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2008 DIGILAW 137 (GAU)

Hriday Basumatary v. Union of India

2008-02-15

BROJENDRA PRASAD KATAKEY

body2008
JUDGMENT B.P. Katakey, J. 1. An Advertisement being Advertisement No. 2 was issued by the authority of the Border Security Force (in short, "BSF") Umpling Shillong in the State of Meghalaya in the month of August, 2001 for recruitment against the vacancies of Constable in the North Eastern States including the State of Assam, pursuant to which the petitioners offered their candidatures. The selection process was thereafter, conducted by the BSF Authority for select of candidates for appointment as Constable (general duty) and though the petitioners were selected by the Selection Board they were not appointed on the ground of the petitioner Nos. 2, 7 and 8 having not fulfilled the minimum height requirement and the petitioner Nos. 1, 3, 4, 5 and 6 having found to be medically unfit on the ground of Hypertension/Tachycardia. The petitioners, therefore, filed the present writ petition praying for a direction to the respondent authorities to appoint them as Constable (general duty) pursuant to the selection made. This Court while admitting the writ petition for hearing passed an interim order on 06.02.2002 to keep 8 (eight) posts of Constable (general duty) in the State of Assam vacant. 2. I have heard Mr. A.S. Choudhury, the learned Counsel for the petitioners and Mr. D. Baruah, the learned Central Government Counsel appearing on behalf of the respondents/BSF Authority. 3. The petitioners referring to the advertisement issued in the month of August, 2001 by the BSF Authority (Annexure-1 to the writ petition) has submitted that the grounds on which the petitioner Nos. 2, 7 and 8 were not appointed as Constable inspite of their selection is not tenable in view of the fact that their candidatures were rejected on the ground of being less than 170 cms. in height though in the advertisement it has been specifically mentioned that the height requirement in respect of the candidates belonging to the hill areas and North Eastern States is 165 cms., which the petitioner Nos. 2,7 and 8 have admittedly fulfilled. Relating to the grounds on which the candidature of petitioner Nos. 1,3,4,5 and 6 have been rejected, it has been submitted by the learned Counsel for the petitioners that they were never suffered from Hypertension or Tachycardia as alleged by the medical officer of the BSF Authority and, therefore, the rejection of their candidature on that ground cannot be sustained. Relating to the grounds on which the candidature of petitioner Nos. 1,3,4,5 and 6 have been rejected, it has been submitted by the learned Counsel for the petitioners that they were never suffered from Hypertension or Tachycardia as alleged by the medical officer of the BSF Authority and, therefore, the rejection of their candidature on that ground cannot be sustained. The learned Counsel further submits that they are even now ready and willing to have another medical examination by the BSF Authority to ascertain as to whether they are medically fit or not. 4. Mr. Baruah, the learned Central Government Counsel appearing on behalf of the respondents, on the other hand, has submitted that the height of 165 cms. was prescribed for the candidates belonging to hill areas of North Eastern States and not the candidates belonging to the plains of the North Eastern States, for whom the minimum requirement relating to the height is 170 Cms., which the petitioner Nos. 2, 7 and 8 do not satisfy and hence their candidatures were rejected though they were selected for appointment as Constable. It has further been submitted by Mr. Baruah that the petitioner Nos. 1, 3, 4 and 6 were not appointed having found medically unfit on the ground of Hypertension and the petitioner No. 5 was not appointed having found medically unfit on the ground of Tachycardia though Mr. Baruah has submitted that they were selected and such selection being subject to the medical fitness. 5. This Court in view of the controversy raised in the present petition vide order dated 03.01.2008 requested the learned Central Government Counsel, Mr. Baruah to obtain necessary instruction from the BSF Authority as to whether the said Authority is ready and willing to have the writ petitioners medically examined again by the Medical Officer of the BSF Authority ascertain their medical fitness for the purpose of appointment as Constable. Mr. Baruah, on instruction has submitted that if this Court directs for medical examination of the petitioner, they are willing to conduct such medical examination. 6. Mr. Baruah, on instruction has submitted that if this Court directs for medical examination of the petitioner, they are willing to conduct such medical examination. 