Md. MakruddIn Ansari Vs. the Damodar Valley Corporation and ors. - Court Judgment

Excerpt:
- motor vehicles act, 1988[c.a.no.59/1988] section 166; [a.k. patnaik, cj, a.k. gohil & s. samvatsar, jj] application for compensation for personal injury death of injured claimant subsequently for some other reasons held, claim for personal injury will abate on the death of claimant. claim will not survive to his legal representative except as regards claim for pecuniary loss to estate of claimant. - 4. learned counsel appearing for the petitioner by referring the appointment offer as contained in annexure 1 submits that as per clause (d) of that letter, candidates were supposed to produce authenticated copies of the matriculation certificates or school leaving certificates in support of their age and in case, if they fail to produce the authenticated copies of the documents showing date of birth, they will be put before the medical board for assessment of their age and the age assessed by the medical board shall be final and binding. according when the petitioner failed to produce the authenticated copy of the document, he was put before the medical board whereby medical board on 26.3.2002 assessed the age of the petitioner in between 45-50 years but the authority did not accept the age of the petitioner as has been assessed by the medical board, rather has taken the date of birth of the petitioner as 1.1.1948 which action of the respondents is not only arbitrary but also discriminatory as in other so many cases, age assessed by the medical board has been accepted by the authority and as such, the order under which date of birth of the petitioner was taken to be as 1.1.1948 is fit to be quashed and in that event the petitioner be allowed to resume his duty till attainment of his superannuation as per the age assessed by the medical board.r.r. prasad, j.1. certain backgrounds of the case, which would have its relevance for deciding the issue involved in the case, would be necessary to be stated hereunder.2. a vast stretch of land was acquired sometime in fifties in and around maithon for construction of the project of d.v.c. for that, monetary compensation was paid to the landholders but it did not satisfy landholders as a result of which law and order problem created by them had had adverse effect on the projects of dvc and as such, government formulated a policy in the year 1977 under which decision was taken to give employment to the land-losers to certain extent against the existing vacancies. accordingly, a panel of 701 persons was prepared for giving employment. some of the land-losers whose names did not find place in the panel, filed a writ application before the kolkata high court for inclusion of their names in the panel of displaced persons. kolkata high court allowed their prayer.3. being aggrieved with that order, dvc challenged the said order before the hon'ble supreme court. the hon'ble supreme court did find the order quite justified. however, the authority was directed to prepare a fresh panel, according to seniority, taking into consideration the educational qualification and also date of birth of the persons. in that light, a fresh panel consisting of 788 displaced persons was prepared and so far petitioner is concerned regard being had to the age of the petitioner, he was placed at serial no. 98. while making such panel, document relating to date of birth was asked to be placed. pursuant to that, petitioner submitted school leaving certificate showing date of birth as 1.1.1948. subsequently, when the petitioner applied for his appointment in class iii post in dvc, same date of birth was shown. later on, petitioner did submit attestation form wherein petitioner again mentioned his date of birth as 1.1.1948. again at the time of appointment when descriptive roll was prepared which bears the signature of the petitioner, date of birth was shown as 1.1.1948. after the petitioner was appointed as junior khalasi, vide letter no. m.pl/48/567 dated 16.2.2001 (annexure 1), he was asked to produce authenticated copy of the school leaving certificate in proof of his age, to which it was replied by the petitioner, vide his letter dated 7.3.2001 as contained in annexure b to the supplementary affidavit filed on behalf of dvc on 19.3.2008 that presently the said document is missing but within three months, he will be producing the same. at the same time, it was declared by the petitioner that his date of birth is 1.1.1948. when the said document was not produced, the petitioner was put before the medical board on 26.3.2002 for assessment of his age and the board did assess the age of the petitioner in between 45-50 years but the authority of the dvc did not accept the age which had been assessed by the medical board, rather date of birth of the petitioner was taken to be 1.1.1948 under annexure 8 which has been sought to be quashed. subsequently, deputy director of personnel (pis), dvc issued a letter on 28.7.2006 (annexure 10) under which it was intimated to the persons including the petitioner that they will be retiring in the year 2007. the said letter has also been sought to be quashed.4. learned counsel appearing for the petitioner by referring the appointment offer as contained in annexure 1 submits that as per clause (d) of that letter, candidates were supposed to produce authenticated copies of the matriculation certificates or school leaving certificates in support of their age and in case, if they fail to produce the authenticated copies of the documents showing date of birth, they will be put before the medical board for assessment of their age and the age assessed by the medical board shall be final and binding. according when the petitioner failed to produce the authenticated copy of the document, he was put before the medical board whereby medical board on 26.3.2002 assessed the age of the petitioner in between 45-50 years but the authority did not accept the age of the petitioner as has been assessed by the medical board, rather has taken the date of birth of the petitioner as 1.1.1948 which action of the respondents is not only arbitrary but also