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2017 DIGILAW 648 (JK)

Arshad Ahmed v. State

2017-08-17

B.S.WALIA

body2017
JUDGMENT : 1. Petitioners have filed the instant writ petition alleging that they belong to RBA category and that they had performed very well in the outdoor test, whereas respondent Nos. 5 to 8 failed in the physical/ outdoor test as none of them completed the same within time prescribed and in the aforementioned circumstances, petitioners were shocked, when on declaration of result, respondent Nos. 5 to 8 were reflected as having been selected and petitioners were shown as not having been selected. Subsequently, supplementary affidavit was filed alleging therein that the petitioners’ height was 5’.9”, where as respondent Nos. 5 to 8 had not been correctly measured and their height was lesser than the height of the petitioners. 2. Learned counsel for the petitioners contends that due to the official respondents taking the wrong height of the petitioners into account awarded lesser marks to the petitioners, whereas the petitioners were entitled to 12 marks on account of their height being 5’.9”. 3. In the objections to the writ petition, the official respondents have denied the stand of the petitioners of their height being 5’.9’’ and stated to be less than that. 4. The height recorded at the time of the selection is reiterated to be the correct height of the petitioners. The aforementioned position reflects disputed questions of fact. However, learned counsel for the petitioners vehemently argued that the only point which requires consideration is whether the height of the petitioners had been correct recorded by the official respondents or was, in fact, 5’.9” as asserted by them in the supplementary affidavit. 5. Admittedly, the plea of wrong measurement of height of the petitioners and respondent Nos. 5 to 8 has not been alleged in the writ petition. It is only by way of supplementary affidavit that the aforesaid plea has been raised. 6. Learned Sr. AAG has relied upon a decision of this Court in 2011 (2) SLJ 897 to contend that the supplementary affidavit cannot be filed to project new facts and fresh grounds of challenge by permitting the party to raise the issue not raised in the main pleadings by way of filing of supplementary affidavit. 7. Per contra, learned counsel for the petitioner states that the supplementary affidavit was filed prior to the filing of the objections and in view thereof, the judgment cited by learned Sr. 7. Per contra, learned counsel for the petitioner states that the supplementary affidavit was filed prior to the filing of the objections and in view thereof, the judgment cited by learned Sr. AAG is distinguishable since the official respondents have controverted the plea with regard to incorrect measurement of height of the petitioners as well as respondent Nos. 5 to 8. Be as it may, the fact remains that the issue with regard to the height which is now sought to be made the main bone of contention was not raised in the writ petition. There are assertions and counter assertions in respect thereto. However, in order to do justice, it would be appropriate to direct the official respondents to get the height of the petitioners re-measured from a medical board to be constituted be the Principal, Government Medical College Jammu subject to each of the petitioners depositing a sum of Rs.25000/- with the Registrar Judicial of this Court within one week with the clear understanding that in the eventuality of their assertion being found to be incorrect, the writ petition would be dismissed and the amount deposited by the petitioners shall be paid as costs to the official respondents. 8. List in the 1st week of September. Medical examination be got conducted before the said date and findings of the medical boarded be placed on record and copy be supplied to learned counsel for the petitioner in advance. The medical board is also requested to opine as to whether it is possible for the candidates to have gained height over the years. It is made clear that the medical examination would be got conducted by informing the learned counsel for the petitioners in writing at least three days prior to the date fixed for medical examination and it would be the responsibility of learned counsel for the petitioners to ensure presence of the petitioners for their medical examination on the date, time and place indicated. Needless to mention, official respondents shall take up the matter with the Principal, GMC to facilitate the medical examination of the petitioners from the medical board. As requested copy of the order be provided to learned Sr. AAG under the seal and signatures of Reader of this Court.