IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CW.P -T No. 2590 of 2008 Date of decision: 19. 6. 2009 Rup Lal Sharma. …..Petitioner Versus State of H.P. and another ……Respondents Coram: The Hon’ble Mr. Justice R.B. Misra, J. The Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting ?1 . For the petitioner: Mr. V.D. Khidta, Advocate. For the respondents : Mr. R.M. Bisht, Dy. Advocate, General, with Mr. Vikas Rathore, Addl Advocate General. R.B. Misra, J. (Oral) Heard. The petitioner has approached this court seeking direction that the selection to 32 posts of warders in Jail Department of State of H.P. made in the year 1999 has to be quashed and a fair treatment has to be given to the petitioner in that selection as he was physically and medical fit to be recruited to the post of warder. According to the petitioner, out of 32 posts of warders in the Prison Department, 15 posts were to be filled by general category candidates and 15 posts were to be filled up 1 Whether the reporters of Local Papers may be allowed to see the judgment ?. - 2 - by different categories of reserved category of candidates, where physical standard for the candidate was to be prescribed having 5’.6” height, 33” chest and normal vision in both the eyes. The petitioner being aspirant had applied to the post of warder having a back ground that since his “deployment” as a Home Guard in November, 1992 he had been continuing but he was not allowed to participate in the recruitment of warder on the ground that he was not in possession of the minimum height of 5’.6”. According to the petitioner, his height is 5’.6”, which is also supported by medical Certificate dated 18.5.2005 enclosed as Annexure P-4 to the petition. According to the petitioner, keeping in view his height of 5’.6” if he was allowed to participate as a candidate for selection to the post of warder at relevant time in the year 1999 and subsequently, could have been allowed to participate in different items of selection, there was every hope that he could have been selected to the post of warder. As per response of the respondents the height of the petitioner was not 5’.6” and as on now he is 40 years (as his date of birth is stated to be 29.4.1969). However, it has been fairly stated for and on behalf of the respondents that in view of the - 3 - notification/order dated 18th October, 2008 the selection to the jail warder in different Districts is under process in reference to the criteria that a candidate has to be between 18 years to 28 years with height of 5’.6”. During the course of hearing learned counsel for the petitioner has invited our attention to a notification dated 28.8.2001 whereby Recruitment and Promotion Rules for the post of Warders Class-III (Non-Gazetted) in the Department of Prisons, Himachal Pradesh has been issued under Article 309 of the Constitution of India. According to which, for selection to the post of warder, age for a general category candidate is between 18 years to 45 years having a height of 5’.6” and chest 33”. In the said notification, clause 17 provides as follows:- “Where the State Government is of the pinion that it is necessary or expedient to do so, it may, by order for reasons to be recorded in writing and in consultation with the H.P.P.S.C, relax any of the provisions of these Rules with respect to any class or category of persons or posts”. According to the learned counsel for the petitioner, the State Government and the Administrative Department of Jail has issued different criteria at different times. The - 4 - petitioner when was being considered in the year 1999, he was about 29 years of age, and was having the height of 5’.6” as such was eligible to be considered for the post at the relevant time. Therefore, the applicability of new criteria about the age as per notification dated 18.10.2008 cannot be made applicable to the petitioner. During the course of hearing, this court was earlier pleased to direct on 17.6.2009 to asses the actual height of the petitioner at present. In this respect Dr. D.S. Billawria, M.O. M.C. Jail, Kanda and J.G. Lodta Chief Welfare Officer (Prisons), H.P. are present in the court along with instrument of measuring the height. At the direction of this court, the height of the petitioner has been measured three times from different angle and on taking measurement from the instrument brought by the officials, it appears that the petitioner is 5’.6”. Taking the petitioner’s height as 5’.6” at the relevant time, obviously his candidature was to be considered in the year 1999 as he was eligible in all respect including the age criteria also. But keeping in view the objection of the respondents that at present the petitioner is over age and cannot be considered to the post of warder - 5 - though for 29 vacancies advertised in twelve districts of the State of H.P., where the selection procedure was going on and in many of the District, process is almost complete, therefore, according to the respondents, it may be difficult to consider the candidature of the petitioner. We have heard learned counsel for the petitioner. We have noticed that in view of the proforma prescribed at the relevant time, the minimum requirement for being considered to the post of warder was a candidate with 5’.6”, height Chest 33” and normal vision in both the eyes. The petitioner at the relevant time was, perhaps not properly assessed in the year 1999 and as such his candidature was not allowed whereas he was fit in all respects according the physical standard required for the post of warder. Since the relaxation Clause is available in view of the rules of the notification dated 28.8.2001 indicated above and still vacancies are available, therefore, to do the substantial justice and giving sympathetic consideration that the petitioner after being deployed in the year 1992 as Home Guard is still serving till date as a Home Guard in the State Government, as such he may be considered to the post of warder - 6 - by the State Government taking his height as 5’.6”, if necessary by relaxing the age within the powers provided to the State Government. This court is however, aware that the petitioner has never sought any relaxation earlier and different criteria of physical standard and age has been prescribed for recruitment to the post of warder in the past through different notifications. In view of the notification dated 28.8.2001 the power of relaxation may be made, so that the petitioner may be considered as the age for recruitment to the post is between 18 to 45 years in view of the notification dated 28.8.2001. Therefore, this court is directing the respondents to consider the candidature of the petitioner to the post of warder in reference to the criteria for recruitment as available in the year 1999 vide Notification dated 5th August, 1998 (Annexure A-1) by giving one time relaxation to the petitioner in the peculiar facts and circumstances of the case. The writ petition is allowed accordingly. All the pending application(s), if any, shall also stand disposed of. (R.B. Misra),J. (surinder Singh),J 19th June, 2009. (cm)