ABHAY KUMAR SINGH & ORS.versusSTATE OF BIHAR & ORS.

                         [2014] 7 S.C.R. 606


A                 ABHAY KUMAR SINGH & ORS.
                                   V.
                     STATE OF BIHAR & ORS.
                  (Civil Appeal No. 8450 of 2014)
                        SEPTEMBER 2, 2014
B
          [T.S. THAKUR, ADARSH KUMAR GOEL AND
                     R BANUMATHI, JJ.)

    ~    Service law: Dismissal from service - Post of constable -
C   Appellants selected as constable on the basis of their height
    being more than height of last candidate in respective
    categories - Dismissed from service 4 years after their
    appointment on the ground that their height was not accurately
    recorded on account of manipulation and that on re-
D   measurement their hEiight was found to be less than the height
    of last person selected - Held: The allegation of manipulation
    was duly enquired into and a finding was recorded against the
    appellants - Irrespective of the question whether the criteria
    adopted in making the selection on the basis of more height
E   of candidates was valid, the fact remained that the appellants
    were held to have manipulated and got their height wrongly
    recorded more than their actual height - At the same time,
    responsibility for correct recording of the height is of the
    Department and after the appellants were duly selected and
F   appointed, and were in service for four years, their termination,
    in facts and circumstances, would be too harsh - In these
    circumstances while the appellants are not entitled to
    reinstatement, the respondent is directed to give fresh
    appointment to the appellants as constables against available
G   vacancies within thre19 months - Bihar Police Manual, 1978 -
    r.663(b) - Bihar Polioe Act, 2007.

        The appellants applied for the post of Constable and
    were selected on the basis of their height being more than

H                                 606
     ABHAY KUMAR SiNGH v. STATE OF BIHAR                607


 the height of the last candidate selected in respective · A
 categories. However after 4 years, they were dismissed
 from service after enquiry on the ground that their height
 was not accurately recorded on account of manipulation
1
 and on re-measurement their height was found to be less
 than the height of the last person selected: The High B
 Court rejected the appellant's claim for reinstatement.·

     The questions for consideration in the instant appeal
 were whether the height ca'n be the sole criterion for the
 selection of police constable and whether the appellants      C
 who had prescribed height but may not have the higher
 height as got recorded could have been terminated from
 service.

     Allowing the appeal, the Court
                                                               D
      HELD: 1. The Recruitment Rules were revised. Rule
 663 (b) of the Bihar Police Manual, 1978 read with Bihar
 Police Act, 2007, dealing with the selection of constables
 to the Bihar Police was substituted by new Appendix 103
 which provides for preparation of a merit list on the basis
                                                               E
 of written examination. It provided that the selected
 candidates have to appear for a physical test/
 measurement which is mandatory, but no marks are
 given on that basis. The said development showed that
 the State itself was not satisfied that the height should
 be the sole criteria, for selection out of the candidates     F
 who fulfilled the requirement of the prescribed height.
 Thus, the question whether height alone should be a
 criteria for selection out of candidates who had the
 prescribed height has been rendered academic. Both the
 parties stated that in such circumstances, height cannot      G
 be sole criteria. [Paras 5 and 6] [611-F-H; 612-A-C]
    · 2. The allegation of manipulation was duly enquired
· into and a finding was recorded against the appellants.
                                                               H
    608      SUPREME COURT REPORTS                 [2014) 7 S.C.R.


A Irrespective of the question whether the criteria adopted
  in making the selection on the basis of more height of
  candidates was valid, the fact remained that the
  appellants were held to have manipulated and got their
  height wrongly reco1·ded more than their actual height. At
B the same time, resp1Jnsibility for correct recording of the
  height was of the [)epartment and after the appellants
  were duly selected and appointed, and were in service
  for four years, t:heir termination, in facts and
  circumstances, would be too harsh. In these
c circumstances while the appellants are not reinstated with
  back wages and continuity of service, the respondent is
  directed to give fresh appointment to the appellants as
  constables against available vacancies within three
  months. [Para 12) [613-F-H; 614-A-B]
D       CIVIL APPELLATE JURISDICTION : Civil Appeal No.
    8450 of 2014.

      From the Judgm•~nt and Order dated 16-12-2005 of the
  Patna High Court in LP.A. Nos.1356/2005.,1357/20051358/
E 2005,1360/2005 and 1361/2005.

         S.N. Jha, Arup Banerjee, Dvnath Anand, Aparna Jha for
    the Appellants.

