Allahabad High Court
Manoj Kumar Yadav And 3 Others vs State Of U.P And 3 Others on 7 October, 2016
Author: Pradeep Kumar Singh Baghel
Bench: Pradeep Kumar Singh Baghel
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No.44 Case :- WRIT - A No. - 48585 of 2015 Petitioner :- Manoj Kumar Yadav And 3 Others Respondent :- State Of U.P And 3 Others Counsel for Petitioner :- Seemant Singh Counsel for Respondent :- C.S.C. ___ Hon'ble Pradeep Kumar Singh Baghel,J.
1. The petitioners are candidates for appointment on the post of Sub-Inspector of Police. They have challenged the orders of the U.P. Police Recruitment and Promotional Board, whereby they have been declared medically unfit for the selection on the posts of Sub-Inspector in Civil Police and Platoon Commanders in Provincial Armed Constabulary and to declare them fit for appointment on the said post.
2. The brief reference to the factual aspects would suffice.
3. An advertisement dated 19.5.2011 was issued by the Additional Secretary, Recruitment/ the third respondent calling applications from the candidates for appointment on the posts of Sub-Inspectors (Civil Police) and Platoon Commanders (PAC). The total number of posts for Sub-Inspector (Civil Police) was 3698 in which 1849 posts were advertised under General category, 998 posts under the Other Backward Classes, 777 posts under Scheduled Castes category and 74 posts were advertised under Scheduled Tribes category. For the Platoon Commanders 312 posts were advertised in which 156 posts were for General category, 84 posts for OBC, 64 for SC category and 6 posts were reserved for ST category.
4. The recruitment of the Sub-Inspector (Civil Police) is regulated under the Uttar Pradesh Sub-Inspector and Inspector (Civil Police) Service Rules, 20081. Under the said Rules the recruitment is comprised of five stages; Physical Standard Test, Preliminary Written Test, Physical Efficiency Test, Main Written Examination, Medical Test and Character verification.
5. Part-V of the Rules, 2008 provides procedure for recruitment. The Rule-15 deals with the procedure for direct recruitment to the post of Sub-Inspector. Rule-15(c) states that all the male candidates are required to complete a run of 10 kilometers in 60 minutes and for female candidates a run of 5 kilometres in 35 minutes. Under Rule-15(c) the details of the physical standard test are provided in Appendix-1. The physical standard test is conducted by a three-member team comprising (i) Sub Divisional Magistrate/ Deputy Collector, (ii) Doctor/ Sports Officer/ National Cadet Corps, Officer, (iii) Deputy Superintendent of Police. The physical standard test is conducted by a same three-member team as provided under Rule-15(c). The test is completed in one week in the entire State and in the case of large number of candidates, the Board may take a decision to extend the time period. It also provides that the Physical Efficiency Test is only of qualifying nature and it has no effect on the merit list. On completion of physical standard test the list of all successful/ unsuccessful candidates is declared. It further provides that only standardized equipments having having Indian Institute certification to be used for physical standard test examination.
(Emphasis supplied)
6. One of the main requirements of the physical standard test is to measure height and measurement of chest. For General, OBC and Scheduled Caste the minimum physical standard height is 168 cms. and for Scheduled Tribes it is 160 cms.. One of the material requirements under Appendix-1 is that only standardized equipments shall be used. For the sake of convenience the Appendix-1(8) reads as under:
"(8) Only standardized equipments having Indian Standard Institute certification be used for Physical Standard test examination."
7. Rule-15(f) provides Main Written Examination. The procedure for conducting main written examination is prescribed in Appendix-3. As the petitioner has not raised any grievance in respect of their written examination hence there is no need to give the details laid down under the Appendix about the written examination.
8. The Rule-15(g) of the Rules, 2008 deals with 'Group Discussion'. The candidates who are selected in all the aforementioned stages are required to participate in a Group Discussion. It is carried out under the supervision of a panel comprising amongst other Management Expert Psychologist and Criminologist. The group discussion carries 20 marks and it is included in the evaluation of the candidates as per the details under Appendix.
