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2010 DIGILAW 369 (JHR)

Lakhan Sao v. Jharkhand State Electricity Board

2010-03-25

SUSHIL HARKAULI

body2010
JUDGMENT I have heard learned counsel for the petitioner. The petitioner had filed an earlier writ petition, being C.W.J.C. No. 1624 of 1999, which was finally decided by the judgment and order of this Court dated 23.9.2002. A copy of that judgment is enclosed as Annexure 9 to the present writ petition. After noting the points argued from the respondents' side, the learned Single Judge by the judgment and order dated 23.9.2002 was pleased to dismiss the writ petition. Strangely, while dismissing the writ petition, certain positive directions were issued to the respondents. In this writ petition this Court is not sitting in appeal over the aforesaid decision of the learned Single Judge dated 23.9.2002. Therefore, while deciding the present writ petition, it is not open to this Court to modify or change the directions given by the judgment and order dated 23.09.2002. What has to be seen is whether by the impugned order enclosed as Annexure 12 to this writ petition the respondents have complied or violated the final judgment dated 23.9.2002, which has attained finality inter partes. The relevant paragraph is para 10 of that decision and it is reproduced below for ready reference. "Therefore, in the aforesaid circumstances, as the disputed question of facts are there, the writ application is dismissed with the directions that the respondent Board (I) should get the petitioner scientifically examined by a Medical Board for determination of his age and (ii) the petitioner shall produce all the relevant documents such as voter list, if any, ration card and such other documents, which incidentally record the approximate age to the Secretary of the Board and thereafter, on the basis of the Scientific Determination of age and other documents, if produced, and it is found that the petitioner's date of birth is some where near the date of birth as claimed by him, he shall be reinstated, but if there is big and appreciable departure, then he shall be given no relief. These much be completed within two months from the date of receipt/production of a copy of this judgment by or before the Secretary." It will be noted that the above direction requires that if upon the fresh medical determination the age so ascertained is found "some where near" the age claimed by the petitioner according to the year of birth being 1955, the petitioner would be reinstated. The further direction is that if there is a big and appreciable gap between the age as determined now and the age claimed by the petitioner, no relief would be granted to the petitioner. The age of the petitioner, as determined by the Medical Board on 28.2.2003, has been found as 55 years. According to the impugned order, this creates a 'big and appreciable" gap of about seven years between the age claimed by the petitioner and the age found by the medical Board. Therefore, it would appear that the impugned order is correct and in accordance with the decision dated 23.9.2002. The gap being about seven years is too large to be ignored. Learned counsel for the petitioner has submitted that the determination of the age was 55 years "plus minus two years". This, to my mind, makes no appreciable difference, firstly because this kind of safety margin is normally given in respect of persons, whose age is being determined at a very advanced age and secondly, even if this margin is taken in to account, a gap of at least five years will still remain, which again can not be said to be "somewhere near" the age claimed by the petitioner. The next argument of the learned counsel for the petitioner is that the age now found by the Medical Board is closer to the age claimed by the petitioner as compared to the age claimed by the respondent department and therefore the age claimed by the petitioner should have been accepted. Unfortunately, this approach was not permitted by the decision of the Court dated 23.09.2002. What ought to be seen according to that decision was whether the determined age was somewhere close to the age claimed by the petitioner. The Judgment did not contemplate a comparison of the closeness of the determined age and the age claimed by the petitioner or its closeness with the age claimed by the respondents. Therefore, I am unable to accept both these contentions. This writ petition is accordingly dismissed.