IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.12076 of 2007 RAKESH KUMAR SINGH, S/O LATE RAMENDRA SINGH, RESIDENT OF VILL-JAMIRA, P.S.-MUFFASIL, DISTRICT-BHOJPUR. .................. PETITIONER Versus 1. THE STATE OF BIHAR THROUGH THE SECRETARY, HOME (SPL.) DEPARTMENT GOVERNMENT OF BIHAR, OLD SECRETARIAT, PATNA. 2. THE DIRECTOR GENERAL OF POLICE, BIHAR, PATNA. 3. THE DY. INSPECTOR GENERAL OF POLICE, CHAMPARAN RANGE, BETTIAH. 4. THE DY. INSPECTOR GENERAL OF POLICE, (H.Q.), SECRETARIAT BUILDING, PATNA. 5. THE SUPERINTENDENT OF POLICE-CUM-CHAIRMAN, CONSTABLE SELECTION COMMITTEE, BETTIAH, WEST CHAMPARAN. 6. THE DY. SUPERINTENDENT OF POLICE, SADAR, BETTIAH, WEST CHAMPARAN. ................. RESPONDENTS ----------- 2. 03.07.2009. Heard counsel for the petitioner and counsel for the State. In this writ application the prayer of the petitioner reads as follows;- “(a) that the concerned Respondents be directed by issuance of an appropriate writ/orders/directions to appoint the petitioner as District constable in Bihar police against the Advertisement No.01/04 on the basis of his being found fit by the competent Board headed by the Dy. Inspector General of Police, Bettiah (respondent no. 3) dated 28.9.2006 (b) That the respondent no. 5, the S.P.-cum- Chairman, Constable Selection Committee Bettiah be directed to issue appointment letter to petitioner in pursuance of his letter as contained in Memo No. 1837 dated 15.3.2007 inasmuch as in the light of the decision of the competent Board headed by the Dy. Inspector General of Police, Bettiah, respondent no. 3.” 2 Counsel for the petitioner would submit that when the petitioner had been somehow illegally and arbitrarily measured as 164.2. cms he had filed an appeal before the Superintendent of Police, Bettiah, West Champaran-cum-Chairman of the Selection Committee in terms of advertisement but when no action was taken by the said chairman he had filed second appeal before the concerned Deputy Inspector General(DIG) and the DIG in course of measurement had found the petitioner to be 165.2 cm. and as such eligible for appointment. He would, therefore, submit that the subsequent decision of the State Government dated 9.8.2007 Annexure-E to the counter affidavit communicating the Superintendent of Police to take fresh measurement of the petitioner is wholly without jurisdiction. Respondents, on the other hand, have taken a specific plea in paragraph 9 of the counter affidavit that the petitioner had never filed any appeal before the Superintendent of Police and 3 when the matter was brought to the notice of the DIG, he had directed the superintendent to take decision in appointment of the petitioner strictly as per the rule. The matter in fact, was brought to the notice of the police headquarter at Patna and the Police headquarter vide order dated 9/8/2007 had directed the Superintendent of Police to take fresh measurement and pass an appropriate order for appointment or rejection of the candidature of the petitioner in capacity of the appointing authority of the post of constable. Counsel for the petitioner, in fact, is quite specific in his submission that if the Clause-9 of the advertisement itself had provided that the order passed by the DIG shall be final and binding and when such a decision had already been taken in the case of the petitioner by DIG as with regard to the measurement of height of the petitioner being 165.2 cm., there was no question of matter being again referred back to the Superintendent of Police. 4 In the opinion of this Court, the petitioner has overstepped the prescribed procedure in the aforementioned advertisement itself. Clause 8 and 9 of the Advertisement on which a very heavy reliance has been placed by learned counsel for the petitioner by itself would go to show that the petitioner on being aggrieved by the measurement made by the selection committee had to move before the superintendent of police who is the Chairman of the Selection Committee. It is only when the appeal of the petitioner before the Chairman of the Selection Committee was rejected that he had a right to move in second appeal before the DIG. Paragraph 8 and 9 of the advertisement