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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  

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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:-

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“……..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……..”

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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.

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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

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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

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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

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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)