Punjab-Haryana High Court
Rajinder Kumar vs Hy State Etc on 7 July, 2023
Neutral Citation No:=2023:PHHC:086440
CWP Nos.15941 of 2001 & 5115 of 2020 (O&M) 1
2023:PHHC:086440
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Date of Reserve: 19.05.2023
Date of Decision: 07.07.2023
1. CWP No.15941 of 2001 (O&M)
Rajinder Kumar ......Petitioner
Vs
State of Haryana and others .....Respondents
2. CWP No.5115 of 2020 (O&M)
Rajinder Singh @ Rajinder Kumar ....Petitioner
Vs.
State of Haryana and others .....Respondents
CORAM: HON'BLE MR. JUSTICE RAJ MOHAN SINGH
Present:Mr. Anil Rathee, Advocate
for the petitioner.
Mr. Tapan Kumar Yadav, D.A.G., Haryana.
****
RAJ MOHAN SINGH, J.
[1]. Vide this common order, CWP No.15941 of 2001
(O&M) and CWP No.5115 of 2020 (O&M) are being decided.
Since both the petitions have arisen out of the similar
controversy, therefore, for brevity the facts are being culled out
from CWP No.15941 of 2001 (O&M).
[2]. The petitioner has preferred CWP No.15941 of 2001
(O&M) for the issuance of an appropriate writ in the nature of
certiorari, quashing the selection and appointment of the private
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respondents as the respondent No.6 was found medically unfit
and the respondent No.5 was not possessing the requisite
qualification of matriculation. The petitioner is more meritorious
to the aforesaid respondents. Further a writ in the nature of
mandamus has also been sought seeking directions to get the
respondent No.6 medically examined from the PGI, Chandigarh
and also to direct the respondents to fill up the seat of SC-B Ex-
Serviceman category as no candidate was found available for
SC-B Ex-Serviceman category and also to direct the
respondents to fill up 7 seats of SC-B category of Scheduled
Caste in district Yamuna Nagar in the recruitment in question.
[3]. Notice to the respondents was issued for 11.02.2002.
Thereafter, a civil misc. application was filed with reference to
the Annexure P-14 passed in CWP No.1113 of 2002 on the
ground that the controversy is covered by the judgment dated
22.05.2003 and that is how the case was taken up by the Court.
[4]. Vide order dated 25.04.2017, the Court found that the
matter relates to the selection and appointment to the post of
Constable and the case is of the year 2001, therefore, the
official respondent was directed to bring all the records including
cut off percentage of general and other categories and also the
marks awarded for each of the selected candidates. Thereafter
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on 11.05.2017, the Court recorded that there was some
insertion of physical standard in respect of height of respondent
No.6. The respondent No.6 was subjected to physical standard
examination on two occasions. The reasons for examining the
respondent No.6 for physical standard examination have not
come forth on record. The respondents sought time to place on
record as to how the respondent No.6 was subjected to physical
standard examination on two occasions. For ready reference
the order dated 11.05.2017 is reproduced hereasunder:-
"After hearing for some time, records were
perused. Perusal of the records, it is evident that so far as
sixth respondent's physical standard is concerned, it was
noticed that there is some insertion of physical standard in
respect of height is concerned as 5.6 which is supported by
date as well as on the instruction of superior officer in the
Police Department. In other words, it is to be understood
that sixth respondent was subjected to physical standard
examination on two occasions. Reasons for examining the
sixth respondent for physical examination is not
forthcoming. Therefore, the respondents-selecting authority
seeks time to place it on record as to how the sixth
respondent was subjected to physical standard
examination on two occasions.
List this matter on 17.5.2017.
(P.B. BAJANTHRI)
JUDGE
May 11, 2017.
sandeep sethi"
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[5]. Thereafter on 19.05.2017 after perusing the record, the
Court found that the grievance of the petitioner (wrongly typed
petitioner in place of the respondent No.6) has been entertained
and taken note of re-examination of physical standard. No
material has come on record in respect of request of the
respondent No.6 for re-assessment of physical standard. In the
absence thereof one has to draw inference that re-examination
of physical standard of the respondent No.6 is due to
extraneous consideration. The official respondents have not
placed on record any requisition from the respondent No.6 for
re-measurement of his physical standard. The Court directed
the respondents to consider the case of the petitioner for
appointment by creating a supernumerary post on notional
basis. In view of lapse of time and the fact that the petitioner
was already selected in the year 1995 by judicial order and his
selection/appointment was cancelled in the year 2001. The
respondent-State was directed to have instructions in this
context. The order dated 19.05.2017 reads as under:-
"Perusal of the records, it is evident that 6th
respondent's grievance has been entertained and taken
note for re-examination of physical standard. No material
has been placed in respect of 6th respondent's request for
re-assessment of physical standard and related records. In
absence of the same, one has to draw inference that it is a
clear case of extraneous considerations for the reason that
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neither the 6th respondent nor the official respondents have
placed on relevant requisition from the 6th respondent for
re-measuring the petitioner's physical standard. In view of
lapse of time and the fact that the petitioner was already
selected in the year 1995 by judicial order, his selection
and appointment was cancelled in the year 2001.
