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2020 DIGILAW 605 (ALL)

Yogendra Kumar v. State of U. P.

2020-02-25

PANKAJ BHATIA

body2020
ORDER : Pankaj Bhatia, J. 1. Heard learned counsel for the petitioner and learned Standing Counsel for the State-respondents. 2. The report sent by Chief Medical Officer, Bulandshahar, is taken on record. 3. This Court, vide its order dated 27.1.2020, had directed to constitute a Medical Board comprising of three Senior Doctors to give its report with regard to the actual height of the petitioner. 4. The Chief Medical Officer, Bulandshahar has submitted a report in a sealed cover in terms of the directions issued by this Court. The sealed cover was opened in the Court and the contents were perused. 5. The said report states that in the presence of three Doctors and the Additional Superintendent of Police (Crime), Bulandshahar, the physical examination of the petitioner was carried out in respect of his height and he was found to be having height of 168.1 cm. The photographs showing the measurements of the heights have also been enclosed. 6. The Court is of the view that there is no reason to disbelieve the said report submitted by three Senior Medical Officers and conducted in the presence of Additional Superintendent of Police (Crime), Bulandshahar. 7. The Standing Counsel has placed reliance on a judgment of the Supreme Court in Civil Appeal Nos. 2366-2367 of 2011 (State of U.P. and others vs. Pankaj Kumar Vishnoi), decided on 25.7.2013 in Para No. 21, 22 and 23 which is reproduced hereinbelow to argue that in view of the observations made as quoted above, this Court cannot issue directions on the basis of the second physical standard test conducted in terms of the earlier order passed by this Court. Para 21, 22 and 23 are quoted as under: 21. It is accepted position that the respondent appeared in the test and could not qualify. Once he did not qualify in the physical test, the High Court could not have asked the department to give him an opportunity to hold another test to extend him the benefit of compassionate appointment on the post of Sub-Inspector solely on the ground that there has been efflux of time. The respondent after being disqualified in the physical test could not have claimed as a matter of right and demand for an appointment in respect of a particular post and the High Court could not have granted further opportunity after the crisis was over. 22. The respondent after being disqualified in the physical test could not have claimed as a matter of right and demand for an appointment in respect of a particular post and the High Court could not have granted further opportunity after the crisis was over. 22. In our considered opinion, the order passed by the Division Bench is wholly unsustainable and is hereby set aside. We may, however, hasten to add that it is open to the respondent to compete in the normal course if eligible for the post of Sub-Inspector for promotion in accordance with rules prescribed for promotion. 23. At this juncture, we have been appraised at the Bar that following the decision of the Division Bench which has been set aside in this appeal, in subsequent writ petitions and appeals the High Court has directed the Department to hold a second physical test and to keep the results in a sealed cover. As we have already opined that the second physical test could not have been directed to be held for the purpose of extending the benefit of compassionate appointment, the sealed covers need not be opened. Needless to say, the candidates therein are also entitled to compete for promotion in accordance with the rules. 8. The judgment of the Supreme Court arose from the request for appointment on compassionate grounds in which the petitioner, being a applicant failed in the physical examination test and was thus not offered appointment on compassionate grounds. Paragraph 21 of the judgment of the Supreme Court records that it is the accepted position that the respondent appeared in the test and could not qualify and on that basis the observations, as recorded above, were made by the Supreme Court. 9. I am afraid that the ratio laid down has no applicability to the facts of the present case, as in the present case, no orders have been passed non-suiting the petitioners on the ground their having failed the Physical Examination Test, only the petitioners were orally informed that they were non-suited on account of their height being less than the prescribed minimum height. The petitioner approached this Court disputing and alleging that the height of the petitioner was above the prescribed minimum height and they based their claim on the certificates as annexed in the writ petition issued by a Government Hospital. 10. The petitioner approached this Court disputing and alleging that the height of the petitioner was above the prescribed minimum height and they based their claim on the certificates as annexed in the writ petition issued by a Government Hospital. 10. In view of there being no stand of the State that the petitioners were non-suited on account of their height being less than the prescribed limit and the petitioners alleging that without passing any orders, the petitioners have been found non-suited and also claimed before this Court that their height was above the prescribed minimum height, this Court directed the Physical Examination Test to be carried out by the Chief Medical Officer, Bulandshahar by constituting a team of three Senior Doctors in the presence of the representatives of the Senior Superintendent of Police, Bulandshahar, the said order has not been challenged. 11. Thus, the submission of the Standing Counsel is based upon the judgment in the case of State of U.P. and others vs. Pankaj Kumar Vishnoi cannot be accepted as in the present case no orders have been passed holding that the petitioners were non suited on account of their height being less than the prescribed minimum height and there being nothing on record to demonstrate the evidence given by the petitioners in support of the averments that their height was above the prescribed minimum height. It is no doubt true that the Physical Examination Test cannot be ordered as a routine, however, when there is overwhelming evidence on record given by the statutory authorities with regard to the height of the applicants and there being no material on record by the State to indicate that the petitioners were non-suited on account of their height being less than the prescribed minimum limit. 12. I am afraid that the judgment of the Supreme Court cannot be applied to the facts of the present case. 13. 12. I am afraid that the judgment of the Supreme Court cannot be applied to the facts of the present case. 13. The next judgment cited by Standing Counsel is by the Single Judge of this Court in case of Om Pal Singh vs. State of U.P. Thru Principal Secretary, Home Lucknow & Others, passed in Service Single No. 1773 of 2020, decided on 31.1.2020 wherein the Court relied upon the provisions of Rule 15(3) gha of Uttar Pradesh Constable and Head Constable Service Rules, 2015 (hereinafter referred to as the 'Rules 2015') which provides for a forum for raising objection by the candidate, if he is not satisfied with the height of measurement, and in view of the said Rule, the Court refused to entertain the petitions for re-measurement of height. 14. I am of the view that the said judgment cannot be relied upon in the facts of the present case, as admittedly, no written communication/orders were passed and that the petitioner did file objection but was not received, thus, petitioner cannot be relegated to the alternative remedy at this stage. 15. Considering the fact that the Medical Team has measured the height of the petitioner and found height 168.1 cm, it is established that the petitioner has the requisite height for being considered for appointment. 16. In view of the said report, the Recruitment Board is directed to consider the candidature of the petitioner ignoring the objection of height and pass requisite orders subject to the petitioner having the requisite qualifications. To clarify the candidature of the petitioner shall not be non-suited on the ground of petitioner having height less than the prescribed height of 168.1 cm as the petitioner is measured to be having a height of 168.1 cm. 17. The Chairman/Secretary, U.P. Police Recruitment and Promotion Board, Lucknow (respondent No. 2) shall take the necessary steps in terms of the directions issued, expeditiously as possible, preferably within a period of four weeks from the date of production of a certified copy of this order. 18. Office is directed to supply a copy of the report to the Standing Counsel without payment of usual charges. 19. The writ petition is disposed off in terms of the order passed above.