9. After the Group Discussion a tentative select list is prepared under clause (h) of the Rules, 2008 and at the stage of preparing the tentative select list, their testimonials / character is verified. The clause (h) further provides that no waiting list shall be prepared by the Board, and other details, which are not relevant for this matter, are also provided.
10. After a candidate's name is included in the tentative select list, he is sent for medical test under Rule-15(i) of the Rules, 2008. It provides that the medical test shall be conducted by the U.P. Police Head Quarter. A detail procedure for which is given in Appendix-4. A candidate is required to undergo a medical examination by a Medical Board constituted by Chief Medical Officer of the district at notified centres i.e. District Community Health Centre, District Hospital and Tehsil Community Health Centre. The medical examination is required to be completed in a week throughout the State and if the number of candidates undergoing medical examination is large, then the appointing authority can take decision to extend the time as per requirement.
11. The Appendix-4(a) is relevant for the dispute at hand. It inter alia provides that the Medical Board manually examines the deficiencies of human body such as knock-knee, bow legs, flat feet, vericose veins, distant and near vision, colour blindness , hearing test comprising of Rinne's test, Webbler's test and tests for vertigo etc. The Appendix-4(a) is extracted herein below:
"4(a) The doctor will examine the candidates in accordance with the Medical Manual. The Medical Board mainly examines the deficiencies of human body such as knock-knee, bow legs, flat feet, varicose veins, distant and near vision, colour blindness, hearing test comprising of Rinne's test. Webber's test and tests for Vertigo etc. If the circumstances so warranted the Police Service Recruitment and Promotion Board may conduct other examination after obtaining the opinion of experts."
12. Pursuant to said advertisement all the four petitioners made applications for appointment on the posts of Sub-Inspector (Civil Police). They were called for Physical Standard Test in September-October, 2011 on different dates. All the petitioners were declared qualified in the Physical Standard Test showing their height 168 centimeters or more. After their height measurement they were furnished a copy of the result of Physical Standard Test. The petitioners have brought on the record their result of the Physical Standard Test wherein their height was found according to the requirement i.e. 168 centimeters.
13. After the petitioners were found successful in the Physical Standard Test, they were called to appear in the Preliminary Written Test, which was held on 11th December, 2011 and its result was declared on 01st January, 2013. All the petitioners qualified the Preliminary Written Test. After qualifying the Preliminary Written Test the petitioners were called upon for the Physical Efficiency Test which requires 10 kilometers run within 60 minutes. All the petitioners were declared qualified in Physical Efficiency Test which was held in 2011 and 2014 and they were declared successful in Physical Efficiency Test.
14. In the next stage all the candidates, who were declared successful, were permitted to appear in the main written examination which was held on 14th September, 2014. The result of the main examination was declared on 23rd October, 2014 in which all the petitioners were declared successful. The group discussion was held in November-December, 2014 to January, 2015. The final result was declared on 16th March, 2015 in which the petitioners stood qualified.
15. After the declaration of written examination's result, a large number of writ petitions were filed by the unsuccessful candidates on the ground that several successful candidates had used whitener / blade in their OMR sheets / answer scripts. A batch of writ petitions led by Writ-A No. 67782 of 2014 (Saket Kumar & 3 others v. State of U.P. & 2 others), was allowed by this Court vide judgment and order dated 29th May, 2015. This Court by its judgement dated 29.5.2015 allowed the writ petitions filed by unsuccessful candidates cancelling the result of those candidates who had used whitener / blade contrary to the instructions of the examinations.
16. In compliance of the order of this Court, the Police Board/ respondent no. 2 deleted the names of 810 candidates from the select list who had used the whitener/ blade in their OMR sheets and a revised list was issued on 25th June, 2015. It is stated that the petitioners' names find place in the revised list also.
17. The petitioners were called for medical examination which was conducted in the month of July and August 2015. The petitioners have been found medically unfit only on the ground of deficiency in height.
18. The learned counsel for the petitioners submits that the Medical Board without jurisdiction and without any authority re-examined the height of the petitioners again during the medical examination. All the petitioners were earlier medically examined during their Physical Standard Test and their heights were found 167.5, 167.4, 167.7 & 168 respectively.