being this relevant are quoted hereinbelow;- "8. maph dwn@yEch dqn rFkk xksyk Qasd ijh{kk ds laca/k esa fdlh Hkh izdkj dh vihy ekU; ugha gSA ijUrq mEehnokj ;fn vius lhus ,oa mapkbZ dh ekih ls larq"V ugha gS rks VsLV ds rqjar ckn v/;{k p;u i"kZn ds le{k fyf[kr vihy dj ldrs gSA ,slh vihy izkIr gksus ij v/;{k p;u i"kZn lHkh lnL;ksa dh mifLFkfr esa mlh fnu lHkh p;u izfdz;kvksa dh lekfIr ds mijkar vihy lqusaxs rFkk mlh frfFk esa gLrk{kj dj vihy dk QykQy ekLVj pkVZ esa vafdr djsaxsA 9.tks mEehnokj v/k~;{k p;u i’kZn ds le{k fd, x;s vihy ds QyQy ls vlarq’V gksa rks os f}rh; ,oa vafre vihy rhu fnuksa ds vUnj lacaf/kr {ksrzh; vkj{kh mi egkfujh{kd ds ikl dj ldrs gSa A p;u izfr;ksfxrk ds vafre fnu ls lkrosa fnu ckn lacaf/kr {ksrzh; vkj{kh mi egkfujh{kd lHkh vihy ij ,d lkFk 5 fopkj djsxsa ,oa vihy ds QykQy dh izfof’V ewy ekLVj pkVZ ds dkWye&9 esa djsxsa ,oa ml ij viuk gLrk{kj djsxsa vkSj vius }kjk vafdr ekih dks ?ksj nsxsa A bl ekeys esa {ksrzh; vkj{kh mi egkfujh{kd }kjk dh x;h ekih vafre gksxh ,oa blds fo:) dksbZ Hkh vihy ekU; ugha gksxh A f}rh; vihy gsrq lacaf/kr {ksrzh; vkj{kh mi egkfujh{kd ds laca/k esa lwpuk fuEekafdr gsS %&” From a plain reading of the aforementioned terms of the advertisement, it is clear that the DIG could have entertained the second appeal, only when the first appeal was rejected by the Superintendent of Police. The case of the petitioner however is that as his first appeal was never disposed of and therefore he had straightway rushed to the DIG. The zone of real dispute infact emanates from this stage. Respondents in paragraph 9 of the counter affidavit while replying to paragraph 4 of the writ application have taken a categorical stand that the petitioner did not file any appeal before the Superintendent of Police and when the petitioner has answered paragraph 9 of the counter affidavit by way of in paragraph 7 of the rejoinder affidavit, this fact has not been denied nor any document showing filing of the appeal before the Superintendent of Police has been 6 produced. Counsel for the petitioner, however, would submit that if the higher authority had taken a decision, the same in terms of clause 9 of the advertisement was binding and the Superintendent of Police had no option but to hold the petitioner’s height to be 165.2 cm. and thus fit to be appointed. The petitioner however cannot be allowed to blow hot and cold in the same breath. Once he would like to rely on the decision of DIG and its being final and binding in terms of para 9 of the advertisement he will have to also keep in mind the procedure prescribed both in paragraph no. 8 and 9 of the advertisement which also envisages filing of the first appeal before the Chairman of Selection Committee i.e. Superintendent of Police but if the first appeal was not filed by the petitioner or even if file was not disposed of the entire exercise made by the DIG by way of 2nd appellate authority was itself without jurisdiction. It is so because the power of exercising second appeal is absolutely dependant on the 7 result of the first appeal and therefore if the case of the petitioner for the sake of argument is accepted that he had filed the first appeal before the Superintendent of police and no action was taken thereon, the petitioner had only to get the first appeal disposed of instead of rushing to file an appeal before D.I.G. As a matter of fact when this aspect of the matter was brought to the notice to the DIG, he instead of insisting on his decision had coolly remitted back the matter to SP by his letter dated 27.7.2007 (Annexure-D) to the counter affidavit with an observation that he should act only in accordance with rules. This aspect of the matter has in fact been also clearly stated in the counter affidavit in paragraph 11 which reads as follows; “11.That with regard to the statement made in paragraph no. 8 of the writ petition, it is stated that, it is fact that the petitioner had appeared in the office of the Superintendent of Police on 23.5.2007, but his height was found to be less than 165 cms. Height of 2(two) other candidates was also found to be less than 165 cms, hence it was decided by the Chairman that height of these 03(three) candidates