RAM PAL Vs. STATE OF U P

JUDGEMENT

(1.) R. K. Agrawal, J. By means of the present petition filed under Article 226 of the Constitution of India the petitioner, Ram Pal, seeks the following reliefs : " (i) issue a writ, order or direction in the nature of certiorari quashing the impugned order/letter dated 26-6-1999 (Annexure No. 7 to the writ petition), passed by the respondent No. 1, cancelling the petitioner's candidature for the post of District Commandant, Home Guards qua the 1992 examination. (ii) issue a writ, order or direction in the nature of mandamus commanding the respondents to appoint the petitioner to the post of District Commandant, Home Guards immediately. (iii) issue any other writ, order or direction to which the petitioner might be found entitled in the facts and circumstances of this case. (iv) award the cost of this petition. (v) issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 11-11- 1999, passed by the Secretary, Home (Civil Defence) Department, Government of Uttar Pradesh, Lucknow (Annexure No. A to the affidavit accompanying the present application for amendment) rejecting the petitioner's representations. " Briefly stated the facts giving rise to the present petition are as follows :

(2.) ACCORDING to the petitioner, he had appeared in the Combined State/upper Subordinate Service Examination, 1992, conducted by the Uttar Pradesh Public Service Commission, Allahabad, hereinafter referred to as "the Commission" as an "other Backward Caste" candidate. He was declared successful in the preliminary test vide communication dated 14th February, 1995 sent by the Controller of Examinations. He was also declared successful in the main examination and was called for the interview held on 22nd March, 1996. As his height was only 162 cm. he indicated his 11th preference for the post of District Commandant (Home Guards ). The other preferences indicated by him were in respect of those posts which did not require a minimum height of 165 cm. In the final result of the Combined State/upper Subordinate Service Examination, 1992, declared on 5th April, 1996 he was placed at serial No. 309 of the combined merit list and was allotted the post of Assistant Account Officer on the strength of his position in the merit list and the preference for various services given by him at the time of interview. He was placed first amongst the Other Backward Caste candidates who were selected for the post of Assistant Accounts Officer on which post he joined after completing all the requisite formalities. ACCORDING to the petitioner, as a large number of candidates who were declared selected for various posts vis-a-vis a particular examination year either did not join or had resigned after joining for one reason or the other, the original allocation of the candidates to various services underwent a process of reshuffling, i. e. , to say a post vacated or not joined by a candidate is offered to those below him in the merit list on the basis of the options indicated before the interview. The post of Assistant Accounts Officer, which was originally allocated to the petitioner, according to him, was his 13th preference whereas the posts of Block Development Officer and District Commandant, Home Guards, were his 12th and 11th preferences respectively. Some of the original allottees to the posts of District Commandant (Home Guards) did not accept the offer of appointment on the said post and as a result of reshuffling the petitioner came to be considered for appointment to one of the posts of the District Commandant (Home Guards ). The petitioner was called for medical examination/fitness for the post of District Commandant (Home Guards ). In the medical examination (fitness report) given by the Chief Medical Officer, Azamgarh his height has been found to be short by 3 cm. of the prescribed minimum standard of 165 cm. The Secretary (Home), Civil Defence Department, Government of U. P. , Lucknow, respondent No. 1 vide order dated 26th June, 1999 had cancelled the petitioner's candidature for the post of District Commandant (Home Guards ). The petitioner made a representation on 28th April, 1999 before the respondent No. 1, which was followed by the reminders dated 24th August, 1999 and 15th September, 1999 and when the same was not being decided, the petitioner has approached this Court by means of the present writ petition. After the filing of the petition, the representation made by the petitioner has been decided vide order dated 11-11-1999. The respondent No. 1 by a reasoned order has rejected the said representation. The order dated 26th June, 1999 and 11th November, 1999 passed by the respondent No. 1 are under challenge in the present writ petition on the ground that the minimum prescribed standard of height which he did not meet was incorporated in the U. P. Home Guards Service Rules, 1982 for the first time only on 12th March, 1996 and, therefore, it has no application to the candidature of the petitioner which relates to Combined State/upper Subordinate Service Examination, 1992 as the said criteria was not in existence when the post was advertised and examination for filling up the said post was held. Further, at the time of interview the petitioner was not informed about the minimum requirements of height thereby adversely affecting the indication of job preferences given by the petitioner resulting in the candidates who were lower in rank got the jobs which the petitioner ought to have got given his rank and list of preferences in the Combined State/upper Subordinate Service Examination, 1992 and the amendment to the U. P. Home Guards Service Rules, 1982 cannot be given retrospective effect. The cancellation of the petitioner's candidature is violative of Articles 14 and 19 of the Constitution of India and the order is based on patently flawed and illegal premises.

(3.) A supplementary counter-affidavit has been filed by Sri Pradeep Kumar Srivastava, Under Secretary, Civil Defence and Home Guards, U. P. , Lucknow on behalf of respondent Nos. 1, 3 and 4 in which it has been stated that while sending requisition Form, the State Government vide letter dated 31st December, 1991 had specifically mentioned that for the appointment of the candidates on the post of District Commandant (Home Guards), the criteria for physical eligibility, as prescribed for appointment on SAMOOH 'kha' posts in the Police Department, has been made applicable and fixed and, therefore, for the appointment on the post of District Commandant (Home Guards), the criteria prescribed regarding physical eligibility/measurement and requirements for appointment on SAMOOH 'kha' post in the Police Department, is applicable. It has further been stated that in respect of the appointment of candidates in SAMOOH 'kha' in the Police Department, Government Order dated 16th November, 1978 prescribes the physical eligibility and measurements. It has been stated that in the aforesaid Government Order the minimum height has been prescribed as 165 cm.