19. It is contended that earlier their Physical Standard Test was held by standardized equipment. However, the medical Board has measured their heights manually. Thus the petitioners have been rejected arbitrarily on the basis of incorrect measurement taken manually in the medical examination. It was next submitted by the learned counsel for the petitioners that measuring the heights during the medical examination was contrary to statutory rules as they were only orally informed about their unfitness and immediately they were supplied a form for their appeal and on the same day just after oral information about their medical unfitness. He further submitted that the Regional Medical Board, Allahabad again took their height manually adopting the same procedure as it was done at their respective centres of different districts where they were declared unfit.
20. Learned counsel for the petitioners further submits that according to the Rules provided in Appendix-A Physical Standard Test for direct recruitment as provided under sub-rule 8 is that only standardized equipment having Indian Standard Institute certification be used for Physical Standard Test examination for measuring height and chest of the candidates. It is stated that the medical examination Board measured the height of the petitioners manually and there is always possibility of variation in measurement taken manually.
21. It was next contended that the recruitment was initiated in the year 2011 and it was finalized in the year 2015, as a matter of fact the petitioners have spent their four valuable years in preparing the examinations and for physical fitness. However, in spite of the fact that they have qualified all the five stages of examinations they have been illegally rejected by the Board. Lastly, it was urged that all the petitioners have prescribed height of 168 cms. and above and when the Medical Board had found no other deficiency in their height. Lastly, it was urged that the medical examination Board has acted contrary to the Rules, 2008 without having jurisdiction to measure the height of the petitioners again when they were held qualified in respect of height in the year 2011 by the Uttar Pradesh Police Recruitment and Promotion Board, Lucknow itself.
22. Learned Standing Counsel has received the instructions from the Deputy Inspector General of Police (Establishment), which has been duly signed by him. With the consent of learned counsel appearing for the parties, the said instruction is taken on record.
23. The learned Standing Counsel submits that the petitioners have been examined by the Medical Board and they were found unfit. They had preferred an appeal on the same day and the Medical Board has rejected their appeal. All the petitioners have been rejected on the ground of deficiency in their height.
24. Learned Standing Counsel further submits that the petitioners were examined by the Medical Board. He has further submitted that the selection has been made strictly in terms of the Rules, 2008 and the minimum requirement under Appendix-1 is 168 cms. for the General, OBC and SC and 160 cms. for the ST candidates. He further submits that it is true that the height is measured at the time of physical standard test which the petitioners have qualified but under Rule 15(i) of the Rules, a medical test is conducted at the Police Headquarter in terms of the procedure laid down under Appendix-4. There is no bar that the Medical Board can confine its examination of the candidates only in respect of deficiencies of human bodies which is mentioned in Appendix-4(a) but the Medical Board can also re-examine the height and the chest which was earlier examined at the time of the physical standard test.
25. Lastly, the learned Standing Counsel urged that in the Police Force the physical fitness is one of the necessary requirements for the appointment on the post of Sub-Inspector (Civil Police). Hence no compromise can be made in respect of the physical fitness of a candidate.
26. I have heard learned counsel for the petitioners Sri Seemant Singh and Sri Vikram Bahadur Yadav, learned Standing Counsel for the State.
27. All the petitioners are qualified for the appointment as Sub-Inspector of Police. Their names find place in the tentative select list. However, they have been declared unfit by the Medical Board on the ground of deficiency in their height.
28. The petitioners' physical standard test was held in October, 2011 and they were found eligible as their height was found 168 cms. and above. All the petitioners were given a result showing their I.D. No., date of birth, category, height (cms.), chest (normal) and chest (expanded). They have brought on record those result of medical examination, which was issued by the authorized signatory as annexure-3 to the writ petition.
29. The details of the petitioners' physical standard test result are as follows:
Name Category Height (cms.) Date of Physical Standard Test Manoj Kumar Yadav OBC 168 12/10/11 Brijesh Kumar Maurya OBC 168.3 04/10/11 Raj Kumar SC 168.2 09/09/11 Jitendra Pratap OBC 168 10/10/11
30. All the petitioners qualified the physical standard test, preliminary written test, physical efficiency test, main written test and group discussion, however, they have been finally rejected in the medical test.
