Delhi High Court
Naveet Kumar Tiwari vs Uoi & Ors. on 12 November, 2009
Author: Pradeep Nandrajog
i. 13
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision : 12th November, 2009
+ W.P.(C) 7053/2009
NAVEET KUMAR TIWARI ..... Petitioner
Through: Mr. R.K. Saini, Advocate
versus
UOI & ORS. ..... Respondents
Through: Mr.Amandeep Joshi, Advocate
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MR. JUSTICE SURESH KAIT
1. Whether the Reporters of local papers may be allowed
to see the judgment?
2. To be referred to Reporter or not?
3. Whether the judgment should be reported in the Digest?
PRADEEP NANDRAJOG, J. (Oral)
1. Pertaining to the same process of recruitment for
employment to the post of CT/Driver under the General Category,
claim of Rakesh Kumar Mishra, the writ petitioner of WP(C)
No.6733/2008, was decided vide order dated 05.11.2008 passed
by a co-ordinate Division Bench of this court. The order reads as
under:-
"R-2 issued a public notice in the Employment
News inviting applications for 63 posts of
CT/Driver under the General Category. One of the
eligibility conditions prescribed for recruitment
was a minimum height of 170 cms.
The petitioner applied in pursuance to the said
advertisement and underwent the process laid
down in the advertisement and was thereafter
issued an offer of appointment dated 29.01.2007
intimating to the petitioner that he has been
selected in the recruitment process so initiated.
The petitioner was asked to join on or before
01.03.2007.
The petitioner claims to have reported for duty
but was not permitted to join only on account of
the fact that his height was less than 170 cms,
which was one of the essential conditions in the
public notice/advertisement. The representations
made by the petitioner including communications
dated 15.04.2008 were of no avail.
It is the case of the petitioner that his father
was thereafter taken seriously ill and was
suffering from the disease of cancer and
ultimately succumbed to the disease on
10.07.2008.
The representation of the petitioner was
rejected on 30.04.2008. The petitioner got
himself again medically examined in the Office of
the Chief Medical Superintendent, District
Hospital, Deoria on 25.08.2008 where his height
was found to be 170.30 cms which was well above
the minimum prescribed height. The petitioner
even forwarded a representation along with a
certificate but to no avail. The petitioner also
brought to the notice of the respondents a
decision in WP(C)5324/2007 Naresh Kumar v.
Union of India and Ors. wherealso the respondents
had taken a person into service after it was found
that his height met the requisite criteria.
The matter was taken up on 22.09.2008 when
we deemed it appropriate with the consent of the
learned counsel for the parties to send the
petitioner to the Health Centre & Medical Unit,
Delhi High Court ('the said Medical Unit' for short)
to measure his height. The said Medical Unit
certified that the height of the petitioner is 170
cm and 3 mm - same height which was found by
the Chief Medical Superintendent, District
Hospital, Deoria.
Learned counsel for the respondents, however,
took some time to verify the position as to
whether that was the only impediment in the case
of the petitioner to join the service or there may
be other factors, which may not have come on
record. We thus admitted the petition and
granted the respondents time to file the counter
affidavit within three weeks. We also directed
that a vacancy should be kept reserved for the
petitioner till the disposal of the writ petition. No
counter affidavit has been filed nor is any other
factor brought to our notice other than the
deficient height of the petitioner. This plea does
not stand in view of the fact that before the case
of the petitioner was processed and letter issued
to him, he would have to meet the essential
requirements including the parameters of height.
The petitioner, in fact, went to join the
respondents in pursuance to the offer of
appointment dated 29.01.2007 at which stage the
height of the petitioner was found to be deficient.
The Government hospital at Deoria certified that
the height of the petitioner was 170.30 cms and
this fact is confirmed by the said Medical Unit.
There is thus no impediment in the appointment
of the petitioner.
A writ of mandamus is issued directing the
respondents to appoint the petitioner and allow
him to join in pursuance to the appointment letter
dated 29.01.2007 within one month from today.
The petitioner to report to the Addl.Deputy
Inspector General of the Police, Group Center,
CRPF, Gwalior, A.B.Road (Madhya Pradesh) -
474001 where he was supposed to report earlier.
The petitioner would naturally have to get all
pay and allowances only form the date of his
joining, but we deem it appropriate to grant costs
to the petitioner on account of the unreasonable
actions of the respondents which has deprived the
petitioner of his emoluments over this period of
time. The costs are quantified at Rs.10,000/- to
be also paid within one month from today.