discriminatory as in other so many cases, age assessed by the medical board has been accepted by the authority and as such, the order under which date of birth of the petitioner was taken to be as 1.1.1948 is fit to be quashed and in that event the petitioner be allowed to resume his duty till attainment of his superannuation as per the age assessed by the medical board.5. learned counsel further submits that in order to settle the dispute relating to date of birth, if the matter is referred to medical board, then the age assessed by the medical board has to be accepted by the authority in view of clause (d) of the offer leter and also in view of the decision rendered in a case of jiwan kishore v. delhi transport corporation and anr. : (1981)illj271sc . however, it was pointed out that while this matter was pending, the authority by revising his earlier decision has taken the date of birth of the petitioner as 26.3.1955, vide order dated 17.3.2008 (annexure 1 to the supplementary affidavit filed on behalf of the petitioner on 26.3.2008) on the basis of assessment of the age made by the medical board and under this situation, respondent be directed to allow the petitioner to continue in service with all consequential benefits until his superannuation. however, learned counsel appearing for the respondents submits that at the time of empanelment, petitioner had put his age as 1.1.1948 on the basis of school leaving certificate and once when he himself has disclosed the date of birth as 1.1.1948, he cannot be allowed to turn his back and to say that the date of birth disclosed earlier may not be accepted, rather age as assessed by the medical board be accepted.6. it was further submitted that though under annexure 1 to the supplementary counter affidavit, age as assessed by the medical board was accepted but subsequently, having been realized that the order has wrongly been passed, that letter was withdrawn, vide letter no. pl-52/231-ii-3980-84 dated 20.3.2008 (annexure a reply to the supplementary affidavit filed on 5.1.2009). having heard learned counsel appearing for the parties and on perusal of the records, it does appear that as per the order passed by the hon'ble supreme court in civil appeal no. 1757 of 1992, arising out of s.l.p (c) no. 4204 of 1992, a panel of 788 was prepared keeping in view the qualification of the persons and also age of the persons. at the time of empanelment, the petitioner by producing school leaving certificate claimed his date of birth as 1.1.1948 and on that basis, his seniority was fixed at serial no. 98. thereupon, when the vacancy occurred, he was appointed on the post of junior khalasi and was asked to produce authenticated copy of the document relating to his date of birth which the petitioner could not produce and hence, he was put to medical board whereby his age on 26.3.2002 was found to be in between 45-50 years and this date of birth, according to learned counsel appearing for the petitioner, would prevail in view of clause (d) of the letter relating to offer of appointment (annexure 1). the said clause (d) reads as follows:authenticated documents in triplicate in support of your date of birth/age. the certificate should be either matriculation or school leaving in case of matriculation/ literate candidates. in case, the candidate is illiterate and is unable to furnish any documentary evidence in support of his/her age, the age will be assessed he/she will not be allowed to join duties. the age as mentioned in the application will also be kept in view from entry of the date of birth/age in the descriptive roll form. the age on assessed by the medical board shall be final and binding and no claim whatsoever shall be entertained after the employee has joined his duties.7. from its perusal it does appear that in case of literate candidate, authenticated document showing date of birth needed to be furnished at the time of joining whereas in case of illiterate person, age assessed by the medical board was to be accepted. admittedly, when the petitioner did produce school leaving certificate at the time of empanelment, he cannot be said to be illiterate person and as such clause applicable in case of illiterate person would not be applicable in case of the petitioner. moreover, the petitioner at the time of empanelment by producing document (school leaving certificate) claimed his date of birth as 1.1.1948 and, therefore, date shown in the certificate cannot be ignored, though the petitioner did not produce authenticated copy of the school leaving certificate but the petitioner being literate, cannot be allowed to disown his date of birth shown earlier and be allowed to have age as assessed by the medical board.8. submission advanced on behalf of the petitioner cannot be accepted for other reason also. i have already indicated that the panel was prepared in terms of the order passed by the hon'ble supreme court keeping in view the qualification of the candidates and also age of the candidates and as per the age of the petitioner claimed on the basis of school leaving certificate, he was put at serial no. 98 of the panel and was given appointment when vacancy did occur. had the petitioner disclosed lower age than what it was disclosed, the petitioner would not have been put at serial no. 98, rather would have been placed much below in the panel and may not have given appointment on the day when he was given appointment, rather in his place, other person would have been appointed. therefore, it would be quite unjust to allow the petitioner to retain a benefit by accepting the age assessed by the medical board at the expense of another person under the principle that no man should grow reach out of another person's loss (nemo debet loeupletari ex aliena jactura). in this view of the matter, age assessed by the medical board cannot be accepted. so far decision referred to on behalf of the petitioner is concerned, that is not applicable in this case in the facts and circumstances as stated above.9. thus, in these view of the matter, the petitioner is not entitled to relief as has been claimed. accordingly, this writ application is dismissed.