S.J.MUKHOPADHAYA, J. - (1.) THE case relates to date of birth of appellant. He was in the services of Central Coalfields Ltd. (C.C.L. for short), as Mining Sirdar in its Urimaari Project, Hazaribagh. The Project Officer, Urimari Project, vide letter No. 1935 dated 21st September, 1996 informed the appellant that his date of birth as recorded in service sheet being 17th March, 1937 he will retire w.e.f. 17th March, 1997.
(2.) THE appellant being not satisfied filed petition being C.W.J.C. No. 4235 of 1997 (R) and claimed his date of birth as 15th June, 1942. The learned Single Judge on hearing the parties and on perusal of record by impugned judgment and order dated 24th October, 1997 held that there being disputed question of date of birth, the correctness and genuinity of the certificate filed by the petitioner having challenged, it was not possible for him to accept the version of anyone of the parties without entering into the evidence minutely and opined that the question raised cannot be determined under Article 226 of the Constitution of India. The appellant -writ petitioner was allowed to avail appropriate remedy approaching the Civil Court of competent jurisdiction. With the aforesaid observations, the writ petition having dismissed, the present appeal has been preferred against the judgment of the learned Single Judge. The counsel for the Respondents C.C.L. raised objection that the appellant writ petitioner should not have raised the "" disputed question of date of birth at the fag "'end of service career.
(3.) IN this context, the counsel for the appellant placed reliance on an Instruction No. 76 of National Coal Wage Agreement (N.C.W.A. for short), wherein certain stipulation made to determine the age in accordance with the requirement of "Medical Jurisprudence", if dispute raised between the parties relating to age/date of birth. Reliance was also placed by her on an order dated 14th June, 2002 passed by the learned Single Judge in C.W.J.C. No. 3514 of 2000 (Dhanmatia Mahali No. II vs. C.C.L. and others). From plain reading of Instruction No. 76 of N.C.WA, it will be evident that the said Instruction relates to assessment of age to be recorded at the time of "initial appointment". Therein, it is stipulated to assess the age by a Medical Board, if there is no evidence in support thereof and dispute raised between the parties. The aforesaid Instruction No. 76, N.C.W.A. is not applicable in respect to dispute if raised subsequently much after the date of birth recorded in the Service Book. The decision in Dhanmatia Mahali No. II (supra), as referred by the counsel for the appellant is not applicable in the present case, as no ratio laid down in the said case and the Court passed the order to constitute a Medical Board to assess the age of said writ petitioner, as per Instruction No. 76, N.C.W.A., the writ petitioner of the said case having raised the correctness of the date of birth as recorded in the service record within a reasonable period of ten years.;