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2014 DIGILAW 451 (JHR)

Jharkhand State Electricity Board v. Suman Kumar

2014-04-01

R.BANUMATHI, SHREE CHANDRASHEKHAR

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Order This appeal is preferred against the order dated 25.09.2012 passed in W.P.(S). No. 4808 of 2012, whereby the writ petition filed by the respondent-writ petitioner has been disposed of with a direction to the respondent to file a fresh representation for correction of his date of birth within a period of thirty days from the date of the order. 2. The respondent was appointed on compassionate ground on 15.12.2000 after the death of his father who died during the course of his employment due to electrocution. The respondent was appointed on the compassionate ground and at the time of appointment of the respondent, the mother of the respondent sworn an affidavit stating that the respondent is the sole son of her deceased husband and his date of birth is 08.10.1980. Since the respondent was not a Matriculate, on the basis of the medical report of the Medical Board, date of birth of the respondent was assessed as 21.08.1978. During the process of appointment, the respondent appeared in the Annual Secondary School Examination in 2000 and passed the matriculation examination, in which his date of birth is mention as 8.10.1980. The respondent was appointed as unskilled Khalasi and on the basis of Medical Board’s assessment, in the service record, his date of birth was recorded as 21.8.1978. The respondent made representation before the authority for rectification of his date of birth stating that his date of birth is 8.10.1980 and he was asked to submit the original certificates. 3. Earlier the respondent filed W.P.(S) No. 3274 of 2005 and the same was disposed of by order dated 30.11.2010, giving the respondent a liberty to file a fresh representation along with relevant certificates, with a direction to the appellant to consider the case of the respondent. Stating that the order was not complied with, the respondent filed contempt petition and during the pendency of the same, the authorities rejected the claim of the respondent in terms of the order dated 18.10.11 and consequently the contempt was closed on 15.5.2012. 4. The respondent filed another writ petition, being W.P.(S) No. 4808 of 2012 and the same was disposed of by the impugned order dated 25.09.2012 directing the respondent-writ petitioner to file a fresh representation and directing the appellant-Board to consider the representation of the respondent and pass a fresh order. 5. 4. The respondent filed another writ petition, being W.P.(S) No. 4808 of 2012 and the same was disposed of by the impugned order dated 25.09.2012 directing the respondent-writ petitioner to file a fresh representation and directing the appellant-Board to consider the representation of the respondent and pass a fresh order. 5. Being aggrieved by the direction, the Jharkhand State Electricity Board (in short “J.S.E.B”) has filed this appeal contending that at the time of joining the respondent declared his age as 22 years on 21.12.2000 and submitted medical fitness certificate and affidavit of Executive Magistrate. It is the case of the appellant that as per Order No. 198 dated 1.4.2000, once an entry has been made in the service book, the same cannot be altered except where there is clerical error. Earlier J.S.E.B. has considered the case of the respondent and rejected his claim for correction of his date of birth as 8.10.1980 and while so, the learned Single Judge was not right in issuing direction to the appellant to consider the representation of the respondent again. 6. We have heard Mr. Ajit Kumar, learned Senior Standing counsel appearing for the J.S.E.B and Mr. Dilip Kumar Prasad, learned counsel appearing for the respondent-writ petitioner. 7. Learned Senior Standing Counsel appearing for the Jharkhand State Electricity Board, Mr. Ajit Kumar, submitted that having accepted the age assessed by the medical board constituted by the J.S.E.B., the respondent-writ petitioner cannot seek for correction/alteration in the date of birth. Drawing our attention to Clause (4) of the Standing Orders under The Industrial Employment (Standing Orders) Act, 1946 of Bihar State Electricity Board, Patna (as adopted by the State of Jharkhand), learned counsel submitted that the age assessed by the Medical Board or opinion of the Medical Board is binding on the workman and while so, the learned Single Judge was not right in observing that “.......opinion of the Medical Board on the question of age cannot be conclusive and there is a chance of variation of plus-minus 2 years.” Learned counsel further submitted that keeping in view the said Clause of the Standing Orders, the learned Single Judge was also not right in giving liberty to the respondent-writ petitioner to file fresh representation before the J.S.E.B for correction of date of birth within 30 days. 8. 