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Sunday, September 14, 2014

Service matter - Minimum Height - Police Selections - Height qualified - but rejected post on the ground that Tallest persons were given chance - Apex court held that In our opinion, once a candidate has the minimum height as required by the relevant Rules, height then becomes an irrelevant consideration and other criteria should be taken into consideration, like intelligence, physical strength, etc. In this case, the selection amongst those who had the minimum height was done by only selecting the tallest candidates for the available vacancies. We are of the opinion that this was wholly arbitrary, and police constables must also have intelligence and other requirements, apart from height. and allowed the appeal with a direction to give post in fresh vacancies = CIVIL APPEAL NO. 8450 of 2014 [ Arising out of Special Leave Petition (C) No.15194 of 2006 ] ABHAY KUMAR SINGH & ORS. ….. APPELLANTS VERSUS STATE OF BIHAR & ORS. ….. RESPONDENTS = 2014 - Sept. Month - http://judis.nic.in/supremecourt/filename=41906

    Service matter - Minimum Height - Police Selections - Height qualified - but rejected post on the ground that Tallest persons were given chance - Apex court held that In our opinion, once a candidate has the minimum height as required  by  the relevant Rules, height then becomes an irrelevant  consideration  and  other criteria should be taken into  consideration,  like  intelligence,  physical strength, etc.  In this case,  the  selection  amongst  those  who  had  the minimum height was done by only selecting the  tallest  candidates  for  the available vacancies.  We are of the opinion that this was wholly  arbitrary, and police constables must also have intelligence  and  other  requirements, apart from height. and allowed the appeal with a direction to give post in fresh vacancies = 

  “The dispute relates to the selection of constables in the State  of  Bihar.
The minimum height requirement was 1.65 cms. for general candidates and  160
cms.  for scheduled castes candidates.   Admittedly,  the  petitioners  were
above that minimum height.   However,  it  seems  that  they  were  rejected
because the procedure adopted by the respondents was  that  height  was  the
sole  criterion  for  selection,  which,  in  our  view,  is  arbitrary  and
violative of Article 14 of the Constitution of India.=
In our opinion, once a candidate has the minimum height as required  by  the
relevant Rules, height then becomes an irrelevant  consideration  and  other
criteria should be taken into  consideration,  like  intelligence,  physical
strength, etc.  In this case,  the  selection  amongst  those  who  had  the
minimum height was done by only selecting the  tallest  candidates  for  the
available vacancies.  We are of the opinion that this was wholly  arbitrary,
and police constables must also have intelligence  and  other  requirements,
apart from height.

To give an example, supposing there are twenty vacancies and 100  candidates
have the minimum height as required by the Rules, in such a  situation,  the
selection authority, in our  opinion,  cannot  validly  select  the  tallest
twenty mong these 100 candidates.=

We have given due consideration to the rival submissions.
It  remains
undisputed that the allegation of manipulation was duly enquired into and  a
finding was recorded against the appellants.
 Irrespective of  the  question
whether the criteria adopted in making the selection on the  basis  of  more
height of candidates was valid, the fact remains that  the  appellants  were
held to have manipulated and got their height  wrongly  recorded  more  than
their  actual  height.   
At  the  same  time,  responsibility  for   correct
recording of the height was of the Department and after the appellants  were
duly selected and appointed, and were  in  service  for  four  years,  their
termination, in facts and circumstances,  would  be  too  harsh.
 In  these
circumstances while we are not inclined to  reinstate  the  appellants  with
back wages and continuity of service,  we  direct  that  the  appellants  be
given fresh appointment as constables  against  available  vacancies  within
three months from the date of receipt of a copy of this order.
13.   The appeal is allowed in above terms.  There will be no  order  as  to
costs.


2014 - Sept. Month - http://judis.nic.in/supremecourt/filename=41906
                                                            REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL NO. 8450 of 2014
       [ Arising out of Special Leave Petition (C) No.15194 of 2006 ]


ABHAY KUMAR SINGH & ORS.                                ….. APPELLANTS

VERSUS

STATE   OF   BIHAR   &    ORS.                                           …..
RESPONDENTS


                               J U D G M E N T

ADARSH KUMAR GOEL, J.
Leave granted.
This matter has been placed before us in view of the
dis-agreement by a Bench of Two Judges with the earlier order of this  Court
on the question whether  the  height  can  be  the  sole  criteria  for  the
selection  of  a  police  constable.   Order  dated  17th  February,   2009,
referring the matter to a larger Bench, reads as follows:-
“The dispute relates to the selection of constables in the State  of  Bihar.
The minimum height requirement was 1.65 cms. for general candidates and  160
cms.  for scheduled castes candidates.   Admittedly,  the  petitioners  were
above that minimum height.   However,  it  seems  that  they  were  rejected
because the procedure adopted by the respondents was  that  height  was  the
sole  criterion  for  selection,  which,  in  our  view,  is  arbitrary  and
violative of Article 14 of the Constitution of India.


