Hon'ble Jaspreet Singh,J.
Heard Sri Gopal Kumar Srivastava, learned Standing counsel for the State-appellants and Sri G.N.Mishra, learned counsel for the respondent, on the question of condoning the delay as well as admission of appeal.
This special appeal has been filed by the State-appellants barred by 148 days.
For the reasons stated in the affidavit accompanying the delay condonation application, we are of the view, that cause shown in the affidavit filed in support of delay condonation application is sufficient. Therefore, delay in filing the appeal is condoned.
The C.M.A. No. 97074 of 2019 is accordingly, allowed.
The instant Special Appeal has been filed under Chapter VIII Rule 5 of the Allahabad High Court Rules, 1951 against the Judgement and order dated 25.02.2019 passed in Service Single No. 5401 of 2019 (Lokendra Singh Vs. State of U.P. and other), whereby the learned Writ Court had directed the appellants to make appropriate arrangement for measuring the height of the writ petitioner-respondent by computerised method in presence of Government Doctor, within ten days from the receipt of the order before it.
Learned counsel for the State-appellants has submitted that in earlier round of litigation, the writ petition which was filed by the respondent for his non-selection being Writ A No. 14751 of 2018 was dismissed vide order dated 06.08.2018 and therefore subsequent second writ petition is not maintainable. Next submission is that as per clause 5 of the circular which is at page 32 of the paper-book specifically provides that if the respondent is not satisfied with his physical standard test, he has a remedy to file objection on the same day but in the instant case, the respondent has not filed any objection/application pursuant to clause 5 of the circular, therefore, the respondent cannot make any prayer for re-measuring of his height in view of the order passed by the co-ordinate Bench of this Court and thus the writ petition was not maintainable. Learned counsel has next submitted that the learned Writ Court without considering the aforesaid arguments passed the impugned Judgement and order dated 25.02.2019 and thus the same is liable to be set aside.
Per contra, learned counsel for the writ petitioner-respondent has submitted that the earlier writ petition was filed for non-selection of the respondent and not for the reasons assigned by the State-appellants. When the writ petitioner-respondent came to know that he is not selected for the reason that his height is below the prescribed standard and therefore, subsequent writ petition being Service Single No. 5401 of 2019 was filed seeking for issuance of writ of mandamus to ensure re-medical examination of the writ petitioner-respondent for verification of measurement of height, as the height of the writ petitioner-respondent is 168.3 c.m. where his height has been recorded as 167.5 c.m. on account of which, the writ petitioner-respondent was declared unsuccessful. Learned counsel has also drawn our attention to the order passed in the matter of the Veerendra Yadav and Deepak Kumar which is at page 80 and 81 of the paper book and has submitted that in the identical circumstances both the writ petitions were disposed of with a direction for re-measurement of their heights.
On due consideration of the aforesaid submissions, so also the fact, that the height of the respondent has been recorded as 167.5 c.m. whereas his height is 168.3 c.m., we are of the view, that the learned Writ Court has not committed any illegality in passing the impugned Judgement and order dated 25.02.2019 and therefore, we are not inclined to interfere in the instant appeal in exercise of powers conferred under Chapter VIII Rule 5 of the Allahabad High Court Rules, 1951.
The Special Appeal lacks merit and is accordingly, dismissed.
Looking to the facts and circumstances of the instant case, this order will not be treated precedent in other case.
[Jaspreet Singh,J.] [Pankaj Kumar Jaiswal,J.] Order Date :- 27.8.2019 S.Ali