Krishna Kumar Rai v. State of Bihar — 1995 DIGILAW 732 (PAT)

JUDGMENT J.N. DUBEY, J. 1. This writ petition is directed against the order of the State Government rejecting the representation of the petitioner and refusing to appoint him on the post of Sub-Inspector of Police, communicated to him by the Deputy Secretary of the Government vide letter no. 4/B 1-2060/89 Gri. Aa. 118 dated 6.1.1990. 2. The case of the petitioner is that he applied for the post of Sub-Inspector of Police in pursuance of the advertisement dated 27.6.1985 of the respondent no. 2. He was directed to appear for physical test on 31.8.1985 before the Selection Committee headed by Deputy Inspector General of Police. He appeared in the Physical Test and was declared fit with the measurements height 171 CM. and chest 83 Cm. Since the petitioner was found physically fit he was allowed to appear in the written examination held on 21 & 22.1.1986. But before final result could be declared a writ petition bearing CWJC No. 3104 of 1986 was filed in this Court with serious allegations of irregularities committed by the respondent no. 2 in the written examination. The writ petition was allowed on 5.5.1988 with a direction to the State Government to constitute a three member committee consisting of respondents 4-6 to scrutinise the answer books of all the candidates who had secured the minimum qualifying marks in the written examination. 3. On 7.2.1989 a list of 403 candidates who had secured 50% minimum qualifying marks was published in the Times of India by the respondent no. 4, in which the name of the petitioner figured at serial no. 15. Although the three men committee was constituted by this Court only to scrutinise the answer books of the candidates who had secured the minimum qualifying marks in the written examination, the committee illegally decided to take Physical Test and Handwriting Test also. The petitioner was directed to appear before the committee for Physical Test and Handwriting Test on 25.2.1989 and 26.2.1989 respectively. Accordingly the petitioner appeared before the committee for Physical Test on 25.2.1989. The Measurement Officer who measured the height and chest of the petitioner declared that the unexpanded chest of the petitioner was 78 CM. less than the required. His chest was remeasured by the Deputy Superintendent of Police and then by the Deputy Secretary Home (Police) and was found to be 80 CM. and 81 CM. respectively. The Measurement Officer who measured the height and chest of the petitioner declared that the unexpanded chest of the petitioner was 78 CM. less than the required. His chest was remeasured by the Deputy Superintendent of Police and then by the Deputy Secretary Home (Police) and was found to be 80 CM. and 81 CM. respectively. However in the chart it was recorded as 78 CM. Similar irregularities were committed by the committee in regard to measurement of several other candidates. When the petitioner and other candidates raised objection they were assured by the committee that it will not cause any harm to them. The petitioner was also allowed to appear in the handwriting test on 26.2.1989. Since the petitioner was allowed to appear in the Handwriting Test he believed the assurance of the committee that no harm would be caused on account of wrong measurement shown in the chart. Otherwise also, if the petitioner was not found fit in the physical test there was no occasion for the committee to allow him to participate in the Handwriting Test. The final result was published on 30.6.1989 and to the utter surprise of the petitioner, his name did not figure amongst the successful candidates, although he had secured 15th position in the written examination. On enquiry, the petitioner was told by the Home Department that he was declared physically unfit by the three men committee. The petitioner requested for supply of the report of the three-men committee but without success. But, somehow he succeeded in obtaining a copy of the report in which he has been declared physically unfit. 4. Petitioner filed representations to the members of the three-men selection committee as well as to the respondents 2, 3 and 7 for the redress of his grievances, with a request also to get his chest remeasured or relax the qualification under Rule 663(C) of the Police Manuel, considering the fact that he has been a good Sportsman and a Cadet of 11 Bihar BN-N.C.C. during his student days and was also found physically fit in the first physical test. When no decision was taken on his for a considerable long time he alongwith few other such candidates filed CWJC No. 6205 of 1989 (Uma Shanker Singh & other vs. State of Bihar & other) in this Court for a direction to the respondents either to take physical test afresh or relax the qualification under Rule 663(C) of the Police Manual, which was disposed of on 31.7.1989 with a direction to the respondents to decide all pending representations within two months. However, respondent no. 1 without referring to the order of this Court and without getting the chest of the petitioner remeasured, rejected his representation by a non-speaking order. Thereafter, petitioner made several representations and also met the authorities concerned for relaxation of the qualification under Rule 663(C) of the Police Manual as per direction of this Court but all in vain. Hence this writ petition. 