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2003 DIGILAW 1048 (PAT)

Md. Safique v. Bihar State Electricity Board

2003-09-24

CHANDRAMAULI KR.PRASAD

body2003
Judgment Chandramauli Kr.Prasad, J. 1. This application has been filed for quashing the communication dated 13.12.2000 (Annexure-5) whereby the age of the petitioner has been determined as 57 years on 7.9.2000. 2. Short facts giving rise to the present application are that the petitioner entered in the service of the Bihar State Electricity Board (hereinafter referred to as the Board) as Khalasi. According to him his date of birth was mentioned as 5.2.1947 in the service book. It is the stand of the petitioner that although there was no dispute in regard to his date of birth still by memo dated 3.6.2000 he was directed to appear before the Medical Board for the determination of his age. Petitioner appeared before the Medical Board which determined his age as 57 plus minus two years on 7.9.2000. On the basis of the age determined by the Medical Board, petitioner was informed by the impugned order that his age has been assessed as 57 years on 7.9.2000. 3. A counter affidavit has been filed on behalf of respondent no.6 in which it has been stated that on account of manipulation and interpolation in the date of birth of a large number of employees the Board constituted a committee to examine the same. It has been averred that the case of the petitioner was examined by such a committee which observed as follows: "This date of birth has been recorded in the Service Book as 5.2.47 and date of appointment is 9.6.68. As stated by the committee the date of birth has been entered in different ink and date under the initial of authenticating officer is missing. Entries made in the Service Book has been signed in 1983 i.e. after 15 yrs. of service. He should be referred to the Medical Board for determination of age." 4. On the recommendation by the Committee petitioner was sent to the Medical Board for determination of age where he appeared without any protest. The Medical Board assessed his age as 57 plus minus two years on 7.9.2000. 5. Mr. Satya Narayan Mishra appearing on behalf of the petitioner submits that in case the entries made in the Service Book was signed after 15 years in 1983, petitioner cannot be held responsible for the same and hence the date of birth mentioned in the Service Book i.e. 5.2.47 is fit to be accepted. 5. Mr. Satya Narayan Mishra appearing on behalf of the petitioner submits that in case the entries made in the Service Book was signed after 15 years in 1983, petitioner cannot be held responsible for the same and hence the date of birth mentioned in the Service Book i.e. 5.2.47 is fit to be accepted. In support of his submission he has relied on an unreported decision of this Court dated 5.9.2002, passed in C.W.J.C. No. 9421 of 2002 (Nageshwar Rai Vrs. Bihar State Electricity Board and ors.) and my attention has been drawn to the following passage from the said judgment: "Counsel for the Board submitted that the petitioner was subjected to Medical Board as his Service Book was opened after 11 years of his entry in service. The argument does not cut much ice for the simple reason that if there was any delay in the opening the Service Book, the blame lay with the Board and for that the petitioner should not suffer." 6. Mr. Mishra has placed reliance on yet another unreported decision of this Court dated 13.12.2002 passed in C.W.J.C. No. 11044 of 2002 (Chhote Lal Sah vrs. State Electricity Board and others) and he has drawn my attention to the following passage from the said judgment: "On the basis of medical assessment, it would not be possible to fix the exact date of birth of any person and the Medical Board normally determines the age within a narrow zone. The date of birth as mentioned in the service book should be treated as the date for the purpose of superannuation of the petitioner and if the service book is seen with naked-eye, it would be manifest that there is neither manipulation nor cutting in the same. The approach of the authority, in that view of the matter, is wholly erroneous that certain manipulations have been made in the date of birth of the petitioner in the service book." 7. Mr. R.K. Datta, however appearing on behalf of the respondents submits that the very assumption of the petitioner that he was sent to the Medical Board for determination of his age only on the ground that entries made in the Service Book was signed after 15 years is unfounded on fact. Mr. R.K. Datta, however appearing on behalf of the respondents submits that the very assumption of the petitioner that he was sent to the Medical Board for determination of his age only on the ground that entries made in the Service Book was signed after 15 years is unfounded on fact. He submits that the Committee found the date of birth of the petitioner in the Service Book was entered in different ink and the date under initial of authenticating officer is missing. He highlights that the petitioner having chosen to appear before the Medical Board for determination of the age he cannot turn around and question the determination of the age made by the Medical Board. He points out that in the case of Nageshwar Rai (supra) and Chhote Lal Sah (supra) there was no interpolation found in the service book and in the said background the Court directed for treating the entry of age in the service book to be relevant for the determination of the age. 8. Having considered the rival submission, I do not find any force in the submission of Shri Mishra and the decisions relied on are clearly distinguishable. The petitioner was referred to the Medical Board for determination of his age not only on account of the fact that the entries made in the service book was signed after 15 years, but also on the ground that the date of birth was entered in the different ink and the date under the initial of the authenticating officer is missing. Petitioner appeared before the Medical Board without any protest and later on when the determination of age by the Medical Board had gone adverse to him he cannot question the same. 9. Now reverting to the decision of this Court in the case of Nageshwar Rai (supra) the only ground to send the employee to the Medical Board for determination of age was opening of the service book after 11 years of the entry in the service. As stated earlier the petitioner was sent to the Medical Board for determination of his age not only on that ground but the other grounds indicated herein before and as such the decision relied on by the learned counsel for the petitioner is clearly distinguishable. So far as the case of Chhote Lal Sah (supra) is concerned the same is also distinguishable. So far as the case of Chhote Lal Sah (supra) is concerned the same is also distinguishable. In the said case the Court examined the service book and found no manipulation or cutting in the same. Here in the present case the date of birth of the petitioner has been entered in a different ink and taking note of the said fact and other facts, the petitioner was referred to the Medical Board for determination of age. Thus the decision of this Court in the case of Chhote Lal Sah in no way supports the case of the petitioner. 10. Mr. Mishra then submits that the Medical Board having assessed the age of the petitioner as 57 plus minus 2 on 7.9.2000 the benefit of minimum age has to be given to the petitioner. Accordingly his contention is that the petitioners date of birth should have been treated as 55 years on 7.9.2000. Reference in this connection has been made to a decision of this Court in the case of Madan Mishra vrs. the Bihar State Electricity Board and ors [2003 (3) P.L.J.R.307] in which in paragraph-9 thereof it has been held as follows: "It is trite that in case of determination of age by the Medical Board, the benefit of minimum age has to be given to the employee. Mr. Dutta does not seriously dispute this submission in view of the long line of decisions of the Supreme Court and this Court." 11. Mr. Datta concedes that in view of the long line decisions of this Court and of the Supreme Court the benefit of minimum age as determined by the Medical Board has to be given to the petitioner. In that view of the matter the respondents erred in treating the age of the petitioner as 57 years on 7.9.2000. 12. In the result the writ application is partly allowed and the respondents are directed to treat the age of the petitioner as 55 years on 7.9.2000 and superannuate him from service on that basis. No cost.