Orissa High Court: A Division Bench of Mohammed Rafiq CJ and B. R. Sarangi J., allowed the petition quashing the impugned termination orders and reinstating the petitioner in his services in accordance with the principles of natural justice.
The factual matrix of the case is that the petitioner joined as Writer Constable on being selected by the selection committee and passing all the required tests of reading, writing, running, swimming, cycling etc., along with measurement of weight and height, wherein the height was recorded as 168 cm, and was thereby allowed to join as Writer Constable in Reserve Office, Bolangir. Later on during training for more than six months, on 19-09-1994, he was suddenly sent back by the Principal Training School Hatibadi due to alleged shortage of height by 1 cm vide letter. DIG of Police (Admn.), Odisha, Cuttack while considering his grievance petition, personally measured the height of the petitioner and found as 167 cm, which was 1 cm less than the requisite standard consequent to which the petitioner was discharged from service. Challenging such action of the opposite parties, the petitioner approached the Odisha Administrative Tribunal, Cuttack Bench Cuttack seeking to quash the termination order but the tribunal by the order impugned dismissed such original application. Aggrieved by the said impugned order, instant application has been filed.
Counsel for the petitioners submitted that the order passed by the tribunal suffers from the gross error of law apparent on the face of record leading to miscarriage of justice and thus suffers from a violation of the principle of natural justice as once the petitioner was found suitable in respect of the height by the selection committee, the same should not have been re-measured subsequently by any authority as it has got no legal sanction.
Counsel for respondents submitted that since there is physical deficiency of 1 cm, the action taken by the authority is well justified and the same having been confirmed by the tribunal vide order impugned, does not call for interference by this Court.
The Court observed that when a selection committee selected the petitioner by following prescribed procedures and accordingly order of appointment was issued, any other authority cannot sit as an appellate authority over the selection made by the selection committee by following due procedure. Thereby, the authorities, while discharging the petitioner from service, have not applied their mind.
The Court relied on the judgments titled Sabyasachi Lenka v. State of Odisha, 2019 (I) ILR-CUT-752, Rakhi Ray v. High Court of Delhi, (2010) 2 SCC 637 and A.P Public Service Commission v. B. Sarat Chandra, (1990) 2 SCC 669 wherein it was observed that:
“14. In consonance with the rules mentioned above, the State Selection Board, Odisha Police, Cuttack, having determined the number of constables required for the Force, issued advertisement under Annexure-1 to fill up 1370 number of posts of constable by way of direct recruitment by constituting a Selection Board as per Rule-6 taking into eligibility criteria under Rule-7. As per Rule-8, the recruitment centres for constables shall be decided by the Board and the Unit Level Selection Board shall conduct the recruitment test under the direction and supervision of the Board. As per Sub-rule(4) of Rule-11 the Unit Level Selection Board shall start the recruitment process by conducting the physical measurement. Then, the candidates only qualifying the physical measurement shall proceed to the next stage, i.e. physical fitness test and thereafter the Board may decide to further tests, i.e. written test and physical efficiency test. Rule-12 provides that physical measurement for all categories has to be done and Rule-13 provides written test. As per the decision of the Unit Level Selection Board, in the present case, after physical measurement was done, physical efficiency test, i.e., physical fitness test was conducted as per Rule-15. The petitioners, having been found suitable, were called for written test. After completion of recruitment test, the Board drawn up a composite merit list of the successful candidates of all categories and the said merit list was prepared in descending order on the basis of aggregate marks in accordance with the vacancies. The merit list so prepared by the Board was placed before the Director- General and Inspector General of Police for approval and after receiving approval it was called select list. As the petitioners’ name were found place in the select list, they were issued with provisional appointment order and directed to report for training. While undergoing training, the petitioners were again called for physical measurement test, so far height is concerned, which is not permissible either under the advertisement or under the Rules mentioned above. The order impugned indicates that only after conducting physical measurement, so far height is concerned, the petitioners name have been removed from the second revised select list and eliminated from the appointment as constables in OISF. As such, there is no provision for drawing any second revised select list nor making second physical measurement, so far as height is concerned, after the select list was finalized either under the Rules, 2014 or in the advertisement under Annexure-1. Therefore, the entire action taken by the authority under Annexures-5, 6 and 7 dated 28.04.2016 in removing the names of the petitioners from the second revised merit list and eliminating from the appointment as constables in OISF cannot sustain in the eye of law.”
The Court thus, held that discharge/termination of the petitioner from service vide order dated 31.10.1994 and consequential confirmation made by Odisha Administrative Tribunal, Cuttack Bench, Cuttack, vide order dated 22.07.2010 cannot sustain in the eye of law and the same are hereby quashed.
In view of the above, petition was allowed.[Dolamani Bishi v. State of Odisha, 2020 SCC OnLine Ori 697, decided on 09-10-2020]
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