Manoj Kumar Das vs Union of India

Heard learned counsel for the petitioner and learned counsel for the respondents.

Petitioner has approached this Court with a prayer for a direction to the respondents for issuance of appointment letter for the post of Constable/

GD on the ground that petitioner has duly qualified in the written, physical and medical test and has obtained 51 marks out of 100 marks, whereas,

other candidates who have got less marks than the petitioner have been selected and appointed.

The short facts of the case is that an Advertisement inviting applications from the eligible candidate having age group of 18 to 25 years was floated

in the year 2015 for appointment of constable/ GD in various groups i.e. Assam Rifles, etc. Petitioner fulfilling the requisite qualification, applied for

the same and accordingly, an Admit Card bearing Roll No. 4205038812 was issued to petitioner for appearing in the physical test to be held on

16.06.2015. The petitioner appeared in the physical and written test and was declared duly qualified and had obtained 51 marks out of 100 marks. As

the petitioner had qualified preliminary and main examination, he was called to appear in the medical test to be held at Ranchi and was declared fit by

the Medical Board. Thereafter, final results were published on 02.02.2017, in which the name of petitioner did not appear whereas the other

Scheduled Caste Category candidates namely, Diwakar Kumar Das, who had obtained 45 marks and Karan Kumar Das, who had obtained 43 marks

were selected and appointed to the post of Police Constable and though the petitioner had obtained 51 marks and also belongs to SC Category and

was declared successful in physical test, written test and medical test but yet his case was not considered. As the petitioner was not selected for the

post of Police Constable though he fulfilled all the requisite criteria and qualification and was also declared successful and obtained 51 marks whereas

candidates in the category of SC to which the petitioner belongs who had obtained lesser marks than the petitioner i.e. 43 and 45 have been

considered and appointed to the post of Police Constable. Petitioner aggrieved by the discriminatory attitude of the respondents has knocked the door

of this Hon’ble Court for redressal of his grievances.

Learned counsel appearing for the petitioner strenuously urges that petitioner is a member of SC category and has obtained 51 marks and persons

having obtained 43 and 45 marks from his category have been considered and issued letter of appointment, which is illegal, arbitrary and not tenable in

the eyes of law. Learned counsel submits that he has been declared physically and medically fit by the respondents and as such, his case ought to

have been considered by the respondent-authorities. Learned counsel further argued that in the counter-affidavit respondents have come-out with a

plea that petitioner at time of the chest measurement though not fulfilling the requirement, was inadvertently declared fit by the Respondents and as

such, he could not have been appointed on the ground of less measurement of chest as per the requirement of the Respondents. Learned counsel

further argued that in view of disputed and contrary statement of the Respondents showing the petitioner to be physically fit and on the other hand

showing him to be having less measurement as per the requirement of chest, the petitioner was not appointed and as such, on the direction of this

Hon’ble Court, a Medical Board consisting of five Medical Officers was constituted. The Medical Board in presence of the Judicial Officer and

also one of the members of CRPF i.e. 2nd in Command, re-measured the chest of the petitioner and found the petitioner within the zone of

consideration fulfilling the requirement and as such, in view of medical report of the Medical Board constituted by the order of this Hon’ble Court,

a direction be given to the Respondents to consider the case of the petitioner for appointment to the post of Police Constable.

Per contra, counter-affidavit has been filed by the respondents. Mr. Rajiv Sinha, learned ASGI appearing for the respondents, vehemently opposes

the contention of the learned counsel for the petitioner and argues that in no way petitioner can be appointed to the post of Police Constable as, as per

the rules and procedures, person having less measurement and not fulfilling the required measurement of chest cannot be appointed, even if he is

declared physically fit. Learned counsel further argued that inadvertently due to typographical error, the petitioner has been declared physically fit,

whereas, the measurement of the chest clearly shows that petitioner does not fulfill the required measurement and as such, the petitioner cannot be

allowed to take advantage of typographical error of the Respondents. Mr. Sinha very fairly submits that on the earlier occasions all these facts were

not brought to the notice of the Court and proper assistance was not given by Respondent’s Associate Counsel and as such, under wrong

impression, this Hon’ble Court passed an order for constitution of Medical Board and though before the Medical Board, the chest measurement of

the petitioner was found more than the requirement, the petitioner cannot be appointed for the reasons that subsequently, may be petitioner has

increased his chest by way of exercise or following other methods for increasing the chest measurement and as such, even if medical report of the

Medical Board constituted by the order of this Hon’ble Court is in favour of the petitioner, no appointment can be given to him as at the time of

recruitment process the petitioner did not fulfill the required chest measurement.

