PALANISAMY Vs SPL.TEHSILDAR .
Bench: T.S. THAKUR,ADARSH KUMAR GOEL,R. BANUMATHI
Case number: C.A. No.-008450-008450 / 2014
Diary number: 39245 / 2011
Advocates: P. SOMA SUNDARAM Vs
Page 1
1
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.
1. Leave granted.
2. 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
Page 2
2
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.”
3. 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:-
Page 3
3
“……..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……..”
Page 4
4
4. 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.
5. 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.
6. 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.
Page 5
5
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:-
1. The order of dismissal is set aside. 2. 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.”
9. 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
Page 6
6
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
Page 7
7
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
Page 8
8
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)