Sudhir Nagauri @APPELLANT@Hash State of Rajasthan & Ors.

This writ petition has been filed by the petitioner aggrieved against the communication/order dated 07.09.2015 (Annex.-8), whereby the candidature of

the petitioner has been rejected on the ground of having height as 166cm instead of the eligibility requirement of 168cm. Further prayer has been made

for issuance of directions to the respondents to accord appointment to the petitioner on the post of Constable General, if he otherwise falls in merit

with all consequential benefits.

The petitioner applied for the post of Constable General pursuant to the advertisement dated 14.07.2013 (Annex.-1). After appearing in the written

examination as well as physical efficiency test and medical examination, when the result was declared, the petitioner did not find his name in the list of

successful candidate.

The petitioner filed SBCW No.6261/2015, which came to be decided on 29.06.2015 (Annex.-5), whereby the petitioner was directed to file a

representation with the respondents and the appropriate authority was directed to decide the representation.

Pursuant thereto, the order dated 07.09.2015 (Annex.-8) was passed, inter alia, indicating that as the height of the petitioner was found as 166cm,

which was lower than the eligibility requirement of 168cm and as per the advertisement, the relaxation was accorded to the candidates with the height

of 166cm in case persons with height of 168cm were not available, could not be granted to the petitioner as the candidates were available.

Feeling aggrieved, the petitioner filed SBCW No.11783/2015, wherein by order dated 09.10.2015 (Annex.-9), it was inter alia, directed as under:-

“In the facts and circumstances of the case, the respondents are directed to subject the petitioner to medical examination for the purpose of height

by duly constituted Medical Board at Jodhpur within a period of two weeks. The petitioner would deposit a sum of Rs.5000/- for the purpose with

the respondents. In case, the claim made by the petitioner is found justified, the amount of Rs.5000/- shall be refunded back to the petitioner else the

amount of Rs.5000/shall stand forfeited.

The petitioner would serve a copy of the writ petition as well as order of this Court on the respondents by 12.10.2015.â€​

Pursuant thereto, it appears from the document (Annex.-

R/R/1), the petitioner informed the respondents about the order dated 09.10.2015 passed by this Court and, thereafter a reminder dated 29.10.2015

(Annex.-10) was given by the petitioner.

In the meanwhile, SBCW No.11783/2015 came up before the Court on 02.11.2015 (Annex.-11), when noticing the directions dated 09.10.2015 and

the fact that the amount was not deposited by the petitioner, inter alia, the following order was passed:-

“Petitioner was directed to deposit Rs. 5000/- and respondents were directed to medically re-examine the petitioner within two weeks and matter

was ordered to be listed on 28.10.2015. On 28.10.2015, when matter was listed in the court, it was prayed by the petitioner’s counsel that some

time may be granted to produce the representation as well as receipt of deposit of Rs. 5000/- on record. Today, additional affidavit has been filed by

the petitioner enclosing Annex.-1 “Pratham Smaran Patraâ€. Upon perusal of this reminder, it is nowhere stated by the petitioner that he has

deposited Rs. 5000/- and no receipt has been annexed with the application.

In view of the above, the petitioner himself has disobeyed the order passed by this Court. Hence, this writ petition is dismissed.â€​

It appears that despite dismissal of the writ petition on 02.11.2015 (Annex.-11), the respondents being oblivious of the said aspect, issued

communication dated 09.12.2015 (Annex.-12) requiring the petitioner to deposit a sum of Rs.5,000/- pursuant to the interim order passed in SBCW

No.11783/2015, which was deposited by the petitioner on 10.12.2015 (Annex.-13), pursuant thereto, the petitioner was subjected to medical

examination and a report of the Medical Board/Health Certificate dated 11.01.2016 (Annex.-16) was issued, inter alia indicating the height of the

petitioner as 168cm. Despite the said report of the Medical Board indicating the height of the petitioner as 168cm i.e. as per the eligibility requirement,

the respondents did not take any action on the said report/accord appointment to the petitioner, which led to filing of the present writ petition.

After notices were issued to the respondents, the respondents have taken a plea that the petitioner had filed an application for appointment of the

Medical Board on 29.10.2015 and that as the writ petition filed by the petitioner being SBCW No.11783/2015 has already been rejected, the petitioner

was not entitled to any relief. Though the medical examination conducted by the respondents has been supported, the report of the Medical Board

appointed pursuant to the deposit of amount by the petitioner, has not been disputed, the only plea raised is that as the amount has been deposited and

report has been given after the writ petition was dismissed, the petitioner was not entitled for any relief.

Learned counsel for the petitioner submitted that the petitioner had approached the respondents on 14.10.2015 (Annex.-R/R/1) i.e. respondents within

one week from the date the order was passed by this Court, however, no response was given and when the matter came up before this Court on

28.10.2015, wherein the said aspect was raised by the Court, on the next day i.e. on 29.10.2015 (Annex.-10), a reminder was given by the petitioner,

which was produced before the Court on 02.11.2015. The Court noticed the said aspect of issuance of reminder, however, rejected the writ petition

for non-deposit the amount of Rs.5,000/-.

