# Jitendra Kumar Singh & Ors v. State of U.P. & Ors

- **Citation:** (2020) 8 ILRA 22
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-03-04
- **Case number:** Writ A No. 1525 of 2020
- **Bench:** Ravi Nath Tilhari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/jitendra-kumar-singh-ors-v-state-of-u-p-ors-46024
- **Pages:** 10

## Headnote

A. Civil Law - Uttar Pradesh Constable and
Head Constable Service Rules, 2017:
15(3)(gha) - Rule 15(3)(D)- Service -
Appointment/Selection
-
Provides
for
conducting Physical Standard Test, in case the
candidate who has been unsuccessful for the
first time, raises objection and as the petitioners
in the present case raised grievance/objection,
they have right for their Physical Standard Test
being conducted, once again. Since, the
authorities did not pay any attention to their
objection, they have failed to discharge their
statutory duty infringing the petitioners' legal
right to re-measurement of their chest/Physical
Standard Test. (Para 17, 18, 21)

B. Constitution of India- Art. 226 - Article
226 is couched in a comprehensive phraseology
and ex-facie confers a wide power on the High
Court to reach injustice wherever it is found.
(Para 24)

Writ petition allowed with directions for
petitioner nos.1,2,3,4,5,7 and 8.

Writ petition dismissed for petitioner no.

## Text

22 INDIAN LAW REPORTS ALLAHABAD SERIES

30. The principles laid down by the
Apex Court in the case of Haryana
Warehousing Corporation (supra) upon
which reliance has been placed by the
learned counsel for the appellants has no
application to the facts and circumstances
of the present case inasmuch as the
petitioner/respondent does not challenge
the order impugned by him before the
Single Judge on the ground of denial of
personal hearing by the appellants.

31. Learned Single Judge while
coming to the conclusion that the order
withholding
'Efficiency
Bar'
of
the
petitioner/respondent was not based on any
relevant material, has referred to paragraph
nos. 15, 16 and 17 of the counter affidavit
in which it was averred that Efficiency Bar
Committee reviewed the efficiency of the
petitioner/respondent from time to time and
recommended to withhold the 'Efficiency
Bar' which was accepted by the Director.
Learned Single Judge has further observed
that
neither
any
recommendation
of
Efficiency Bar Committee nor decision of
Director were brought on the record.

32. Thus, the second ground on which
Sri Navin Sinha, learned counsel for the
appellants has challenged the order passed
by the learned Single Judge is also without
any merit.

33. In view of the foregoing
discussion, we find that the order passed by
the learned Single Judge does not suffer
from any illegality or legal infirmity
requiring any interference by this Court.

34. This appeal lacks merit and is
accordingly dismissed.
----------
(2020)08ILR A22
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.03.2020

BEFORE
THE HON'BLE RAVI NATH TILHARI, J.

Writ A No. 1525 of 2020

Jitendra Kumar Singh & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Indra Raj Singh, Sri Adarsh Singh

Counsel for the Respondents:
C.S.C.

A. Civil Law - Uttar Pradesh Constable and
Head Constable Service Rules, 2017:
15(3)(gha) - Rule 15(3)(D)- Service -
Appointment/Selection
-
Provides
for
conducting Physical Standard Test, in case the
candidate who has been unsuccessful for the
first time, raises objection and as the petitioners
in the present case raised grievance/objection,
they have right for their Physical Standard Test
being conducted, once again. Since, the
authorities did not pay any attention to their
objection, they have failed to discharge their
statutory duty infringing the petitioners' legal
right to re-measurement of their chest/Physical
Standard Test. (Para 17, 18, 21)

B. Constitution of India- Art. 226 - Article
226 is couched in a comprehensive phraseology
and ex-facie confers a wide power on the High
Court to reach injustice wherever it is found.
(Para 24)

Writ petition allowed with directions for
petitioner nos.1,2,3,4,5,7 and 8.

Writ petition dismissed for petitioner no.
6. (E-4)

Precedent followed:

1. Prateek Kumar & 3 ors. Vs St. of U.P. & 3
ors., Writ-A No. 1364 of 2020 decided on
25.02.2020 (Para 9)
8 All. Jitendra Kumar Singh & Ors. Vs. State of U.P. & Ors.
23
2. Dwarka Nath Vs Income Tax Officer AIR 1966
Supreme Court 81, (Para 24)

Precedent distinguished:

1. St. of U.P. & ors. Vs Pankaj Kumar Vishnoi
(2013) 11 SCC 178 (Para 8, 14)

2. Om Pal Singh Vs St. of U.P. Throu Principal
Secretary, Home Lucknow & Others, passed in
Service Single No. 1773 of 2020, decided on
31.01.2020 (Para 8)

(Delivered by Hon'ble Ravi Nath Tilhari, J.)

