Naresh Kumar Vishwakarma @ Naresh Prasad Vishwakarma vs M/s. Bharat Coking Coal Limited & Ors

Heard Mr.Sanjay Prasad, learned counsel for the petitioner, and Mr.Amit Kumar Sinha, learned counsel for the respondent- B.C.C.L.

Challenging the office order dated 30.09.2009 issued by the Deputy Chief Personnel Manager, Sijua Area, by which the date of birth of the

petitioner, as assessed by the Medical Board, was accepted and recorded in all statutory records of the respondentcompany, the instant writ

petition has been filed, interalia, for a direction upon the respondents restraining them from changing the date of birth of the petitioner already

recorded in all the statutory records of the respondent-company from 01.05.1965 to 12.03.1952.

Mr.Sanjay Prasad, learned counsel for the petitioner, has submitted that the impunged order dated 30.09.2009 has been issued by the

respondents by unilaterally altering the date of birth of the petitioner from 01.05.1965 to 12.03.1952, which amounts to arbitrary exercise of

power. Learned counsel further submitted that by virtue of the impugned order, the interest of the petitioner has been seriously prejudiced and

jeopardised as he has lost almost 13 years of valuable service. Learned counsel submits that as the impugned order has been issued without giving

any show cause notice, the action of the respondents is in the teeth of the decision rendered by Hon''ble Apex Court in the case of State of Orrisa

Vs. Dr. (Miss) Binapani Dei & Ors. reported in AIR 1967 SC 1269.

Controverting the averments made by the petitioner, the respondent nos.3 and 4 have filed counter-affidvit, wherein it has been mentioned in

para 7 that in view of the settlement arrived at between the parties, the terms of settlement were reduced to writing, clause 2 of which reads, ""49

casual workers of Loyabad Power House of BSEB (Bihar State Elecctricity Board), who are drawing lump sum payment will be firstly examined

for assessment of age as per Company''s norms and if they have not attained 60 years of age, then such casual workers wil be regularized as

Category I with effect from the date of the Award by the Sole Arbitrator before whom this instant settlement will be put up. However, they will be

extended with notional fixation benefits in Category I with effect from 15.10.1997 without any financial benefits since the company is under BIFR

and the financial condition of the company precarious"". It has further been submitted that in terms of settlement dated 06.11.2008, all persons

including the petitioner were referred to the Apex Medical Board for assessment of their age and the petitioner was examined by the Apex

Medical Board on 12.09.2009 and the Board assessed his age to be between 55 years and 60 years and taking the mean figure of the two, the

Board determined the age of the petitioner to be 57 years and 6 months as on 12.09.2009. The assessment of the age of the petitioner was

authenticiated by the petitioner himself by putting his LTI over the relevant portion of the report dated 12.09.2009, as is evident from Annexure ?

B to the counter-affidavit. It has been submitted that on assessment of the age in terms of the settlement, the petitioner and others were regularized

with effect from 25.05.2009 in Category I, i.e from the date of the award.

Mr.Sinha, learned counsel for the respondents, has submitted, apart from the submissions made in counter-affidavit, that in view of the fact that

the age of the petitioner has been duly assessed by the Apex Medical Board and he has been regularized by the respondents and further submits

that it is the settled proposition of law that the dispute relating to date of birth cannot be challenged at the fag end of the service career and apart

from the aforesaid facts, as the petitioner has taken the benefit of the award of being absorbed, he cannot turn around and challenge the award by

raising dispute as to the date of birth. Learned counsel for the respondents has also submitted that the petitioner has taken prevaricating stand for

taking the benefit of the award.

After having heard learned counsel for the respective parties and on perusal of the records, this Court is not inclined to interfere with the

impugned order at Annexure ? 11 to the writ petition, as the respondent-company, in view of the award dated 25.05.2009 and as per the terms of

settlement of the award, assessed the age of the petitioner to be 57 years and 6 months as on 12.09.2009, taking the mean age of the two

assessed by the Apex Medical Board to be between 55 years and 60 years and regularized the petitioner and the petitioner accepted the said

benefit and continued to work till he attained the age of superannuation. Therefore, there is no illegality in the impugned order dated 30.09.2009,

vide Annexure ? 11 to the writ petition, warranting any interference by this Court. This writ petition is thus dismissed.