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Patna High Court · body

2004 DIGILAW 1023 (PAT)

Jitendra Kumar v. State

2004-09-23

V.N.SINHA

body2004
Judgment 1. Heard Shri P.K. Shahi, learned counsel for petitioner and Shri S. Alamdar Hussain, Standing Counsel No. 6 for the State. 2. The petitioner has filed this writ application for a direction to the respondent authorities to appoint the petitioner on the post of constables in Bihar Police, as, according to him, pursuant to a selection process, undertaken by the respondent authorities in which the petitioner participated, he was selected and thereafter appointment letter dated 16.3.1992, Annexure-1, was issued under the signature of Chairman Selection Board cum Superintendent of Police, Saran, Chapra, respondent No. 4. 3. Learned counsel for the petitioner submitted that the petitioner appeared in the selection process for appointment of constables in the Bihar Police and after having participated in the physical test including measurement of his height and chest he was provided with appointment letter dated 16.3.1992, as contained in annexure 1, directing him to report at the police line, Chapra, in between 15.3.1992 till 25.3.1992. On the basis of the aforesaid appointment letter the petitioner reported at the Chapra Police line on 24.3.1992 where he was subjected to medical examination, measurement of his height and chest but was not permitted to join the post of constable. Further submission is that as the petitioner was not permitted to join on the basis of the appointment letter, he represented before Superintendent of Police, Saran, Chapra, respondent No. 4 on a number of occasions and made verbal request to permit him to join the post of constable, however, when nothing transpired he submitted a written representation to the Deputy Inspector General of Police, Saran Range, Chapra, who called for a report from the Superintendent of Police, respondent No. 4, under his memo No. 595 dated 28.4.1998, annexure 2. Learned counsel also submitted that in response to the aforesaid instructions of the Deputy Inspector General of Police the Superintendent of Police, respondent No. 4, submitted his report bearing memo No. 1641 dated 16.7.1998, as contained in annexure-3. Perusal of the said report of the Superintendent of Police, respondent No. 4, indicates that thereunder he informed the Deputy Inspector General of Police that, candidature of the petitioner was cancelled when he measured less in height as according to respondent No. 4 some other person appeared for him at the time of selection test/measurement. Perusal of the said report of the Superintendent of Police, respondent No. 4, indicates that thereunder he informed the Deputy Inspector General of Police that, candidature of the petitioner was cancelled when he measured less in height as according to respondent No. 4 some other person appeared for him at the time of selection test/measurement. The petitioner having come to learn about the aforesaid report of respondent No. 4 made another representation to the Inspector General cum Director General of Police, Bihar, Patna, as contained in annexure-4 to this application, whereunder he referred to the aforesaid report of the Superintendent of Police respondent No. 4 dated 16.7.1998 and submitted that persons who measured even lessor in height than himself were permitted to join as constable and it is only petitioner who is being differentiated on the ground that incorrect measurement was recorded in the candidate register and the master chart. Names of as many as seven persons with their height was indicated in representation, annexure-4, to demonstrate that persons having lessor height than the petitioner were allowed to join as constables. When the representation, annexure-4, also was not considered the petitioner filed this writ application on 27.7.1999 after serving two copies of the writ application on the establishment of the learned Advocate General, Bihar. 4. During the pendency of this writ application the respondents have filed counter-affidavit on behalf of Superintendent of Police, Saran, respondent No. 4. Perusal of the said counter-affidavit indicates that in para 10 it was clearly averred that the petitioner was not allowed to join, pursuant to the appointment letter as his height was found less than the height which was measured at the time of selection by the Selection Board. In paragraph 11 of the counter-affidavit it was however admitted that persons with lessor height than the petitioner have been appointed in his category as their height at the time of appointment was not found lessor than what was measured by the Selection Board during the selection process. 