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2015 DIGILAW 920 (JHR)

Ashok Kumar Das v. State of Jharkhand

2015-08-05

RONGON MUKHOPADHYAY

body2015
JUDGMENT RONGON MUKHOPADHYAY, J. 1. In the writ application, the petitioners have prayed for a direction upon the respondent to appoint the petitioners on the post of Constable as they come within the zone of consideration. 2. Pursuant to Advertisement No. 1 of 2004, both the petitioners had applied for being appointed to the post of Constable but although their names figured in the merit list no appointment letters were issued to them which has occasioned preferring the present writ application. 3. During the pendency of this writ application an order was passed on 06.10.2009 in which the appointing authority i.e. respondent No. 4 was directed to examine the contention of the petitioners and pass an appropriate reasoned order. In terms of the direction of this Court a reasoned order had been passed which has been brought on record in the counter affidavit filed on behalf of the petitioners by which the claim of the petitioners for being appointed as a police constable has been rejected vide letter as contained in Memo No. 1543 dated 05.05.2014. 4. Heard Dr. S.N. Pathak, learned senior counsel for the petitioners and Mr. D.K. Dubey, learned Senior S.C.-I for the respondents. 5. Dr. S.N. Pathak, learned senior counsel for the petitioners has submitted that initially the matter was examined by the Superintendent of Police, Koderma and on examination of the relevant documents, he had come to the conclusion that the petitioner No. 1 has received 15 marks whereas the petitioner No. 2 has received 14 marks and both of them comes within the zone of consideration. It has been submitted that in terms of the said letter of the Superintendent of Police, Koderma, the petitioners were directed to make themselves present before the Police Center, Hazaribagh. However, ignoring the earlier findings/directives of the Superintendent of Police, Koderma as well as the other high ranking officials an order was passed as contained in Memo No. 1543 dated 05.05.2014 by which on perusal of the Master Chart since the height of the petitioner was found to be .08 cm less than what had earlier been recorded by the Superintendent of Police, Koderma the marks obtained by the petitioner No. 1 on account of the height had been reduced from 8 to 7 marks. It has been submitted that since there is an apparent dispute with respect to the height of the petitioner as would appear from the letter issued by the Superintendent of Police, Koderma as well as the Superintendent of Police, Hazaribagh the best remedy available is to get the height of the petitioner no. 1 re-measured by Civil Surgeon-cum-Chief Medical Officer, Hazaribagh who is the competent authority in such circumstances. 6. Dr. Pathak, learned senior counsel for the petitioner has further referred to Rule 663 (c) of the Police Manual in order to contend that the Selection Board as well as the Dy. Inspector General of Police has the authority to give relaxation in height and if the same is exercised by the concerned authority since the difference in the height is miniscule the petitioner No. 1 would once again come within the zone of consideration for selection as a Constable. Learned senior counsel has further referred to an order passed by this Court in W.P. (S) No. 142 of 2012 in which since there was difference with respect to the height for selection the benefit of doubt was given to the petitioner of the said case. It has thus been submitted that since the difference is only .08 cm the petitioners deserve reconsideration either by the authorities or for getting his height re-measured by the Civil Surgeon. So far as the petitioner No. 2 is concerned, the learned senior counsel has reiterated that although the Superintendent of Police, Koderma in his letter had mentioned that the petitioner No. 2 having obtained 14 marks had come within the zone of consideration but the same has also been rejected on the ground that he was much below than the last selected candidate who has obtained 14 marks in his category on account of his date of birth. 7. Mr. 7. Mr. D.K. Dubey, learned Senior S.C. I, on the other hand, has referred to the counter affidavit filed on behalf of the respondent No. 4 and has submitted that Superintendent of Police, Hazaribagh after perusing the Master Chart has rightly detected that there was mistake in the height of the petitioner No. 1 which was mentioned in the letter of the Superintendent of Police, Koderma and on rectification of the same the petitioner No. 1 was granted 14 marks and on account of such marks the petitioner No. 1 had fallen 15 places lower in the merit list whereas the petitioner no. 2 has also fallen more than 24 places in the merit list. 8. Having regard to the contention made by the learned senior counsel for the petitioner an order was passed on 23.07.2015 wherein the State Counsel was directed to produce the Master Chart which contains the name and height of the petitioner No. 1. Pursuant to the said order the original Master Chart has been produced before this Court and from perusal of which it appears that the height of the petitioner has been measured as 169.02 cm. So far as the height of the petitioner No. 2 is concerned, the same has been measured as 170.00 cm. The Superintendent of Police, Koderma had on perusal of the Master Chart mentioned that the height of the petitioner No. 1 was found to be 169.02 cm whereas the height of the petitioner No. 2 was found to be 170.00 cm. No dispute has arisen with respect to the height of the petitioner No. 2 but with respect to the petitioner No. 1, a dispute has been sought to be projected in view of the conflicting recording of height in the letter of the Superintendent of Police, Koderma as well as the letter of Superintendent of Police, Hazaribagh. 169.2 cm in effect means 169.20 cm which is .18 cm more than 169.02 cm. There is an apparent difference between 169.20 cm and 169.02 cm. Such miniscule difference can lead to higher/lower marks for a candidate if the same is not properly looked into and appreciated. The letter of the Superintendent of Police, Hazaribagh dated 05.05.2014 reveals that the height recorded in the Master Chart had correctly been assessed and it has been mentioned as 169.02 cm. 9. Such miniscule difference can lead to higher/lower marks for a candidate if the same is not properly looked into and appreciated. The letter of the Superintendent of Police, Hazaribagh dated 05.05.2014 reveals that the height recorded in the Master Chart had correctly been assessed and it has been mentioned as 169.02 cm. 9. Since in the category of heights from 161 cm to 169.1 cm 7 marks are to be awarded and on awarding of 7 marks, the original marks obtained by the petitioner no. 1 gets reduced by 1 mark to 14 marks. In such circumstances the petitioner No. 1 had to be considered on the basis of 14 marks he had ultimately obtained on account of his educational qualification as well as his height. So far as the contention with respect to the 663(C) of the Police Manual is concerned, the same is a discretion which can be exercised either by the Selection Board or by the Dy. Inspector General of Police for giving relaxation in height. The discretion which is reflected in the said Rule has to be exercised by the authorities in given circumstance and has to be exercised cautiously and judiciously and the authorities cannot be compelled to use its discretion. So far as the judgment which has been referred by the learned senior counsel for the petitioner is concerned, there was a discrepancy in the height even after re-measurement and since ultimately the difference was reviewed to .1 cm the benefit of doubt was given to the petitioner of the said case. The admitted facts reveals from the Master Chart itself that the height of the petitioner was recorded as 169.02 cm and since there was no dispute with respect to the height so measured as the only discrepancy which had arisen was on account of wrong mentioning of the height in Master Chart by the Superintendent of Police, Koderma the judgment under reference is not applicable in the case of the petitioner. 10. Since, it has been categorically stated in the supplementary counter affidavit of the respondents that both the petitioners after having secured 14 marks on the basis of the date of birth had been put 15 places and 24 places respectively in the merit list below the last selected candidate in their category, there seems no illegality which has been committed by the respondents to cause interference in this writ application. 11. Accordingly, there being no merit in this writ application, the same is hereby, dismissed.