Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.18771 of 2010 ====================================================== Md. Firoz Alam @ Md. Firoz Alam Khan, S/O Md. Moinuddin, Resident of Mohalla- Topakhana Bazar, P.S.- Kotwali, Distt.- Munger Versus 1. The State of Bihar through the Chief Secretary, Government of Bihar, Old Secretariat, Patna 2. The Director General cum Inspector General of Police, Bihar, Old .... .... Petitioner. Secretariat, Patna 3. D.I.G. of Police, Darbhanga Range, Darbhanga 4. D.I.G. Of Police, Manawadhikare, Bihar, Patna 5. S.P., Darbhanga. .... .... Respondents. ====================================================== Appearance : For the Petitioner/s : Mr. Ram Hriday Prasad For the Respondent/s : Mr. (SC19) ====================================================== CORAM: HONOURABLE MR. JUSTICE SAMARENDRA PRATAP SINGH ORAL ORDER 4 24-10-2013
Legal Reasoning
Heard learned counsel for the petitioner and the State. 2. An Advertisement bearing advertisement no.1/98 was published inviting applications for intending candidates for recruitment on the post of constables in different districts of the State of Bihar. 3. The petitioner submitted his application for the post of constable from Darbhanga range under Extremely Backward Class Category (hereinafter referred to as „the EBC category‟). 4. The minimum eligibility with respect to height was prescribed at 165 cm. 5. The petitioner subsequently qualified in physical 2 Patna High Court CWJC No.18771 of 2010 (4) dt.24-10-2013 2 / 5 test and also passed written test and he was declared selected by the selection committee, as he was 174.5 cm in height, whereas last candidates selected in this category possessed a height of 174 cm. A copy of the selection letter dated 19.09.1999 is annexed as Annexure-1. The petitioner gave his joining on 29.06.1999. In 2001, some candidates, who were not appointed, made a claim that though they were taller than the selected candidates, still they were not selected. A proceeding bearing no.109/2001 was started against the petitioner. The charge was that the petitioner has wrongly been selected under E.B.C. category, as he belonged under Backward Class Category. The last person selected under B.C. category possessed a height of 178.5 cm. A copy of Memo charge dated 22.09.2011 is annexed as Annexure-2. 6. The petitioner submitted his detailed show-cause on 28.09.2001 (Annexure-3). In the show-cause, he stated that as per Government notification dated 07.08.1995 published in Bihar Gazette “Rhine” caste is shown under EBC category at serial no.98. He submits that as such he has rightly been selected under EBC category. 7. The respondents found the show-cause to be unsatisfactory and petitioner was dismissed from service on 25.11.2001 (Annexure-7) by the order of Superintendent of Police, 3 Patna High Court CWJC No.18771 of 2010 (4) dt.24-10-2013 3 / 5 Darbhanga. The petitioner preferred Appeal as well as Memorial, which too were rejected. A copy of the order dated 30.04.2004 passed by Director General of Police, Bihar is annexed as Annexure-9. 8. The petitioner submits that his case is similar to one Badsah Chauhan, who too was appointed under E.B.C. category having a height of 174.5 cm. There was common allegations that persons taller than Badsah Chauhan were not selected. The learned Judge while rejecting the contention of the State observed that there is no allegation of forgery or connivance of the petitioner in the selection. Furthermore, he has put in more than two years in service. The writ application bearing CWJC No.4868 of 2002 was allowed on 22.02.2008. The State preferred an appeal bearing LPA No.627 of 2008 which was rejected vide order dated 21.11.2008 by a Division Bench. An S.L.P. preferred against the State too was rejected by the Hon‟ble Apex Court on 08.07.2010 vide Special Leave to Appeal (Civil) no.8962 of 2010. 9. The petitioner submits that one Raj Kumar Thakur in similar situation filed CWJC No.15434 of 2005 against his dismissal, was also allowed by order dated 14.10.2011. In the said case, the State took similar stand that some persons taller than him were appointed. This Court vide order dated 14.10.2011 observed 4 Patna High Court CWJC No.18771 of 2010 (4) dt.24-10-2013 4 / 5 that taking cue from rationale and reasoning given in the case of Badshah Chauhan as well as Dilip Kumar Mandal, there is no option but in the interest of justice and consistency of decisions to quash the impugned order. 10. On the other hand, learned counsel for the State submits that LPA Bench in case in L.P.A. No.1356 of 2005 (State of Bihar Vs. Abhay Kumar Singh & Ors.), L.P.A. No. 1357 of 2005 (State of Bihar Vs. Pramod Kumar Singh), L.P.A. No.1358 of 2005 (State of Bihar Vs. Ghanshyam Yadav), L.P.A. No.1360 of 2005 (State of Bihar Vs. Shambhu Kumar Singh) and L.P.A. No.1361 of 2005 (State of Bihar Vs. Purushottam Kumar Singh) substantially allowed the appeals of the State Government setting aside the order of the learned Single Judge terminating the service
Decision
of the writ petitioners therein. 11. I have heard the counsel for the parties. It is relevant to state that the case of the employees in the aforesaid LPAs., whose services were terminated were different from that of the petitioner in so much so that in enquiry, it was found that the petitioners thereof were shown to possess more heights than what they actually possessed. Thus, the Court came to the conclusion that the heights of such employees were wrongly measured to grant them undue favour. 5 Patna High Court CWJC No.18771 of 2010 (4) dt.24-10-2013 5 / 5 12. In the instant case, there is no allegation that the height of the petitioner earlier measured was incorrect, as on subsequent measurement height of the petitioner was recorded as 174.5 cm., which was also the case at the time of measurement of height at the initial stage. 13. I find that the respondent in the counter affidavit does not state that the petitioner does not belong to “Rhine” caste, which falls under EBC category. 14. In the result, this application is allowed, the impugned order of dismissal dated 25.11.2001 passed by the Superintendent of Police, Darbhanga as well as order dated 30.04.2004 passed in Memorial by the Director General of Police, are set aside. The petitioner would he reinstated in service. In the facts and circumstances of the case, the petitioner would not be entitled to back wages, however, the period of dismissal would be notionally counted for the purposes of retirement benefits. 15. This application stands allowed. Uday/- (Samarendra Pratap Singh, J)