Md. Masaud Alam Vs
State of Bihar & Ors.
[Civil Appeal No.
2144 of 2012 @ Special Leave Petition (C) No.26602 of 2010]
O R D E R
1.
Leave
granted.
2.
A
Constable, whose services are terminated from the Police Department, has filed this
appeal impugning the judgment and order passed 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.
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 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 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 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.
1.
2.
3.
4.
5.
6.
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8.
9.
10.
11.
At
the outset, we record that that we do not intend to comment on the performance of
the 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 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 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
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.
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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