Surinder Sharma vs Union Of India & Anr.
1999 Latest Caselaw 238 Del

ORDER

Usha Mehra, J.

1. Mr. Surender Sharma, petitioner herein was selected as Assistant Sub Inspector (Ministerial Staff), Central Reserve Police Force. He was selected after having passed the physical, written, typing, and medical tests as well as the interview. On his being selected he was asked to undergo two months training at Group Centre-I at Ajmer (Rajasthan). Petitioner accordingly proceeded for his training. Hardly six days were left for the completion of his training when he got movement order with direction to proceed to Delhi for re-examination. At Delhi instead of being re-examined he was handed over the notice of termination thereby terminating his services w.e.f. 4th October, 1991.

2. Aggrieved by that order the petitioner represented to the respondent to assign reasons for his termination. But no reasons were assigned. His termination was purported to be under Rule 5 of the Central Civil Services (Temporary Service) Rules, 1965.

3. Petitioner again made representation seeking reason for termination. However, when he personally went to the office of respondent the Clerical Staff informed him that his services have been terminated because he fell short by 1 cm. in height. He explained to the respondent that in the physical test held on 6th June,1991 he was found to be 1 cm. short. The competent authority, however, passed him in physical test with the remarks "under height but fit". It was despite these remarks that he was selected by the Competent Authority, and thereafter, sent for training. Hence, respondents are estopped from raising the issue of short height now. Nor on that basis could terminate the service of the petitioner.

4. Respondent in its reply have taken the plea that the petitioner was inadvertently selected an thereafter sent for training. He could not have enlisted in the force because he did not possess the prescribed physical standard. It was in this background that he was directed for re-examination at Delhi. In the absence of requisite physical standard the petitioner could not continue in force. His services were rightly terminated by invoking Rule 5 of Central Civil Service (Temporary Service) Rules. His fitness was not relevant in so far as the possession of physical standards was concerned.

5. We have heard Mr. Raman Kapur for the petitioner and Ms. Rekha Palli for the respondent. The point of controversy has become very narrow i.e. (1) whether the respondent after having selected the petitioner despite the remarks of the Competent Authority that he was "under height but fit" could terminate his services on that ground. Is the rule of estoppel applicable? Is the petitioner's case covered under Rule of Relaxation?

6. In order to answer the first question we must keep in mind that the factum of petitioner having no requisite height was known to the respondent. Petitioner at no stage suppressed or misstated this fact. Despite this fact having been known and having been brought on record through the remarks of the Competent Authority, the petitioner was selected. After selection he was sent for the training at Group Centre-I at Ajmer (Rajasthan).

7. When he received the movement order for re-examination at Delhi he had almost completed his training. Therefore, it does not lie for the respondent to contend that since petitioner lacked requisite physical standard hence his services were terminated. In similar circumstances, this Court in the case of Kanishka Aggarwal Vs. University of Delhi & Ors., observed that such an action of the respondent would be barred by estoppel because it had never been the case of the respondent that the petitioner obtained the admission in LL.B. Ist year by any fraudulent means. As per respondents own showing petitioner did not commit any fraud nor misrepresented.

8. The selection of the petitioner was according to respondent inadvertently made. This plea on the face of it cannot be sustained. The petitioner was medically examined by the Competent Authority of the respondent.

9. The Competent Authority after examining the petitioner passed the following remarks "under height but fit". The petitioner's selection was made despite these remarks, therefore, at this stage it does not lie in the mouth of the respondent to say that petitioner's appointment was made inadvertently. This case is covered by the principle of estoppel. Petitioner was interviewed and thereafter selected and sent for training which he almost completed. Therefore, having acquiescenced the respondent cannot turn around and say his selection was bad. As observed in Kanishka Aggarwal (supra) does the action of the respondent not constitute a representation.

10. What is all this if not requisite conduct. Was the petitioner not justified, under the circumstances, to raise the assumption that he had been validly selected and, therefore, sent for training. In fact the representation and the conduct of the respondent let the petitioner to believe that his job of Assistant Sub Inspector (Ministerial Staff) was now secured. If he had been right away rejected on the ground of deficiency in physical standard he could have looked out for other equally good job. He has now lost all his opportunities and the action of the respondent is, therefore, detrimental to his interest.

11. To support the case further reliance can also be placed on the decision of Supreme Court in the case of Ashok Chand Singhvi Vs. University of Jodhpur, . Apex Court was dealing with a case of admission to Engineering Degree Course. An objection was raised by the Officer Incharge that the student had secured less than 60% marks in diploma examination. Inspite of that objection considering all facts including the objection, admission was given. Subsequent order of the Dean directing that the student's admission was put in abeyance was challenged. The Apex Court set aside that order of keeping his admission in abeyance by applying the principle of estoppel.

