1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 02.08.2011 CORAM: THE HON'BLE MR.JUSTICE S.MANIKUMAR W.P.(MD)No.8066 of 2011 and M.P.(MD)No.1 of 2011 Chellammal .. Petitioner Vs. 1.The District Project Officer, (integrated Child Development Project), Trichirapalli. 2.The Child Development Project Officer, Uppiliyapuram. 3.The Commissioner, Uppiliyapuram Panchayat Union, Uppiliyapuram, Thuraiyur Taluk, Trichy District. .. Respondents PRAYER: Writ Petition filed under Article 226 of the Constitution of India, praying for the issuance of Writ of Certiorarifide Mandamus, calling for the records of the first respondent Se.Mu.Na.Ka.No.44/A3/11, dated 29.06.2011 and quash the same as illegal and direct the respondents to reinstate the petitioner with continuity of service and back wages. For Petitioners : Mr.S.Muthukrishnan For Respondents : Mr.S.Chandrasekar Government Advocate O R D E R Being aggrieved by an order, dated 29.06.2011, of the Child Development Project Officer, Uppiliyapuram, the second respondent herein, retiring the petitioner from service with effect from 30.06.2011, the petitioner has come forward with the present writ petition, to quash the said order and consequently, prayed for a direction to the respondents to reinstate the petitioner in service with continuity. 2. In support of the prayer and reiterating the averments made in the supporting affidavit Mr.S.Muthukrishnan, learned counsel for the petitioner submitted that the petitioner was appointed as 'Aaya' https://hcservices.ecourts.gov.in/hcservices/ 2 in the Child Development Project, by the Commissioner, Uppiliyapuram Project Union, Thuraiyur Taluk, Trichy District, the 3rd respondent herein, vide proceedings in Na.Ka.Aa.9.2317/91, dated 15.11.1991. At the time of appointment, the petitioner was directed by the Commissioner, Uppiliyapuram Project Union, Thuraiyur Taluk, Trichy District, the 3rd respondent herein, to produce proof of age. Since the petitioner did not posses any educational qualification certificate, she was subjected herself for medical examination and accordingly, the Joint Director of Medicine and Rural Health Services, Tiruchirapalli, issued a certificate stating that the age of the petitioner as 35. 3. Learned counsel for the petitioner submitted that the said Certificate was accepted and the services of the petitioner, were regularised. After nearly two decades, the petitioner has been directed to appear before the Joint Director of Medicine and Rural Welfare, Tiruchirapalli, on 20.06.2011. He further contended that though the petitioner had appeared before the Medical Board, there was no further communication. In these circumstances, the petitioner has obtained a Medical Certificate from a Senior Civil Surgeon in K.A.P.V.Government Medical College, Tiruchirapalli, stating that the age of the petitioner as 53. Learned counsel for the petitioner further submitted that without considering the medical certificate obtained on an earlier occasion and without affording an opportunity to the petitioner, the services of the petitioner have been terminated erroneously, on the ground that the petitioner has been attained the age of 58 years. 4. When the matter came up for hearing on 20.07.2011, learned Government Advocate was permitted to take notice and directed to verify, as to whether the age of the petitioner was determined, at the time of entering into service. 5. On this day, when the matter came up for hearing, Mr.S.Chnadrasekar, learned Government Advocate, for the State, has fairly submitted that in the year 1993, the petitioner was subjected to medical examination and though the petitioner has contended that her age was determined as 35, he has disputed the same and as per the Age Certificate, dated 21st December, 1993, issued by the Joint Director of Health Services, Tiruchirapalli, the age of the petitioner was approximately determined as '40 completed'. Learned counsel for the State further submitted that there is no need to provide any opportunity before relieving a person, on attaining the age of superannuation and for the above said reasons, prayed to reject the contention. He further submitted that the Certificate obtained by the petitioner from the Senior Civil Surgeon, K.A.P.V.Govternment Medical College, Tiruchirapalli, mentioning the age of the petitioner as 35, cannot be acted upon, since the Medical Board constituted by the competent authorities alone can assess and determine the age. 6. Learned counsel for the State further submitted that though there was a direction, dated 20.06.2011, issued by the second respondent, directing the petitioner to appear before the Joint https://hcservices.ecourts.gov.in/hcservices/ 3 Director of Medicine and Rural Welfare, Tiruchirapalli, which she had complied with but, she was not subjected to medical examination, as she did not produce any proper authorization letter. In such circumstances, a decision was taken to relieve the petitioner from service on 30.06.2011. 