Ismail
Abdul Latif Shaikh Vs. State of Maharashtra & Anr [1996] INSC 347 (29 February 1996)
Hansaria
B.L. (J) Hansaria B.L. (J) Bharucha S.P. (J) Hansaria,J.
CITATION:
1996 SCC (7) 545 JT 1996 (3) 158 1996 SCALE (2)593
ACT:
HEAD NOTE:
The
appellant joined the Prohibition and Excise Department as a Constable in the
year 1961. The next promotional post is that of Sub-Inspector. He was indeed
interviewed for that post in the year 1966, but was not promoted on the ground
that his chest measurement was less than the standard said to be required to
hold the post. He ultimately came to be promoted as a Sub-Inspector in 1970.
His
grievance, is however, is that the promotion has to relate back to 1966
inasmuch as his rejection in that year for the promotional post on the ground
above noted was not tenable for two reasons :
(1)
there is no such requirement as would appear, inter alia, from the decision of
the Maharashtra Administrative Tribunal itself in the case of one Shashikant Dhaku
Chavan rendered in Transfer Application No.278 of 1991 on 27.8.1993, whereas
his approach to the Tribunal was dismissed by an order dated 15.6.1993 on the
ground of his having not fulfilled the physical requirement; and
(2) the
Government had allowed S/Shri S.H. Avhad and S.K. Throat to hold the
promotional post though they were below height.
2. We
find merit in both the grievances inasmuch as the rule relating to physical
requirement has no application in the case of Sub-Inspectors as would appear
from the judgment of the tribunal in the case of Chavan. Chavan's case cannot
be distinguished on the ground that he belonged to clerical branch whereas the
appellant was in constabulary, as sought to be done by the learned counsel for
the State, inasmuch as Rule 3 noted by the Tribunal in Chavan's case has not
mentioned about physical requirement as qualification for Sub Inspectors. This
apart, the Government having allowed the aforesaid two persons to hold the
promotional of Sub- Inspector despite their being below the required height,
the same benefit has to be made available to the appellant as the short-fall of
physical requirement in his case is relatable to the chest being not of
required measurement.
3. The
appeal is, therefore, allowed and we state that the promotion of the appellant to
the post of Sub-Inspector shall be deemed to be from the date of rejection of
his promotion in the year 1986. This notional promotion shall be confined to
the benefit of seniority alone as was the prayer of the appellant in the writ
petition filed by him before the High Court, which had come to be transferred
to the Tribunal for disposal. No order as to costs.
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