31. The basic grievance of the petitioners is that instead of standardized equipment their height was measured by the Medical Board manually and there is a scope of error in case the height is measured manually.
32. Since there was only dispute in regard to the deficiency in height, with the consent of learned counsel appearing of the parties, the Court on 28.9.2015 directed the petitioners to be present in the Court and the respondents were directed to measure their heights in the court room. In compliance thereof, Sri Alok Dubey, Deputy Superintendent of Police, P.H.Q., Allahabad and Sri Ram Pravesh Rai, Reserve Inspector, Allahabad have taken the measurement of the petitioners' height on their instrument in the Court room. They have reported the following result of the petitioners' height:
Name Height (cms.) Manoj Kumar Yadav 167.9 Brijesh Kumar Maurya 167.4 Raj Kumar 167.7 Jitendra Pratap 167.2
33. In the instructions received by the learned Standing Counsel, which is on the record, the only ground mentioned to declare the petitioners unfit is that they do not have prescribed height, however, the detail of the each candidate's height has not been mentioned. Hence the learned Standing Counsel was directed to produce the original medical report of all the petitioners. The report of the Medical Board indicates the following heights of the petitioners:
Name Height (cms.) Manoj Kumar Yadav 167.6 Brijesh Kumar Maurya 167.6 Raj Kumar 167.7 Jitendra Pratap 167.8
34. As can be seen from the aforementioned figures viz. the result of the physical standard test of the petitioners, the heights taken in the Court room and the findings of the Medical Board, it is evident that there is discrepancy in all the figures. Even in the physical standard test, the result of which was supplied to each petitioner under the signature of the authorized authority, the petitioners fulfill the minimum requirement but the measurement taken in the Court and that of by the Medical Boards, also varies.
35. The averments of the petitioners in the writ petition are that as per requirement of the Rules the height of the petitioners ought to have been taken by the standardized equipment but their heights were measured manually. In the Court room also the officers had measured the heights of the petitioners manually.
36. The Appendix-1(8) to the Rules, 2008 enjoins that the only standardized equipments having Indian Standard Institute certification be used for physical standard test examination. It has not been denied by the respondents that the petitioners heights were as per requirement of Appendix-1(8). The same requirement is under Appendix-2(g) for the physical efficiency test but in the medical examination which was held in terms of Appendix-4, the petitioners' height was measured manually.
37. One of the submissions of learned counsel for the petitioners is that once the petitioners were found qualified in the physical standard test and the result was declared, wherein the petitioners' heights have been mentioned (annexure-3) it was not open to the Medical Board to conduct again physical standard test at the time of the medical examination.
38. Learned counsel for the petitioners has drawn the attention of the Court to Appendix-4(a) which requires that the Medical Board manually examines the deficiency of the human body such as knock-knee, bow-legs, flatfeet, varicose-veins, distant and near vision, colour blindness, hearing test comprising Rinne's test, Webber's test and tests for vertigo etc. However, it further requires that if the circumstances so warranted, the Police Recruitment and Promotion Board may conduct other examinations after obtaining opinion of experts.
39. It is contended on behalf of the petitioners that even if any such circumstance arose, the opinion of experts was not obtained by the Board which is one of the requirements under Appendix-4 hence their decision to reject the candidature of the petitioners on the ground of deficiencies in height, is in teeth of the requirement of Regulation-4(a) of the Rules, 2008.
40. In the present case the advertisement was made in the year 2011. As noted above, the recruitment is comprised of various stages. Concededly the petitioners have qualified all stages viz. Physical Standard Test, Written Test, Group Discussion and their names were included in the tentative select list. The Medical Board has rejected their candidature only on the ground of deficiency in height.
41. As observed above, there is nothing on the record to indicate that the respondents have used the standardized equipments as required under the Rules but the petitioners have been measured manually. In the Court room also their measurement was made manually. Under the Rules, it is provided that the result is declared by the respondents on the same day. The petitioners have not been furnished any order after their medical test and they were orally informed about their unfitness. As per Rules, on the same day, they were asked to file an appeal.