would be measured in presence of all 8 members of the Selection Committee and final decision would be taken by the Committee His height was found 164.2 cms. On 11.06.2007 height of the petitioner was measured on 11.06.2007 in open verandah of Superintendent of Police Office by several officials such as SDPO Sadar/RSM/RSI-I, G.P. Sergeant etc. and he was given option to select any officer for measuring his height. His height was found to be 162.5 cms. This exercise was video recorded and C.D. was prepared. Since height of the petitioner was recorded to be 165 cm. By the DIG in the course of appeal, hence copy of the minutes of the meeting dated 11th – 14th June 2007 of the Selection Committee was sent to the DIG, Champaran Range, Bettiah and other higher formations vide this office memo no. 2251/GS dated 18.6.2007 for clear order as to whether he should be appointed or not and what height be recorded in Column No. 7 of candidate register. The DIG Champaran Range, Bettiah had vide his office memo no. 802/GS dated 27.7.2007 directed that action be taken strictly as per rules only. IG(ODS), Bihar Patna had also issued direction vide his office memo no. 4082/P-2 dated 09.08.2007 stating therein to take action as per rules only and intimate the petitioner. In view of above said orders, candidates has been intimated vide this office memo no. 2765/GS dated 04.09.2007 that as his height less than 165 cms. hence he is not being appointed as constable. It seems pertinent to state here that the petitioner had sent representation to the Chief Minister of Bihar and other offices, factual report has already been sent to all concerned vide this office memo no. 2768/GS dated 05.09.2007. If the petitioner is appointed as constable in spite of his height being less than 165 cm, other candidates who had been declared unfit on the basis of less height would also claim appointment while quoting the example of the petitioner. “ 9 From the aforementioned stand of the respondents it is very clear that there is a dispute with regard to the height of the petitioner specially when the respondents have also produced a copy of buff-sheet showing the height of the petitioner as 164.2 and 165.2 with an endorsement ‘fail’ above the signature of DIG. If this dispute under the order of the State Government was therefore sought to be resolved by the Superintendent of Police who was admittedly not only the appointing authority but also the Chairman of Selection Committee and first appellate authority, this court would not find any illegality in that part of the direction of the police headquarter in the order dated 9.8.2007 (Annexure-E) that Superintendent of police should reverify the height of the petitioner. It is not the case of the petitioner that earlier the Superintendent of police had got measured the petitioner rather his own case is that measurement of 164.2 cm. was taken and recorded by the Subdivisional 10 Police Officer and against that order he had allegedly filed the second appeal before the D.I.G. That being so, this court would hold that the petitioner is not entitled for the relief prayed in this writ application. At the same time this court having found no error in the decision of police headquarters in its letter dated 9.8.2007 (Annexure-E) would direct the Superintendent of Police, Bettiah to take fresh measurement of the petitioner and if he finds that the petitioner measures 165 cm. or above as per the requirement of the advertisement and the rules, he would take necessary steps for his appointment if such appointment of the petitioner was denied only on the ground of height. On the other hand, if the petitioner is again found to be measuring less than 165 cm. in the measurement to be taken by the Superintendent of Police he will have a right of appeal before the DIG whose decision in terms of advertisement shall be final and binding. Let such decision therefore be taken by the Superintendent 11 of Police in the first instance within a period of one month from the date of receipt/production of a copy of this order. With the aforementioned observations and directions, this writ application stands disposed of. kanchan (Mihir Kumar Jha, J.)