Rajasthan High Court - Jodhpur

Badri vs State Of Rajasthan on 3 August, 2022

Bench: Rekha Borana

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 3012/2019

Badri S/o Bijenddra Singh, Aged About 20 Years, Village Indrawali Post Mathuraheda, Tehsil Kathumar, District Alwar.

----Petitioner Versus

1. State of Rajasthan, through Home Secretary, Secretariat, Jaipur.

2. The Director General of Police, Police Headquarter, Rajasthan, Jaipur.

3. The Secretary Department of Personnel, Government Secretariat, Jaipur.

4. Superintendent of Police, District Udaipur, Rajasthan.

                                                                  ----Respondents


For Petitioner(s)          :     Mr. Chayan Bothra
For Respondent(s)          :     Mr. Manish Vyas, AAG with
                                 Mr. Kailash Choudhary



              HON'BLE MS. JUSTICE REKHA BORANA

                                      Order

03/08/2022

The present writ petition has been filed aggrieved of the non

appointment of the petitioner on the post of Constable qua the

recruitment process of the year 2018.

It is the case of the petitioner that in the selection process,

he cleared the written examination and was called for the Physical

Efficiency Test and after that for the interviews also. But after the

interviews, he was not accorded appointment on the ground that

he did not qualify in the Physical Efficiency Test as his height was

167 cms whereas according to the minimum qualification required,

it ought to have been 168 cms.

(2 of 5) [CW-3012/2019]

Learned counsel for the petitioner submitted that soon after

the physical examination when he was declared unsuccessful, he

preferred an appeal in terms of the advertisement but no action

whatsoever was taken by the department on that appeal.

Ultimately, when he was not selected, he preferred the present

writ petition. Learned counsel submitted that after being declared

unsuccessful he approached the Government Hospital wherein

measurement of his height was taken and according to the report

of the Government Doctor, his height is 169 cms. Learned counsel

therefore prayed that a fresh Medical Board be constituted by this

Court and the measurements pertaining to his height be directed

to be calculated de novo.

During the pendency of the writ petition, this Court had

directed the counsel for the petitioner to place on record the

affidavit of the Doctor who had granted him the medical certificate

as produced on record. As the Doctor issuing the certificate had

been transferred by that date, the certificate of the authority

concerned has been filed specifying the fact that the petitioner's

name was there in the visitors/patients list of 04.09.2018 which

proves the fact that the petitioner did approach the said

Government Hospital on the said date and the certificate was

issued by the medical officer therein.

Learned counsel for the petitioner also placed on record one

application moved by one similarly situated candidate Tarun

Kumar before the respondent authorities whereby it has been

directed by the concerned officer for constituting a Medical Board

at SMS Hospital, Jaipur for the purposes of re-measurement of

height of the candidate therein.

(3 of 5) [CW-3012/2019]

Per contra, it has been submitted in the reply filed by the

respondents that after an appeal being filed by the petitioner, his

re-measurement of height was conducted by the Medical Board

and according to that report also his height was 167 cms which

was not within the parameters specified and therefore, he was

disqualified. Learned counsel further argued that no vacancy qua

the advertisement in question exist as of date and therefore too,

the petitioner cannot be granted any indulgence.

Heard learned counsel for the parties and perused the

material available on record.

A reply has been submitted on behalf of the respondents and

it has been submitted that on an appeal being filed by the

petitioner, the re-measurement of the height and chest of the

petitioner was conducted wherein also the petitioner had failed.

But no such report of the Medical Board after the re-examination

of the petitioner has been placed on record. What has been placed

on record is only the first PST result which shows the height of the

petitioner to be 167 cms. Therefore, in absence of any document

specifying the fact that the re-examination or the re-measurement

of the physical parameters of the petitioner was conducted, it

cannot be concluded that any action was taken in pursuance to

the appeal filed by the petitioner. Moresoever, the medical

certificate issued by a competent Government Doctor placed on

record by the petitioner specifies his height to be 169 cms.

Further, soon after the rejection of the candidature of the

petitioner, he had approached this Court and therefore, the ground

of the respondents that all the seats have now been filled up and

no indulgence can be granted in favour of the petitioner cannot be

entertained.

(4 of 5) [CW-3012/2019]

In S.B. Civil Writ Petition No.14017/2015; Vikas Vs.

The State of Rajasthan & Ors. decided on 01.05.2019 this

Court held as under:

"the lack of a vacancy can be no obstruction to the petitioner's consideration for appointment on the post in the circumstances which are the making of the respondent- Police Department itself--where despite having the requisite minimum height of over 168 cms i.e. 168.5 cms the petitioner was arbitrarily found lacking the said height at the time the PET was held and passed without as much a request on his part only with aid of relaxation under Rule 14(2) of the Rules of 1989. That was a gross injustice to the petitioner by the respondent- Police Department as it entailed the petitioner being pushed down in the merit list with reference to the Rule 14(2) (iii) of the Rules of 1989 only for reason of which he was denied appointment and those otherwise less meritorious but found to have passed PET without relaxation appointed as Constable in District Jhunjhunu. The petitioner cannot in law and equity be allowed to suffer for a situation not of his making but of the respondent- Police Department. If it were to be that, it would entail an enunciation of law by this Court that a gross injustice with the lapse of time becomes unremedial. The raison d'etre of justice would be lost and where an aggrieved party approaches the Court within reasonable time for vindication of his rights and the denial of right asserted, yet for reason of delays of the Courts process no doubt in large measure occasioned by a heavy docket, he would be denied relief. If this were to come to pass arbitrariness and injustice would be institutionalized and rule of law replaced by rule of man. That cannot be countenanced under the Constitution of India. It is fundamental to justice that when a right is found to be contravened it must be restored by court action. And I can see no insurmountable obstacle to that in this case."

The aforesaid judgment has been affirmed by the Division

Bench in D.B. Civil Special Appeal (Writ) No.1242/2019; The

State of Rajasthan & Ors Vs. Vikas, decided on 08.01.2020.

(5 of 5) [CW-3012/2019]

In view of the ratio laid down in the case of Vikas (supra)

and in view of the above analysis, the present writ petition is

disposed of with a direction to the respondent authorities to get

the PST of the petitioner conducted by a Medical Board to be

constituted by the Superintendent, SMS Medical College and

Hospital, Jaipur within a period of four weeks from today. If the

medical report issued by the Medical Board so constituted favours

the petitioner, he be granted appointment within a period of four