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Judgment
Heard learned counsel for the parties.
The instant writ application has been preferred by the petitioners praying therein for direction to the respondents to keep the name of the petitioner no. 2 in the Live Roster in terms of the NCWA-IX dated 31.01.2012 and further for quashing the rejection order dated 08.07.2024 communicated vide order dated 01.08.2024.
Further prayer has been made for direction to the respondents for paying monetary compensation to the petitioner no. 1 in terms of their own scheme NCWA from the date of death of her father till the petitioner no. 2 attains his age of 18 years.
The brief facts of the case are that the petitioners’ father namely Late Shiv Shankar Ram, Ex-Dumper Operator, Birsa Project, Barka Sayal was a regular employee of the CCL who died in harness on 12.03.2021 prematurely at his age of 44 years leaving behind three minor children; one daughter and two sons, namely (i) Awantika Kumari [Petitioner No. 1], aged 16 years; (ii) Tanus Kumar [Petitioner No. 2], aged 12 years 4 months; and (iii) Abhishek Kumar, aged 5 years old on the date of demise of their father. The mother of the petitioners had also died on 22.09.2020 before the demise of their father, and as a result, all the three children have become orphans as they have no grandfather/grandmother from either sides and since then they are living with the help of well-wishers.
When the petitioners with the help of their well-wishers came to know about the procedure to keep the name of the male dependent in the Live Roster, they made a representation dated 28.06.2021 before the authorities to keep the name of the petitioner no. 2 namely Tanus Kumar in the Live Roster according to the CCL’s NCWA scheme as in future at his age of 18 years he will get employment on compassionate ground as per para 9.3.0 of the NCWA-IX.
According to the petitioners, the date of birth of the petitioner no. 2 is 21.10.2008 and it is duly mentioned in his School Leaving Certificate (SLC) dated 20.11.2021 issued by the concerned Principal of D.A.V. School and he was 12 years 4 months 22 days old when his father expired on 12.03.2021.
Despite having no dispute regarding the date of birth of the petitioner no. 2, his case was referred for verification before the Chief Medical Services (I/C), Gandhinagar Hospital, CCL vide letter dated 02.08.2022.
During the pendency of the case, the claim of the petitioner no. 2 was rejected vide order dated 08/09.07.2024 communicated vide letter dated 01.08.2024 on the ground that the applicant being non-matriculate; then as per prevailing norms of the CCL his age was assessed by the Company Medical Board on 04.08.2022 that found his age as 13 years, inferring thereby, his age was less than 12 years at the time of demise of his father and as such the respondents declared him not entitled to be listed in the Live Roster.
It is the case of the petitioners that since the age of the petitioner no. 2 as per all the documents, including the School Register, Service Book of his father, Birth Certificate, Aadhar Card, etc. reflects 21.10.2008 as his date of birth, in that scenario, it was not a fit case to be referred before the Medical Board.
Aggrieved of non-listing of the name of the petitioner no. 2 in the Live Roster and the petitioner No. 1 not being given any monetary compensation till the age of 18 years of her brother by which they can survive, the petitioners have filed the instant writ application.
Ld. Sr. Counsel for the petitioners submitted that the date of birth of the petitioner no. 2 is duly recorded in the service book of the deceased duly signed by the authorities concerned and in his school record also his age is duly recorded as 21.10.2008, which has been ultimately reflected in his CBSE Matriculation Marksheet dated 13.05.2025, as such, his date of birth, i.e., 21.10.2008 shall be considered as conclusive proof of his date of birth and there comes no occasion to consider the assessment of age as derived by the Medical Board.
Per contra, learned counsel for the respondents submitted that the Birth Certificate submitted by the petitioner no. 2 dated 21.12.2012 has been issued by the Government of Chhattisgarh and the said certificate has been furnished on the basis of entry in register maintained at Gram Panchayat, Banadbhara Janpad, Champa; but, upon verification the said authority replied vide letter dated 13.07.2022 stating that no such registration is entered in the register at the Gram Panchayat.
He further submitted that due to failed verification of the said Birth Certificate dated 21.12.2012, the petitioner no. 2 was referred to the Medical Board for assessment of his age, and based on the physical and radiological examination; and the Board assessed the age of petitioner no. 2 to be 13 years as on 04.08.2022 and as such his date of birth was arrived at as 04.08.2009, consequently making the petitioner no. 2 disentitled for listing of his name in the Live Roster as his age was just 11 years 7 months 8 days old on the date of death of the deceased employee, i.e., on 12.03.2021; since the minimum age for the claim is 12 years.