6. It appears from the advertisement being Advertisement No. 2 issued by the BSF Authority in the month of August, 2001 (Annexure-1 to the writ petition) that a physical standard has been set up for the candidates, who offered their candidature for being selected as Constable (general duty), which reads as follows: State/UTs Region Scheduled Tribes of all States and UTs Including Nagas/Mizos Height 162.5 Cms Chest 76-81 Cms Weight Proportionate to height and age as per medical Standards. Men belonging to Hill Areas & North Easrern States 165 Cms 78-83 Cms do All other States and UTs. 170 Cms 80-85 Cms do 7. It appears from the physical standards set up by the BSF Authority, as quoted above, that the minimum height in respect of the Scheduled Tribes of all the States including Nagas/Mizos prescribed was 162.5 Cms.; for the candidates belonging to the hill areas and North Eastern States at 165 cm and for the candidates of all other States and Union Territories at 170 cms. The petitioner Nos. 2,7 and 8 were admittedly found to be more than 165 Cms. in height but less than 170 Cms. There is no dispute that the petitioner Nos. 2,7 and 8 belonged to one of the North Eastern States, i.e. the State of Assam. There being stipulation in the advertisement that the candidates belonging to the North Eastern States must have 165 Cms, in height to satisfy the physical standard, there is no reason as to why their candidature should be rejected on the ground of not having 170 Cms. in height which was the only ground on which their candidatures were rejected. The contention of Mr. Baruah, the learned Central Government that 165 Cms. height requirement is for the candidates belonging to the hill areas of the North Eastern States, cannot be accepted in view of the clear stipulation in the advertisement being Advertisement No. 2 that "men belonging to hill areas & North Eastern States", the minimum height requirement is 165 Cms. Therefore, the grounds on which the candidatures of the petitioner Nos. 2,7 and 8 was rejected, inspite of their selection for appointment as Constable is not tenable in law. The respondent authorities, therefore, are bound to appoint the petitioner Nos. Therefore, the grounds on which the candidatures of the petitioner Nos. 2,7 and 8 was rejected, inspite of their selection for appointment as Constable is not tenable in law. The respondent authorities, therefore, are bound to appoint the petitioner Nos. 2, 7 and 8 as Constable (general duty) pursuant to their selection, subject, of course, to a fresh medical examination to ascertain their medical fitness, as more than 6(six) years have elapsed from their earlier medical examination. 8. It appears from the affidavits filed by the BSF Authorities that the petitioner Nos. 1, 3, 4 and 6 having found medically unfit for Hypertension and the petitioner No. 5 having suffering from Tachycardia, they were not appointed inspite of selection. It appears from the record produced by Mr. Baruah, the learned Central Government Counsel that the candidature of the petitioner Nos. 1, 3 and 6 were rejected having found medically unfit on the ground of Hypertension only, their blood pressures having been recorded as 150/90 mm of Hg, 150/90 mm of Hg and 168/86 mm of Hg, respectively. Though the candidature of the petitioner No. 4 was rejected on the ground of the being medically not fit or medically unfit, no reason has been cited as to how he was found medically unfit but his blood pressures was also recorded as 160/100mm of Hg. The candidature of petitioner No. 5 was rejected having found medically unfit on the ground of Tachycardia, the pulse rate having been found to be 116 per minute. The petitioners being the villagers, it is not unnatural that when they present themselves before the Medical Officer of the BSF Authority to check their physical fitness, their blood pressures may sometimes be recorded in the higher side, whose candidature was rejected only on that ground as narrated above. 9. That being the position, I am of the view that since the petitioners were selected by the BSF Authority for appointment as Constable (general duty) and the candidature of the petitioner Nos. 9. That being the position, I am of the view that since the petitioners were selected by the BSF Authority for appointment as Constable (general duty) and the candidature of the petitioner Nos. 2,7 and 8 was rejected on the ground found to be not tenable, for the reasons recorded above, and the candidatures of other petitioners were rejected on the ground of Hypertension/Tachycardia, in my considered opinion, ends of justice would be met if the petitioners are medically examined again by the Authority of the BSF within 3(three) months from today with intimation to them and in the event, they are found to be medically fit, they shall be appointed as Constable (general duty) pursuant to their selection made and against the posts kept vacant vide order dated 06.02.2002. Ordered accordingly. The writ petition is accordingly allowed to the extent indicated above. No cost. Petition allowed.