IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.8117 of 1997 1. SANT KUMAR ROY s/o Sri Ram Prakash Rai, village- Ami, P O.- Telhar, P S.- Darbhanga Sadar, District- Darbhanga. 2. Shashi Bhushan Tiwari s/o Sri Madhusudan Tiwari, village- Khairatia, P. O.- Bettiah, Dih, P. S.- Mufassil, District- Bettiah. 3. Shashi Kant Dube s/o Sri Lallu Dubey resident of village- Sopanautia, P O. Sainya, P.S.- Sonhan, District- Kaimur (Bhabhua). 4. Jagdeo Paswan s/o Sri Devendra Paswan, village- Salehpur, P.O. Salehpur, P.S.- Ekangarsarai, District- Nalanda at Biharsharif. 5. Rajendra Ram s/o Sri Ramswaroop Ram, village- Mangalpur, P.O. Patni, P.S.- Ramgarhwa, District- East Champaran. 6. Ramji Rai s/o Sri Ram Ayodhya Ram, village Khorha, P.S.- Mathia Bhopat, P.S. Chiraiya, District East Champaran. 7. Vijay Narayan Mandal s/o Sri Sitaram Mandal, village- Behta, P.O. Sakari, P.S. Manigachhi, District- Darbhanga. 8. Najare Alam Khan s/o Anisar Rahman, village and P.O.- Nainaghat, P.S. Darbhanga Sadar, District- Darbhanga. 9. Ajay Kumar s/o Sri Bindeshwari Mandal, village- Gotiyari, P.S. Saidpur, P.S. Gopalpur, District- Bhagalpur. 10. Amresh Paswan s/o Sri Chande Paswan, village- Belmohan, P.O. Suderatoli, P.s. Phulparas, District- Madhubani. 11. Satyendra Kumar s/o Shri Subhash Kumar, village- Gaighat, P.O. Ashaparari, P.S.Simari, District- Buxar. 12. Pancharatan Prasad (Gaura) s/o Ramdeo Prasad Gaura, village- Gaighat, P.O.- Ashaparari, P.S. Simari, District- Buxar. 13. Shyam Kumar Rai s/o Ram Ashish Rai, village- Lashmipur, P.O.- Datuara, P.S. Khajauli, District- Madhubani. 14. Raj Kapoor s/o Vinay Kumar Yadav, village- Saligrami, P.S. Sahebpur, Kamal, District Begusarai. 15. Jitendra Kumar Thakur s/o Sri Akhileshwar Thakur, village and P.O. Raghaur, P.S. Surshanda, District- Sitamarhi. 15(a) Satish Kr. s/o Raghunath pd. Village- Fatwah, P.O. Pakararia, P.S. Charadano, Dist.- East Champaran. 16. Binoy Kumar s/o Sri Baleshwar Prasad village- Balbandh, P.S. Charpokhari, District- Bhojpur. 17. Tuntun Sah s/o Sri Jaganath Sah, village- Akbarpur, P.O.- Sathiauta, P.S. Bhagwanpur, District- Vaishali. 2 18. Mukesh Kumar Yadav s/o Surya Narayan yadav, village and P.O. Ratan, P.S. Gagari, District- Khagaria. 19. Nagendra Kumar s/o Lachman Prasad village Khoda, P.O. Mathiabhopat, P.S. Chiraiya, District- East Champaran. … Petitioners. Versus 1. THE STATE OF BIHAR through the Chief Secretary, Government of Bihar, Old Secretariat, Patna. 2. Director General cum Inspector General of Police, Bihar, Old Secretariat, Patna. 3. D.I.G. B.M.P., North Range, Muzaffarpur. 4. Sri Ajoy Kumar Verma, the then Commandant, B.M.P. 13, Darbhanga. 5. Sri V. N. Ojha, the then Commandant, B.M.P.-6, Muzaffarpur. 6. Superintendent of Police, Muzaffarpur. 7. Dy. S.P. Mahua Subdivision, Vaishali. 8. I.G. of Police, B.M.P. Bihar, Patna. 9. A.I.G. of Police, B.M.P. Bihar, Patna. 10. Sri Rajendra Prasad Singh, present Commandant B.M.P.6, Muzaffarpur. ….. Respondents. ----------- 5. 17.05.2011 Heard learned counsel for the parties. At the outset, learned counsel for the petitioner would submit that he is confining the relief sought in this writ application only in respect of petitioner nos. 3 and 15 inasmuch as other petitioners had already been given relief of appointment as prayed in this writ application. In that view of the matter, this writ 3 application so far it relates to the petitioner nos. 1, 2, 4 to 14 and 15(a) to 19 is hereby dismissed as having become infructuous. Having regard to the left over case of two petitioners no. 3 and 15, this Court would not find any error in rejecting their case for appointment on the post of constable inasmuch as the requirement under the advertisement was minimum chest measurement of 84 cm. for the General category and 81 cm. for the scheduled castes and scheduled tribes category. In this regard, the respondents have explained the case of petitioners no. 3 and 15 by taking following plea;- “Petitioner No. 3, Shashi Kant Dubey, Roll No. 6910/13 also found his place in his general Home Guard category having lesser chest measurement i.e. 82 cm. than the required minimum 84 cm. Moreover, this candidate found his place in his category on the basis of a Home Guard Certificate produced by Ram Nagar, Varanasi, U. P.. Petitioner No. 15, Jitendra Kumar Thakur Roll No. 14373/6 possesses a chest of 82 cm., which is lesser than the minimum required 84 cm. for General category.” It has to be taken into account that such 4 specific averment as with regard to deficiency in prescribed physical standard of petitioner nos. 3 and 15 has not been controverted by the petitioners by filing any rejoinder affidavit and as such it has to be held that when the petitioners no. 3 and 15 did not possess the minimum requirement as prescribed in the advertisement in keeping with the provisions in the recruitment rules as laid down in Bihar Police Manual, their appointment was not possible in the police force. The fact that the respondents had made another exercise for determining the physical standard and had found other petitioners eligible while the petitioner no. 3 and 15 were again found unfit on account of their measurement of chest would also be sufficient that petitioner no. 3 and 15 could not be appointed in police force. Such repeat exercise would definitely go to show lack of physical requirement on the part of petitioners 3 and 15 for the post of constable and therefore their being rejected for appointment on the post of constable is absolutely in 5 keeping with the requirement of advertisement and the rules. At this stage, counsel for the petitioner would like to produce and rely on a Circular dated 22.1.1986 which talks of giving 50 % weightage and preference to the whole time home guards in the matter of appointment on the post of constable. As this circular cannot take form of a statutory rule as prescribed in the Bihar Police Manual and the advertisement also did not talk of this particular reservation of 50% for Home Guards, this Court cannot take the said circular into account for issuing a direction to the respondents to now consider the case of petitioner no. 3 and 15 only because they claim to be Home Guards. Additionally, this Court must indicate here that the said circular dated 22.1.1986 was well within the knowledge of the petitioners even on the date of filing of this writ application but the same was never brought on record of this case. Today, when the hearing has been taken up after 14 years, any effort to rely on the circular which is not on 6 record can not be permitted. That being so, this writ application so far it relates to petitioner no. 3 and 15 is wholly without merit and is, accordingly, dismissed. kanchan (Mihir Kumar Jha, J.)