Parshuram Shukla vs State of Jharkhand and Others

R.R. Prasad, J.—Heard the parties.

It is the case of the petitioner that he was appointed in the year 1968 on the post of Electrician Assistant at Koshi Project, Birpur. Subsequently, in the year 1994, he was posted at Dumri in the Irrigation Department where he was working as Electrician and as per the entry made in the service record, petitioner is supposed to retire on superannuation on 31.3.2009 but he was made to retire on 31.3.2007 on the pretext that some manipulation has been done in the record relating to date of birth and on that plea, date of birth of the petitioner was taken to be 25.3.1939 instead of 25.3.1941. In order to settle the dispute, respondent No. 4, Executive Engineer, Konar Canal Division, Dumri, Giridih asked the petitioner to get himself examined by the Civil Surgeon, Giridih for assessment of the age. Pursuant to that direction, petitioner got himself examined by the Civil Surgeon-cum-Chief Medical Officer, Giridih on 4.1.2007, who assessed the age of the petitioner as 58 years. Accordingly, report was submitted but that was not accepted by the Department on the plea that age has not been assessed scientifically. However, the petitioner was allowed to discharge his duties but payment was stopped and, therefore, the petitioner filed a writ application before this Court, bearing No. W.P.(S) No. 1780 of 2007 which was disposed of on 4.9.2007 directing the petitioner to file a fresh representation before the Respondent No. 2, Chief Engineer, Water Resources Department, Ranchi with respect to payment of the arrears of salary and the respondent No. 2 was directed to pass order in accordance with law by assigning reason.

On receiving the report, respondent No. 2, Chief Engineer, Water Resources Department, Ranchi thought it proper to get the petitioner examined by the Medical Board to be constituted by RIMS. Accordingly, as per the instruction of the respondent No. 2, Medical Board was constituted. On examining the petitioner on 23.11.2007 the Board did find the petitioner aged about 59 years plus minus 2 years. In spite of receiving the report, when no order was passed by the respondent, petitioner has filed this writ application for directing the respondent to allow the petitioner to do his duties and to pay arrears of salary accrued from 1.5.2007. The writ application was heard on 26.8.2008 and on that day an order was passed whereby respondent No. 2, Chief Engineer, Water Resources Department, Ranchi was asked to decide the matter relating to the age of the petitioner and also with respect to payment of back wages within three weeks.

Thereupon, a counter affidavit has been filed on behalf of the respondents stating therein that both the report relating to the age of the petitioner submitted by the Civil Surgeon-cum-Chief Medical Officer, Giridih and also by the Medical Board constituted by the RIMS are not acceptable to the Department as it is not known that it was the petitioner, who had appeared before the Civil Surgeon, Giridih and also before the Medical Board constituted by RIMS and, therefore, the petitioner has again been asked, vide letter No. 295 dated 6.3.2008 (Annexure IV) to appear before the Medical Board through the Department but the petitioner did not respond to that direction and under this situation, age as has been claimed by the petitioner cannot be accepted.

Having heard learned Counsel appearing for the parties, it does appear that the petitioner has been claiming his date of birth as 25.3.1941 whereas according to the Department, it was 25.3.1939 and when this controversy arose, Department thought it proper to get the age of the petitioner assessed by the Civil Surgeon-cum-Chief Medical Officer, Giridih. Accordingly, Civil Surgeon-cum-Chief Medical Officer, Giridih assessed the age of he petitioner as 58 years on 4.1.2007 but that was not accepted by the Department as according to the respondent, it was not scientific, though respondent was not the reviewing authority nor had any expertise to give such opinion. However, the petitioner was again asked to get his age examined by the Medical Board which was constituted by RIMS at the request of respondent No. 2. Accordingly, the Board assessed the age of the petitioner on 23.11.2007 as 59 years plus minus 2 years but that was also not accepted on the plea that it is not known to the Department as to whether it was the petitioner, who presented himself before the Board and, therefore, the Department has again asked the petitioner to go for age assessment by the Medical Board through the Department. This attitude of the respondent can certainly be said to be arbitrary as there appears to be no reason on the part of the respondent to say that the petitioner may not have appeared before the Board, rather it appears to be only speculation that the petitioner in stead of producing himself got someone else produced before the Board.

Nothing has been placed before me to show that the petitioner earlier had been asked to be present before the Board through the Department. Under this situation, it appears to be quite unreasonable on the part of the authority not to accept the age of the petitioner which has been assessed not only by the Civil Surgeon-cum-Chief Medical Officer but also by the Medical Board on 23.11.2007 particularly when the age assessed by those two authorities correspond to the date of birth claimed by the petitioner as 25.3.1941. It be stated here that Medical Board had assessed the age of the petitioner as 59 years plus minus 2 years on 23.11.2007. The aforesaid two years margin on either side has been given as there has been no scientific mechanism for assessing the exact date of birth, but keeping in view the age assessed by the Civil Surgeon, Giridih and the date of birth which the petitioner has claimed, it would be appropriate to accept the age on the lower side as assessed by the Medical Board.

Under this situation, there would be no difficulty in accepting the date of birth of the petitioner which he has claimed as 25.3.1941. At this stage, I may refer to a case of Jiwan Kishore Vs. Delhi Transport Corporation and Another, wherein the Court accepted the age of the appellant as has been assessed by the Medical Board.

Under this situation, the respondent is directed to allow the petitioner to function till he superannuates by taking the date of birth of the petitioner as 25.3.1941. Accordingly, the petitioner would be entitled to all consequential relief including payment of arrears of salary which should be paid to the petitioner within three months from the date of receipt/production of a copy of this order. In the result, this application is allowed.