IN THE HIGH COURT OF UTTARANCHAL AT NAINITAL COURT’S ORDER WHETHER THE CASE IS OR IS NOT APPROVED FOR REPORTING [Chapter VIII Rule 32 (2) (b)] Description of the case Writ Petition No. 3250 of 2001 (S/S) Decided on: July 28, 2006 A.F.R. (Approved for reporting) Not approved for reporting Date. 28.07.2006 (Initial of Judge) Note: Bench Reader will attach this at the top of first page of the judgment when it is put up before the judge for signature. 2 Reserved Judgment IN THE HIGH COURT OF UTTARANCHAL AT NAINITAL Writ Petition No. 3250 of 2001 (S/S) Kuber Singh S/o Durga Singh R/o Village Kulgarh, P.O. Simrar, Patti Talli Kutola, Tehsil Kosiya Kutoli, District Nainital. ................. Petitioner Versus 1. Union of India through Secretary, Ministry of Home Affairs, New Delhi. 2. Divisional Organiser, S.S.B. U.P. Division, Directorate General of Security (Cabinet Secretariat) Ranikhet, District Almora. 3. Commandant, S.S.B, Group Centre, Almora, Uttaranchal. .................... Respondents Mr. A.D. Tripathi, learned counsel for the petitioner. Ms Anjali, Central, Central Govt. Standing Counsel for the respondents. Hon. Prafulla C. Pant, J. By means of this writ petition, moved under Article 226 of the Constitution of India, the petitioner has sought writ in the nature of certiorari quashing the notice dated 13.06.2001 (Annexure –1), whereby the services of the petitioner have been terminated under Rule 16 of the Central Reserve Police Force Rules, 1955, read with sub- rule (1) of the Central Civil Service (temporary 3 service) Rules, 1965 (hereinafter referred as CCS(CCA) Rules). 2) I heard learned counsel for the parties and perused the affidavit, counter affidavit and rejoinder affidavit filed by the parties. 3) Brief facts of the case, as narrated in the writ petition, are that the petitioner was appointed as Constable / Orderly (No. 0070357) by the respondent No. 3, vide order dated 09.11.2000 (Annexure -2) in terms of Rule 16 of the Central Reserve Police Force Rules, 1955 (hereinafter referred as CRPF Rules). Before that, the petitioner went through various tests and examinations conducted by the respondents and was found medically fit for appointment on the said post. During the period of training, the petitioner was withdrawn from the training on the ground that he was short in height and medically unfit, for the said post. The minimum height required for the Constables is 5 feet 7 inches (170 Cms.) with relaxation of 2 inches for the persons having martial traditions such as Gorkhas, Garhwalis, Kumaonese Dogras and Marathas. Challenging the order of termination from the service, on the ground that the same is passed in violation of principles of natural justice, this writ petition has been filed. 4) In the counter affidavit filed on behalf of the respondents it is admitted that the petitioner was appointed as Constable / Orderly (No. 0070357) in November 2000. However, defending the impugned order of termination, it is stated in the counter affidavit that the selection of the petitioner was provisional. After he joined the duties it was 4 noticed that he was short in height then the minimum required for the post. In paragraph 10 of the counter affidavit, it has been stated that at the time of appointment, Unit Medical Officer erroneously declared the petitioner medically fit. On noticing the short height of the petitioner, a Board of three Medical Officers headed by Chief Medical Officer (S.G.) was constituted and it was found that the petitioner is short by 1.2 Cms. in height. Since, the petitioner was temporary Government servant and covered by CCS(CCA) Rules read with Rule 16 framed under the Central Reserve Police Force Act and Rules, his services were terminated vide impugned notice (Annexure –1). Lastly, it is stated in the counter affidavit that the writ petition is not maintainable, as the petitioner had an efficacious remedy available to him under the Central Administrative Tribunal Act, 1985. 5) Before further discussions, it is pertinent to mention here, the relevant rules applicable to the present case. Clause (b), (bb) and (c) of Rule 11 of the Central Reserve Police Force Rules, 1955, quoted in writ petition is being reproduced below: “11. Enlistment Standard. – (a) ...... (b) The minimum standard laid down in sub-rule (a) in so far as it relates to height may be relaxed from 5’-7” to 5’-5” in the case of people having martial traditions such as Gorkhas, Garhwalis, Kumaonese, Dogras and Marathas. (bb) the minimum standard laid down in sub-rule (a) may be relaxed. 5 (i) in so far as it relates to height, from 5’-7” to 5’-4”. (ii) in so far as it relates to Chest measurement from 311/2” to 30” expanded 32” for Adivasis. (c) The minimum standard laid down in sub-rule (a)in so far it relates to height may be relaxed from 5’-7” to 5’-4” in case of (person) who have attained the age of eighteen years but not have attained twenty years.” Clause 3(a) and 4 of Rule 16 of the Central Reserve Police Force Rules, 1955, reads as under: “16. Period of Service. – 3(a) All members of the Force shall be enrolled for a period of three years. During this period of engagement, they shall be liable to discharge at any time on one month’s notice by the appointing authority. At the end of this those not given substantive status shall be considered for quasi-permanency under the provision of the Central Civil Service (Temporary Service) Rules, 1965. 