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)
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)