          Manish Kumar, Gopal Singh for the Respondents. ,
F
          The Judgment of the Court was delivered by

          ADARSH KUMAR GOEL, J. 1. Leave granted.

        2. This matter has been placed before us in view of the
G dis-agreement by a Bench of Two Judges with the earlier order
  of this Court on the quE~stion whether the height can be the sole
  criteria for the selection of a police constable. Order dated 17th .
  February, 2009, referring the matter to a larger Bench, reads
  as follows:-
H
 ABHAY KUMAR SINGH v. STATE OF BIHAR                     609
       [ADARSH KUMAR GOEL, J.]
"The dispute relates to the selection of constables in the A
State of Bihar. The minimum height requirement was
1~65 ems. for general candidates and 160 ems. for
sch,eduled castes candidates. Admittedly, the petitioners -
were above that minimum height. However, it seems that
they were rejected because the procedure adopted by the B
respondents was that height was the sole criterion for
selection, which, in our view, is arbitrary and violative of
Article 14 of the Constitution of India.               ·

 In our opinion, once a candidate has the minimum height C
 as required by the relevant Rules, height then becomes
 an irrelevant consideration and other criteria should be
 taken into consideration, like intelligence, physical
 strength, etc. In this case, the selection amongst those
 who had the minimum height was done by only selecting
 the tallest candidates for the available vacancies. We are D
 of the opinion that this was wholly arbitrary, and police
 constables must also have intelligence and other
 requirements, apart from height.

  To give an example, supposing there are twenty                 E
· vacancies and 100 candidates have the minimum height
  as required by the Rules, in such a situation, the selection
  authority, in our opinion, cannot validly select the tallest
  twenty mong these 100 candidates.

 Learned counsel for the respondents, however, invited F
 our attention to a judgment passed by a Division Bench
 of this Court in the case of State of Bihar & Ors. vs. Mal
 Babu Sharma (Civil Appeal No.2711 of 2002 arising out
 of S.L.P. ( C) No.21688 of 2001) in which the contention ,
 of the State of Bihar has been accepted. We respectfully G
 cannot agree with the view taken by the Division Bench
 and hence, we refer this matter to a larger Bench to be
 nominated by the Hon'ble Chief Justice."

                                                                 H
    610       SUPREME COURT REPORTS                      [2014) 7 S.C.R.


A      3. The appellants applied for the posts of constables in
  response to an adv1ertisement dated 27th October, 1998, and
  were selected on thie basis of their height being more than the
  height of the last candidate selected in the respective
  categories i.e. general, backward and Schedule Castes. It later
B came to light that their height was not accurately recorded on
  account of manipulation and on re-measurement their height
  was found to be less than the height of the last person selected.
  On that basis, after enquiry, they were dismissed from service
  vide order dated 25th August, 2003. They approached the High
c Court by way of a Writ Petition. While the learned Single Judge
  allowed the Writ Petition, the Division Bench held against them
  and observed as under:-

          '.'........ If by resorting to wrong practices the writ petitioners
          got their height wrongly measured and entered in the
D         official records, they cannot subsequently defend their
          selection only on the basis that their actual height even
          after detection of fraud is equal to or more than the
          minimum eligibility criteria governing height. Petitioners
          were terminateci from service not on the ground that they
E         did not possess the minimum stipulated f]eight as given
          in the advertisement or in the rules but on the ground that
          they succeeded in selection process by wrong
          measurement and wrong entries in respect of their
          heights. The other issue that the impugned order or the
F         enquiry does not contain ample materials to lay down a
          foundation of fraud and forgery does not merit serious
          consideration in view of the fact that the controversy
          related only to the measurement of the height which
          could be easily be re-checked and verified by a reliable
G         authority who was not involved with the initial selection
          process. That having been done, there is no scope to
          hold that petitioners are not beneficiaries of fraud ......... "

     On an earlier occasion in State of Bihar & Ors. vs. Mal
H Babu Sharma [Civi.I Appeal No.2711 of 2002) decided on
     ABHAY KUMAR SINGH v. STATE OF BIHAR                   611
           [ADARSH KUMAR GOEL, J.]
15.4.2002, this Court considered the issue whether a               A
candidate having requisite minimum height could be denied
appointment on the ground that other candidate had more
height. It was held that if candidates with more height are
available, candidates with lesser height could be rejected even
if they had the requisite minimum height. It was observed as       B
under:-

    " ........ 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 C
    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 re-determination of height, but
    actually a check on impersonation. In the aforesaid
    premises, we are of the considered opinion that High D
    Court committed error in issuing a Mandamus for
    appointment of the respondent as a Constable ........ "

