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2019 DIGILAW 1288 (RAJ)

Vikas v. State of Rajasthan

2019-05-01

ALOK SHARMA

body2019
ORDER : ALOK SHARMA, J. 1. The petitioner was selected in the recruitment for the post of Constable in District Jhunjhunu pursuant to the advertisement dated 14.7.2013. However in the select list despite his higher mark vis-a-vis others selected he was pushed down by resort to Rule 14(2)(iii) of the Rajasthan Police Subordinate Service Rules, 1989 (hereafter 'the Rules of 1989') on the ground that he did not have the requisite minimum height of 168 cms for male candidates as required under the Rules of 1989 but had passed the Physical Efficiency Test (PET) with relaxation inter alia allowed to a SC candidate under Rule 14(2)(iii) of the Rules of 1989. 2. The petitioner approached this Court by way of this petition, filed on 1.9.2015. Vide order dated 13.12.2016, this Court directed that the petitioner be examined on his height parameter, as required under the Rules of 1989 for appointment on the post of Constable, by a medical board of three doctors to be constituted by the Superintendent, SMS Medical College, Jaipur. The petitioner was then directed to appear before the Medical Board on 19.12.2016, and the report of his medical examination was to be furnished to this Court in sealed cover. 3. On the petitioner appearing before the medical board constituted by the Superintendent, SMS Medical College and Hospital, Jaipur on 19.12.2016, the petitioner was found by the Board to have a height of 168.5 cms. That report was communicated to the Court. 4. On the matter coming up before this Court on 5.4.2019 a copy of the medical board dated 19.12.2016 was directed to be furnished to Mr. Prakhar Gupta for Dr. V.B. Sharma, AAG and he was directed to take requisite instructions with the Court observing that "in the circumstances prima facie warrant the injustice to the petitioner being undone." 5. Mr. Harshal Tholia appearing before the Court today, submitted that no vacancy in the SC category in District Jhunjhunu for the post of Constable relatable to those advertised on 14.7.2013 on which the petitioner applied now is available as all the said posts have been filled up not in the least because there was no interim order passed by the Court in this petition. I am however afraid that the lack of a vacancy can be no obstruction to the petitioner's consideration for appointment on the post in the circumstances which are the making of the respondent-Police Department itself-where despite having the requisite minimum height of over 168 cms i.e. 168.5 cms the petitioner was arbitrarily found lacking the said height at the time the PET was held and passed without as much a request on his part only with aid of relaxation under Rule 14(2) of the Rules of 1989. That was a gross injustice to the petitioner by the respondent-Police Department as it entailed the petitioner being pushed down in the merit list with reference to the Rule 14(2)(iii) of the Rules of 1989 only for reason of which he was denied appointment and those otherwise less meritorious but found to have passed PET without relaxation appointed as Constable in District Jhunjhunu. The petitioner cannot in law and equity be allowed to suffer for a situation not of his making but of the respondent-Police Department. If it were to be that, it would entail an enunciation of law by this Court that a gross injustice with the lapse of time becomes un-remedial. The raison d'etre of justice would be lost and where an aggrieved party approaches the Court within reasonable time for vindication of his rights and the denial of right asserted, yet for reason of delays of the Courts process no doubt in large measure occasioned by a heavy docket, he would be denied relief. If this were to come to pass arbitrariness and injustice would be institutionalized and rule of law replaced by rule of man. That cannot be countenanced under the Constitution of India. It is fundamental to justice that when a right is found to be contravened it must be restored by court action. And I can see no insurmountable obstacle to that in this case. 6. In the circumstance, I would direct that, for reason of the supremacy of the rule of law and a just society, a supernumerary post of Constable in the SC category in the District Jhunjhunu be created. The petitioner's appointment on the said post be considered on his merit determined in the recruitment of Constables in 2013 on the basis of court's finding hereinabove. The petitioner's appointment on the said post be considered on his merit determined in the recruitment of Constables in 2013 on the basis of court's finding hereinabove. This be done within a period of four weeks from the date of presentation of a certified copy of this order. 7. The petition stands disposed of accordingly. 8. A copy of this order be furnished to Mr. Harshal Tholia for Dr. V.B. Sharma, AAG for onward transmission and compliance. He is directed to furnish a copy of this order to the I.G. (Recruitment), Rajasthan Police, the Director General of Police, Rajasthan and to Home Secretary, Government of Rajasthan for their information and necessary action.