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2012 DIGILAW 1175 (JHR)

Amar Singh Parmar v. State of Jharkhand

2012-08-07

JAYA ROY, PRAKASH TATIA

body2012
JUDGMENT Heard learned counsel for the parties. 2. The appellant is aggrieved against the judgment dated 28th April, 2011 passed in W.P.(S) No. 1579 of 2011, whereby the writ petition of the writ petitioner has been dismissed. 3. It will be appropriate to give facts in brief: Because of some dispute with respect to selection of the candidates for the post of 'Constable' in four districts; Hazaribagh, Koderma, Chatra and Giridih, the matter came up before this Court (Division Bench) in W.P.(S) No. 1242 of 2006 (Krishnaji & Others Vs. The State of Jharkahnd & Ors.) along with connected writ petitions. Before this Court, the enquiry report was submitted whereby 932 candidates were found to manipulate in the process of selection and got the selection. Finding this position, entire selection process was since cancelled. But when matter came up before this Court in above writ petitions i.e., in W.P.(S) No. 1242 of 2006 (Krishnaji & Others Vs. The State of Jharkhand & Ors.) along with connected writ petitions, this Court directed the respondents to make appointment according to select/merit list of the successful candidates declared successful in four districts namely, Hazaribagh, Koderma, Chatra and Giridih excluding 932 candidates identified by the inquiry officer. This Court also directed to initiate enquiry against some of the persons who may have been involved in the malpractices. The petitioner could not get the appointment in spite of the fact that he was not in the list of 932 candidates whose candidature was stand reject finally by the judgment of this Court delivered in the case of Krishnaji & Others. The petitioner since was not given appointment, therefore, petitioner again preferred one writ petition being W.P.(S) No. 4153 of 2007, wherein the petitioner was directed to submit a fresh representation before the Superintendent of Police, Hazaribagh and Superintendent of Police, Hazaribagh was directed to decide the representation of the writ petitioner within eight weeks. The petitioner submitted his representation which was considered and decided by order dated 29th September, 2007 and it was observed in the order that petitioner has shown his height as 173 c.m in the “Application Form”. The petitioner submitted his representation which was considered and decided by order dated 29th September, 2007 and it was observed in the order that petitioner has shown his height as 173 c.m in the “Application Form”. However, at the time of actual verification of his height, his height was found 172 c.m. It was further observed that in the 'Master Chart' inadvertently his height was recorded as 181.5 and because of that reason his marks has been increased and he was shown as selected candidate. 4. According to learned counsel for the petitioner in fact order dated 29th September, 2007 is not the order of rejection of the candidature of the petitioner rather in the said order it has been decided that candidates who have been declared selected in the first merit list and even if there is difference of height after re-measurement, his candidature may be considered. Therefore, according to learned counsel for the writ petitioner, the respondents did not comply with the direction of this Court as given in W.P.(S) No. 4253 of 2007. 5. Be that as it may be, when petitioner approached this Court by filing another writ petition being W.P.(S) No. 1579 of 2008, the learned Single Judge on the basis of stand taken by respondents that petitioner's height in the 'Master Chart' has been wrongly recorded as 181.5 and because of that reason he was declared successful dismissed the writ petition vide order dated 28th April, 2011. Hence, this L.P.A. 6. During course of argument, one question came up for consideration that whether marks can be awarded according to the height of the candidates, which is not depend upon the eligibility, quality and efforts of the candidates. Therefore, the petitioner-appellant was permitted to challenge the allocation of marks on the basis of height. 7. Learned counsel for the appellant submitted that firstly the Division Bench of this Court in the case of Krishnaji & Others directed to give appointment to the candidates, other than 932 candidates who were found involved in malpractice. Then learned Single Judge also in another writ petition being W.P.(S) No. 4153 vide order dated 28th August, 2007 give direction to decide the case of the petitioner but the respondents did not decide the matter. Then learned Single Judge also in another writ petition being W.P.(S) No. 4153 vide order dated 28th August, 2007 give direction to decide the case of the petitioner but the respondents did not decide the matter. Learned counsel for the writ petitioner-appellant also submitted that the in the copy of the 'Master Chart', which has been submitted by the respondent-State before the Single Bench also (original chart was called by us and has been perused by Court as well as by learned counsel for the writ petitioner-appellant) columns are left blank and according to him some of the candidates who did not even appear, they were given appointment. Learned counsel for the appellant also press the point of validity of prescribing the marks according to height of the candidates and submitted that the eligibility criteria can be fixed by the employer and in that process can prescribe the minimum height for a candidate awarding of the marks according to the height of the candidates is absolutely illegal and this is giving benefit to the persons without any rational and without any object to be achieved. It is further submitted that anyone can improve his quality and qualification but cannot increase his height. Once one is eligible on the basis of height then his appointment cannot be denied on the basis of more height or less height, as compared to height of other person. 