1. Heard Sri Adarsh Singh, learned
counsel for the petitioners and Sri Dinesh
Kumar Singh, learned Standing Counsel for
the State-respondents.

2. With the consent of the learned
counsel for the petitioners and learned
Standing Counsel, the present writ petition
is being disposed of at the admission stage.

3. The present writ petition has been
filed stating that the petitioners appeared in
the Physical Standard Verification Test and
were disqualified on the ground that the
height of the petitioners was below the
prescribed minimum height of 168 cm. The
petitioners preferred their objections in
terms of Rule 15(3) (gha) of Uttar Pradesh
Constable and Head Constable Service
Rules, 2017(hereinafter referred to as "the
Rules 2017") but no orders were passed on
their representation.

4. The petitioners' case is that their
height is above the prescribed minimum
height and they have been wrongly
deprived of their right for consideration for
appointment.

5. This Court on 03.02.2020 passed
the following order:-

"Learned
counsel
for
the
petitioners is permitted to implead "Chief
Medical Officer, Gorakhpur" as respondent
No. 5 in the array of parties during the
course of the day.

Heard counsel for the petitioners,
standing counsel for the State and perused
the material on record.

In the present petition, similar
controversy arises. The contention of the
counsel for the petitioners is that the height
of the petitioners was above the prescribed
height limit of 168 centimeters, however,
they have been denied only on erroneous
computation of the height of the petitioners.
The petitioners claim that they have
certificates
issued
by
the
Medical
Authorities to establish that their heights
are above the prescribed limit of 168
centimeters.

In view of the contrary reports, I
deem it appropriate to direct that the
petitioners
shall
appear
along
with
certified copy of this order before the Chief
Medical Officer, Gorakhpur on 10.2.2020.
The petitioners shall deposit a sum of Rs.
5,000/-, each as cost with Chief Medical
Officer, Gorakhpur. The Chief Medical
Officer, Gorakhpur is directed to constitute
a Medical Board constituting of three
Doctors of the level of Professor and
Associate Professor available at the local
District Hospital. The C.M.O. shall also
inform the S.S.P. of the District, who shall
depute an officer of the rank of Additional
Superintendent of Police to remain present
before the Board on 10.2.2020. The
petitioners shall also produce materials in
support of their identity before the Medical
Board. The petitioners shall appear before
the Medical Board on 10.2.2020 and would
be medically examined with regard to their
heights by the Board of three doctors. The
report signed by the Chairman of the Board
would be sent through the Chief Medical
24 INDIAN LAW REPORTS ALLAHABAD SERIES
Officer, Gorakhpur before this Court on or
before
25.2.2020. This
report
would
constitute the basis for the Court to
determine as to whether the report of the
Medical Board and the Appellate Medical
Board is liable to be questioned or not?

Post this matter in the additional cause
list on 25.2.2020 before the appropriate Court.

The matter shall not be treated as
tied-up or part heard to this Court."

6. In compliance of the order dated
03.02.2020, the Chief Medical Officer,
Gorakhpur submitted his report in a sealed
cover envelope, which has been opened
before this Court and the same has been
shown to the learned counsel for the
petitioners as well as learned Standing
Counsel and it has not been disputed by
them. As per the report the height of the
petitioners no.1, 2, 3, 4, 5, 7, and 8 has
been found to be 168 cm. or above.

7. Petitioner no.6 did not appear
before the Board, as such, his height could
not be measured in terms of the order dated
03.02.2020.

8. Learned Standing Counsel has
submitted that second physical standard test
could not be directed to be conducted and
the report in compliance of such a direction
cannot be relied upon for direction to the
respondents for the reliefs prayed in the
writ petition. He placed reliance on the
judgment of the Hon'ble Supreme Court in
Civil Appeal Nos. 2366-2367 of 2011
(State of U.P.and others vs. Pankaj
Kumar Vishnoi), decided on 25.7.2013
(Paragraph nos. 21, 22 and 23) as well as
on the case of Om Pal Singh vs. State of
U.P. Thru Principal Secretary, Home
Lucknow & Others, passed in Service
Single No. 1773 of 2020, decided on
31.1.2020 by this Court.

