Court No. - 29
Case :- SPECIAL APPEAL DEFECTIVE No. - 479 of 2021 Appellant :- State Of U.P. Through Secretary,Home And 4 Others Respondent :- Ankit Kumar Counsel for Appellant :- Anand Kumar Ray Counsel for Respondent :- Seemant Singh
Hon'ble Munishwar Nath Bhandari,Acting Chief Justice Hon'ble Jayant Banerji,J.
Order on Civil Misc. Delay Condonation Application No. 1 of 2021
Heard on the application under section 5 of Limitation Act.
Looking to the reasons given in the application and not opposed by the side opposite, the application is allowed.
Delay is condoned.
Order on Special Appeal
None appears on behalf of the respondent though the case was called in revised list.
Shri A.K. Roy, learned Additional Chief Standing Counsel appearing for the appellant is present.
By this appeal, a challenge is made to the judgment dated 28th November, 2019 whereby the writ petition preferred by the non-appellants was allowed. It was after relying upon the judgment passed in Writ-A No. 14195 of 2018 dated 5th September, 2018. The concluding para of the said judgment has been quoted by the learned Single Judge. The appeal bearing Special Appeal No. 725 of 2020 [State of U.P. Through Secretary, Department of Home (Police Section) and 5 others Vs. Bhanu Pratap Rajput] in the said case apart from other connected appeals were disposed of by issuing appropriate directions and for ready reference paras 18 to 21 are quoted herein:
"18. On 21.01.2021, we passed a detail order in which we also noted the submissions of learned counsels for the parties. Paragraphs 14, 15, 16 and 17 of the order dated 21.01.2021, is reproduced below:-
14. Now learned counsel for the petitioners/respondents submits that since large number of candidates were examined by the appellate Medical Board on the same day, therefore, the chances of error cannot be ruled out and, therefore, an opportunity may be afforded to the petitioners-respondents to again appear before the appellate Medical Board and their height and chest measurement may again be done. The submission is that since some of the petitioners have been allowed to join pursuant to the impugned judgement passed by the learned Single Judge and petitioners are ready to bear the cost of medical examination, therefore, one opportunity may be afforded to meet the ends of justice. If in such medical examination, the petitioners are found to have the height and chest as per standard, then, they would continue in the service and in the event, they are still found unfit, then they shall have no grievance. In support of his submission, learned counsel for the petitioners-respondentshas relied upon a recent judgement and order dated 23.11.2020 passed in Special Appeal (Defective) No.679 of 2020 (State of U.P. & 2 others Vs. Rahul Kumar) which is reproduced below:-
"Heard Sri Manish Goyal, learned Additional Advocate General for the appellants and Sri Irfan Ahmad, Advocate for the respondent-petitioner.
The respondent-petitioner as per the Advertisement No.P.R.P.B.-I-I(138)/2018 had appeared in the written examination and thereafter had appeared for the physical standard verification and was found to be lesser than 168 centimeters in height. However, since he was confident that he was above 168 centimeters in height and that a wrong measurement had been done, he filed a writ petition being Writ-A No.1454 of 2020 (Rahul Kumar vs. State of U.P. & Ors.) wherein the following order was passed on 4.2.2020 :-
"Heard counsel for the petitioner, learned Standing Counsel for the State and perused the material on record.
In the present petition, similar controversy as in Writ A No.1375 of 2020 arises. The contention of the learned counsel for the petitioner is that the height of the petitioner was above the prescribed height limit of 168 centimeters, however, he has been denied only on erroneous computation of the height of the petitioner. The petitioner claims that he has certificates issued by the Medical Authorities to establish that his height is above the prescribed limit of 168 centimeters.
In view of the contrary reports, I deem it appropriate to direct that the petitioner shall appear along with certified copy of this order before the Chief Medical Officer, Bulandshahar on 17.02.2020. The petitioner shall deposit a sum of Rs. 5,000/- as cost with Chief Medical Officer, Bulandshahar, the Chief Medical Officer, Bulandshahar is directed to constitute a Medical Board constituting of three Doctors of the level of Professor and Associate Professor available at the local District Hospital. The C.M.O. shall also inform the S.S.P. of the District, who shall depute an officer of the rank of Additional Superintendent of Police to remain present before the Board on 17.02.2020. The petitioner shall also produce materials in support of his identity before the Medical Board. The petitioner shall appear before the Medical Board on 17.02.2020 and he would be medically examined with regard to his height by the Board of three doctors. The report signed by the Chairman of the Board would be sent through the Chief Medical Officer, Bulandshahar before this Court on or before 26.2.2020. This report would constitute the basis for the Court to determine as to whether the report of the Medical Board and the Appellate Medical Board is liable to be questioned or not?
Post this matter in the additional cause list on 26.2.2020 before the appropriate Court.
The matter shall not be treated as tied-up or part heard to this Court."
