Full Judgment Text
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PETITIONER:
ISMAIL ABDUL LATIF SHAIKH
Vs.
RESPONDENT:
STATE OF MAHARASHTRA & ANR.
DATE OF JUDGMENT: 29/02/1996
BENCH:
HANSARIA B.L. (J)
BENCH:
HANSARIA B.L. (J)
BHARUCHA S.P. (J)
CITATION:
1996 SCC (7) 545 JT 1996 (3) 158
1996 SCALE (2)593
ACT:
HEADNOTE:
JUDGMENT:
J U D G M E N T
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 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, is 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, 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 allowed S/Shri S.H. Avhad and
S.K. Throat 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. 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 requirement as qualification for
Sub Inspectors. This apart, the Government having allowed
the aforesaid two persons to hold the promotional of Sub-
Inspector despite their being below the required height, the
same benefit has to be made available to the appellant as
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the short-fall of physical requirement in his case is
relatable to the chest being not of required measurement.
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 1986. 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 order as to costs.