Having heard learned counsel for the parties and upon perusal of the materials available on record, it transpires that the petitioners upon becoming orphans upon demise of their father on 12.03.2021 who was working as Ex-Dumper Operator, Birsa Project, CCL, had placed representation dated 28.06.2021 for claiming listing of the name of the petitioner no. 2 in the Live Roster for compassionate appointment on attaining the age of majority, as per the rules and guidelines of NCWA. However, upon failed verification of the age of the petitioner no. 2 backed up by the register entries at the concerned Gram Panchayat, the age of the petitioner no. 2 was assessed by the respondent’s Company Medical Board and according to which the age of the petitioner no. 2 was computed to be less than 12 years on the date of demise of his father disentitling the claim of the petitioners as the eligibility criteria for being inducted in the Live Roster is between 12 and 18 years as per the NCWA.
Upon perusal of the Service Book of the deceased employee, it appears that the date of birth of the concerned dependent petitioner no. 2 has been duly recorded as 21.10.2008. Further, it appears that a ‘Bonafide Certificate’ dated 20.11.2021 issued by the Principal of D.A.V. Public School, Urimari also denotes 21.10.2008 as date of birth as per the school records. Further, his Aadhar Card having UID No. 3364-XXXX-2881 also records the DOB as 21.10.2008.
Further, upon perusal of Annexure-9 to the Rejoinder dated 23.08.2024 filed by the petitioners, it appears that pursuant to an application filed by the deceased father much before his death, an Office Order vide Ref. No. PO/BP/PD/Name Inclusion/13/2857 dated 15.03.2013 was issued whereby the competent authority had duly approved to incorporate the name of the his dependents in his Service Records wherein the date of birth of the petitioner no. 2 is duly mentioned as 21.10.2008 and later on it was also enlisted in his service book, and in the said statutory register the same date of birth has been duly reflected vide Office Order dated 19.06.2021 issued by the Dy. Manager (P), Birsa Project, CCL.
Thus, all the contemporaneous available records show that the date of birth reflected everywhere is constant and is having no variation anywhere. The issue arose only after the matter was referred to the Medical Board in view of the CCL’s Implementation Instruction No. 76 with regard to the procedure for determination of age for them who are non-matriculates but educated. However, on bare perusal of the said I.I. No. 76 clause (A) sub-clause (ii), it clearly transpires that the date of birth recorded in the School Leaving Certificate shall be treated as correct date of birth and the same will not be altered under any circumstances.
In the case at hand, since the petitioner no. 2 was still studying in the concerned school; a Bonafide Certificate dated 19/20.11.2021 on the letter pad of the Principal of that school had been brought on record, which also shows the DOB as 21.10.2008, which in the view of this Court, should have been considered as reliable date of birth.
So far as the contention of the respondents with regard to failed verification of the Birth Certificate dated 21.12.2012 issued by the Government of Chhattisgarh is concerned; the said certificate has already been computerized in the year 2024 wherein the date of birth is duly mentioned as 21.10.2008 and the same has been issued on 20.01.2024 under Section 12/17 of the Registration of Births & Deaths Act, 1969 and Rule 8/13 of the Chhattisgarh Registration of Birth & Deaths Rule, 2001 referring the number and date of issuing the original certificate and that birth certificate dated 21.12.2012, as such, it has never been declared incorrect by any authority, thus, there comes no opportunity to the respondents to raise any objection regarding genuineness of the said birth certificate.
At the cost of repetition, in every Company’s official document relating to the deceased employee, including government documents like AADHAR card etc. the DOB of the petitioner no.2 is 21.10.2008.
Having regard to the above, this Court finds that there has been no discrepancy or variation flagged against the date of birth in question reflected in all the documents brought before this Court. Buttering over all other documents, the petitioner no. 2’s Class 10th CBSE Marksheet dated 13.05.2025 has also been brought on record and this too records the Date of Birth as 21.10.2008 which is ultimately going to be the reliable and conclusive proof of DOB for all future purposes.