42. In my view if an order in writing is not furnished to the petitioners, giving a brief and specific reason for their rejection, any appeal on the same day is illusory. This Court in a batch of writ petitions led by Writ-A No. 52546 of 2015 (Vandana v. State of U.P. & others), has declared the provisions for filing the appeal on the same day as arbitrary and ultra vires. Relevant part of the order reads as under:
"93. After careful consideration of submissions of learned counsel for the parties and the material on record, for the reasons stated above, I hold that the provision for filing appeal on the same day as contained in Appendix-5(3)(d) to Rule-15(f) of the Uttar Pradesh Police Constables and Head Constables Service Rules, 2008, is unconstitutional and arbitrary being violative of Article 14 of the Constitution.
94. In view of the above, following orders are passed:
(i) The provision of Appendix-5(3)(d) to Rule-15 of the Rules, 2008, "on the day of the examination itself. No appeal with respect to the medical examination shall be entertained if the Candidate fails to appeal on the day of his medical examination and announcement of the result of the same" is struck down as arbitrary and ultra vires.
(ii) A fresh Appellate Medical Board shall be constituted within two months, as directed above. A candidate, who is aggrieved by the order of the Medical Board, may file an appeal to the Appellate Medical Board within two weeks. The freshly constituted Appellate Medical Board shall continue in future recruitments also until appropriate amendment is made in the Rules, 2008;
(iii) In the existing Appellate Medical Board at the Divisional level one doctor shall be of the rank of Professor of a Medical College nominated by the Principal of the concerned College.
(iv) The petitioners' appeals shall be considered by the newly constituted Appellate Medical Board.
95. The writ petitions are, accordingly, partly allowed.
96. Parties will bear their own costs."
43. In the present case also the petitioners were supplied a form for appeal on the same day, a copy of their memo of appeal is on the record. From a perusal of the application form it does show that they were not aware about the specific ground for their rejection and on the basis of oral information, which they received, they had mentioned the said ground in the appeal. In their forms which they have submitted for appeal, they mentioned "mWapkbZ de gS". The petitioners have averred in the writ petition that the Board before declaring the result of medical examination on their official website, had not pasted the result of medical examination on notice board. They were orally informed that their height is not up to mark as required under the Rules.
44. The practice adopted by the respondents of not furnishing the result of the medical examination, in my view, is in violation of principles of natural justice. If a candidate is not found medically fit the respondents ought to have served an order in writing with brief reasons for their rejection. The oral communication or a declaration on mike or a list pasted on the notice board of the unsuccessful candidates in the medical examination, do not conform the principles of natural justice and fair play.
45. The Supreme in its long line of decisions has time and again emphasized the need of furnishing reasons. Now it is a well established law that furnishing reason is an important facet of natural justice. The Supreme Court has found that the distinction between the administrative and quasi judicial orders was so thin. Even in the case of administrative orders the reasons have to be furnished. The Constitution Bench of this Court in the case of S.N. Mukherjee Vs. Union of India2 has held as under:
"36. Reasons, when recorded by an administrative authority in an order passed by it while exercising quasi-judicial functions, would no doubt facilitate the exercise of its jurisdiction by the appellate or supervisory authority. But the other considerations, referred to above, which have also weighed with this Court in holding that an administrative authority must record reasons for its decision, are of no less significance. These considerations show that the recording of reasons by an administrative authority serves a salutary purpose, namely, it excludes chances of arbitrariness and ensures a degree of fairness in the process of decision-making. The said purpose would apply equally to all decisions and its application cannot be confined to decisions which are subject to appeal, revision or judicial review. In our opinion, therefore, the requirement that reasons be recorded should govern the decisions of an administrative authority exercising quasi-judicial functions irrespective of the fact whether the decision is subject to appeal, revision or judicial review. It may, however, be added that it is not required that the reasons should be as elaborate as in the decision of a court of law. The extent and nature of the reasons would depend on particular facts and circumstances. What is necessary is that the reasons are clear and explicit so as to indicate that the authority has given due consideration to the points in controversy. The need for recording of reasons is greater in a case where the order is passed at the original stage. The appellate or revisional authority, if it affirms such an order, need not give separate reasons if the appellate or revisional authority agrees with the reasons contained in the order under challenge."
