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Ghan Shyam Rai & Others v. State Of U.P. & Others - SPECIAL APPEAL No. 518 of 2007 [2007] RD-AH 7612 (25 April 2007)


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Court no. 29

Special Appeal no. 518 Of 2007.

Ghan Shyam Rai and another ... Appellants.


State of U. P. and others. ... Respondents.

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

Hon'ble Rajes Kumar, J.

By means of the present Special Appeal, the appellants are challenging the order of the learned Single Judge dated 16.03.2007 passed in Civil Misc. Writ Petition no. 45457 Of 1999.

The brief facts of the case are that pursuant to the advertisement issued by the Deputy Excise Commissioner, Moradabad Division, Moradabad dated 17.7.1997 for the appointment on the post of Excise Constable, petitioners applied for the same.  It is claimed that both the petitioners have been selected for physical test as well as the interview.  The petitioners being found wholly fit, the orders dated 29.8.1997 issued by the Deputy Excise Commissioner, Moradabad Division, Moradabad directing the petitioners to appear before the Chief Medical Officer, Moradabad for their medical examination.  Thereafter, appointment letters dated 4.9.1997 were issued by the Deputy Excise Commissioner, Moradabad Division, Moradabad to both the petitioners.  It is claimed that both the petitioners joined their services in the month of September, 1997.  Thereafter, both the petitioners have been issued Show-cause-notice dated 8.9.1999 stating therein, that in the medical examination dated 20.1.1998, the height and chest were not found up to the prescribed limit, details of which, is mentioned in the Show-cause-notice, hence, were not eligible for the post of Excise Constable.  Thereafter, the petitioners services have been terminated.  It appears that the services of the other persons have also been terminated including Param Hansh Singh on the same grounds. Other persons filed Writ Petition in this Court including Param Hansh Singh.  The Writ Petition of Param Hansh Singh was allowed by the learned Single Judge of this Court vide order dated 04.1.2000 which is reported in 2000 (38) ALR page 630 and the termination order has been quashed.  Being aggrieved by the said order, the State of U. P. filed Special Appeal before this Court.   The Special Appeal nos. 91-94, 122, 552 and 121 of 2000   State of U. P. and others versus Param Hansh Singh (2001 (3) A. W. C. page 2106), was allowed vide order dated 23.5.2001 and the order passed by the learned Single Judge has been set aside.  When the Writ Petition of the petitioners came up for consideration before the learned Single Judge, this Court following the decision of this Court passed in Special Appeal no. 92 of 2000 State of U. P. and others versus Param Hansh Singh, dismissed the writ petition.  Being aggrieved by the said order, present Special Appeal has been filed.

Heard Sri Ashok Khare, learned Senior Advocate appearing on behalf of the appellants and learned Standing Counsel.

In our view, the issue involved in the present Special Appeal is squarely covered by the Division Bench decision of this Court in the case of State of U. P. and others versus Param Hansh Singh (supra).  The Division Bench of this Court has observed as follows:-

"Sri Ashok Khare has next submitted that there was a very minor deficiency in the height or chest measurement of the writ petitioners and there can be variation in measurement if different methods are adopted by different people.  It is not the case of the writ petitioners that the measurement done by the team of doctors at the Head Quarters at Allahabad on 20.10.1996 was not correct.  In fact, no such contention was raised either before the learned Single Judge or before us in the appeal that the measurements noted by the team of doctors was not  accurate.  The languagae used in the second proviso to Rule13 contains the words should not be less than.  The Rule has fixed the minimum height and the measurement of chest (expanded and unexpanded) and there is no scope for any kind of variation in the same.  If a candidate is unable to meet the prescribed standard even by a slight margin he has to be held as unqualified.  If any deviation from the Rule is permitted, it will lead to  complete uncertainty, as the extent to which such deviation may be allowed will give rise to arbitrariness and nepotism.  The requirement of a Rule  regarding initial recruitment to a service must be strictly construed otherwise, it will lead to arbitrariness and will also give scope for  corruption."

In the present Special Appeal, learned Counsel for the appellants  fairly conceded that on physical tests, height and chest of the petitioners were found different than the prescribed measurement.  The submission is that the difference was very minor and therefore, the appointment of the petitioners should not be cancelled.  This aspect of the matter has been dealt by the Division Bench of this Court in the case of State of U. P. and others versus Param Hansh Singh referred hereinabove and rejected the contention of the petitioners.

In this view of the matter, the present Special Appeal is devoid of any merit and is accordingly, dismissed.




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