      4. When this matter earlier came up for hearing before a
 B~nch of Two Judges, the Bench dis-agreed with the view           E
 taken above. It was observed that once the candidate had the
 minimum height, more height was an irrelevant consideration
 and the view earlier taken could not be accepted as correct.
.Accordingly, the matter has been placed before this Bench, on
 reference.                                                        F
     5. On the last date when the matter came up for
consideration, the Court was informed that the Recruitment
Rules have been revised and were proposed to be placed on
record. The revised Rules have been placed on record. Rule
663 (b) of the Bihar Police Manual, 1978 read with Bihar Police    G
Act, 2007, dealing with the selection of constables to the Bihar
Police, has been substituted by new Appendix 103 which
provides for preparation of a merit list on the basis of written
examination. The selected candidates have to appear for a
                                                                   H
    612      SUPREME COURT REPORTS                   [2014] 7 S.C.R.


A   physical test/measurement which is mandatory, but no marks
    are given on that basis.

         6. The above development shows that the State itself was
    not satisfied that the height should be the sole criteria, for
    selection out of the candidates who fulfilled the requirement of
8
    the prescribed height. Thus, the question whether height alone ·
    should be a criteria for selection out of candidates who had the
    prescribed height has been rendered academic. Learned
    counsel for both the parties state that in such circumstances,
C   height cannot be the sole criteria.

         7. Only question for consideration is whether the
    appellants who had the prescribed height, but may not have the
    higher height as got recorded, could have been terminated from
    service.
D
         8. On behalf of the appellants, Interlocutory Application
    No.3 of 2014 has been filed to the effect that one of the similarly
    placed candidates, namely, Brij Kishore Ram made a
    representation to the DGP, State of Bihar, which was accepted
E   on 24th November, 2011 and he was reinstated into service
    with the following observations:-

          "..... .Nowhere in the departmental enquiry any aspect
          have been reflected with in connection to fraudulence. I
          do not find any foundation for dismissal from service. I
F         find this order ab-lnitio wrong. Therefore, the following
          order is being passed:-      ,·

          1. The order of dismissal is set aside.

          2. He is re-instated into service from the date of dismissal
G         and it shall be presumed that no dismissal has taken
          place. Accordingly his service period shall be counted."

          9. We have heard learned counsel for the parties.

H
     ABHAY KUMAR SINGH v. STATE OF BIHAR                     613
           [ADARSH KUMAR GOEL, J.]
    10. The learned counsel for the appellants submitted that A
having been duly selected and being not responsible for any
error in wrongly recording the height, termination of services of
the appellan1s after four years of service was arbitrary. It is
pointed out that no action has been t_gken against officials who
wrongly recorded the height. Even if the appellants allegedly got    B
their height wrongly recorded, termination of their services was
too harsh. They ought to be given opportunity to serve even
without benefit of past service. The view taken by the learned
Single Judge was wrongly reversed by the Division Bench when
a similarly placed employee was reinstated by the department        c
itself.

      11. On the other hand, the learned counsel for the State
supported the view taken by the Division Bench and submitted
that for future the Rules have been revised, but the impugned
order of termination of services of the appellants remains D
unaffected and they were guilty of manipulation in the recording
of their height, but for which they could not have been given the
appointment. It was submitted that the order of termination was
justified and was passed eleven years .ago. If the appellants are
reinstated at this stage, with the contil;iuity of service, they will E
be eligible to claim seniority without t~e requisite experience
which is necessary for the higher posts in service.

      12. We have given due consideration to the rival
submissions. It remains undisputed ttiat the allegation of F
manipulation was duly enquired into and a finding was recorded
against the appellants. Irrespective of the' question whether the
criteria adopted in making the selection pn the basis of more
height of candidates was valid, the fact remains that the
appellants were held to have manipulateq and got their height G
wrongly recorded more than their actual height. At the same
time, responsibility for correct recording pf the height was of
the Department and after the appellants were-duly selected and
appointed, and were in service for four years, their termination,
in facts and circumstances, would be too harsh. In these
                                                                  H
    614       SUPREME COURT REPORTS               [2014] 7 S.C.R.


A   circumstances while we are not inclined to r~instate the
    appellants with back wages and continuity of service, we direct
    that the appellants be given fresh appointment as constables
    against available vacancies within three months from the date
    of receipt of a copy of this order                       '
B
        13. The appeal is allowed in above terms. There will be
    no order as to costs.

    Devika Gujral                                    Appeal allowed.