassionate appointment as per the NCWA is 35 years. 12. After hearing learned counsel for the the parties and considering the facts and circumstances of this case, this Court finds that a specific statement has been made in paragraph 13 of the 3 counter-affidavit with regard to the entries in the service records of the respondents with regard to the diseased employee. Paragraph 13 of the counter-affidavit is quoted as under:- “13. That as per the various documents submitted in the service records of the deceased employee, the age of the Petitioner was shown to be 37 years- LTC form- 4 years on 1.12.1988 (age 37 on date of death of father (04.12.2021) and on date of application (25.02.2022); PS-3 form – 3 years on 17.02.1987 (age 37 on date of death of father (4.12.2021) and on date of application (25.02.2022); CMPS form- 3 years on 17.02.1987 (age 37 on date of death of father (4.12.2021) and on date of application (25.02.2022). As per all the above documents, the age of the applicant was more than 35 years on date of application and also on date of death of his father.” 13. A rejoinder has been filed to the counter-affidavit in which there is no specific denial with regard to the statements made in paragraph 13 of the counter-affidavit. 14. This Court also finds that the petitioner was subjected to medical examination and his age was assessed between 35 to 40 years as on 28.07.2022. While considering the age assessment of the petitioner, the medical board has taken into account the age in different service records of the ex-employee, which indicated the age to be 38 years and 3 months. The other documents produced by the petitioner, i.e., his affidavit, his birth certificate and Aadhaar card have also been taken into consideration and upon consideration of the documents, medical examination, radiological examination and related corroborative evidence, the age of the petitioner has been ultimately assessed by the medical board to be 37 years as on 28.07.2022 which nearly matches with age recorded in PS-3 form i.e. 3 years on 17.02.1987 and recorded as 4 years as on 01.12.1988 in LTC form also. If the date of birth of the petitioner as claimed by the petitioner is accepted to be 01.07.1989 then it remains completely unexplained as to how his reference finds place even prior to his birth in the 1987 and 1988 in the service records of the ex-employee. 15. In the present case, as per the counter-affidavit, the declaration regarding the age of the petitioner as declared by his father and in the various documents of the service record of his father is consistent. The counter-affidavit also reflects that the father of the petitioner had given a declaration in LTC form by mentioning age of the petitioner 4 as 4 years as on 01.12.1988. The statements made in paragraph 13 of the counter-affidavit have not been denied by the petitioner in the rejoinder. In fact, the mother of the petitioner, while filing the application for compassionate appointment, as annexed along with the counter-affidavit, had herself referred to PS-3 form indicating that the name of the petitioner was mentioned in the PS-3 form and in the counter-affidavit with respect to PS-3 form also, it has been mentioned that the petitioner was three years old as on 17.02.1987 -“PS-3 form - 3 years on 17.02.1987”. P.S-3 form was the basis on which the claim for compassionate appointment was filed by the mother of the petitioner and recording of such age was certainly within her knowledge. 16. In the case of Lilwa Bhuiyan (Supra), there was discrepancy with regard to the age of the writ petitioner of the said case in the service records of the company and he was subjected to medical examination. In the judgment passed in the case of Lilwa Bhuiyan (Supra), following finding was ultimately recorded:
Decision
“30. The respondent CCL, however, failed to produce any decision of the authority, in case of consideration of appointment on compassionate ground, to take the midpoint of the age assessed by the Medical Board as has been done in the instant case, rather the document dated 07.07.1992 has been produced to assess the age of an employee by taking the midpoint of the age as has been assessed by the Medical Board but since it is not a case of an employee rather the case of a candidate who is seeking appointment on compassionate ground and, therefore, the said circular will not be applicable in the case of the writ petitioner and in that view of the matter, when the respondent authorities have asked the writ petitioner to go for the medical examination wherein the age of the writ petitioner has been assessed in between 35 to 40 years and taking the midpoint the age of the writ petitioner has been assessed as 37½ years of age, cannot be said to be an action to achieve the object and intent of the NCWA to provide social security measures to the dependant of the deceased employee, rather the approach of the respondent authorities ought to have been to consider the age of the writ petitioner by taking its lower point so that the object and intent of NCWA be achieved.” 17. The said judgment was also considered and distinguished in the case of “Central Coalfields Ltd. Vs. Tirath Mahto and others” (Supra) decided on 27th January 2022 wherein this Court recorded its finding with regard to age assessment as under:- “28. In the first place, CCL was not required to ask the respondent to undergo fresh age assessment by the Medical Board. The dependants of the deceased employees are provided opportunity for fresh assessment 5 of their age provided they were in possession of Aadhaar Card, Driving License, Voter ID, Ration Card, School Leaving Certificate etc. under which their age is recorded different from what were recorded in the service records of the employees. This procedure was applicable only in cases where the service records of the employee disclosed wide variation in the age of his dependants. In the present case, we do not find any such irreconcilable variation in the age of the respondent recorded in the service records of his father. In all the forms/documents filled up at the instance of his father the age of the respondent was almost the same.” 18. In the case of Tirath Mahto (Supra), it has been held that the dependent of deceased employee are provided opportunity for fresh assessment of their age provided they were in possession of Aadhaar card, driving license, voter ID, etc. under which the age is recorded different from what is recorded in the service records of the employee and this procedure is applicable only in cases where the service records of the employee disclosed wide variation in the age of the dependents. This Court also recorded in the said case that there was no such irreconcilable variation in the age of the writ petitioner recorded in the service records of his father. In all the forms/documents filled up at the instance of the father, the age of the writ petitioner of the said case was almost the same. This Court allowed the appeal being L.P.A. No. 275 of 2017 filed by the Central Coalfields Ltd. in the case of Tirath Mahto (supra). 19. In view of the fact that there was no discrepancy with regard to the age of the petitioner in the service records of his father coupled with the fact the Age Assessment Board has taken into consideration all the documents which were produced by the petitioner along with the service records of the father of the petitioner and also the medical examination of the petitioner, for a moment, even if the date of birth as claimed by the petitioner is assumed to be 01.07.1989, then it remains completely unexplained from the side of the petitioner as to how his reference finds place in the service records of the ex- employee prior to his birth in the 1987 and 1988. 20. This Court finds no error or any material irregularity in the manner in which the age of the petitioner has been assessed to be more than 35 years on the date of death of his father followed by rejection of his claim of compassionate appointment. 6 21. 22. In view of the aforesaid findings, this writ petition is dismissed. Pending interlocutory application, if any, is closed. Pankaj (Anubha Rawat Choudhary, J.) 7