8. Learned counsel for the State has shown us the original application form submitted by writ petitioner wherein his height has been shown as 172.5 c.m. Learned counsel for the State has also shown us 'Master chart' wherein petitioner height has been recorded as 181.5 c.m. It is submitted that on the basis of petitioner's educational qualification, he secured 9 marks and if his height is taken as 172.5, the total marks comes to 16. It is further submitted that appointment was given to the candidates who secured 19 marks. It is submitted that because of the wrong height entered in the 'Master chart', he was given more marks and, therefore, he was selected. This mistake was corrected before giving appointment. It is submitted that the order dated 29th September, 2007 is therefore, passed on facts and is legal. Learned counsel for the State also justified the prescription of the marks according to the height, which is provided in the relevant provisions. 9. This mistake was corrected before giving appointment. It is submitted that the order dated 29th September, 2007 is therefore, passed on facts and is legal. Learned counsel for the State also justified the prescription of the marks according to the height, which is provided in the relevant provisions. 9. We considered the submission of learned counsel for the parties and perused the facts of the case. We may make it clear that after the Division Bench judgment delivered in the case of Krishnaji & Others, some writ petitions were filed wherein orders were passed directing the respondents to give appointment then the respondent tried to deny the appointment only on the basis of the report which was already in Krishnaji & Others case. Subsequent to that in one of the matters when the petitioner was denied appointment on the basis of a fresh enquiry and finding that the petitioner was also involved in the manipulation his appointment was denied by the Division Bench of this Court (by us) upon finding the true facts. Here, in W.P.(S) No. 4153 of 2007, the petitioner was directed to submit a representation before the authorities. The petitioner thereafter submitted representation which was considered in order dated 29th September, 2007 passed by Superintendent of Police, Hazaribagh. A bare perusal of the order show that the petitioner's case was considered and finding was recorded that he has shown his height as 173 c.m. (whereas after perusal of the original application we find that petitioner has shown his height in the application form as 5.9” i.e.,172.5 c.m). However, such mistake makes no difference. When the petitioner was physically examined his height was found 172 c.m. The petitioner is not disputing his height. However, in 'Master chart', original of which we have seen, the petitioner's height has been shown as 181.5 c.m and because of that reason petitioner has been awarded more marks and, therefore, he was shown as candidate selected. If the petitioner's height was taken as 172 or 172.5 or 173 c.m, he can get only 7 marks and petitioner was awarded 9 marks for his educational qualification i.e., total 16 marks and, therefore, the petitioner was denied appointment. If the petitioner's height was taken as 172 or 172.5 or 173 c.m, he can get only 7 marks and petitioner was awarded 9 marks for his educational qualification i.e., total 16 marks and, therefore, the petitioner was denied appointment. It appears from the last lines mentioned in the order that some confusion may have cropped up because of the reason that in last lines, it has been said that the height of the candidates may be re-measured and the persons whose height is found to be in the 'Master chart' and comes in the merit list, their merit list may be prepared. It appears that taking lesson from the actual fact position of the petitioner's case, wherein candidates height was found to be wrongly recorded in the 'Master chart' a decision may have been taken for other persons. Since the finding of fact recorded in the order dated 29th September, 2007 is not disputed with respect to difference of height recorded in the chart and actual height of the writ petitioner, we are of the considered opinion that there is no dispute with respect to height of the petitioner-appellant. So far as validity of the rule prescribing the marks according to height of the candidates is concerned in present circumstance of the case, we are not inclined to examine this issue because of simple reason that petitioner took advantage of his height because of getting marks according to his height but when he has been declared disqualified because of lesser height then the petitioner wants to question the validity of the order, which is impermissible. It is also relevant to mention here that the petitioner did not choose to challenge the prescription of height even in his writ petition, which was filed earlier i.e., W.P.(S) No. 4153 of 2007. Even petitioner did not challenge the award of the marks according to height in the writ petition and he sought direction of this court of taking the issue in L.P.A. It is ample clear from the advertisement itself that everything was made clear to the candidates that the marks obtained shall be for judging the 'eligibility' and not the 'suitability'. 10. Therefore, in view of the above reasons, leaving the question of the award of the marks according to height open, this L.P.A is dismissed. 11. 10. Therefore, in view of the above reasons, leaving the question of the award of the marks according to height open, this L.P.A is dismissed. 11. Learned counsel for the petitioner submitted that the petitioner's original documents are lying with the respondent department, if it is so, the respondents may hand over the original documents to the petitioner by keeping the photocopy of the document with them.