8. Learned counsel for the respondent-writ petitioner submitted that even at the time of filing of necessary documents, the mother of the respondent-writ petitioner sworn an affidavit giving date of birth of the respondent-writ petitioner as 08.10.1980 and the same is substantiated by the Certificate issued by Bihar School Examination Board dated 24.10.2000 (Annexure-1 to the memo of appeal) and J.S.E.B. was not justified in declining to correct the date of birth of the respondent-writ petitioner. 9. We have considered the submissions advanced by learned counsel for the parties and perused the impugned order as well as the materials available on record. 10. As rightly pointed out by learned counsel appearing for the respondent-writ petitioner that even at the time of applying for the compassionate appointment, the mother of the respondent-writ petitioner sworn an affidavit on 29.8.1998 stating that the date of birth of the respondent-writ petitioner is 08.10.1980. Of course, during the process of consideration of appointment of respondent-writ petitioner, the respondent-writ petitioner appeared for Secondary School Examination (Matriculation Examination). By perusal of Annexure-1, the certificate issued by the Bihar School Examination Board (in short “B.S.E.B”) dated 24.10.2000, the date of birth of the writ petitioner, appears to be recorded as 08.10.1980. The certificate issued by the B.S.E.B is an authenticated document, which in our considered view ought to have been accepted by the appellant-Board. Of course, at the time when the respondent-writ petitioner submitted application for compassionate appointment, the mother of the respondent-writ petitioner did not produce the matriculation certificate; the reason being that the respondent-writ petitioner appeared in the said examination thereafter and only thereafter a certificate dated 24.10.2000 was issued by the Bihar School Examination Board mentioning his date of birth as 08.10.1980 and the respondent-writ petitioner was appointed on 15.12.2000. The respondent-writ petitioner thereafter made a representation for correction of his date of birth. We are of the view that appellant-Board ought to have considered the representation of the respondent-writ petitioner. 11. Clause (4) of the Standing Orders under The Industrial Employment (Standing Orders) Act, 1946 of Bihar State Electricity Board, Patna (as adopted by the State of Jharkhand) deals with recruitment. Clause 4 (c) of the Standing Orders, which relates to age reads as under: 4. Recruitment: (a).... (b).... (c) The age of every workman other than casual shall be recorded at the time of his employment. Clause 4 (c) of the Standing Orders, which relates to age reads as under: 4. Recruitment: (a).... (b).... (c) The age of every workman other than casual shall be recorded at the time of his employment. The Matriculation or School leaving certificate or Horoscope shall be deemed to be the satisfactory proof of the age of the workman. A workman who is unable to produce documentary evidence of his age or the same having been produced is not admitted by the Appointing Authority for valid reasons he shall state his age and make written declaration that the age as stated by him is correct. Such statement shall always be supported by an affidavit. Such workman may be sent by the Appointing Authority to the Government Medical Officer for examination and his opinion as to the workman's age shall be binding on the workman. Provided that if Horoscope is produced it shall be open to the Appointing Authority to reject it if he is not satisfied with his document produced before him for reasons to be recorded in writing. 12. Of course, in cases where the authenticated proof of age would not be produced, the opinion of the Medical Board has to be considered to determine the age of the workman. The opinion of the learned Single Judge “.......opinion of the Medical Board on the question of age cannot be conclusive and there is a chance of variation of plus-minus 2 years”, is not in consonance with Clause 4(c) of the Standing Orders of Bihar State Electricity Board and such an observation shall not have any bearing. So far as the present case is concerned as observed by the learned Single Judge, the date of birth of the respondent-writ petitioner as recorded in the matriculation certificate as 08.10.1980 should be accepted as his correct date of birth. 13. In such facts and circumstances of the case, we are of the view that the learned Single Judge has rightly directed the appellant-Board to file fresh representation for correction of date of birth. We do not find any infirmity in the order passed by the learned Single Judge and the Letters Patent Appeal is liable to be dismissed. 14. Hence, the Letters Patent Appeal is dismissed. We do not find any infirmity in the order passed by the learned Single Judge and the Letters Patent Appeal is liable to be dismissed. 14. Hence, the Letters Patent Appeal is dismissed. The respondent-writ petitioner is directed to file a fresh representation within 15 (fifteen) days from the date of the order annexing copy of this order and the appellant-Board, in turn, shall decide the representation of the respondent-writ petitioner taking into consideration his correct date of birth as 08.10.1980 as recorded in the matriculation certificate, within 60 (sixty) days thereafter.