9. Learned counsel for the petitioners
has placed reliance upon the judgment of
this Court in Writ A No.1364 of 2020
(Prateek Kumar and 3 others vs. State of
U.P. and 3 others), decided on 25.2.2020
by this Court and has submitted that in
view of the report a direction may be issued
for consideration of the petitioners' case for
the appointment. He submits that the
judgments cited by the learned Standing
Counsel were duly considered by this Court
and thereafter the directions were issued in
the case of Prateek Kumar(supra).

10. I have considered the submissions
of the learned counsel for the parties.

11. This Court in the case of Prateek
Kumar(supra) after considering paragraphs
21, 22 and 23 of the judgment in Pankaj
Kumar Vishnoi (supra) as well as the case
of Om Pal Singh (supra) passed the
following judgment/order:-

"Heard learned counsel for the
petitioners and learned Standing Counsel
for the State-respondents.

The present petition has been
filed alleging that the petitioners appeared
in the Physical Standard Verification Test
and were disqualified stating that the
height of the petitioners was less than
prescribed minimum height of 168 cm. The
petitioners preferred their objections on the
same day in terms of Rule 15(3) (gha) of
Uttar
Pradesh
Constable
and
Head
Constable Service Rules, 2017, however, no
orders were passed thereupon as such the
petitioners approached this Court alleging
that the height of the petitioners is more
than the prescribed minimum height of 168
cm and they have been wrongly deprived of
their rights to participate in the Physical
Examination Test and also to be considered
for appointment.
8 All. Jitendra Kumar Singh & Ors. Vs. State of U.P. & Ors.
25

This Court, vide its order dated
27.1.2020, had directed the height of the
petitioners to be verified by a Medical
Board comprising of three Senior Doctors
in the presence of the representative of the
Senior Superintendent of Police.

The
Chief
Medical
Officer,
Bulandshahar has submitted a report in a
sealed cover in terms of the directions
issued by this Court. The sealed cover was
opened in the Court and the contents were
perused and is taken on record.

A perusal of the report makes it
clear that the height of petitioner no. 3 has
been found to be 168.9 cm whereas the
height of petitioners no. 1, 2 and 4 have
been found to be less than 168 cm which is
the qualifying height. Thus, the petition, on
behalf of petitioners no. 1, 2 and 4, stands
dismissed.

The Standing Counsel has placed
reliance on a judgement of the Supreme
Court in Civil Appeal Nos. 2366-2367 of
2011 (State of U.P. and others vs. Pankaj
Kumar Vishnoi), decided on 25.7.2013 in
Para No. 21, 22 and 23 which is
reproduced hereinbelow to argue that in
view of the observations made as quoted
above, this Court cannot issue directions
on the basis of the second physical
standard test conducted in terms of the
earlier order passed by this Court. Para
21, 22 and 23 are quoted as under:

21. It is accepted position that the
respondent appeared in the test and could
not qualify. Once he did not qualify in the
physical test, the High Court could not
have asked the department to give him an
opportunity to hold another test to extend
him
the
benefit
of
compassionate
appointment on the post of Sub-Inspector
solely on the ground that there has been
efflux of time. The respondent after being
disqualified in the physical test could not
have claimed as a matter of right and
demand for an appointment in respect of a
particular post and the High Court could
not have granted further opportunity after
the crisis was over.

22. In our considered opinion, the
order passed by the Division Bench is
wholly unsustainable and is hereby set
aside. We may, however, hasten to add that
it is open to the respondent to compete in
the normal course if eligible for the post of
Sub-Inspector for promotion in accordance
with rules prescribed for promotion.

23. At this juncture, we have been
apprised at the Bar that following the
decision of the Division Bench which has
been set aside in this appeal, in subsequent
writ petitions and appeals the High Court
has directed the Department to hold a
second physical test and to keep the results
in a sealed cover. As we have already
opined that the second physical test could
not have been directed to be held for the
purpose of extending the benefit of
compassionate appointment, the sealed
covers need not be opened. Needless to say,
the candidates therein are also entitled to
compete for promotion in accordance with
the rules.

The judgement of the Supreme
Court
arose
from
the
request
for
appointment on compassionate grounds in
which the petitioner, being a applicant
failed in the Physical Examination Test and
was thus not offered appointment on
compassionate grounds. Paragraph 21 of
the judgement of the Supreme Court
records that it is the accepted position that
the respondent appeared in the test and
could not qualify and on that basis the
observations, as recorded above, were
made by the Supreme Court.