Thereafter, on 26.2.2020, the result of the re-measurement, as per the order dated 4.2.2020, was sent to the Court and it was found that the petitioner was above 168 centimeters in height. The writ petition on the basis of the communication was allowed.
The order dated 26.2.2020 passed by the learned Single Bench by which the writ petition being Writ-A No.1454 of 2020 was allowed, was challenged by means of the instant Special Appeal and it has been argued that the learned Single Bench exceeded its jurisdiction when it directed the Board to re-measure the petitioner's height at Bulandshahar. It has also been argued by the learned Additional Advocate General Sri Manish Goyal assisted by Ms. Akanksha Sharma, Advocate that when an Act provides for the measurement after the written examination only once then the Court could not have got re-measurement done. He has further argued that the procedure when was given out in the advertisement that the measurement would be done at the place where the petitioner had appeared in the examination, then the measurement should have been got done at Moradabad and not at Bulandshahar. He further submitted that when a procedure has been prescribed to do a particular thing in a particular manner, then there could be no deviation.
Learned counsel for the respondent-petitioner, however, submitted that when now the measurement had been done and it had been found that the petitioner was above 168 centimeters in height, then no further interference was warranted.
Having heard the learned counsel for the parties and after having gone through the records, this Court is of the view that even though there was nothing wrong in the re-measurement with regard to the height of the petitioner as it cleared the doubt which was in the mind of the candidate but that doubt could always have been cleared by repeating the measurement at Moradabad itself and the Board should not have been re-constituted at Bulandshahar.
Under such circumstances, the order of the learned Single Bench dated 26.2.2020 is modified to the extent that re-measurement may be done at the very same place where the earlier measurement had been done and for this purpose the Board, as had been constituted by the learned Single Judge, would remain the same but with the Doctors and Police personnel would be of Moradabad.
The Special Appeal is, accordingly, disposed of."
15. Learned Additional Chief Standing Counsel for the appellant now submits that he shall seek instructions from the appellants/competent authority for re- examination of the petitioners-respondents in the light of the afore-quoted judgement and order passed in the case of Rahul Kumar (supra).
16. By order dated 16.12.2020, this Court directed learned Additional Chief Standing Counsel to produce Police Recruitment Medical Examination Form and Medical Manual but the Medical Manual has not been produced.
17. Put up in the additional cause list along with other connected Special Appeals on 08.02.2021 at 2:00 p.m. The learned Additional Chief Standing Counsel shall produce Medical Manual."
19. Pursuant to the afore-quoted order dated 21.01.2021, learned Additional Chief Standing Counsel has produced before us a copy of Chapter VI of the U.P. Medical Manual and states on instructions that the appellants have instructed that they have no objection if this court directs for re-measurement of height and chest of the petitioners-respondents by a Medical Board as per provisions of Rule 15 (g) of the Uttar Pradesh Police Constable and Head Constable Rules, 2015, provided it may not be made precedent.
20. Considering the statement given by the learned Additional Chief Standing Counsel as above noted, we dispose of all these special appeals with a direction to the appellant No.2 to carry out again measurement of height and chest of the petitioners-respondents by a Medical Board as provided under Rule 15(g) of the Rules, 2015 read with Appendix 3.
21. It is made clear that we have issued the above direction with the consent of the State- appellants on the basis of the statement made by the learned Additional Chief Standing Counsel as afore-noted. Therefore, this order, to the extent of direction for re-measurement of height and chest; shall not be treated as precedent. The entire exercise shall be completed by the Appellant No.2 namely U.P. Police Recruitment and Promotion Board, expeditiously, preferably within a period of two months from the date of production of self attested computer generated copy of this order downloaded from the official website of the High Court Allahabad by the petitioners-respondents before appellant No.2."
Para 18 contains a detailed order passed by this Court on 21st January, 2021 and thereupon the final directions have been given in paras 20 and 21 of the judgment.
In view of the above, this appeal is covered by the judgment in the case of Bhanu Pratap Rajput (supra) of which relevant paras have been quoted above.
The only prayer of the learned Additional Chief Standing Counsel is to modify the directions contained in paras 20 and 21 for compliance by appellant no.2 whereas it has to be made by the Police Establishment and not by the Police Recruitment and Promotion Board.
We find necessity to modify the directions contained in paras 20 and 21 only with regard to the compliance. It would not be by the Chairman/Secretary, U.P. Police Recruitment and Promotion Board, Lucknow but by the appellant nos. 1, 3, 4 and 5.
With the aforesaid modification in paras 20 and 21 of the judgment passed in the case of Bhanu Pratap Rajput (supra), these appeals are disposed in terms of the judgment passed in the case of Bhanu Pratap Rajput (supra) after causing interference in the impugned judgment to the extent indicated above.
Order Date :- 30.7.2021 Madhurima (Jayant Banerji, J.) (Munishwar Nath Bhandari, ACJ.)