In our opinion, once a candidate has the minimum height as required  by  the
relevant Rules, height then becomes an irrelevant  consideration  and  other
criteria should be taken into  consideration,  like  intelligence,  physical
strength, etc.  In this case,  the  selection  amongst  those  who  had  the
minimum height was done by only selecting the  tallest  candidates  for  the
available vacancies.  We are of the opinion that this was wholly  arbitrary,
and police constables must also have intelligence  and  other  requirements,
apart from height.

To give an example, supposing there are twenty vacancies and 100  candidates
have the minimum height as required by the Rules, in such a  situation,  the
selection authority, in our  opinion,  cannot  validly  select  the  tallest
twenty mong these 100 candidates.

Learned counsel for the respondents, however, invited  our  attention  to  a
judgment passed by a Division Bench of this Court in the case  of  State  of
Bihar & Ors. vs. Mal Babu Sharma (Civil Appeal No.2711 of 2002  arising  out
of S.L.P. ( C) No.21688 of 2001) in which the contention  of  the  State  of
Bihar has been accepted.  We respectfully cannot agree with the  view  taken
by the Division Bench and hence, we refer this matter to a larger  Bench  to
be nominated by the Hon’ble Chief Justice.”

 The appellants applied for the  posts  of  constables  in  response  to  an
advertisement dated 27th October, 1998, and were selected on  the  basis  of
their height being more than the height of the last  candidate  selected  in
the respective categories i.e. general, backward and  Schedule  Castes.   It
later came to light  that  their  height  was  not  accurately  recorded  on
account of manipulation and on re-measurement their height was found  to  be
less than the height of the last person  selected.   On  that  basis,  after
enquiry, they were dismissed from service  vide  order  dated  25th  August,
2003.  They approached the High Court by way of a Writ Petition.  While  the
learned Single Judge allowed the Writ  Petition,  the  Division  Bench  held
against them and observed as under:-
“……..If by resorting to wrong  practices  the  writ  petitioners  got  their
height wrongly measured and entered in the  official  records,  they  cannot
subsequently defend their selection only on  the  basis  that  their  actual
height even after detection of fraud is equal to or more  than  the  minimum
eligibility criteria governing height.   Petitioners  were  terminated  from
service not on the ground that they did not possess the  minimum  stipulated
height as given in the advertisement or in the rules but on the ground  that
they succeeded in selection process by wrong measurement and  wrong  entries
in respect of their heights.  The other issue that  the  impugned  order  or
the enquiry does not contain ample materials to lay  down  a  foundation  of
fraud and forgery does not merit serious consideration in view of  the  fact
that the controversy related only to the measurement  of  the  height  which
could be easily be re-checked and verified by a reliable authority  who  was
not involved with the initial selection process.   That  having  been  done,
there is no  scope  to  hold  that  petitioners  are  not  beneficiaries  of
fraud………”

On an earlier occasion in State of Bihar & Ors. vs. Mal Babu  Sharma  [Civil
Appeal No.2711 of 2002] decided on  15.4.2002,  this  Court  considered  the
issue whether a candidate having requisite minimum height  could  be  denied
appointment on the ground that other candidate  had  more  height.   It  was
held that if candidates with more  height  are  available,  candidates  with
lesser height could be rejected even  if  they  had  the  requisite  minimum
height.  It was observed as under:-
“……..It has been categorically averred by the State that no person has  been
appointed as a Constable whose  height  is  less  than  171.5  cm.  and  the
respondent having been found to be height of 168 cm.  could  not  have  been
appointed.  The assertion has not been refuted by the respondent,  though  a
counter affidavit has been filed.   It  is  not  a  case  of  arbitrary  re-
determination of height, but actually a  check  on  impersonation.   In  the
aforesaid premises, we  are  of  the  considered  opinion  that  High  Court
committed error in issuing a Mandamus for appointment of the  respondent  as
a Constable……..”