I am afraid that the ratio laid
down has no applicability to the facts of the
present case, as in the present case, no
orders have been passed non-suiting the
26 INDIAN LAW REPORTS ALLAHABAD SERIES
petitioners on the ground their having
failed the Physical Examination Test, only
the petitioners were orally informed that
they were non-suited on account of their
height being less than the prescribed
minimum height even the objections filed
by the petitioners were not disposed off as
such the petitioners approached this Court
disputing and alleging that the height of the
petitioners was above the prescribed
minimum height and they based their claim
on the certificates as annexed in different
writ petitions and in one case a certificate
issued by the recruitment agency pertaining
to different recruitment. Non suited and
also claimed before this Court that their
height was above the prescribed minimum
height.

In view of there being no stand of
the State that the petitioners were nonsuited on account of their height being less
than the prescribed limit and the petitioners
alleging that without passing any orders,
the petitioners have been found

This Court directed the Physical
Examination Test to be carried out by the
Chief Medical Officer, Bulandshahar by
constituting a team of three Senior Doctors
in the presence of the representatives of the
Senior
Superintendent
of
Police,
Bulandshahar, the said order has not been
challenged.

Thus, the submission of the
Standing Counsel is based upon the
judgement in the case of State of U.P. and
others vs. Pankaj Kumar Vishnoi cannot be
accepted as in the present case no orders
have
been
passed
holding
that
the
petitioners were non-suited on account of
their height being less than the prescribed
minimum height. It is no doubt true that the
Physical Examination Test cannot be
ordered as a routine, however, in the
present case, no orders were passed
indicating as to what what the height
determined in respect of the petitioners in
the Physical Verification Test and further
no orders have been passed on the
representation/objections
filed
by
the
petitioners on the same very day as such
the petitioners exercised their rights of
approaching this Court and the Court thus
exercised its power in ordering a Physical
Verification
Test
by
three
Member
Committee.
Thus,
the
submission
of
Standing Counsel placing reliance on the
judgement of State of U.P. and others vs.
Pankaj Kumar Vishnoi (supra) cannot be
accepted in view of the facts of the present
case.

The next judgement cited by
Standing Counsel is by the Single Judge of
this Court in case of Om Pal Singh vs.
State of U.P. Thru Principal Secretary,
Home Lucknow & Others, passed in
Service Single No. 1773 of 2020, decided
on 31.1.2020 wherein the Court relied upon
the provisions of Rule 15(3)gha of Uttar
Pradesh Constable and Head Constable
Service Rules, 2017 (hereinafter referred to
as the 'Rules 2017') which provides for a
forum
for
raising
objection
by
the
candidate, if he is not satisfied with the
height of measurement, and in view of the
said Rule, the Court refused to entertain the
petitions for re-measurement of height.

I am of the view that that the said
judgement cannot be relied upon in the
facts of the present case, as admittedly, no
orders were passed holding that the
petitioner did not have the requisite height
and no orders were passed on the remedy
availed by the petitioner as provided under
Rule 15(3)(gha) of the Rules 2017, as such,
I am not impressed by the said arguments
also.

Thus, the only evidence available
on the records is the report submitted by
the Chief Medical Officer, Bulandshahar
which indicates that the height of the
8 All. Jitendra Kumar Singh & Ors. Vs. State of U.P. & Ors.
27
petitioner no. 3 is above the minimum
prescribed height of 168 cm and there is
nothing on record to disbelieve the same as the
same has been conducted by three Senior
members in the presence of representative of
the Senior Superintendent of Police and,
consequently, on the basis of the reports
submitted by the Chief Medical Officer,
Bulandshahar, directions are issued to the
Chairman/Secretary, U.P. Police Recruitment
and Promotion Board, Lucknow, (respondent
no. 2) to consider the case of the petitioner no.
3 i.e. Rupendra, son of Shri Nepal, for
appointment because his height is above 168
cm subject to the petitioner no. 3 fulfilling of
other criteria. The said exercise is to be
completed by the respondent no. 2, as
expeditiously as possible, preferably within a
period of four weeks from today.

Office is directed to supply a copy
of the report to the Standing Counsel
without payment of usual charges.

So far as petitioners no. 1, 2 and
4 are concerned, the writ petition is
dismissed and the petitioner no. 3 is
concerned, the writ petition is disposed off
in terms of the order passed above."

