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2008 DIGILAW 314 (RAJ)

Dinesh Nirwan v. State of Rajasthan

2008-02-01

MAHESH CHANDRA SHARMA

body2008
JUDGMENT 1. - By way of this writ petition, the petitioner has prayed for the following relief : "By an appropriate order, writ or the direction, the Respondents may further be directed to give appointment to the petitioner to the post of Constable against the vacancies earmarked for SC w.e.f. the date the persons who stood lower in the merit list prepared by the Selection Board, have been given appointment and thereby provide all consequential benefits attached to the post." 2. The petitioner is a member of Scheduled Caste has passed out B. Sc. Examination from the University of Rajasthan, thus, he is eligible for appointment to the post of Constable and he is also entitled for the protection provided to the members of Scheduled Castes in terms of Rule 7 of the Rajasthan Police Subordinate Service Rules, 1989 (for short "the Rules of 1989"). 3. The recruitment to the subordinate service of Police Department is regulated under the provisions contained in the Rules of 1989 wherein it has been provided that the 5 reservation of vacancies for the scheduled D castes and scheduled tribes shall be in accordance with the orders of the Government for such reservation in force at the time of recruitment i.e. by direct recruitment and by promotion. The procedure for direct recruitment has been provided in Part-IV contemplated under Rule 17 of the said rules. 4. An advertisement dated 26th February, 2001 was published in various news papers inviting applications for 69 vacancies on the post of Civil Police and 44 in Wireless Section prescribing last date as 28-3-2001. As such, the petitioner offered his candidature in response to the advertisement dated 26-2-2001 and accordingly he appeared in the written Examination and declared successful. Thereafter the petitioner underwent physical test and interview held on 7-8-2001 & 8-8-2001 and stood at Sl. No. 16 of the merit list of selected candidates. The petitioner was further examined by the Medical Board who declared him fit to be given appointment. 5. For the purpose of conduct and character verification, the petitioner was directed to appear before the Superintendent of Police (HQ), Jaipur City. Accordingly, he appeared before the Superintendent of Police along with other candidates. The petitioner was further examined by the Medical Board who declared him fit to be given appointment. 5. For the purpose of conduct and character verification, the petitioner was directed to appear before the Superintendent of Police (HQ), Jaipur City. Accordingly, he appeared before the Superintendent of Police along with other candidates. But due to extraneous reasons and considerations, instead of certifying his conduct and character vide letter dated 20-12-2001 which was sent to the Senior Medical Officer, Police Line, Jaipur directing him to conduct medical examinations again in respect of the petitioner who was suffering from stammering by endorsing a copy of the letter to the petitioner directing him to appear before the Medical Officer of Police Lines, Jaipur. 6. Rule 14 of the Rules of 1989 regarding Physical Fitness is reproduced as under:- "14. Physical Fitness. - (1) A candidate for direct recruitment of the Service must be in good mental and bodily health and free from any mental or physical defect likely to interfere with the efficient performance of his duties as a member of Service and if selected must produce a certificate to that effect from a Medical Authority notified by the Government for the purpose. The Appointing Authority may dispense with production of such certificate in the case of a candidate promoted in the regular line of promotion or who is already serving in connection with the affairs of the State, if he has already been medically examined for the previous appointment and the essential standards of medical examination of the two posts held by him are to be comparable for efficient performance of duties of the new post and his age not reduced his efficiency for the purpose." 7. It is submitted that the petitioner in his mental and bodily health is free from mental and physical defect likely to interfere with the efficient performance of his duties as a member of service and was also declared fit by the Medical Board which examined him way back on 16-8-2001 whereas stammering is neither a disqualification nor can be termed disease to adversely affect his performance as a member of service. Therefore, on the basis of unwarranted assumptions, the petitioner could not have been ask to again appear before medical examination for the Senior Medical Officer, thus the action of the respondent No. 3 is absolutely unwarranted, uncalled for, illegal, arbitrary and contrary to the provisions of the Rules of 1989. 8. Reply to the writ petition has been filed by the respondents in which it was mainly submitted that the Superintendent of Police (HQ), Jaipur City noticed that the petitioner was suffering from stammering at the time of appearance of the petitioner before him and then, he directed the Senior Medical Officer. Police Line, Jaipur City to submit report before him after re-medical examination of the petitioner. In compliance of the direction of the Superintendent of Police (HQ). Jaipur City, Senior Medical Officer re- medical examined the petitioner and gave his opinion that the petitioner is suffering from stammering, however, final opinion should be taken from ENT Surgeon through a Medical Board from S.M.S. Hospital before giving appointment to the petitioner. 9. I have considered the arguments which have been advanced by both the parties. 10. If it is considered to be true the petitioner is still suffering from stammering is not a disqualification for appointment for the post of Constable in view of the provisions contained in the Rules of 1989. In my opinion, the petitioner deserves to be given appointment to the post of Constable. 11. On dated 5-8-2002, this Court has passed the order by directing the respondents that they will keep one seat reserve for the post of Constable till further orders. 12. In view of the above. I allow this writ petition and the respondents are directed to give appointment to the petitioner to the post of Constable against the vacancies earmarked with effect from the date the persons stood lower in merit list prepared by the Selection Board. The petitioner is entitled to all the consequential benefits from the date of his appointment. 13. No order as to costs.Petition allowed. *******