Krishna Kumar Sharma vs State of U.P. and Another

M. Katju, J.—This writ petition and connected Writ Petition No. 32014 of 1996 are being disposed of by a common judgment.

Heard Mr. L. P. Naithani, learned Counsel for the Petitioner and learned standing counsel.

By means of this petition, the Petitioner has prayed for a mandamus directing the Respondent No. 2, Excise Commissioner, U.P. to consider the Petitioner for promotion as Excise Inspector. The Petitioner was appointed as clerk in the office of Excise Commissioner, U.P. on 23.10.1963 through a regular competitive test held in June, 1963. A photostat copy of the appointment letter dated 23.10.1963 in Annexure 1 to the petition. The Petitioner was confirmed as clerk on 1.4.1967. The Petitioner was promoted as Head Clerk in August, 1985. The Petitioner passed Intermediate Examination in 1995 and he claimed that he is fully qualified for promotion as Excise Inspector. He filed Writ Petition No. 19027 of 1989 for promotion as Excise Inspector but this writ petition was dismissed on 11.11.1993 on the ground that the Petitioner does not hold the requisite educational qualification vide Annexure 5 to the writ petition. It is pertinent to mention that there was no observation regarding height in the judgment. Against this decision, the Petitioner filed a Special Appeal No. 14 of 1994 in which it was observed that according to the counter-affidavit filed in the writ petition, the Petitioner does not possess the minimum educational qualification which is Intermediate.

In paragraph 12 of the writ petition, it has been alleged that by notification dated 7.1.1992, the U.P. Subordinate Excise Services Rules have been introduced by the U.P. Excise Department by which the previously existing U.P. Subordinate Service Rules, 1967 and U.P. Subordinate Service Rules, 1983 have been amended. Rule 13(2)(ii) imposed the requirement of minimum height of 162 cms. Admittedly, the Petitioner''s height is less than 162 cms. but the Petitioner has challenged the aforesaid requirement of height of 162 cms. imposed by Rule 13(2)(ii).

So far as the Petitioner''s educational qualification is concerned, now there is no dispute that the Petitioner has done his Intermediate and hence from the point of view of educational qualification, he is qualified to be appointed as Excise Inspector. The question which remains is as to whether Rule 13(2)(ii) of 1992 Rules is valid.

Learned Counsel for the Petitioner has alleged in paragraph 19 of the petition that there is no reasonable basis for fixing this minimum height of 162 cms. and this does not co-relate directly or indirectly with the duties to be performed by an Excise inspector. In paragraph 20 of the counter affidavit, it is admitted that the work and conduct of the Petitioner is of good standard. The Petitioner has the educational qualification for the post of Excise Inspector. The only hurdle in the path of the Petitioner is his height.

In my opinion, the imposition of minimum height of 162 cms. for Excise Inspector is wholly arbitrary and hence violative of Article 14 of the Constitution. In my opinion, the main requirement of the Excise Inspector is that he should be honest and hard working. A man should not suffer for no fault of his unless the physical requirement is absolutely necessary for the duties which he performs. In my opinion, the duties of Excise Inspector do not require that he should be above 162 cms. in height. Mow a days brain and character matter more than brawn. It is admitted in paragraph 20 of the counter-affidavit that the work and conduct of the Petitioner has been good. The allegation in paragraph 21 of the writ petition that throughout the Petitioners tenure in the U.P. Excise Department, there was never any complaint nor disciplinary proceeding against him and his entire career is unblemished has been admitted in paragraph 20 of the counter-affidavit.

In the circumstances, I hold that the requirement of minimum height of 162 cms. in Rule 13(2)(ii) of U.P. Subordinate Service Rule, 1992 is wholly arbitrary and hence, violative of Article 14 of the Constitution.

The petition is allowed. The Respondents are directed to consider the Petitioner forthwith for promotion to the post of Excise Inspector in accordance with law without requiring the minimum height of 162 cms.