It is submitted that the very fact that on 29.10.2015, the reminder was given by the petitioner pursuant thereto the respondents issued the

communication dated 09.12.2015 (Annex.14) for deposit of the amount clearly reflects the fact that the respondents despite passing of the order of the

Court dated 09.10.2015 (Annex.-9), had chosen to direct the petitioner to deposit the amount at their leisure and, therefore, even if the writ petition

was rejected by this Court for non-deposit of the amount on account of the assumed default on part of the respondents, the petitioner cannot be made

to suffer on account of the lapse on part of the respondent-Department.

Further submissions have been made that factually once the height of the petitioner has been found to be within the eligibility requirement, to deprive

the petitioner from the fruits of the success in the selection process faced by him would not be justified and, therefore, the present writ petition filed by

the petitioner be allowed.

Learned counsel appearing for the respondents submitted that once SBCW No.11783/2015 filed by the petitioner stands rejected, the petitioner cannot

maintain the second writ petition for the same relief and, therefore, the writ petition deserves dismissal.

I have considered the submissions made by learned counsel for the parties and have perused the material available on record.

A perusal of the order dated 09.10.2015 (Annex.-9) indicates that the respondents were directed to subject the petitioner to medical examination for

the purpose of height by duly constituted Medical Board within a period of two weeks. The petitioner was required to deposit a sum of Rs.5,000/- for

the purpose with the respondents and it was ordered that in case, the claim made by the petitioner is found justified, the amount of Rs.5,000/- shall be

refunded back to the petitioner else the amount of Rs.5,000/shall stand forfeited.

The petitioner produced the copy of the order dated 09.10.2015 (Annex.-9) before the respondents on 14.10.2015. The respondents in their reply, have

indicated that the representation was made by the petitioner on 29.10.2015. However, a perusal of the representation dated 29.10.2015 (Annex.-10)

indicates that the same has been titled as ‘first reminder’. The same letter (Annex.-10) was produced before the Court on 02.11.2015 in SBCW

No.11783/2015. The said letter dated 29.10.2015 refers to the communication dated 14.10.2015 and, therefore, it cannot be said that the petitioner

made the representation for the first time on 29.10.2015. The reason for issuance of the reminder apparently was occasioned on account of the fact

that when SBCW No.11783/2015 came up before the Court on 28.10.2015, the counsel for the petitioner was directed to produce the receipt of

service of notice on the next date of hearing and on that count, the said reminder was given by the petitioner on 29.10.2015.

In view of the fact that the petitioner had given a similar nature communication to the respondents, on 14.10.2015, which led to issuance of the

communication dated 09.12.2015 (Annex.12) for deposit of a sum of Rs.5,000/-, indicating that the amount be deposited on a particular dated i.e. on

14.12.2015, it cannot be said that the communication given by the petitioner on 14.10.2015 was not adequate for the respondents to undertake the

medical examination of the petitioner.

It is true that when SBCW No.11783/2015 came up before the Court on 02.11.2015, on finding that the amount was not deposited by the petitioner,

the writ petition was dismissed, however, the fact remains that the respondents were required to require the petitioner to deposit the amount pursuant

to the interim order passed by this Court, which was done by the respondents for the first time on 09.12.2015 (Annex.-12), pursuant thereto, the

amount was deposited on 10.12.2015 and, therefore, it cannot be said that the petitioner essentially was in default and as the said requirement of the

respondents in requiring the petitioner to deposit the amount was not before the Court on 02.11.2015, the dismissal of the writ petition, on that count by

itself cannot operate as res-judicata. Further, the said petition was dismissed essentially for assumed default and not on merits on the pleas raised by

the petitioner and once the respondents have issued the requisition for deposit of the amount, medical board having been constituted and the medical

board having examined the petitioner and found him eligible, the respondents cannot be heard to question the deposit of the amount by the petitioner

and constitution of the medical board and/or the validity of the report of the medical board only on account of the fact that SBCW No.11783/2015 was

dismissed on default.

As already noticed hereinbefore, though the respondents have supported the finding of its medical team, the validity of the health certificate issued by

the medical board constituted by the respondents had not been questioned, which has indicated the height of the petitioner as 168cm and in those

circumstances, admittedly the petitioner would be within the eligibility criteria as indicated in the advertisement and, consequently, the rejection of the

petitioner’s candidature by the respondents initially and reiterated by the order dated 07.09.2015 (Annex.-8), cannot be sustained.

In view of the above discussion, the writ petition filed by the petitioner is allowed. The order dated 07.09.2015 (Annex.-8) passed by the respondents

is quashed and set aside.

The respondents are directed to consider the candidature of the petitioner by taking his height as 168cm and if any person lower in merit has been

granted appointment by the respondents pursuant to the advertisement dated 14.07.2013 (Annex.-1), the case of the petitioner be considered for grant

of appointment.

If found entitled to appointment, the petitioner would be entitled to all notional benefits from the date, persons lower in merit to the petitioner, if any,

were granted appointment by the respondents. Further, the amount of Rs.5,000/- deposited by the petitioner pursuant to the interim order dated

09.10.2015 (Annex.-9) passed in SBCW No.11783/2015, shall also be refunded back to the petitioner.

The needful be done by the respondents within a period of six weeks.