Letters Patent Appeal No.1272 OF 2005 (Against the order dated 14.3.2005 passed by a learned Single Judge of this Court in C.W.J.C.No.9053 of 1999) ---------- 1.THE STATE OF BIHAR THROUGH THE CHIEF SECRETARY, GOVT. OF BIHAR, PATNA 2.THE D.G.-CUM-I.G. OF POLICE, BIHAR, PATNA 3.THE D.I.G. OF POLICE, MUNGER RANGE, MUNGER 4.THE S.P. BEGUSARAI, SRI KAMAL NAYAN CHAUBEY-CUM- CHAIRMAN, CONSTABLE SELECTION COMMITTEE, BEGUSARAI 5.THE S.P. KHAGARIA-CUM-MEMBER, CONSTABLE SELECTION COMMITTEE, C.S.C. BEGUSARAI, BOARD-2 6.THE S.P. LAKHISARAI SRI BASIR AHMAD-CUM-MEMBER, CONSTABLE SELECTION COMMITTEE, BEGUSARAI, BOARD-2 --------------------------------Appellants. Versus 1.SURESH YADAV SON OF LATE SRI SAHDEO YADAV, RESIDENT OF PURANI KALISTHAN P.O. LAL DARWAJA, P.S. KOTWALI, DISTRICT- MUNGER 2.AJAY SAHU SON SRI SITARAM SAHU RESIDENT OF VILLAGE LAGMA, P.O. SHIVKUND, P.S. DHARHARA, DISTRICT – MUNGER 3.LALIT KUMER SON OF SRI DEO NARAYAN OF VILLAGE BABU RAHI P.O. AND P.S. SAHEBPUR KAMAL, DISTRICT- BEGUSARAI --------------------------------Respondents. For the Appellants : Mr.Awadhesh Kumar Pandey, Advocate Mr.Vishwajeet Kumar Mishra, Advocate For the Respondents : Mr.Shardanand Mishra, Advocate Mr.Indu Bhushan, Advocate. -------- P R E S E N T THE HON'BLE MR. JUSTICE CHANDRAMAULI KR. PRASAD THE HON'BLE DR. JUSTICE RAVI RANJAN Prasad & Ranjan, JJ: State of Bihar and its Officers, aggrieved by the order dated 14.3.2005 passed by a learned Single Judge in C.W.J.C.No.9053 of 1999, have preferred this appeal under Clause 10 of the Letters Patent. 2 Writ petitioners-respondents herein (hereinafter referred to as the „writ petitioners‟) were candidates for appointment to the post of Constable in pursuance of advertisement no.1 of 1998. They were selected for appointment as Constables on the ground that their height is more than 183 centimeters. After the appointments, a large number of complaints were received by the authority and accordingly it was decided to measure the height of the writ petitioners. As the writ petitioners‟ height was less than 183 centimeters, hence their services were terminated. They challenged the termination on the ground that the eligibility criteria for appointment in regard to the height being 165 centimeters and their height being more, their appointment ought not to have been terminated on the ground that their height is less than 183 centimeters. It was further contended that before discharging them from service they ought to have been given an opportunity of hearing. Both the submissions found favour with the learned Single Judge. J.C. to G.A.VII, appearing on behalf of the appellants submits that merely the height of the writ petitioners being above 165 centimeters shall not entitle them for appointment. He also points out that the writ petitioners having been appointed on the ground that their height is 183 centimeters, later on when it was found their height is less than that, they were rightly discharged. Mr.S.N.Mishra, appearing on behalf of writ petitioners-respondents, however, contends that they being 3 eligible for appointment, their services ought not to have been discharged. He further points out that before discharging them from service an opportunity of hearing ought to have been given. In any view of the matter, he submits that the vacancies are still available and the respondents be directed to consider their cases against those vacancies. None of the submissions advanced by Mr.Mishra commend us. Simply because the writ petitioners are eligible to be appointed, they do not have the right to be appointed. The cut- off height for appointment to the post of Constable was 183 centimeters. This cut-off height cannot be confused with the eligibility. It is not the case of the writ petitioners that their height is 183 centimeters or more than that. In that view of the matter, the writ petitioners‟ height is less than height of last person selected for appointment. As observed earlier, the writ petitioners being eligible for appointment itself do not confer them the right of appointment. Reference in this connection can be made to a decision of the Supreme Court in Civil Appeal No.2711 of 2002 dated 15th of April, 2002. In the said case, it has been observed as follows : “The respondent had applied for the post of a constable and he was initially selected for being appointed, but at the final stage the Superintendent of Police found his height 160 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 respondent, therefore, approached the High Court by filing a writ petition. High Court being of the view that the minimum required height being 165 cm., the 4 respondent could not have been denied his right of appointment, allowed the writ petition. The State carried the matter to the Division, 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 cm, and the respondent having been found to be height of 168 cm. 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 redetermination of height, but actually a check on impersonation. In the aforesaid premises, we are of 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 are quashed and this appeal is allowed.” The heights of the writ petitioners were redetermined on the basis of the various complaints. It was done to obliviate the malpractices. In remeasurement their heights have been found to be less than 183 centimeters. It is not the case of the writ petitioners that their height is more than that or even equal to the height of the person who have been selected for appointment. Principle of natural justice is not an unruly horse and its application depends upon the facts and circumstances of each case. In the present case, the height of the writ petitioners on remeasurement has been found to be less than 183 centimeters, which fact having not been disputed, we are of the opinion that show cause notice will not serve any useful purpose, hence their discharge would not be in breach of the principle of natural justice. 5 As regards the prayer of the writ petitioners that the respondents be directed to fill up the remaining vacancy, we are of the opinion that such a direction at such a distance of time is not fit to be granted. As observed earlier, writ petitioners were candidates for appointment to the post of Constable in the light of the advertisement made in the year 1998. Due to passage of time, a large number of people have become eligible and that may occasion issuance of fresh advertisement. A Division Bench of this Court had the occasion to consider this question arising in the present appeal in C.W.J.C.No.8304 of 1999 (Raghubir Prasad versus The State of Bihar & others) and other analogous cases in which said submission has been negatived. In the said case, it has been observed as follows : “Process of appointment in pursuance of a particular advertisement cannot be allowed to be unending business and go on for long time, thus depriving the candidates who subsequently become eligible. After sometime, the employer is entitled to have a fresh advertisement to fill up the vacancies. This discretion cannot be taken away by this court by issuing direction to consider the cases on the basis of old advertisement of 1998. The stand of the State in the counter affidavit is that there was manipulation in mentioning the heights of the petitioners at the time of selection and on re-measurement, lessor height was found by the appointing authority and as such they have been denied the appointment.” In view of the discussion aforesaid, the order of the learned Single Judge, allowing the writ application and quashing the order of discharge is erroneous. 6 In the result, the appeal is allowed, impugned judgment of the learned Single Judge is set aside, but without any order as to cost. (Chandramauli Kr.Prasad, J.) ( Dr. Ravi Ranjan, J.) Patna High Court Dated, 8th of December, 2008. NAFR/Narendra/