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2008 DIGILAW 133 (BOM)

UNION OF INDIA v. KIRAN CHANDRAHASYA TAYADE

2008-01-30

D.D.SINHA, VASANTI A.NAIK

body2008
ORAL JUDGMENT D. D. SINHA, J.:- Rule. Rule made returnable forthwith. The writ petition is finally heard at the stage of admission with the consent of counsel of the parties. 2. The writ petition is directed against the order dated 20th March, 2007 passed by the Central Administrative Tribunal, Bombay Bench, Circuit Sitting at Nagpur, whereby the original application filed by the respondent came to be allowed. 3. The counsel for the petitioner has submitted that so far as the promotion to the post of Inspector is concerned, the eligibility criteria for female candidate is that the female candidate must have a Height of 152 Cms. and Weight of 48 Kg. It is submitted that unless and until this eligibility criteria is fulfilled by a female candidate, case of such female candidate cannot be considered for promotion to the post of Inspector. By the impugned order, the respondent has been directed to be examined by the Medical Board only for the purpose of ascertaining the correct weight of the respondent and the case of the respondent is not referred to the Board in order to ascertain the height of the respondent. The Tribunal, while passing the impugned order, has relied on the service book entry wherein the height of the respondent at the time of entering the service is mentioned as 152 Cms. The learned counsel for the petitioner, therefore, contended that the order impugned is not sustainable in law. 4. The counsel for the respondent supported the impugned order and further contended that the Tribunal, after considering the service book record gave finding in paragraph 6 of the impugned order and concluded that there is no 'need to send the respondent before the medical Board for ascertaining the height of the respondent and only directed the respondent to go before the Medical Board for ascertaining the correct weight of the respondent. The counsel for the respondent, therefore, contended that the impugned order is sustainable in law. 5. Mr. The counsel for the respondent, therefore, contended that the impugned order is sustainable in law. 5. Mr. Choube, the learned counsel for the petitioner, at this stage, has brought to the notice of this Court two applications; one is an application of the respondent dated 14-6-2006 made to the Additional Commissioner (P & V), Customs & Central Excise, Nagpur which reads thus- "As per the list enclosed along with letter F. No. II(39)7-Con/2002 dated 12-6-2006, it is seen that my name was not included in the list of candidates, who have been found physically fit for D.P.C. for promotion to the post of Inspector. I think, as per physical requirement, I am fit for the post of Inspector. It is, therefore, kindly requested that my physical test may once again be taken on sympathetic and humanitarian grounds." The learned counsel for the petitioner, therefore, submitted that even as per the request of the respondent, she was ready and willing to undergo physical test, which includes measurement of height and weight. Similarly, prayer clause (A) of the Original Application, filed by the respondent is also brought to the notice of this Court, which reads thus- "Quash & set aside the action of holding Physical Test by respondents 2 to 3 & fresh Physical Test may kindly be conducted by constituting other autonomous institution." The learned counsel for the petitioner, therefore, contended that in view of the above referred circumstances, the order passed and directions given by the Tribunal cannot sustain in law and the respondent may be directed to appear before the Medical Board for physical Test i.e. for the purpose of ascertaining height as well as the weight of the respondent. 6. We have considered the rival contentions canvassed by the respective counsel and perused the impugned order, application dated 14-6-2006 moved by the respondent as well as prayer clause (A) of the Original Application filed by the respondent. The Tribunal has merely, on the basis of some entry in the service book about the height of the respondent, came to the conclusion that there is no necessity to measure the height of the respondent. The Tribunal has merely, on the basis of some entry in the service book about the height of the respondent, came to the conclusion that there is no necessity to measure the height of the respondent. When the concerned D.P.C. for promotion' did not find respondent physically fit for promotion and when the respondent herself was ready to undertake physical test, there is no reason as to why the respondent should only be asked to appear before the Medical Board only for ascertaining weight of the respondent. Similarly, even as per the prayer clause (A) and (B) in the Original Application, the respondent has alternatively requested that she may be sent for physical test which includes measurement of height and weight. In that view of the matter, it is difficult for us to sustain the impugned order. 7. For the reasons stated hereinabove, the impugned order dated 20-3-2007 passed by the Central Administrative Tribunal, Bombay Bench, Circuit sitting at Nagpur is hereby quashed and set aside. The respondent is directed to appear before the Medical Board for assessing her height and weight and if the Board certifies that the respondent is possessing the requisite height and weight, in that event, she should be considered for promotion to the post of Inspector from the date her juniors were promoted. The petitioner is directed to send the respondent before the independent Medical Board for assessing her height and weight and on the basis of the Medical Board Certificate, if respondent fulfils the criteria of requisite height and weight, then, the D.P.C. for her promotion to the post of Inspector be constituted and ease of the petitioner should be considered. If the D.P.C. finds her fit for promotion, then, the respondent be promoted to the post of Inspector, from the date her juniors were promoted, with all consequential benefits including Seniority, fixation of salary. 8. The writ petition is allowed in above terms with no order as to costs. Writ petition allowed.