State Of Uttarakhand & Others vs Girdhari Kandpal

Ramesh Ranganathan, CJ

The application to condone the delay, in preferring the Special appeal, is not opposed by the learned counsel for the respondent. The Delay Condonation Application No.13013 of 2017 is therefore allowed, and the delay is condoned.

Heard Sri Anil Bisht, learned Standing Counsel for the appellants, and Sri Chitrarth Kandpal, learned counsel for the respondent-writ petitioner; and, with their consent, the Special Appeal is disposed of.

This Special Appeal is preferred against the order passed by the learned Single Judge in WPSS No. 144 of 2015 dated 30.03.2017. The respondent-writ petitioner had filed WPSS No. 144 of 2015 seeking a writ of certiorari to quash the order dated 30.09.2013 passed by the Divisional Forest Officer, Forest Division, Almora; and a writ of mandamus commanding and directing the respondent-authorities to regularize the petitioner's services from the year 2003, instead of the year 2009, in the post of the Forest Guard/Forester in the department.

Facts, to the limited extent necessary, are that the petitioner was appointed to the post of Resin Moharir (work charge) on 01.09.1983 on the basis of the order dated 27.08.1983. The petitioner, along with nine others, had earlier filed Writ Petition No. 5577 of 1993 which was decided on the basis of the judgment of the Supreme Court in Putti Lal.

In terms of the Government order dated 24.11.2001, the posts of Zamadar and Moharir were merged with the post of Forester pursuant to an amendment made in the Subordinate Forest Service Rules. In terms of the subsequent 2003 Regularisation Rules, the petitioner was considered for regularisation, but his candidature was rejected on the ground that his height was only 155 cm as against the prescribed height of 158 cms. The petitioner filed WPSS No. 1800 of 2007, and his services were regularised thereafter in the year 2009. The said Writ Petition No. 1800 of 2007 (S/S) was finally decided on 08.04.2013 directing the petitioner to file a representation regarding his grievances pertaining to his regularisation. The petitioner submitted such a representation on 24.04.2013. The Chief Conservator of Forests, Kumaun, Uttarakhand, Nainital, by his order dated 09.05.2013, referred the matter to the Divisional Forest officer, Forest Division, Almora. The Divisional Forest Officer, Almora, by his order dated 30.09.2013, regularized the petitioner in service, and granted him seniority from the year 2009.

It is the petitioner's case that he was medically examined in the year 2003 and was found unfit; later in the year 2009, he was held to have the required height; it is evident therefore that his rejection in the year 2003, in view of shortage of height, is illegal; and he is, in fact, entitled for regularization from the year 2003, and not subsequently from the year 2009.

In the order under the appeal, the learned Single Judge observed that the petitioner's case was rejected in the year 2003, on the ground that he did not fulfill the criteria laid down; but for the same criteria, as laid down in the year 2003, he was found suitable in the year 2009 for regularisation to the post of Forest Guard. While allowing the writ petition, the learned Single Judge observed that the petitioner must be deemed to have been appointed as Forest Guard, with effect from the year 2003, with all consequential benefits. Aggrieved thereby, the present Special Appeal.

Rule 13 of the Subordinate Forest Service Rules, as amended from time to time, relates to the physical measurements required for appointment to the post of Forest Guard. For direct recruitment to the post of Forest Guard, the said rule requires the applicant to possess a minimum height of 163 cm and a chest measurement normal of 79 cm, and on expansion of upto 84 cms. In terms of the proviso thereto, relaxation is extended to applicants from certain areas, which includes Kumaun and Garhwal, for whom the minimum height has been relaxed to 158 cms.

Sri Anil Bisht, learned Standing Counsel for the appellant, would submit that the height of the respondent-writ petitioner was actually 155 cm and, since it is even below the relaxed height of 158 cm as prescribed in Rule 13, his claim for regularization was rightly rejected in the year 2003; he was regularized subsequently in the year 2009, evidently, without a physical examination being conducted to ascertain whether he possessed the prescribed minimum height; and, while the petitioner's regularization in the year 2009 is not in issue in the present proceedings, the learned Single Judge had erred in directing that he be extended the benefit of regularization with effect from the year 2003.

On the other hand Mr. Chitarath Kandpal, learned counsel for the respondent-writ petitioner, would submit that it is evident, from Rule 13 itself, that the requirement of a minimum height of 158 cm is not applicable in the case of promotion; and the petitioner's appointment should have been treated as promotion, and not as direct recruitment.

We must express our inability to agree. Promotion to a post is from a lower cadre to a higher cadre. The petitioner was working on a workcharged basis, and was regularized as a Forest Guard in the year 2009. The petitioner's claim is for regularisation, and is not for promotion; and, consequently, the requirement of a minimum height of 158 cm, as per Rule 13, would apply.

A curious aspect of this case is that, while the respondent-writ petitioner's height was found to be 155 cm far below the minimum prescribed height of 158 cm., and his candidature for regularization was therefore rejected in the year 2003, he was later regularized in the year 2009 on the basis of a certificate produced by him that he fulfilled the prescribed height of 158 cms.

While Mr. Anil Bisht, learned Standing Counsel appearing on behalf of the appellant, would submit that the genuineness of the certificate, produced by the respondent-writ petitioner while seeking regularization in the year 2009, was not even examined, the fact remains that the petitioner has now retired from service; and, as it was not even in issue in the writ petition, it would be wholly inappropriate for us, in appellate proceedings, to examine the validity or otherwise of his regularization in the year 2009. The only question which needs examination is whether the learned Single Judge was justified in directing regularization of his services from the year 2003, as against his regularization in the year 2009. While the appellant's claim that the respondent-writ petitioner's height is only 155cm, as against the prescribed minimum height of 158 cms, Mr. Chitrath Kandpal, learned counsel for the respondent-writ petitioner, would contend otherwise and submit, placing reliance on the certificate, that the respondent-writ petitioner's height is actually 158 cm.

As the respondent-writ petitioner's height can be easily ascertained on his physical examination, suffice it to set aside the order under appeal and, instead, direct the appellant to cause physical measurement of the petitioner's height afresh, by a qualified Doctor, within three weeks' from today; and, in case his height is found to be 158 cm or above, to then treat his services as having been regularized in the year 2003, and pay him all such benefits to which he would entitled to. If however, on physical examination as directed hereinabove, the respondent-writ petitioner's height is found to be below 158cm, he shall then not be entitled to get the benefits of regularization from the year 2003, and he shall be treated to have been regularized only from the year 2009 onwards. The entire exercise, culminating in a final order being passed by the Divisional Forest Officer, shall be completed at the earliest and, in any event, within one month from the date of production of a certified copy of this order.

This Special Appeal is disposed of accordingly. No costs.