 To strengthen his arguments, learned counsel heavily relies on the judgments passed by the Hon’ble Apex Court in following cases:-

(i) Dabur (Dr. S.K. Burman) Pvt. Ltd. Deoghar, Bihar Vs. the Workmen [(1968) 1 SCR 61]; &

(ii) Madras Institute of Development Studies and Anr. Vs. K. Sivasubramaniyan & Ors. [(2016) 1 SCC 454].

Be that as it may, having gone through the rival submissions of the learned counsel for the parties, this Court is of the considered view that

admittedly the petitioner secured more marks than the last selected candidates. Persons having 43 and 45 marks have been selected and appointed

whereas, the petitioner, who has obtained 51 marks and also belongs to the category of SC and was declared pass in the physical test, written and

main examination and also in the medical test but his case has not been considered on the ground that he does not fulfill the requirement of chest

measurement and at the time of measurement, it was found to be less than the required measurement. The petitioner was not appointed only on the

ground of having less measurement of chest though he was declared physically fit and had qualified in all other events and also declared fit by the

Medical Board. As the main consideration of the Respondents was that the requirement of the chest measurement was not fulfilled by the petitioner,

this Court had directed the Respondent for constitution of a Medical Board and as per the order and direction of this Court, a Medical Board was

constituted by the Civil Surgeon, Deoghar where the measurement process took place. A five member board consisting of Medical Officers was

constituted and the measurement of the petitioner took place in presence of the Judicial Officer duly appointed by the Principal District & Sessions

Judge, Deoghar. Even a representative of the Central Reserve Police Force to the rank of 2nd in Command, CRPF was present and in the presence

of these Officers, the measurement of the chest was taken. A report dated 20.04.2018 to that effect has been submitted before this Court where it

has been mentioned that after verification of the petitioner, Manoj Kumar Das, his chest measurement was found to be 84 cms. Expiration and on

Inspiration it was found to be 89 cms. The earlier chest measurement and required standard were found to be 76 cms. against 80 cms. Unexpanded

and 81 cms. against the 85 cms. Expanded. There is a difference of about 8 to 9 cms. which cannot be overlooked. As measurement was done by a

five members Board, who were Medical Officers including the Civil Surgeon Deoghar and also in presence of the Judicial Officer and 2nd in

Command of CRPF, it can comfortably be said that the measurement was true and real measurement of chest of the petitioner. What has been

brought by way of counter-affidavit was never earlier placed nor was it brought to the notice by way of impugned order. Reasons cannot be

supplemented in the counter-affidavit.Â

 The Hon’ble Apex Court in Para-9 of the Judgment passed in the case of Commissioner of Police, Bombay Vs. Gordhandas Bhanji, reported in

AIR 1952 SC 16 has held as under:-

An attempt was made by referring to the Commissioner's affidavit to show that this was really an order of cancellation made by him and that the

order was his order and not that of Government. We are clear that public orders, publicly made, in exercise of a statutory authority, cannot be

construed in the light of the explanations subsequently given by the officer making the order of what he meant, or of what was in his mind or what he

intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the actings and conduct of those to

whom they are addressed and must be construed objectively with reference to the language used in the order itself.

 The aforesaid proposition has been followed in the case of Mohinder Singh Gill Vs. Chief Election Commissioner, New Delhi, reported in (1978) 1

SCC 405. Para-8 of the said Judgment is relevant to be quoted hereunder:

The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the

reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning

may, by the time it comes to Court on account of a challenge, get validated by additional grounds later brought out. We may here draw attention to the

observations of Bose, J. in Gordhandas Bhanji: Public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of

explanations subsequently given by the officer mak

ing the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have

public effect and are intended to affect the actings and conduct of those to whom they are addressed and must be construed objectively with

reference to the language used in the order itself.

 Orders are not like old wine becoming better as they grow older.

