Kunja Mahan Barman Son of Munikanta Barman v. Union of India
2017-08-10
NELSON SAILO
body2017
DigiLaw.ai
JUDGMENT AND ORDER : 1. Heard Mr. MG Singh, the learned counsel for the petitioner and Mr. SK Medhi, the learned CGC appearing for all the respondents. 2. The controversy in the instant case may briefly be stated. The petitioner responded to the Advertisement issued by the respondent authorities for the post of Constable (GD) in the Central Industrial Security Force (CISF). The said Advertisement was issued by the Staff Selection Commission on 3.12.2011 (Annexure-C). The petitioner responded to the Advertisement by submitting his application and after the Physical Efficiency Test (PET) was conducted, the petitioner was offered provisional appointment vide letter dated 8.10.2013 (Annexure-F). 3. It may be noticed herein that the petitioner was found to be 165 cm in height during the PET, but, however, when he joined for the training, pursuant to the provisional appointment given to him on 8.10.2013, the petitioner had to undergo another medical test, wherein he was found to be 163.5 cm. The medical examination report was made in the prescribed format wherein at note No. 2, it is provided that height should not be the basis for disqualification as the same has been measured at the time of the PST. The petitioner was however examined again by the Board of officers constituted for re-measurement of physical standard in respect of three trainees including the writ petitioner and the Board came to the finding that the petitioner measured 163.2 cm only. Consequently, the petitioner on being found to be unfit on account of less height, his provisional appointment was cancelled and withdrawn with immediate effect by the impugned communication dated 7.11.2013 (Annexure-I). 4. Against the said order, the petitioner submitted a representation dated NIL (Annexure-J) before the Inspector General, CISF, North Eastern Headquarter to consider his case sympathetically and to allow him to join back into the basic training. In the said representation, it may be noticed that the petitioner has stated that according to his information, candidates belonging to the North Eastern States were required to have the height of 162.5 cm and not 165 cm and therefore, to his understanding, he met the requirement of the height of 162.5 cm to be eligible for the post of Constable (GD) in the CISF. The said representation having not been considered, the petitioner is before this Court. 5. Appearing for the writ petitioner, Mr.
The said representation having not been considered, the petitioner is before this Court. 5. Appearing for the writ petitioner, Mr. MG Singh submits that the petitioner in fact was found to be 165 cm in height at the time of the PET and therefore, he could not have been found to be short of 165 cms on being re-measured after joining the training. He also submits that the medical examination report upon joining the training also clearly provided that since height was measured at the time of PET, the same should not be the basis for disqualification. He further submits that the Board constituted for re-measurement of the petitioner’s height along with others did not comprise of any medical officers as members and therefore, the findings of the Board cannot be acted upon to deny appointment to the writ petitioner. He therefore submits that the height of the petitioner may be directed to be re-measured by at least two doctor medical officers, one of which may be a medical officer working in the State Government. He further submits that although it is not on record but the fact is that the petitioner was measured to be 165 cm when he had applied for a post in a different organization. He also submits that the medical officer of the Bongaigaon Civil Hospital duly certified him to be the height of 165 cm. He thus submits that a suitable direction be issued for re-measurement of the petitioner’s height by a team constituted by this Court. 6. Mr. SK Medhi, the learned CGC appearing for the respondents submits that the measurement of height taken during the PET is not the final measurement. In fact there are standing instructions and guidelines under which candidates who have been recruited are to be re-measured again even after PET if they are found to have deficiency in height or on other aspects. He submits that offer of appointment was not only a provisional one but a conditional one in as much as the terms and conditions more particularly at clause (xii) of the offer of appointment dated 8.10.2013 provides that if a candidate is found not to meet any of the criteria laid down by recruitment in any segment including physical and medical standard and when there are material evidence to show that he does not conform to the standard, the appointment is liable to be terminated.
He therefore submits that the petitioner clearly accepted the provisional appointment on the said condition amongst others and therefore the petitioner cannot have any legitimate grievance. 7. Mr. SK Medhi further refers to the Circular dated 1.11.1993 (Annexure-3 of the counter-affidavit) to contend that re-measurement of physical standard is permissible and accordingly the petitioner on being found not to conform to the physical standard was re-measured. He further refers to the Circular dated 1.11.2013 (Annexure-7 of the counter affidavit) which also provides that a Board of Officers is to be detailed by the concerned Deputy Inspector General of the Force to re-measure the candidate’ height amongst others if such candidate is found to be below the required parameter. Mr. SK Medhi therefore submits that the circular does not necessarily provide that the Board members should compromise of Medical Officers. Therefore, a Board was duly constituted on 4.11.2013 which took proper measurement of the petitioner along with others wherein the petitioner was found to be only 162.3 cm in height. In such eventuality, the petitioner had to be released from service and therefore the writ petition being without any merit should be dismissed. 8. I have considered the rival submissions advanced by the parties and I have also perused the materials available on record. The fact that has emerged is that the petitioner was found to be 165 cm when he was measured at the PET and thereafter when he joined the training, he was measured as 163.5 cms in height and lastly when the Board was constituted, the petitioner was found to be 163.2 cms. So far as the guideline for taking such re-measurement is concerned, the same has clearly been provided in the Circular dated 1.11.1993 as well as in the Circular dated 1.11.2013 respectively. The petitioner has not challenged the circulars and therefore, there is no dispute as regards the permissibility of having re-verification of the height even if the candidate is given provisional appointment to undergo the training. What remains to be seen is that the petitioner on being measured on three counts was given three separate measurements i.e 165 cm, 163.5 cm and 163.2 cm. It is only for this reason that I am of the considered opinion that the height of the writ petitioner should be re-measured and re-determined by an authority constituted by this Court. 9.
It is only for this reason that I am of the considered opinion that the height of the writ petitioner should be re-measured and re-determined by an authority constituted by this Court. 9. Having opined thus, it is hereby provided that the Chief Principal-cum- Superintendent of Gauhati Medical College and Hospital shall be one such authority and the other authority i.e. the Director of Medical, Central Industrial Security Force shall be the other member. The Director, Medical of CISF shall co-ordinate with the Principal-cum-Superintendent of Gauhati Medical College and Hospital and fix a date for the appearance of the petitioner with due intimation to him and shall thereafter examine his height within a period of 6(six) weeks from the date of receipt of a certified copy of this order. 10. On such examination, if the petitioner is found to fulfill the 165 cm in height, the respondent authority shall allow him to resume his training. However, it is also made clear that if he is found to be below 165 cm in height, the order of cancellation of his appointment dated 7.11.2013 shall prevail. 11. With the above observation and direction, the writ petition stands allowed. No costs.