Therefore, the concerned respondent is hereby directed to
consider the petitioner's name for appointment by creating
a supernumerary post on notional basis. In this regard,
learned State counsel is hereby directed to get instructions
by the next date of hearing.
List this matter on 02.06.2017.
(P.B. BAJANTHRI)
JUDGE
May 19, 2017.
sandeep sethi"
[6]. Evidently, vide the aforesaid order, a direction was
issued to the respondents to consider the name of the petitioner
for appointment by creating a supernumerary post on notional
basis. It was a positive direction for which the respondent-State
sought time to have further instructions by the next date of
hearing and the case was accordingly adjourned.
[7]. Feeling aggrieved against the order dated 19.05.2017,
the respondent-State filed CM No.12841-CWP of 2017 for
recalling of the order. In the aforesaid application, the Court
directed the official respondents to produce the application filed
by the respondent No.6 for second physical standard
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examination and relevant provision permitting the competent
authority to hold second physical examination. In the event of
not producing the same, the respondent was directed to
implement the order dated 19.05.2017 failing which further
adverse order was to be passed. The order dated 09.11.2017
reads as under:-
"CM for recalling order dated 19.05.2017 is heard.
If 6th respondent's application for subjecting him for the
2nd physical standard examination and further relevant
provision permitting the competent authority to hold 2nd
physical standard examination is not produced before the
next date of hearing in that event concerned respondent is
directed to implement order dated 19.05.2017 failing which
further adverse order would be passed.
List this matter on 12.12.2017.
(P.B.BAJANTHRI)
09.11.2017 JUDGE
pooja saini"
[8]. Perusal of the aforesaid order would show that the
controversy was crystallized on the issue whether there is an
application filed by the respondent No.6 for subjecting him for
second physical standard examination and availability of
provision in this regard permitting the competent authority to
hold such second physical standard examination. On the
adjourned dated i.e. 12.12.2017, the learned State counsel
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submitted that there was no record in respect of filing of any
application by the respondent No.6 for subjecting him for
second physical standard examination and the Court proceeded
to observe that it was for the extraneous reasons that the
request of the respondent No.6 for second physical standard
examination was entertained. The application bearing CM
No.12841-CWP of 2017 for recalling of the order dated
19.05.2017 was dismissed. The order dated 12.12.2017 reads
as under:-
"Learned State counsel submits that there was no
records in respect of 6th respondent's application for
subjecting him for the Second Physical Standard
Examination. Therefore, one can draw inference that for
extreneous reasons 6th respondent's request for Second
Physical Standard Examination has been entertained.
Thus, application for recalling the order dated 19.05.2017
has not been made out.
For compliance of the order dated 19.05.2017, list
this matter on 24.01.2018.
( P.B.BAJANTHRI)
12.12.2017 JUDGE
pooja saini"
[9]. In this background of the case, the case remained
pending. During pendency of the present writ petition, the
Director General of Police, Haryana has passed order dated
20.01.2018. In this context, it is relevant to mention here that in
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the order dated 20.01.2018 passed by the Director General of
Police, Haryana, the authority after considering the order dated
19.05.2017 and 12.12.2017 proceeded to record that the
request of the respondent No.6 for re-examination of physical
parameters cannot be traced from the official record, however
as per para No.16 of the circular issued for recruitment on
09.02.2001, a candidate rejected at any stage had/has a right to
appeal before the respective Range Deputy Inspector General
of Police/Inspector General of Police within three days, who
shall examine the complaint and dispose off the same with a
speaking order within a week. Accordingly, the order dated
16.05.2001 was passed by the appellate authority/Inspector
General of Police, Ambala Range, Ambala and re-measurement
of the respondent No.6 was conducted at that time in lieu
thereof.
[10]. Thereafter in order to ascertain the factual position on
record, this Court vide order dated 15.02.2023 passed the
following order:-
"Perusal of the order dated 20.01.2018 passed by
the Director General of Police, Haryana shows that the
rejected candidate had a right to appeal before respective
Range Deputy Inspector General of Police/Inspector
General of Police within three days in view of circulation
dated 09.02.2001. A specific allegation is made in respect
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of giving undue indulgence in favour of the respondent
No.6 by undertaking his second medical examination
without there being any appeal filed by him in pursuance of
instructions dated 09.02.2001.
Learned State counsel seeks a very short
adjournment in order to apprise this Court whether any
appeal was preferred by the respondent No.6 and how
many candidates had opted for this remedy of appeal for
their re-medical examination at the relevant time.
Adjourned to 27.03.2023.
A photocopy of this order be placed on the file of
connected case."