The case of the petitioner was rejected only on the ground that he did not fulfill the requirement of chest measurement though he was declared

successful in all the events and had obtained more marks than the last selected candidates and therefore, his case was referred before the Medical

Board. Similar issue fell for consideration before the Hon’ble Apex Court in case of Md. Masaud Alam v. State of Bihar, reported in (2012) 4

SCC 144 and the Hon’ble Court was of the view that the Civil Surgeon is the competent person regarding measurement. Para-12 of the said

judgment is reproduced herein below:-

 “12. Police Order No. 202 of 1988 speaks of certain qualifications that require to be fulfilled by a candidate before being selected and appointed

to the post of constable. One such qualification is that the candidate must possess at least 165 cm height. The height of the appellant has been found to

be 166 cm by the Chief Medical Officer, which was accepted by the learned Single Judge and this factual aspect should have been accepted by the

Division Bench in the letters patent appeal filed before it before taking exception to the approach of the learned Single Judge and before setting aside

the finding of fact recorded by the learned Single Judge with regard to the height of the appellant. In view of the above narration, since the appellant

has the requisite height and since he satisfies all other conditions, in our opinion, the respondents were not justified in terminating the services of the

appellant in the year 1997. Therefore, we cannot sustain the impugned judgment.â€​Â

 The Hon'ble Apex Court in para-19 and 20 of the Judgment in the case of National Thermal Power Corporation, Kahalagaon and others Vs.

Nakul Das and others reported in (2014) 9 SCC 385 has held as under:-

 “19. Pursuant to the orders dated 9-5-2013 directing NTPC to appoint the selected candidates, two out of the aforesaid five appellants have

been given appointment. However, cases of other three appellants are rejected as in the medical examination conducted, they are found medically

unfit as suffering from

“colour blindnessâ€. They are Appellants 1, 4 and 5. The learned counsel appearing for these appellants submitted that their medical examination

was done in haste; they had made representation to NTPC regarding constitution of Medical Board to re-examine their cases to which NTPC was not

agreeing; they had got themselves medically examined from the same hospital and same doctor, namely NTPC, Kahalagaon Hospital and also outside

doctor and they had duly certified that these appellants were not suffering from “colour blindnessâ€. Additional affidavit dated 26-6-2005 is filed

including the result of their medical examination from out-patient department of NTPC, Kahalagaon Hospital, as well as opinion of some private

doctors in support of the aforesaid submission.

Having regard to the aforesaid facts, we are of the opinion that it would be in the interest of justice that NTPC constitutes another Medical Board

for re-examination of these three appellants and decide their fate on the basis of the opinion given and taken further action on the basis of opinion

given by the reconstituted Medical Board. This appeal is disposed of on the aforesaid terms.â€​

The reliance of the learned counsel for the respondents in case of Dabur (Dr. S.K. Burman) Pvt. Ltd. Deoghar, Bihar Vs. the Workmen (supra)

and in case of Madras Institute of Development Studies and Anr. Vs. K. Sivasubramaniyan & Ors. (supra) are not at all attracted in this case. Even

if, the petitioner was declared physically fit because of typographical error though he was unfit because of having less measurement of chest as per

the requirement, the Court had every power sitting under Article 226 of the Constitution to refer the matter before a duly constituted Medical Board to

re-examine the candidate in presence of Judicial Officer and also in presence of an Officer of CRPF. The petitioner has not thrown any challenge to

the selection process, rather, he has sought relief with regard to his candidature and entitlement to the said post. To resolve the dispute related to

physical fitness, though occurred by way of typographical error, the same has been sorted-out by referring to an Medical Board comprising of five

doctors including the Civil Surgeon and also a Judicial Member duly authorized and appointed by Principal District & Sessions Judge and an Officer of

CRPF to the rank of 2nd in Command and the report of the Medical Board cannot be disbelieved as difference is of 8 cms. to 9 cms.

As a cumulative effect of the aforesaid observations, rules, guidelines, judicial pronouncements and legal propositions, I hereby direct the respondent

Nos. 2 and 3 to consider the case of the petitioner for appointment to the post of Police Constable/GD in view of medical report of the Apex Medical

Board and in view of the fact that he has obtained more marks than the last selected candidate in his category.

Needless to say that if the case of the petitioner is considered for appointment, an offer of appointment shall be given to him within a period of six

weeks from the date of receipt of a copy of this order.

Resultantly, the writ petition stands allowed.