The petition is allowed in the aforesaid terms.
Dasti."
2. Mr.Naveet Kumar Tiwari, the writ petitioner of WP(C)
No.7053/2009 i.e. the instant petition has a similar problem.
3. He responded to the advertisement in question and applied
for being appointed to the post of a CT/Driver in the General
Category.
4. Pertaining to the physical attributes of the candidates, the
stipulated height requirement was minimum 170 cms.
5. The petitioner was subjected to the rigours of the tests
which had to be conducted and he successfully cleared the same.
Letter of appointment was issued on 29.01.2007. As per the
appointment letter the petitioner was to report for duty on
01.03.2007, but before that, he received a letter dated
23.02.2007 informing him that since his height was less than
170 cms, the letter of appointment dated 29.01.2007 was
withdrawn.
6. The petitioner visited the District Hospital at Deoria, UP,
where the doctor concerned, after measuring the height of the
petitioner, certified that the height of the petitioner was 170.60
cms.
7. Armed with the certificate aforesaid, in January 2008, the
petitioner submitted a representation to the respondents praying
that the letter withdrawing his appointment be withdrawn.
8. Finding no response instant writ petition was filed.
9. As per the petitioner he claims to be 170.60 cms tall. As
per the respondents his height is 169 cms.
10. We have referred the petitioner to the Ortho Medical Officer
attached to the Medical Health Centre of the Delhi High Court.
11. Dr. Pawan Kumar, MS (Ortho), Ortho Medical Officer
attached to the Medical and Health Centre of the Delhi High
Court has measured the height of the petitioner today itself and
has informed the court that the petitioner is found to be 171 cms
tall.
12. We have asked the petitioner who is present in court as to
at what point of time, during the day, his height was measured
by the respondents. The petitioner informs that his height was
measured at around 4:00-5:00 PM, when he was being subjected
to a physical test by the respondents.
13. We have on record 3 height measurements of the
petitioner. The first is the height measured by the respondents,
being 169 cms; the second is the height measured at the District
Hospital, Deoria UP, being 170.60 cms and the third is the height
measured today being 171 cms.
14. How is it happening?
15. It is known to medical jurisprudence that as the day passes
the height of every individual shortens by a few millimeters. It is
recognized by medical jurisprudence that the maximum height of
a person is when he gets up early morning and takes the
measurement for the reason, sleeping in a horizontal position in
the bed all night, loosens the limbs and in particular the vertebra
of the person. Rising out of the slumber at dawn and
commencing normal activity, by standing on the feet, due to
gravitation pull downward, the vertebra and the other joints in
the body tend to compress.
16. This explains the variation in the height of the same person
if his measurements are taken during early hours of the morning
and in the afternoon and late evening; 3 measurements would
surface.
17. We are informed that large number of writ petitions have
been filed in this court pertaining to the issue of height.
Relatable to the instant employment, this is the third writ petition
filed in this court.
18. We have penned a slightly long order wasting government
stationery hoping that the respondents would take some
remedial action so that private stationery is not wasted in the
future i.e. writ petitions are not filed.
19. The respondents would be advised to take note of the
aforesaid medical jurisprudence and in relation to a physical
standard pertaining to the height, would specify some variation.
20. The reason is obvious. All candidates are not measured
simultaneously and at the same time when recruitment process
is on.
21. As regards the instant writ petition, in view of the order
dated 05.11.2008 in WP(C) No.6733/2008; noting the fact afore-
noted, a Mandamus needs to be issued to the respondents.
22. The writ petition stands disposed of issuing a Mandamus
directing the respondents to give effect to the appointment
letter dated 29.01.2007 within one month from today. The
petitioner shall report to the Additional Deputy Inspector General
of Police, Group Centre, CRPF, Gwalior, A.B. Road (Madhya
Pradesh)-474001 i.e. the place where he was to report in terms of
the letter of appointment.
23. The petitioner will be paid pay and allowances with effect
from the date he joins and is given work, but for purposes of pay
fixation and purposes of pensionary benefits as also increments,
the date of appointment of the petitioner would be reckoned as
01.03.2007.
24. We clarify that in respect of the pay and pensionary
benefits, it would mean the length of service for grade fixation
and increments without any monetary impact between the date
01.03.2007 and the date when the petitioner joins.
25. No costs.
26. Dasti.
PRADEEP NANDRAJOG, J
SURESH KAIT, J
NOVEMBER 12, 2009
'nks'