7. Heard learned counsel for the parties and perused the materials available on record. 8. The appointment of the petitioner as 'Aaya', from 15.11.1991, vide proceedings in Na.Ka.Aa.9.2317/91, dated 15.11.1991, of the Commissioner, Uppiliyapuram Project Union, Thuraiyur Taluk, Trichy District, the 3rd respondent herein, has not been disputed. Xerox copy of the age Certificate, dated 21.12.1993, issued by the Joint Director of Medicine and Rural Welfare, Tiruchirapalli, has been produced before this Court, by learned counsel for the respondents shows that the petitioner has been subjected to medical examination by Dr.S.Mathuram, Senior Civil Surgeon, K.A.P.V. Medical College, Tiruchirapalli. Reading of the age Certificate shows that at that time of physical examination on 21.12.1993, the Joint Director of Medicine and Rural Health Services, Tiruchirapalli, has opined that the petitioner was aged approximately 40 years, completed. The authenticity or the genuineness of the age certificate, dated 21.12.1993, cannot be disputed by the respondents, since it is produced by them. In such circumstances, the second respondent ought to have permitted the petitioner to continue in service, till she attained the age of superannuation i.e., 58 years, fixed the post of 'Aaya', i.e., the petitioner should have been allowed to continue in service upto 20th December 2011, i.e., on 21.12.1993, her age has been approximately, determined as 40 completed and hence as per the determination, she completed 58 years on 20.12.2011. 9. Once the competent authority has already subjected the petitioner for medical examination, and determined the age, at the time of entry, unless there is a concrete material evidence to discredit the certificate, there is no need to direct the employee to undergo a fresh medical examination. In the light of the age Certificate, dated 21st December 1993, issued by the Joint Director of Medicine and Rural Health Services, Tiruchirapalli, there is no need for any fresh direction to the petitioner subject for a second medical examination. However, pleadings disclose that the petitioner had obeyed the direction and appeared for medical examination, but without any authorization. As stated supra, when there is no need to subject the petitioner for a second medical examination, till she reached 58 years ie., on 21st December 2011, the impugned order, relieving the petitioner from service from 30.06.2011, on the premise that the petitioner had already reached 58 years, is erroneous and contrary to the age certificate dated 21st December 1993, which is already available on record. Therefore, the impugned order is set aside and the writ petition is allowed. The second respondent is directed to restore the petitioner back to service for the post of 'Aaya' and permit her to continue the service till 20th December 2011 and grant all monetary and other attendant benefits due and payable for the interregnum period. As the petitioner has been prevented https://hcservices.ecourts.gov.in/hcservices/ 4 from discharging her duties, consequent to the order relieving her from service, the question of "no work no pay" does not arise. No costs. Consequently, connected miscellaneous petition is closed. Sd/- Assistant Registrar (CO) /True Copy/ Sub Assistant Registrar To 1.The District Project Officer, (integrated Child Development Project), Trichirapalli. 2.The Child Development Project Officer, Uppiliyapuram. 3.The Commissioner, Uppiliyapuram Panchayat Union, Uppiliyapuram, Thuraiyur Taluk, Trichy District. +1 CC to Special Government Pleader (SR.No.25913) +1 CC to Mr.S.Muthukrishnan, Advocate (SR.No.25928) ORDER MADE IN W.P.(MD)No.8066 of 2011 02.08.2011 MPK NSV/19.8.11/4P/6C https://hcservices.ecourts.gov.in/hcservices/