5. On the other hand, the case of the respondents in the counter affidavit is that the three-men committee constituted by this Court was quite competent to take fresh Physical Test of the candidates who had secured minimum qualifying marks in the written examination and rejected the unfit candidates. The petitioner having been found physically unfit by the committee was rightly not selected for appointment on the post of Sub-inspector of Police. His representation was considered by the authorities concerned in accordance with law but as no case for remeasurement of the chest or relaxation of qualification under Rule 663(C) of the Police Manual was made out, it was rejected. 6. Heard the learned counsel for the parties and perused the record. 7. Learned counsel for the petitioner contended that the three-men committee constituted by this Court specifically for the purpose of scrutinising the answer books of the candidates who had secured minimum qualifying marks in the written examination was not legally justified in taking fresh physical test and declare the petitioner unfit. He further contended that the measurement of the chest of the petitioner could not be legally recorded as 78 CM. when it was found to be 78, 80 and 81 CM. by the three different authorities, and that the assurance given by the committee that no harm will be caused to the petitioner on account of this, should have been honoured. He also contended that the respondent no. when it was found to be 78, 80 and 81 CM. by the three different authorities, and that the assurance given by the committee that no harm will be caused to the petitioner on account of this, should have been honoured. He also contended that the respondent no. 1 was not legally justified in rejecting the representation of the petitioner by a non-speaking order without making any reference to the order of this Court and without getting the chest of the petitioner remeasured. In any case, according to him, the petitioner who has admittedly, been a good Sportsman and a Cadet of 11 Bihar BN- N.C.C. was entitled for relaxation of qualification under Rule 663(C) of the Police Manual and the State Government has erred in refusing to do so without assigning any reason learned counsel for the petitioner has also invited my attention to the Division Bench decision of this Court. CWJC No. 3441 of 1990 (Arun Kumar Singh & other vs. State of Bihar & other) in which relief has been granted by this Court to the similar other candidates. 8. On the other hand, learned State Counsel has contended that the final result has been declared on the basis of the recommendation of the three-men committee, constituted under the direction of this Court for going into the allegations of irregularities committed in conducting the examination, by the respondent no. 2 and, therefore, the petitioner who was found unfit in the physical test is not entitled for any relief. He has also invited my attention to one Division Bench case of this Court in CWJC No. 4242 of 1991 (Shashi Kumari Sinha & another vs. State of Bihar & other) in which this Court refused to grant any relief to such similar candidates. 9. Having considered the argument of the learned counsel for the parties I am of the opinion that this writ petition is directly covered by a Division Bench decision of this Court in Niranjan Kumar Singh (supra) and deserves to be allowed without going into other aspects of the case. 10. In that case also, like the petitioner, petitioners of that writ petition were initially found physically fit but were later on declared physically unfit by the three-men committee constituted under the order of this Court for scrutinising the answer books of the candidates who had secured minimum qualifying marks in the written examination. 10. In that case also, like the petitioner, petitioners of that writ petition were initially found physically fit but were later on declared physically unfit by the three-men committee constituted under the order of this Court for scrutinising the answer books of the candidates who had secured minimum qualifying marks in the written examination. This Court held that the persons who were initially found physically fit could not be later on rejected on the ground that their physical measurements were less than the required. The relevant portion of the judgment reads thus:– "The grievance of the petitioner is that he was found fit for appointment to the post of Sub-Inspector of Police at the initial test when he was asked to appear for the physical test also, which was conducted in accordance with the advertisement contained in annexure-1, he was found fit physically and his height was 171 c.m. and chest was 82 c.m. After physical test he was declared successful. It was only on completion of the physical test that the respondent no. 2 issued Admit Card giving the roll number to the petitioner for his appearance in the written test. He, thereafter, appeared in the written test and again on 15.10.1990 after having been successful in the written test, he was asked to appear again in the handwriting and physical test as directed by the High Court in CWJC No. 3104 of 1986, whereby a committee of three men had been constituted. At this stage the Sergeant Major was taking the measurement of the chest and height it may be pointed out that long time lapsed between the first test, which was held in pursuance of the advertisement of 1985, and the second test conducted on 15.10.1990 after lapse of five years and at this stage it was