12. Reliance can also be placed on the decision of Supreme Court in the case of A. Sudha Vs. University of Mysore & Anr., . The observations made by the Apex Court in the above case squarely apply to the facts of this case and in particular of the case of Ashok Chand Singhvi (supra) where also in spite of the objection by the Office Incharge admission was given. Subsequently on the basis of that very objection admission was kept in abeyance. Per the Supreme Court, it could not have been done because that student did not conceal the factum of his marks. Even otherwise Officer Incharge recorded the same. Despite that admission was given, and the student attended the classes. Hence, the Apex Court in those effect apply the principles of estoppel. In the case in hand also despite the remarks of the Competent Authority that petitioner was "under height but fit" taking all other facts into consideration the authority selected him. He was sent for training. He attended the training and almost completed the same. Hence the objection that he was short by 1 cm. in height cannot be sustained. The principle of estoppel clearly apply in the facts of this case.

13. In similar circumstances Supreme Court in the case of Shri Krishan Vs. The Kurukshetra University, Kurukshetra, observed that once the candidate is allowed to take the examination, rightly or wrongly, then the statute which empowers the University to withdraw the candidature of the applicant has worked itself out and the candidate cannot be refused admission subsequently for any infirmity which should have been looked into before giving the candidate permission to appear. Where a person on whom fraud is committed is in a position to discover the truth by due diligence, fraud is not proved. It is neither a case of suggestio falsi nor suppressio veri. In the case in hand also before the petitioner could be selected the remarks of the Competent Authority to the effect that he was "under height but fit" were recorded. Despite these remarks he was selected and sent for training. Therefore, it cannot be said that there was any fraud played by the petitioner.

14. Turning to the question whether respondent could terminate his services, answer will be in the negative, reason being that in the movement order it was stated by the respondent he should proceed to Delhi for re-examination. It is an admitted case of the parties that no re-examination of the petitioner was held at Delhi in pursuance to movement order. Without any such re-examination and without affording him any opportunity notice of termination purported to be under Rule 5 of the Central Civil Service (Temporary Service) Rules was served. In the absence of re-examination and by depriving the petitioner a reasonable opportunity the order cannot be sustained. During the pendency of this petition the petitioner was examined by the Lady Harding Medical College on 2nd December,1993. His height was found to be 165 cms. As per the Recruitment Rules of CRPF for the post of Assistant Sub Inspector (Ministerial Staff), requisite physical standard requires the height of 165 cms. for male candidates. As per the respondents contention the petitioner had the height of 164 cms. This shows that examination held at Lady Harding Medical College show different result. It was for this reason also re-examination of the petitioner before terminating his services was a must.

15. Moreover, the petitioner sought relaxation but the respondent refused saying there was no scope for discretion including the relaxation for this purpose. This contention of the respondent is bellied from the Notifications filed by the respondents on the record. Notification dated 14th March,1989 filed on the record as Annexure '1' stipulate power to relax. It is reproduced as under :

[To be published in Gazette of India, Part-II, Section 3, Sub Section (1)].

No.R.IX.1/88-Adm-3/CRPF/Pers.II Government of India/Bharat Sarkar Ministry of Home Affairs/Grih Mantralaya New Delhi, the 14.3.1989

NOTIFICATION

In exercise of the powers conferred by Section 18 of Central Reserve Police Force Act,1949 (66 of 1949) and in supersessions of the Central Reserve Police Force (Lower Division Clerk and Stenographer Grade III) Recruitment Rules, 1979, the Central Reserve Police Force (Upper Division Clerk) Recruitment Rules,1980 the Central Reserve Police Force (Head Clerk) Recruitment Rules, 1979 and the Central Reserve Police Force (Assistant) Recruitment Rules,1978, except as respect thing done or omitted to be done before such supersessions, the Central Government hereby makes the following rules regulating the method of recruitment to the combatised ministerial cadre posts in the Central Reserve Police Force, namely :-

1. Short title and commencement: (1) These Rules may be called the Central Reserve Police Force (Combatised Ministerial Cadre) Recruitment Rules,1989.

(2) They shall come into force on the date of their publication in the official Gazette

2. Number of posts, classification and scale of pay :- The number of the said posts, their classification and the scales of pay attached thereto shall be as specified in column 2 to 4 of the schedule annexed to these rules.

3. Method of recruitment, age limit, qualification etc. :- The method of recruitment to the said posts, age limit, qualifications and other matter relating thereto shall be as specified in column 5 to 13 of the said schedule.

4. Disqualification : No person.

(a) Who has entered into or contracted a marriage with a person having a spouse living, or

(b) Who, having a spouse living, has entered into or contracted a marriage with any person.

shall be eligible for appointment to the said posts :-

Provided that the Central Government may, if satisfied that such marriage is permissible under the personal law applicable to such person and the other party to the marriage and that there are other grounds for so doing, exempt any person from the operation of this rule.

5. Power to relax : Where the Central Government is of the opinion that it is necessary or expedient so to do, it may, by order, for reasons to be recorded in writing, relax any of the provisions of these rules with respect to any class or category of persons.