(emphasis supplied)
46. The said decision has been consistently followed by the Supreme Court and this Court. In the case of Assistant Commissioner, Commercial Tax Department, Works Contract and Leasing, Kota v. Shukla and brothers3 the Supreme Court has observed that the reasons are the soul of the order. Relevant part of the said order reads as under:
"13. At the cost of repetition, we may notice, that this Court has consistently taken the view that recording of reasons is an essential feature of dispensation of justice. A litigant who approaches the court with any grievance in accordance with law is entitled to know the reasons for grant or rejection of his prayer. Reasons are the soul of orders. Non-recording of reasons could lead to dual infirmities; firstly, it may cause prejudice to the affected party and secondly, more particularly, hamper the proper administration of justice. These principles are not only applicable to administrative or executive actions, but they apply with equal force and, in fact, with a greater degree of precision to judicial pronouncements. A judgment without reasons causes prejudice to the person against whom it is pronounced, as that litigant is unable to know the ground which weighed with the court in rejecting his claim and also causes impediments in his taking adequate and appropriate grounds before the higher court in the event of challenge to that judgment. Now, we may refer to certain judgments of this Court as well as of the High Courts which have taken this view."
47. Regard being had to the fact that the Rules provide that a candidate who has been rejected in the medical test, can file an appeal on the same day. In my view, if the reason is orally informed, a candidate cannot file an appeal merely on the basis of oral communication. Such an appeal is an eyewash and empty formality. It is true that there may be a constrain to complete the recruitment process of the police personnel expeditiously but the experience reveals that ordinarily it takes 2-3 years to complete the entire process of recruitment. In the present case itself the advertisement was made in the year 2011 and the result was declared in 2015 thus giving a short time to file an appeal and to furnish the brief reason to each candidate who has been rejected, will not make any inordinate delay in completing the recruitment process.
48. It is pertinent to bear in the mind that a young candidate who has made preparation for the physical test and written test for 2-3 years cannot be rejected at the last stage without complying a fair procedure. Moreover, the measurement of the height and chest is one of the essential and minimum requirements for the recruitment as a police personnel. For the said reason, in five stages of the recruitment the physical standard test is most important and essential test which is taken at the beginning of the recruitment process. In the physical standard test the petitioners were found having minimum height and some of the petitioners were found to be above 168 centimeters.
49. Relevant it would be to submit that the petitioners were supplied the result of their physical standard test duly signed by the appropriate authority and they fulfilled the norms for the height under the Rules.
50. The medical test is the final phase of recruitment, the measurement of height and the chest is not mentioned under Appendix-4(a) where certain deficiencies such as knock-knee, varicose veins, flat feet etc. are mentioned. The Appendix-4(a) further requires that there is no bar for the other examination by the Medical Board but one of the requirements is to seek the opinion of experts. The language of the aforesaid Rule clearly indicates that it refers some other disease/ deficiency wherein advice of the experts is required, in the case of height and chest, no opinion of experts is required, therefore, I find force in the submission of learned counsel for the petitioners that once the petitioners have qualified the physical test, ordinarily, they should not be rejected by the Medical Board on the ground of difference of height and chest except in the case of glaring irregularity. In such case it is open to the Medical Board to re-examine a candidate but it should record a reason why there was necessity for re-examination of the height particularly in a case when a candidate has qualified all the stages of recruitment and is rejected at the last stage of recruitment on the ground of deficiency in the height.
51. As a sequel to above, I find that the petitioners' height has not been measured properly as per rules hence the Medical Board is directed to re-examine the petitioners' height by standardized equipment within three weeks from the date of communication of this order.
52. With the aforesaid observations, the writ petition is disposed of.
53. No order as to costs.
Order Date :- 07.10.2016 Dev/DS/-