Md. Masaud Alam vs State Of Bihar & Ors

by the Division Bench of the High Court of

Judicature at Patna in L.P.A. No. 583/2006

dated 30.04.2010. By the impugned judgment and

order, the Division Bench has set aside the

order passed by the learned Single Judge in

Writ Petition No.1314/2000 dated 17.02.2006,

by which the appellant was reinstated into

service with full back-wages and service

benefits.

1 3) The case has a chequered history. The

appellant was appointed as police constable by

the respondents in the month of October, 1992

and he served on this post till 1996. The

appellant amongst others, was asked to show

cause why his services should not be

terminated for the reasons stated in the

notice. The appellant, after receipt of the

notice, had offered his explanation, inter-

alia, contending that his appointment was made

following the guidelines prescribed in Police

Order No.202 of 1988. The respondents, not

being satisfied with the explanation offered,

terminated the services of the appellant. The

appellant and others filed the writ petitions,

inter-alia, for quashing their termination

order as illegal and arbitrary.

4) The learned single Judge, while allowing the

writ petition, took exception to lack of

reasoning in the show cause notice and orders

of termination, however, as the respondents

attempted to justify the termination on the

ground that the height of the writ petitioners

was not in accordance with the Police Order

No. 202 of 1988, the learned Single Judge

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thought it fit to direct the Deputy Inspector

General of Police (Headquarters), Patna

[hereinafter referred to as "the DIG of

police"], to measure the height of the writ

petitioners (including the appellant) and file

a report of the same before the Court.

5) Pursuant to the direction so issued, the DIG

of police measured the height of the writ

petitioners (including the appellant) and

submitted his report before the High Court. In

the report, the appellant's height was

indicated as only 164 cm, falling short of 165

cm. as required by the Police Order No.202 of

1988.

6) Taking into consideration the report of the

DIG of Police, the High Court disposed of the

writ petition by its order dated 28.02.1997,

ordering the reinstatement of those who met

the criterion of height, while stating that

appropriate orders may be passed in the case

of those persons who did not have the

requisite height. In view of the orders passed

by the High Court, the Inspector General of

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Police had issued the order dated 6.3.1997

terminating the services of the appellant as a

constable in the police force.

7) Aggrieved by the order of termination so

passed, the appellant was constrained to

approach the writ court once again in C.W.J.C.

No. 1314 of 2000. The appellant primarily

contended and asserted that his height was

165.5 cm and not 164 cm as recorded in the

report submitted by the DIG of police. Since

there was a factual assertion made by the

appellant and disputed by the DIG of Police,

the learned Single Judge, in the ends of

justice, had appointed the Civil Surgeon-cum-

Chief Medical Officer, Patna [hereinafter

referred to as "Chief Medical Officer"] to

measure the height of the appellant and submit

his report before the Court.

8) The Chief Medical Officer, in his report, had

reported the height of the appellant as 166

cm. Taking into consideration the report so

filed and the fact that the appellant was

appointed against a regular vacancy and that

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there was no better contender for the post at

the time of the appellant's appointment, the

learned Single Judge observed that the DIG of

police had malafidely represented the height

of the appellant to be 164 cm. As a

consequence, the writ petition came to be

allowed and the respondents were directed to

continue the services of the appellant and

also to pay the back-wages from the date of

termination of his service till the date he is

reinstated into service.

9) The order of the learned Single Judge was

carried in appeal before the Division Bench of

the High Court in L.P.A. No. 583/2006 and the

same came to be allowed as observed by us

earlier. It is this order which is called in

question in this appeal.

10) We have heard learned counsel for the parties

to the lis.

11) At the outset, we record that that we do not

intend to comment on the performance of the

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DIG of Police while measuring the height of

the appellant, since this aspect of the matter

has been taken note of by the learned Single

Judge while disposing of the second Writ

Petition.

12) In our view, the writ court had rightly

directed the Chief Medical Officer to measure

the height of the appellant in view of the

factual dispute between the statement of the

appellant and the DIG of police and thereafter

drawing support from the report of the Chief

Medical Officer had directed the respondents

to continue the services of the appellant

since he satisfies all the guidelines/

parameters prescribed in the Police Order

No.202 of 1988. The Police Order No.202 of

1988 speaks of certain qualifications that

requires 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

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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 appellant. In view of

the above narration, since the appellant has

the requisite height and since he satisfies

all the 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.

13) Now the only question that remains to be

considered is, while directing the appellant

to be reinstated in service whether the

respondents should be directed to pay back

wages also from the date of termination of the

appellant's service till his reinstatement.

Shri. Navin Prakash, learned counsel appearing

for the appellant submits that in the facts

and circumstances of the case and since the

appellant is getting back his means of

livelihood he would not press for the back

wages if he is reinstated into service. In our

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opinion, the suggestion so made by Shri. Navin

Prakash appears to be reasonable and if it is

accepted it would not prejudice the case of

the respondents in any manner whatsoever.

14) In view of the peculiar facts and circumstance

of this case, we allow this appeal, set aside

the judgment and order passed by the Division

Bench of the High Court of Judicature at Patna

in LPA No.583/2006 dated 30.04.2010. We

further direct the respondents to reinstate

the appellant into service as a constable

within three month's time from the date of

receipt of a copy of this order. We make it

clear that the appellant will not be entitled

to back-wages from the date of the termination

of his service till his reinstatement into

service. However, the period between the date

of termination and the date of reinstatement

will be considered for the purpose of

computing the qualifying service for payment

of the pensionary benefits only.

15) We clarify that this order is passed by us

only in the facts and circumstances of this

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case and not to be read as declaration of the

law by us. The question of law canvassed by

Shri. Manish Kumar, learned counsel for the

respondent-State is left open.

9 16) With this observation and direction, this

appeal is disposed of. No costs.

...................J.

(H.L. DATTU)

...................J.

(ANIL R. DAVE)

NEW DELHI,

FEBRUARY 16, 2012.

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