[11]. Evidently a specific allegation is made in respect of
giving undue indulgence in favour of the respondent No.6 by
ordering his second medical examination without there being
any appeal filed by him in pursuance of instructions dated
09.02.2001. Learned State counsel sought adjournment in order
to apprise this Court whether any appeal was preferred by the
respondent No.6 and how many candidates have opted for this
remedy of appeal at the relevant time. In compliance of the said
order dated 15.02.2023, learned State counsel has brought on
record a physical measurement complaint register prepared by
the official respondents disposing of the complaints by the
competent authority.
[12]. Perusal of the aforesaid register/document would
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indicate that the same does not specify the factum of receiving
complaint/appeal by the aggrieved candidate on a particular
date. Entry and despatch register of the complaint(s) have not
been produced on record despite an order dated 27.04.2023
passed by this Court. On 27.04.2023, learned State counsel
submitted that the said register has to be summoned from the
office of Inspector General of Police, Ambala Range. The order
dated 27.04.2023 reads as under:-
"Learned State counsel seeks a very short
adjournment in order to produce entry and despatch
register of the complaints received from 114 candidates.
Learned State counsel further submits that the
said register has to be summoned from the office of
Inspector General of Police, Ambala Range.
Let the aforesaid register, if any, in existence, be
brought on record by the next date of hearing.
Adjourned to 09.05.2023.
To be taken up at 2.00 P.M.
A photocopy of this order be placed on the files of
connected cases."
[13]. Thereafter learned State counsel sought more time to
produce entry register of total complaints received in the context
of physical measurement on 09.05.2001. Till date, no such entry
register has been brought on record, except filing of short reply
by way of affidavit of the Superintendent of Police, Yamuna
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Nagar on behalf of the respondents No.1 to 3 accompanied by
physical measurement complaint register which does not
correspond to the date of receipt of any such application/appeal
filed by the aggrieved candidate. The pointed allegation is of
extraneous consideration as observed by the Co-ordinate
Bench in the orders dated 19.05.2017 and 12.12.2017,
therefore, the factum of proof of receipt of any such application
from the respondent No.6 was required to be established on
record. Despite the order dated 09.05.2023, no such entry
register has been placed on record.
[14]. During course of arguments, it has been transpired that
no such register is in possession of the respondent-State as of
now. The order dated 20.01.2018 came to be passed by the
Director General of Police, Haryana only during pendency of the
present writ petition and the same is nothing but reiteration of
stand already taken by the respondents on record. The stand of
the respondent-State is that the case of the respondent No.6 on
the less measurement of chest was accepted and re-
measurement of chest was done and the same was accepted
and order was issued to this effect on 15.06.2001. No
application/appeal filed by the respondent No.6 has come forth
on record in respect of his grievance. As per instructions dated
09.02.2001, such application has to be filed by the candidate
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before the respective Range Deputy Inspector General of
Police/Inspector General of Police within three days, who shall
examine the complaint and dispose off the same with a
speaking order within a week. It is no where available on record
whether such an application infact was filed by the respondent
No.6 with reference to any date of filing of the same. The
direction issued by the Court on 19.05.2017 was very categoric
thereby directing the concerned respondent to consider the
name of the petitioner for the appointment by creating a
supernumerary post on notional basis. Thereafter while
dismissing the application for recalling it was observed by the
Court on 09.11.2017 that if record in respect of application filed
by the respondent No.6 for second physical examination is not
produced then the order dated 19.05.2017 was to be
implemented and a direction was issued to this effect failing
which further adverse order was to be passed. Thereafter the
application for recalling of the order dated 19.05.2017 was
dismissed by observing that one can draw inference that for
extraneous reasons request of the respondent No.6 for second
physical standard examination was entertained. The orders
dated 19.05.2017, 09.11.2017 and 12.12.2017 have attained
finality.
[15]. Even for all abundant caution, this Court at a later stage
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vide order dated 15.02.2023 gave one more opportunity to bring
on record of receiving application/appeal filed by the respondent
No.6 in the context of his second physical examination. The
document produced by the respondent-State i.e. physical
measurement complaint register is conspicuously silent about
the date of receipt of any such application, rather it is a register
prepared on consolidated basis without there being any
reference of date of entries of total complaints. This document
does not improve the case of the official respondents in any
manner. The directions came to be passed by this Court on
19.05.2017 and the same was not implemented despite the
orders dated 09.11.2017 and 12.12.2017 passed by this Court.
[16]. In view of above, the impugned order dated
20.01.2018 passed by the Director General of Police, Haryana
is set aside. Consequently, both the writ petitions are disposed
of by directing the respondent No.2 to implement the order
dated 19.05.2017 by creating a supernumerary post for the
claim of the petitioner on notional basis forthwith.
[17]. Let a compliance report be placed on record within a
period of one month from the date of receipt of certified copy of
this order, failing which an appropriate order shall be passed in
accordance with law.
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[18]. All other civil misc. applications, if pending are also
disposed of accordingly.
(RAJ MOHAN SINGH)
July 07, 2023 JUDGE
Atik
Whether speaking/reasoned Yes/No
Whether reportable Yes/No
Neutral Citation No:=2023:PHHC:086440
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