reported that the petitioner was short by half inch equivalent to 1.5 c.m. in the measurement of chest. The petitioner has, of course, made certain allegations against the Sergeant Major and has alleged that he could not satisfy his desire therefore the measurement was wrongly shown. The petitioner has, of course, made certain allegations against the Sergeant Major and has alleged that he could not satisfy his desire therefore the measurement was wrongly shown. However, the fact remains that in paragraph 6 the petitioner has categorically stated that he was found physically fit and at the initial stage when his physical test was taken he was declared successful because the measurement of his height was 171 c.m. and chest was 82 c.m. The petitioner challenges that even though he was found fit in measurement of chest he was arbitrarily shown as short by 1.5 c.m. The statement in paragraph 6 has not been denied at all in the counter affidavit, therefore, the fact is established that the petitioner did possess the required measurement of the chest and height and was found suitable. In this view we direct that the petitioner may be appointed to the post of Sub Inspector of Police by the respondents and its authorities since even juniors to him who were shown in the panel below him have been declared successful and appointed. We do not see any reason or reasonable basis to have any demerit in the claim of the petitioner and once he was found suitable at the time of his initial measurement of the height and chest, we do not see any reason how after five years he could be rejected on the ground that he is now short by 1.5 c.m. We do not know why such five years were taken in making the final order of selection when the first interview was taken in accordance with the advertisement published in the year 1985. Therefore, the initial measurement taken made the petitioner fit for appointment. If such interview are taken after five long years when second measurement of height and chest and taken one may became short and/or may become more in measurement of chest. That should not stand to disqualify the candidate, if he was found suitable otherwise at the written test and the physical test at the very initial stage held in the year 1985." 11. That should not stand to disqualify the candidate, if he was found suitable otherwise at the written test and the physical test at the very initial stage held in the year 1985." 11. In my opinion there is always a chance of some variation in the physical measurement of a person due to passage of time and, therefore, when the petitioner was initially found physically fit he could not be denied appointment on the post of Sub-Inspector of Police even if the measurement of his chest was found to be little less than the required by the three-men committee, specially when the petitioner has specifically pleaded, which has not been denied in the counter affidavit, that he had been ill for few months before the second physical test. The Division Bench decision of this court Shashi Kumari Sinha (supra) cited by the learned State counsel has no bearing on this case. In that case tile grievance of the petitioner was that although they had secured higher marks than some of the respondents, they were not recommended for appointment. This Court held thus:– "The grievance of the petitioners is that they have secured 128 and 105 marks out of 300, whereas respondent nos. 6, 7 and 8 have secured 121, 113 and 102 marks respectively. Thus, according to them, although they have secured higher marks than the said respondents, they have not been recommended for appointments. The grievance, in our opinion, is wholly misplaced. As indicated above, the recommendation of the Board was not to be based merely on the marks secured by the different candidates, but only after and on the basis of proper scrutiny and verification by the committee in terms of the observation and directions of this Court, as referred to above. In other words, the recommendation was to be made not only on the basis of marks but after clearance of individual cases by the said committee. Thus, even if the petitioners might have secured higher marks than the said respondents it was necessary on their part to stand the test of scrutiny and verification by the said committee. In other words, the recommendation was to be made not only on the basis of marks but after clearance of individual cases by the said committee. Thus, even if the petitioners might have secured higher marks than the said respondents it was necessary on their part to stand the test of scrutiny and verification by the said committee. It is obvious that the petitioners along with 20 others were given a chance by Annexure-2 to appear before the said committee for scrutiny and verification out of whom cases of only 13 including respondents 6 to 8 could be cleared by the said committee and, accordingly, they have been recommended for appointments by the Board by Annexure-1" 12. The impugned order of the State Government suffers from an error apparent on the face of the record and is liable to be quashed. 13. In the result the writ petition succeeds and is allowed. The order of the State Government communicated to the petitioner by letter dated 6.1.1990 (Annexure 12 to the writ petition) is quashed. The respondents and directed to appoint the petitioner on the post of Sub-Inspector of Police within three months. 14. No order as to costs.