Full Judgment Text
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 2144 OF 2012
(@ SPECIAL LEAVE PETITION(C)NO.26602 OF 2010)
MD. MASAUD ALAM ... APPELLANT
VERSUS
STATE OF BIHAR & ORS. ... RESPONDENTS
O R D E R
1) Leave granted.
2) A Constable, whose services are terminated
from the Police Department, has filed this
appeal impugning the judgment and order passed
by the Division Bench of the High Court of
Judicature at Patna in L.P.A. No. 583/2006
dated 30.04.2010. By the impugned judgment and
order, the Division Bench has set aside the
order passed by the learned Single Judge in
Writ Petition No.1314/2000 dated 17.02.2006,
by which the appellant was reinstated into
service with full back-wages and service
benefits.
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3) The case has a chequered history. The
appellant was appointed as police constable by
the respondents in the month of October, 1992
and he served on this post till 1996. The
appellant amongst others, was asked to show
cause why his services should not be
terminated for the reasons stated in the
notice. The appellant, after receipt of the
notice, had offered his explanation, inter-
alia, contending that his appointment was made
following the guidelines prescribed in Police
Order No.202 of 1988. The respondents, not
being satisfied with the explanation offered,
terminated the services of the appellant. The
appellant and others filed the writ petitions,
inter-alia, for quashing their termination
order as illegal and arbitrary.
4) The learned single Judge, while allowing the
writ petition, took exception to lack of
reasoning in the show cause notice and orders
of termination, however, as the respondents
attempted to justify the termination on the
ground that the height of the writ petitioners
was not in accordance with the Police Order
No. 202 of 1988, the learned Single Judge
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thought it fit to direct the Deputy Inspector
General of Police (Headquarters), Patna
[hereinafter referred to as “the DIG of
police”], to measure the height of the writ
petitioners (including the appellant) and file
a report of the same before the Court.
5) Pursuant to the direction so issued, the DIG
of police measured the height of the writ
petitioners (including the appellant) and
submitted his report before the High Court. In
the report, the appellant’s height was
indicated as only 164 cm, falling short of 165
cm. as required by the Police Order No.202 of
1988.
6) Taking into consideration the report of the
DIG of Police, the High Court disposed of the
writ petition by its order dated 28.02.1997,
ordering the reinstatement of those who met
the criterion of height, while stating that
appropriate orders may be passed in the case
of those persons who did not have the
requisite height. In view of the orders passed
by the High Court, the Inspector General of
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Police had issued the order dated 6.3.1997
terminating the services of the appellant as a
constable in the police force.
7) Aggrieved by the order of termination so
passed, the appellant was constrained to
approach the writ court once again in C.W.J.C.
No. 1314 of 2000. The appellant primarily
contended and asserted that his height was
165.5 cm and not 164 cm as recorded in the
report submitted by the DIG of police. Since
there was a factual assertion made by the
appellant and disputed by the DIG of Police,
the learned Single Judge, in the ends of
justice, had appointed the Civil Surgeon-cum-
Chief Medical Officer, Patna [hereinafter
referred to as “Chief Medical Officer”] to
measure the height of the appellant and submit
his report before the Court.
8) The Chief Medical Officer, in his report, had
reported the height of the appellant as 166
cm. Taking into consideration the report so
filed and the fact that the appellant was
appointed against a regular vacancy and that
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there was no better contender for the post at
the time of the appellant’s appointment, the
learned Single Judge observed that the DIG of
police had malafidely represented the height
of the appellant to be 164 cm. As a
consequence, the writ petition came to be
allowed and the respondents were directed to
continue the services of the appellant and
also to pay the back-wages from the date of
termination of his service till the date he is
reinstated into service.
9) The order of the learned Single Judge was
carried in appeal before the Division Bench of
the High Court in L.P.A. No. 583/2006 and the
same came to be allowed as observed by us
earlier. It is this order which is called in
question in this appeal.
10)
We have heard learned counsel for the parties
to the lis.
11) At the outset, we record that that we do not
intend to comment on the performance of the
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DIG of Police while measuring the height of
the appellant, since this aspect of the matter
has been taken note of by the learned Single
Judge while disposing of the second Writ
Petition.
12) In our view, the writ court had rightly
directed the Chief Medical Officer to measure
the height of the appellant in view of the
factual dispute between the statement of the
appellant and the DIG of police and thereafter
drawing support from the report of the Chief
Medical Officer had directed the respondents
to continue the services of the appellant
since he satisfies all the guidelines/
parameters prescribed in the Police Order
No.202 of 1988. The Police Order No.202 of
1988 speaks of certain qualifications that
requires to be fulfilled by a candidate before
being selected and appointed to the post of
constable. One such qualification is that the
candidate must possess at least 165 cm height.
The height of the appellant has been found to
be 166 cm by the Chief Medical Officer, which
was accepted by the learned Single Judge and
this factual aspect should have been accepted
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by the Division Bench, in the Letters Patent
Appeal filed before it before taking exception
to the approach of the learned Single Judge
and before setting aside the finding of fact
recorded by the learned Single Judge with
regard to the height of appellant. In view of
the above narration, since the appellant has
the requisite height and since he satisfies
all the other conditions, in our opinion, the
respondents were not justified in terminating
the services of the appellant in the year
1997. Therefore, we cannot sustain the
impugned judgment.
13) Now the only question that remains to be
considered is, while directing the appellant
to be reinstated in service whether the
respondents should be directed to pay back
wages also from the date of termination of the
appellant’s service till his reinstatement.
Shri. Navin Prakash, learned counsel appearing
for the appellant submits that in the facts
and circumstances of the case and since the
appellant is getting back his means of
livelihood he would not press for the back
wages if he is reinstated into service. In our
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opinion, the suggestion so made by Shri. Navin
Prakash appears to be reasonable and if it is
accepted it would not prejudice the case of
the respondents in any manner whatsoever.
14) In view of the peculiar facts and circumstance
of this case, we allow this appeal, set aside
the judgment and order passed by the Division
Bench of the High Court of Judicature at Patna
in LPA No.583/2006 dated 30.04.2010. We
further direct the respondents to reinstate
the appellant into service as a constable
within three month's time from the date of
receipt of a copy of this order. We make it
clear that the appellant will not be entitled
to back-wages from the date of the termination
of his service till his reinstatement into
service. However, the period between the date
of termination and the date of reinstatement
will be considered for the purpose of
computing the qualifying service for payment
of the pensionary benefits only.
15) We clarify that this order is passed by us
only in the facts and circumstances of this
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case and not to be read as declaration of the
law by us. The question of law canvassed by
Shri. Manish Kumar, learned counsel for the
respondent-State is left open.
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16) With this observation and direction, this
appeal is disposed of. No costs.
...................J.
(H.L. DATTU)
...................J.
(ANIL R. DAVE)
NEW DELHI,
FEBRUARY 16, 2012.
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