When this matter earlier came up for hearing before a Bench of  Two  Judges,
the Bench dis-agreed with the view taken above.  It was observed  that  once
the candidate  had  the  minimum  height,  more  height  was  an  irrelevant
consideration and the view earlier taken could not be accepted  as  correct.
Accordingly, the matter has been placed before this Bench, on reference.
On the last date when the matter came up for consideration,  the  Court  was
informed that the Recruitment Rules have been revised and were  proposed  to
be placed on record. The revised Rules have been  placed  on  record.   Rule
663 (b) of the Bihar Police Manual, 1978 read with Bihar Police  Act,  2007,
dealing with the selection of constables  to  the  Bihar  Police,  has  been
substituted by new Appendix 103 which provides for preparation  of  a  merit
list on the basis of written examination.  The selected candidates  have  to
appear for a physical test/measurement which is mandatory, but no marks  are
given on that basis.
The above development shows that the State itself  was  not  satisfied  that
the height should be the sole criteria, for selection out of the  candidates
who  fulfilled  the  requirement  of  the  prescribed  height.    Thus,  the
question whether height alone should be a  criteria  for  selection  out  of
candidates who  had  the  prescribed  height  has  been  rendered  academic.
Learned counsel for both the  parties  state  that  in  such  circumstances,
height cannot be the sole criteria.
7.    Only question for consideration is whether the appellants who had  the
prescribed height, but may not have  the  higher  height  as  got  recorded,
could have been terminated from service.
8.    On behalf of the appellants, Interlocutory Application  No.3  of  2014
has been filed to the effect that one of the  similarly  placed  candidates,
namely, Brij Kishore Ram made a representation to the DGP, State  of  Bihar,
which was accepted on  24th  November,  2011  and  he  was  reinstated  into
service with the following observations:-
“……Nowhere in the departmental enquiry any aspect have been  reflected  with
in connection to fraudulence.  I do not find any  foundation  for  dismissal
from service.  I find this order ab-Initio wrong.  Therefore, the  following
order is being passed:-

The order of dismissal is set aside.
He is re-instated into service from the date of dismissal and  it  shall  be
presumed that no dismissal has taken place.  Accordingly his service  period
shall be counted.”

      We have heard learned counsel for the parties.
10.   The learned counsel for the  appellants  submitted  that  having  been
duly selected and being not responsible for any error in  wrongly  recording
the height, termination of services of the appellants after  four  years  of
service was arbitrary.   It is pointed out that no  action  has  been  taken
against officials who wrongly recorded the height.  Even if  the  appellants
allegedly got their height wrongly recorded, termination of  their  services
was too harsh.  They ought to be given opportunity  to  serve  even  without
benefit of past service.  The view taken by the  learned  Single  Judge  was
wrongly reversed by the Division Bench when a similarly placed employee  was
reinstated by the department itself.

11.   On the other hand, the learned counsel for  the  State  supported  the
view taken by the Division Bench and submitted that  for  future  the  Rules
have been revised, but the impugned order of termination of services of  the
appellants remains unaffected and they were guilty of  manipulation  in  the
recording of their height, but for which they could not have been given  the
appointment.  It was submitted that the order of termination  was  justified
and was passed eleven years ago.  If the appellants are reinstated  at  this
stage, with the continuity of  service,  they  will  be  eligible  to  claim
seniority without the  requisite  experience  which  is  necessary  for  the
higher posts in service.


12.   We have given due consideration to the rival submissions.  It  remains
undisputed that the allegation of manipulation was duly enquired into and  a
finding was recorded against the appellants.  Irrespective of  the  question
whether the criteria adopted in making the selection on the  basis  of  more
height of candidates was valid, the fact remains that  the  appellants  were
held to have manipulated and got their height  wrongly  recorded  more  than
their  actual  height.   At  the  same  time,  responsibility  for   correct
recording of the height was of the Department and after the appellants  were
duly selected and appointed, and were  in  service  for  four  years,  their
termination, in facts and circumstances,  would  be  too  harsh.   In  these
circumstances while we are not inclined to  reinstate  the  appellants  with
back wages and continuity of service,  we  direct  that  the  appellants  be
given fresh appointment as constables  against  available  vacancies  within
three months from the date of receipt of a copy of this order.
13.   The appeal is allowed in above terms.  There will be no  order  as  to
costs.

                                                            ….…………………………….J.
                                                                 T.S. THAKUR

                                                           ….……………………………..J.
                                                           ADARSH KUMAR GOEL

                                                           .………………………………..J.
NEW DELHI                                                 R. BANUMATHI
September 2, 2014
 ITEM NO.1A-For Judgment     COURT NO.14               SECTION XVI

               S U P R E M E  C O U R T  O F  I N D I A
                       RECORD OF PROCEEDINGS

                        CIVIL APPEAL NO. 8450 of 2014
       [ Arising out of Special Leave Petition (C) No.15194 of 2006 ]


      ABHAY KUMAR SINGH & ORS.                          ….. APPELLANTS

                 VERSUS

      STATE OF BIHAR & ORS.                            ….. RESPONDENTS


Date : 02/09/2014 This appeal was called on for judgment today.


For Petitioner(s)
                     Ms. Aparna Jha,Adv.

For Respondent(s)
                     Mr. Gopal Singh,Adv.


      Hon'ble Mr. Justice Adarsh Kumar Goel pronounced the judgment  of  the
Bench comprising of Hon'ble  Mr.  Justice  T.S.  Thakur,  His  Lordship  and
Hon'ble Mrs. Justice R.Banumathi.
      Leave granted.
      The appeal is allowed in terms of the signed judgment.

    (VINOD KUMAR)                               (MALA KUMARI SHARMA)
      COURT MASTER                                COURT MASTER
            (Signed Reportable Judgment is placed on the file)

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