Partly allowed

Prateek Kumar and 3 Others v. State of U.P. and 3 Others

Allahabad HC25 Feb 2020WRIA/1364/2020

Case brief

AI extract

What is this about?

In a writ petition concerning physical standard verification for police recruitment, the High Court directed a re-measurement of height for disqualified candidates. Relying on the Medical Board's report, the court allowed one petitioner whose height was found to be 168.9 cm, while dismissing the petitions of others found below the 168 cm limit.

What did the court decide?

Directing the Chairman/Secretary, U.P. Police Recruitment and Promotion Board to consider the petition of Petitioner No. 3 for appointment within four weeks based on the Medical Board's report finding

Prateek Kumar and 3 Others Vs State of… — Pension and Retirement Benefits | Allahabad HC (2020)

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Court No. - 30

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Case :- WRIT - A No. - 1364 of 2020

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Petitioner :- Prateek Kumar And 3 Others Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Abhay Pratap Singh Counsel for Respondent :- C.S.C.

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Hon'ble Pankaj Bhatia,J.

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Heard learned counsel for the petitioners and learned Standing Counsel for the Staterespondents.

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The present petition has been filed alleging that the petitioners appeared in the Physical Standard Verification Test and were disqualified stating that the height of the petitioners was less than prescribed minimum height of 168 cm. The petitioners preferred their objections on the same day in terms of Rule 15(3) (gha) of Uttar Pradesh Constable and Head Constable Service Rules, 2017, however, no orders were passed thereupon as such the petitioners approached this Court alleging that the height of the petitioners is more than the prescribed minimum height of 168 cm and they have been wrongly deprived of their rights to participate in the Physical Examination Test and also to be considered for appointment.

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This Court, vide its order dated 27.1.2020, had directed the height of the petitioners to be verified by a Medical Board comprising of three Senior Doctors in the presence of the representative of the Senior Superintendent of Police.

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The Chief Medical Officer, Bulandshahar has

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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 and is taken on record.

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A perusal of the report makes it clear that the height of petitioner no. 3 has been found to be 168.9 cm whereas the height of petitioners no. 1, 2 and 4 have been found to be less than 168 cm which is the qualifying height. Thus, the petition, on behalf of petitioners no. 1, 2 and 4, stands dismissed.

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The Standing Counsel has placed reliance on a judgement 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:

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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.

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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

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with rules prescribed for promotion.

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23. At this juncture, we have been apprised 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.

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The judgement 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 judgement 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.

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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 even the objections filed by the petitioners were not disposed off as such the petitioners approached this Court disputing and alleging that the height of the petitioners was above the prescribed minimum height and they based their claim on the

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certificates as annexed in different writ petitions and in one case a certificate issued by the recruitment agency pertaining to different recruitment.

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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.

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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.

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Thus, the submission of the Standing Counsel is based upon the judgement 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 nonsuited on account of their height being less than the prescribed minimum height. It is no doubt true that the Physical Examination Test cannot be ordered as a routine, however, in the present case, no orders were passed indicating as to what what the height determined in respect of the petitioners in the Physical Verification Test and further no orders have been passed on the

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representation/objections filed by the petitioners on the same very day as such the petitioners exercised their rights of approaching this Court and the Court thus exercised its power in ordering a Physical Verification Test by three Member Committee. Thus, the submission of Standing Counsel placing reliance on the judgement of State of U.P. and others vs. Pankaj Kumar Vishnoi (supra) cannot be accepted in view of the facts of the present case.

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The next judgement 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, 2017 (hereinafter referred to as the 'Rules 2017') 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 remeasurement of height.

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I am of the view that that the said judgement cannot be relied upon in the facts of the present case, as admittedly, no orders were passed holding that the petitioner did not have the requisite height and no orders were passed on the remedy availed by the petitioner as provided under Rule 15(3)(gha) of the Rules 2017, as such, I am not impressed by the said arguments also.

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Thus, the only evidence available on the records is the report submitted by the Chief Medical Officer, Bulandshahar which indicates that the height of the petitioner no. 3 is above the minimum prescribed height of 168 cm and there is nothing on record to disbelieve the same as the same has been conducted by three Senior members in the presence of representative of the Senior Superintendent of Police and, consequently, on the basis of the reports submitted by the Chief Medical Officer, Bulandshahar, directions are issued to the Chairman/Secretary, U.P. Police Recruitment and Promotion Board, Lucknow, (respondent no. 2) to consider the case of the petitioner no. 3 i.e. Rupendra, son of Shri Nepal, for appointment because his height is above 168 cm subject to the petitioner no. 3 fulfilling of other criteria. The said exercise is to be completed by the respondent no. 2, as expeditiously as possible, preferably within a period of four weeks from today.

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Office is directed to supply a copy of the report to the Standing Counsel without payment of usual charges.

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So far as petitioners no. 1, 2 and 4 are concerned, the writ petition is dismissed and the petitioner no. 3 is concerned, the writ petition is disposed off in terms of the order passed above.

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Order Date :- 25.2.2020 Puspendra

Prateek Kumar and 3 Others v. State of U.P. and 3 Others

Case brief

What is this about?

What did the court decide?

Prateek Kumar and 3 Others v. State of U.P. and 3 Others

Case brief

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What did the court decide?

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