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HARI SHANKER MISHRA versus STATE OF U.P. AND OTHERS

High Court of Judicature at Allahabad

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Hari Shanker Mishra v. State Of U.P. And Others - WRIT - A No. 3356 of 2000 [2006] RD-AH 6024 (20 March 2006)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

COURT NO.34

Civil Misc. Writ Petition No. 3356 of 2000

Hari Shanker Mishra

Versus

State of U.P. & Anr.

Hon'ble Dr. B.S. Chauhan, J.

Hon'ble Dilip Gupta, J.

This writ petition has been filed seeking relief in contravention of the statutory provisions.

An advertisement was issued in 1994 to fill up the various posts including the posts of Deputy Superintendent of Police and for the same combined test was held. One of the eligibility conditions was that the minimum height for the said post was 5 ft. 5 inches. The petitioner applied in pursuance of the aforesaid advertisement. He was examined by the Medical Board but was not found possessing the required height of 5 ft. 5 inches. His candidature was rejected He made an application for relaxation which was rejected vide order dated 16.05.1998. Hence this petition.

Learned counsel for the petitioner has submitted that though the petitioner did not fulfill the required criteria as he was not having the height of 5 ft. 5 inches and was less by 0.5 cm. only but the respondent authorities particularly the Medical Board was competent to grant relaxation and as it has been done by the State Government in cases of other persons, the petitioner cannot be given a hostile treatment and petition deserves to be allowed and a direction be issued to reconsider the whole case of the petitioner.

On the other hand, the learned Standing Counsel appearing for the respondents has opposed the petition contending that this Court while exercising the discretionary power, should not issue a direction in contravention of law. The law does not permit any kind of relaxation and if it has been granted to any person that cannot be made the basis for maintaining the writ petition. More so, the selection was held more than ten years ago and his case cannot be considered at such a belated stage against the vacancies advertised in 1994 as it is nobody's case that vacancies are lying vacant since then.

We have considered the rival submissions made by learned counsel for the parties and have perused the record.

The relevant provision in this regard is contained in Appendix E of Police Regulations. Rule 19 of Police Service Rules, 1942 provides for Medical Examination of candidates for appointment by direct recruitment to the Uttar Pradesh Police Service. The relevant provision reads as under:-

"For candidates for appointment to the Uttar Pradesh Police Service, a minimum height of 5' 5" (5' 3") for candidates belonging to the Kumaun and Uttarkhand Divisions and for candidates belonging to Scheduled Tribes, and a minimum chest measurement of 36" (growth when fully expanded with a minimum expansion of 2") are required. These minima are absolute and no medical officer or board has power to waive them."  

The aforesaid provision clearly provides that the requirement is absolute and no person has a power to waive the same. Note put at the end does not provide for discretion in respect of the height. It may be in other circumstances like chest etc., but as in respect of the provision regarding height, there can be no relaxation, it cannot be waived and the petitioner cannot be granted any relief.

We find no force in the submissions made by the learned counsel for the petitioner that in large number of cases relaxation had been granted by the State, therefore, petitioner is entitled for the same relief.

The Court has no competence to issue a direction contrary to law. (Vide Union of India & Anr. Vs. Kirloskar Pneumatic Co. Ltd., (1996) 4 SCC 453; State of U.P. & Ors. Vs. Harish Chandra & Ors., (1996) 9 SCC 309; and Vice Chancellorl University of Allahabad & Ors. Vs. Dr. Anand Prakash Mishra & Ors., (1997) 10 SCC 264).

In State of Punjab & Ors. Vs. Renuka Singla & Ors. (1994) 1 SCC 175, dealing with a similar situation, the Hon'ble Apex Court observed as under:-

"We fail to appreciate as to how the High Court or this Court can be generous or liberal in issuing such directions which in substance amount to directing the authorities concerned to violate their own statutory rules and regulations."

Similarly, in Karnataka State Road Transport Corporation Vs. Ashrafulla Khan & Ors., JT 2002 (1) SC 113, the Hon'ble Apex Court has held as under:-

"The High Court under Article 226 of the Constitution is required to enforce rule of law and not pass order or direction which is contrary to what has been injected by law."

Article 14 is not meant to perpetuate an illegality. Therefore, we are not bound to direct any authority to repeat the wrong action done by it earlier. This view stands fortified by the judgments of the Hon'ble Apex Court eg., Sneh Prabha Vs. State of U.P.  & Ors., AIR  1996 SC 540; Secretary, Jaipur Development Authority, Jaipur Vs.  Daulat  Mal Jain & Ors., (1997) 1 SCC 35;  State of Haryana & Ors. Vs. Ram Kumar Mann, (1997) 3 SCC 321; and Faridabad CT Scan Centre Vs. D.G. Health Services & Ors., (1997) 7 SCC 752.

In Finance Commissioner (Revenue) Vs. Gulab Chandra & Anr., 2001 AIR SCW 4774, the Hon'ble Apex Court rejected the contention that as other similarly situated persons had been retained in service, the petitioner could not have been discharged during the period of probation observing that if no action has been taken in a similar situation against similarly situated persons, it did not confer any legal right upon the petitioner therein.

In Jalandhar Improvement Trust Vs. Sampuran Singh, AIR 2001 SC 1877 and Union of India & Ors. Vs. Rakesh Kumar, AIR 2001 SC 1877 the Hon'ble Supreme Court held that Courts cannot issue a direction that the same mistake be perpetuated on the ground of discrimination or hardship.

Any action/order contrary to law does not confer any right upon any person for similar treatment. (Vide State of Punjab & Ors. Vs. Dr. Rajeev Sarwal, (1999) 9 SCC 240; Yogesh Kumar & Ors Vs. Government of NCT Delhi & Ors., AIR 2003 SC 1241; and Union of India & Anr. Vs. International Trading Company & Anr., AIR 2003 SC 3983; M/s Anand Button Ltd. Vs. State of Haryana & Ors., 2005 AIR SCW 67).

Even otherwise, Article 14 provides only for positive equality and not  negative equality. Article 14 does not provide for passing wrong order, if it had been passed by an authority. No person can claim any right on the basis of an order which is de hors the  statutory rules, nor there can be any estopple.

In view of the above, we do not find any merit in the submission of the learned counsel for the petitioner. Petitioner did not fulfill the requirement of height and no relaxation could be granted for the same. More so, such a relief cannot be granted after expiry of more than ten years. Petition is devoid of merit and it is accordingly dismissed.

20.03.2006

AHA/SB


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