4. Those not declared quasi-permanent under the said Rules shall be continued as temporary Government employees unless they claim discharge as per Schedule of the Act. Those who are temporary shall be liable to discharge on one month’s notice and those who are quasi-permanent shall be liable to discharge on three month’s notice in accordance with the said rules, as amended from time to time.” 6 6) The petitioner, being an employee of Central Government had alternative and efficacious remedy under the Central Administrative Tribunal Act, 1985, and objection raised in paragraph 20 of the counter affidavit in this regard has been replied in the rejoinder affidavit with the words – that the contents made in paragraph 20 and 21 of the counter affidavit need no comments. As much, in the circumstances, the petition is not maintainable for the relief directly sought under Article 226 of the Constitution of India. 7) The impugned notice of termination from services has been passed under Rule 16 of the Rules framed under the Central Reserve Police Force Rules, 1955, read with sub-rule (1) of Rule 5 of CCS(CCA) Rules, 1965. Though, no reason is required to be mentioned under CCS(CCA) Rules, but it is specifically mentioned in the order that the petitioner was found to be short in height by 1.2 Cms. by the Medical Board. Learned counsel for the petitioner argued that services of the petitioner cannot be terminated without affording him opportunity of being heard. In the opinion of this Court, the argument has so force, for the reason that the fact the petitioner was found short in height by 1.2 Cms., than the minimum required is not a stigma on the petitioner. The nature of the service of the petitioner was temporary and his services were liable to be terminated under the rules mentioned above. 8) Mr. A.D. Tripathi, learned counsel for the petitioner contended that when the petitioner’s height was found to be 165 Cms. at the time of his appointment, as is clear from Annexure –2 to the petition, thus the height could have 7 increased thereafter, and in no case it can go down. In other words, the petitioner is challenging the ground of termination as wrong. But, in the opinion of this Court, the contention of the learned counsel is misconceived, for the reason that it is not the case of the respondents that the petitioner’s height has gone down. What has been stated in the counter affidavit, is this that petitioner got through at the time of appointment by getting recorded erroneous height and the same when detected, a Medical Board was constituted of three Medical Officers by which he was found to be short by 1.2 Cms., than the minimum required height? It is not disputed that the minimum required height for the ordinary recruit was 5 feet 7 inches (170 Cms.) and for the person of marital tradition such as Gorkhas, Garhwalis, Kumaonese, Dogras and Marathas, the minimum required height was 5 feet 5 inches ( 165 Cms.). 9) On behalf of the petitioner, attention of this Court is drawn to Rule 11 of the Central Reserve Police Force Rules, 1955, and it is submitted that under Clause (bb) of said Rule, the minimum height can be relaxed upto 5 feet 4 inches. I do not find any substance in the submission of the learned counsel for the reason under Clause (c) of above mentioned Rule 11, it is clarified that the relaxation upto 5 feet 4 inches would be available to those who have completed age of 18 years but not 20. In the present case, Annexure –2 to the writ petition shows that the date of birth of the petitioner is 15.01.1979, which means that petitioner had already completed the age of twenty years before the date of selection i.e. 16.06.2000. 8 10) Lastly, it is argued on behalf of the petitioner that the difference in the height mentioned in the termination notice i.e. 1.2 Cm. is wrong as in the counter affidavit the shortage of height has been stated to be 0.2 Cm. I have carefully read paragraph 12 of the counter affidavit. There is over writing in the paragraph, and it is clear that 1.2 has been over written as 0.2 and the same is not in the blue ink by which the deponent has made the signatures, rather over writing is in the black ink. 11) In the above circumstances, this Court if of the view that it is not a fit case in which the impugned notice of termination requires any interference by this Court under Article 226 of the Constitution of India. Accordingly, the writ petition is dismissed. Interim order dated 03.07.2001 is vacated. No order as to costs. (Prafulla C. Pant, J.) Dt. 28th July, 2006. H. Negi