Sujit Narayan Prasad - (1.) This writ petition is under Article 227 of the Constitution of India, whereby and whereunder the order dated 08.06.2016, passed in Title Suit No. 61 of 2008 by the Civil judge (Senior Division No. 2), Ramgarh, whereby and whereunder the petition filed by the petitioner for directing the plaintiff for his medical examination in order to assess his actual date of birth has been allowed and he has been directed to be made medically examined by the Civil Surgeon, Ramgarh.
(2.) It is the case of the plaintiff/respondent herein, that he was appointed as an employee of Topa Colliery of M/s Central Coalfields Limited and retired from services of the Company with effect from 31.03.2007 on attaining the age of superannuation as per his date of birth, as has been recorded in the various service excerpts as 04.03.1947, as per the claim made by the petitioner/respondents but the respondent/plaintiff being aggrieved with the action of the Management of the Central Coalfields Limited in superannuating the petitioner by an early date, he has preferred a writ petition being W.P. (S) No. 5747 of 2004 with a prayer to correct his date of birth, which was heard and disposed of vide order dated 20.11.2006 with a direction upon the respondent-Company to hold an enquiry and in the event, the contention of the petitioner is to be disagreed, it shall be by a reasoned order. The competent authority of the Management-CCL in compliance to the aforesaid order, passed by this Court has conducted an enquiry and vide order dated 18.04.2007, rejected the prayer of the petitioner and thereafter the respondent/plaintiff has again come to this Court by filing another writ petition being W.P. (S) No. 2852 of 2007, wherein, the reasoned order dated 18.04.2007 was challenged with a further direction upon the respondents for treating the date of birth of the petitioner as 04.03.1956 but the said writ petition was dismissed vide order dated 30.01.2008 and thereafter, a directory suit has been filed before the competent court of civil jurisdiction being Title Suit No. 61 of 2008 in which the petitioner/defendant has filed the written statement. The Respondent/plaintiff has filed a petition on 14.08.2015, praying therein, for constituting a Medical Board in order to ascertain the age of the plaintiff by the petitioner-Company. The trial court having allowed the aforesaid Title Suit vide order dated 08.06.2016 against which the present writ petition has been preferred invoking the jurisdiction conferred upon this Court under Article 227 of the Constitution of India.
(3.) Mr. Amit Kumar Sinha, learned counsel appearing for the petitioner/Management has submitted that the trial court while passing the order dated 08.06.2016 has not appreciated the fact that the petition, which has been filed by the petitioner by which a new evidence has been sought to be brought on record by way of the opinion of the Medical Board and therefore, the same is not permissible, but without appreciating this aspect of the matter, the direction has been passed for constituting a Medical Board for assessing the date of birth of the petitioner and therefore, the impugned order is not sustainable in the eyes of law. His further submission is that the Central Coalfields Limited by way of the guidelines in the shape as Instruction no. 76, which contains the provision that in case of a dispute regarding the date of birth and if no other document i.e. the date of birth having been mentioned in the service excerpts of the Physical Examination Certificate, then only the Medical Board is to be constituted to ascertain the actual date of birth of one or the other employee. Herein, it is not the case of the plaintiff that there is any dispute regarding the wrong date of birth, rather, according to the petitioner/Management, in the service record of the Respondent/defendant, all along the date of birth was recorded as 04.03.1947 and therefore, having no dispute, the Instruction No.76 being not applicable, the trial court ought not to have constituted a Medical Board for ascertaining the date of birth of the petitioner.;