6. Saving : Nothing in this rule shall affect reservations, relaxations of age limit and other concessions required to be provided for the scheduled castes, Scheduled Tribes, Ex-Servicemen and other special categories of persons in accordance with the orders issued by the Central Government from time to time in this regard.

The Schedule

(rules 2 and 3)

Sd/-

(N.J. THOMAS)

DESK OFFICER

16. Since the petitioner was selected on 1st July,1971 this Notification was applicable in his case. Para 5 of this Notification gives power to the Central Government i.e. respondent to exercise relaxation in a given case. Therefore, it would not be correct to say that the respondent had no power to relax.

Beside this Notification, respondent also issued Standing Order No. 4/82 which has been filed as Annexure 'III' on the file. It read as under:-

STANDING ORDER NO. 4/82

Subject :- condensation

Vide Rule 11(f) of the CRPF Rules,1955, competent authorities are permitted to condone physical deficiencies in respect of candidates appearing for enlistment in the Force. No upper limit for such condensation has, however, been in the rules. This omission has resulted in grossly substandard candidates being enlisted in the Force by condoning deficiency to the extent of as high as 11 Cm. in height and comparable deficiencies in other respects.

2. In future no condensation should be given beyond the ceiling indicated below :-

(a) height : 2 Cms.

(b) Chest : 1 Cms.

(c) age : 1 year

(d) weight : 1 Kg.

Normally not more than one deficiency should be considered for condensation in respect of any one candidate.

Addendum vide Ltr.No.R.II.1/82-Estt-II dated 6.5.82.

3. The condensations will not apply to the candidates relaxations in respect of whom have been embodied in the rule itself.

4. It should be our endeavour to recruit only such candidates as are fit in all respects. condensations should be resorted to very sparingly and only under compelling circumstances.

17. Reading of the Standing Order quoted above proves that respondent was empowered to condone deficiency to the extent of shortage in height upto 2 cms.

18. In any case the Competent Authority has power to condone the deficiency upto the height of 2 cms. we see no reason why the rule of relaxation or condensation of deficiency, if any, be not made applicable in the facts of this case. We feel that firstly there was no physical deficiency, if it stood relaxed and condoned.

19. Even otherwise it may be seen that in practice height of 170 cms. was honoured more in breach as if there was virtually no specified height prescribed. It appears from standing order No. 4/82 Annexure III that variation upto 11 cms. had been condoned under Rule (f) of CRPF Rules,1955. This shows that the person could be selected at a height of 159 cms. if prescribed height was 170 cms. Subsequently, it was brought down from 170 cms. to 165 cms. vide circular order dated 23rd September,1987 Annexure 'II' and the reason given is as under : -

It has been our experience at the time of conducting recruitment of ASI(M)/SI(Steno) that many more professionally suitable and capable candidates had to be rejected during preliminary stage of selection only because they did not conform to the physical standards. As a result, selection of candidates was narrowed down to only those candidates who fulfillled the physical standard which were not necessarily very suitable for the kind of job they had to perform.

20. Subsequently when a Notification was issued on 14th March,1989 superseding earlier rules while prescribing educational qualifications, it remained silent on this aspect of the matter and did not prescribe any physical standard. Age is relaxable upto 5 years. Neither educational qualification nor prescribed age has been made applicable to promotees. Consequently by not prescribing physical standards other than the age, insofar as the Recruitment of ASI(M)/ASI(Steno) is concerned, the Union of India is not very particular in adhering to the height of 170 cms. This notification virtually supersedes Circular Order No.20/87 and standing order No.4/82.

21. In this case height of the petitioner was found 165 cms. on his examination in Lady Harding Medical College and Sucheta Kriplani Hospital, New Delhi, as per affidavit filed by the petitioner dated 17th February,1999 and Medical Certificate dated 2nd December,1997 and 164 cms. according to the records of the respondents. He was called back from his training at group centre I at Ajmer, Rajasthan to Delhi for the purpose of re-examination at Delhi. But re-examination did not take place. Instead one months notice terminating his services with effect from 4th October,1991 was given.

22. The above said facts would show firstly that the petitioner conformed to the standard of height laid down for recruitment to the post of Assistant Sub Inspector (Ministerial Staff), Central Reserve Police Force. Secondly, by employing him and then sending for training on the recommendation that he was otherwise medically fit amounted to virtually condoning the physical deficiency under Rule 11 (f) of the CRPF Rules on one hand and on the other it amounted to making a representation to the petitioner that he was fit and would remain in employment. Thirdly calling him back from training for re-examination and not re-examining him appears to be fishy specially seeing that on his medical examination in Lady Harding Medical College, his height was found 165 cms. Fourthly, at least, principles of natural justice required that he was given a show cause notice about his alleged physical deficiency.

23. Accordingly the impugned order is set aside with direction that the petitioner shall be deemed to be in service. Since he has not performed any work during this period hence he shall not be entitled to back wages but for the purpose of continuity of service this period will be counted.

24. With these observations, the petition stands disposed of.