Uttam Kumar, son of Late Ajit Bouri @ Ajit Kumar Bouri vs M/s Bharat Coking Coal Limited, through its Chairman-cumManaging Director

Ananda Sen, J

By filing this writ petition, the petitioner has prayed for the following reliefs:-

"for issuance of appropriate Writ or Writs, direction or directions, order or orders to set aside the Letter No.BCCL/PBA/BGH/2022/165 dated 09-08- 2022 (Annexure-5) issued by the Project Officer, Burragarh Colliery, P.B. Area whereby and whereunder Project Officer, Burragarh Colliery, P.B. Area has withdrawn the Compassionate Appoinment granted to Petitioner on 04-06-2019, on the sudden death of his father, after more than 3 years on the ground that as per medical assessment of the age of the Petitioner on 25-03-2021, his age was 8 months 9 days more than 35 years on the date of death of employees on 03-06-2019;

AND

Petitioner further prays for issuance of appropriate Writ or Writs, direction or directions, order or orders commanding the concern Respondent to pay the Salary for the period 04-06-2019 to till date because petitioners have been working sincerely under the Respondents but Respondents have not paid any Salary/wages to the petitioner till date."

Heard learned counsel representing the petitioner and learned counsel representing the respondents.

The facts are not disputed in this case. The father of this petitioner namely Late Ajit Bouri @ Ajit Kumar Bouri, was an employee of Bharat Coking Coal Limited (BCCL), who died in harness on 03.06.2019.

3.1. On account of death of father of this petitioner, the petitioner was granted provisional appointment on the post of"Trainee" vide Appointment Letter dated 04.06.2019. Thereafter the petitioner joined and started working pursuant to the said appointment.

3.2. The age of the petitioner as per his Aadhar Card, Voter Card and PAN card is 05.02.1988.

3.3. The petitioner appeared before the Medical Board for his Medical Examination on 18.03.2020 and 25.03.2021.

3.4. Thereafter, the respondents vide Office Order bearing Reference No.BCCL/PBA/BGH/2022/165 dated 09.08.2022, has withdrawn the compassionate appointment granted to the petitioner after more than three years on the ground that as per the medical assessment of the age of the petitioner on 25.03.2021, his age was found to be more than 35 years on the date of death of his father. 4. Learned counsel representing the petitioner submits that his provisional appointment has wrongly been withdrawn by the respondents by the impugned office order holding therein that the petitioner was more than 35 years of age at the time of death of his father. He further submits that the petitioner may be re-appointed as he was less than 35 years of age as per his testimonials i.e. Aadhar Card, Voter Card and PAN card, at the time of death of his father as also at the time of being appointed provisionally.

The issue as to what would be the age for grant of compassionate appointment, when the midpoint is taken, as calculated by the respondents, has been dealt with by this Court in W.P.(S) No.2790 of 2020 (Nand Lal Soren Vs. Central Coalfields Ltd. & Ors.). The said writ petition was allowed vide order dated 02.04.2025. This Court while allowing the said writ petition, referred to the judgment of the Hon'ble Supreme Court in the case of Ajay Kumar Dubey Vs. Central Coalfields Limited & Ors. in (Civil Appeal No.(S). 908 of 2025) (decided on 21st January, 2025), wherein it has been held that the opinion of the Medical Board in assessing the age, cannot be said to be accurate. 5.1. This Court further referred to the judgment of the Division Bench of this Court rendered on 01.01.2010 in L.P.A. No.117 of 2010 (Md. Rahim Vs. Project Officer, Kuju Colliery of CCL), wherein it was held that the compassionate appointment cannot be denied on the ground of variation of age. It was also held that there is always a possibility of error of plus minus two years in age calculation.

5.2. This Court also referred to the judgment dated 10.02.2021 passed by the Division Bench of this Court in L.P.A. No.687 of 2019 (Lilwa Bhuiyan Vs. Central Coalfields Limited (C.C.L) & Ors.), wherein it has been held that since the provision of compassionate appointment is a Social Security Scheme, the same has to be interpreted in the light of object it intends to achieve and in case of variation of age, the age which is favourable to the applicant, has to be considered. It is necessary to quote para-7, 8, 9 & 10 of the judgment of Nand Lal Soren (supra), which reads as follows:-

"7. Recently the Hon'ble Supreme Court in the case of Ajay Kumar Dubey vs. Central Coalfields Limited and Others in Civil Appeal No.(S). 908 of 2025 decided on 21st January, 2025 has held that the opinion of the medical board regarding age does not give accurate estimation. In paragraphs 9 and 10 it was held as under:-

"9. A Medical Board by using scientific methods can never make an accurate estimation of the age of a human being. It is always an estimate which can never be accurate.

In the present case, the relevant date for deciding the age of the appellant is 31st July, 2013. We have perused the certificate of the Medical Board dated 10th December, 2014. The Medical Board has recorded that the recommendation is based on physical and radiological examination of the appellant. It is not necessary to record detailed reasons to hold that it is unsafe to make an accurate estimation of the age on the basis of physical examination or radiological examination or ossification test. These methods have their own limitations. In fact, the opinion of the Medical Board records that the age of the appellant as on 31st December, 2014 was in between 35-40 years. Going by the said opinion, in July 2013, it is quite possible that the age of the appellant was less than 35 years."

Further the Hon'ble Supreme Court in the aforesaid case also has held that the statements made by the employee in the service records cannot be treated as conclusive and in case the respondents do not doubt the genuineness of the School Leaving Certificate the same can be accepted as valid proof of age. In para 11 it was held as follows:-

"11. As no dispute has been raised regarding genuineness of the school leaving certificate dated 15th July, 2013, we find that on the date on which the appellant's father was superannuated, the appellant's age was less than 35 years. The statements made by his father while stating the family particulars of the appellant cannot be conclusive. Moreover, in none of these statements, the precise date of birth of the appellant has been mentioned by his father."

Further a Coordinate Division Bench of this Court in L.P.A. No.117 of 2010 (Md. Rahim Vs. Project Officer, Kuju Colliery of CCL) has held that the compassionate appointment cannot be denied on the ground of variation of age. It was observed that there always remains a possibility of error of plus-minus two years in age calculation. The petitioner was found to be little more than 35 years of age, which is evident from the averment made in the counter affidavit in paragraph 20, therefore, the petitioner must be given the benefit of possibility of error in the medical board's assessment of age.

As N.C.W.A. is a social security scheme it has to be construed liberally. This court in L.P.A. No.687 of 2019 (Lilwa Bhuiyan Vs. CCL & Ors) disposed of on 10.02.2021, has observed that since the provision of compassionate appointment is a social security scheme it has to be interpreted in the light of object it intends to achieve and in case of variation in age, the age which is favourable to the applicant has to be considered.

Thus, considering the aforesaid judgments and the facts and circumstances of the case, I am of the view that the lower limit of age assessed by the Board should be considered which is 35 years in this case. A person of 35 year is entitled to be employed in the Company."

In view of the aforesaid facts and circumstances, the impugned Office Order bearing Reference No.BCCL/PBA/BGH/2022/165 dated 09.08.2022 (Annexure-5 to the writ petition), is hereby quashed and set aside.

6.1. The respondents are directed to consider the case of the petitioner treating his age to be less than 35 years on the date of death of his father (deceased employee), and pass an appropriate order within four weeks from the date of receipt of copy of this order.

6.2. Further, the respondents are directed to re-appoint the petitioner, by issuing a letter / order to that effect to the petitioner.

Accordingly, this writ petition is allowed. No order as to costs.

Pending interlocutory application, if any, stands disposed of.