Letters Patent Appeal No.583 OF 2006 (An appeal against the order dated 17.2.2007 passed in C.W.J.C. No. 1314 of 2000) 1. THE STATE OF BIHAR THROUGH THE CHIEF SECRETARY, BIHAR, PATNA. 2. THE DIRECTOR GENERAL-CUM-INSPECTOR GENERAL OF POLICE, BIHAR, PATNA. 3. THE ADDITIONAL INSPECTOR GENERAL OF POLICE (ADMINISTRATION), BIHAR, PATNA. 4. THE ZONAL INSPECTOR GENERAL OF POLICE, DARBHANGA ZONE, DARBHANGA. 5. THE DEPUTY INSPECTOR GENERAL OF POLICE, KOSI RANGE, SAHARSA. 6. THE DEPUTY INSPECTOR GENERAL OF POLICE (HEADQUARTER), BIHAR, PATNA. 7. THE SUPERINTENDENT OF POLICE, SUPAUL. ------------------------------Appellants Versus MD.MASAUD ALAM, SON OF LATE MD. MAHBOOB ALAM, RESIDENT OF VILLAGE- LAHVAR SHRIPAL, P.O.- LAHVAR FARNA, P.S.- BARHARA, DISTRICT- ARRAH (BHOJPUR). -----------------------------------Respondent For the appellants : Mr. Roy Shivaji Nath, Sr. Advocate, A.A.G-IV For the respondent : Mr. Gautam Saha, Advocate P R E S E N T THE HON'BLE MR. JUSTICE S.K.KATRIAR THE HON'BLE MR. JUSTICE KISHORE KUMAR MANDAL S.K. Katriar, J. This appeal under Clause-10 of the Letters Patent of the High Court of Judicature at Patna, is directed against the order dated 17.2.2006, passed by a learned Single Judge of this Court in C.W.J.C. No. 1314 of 2000 (Md. .Masud Alam vrs. The State of Bihar & Ors), whereby the writ petition was allowed, the petitioner’s appointment as a Constable has been restored, and the entire arrears of salary has been directed to be paid. 2. We have perused the materials on record and considered the submissions of learned counsel for the parties. We shall go by the description of the parties occurred in the writ petition. It has a chequered history, but there is no need to go 2 into the earlier round of litigations. The petitioner was appointed as a Constable in the Bihar Police Force way back in the year 1992. The services of the petitioner and similarly circumstanced persons were dispensed with by order dated 10.1.1997 (Annexure-2), whereby the services of 11 persons including the present petitioner out of the same selection process were dispensed with, leading to the earlier round of writ petitions in this Court. There is no need to recapitulate those details. We now come straight to the present writ petition. The authorities had disclosed that the petitioner had measured 164 c.m. in height, whereas the minimum qualifying height was 165 c.m., as a result of which he was not within the zone of consideration. The learned Single Judge directed the Civil Surgeon-cum-Chief Medical Officer, Patna, to constitute a Medical Board, and remeasure the petitioner’s height. The Civil Surgeon submitted his report that the writ petitioner’s height is 166 c.m. Therefore, the writ petition was allowed. 3. We entirely disagree with the approach of the learned Single Judge. It has to be realised that this Court came to the conclusion on the basis of the report of the Civil Surgeon- cum-Chief Medical Officer, Patna, that the petitioner had measured up to 166 c.m. in height and was, therefore, within the zone of consideration. This by itself does not entitle him to appointment for the reason that appointments are always subject to the limitation of vacancies. It is relevant from the materials 3 placed before us that the last selected candidate was 171 cms in height whereas, as stated hereinabove, the petitioner measured 166 c.m.. Height and chest measurements for the post of Constable are vital qualifications, in a situation where the minimum educational qualification for the post is matriculation. Therefore, height and physical fitness of the candidate became very important factors. With respect to a similar selection process, the Supreme Court has observed as follows in its order dated 15.4.2002 (Annexure-3), passed in Civil Appeal no. 2711 of 2002 (State of Bihar versus Mal Babu Sharma): “Leave granted. The State of Bihar is in appeal against the judgment of the Division Bench of Patna High Court affirming the judgment of the learned Single Judge. The respondent had applied for the post of Constable and he was initially selected for being appointed but at the final stage the Superintendent of Police found his height 168 cm. On that ground that no person has been selected whose height is less than 171.5 cm, the Superintendent of Police did not select the respondent. The respondents, therefore, approached the High Court by filing a writ petition. High Court being of the view that the minimum required height being 165 c.m., the respondent could not have been denied his right of appointment, allowed the writ petition. The State carried the matter to the Division Bench and Division Bench having confirmed the same, the State is in appeal before us. It has been categorically averred by the State that no person has been appointed as a Constable whose height is less than 171.5 c.m. and the respondent having been found to be height of 168 c.m. could not have been appointed. The assertion has not been refuted by the respondent, though a counter affidavit has been filed. It is not a case of arbitrary re-determination of height, but actually a check on impersonation. In the aforesaid premises, we are in the considered opinion that High Court committed error in issuing a Mandamus for appointment of the respondent as a Constable. The impugned orders of the Division Bench of the High Court and the learned Single Judge 4 are quashed and this appeal.” 4. In that view of the matter, we do not agree with the order of the learned Single Judge. The appeal is allowed, and the order dated 10.1.1997 (Annexure-2), so far as it concerns the writ petitioner, is hereby restored. In the circumstances of the case, there shall be no order as to costs. Kishore K. Mandal, J : I agree. Patna High Court 30th April, 2010 NAFR/pkj (S.K. Katriar, J.) ( Kishore K. Mandal, J. )