So far as the respondents’ reliance upon the judgment rendered by the Division Bench of this Court in L.P.A. No. 429 of 2017 is concerned; the issue therein was related to the determination of the age by the Medical Board, not being challenged and in that case there was a huge discrepancy of age in the various records and the claimant had failed to furnish any plausible explanation for the same.
In the present case, however, there is no such discrepancy in the records. Rather, the date of birth of petitioner no. 2 as 21.10.2008 was consistently recorded in the Service Records of the deceased employee, school records and other documents, including the subsequent Class Xth CBSE Marksheet.
Even otherwise, if the age determination in the Medical Report (Annexure-F) by the Age Assessment Committee is taken into account, on bare perusal of the said Report dated 04.08.2022, it appears that on radiological examination of the bones of the candidate, the age assessed is between 12 to 15 years, and further, the Committee on the basis of Medical Examination, Radiological Examination, extant CIL Guidelines and related corroborating evidences, has finally determined the age to be 13 years as on the date of age assessment. Taking the age as precisely to be 13 years on 04.08.2022, the respondents have calculated the age of the petitioner no. 2 as ‘11 years 7 months and 8 days’ only as on the date of death of the employee, as such making him disentitled for being listed in the Live Roster, by missing the mark of minimum 12 years just by a difference of 4-5 months.
However, the law is well settled with regard to the limited accuracy of age assessment by such radiological examination or ossification test as such methods are subject to a margin of error of ± 2. In this regard, reliance may be placed on the judgment rendered by the Hon’ble Supreme Court in the case of Mukarrab v. State of U.P., reported in (2017) 2 SCC 210 wherein it was observed that:
“26.Having regard to the circumstances of this case, a blind and mechanical view regarding the age of a person cannot be adopted solely on the basis of the medical opinion by the radiological examination. At p. 31 of Modi's Textbook of Medical Jurisprudence and Toxicology, 20th Edn., it has been stated as follows:
“In ascertaining the age of young persons radiograms of any of the main joints of the upper or the lower extremity of both sides of the body should be taken, an opinion should be given according to the following Table, but it must be remembered that too much reliance should not be placed on this Table as it merely indicates an average and is likely to vary in individual cases even of the same province owing to the eccentricities of development.” Courts have taken judicial notice of this fact and have always held that the evidence afforded by radiological examination is no doubt a useful guiding factor for determining the age of a person but the evidence is not of a conclusive and incontrovertible nature and it is subject to a margin of error. Medical evidence as to the age of a person though a very useful guiding factor is not conclusive and has to be considered along with other circumstances.”
(emphasis supplied)
Further, a coordinate bench of this Court, in the judgment dated 02.04.2025 rendered in W.P.(S) No. 2790 of 2020 [Nand Lal Soren v. CCL & Ors.], has also deliberated on the issue of variation in age pursuant to the assessment by medical board and held that the age which is favourable to the applicant’s claim for compassionate appointment has to be considered. The relevant paragraphs of the said judgment are quoted herein-below:
“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.
10.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.”
8.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.”
9.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.
10.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……”
(Emphasis supplied)
In view of the aforesaid discussion, the Court is of the considered opinion that the petitioner no. 2’s date of birth, i.e., 21.10.2008, shall be taken into account as reflected in the contemporaneous records available including his School Leaving Certificate, School Register, Aadhar Card and his father’s Service Book, inasmuch as, the compassionate appointment under NCWA scheme is intended for social security and in cases of minor variation in age, the age which is favourable to the beneficiary has to be considered.
At this stage, the respondent’s contention with regard to failed verification of Birth Certificate and the subsequent outcome of age assessment by the Medical Board has no legs to stand.
Accordingly, the impugned order dated 08/09.07.2024, whereby the proposal for keeping the name of the petitioner no. 2 in the Live Roster has been rejected, is hereby, quashed and set aside.
The respondents are directed to keep the name of the petitioner no. 2 in the Live Roster in terms of the NCWA-IX dated 31.01.2012.
So far as the claim of the petitioner no. 1 with regard to receiving monetary compensation is concerned; in the light of aforesaid direction for keeping the petitioner No.2 in Live Roster; the Respondent -2 shall get the records verified by his other subordinate officials, and extend the Monetary compensation to the Petitioner No.1 as per applicable provisions of the NCWA within a period of 8 weeks from the date of receipt of copy of this order.
As a result, the writ application stands allowed. Pending I.A.(s), if any, stands closed.