ISMAIL ABDUL LATIF SHAIKHversusSTATE OF MAHARASHRA AND ANR.

A                            ISMAIL ABDUL LATIF SHAIKH
                                           v.
                      STATE OF MAHARASHRA AND ANR.

                                 FEBRUARY 29, 1996

B                  [S.P. BHARUCHA AND B.L. HANSARIA, JJ.]

             Service Law :

             Bombay Prohibition and Excise Department Rules of 1958 relating to
C promotion to the post of Sub-Inspector :

         Rule ~onstable-.Promotion to the post of Sub- Inspecto,-Require-
  ment of physical measurement-Appellant was rejected in 1966 on ground of
  chest measurement being short of required standard-Promotion given in
  197(}--Held, ndc relating to physical requirement not applicable in case of
D Sub-Jnspectors-Appc/lant would be deemed to be promoted from date of
  rejection in 1966-Notional promotion to be confined to benefit of seniority
    alone.

          The appellant, a constable in the Prohibition and Excise Department
    of the respodent-State, was, in 1966, interviewed for promotion to the post
E   of Sub-Inspector, but was rejected on the ground that his chest measure-
    ment was short of the required standard. He was promoted to the said po.st
    in 1970. His claim that his promotion ought to be effective from 1966 was
    rejected by the Maharashtra Administrative Tribunal.

           In appeal to this Court, it was contended for the appeUant that his
F   rejection in 1966 was not tenable since there was no requirment as regards
    measurement of chest under the 1958 Rules; and that the Government had
    allowed some persons to hold the promotional post though they were below
    the required height.

             Allowing the appeal, this Court
G
           HELD : 1.1. The rule relating to physical requirement has no ap-
    plication in the case of Sub-Inspectors. Rule 3 of 1958 Rules has not
    mentioned about physical requirement as qualification for Sub· Inspectors.
                                                                  [63-H; 64-A]
H            1.2. Besides, the Government having allowed some persons to hold
                                          62
                        I.AL. SHAIKHv. STATE [HANSARIA,J.]                        63

      the promotional post of Sub-Inspector despite their being below the re-           A
      quired height, the same benefit has to be made available to the appellant
I     as the short fall of physical requirement in his case is relatable to the chest
      being not of required measurement. [64-B]

            2. The promotion of the appellant to the post of Sub-Inspector shall
      be deemed to be from the date of his rejection in the year 1966. This notional    B
      promotion shall be confined to the benefit of seniority alone. [64-C]

              CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5522 of
      1994.

          From the Judgment and Order dated 15.6.93 of the Maharashtra                  C
      Administrative Tribunal, Bombay in T.A.NO. 306 of 1991.

              A.M. Khanwilkar for the Appellants.

              S.M. Jadhav and D.M. Nargolkar for the Respondents.
                                                                                        D
              The Judgment of the Court was delivered by

·~·            HANSARIA, J. The appellant joined the Prohibition and Excise
      Department as a Constable in the year 1961. The next promotional post is
      that of Sub-Inspector. He was indeed interviewed for that post in the year E
      1966, but was not promoted on the ground that his chest measurement was
      less than the standard said to be required to hold the post. He ultimately
      came to be promoted as a Sub-Inspector in 1970. His grievance, however,
      is that the promotion has to relate back to 1966 inasmuch as his rejection
      in that year for the promotional post on the ground above noted was not
,,.   tenable for two reasons : (1) there is no such requirement as would appear, F
      inter alia, from the decision of the Maharashtra Administrative Tribunal
      itself in the case of one Shashikant Dhaku Chavan rendered in Transfer
      Application No.278 of 1991 on 27.8.1993, whereas his approach to the
      Tribunal was dismissed by an order dated 15.6.1993 on the ground of his
      having not fulfilled the physical requirement; and (2) the Government had G
      allowed S/Shri S.H. Avhad and S.K. Thorat to hold the promotional post
      though they were below height.

            2. We find merit in both the grievances inasmuch as the rule relating
      to physical requirement has no application in the case of Sub-Inspectors
      as would appear from the judgment of the Tribunal in the case of Chavan. H
    64                   SUPREMECOURTREPORTS                   [1996] 3 S.C.R.

A Chavan's case cannot be distinguished on the ground that he belonged to
    clerical branch whereas the appellant was in constabulary, as sought to be
    done by the learned counsel for the State, inasmuch as Rule 3 noted by
    the Tribunal in Chavan's case has not mentioned about physical require-
    ment as qualification for Sub-Inspectors. This apart, the Government
    having allowed the aforesaid two persons to hold the promotional post of
B   sub-Inspector despite their being below the required height, the same
    benefit has to be made available to the appellant as the short-fall of
    physical requirement in his case is relatable to the chest being not of
    required measurement.

C       3. The appeal is, therefore, allowed and we state that the promotion
  of the appellant to the post of Sub-Inspector shall be deemed to be from
  the date of rejection of his promotion in the year 1966. This notional
  promotion shall be confined to the benefit of seniority alone as was the
  prayer of the appellant in the writ petition filed by him before the High
  Court, which had come to be transferred to the Tribunal for disposal. No
D order as to costs.
    R.P.                                                     Appeal allowed.