5. Learned counsel for the petitioner in support of this application has submitted that the authorities again measured the petitioner when he came to join the post and noticed lessor height than what was recorded in the candidate register or master chart during the selection process. According to counsel, the height measured at the time of joining was 170.4 CM. 5. Learned counsel for the petitioner in support of this application has submitted that the authorities again measured the petitioner when he came to join the post and noticed lessor height than what was recorded in the candidate register or master chart during the selection process. According to counsel, the height measured at the time of joining was 170.4 CM. more than the minimum height provided under Rule 663 of the Bihar Police Manual and when as many as seven persons with lessor height than 170.4 C.M. were already allowed to join as constable in the category to which the petitioner belongs there should be no earthly reason not to permit the petitioner to join as constable, pursuant to the appointment letter, annexure-1. In this connection, learned counsel relied upon a Division Bench decision of this court in the case of State of Bihar V/s. Mahboob Alam [1995(1) P.L.J.R. 451]. Petitioners of the reported case, pursuant to a selection process were appointed as constables. Later their appointment was terminated on the allegation that in the candidate register measurements which have been recorded are in excess of the real measurement in regard to the same person. Single Bench of this court in the reported case directed for remeasurement and on the basis of remeasurement set aside the termination order directing reinstatement. State filed letters patent appeal and a Division Bench of this court, with reference to Rule 663 of the Police Manual, held that inaccuracy in recording the measurement in candidate register master chart should not vitiate the appointment if the person concerned satisfy the minimum required height provided under Rule 663 of the Police Manual. In this connection, extract from the aforesaid reported case in quoted hereinbelow: "In all these cases, the measurement of chest and height which has been recorded either in the master chart or in the candidates register is above the required measurement under the rules. As such it will not be fair to say that because of such inaccuracy in recording the chest measurement, the appointment is vitiated inasmuch as the persons concerned satisfy the requirement under rule 663 of the Bihar Police Manual, 1978. The authority in passing the impugned order has not taken into consideration the aforesaid fact, namely, the required height and chest measurement under the Bihar Police Manual ." 6. The authority in passing the impugned order has not taken into consideration the aforesaid fact, namely, the required height and chest measurement under the Bihar Police Manual ." 6. On the other hand, learned counsel for the State submitted that when the petitioner appeared to join the post, pursuant to the appointment letter, he was again measured and his height was found less and on that basis the then Superintendent of Police, Saran, concluded that the petitioner was a person other than the person who had appeared and participated in the selection process and as the Chairman of the Selection Board, Superintendent of Police, Saran, Chapra, was not satisfied about the candidature of the petitioner he rightly did not permit the petitioner to join the post of constable. Further submission of the learned State Counsel is that this matter relates to the appointment of the constable pursuant to a selection process undertaken in the year 1992 and this court under order dated 22.10.2002 passed in the case of Shankar Kumar Sah in C.W.J.C. No. 7040 of 2002 has held that 1998 appointment should come to an end and as such in the light of the direction of this court to close 1998 appointment. There should be no occasion to grant relief to the petitioner, pursuant to the selection process undertaken in the year 1992. 7. I am afraid neither of the submissions of the learned State Counsel will pursuade me to dismiss this application as it is a situation created by the authorities themselves. Pursuant to the selection process undertaken for appointment of constables in the year 1992 petitioner received appointment letter in compliance whereto he reported for joining the post at that time his height was measured as 170.4 C.M. which was lessor than what was recorded in the candidate register, master chart but the petitioners height recorded at the time of joining was, however, more than the minimum provided under Rule 663 of the Police Manual and, as such, discrepancy between the two height one recorded in the candidate register/master chart and the other measured at the time of joining ought not to have restrained respondent No. 4 for permitting the petitioner to join as constable pursuant to appointment letter, Annexure-1. When seven persons lessor in height than him had already joined as constable. When seven persons lessor in height than him had already joined as constable. Respondent No. 4 having not cancelled the appointment letter he was even otherwise duty bound to give effect to the appointment letter. In the event he entertained any doubt in regard to the candidature of the petitioner he should have undertaken an enquiry in that regard but without undertaking any enquiry in the matter he was not right in concluding that somebody else had appeared for the petitioner during the selection process. Accordingly, I direct Superintendent of Police, respondent No. 4, to permit the petitioner to join as constable forthwith but without back wages. Petitioner shall however be entitled to seniority w.e.f. 16.3.1992 as also the increments in the fixation of this pay. Application is allowed with cost of Rs. 6,000/- to be paid to the petitioner within three months from the date of receipt/production of a copy of this order.