12. Learned Standing Counsel does
not dispute the judgment of this Court in
the case of Prateek Kumar(supra). It has
also not been disputed that the petitioners'
objections/representations
were
not
decided. It has also not been disputed that
the order dated 03.02.2020 passed in the
present
writ
petition
has
not
been
challenged. He has also not disputed the
report of CMO, Gorakhpur. The only
ground raised by him is on the strength of
the judgment in the case of Pankaj Kumar
Vishnoi (supra) of Supreme Court and Om
Pal Singh(supra) of this Court, but without
disputing the judgment of this Court in the
case of Prateek Kumar (supra) which has
considered the aforesaid judgments.

13. However, I also proceed to
consider the judgments cited by learned
Standing Counsel.

14. In the case of State of U.P. and
others
vs.
Pankaj
Kumar Vishnoi,
reported in (2013) 11 SCC 178, upon
which learned Standing Counsel has placed
reliance,
the
respondent
therein
was
granted compassionate appointment on the
post of Constable and he had joined the
same on 28.6.2003. Later on, physical test
was conducted in the year 2005 for the post
of Sub Inspector (Civil Police) in which the
said respondent had participated but was
unsuccessful, as a result of which, his
candidature for the post of Sub Inspector
(Civil Police) was rejected. The respondent
filed a writ petition for the grant of
compassionate appointment on the post of
Sub Inspector (Civil Police), without being
subjected to appear in physical test and
interview. The writ petition was dismissed
but special appeal filed against the order of
the learned Single Judge, was allowed,
directing
the
authorities
to
grant
compassionate appointment after subjecting
the respondent to physical test once again.
The matter reached to the Apex Court. The
Apex Court held that once compassionate
appointment was given on the post of
Constable, for the second time, no
compassionate appointment on the post of
Sub Inspector (Civil Police) could be given,
particularly, when respondent did not
succeed in physical test.

15. In the case of Pankaj Kumar
Vishnoi(supra)the
orders/letter-circular
issued by Inspector General in pursuance of
Rule 8(2) of the Rules 1974, as involved in
that case, provided that the candidate
selected to the post of Sub Inspector (Civil
Police) should carry physical competency
and fitness. A perusal of the circular, as
28 INDIAN LAW REPORTS ALLAHABAD SERIES
quoted in paragraph 17 of the judgment in
the case of Pankaj Kumar Vishnoi(supra),
does not show that there was any provision
for re-physical examination test, to extend
the benefit of compassionate appointment
for the second time. As such, the candidate
could not have claimed as a matter of right,
physical test after having been disqualified
in first physical test, in view of Rule 8(2) of
the Rules, 1974 read with the circular of
Inspector General, which circular, as held
by the Apex Court, did not travel beyond
the Rules but it was in furtherance of the
same.

16. So far as the present case is
concerned Rule 15(3)(D) of the Uttar
Pradesh
Police
Constable
and
Head
Constables Service Rules, 2017 is being
reproduced hereunder:-

"(D) If any candidate is not
satisfied with his Physical Standard Test,
he/she may file an objection on the same
day after the test. For clearing all such
objection; the Board shall nominate one
Additional Superintendent of Police at
every place and Physical Standard Test of
all such candidates will be conducted again
by the Committee in the presence of the
said nominated Additional Superintendent
of Police. All those candidates who are
again found unsuccessful in the Physical
Standard Test, will be declared unfit for
recruitment and no further appeal will be
entertained in this regard."

17. Thus as per Rule 15(3)(D) of the
Rules 2017, if any candidate is not satisfied
with his Physical Standard Test, he may file
an objection on the same day, after the test.
For clearing all such objections; the Board
shall
nominate
one
Additional
Superintendent of Police at every place and
Physical Standard Test of such candidates
will be conducted again, by the Committee,
in the presence of the said nominated
Additional Superintendent of Police. If the
candidate is again found unsuccessful, he
will be declared unfit for recruitment and
no further appeal will be entertained in this
regard. In the present case, the Rule itself
confers right on the candidates, who having
been found unfit in the first Physical
Standard Test, to file objection on the same
day, after the test, for conducting second
Physical Standard Test.

18. In the present case, the petitioners
being not satisfied with their Physical
Standard Test raised objection on the same
day, and requested the authorities that their
Physical Standard Test be held once again,
in terms of Rule 15(3)(D), but no attention
was paid to the objections of the
petitioners.

19. The judgment in case of Pankaj
Kumar Vishnoi(supra) of the Apex Court is,
thus, distinguishable, as in the present case,
the provision exists for conducting Physical
Standard Test, once again, for which the
petitioners
made
request
before
the
authorities. Besides, the present case is not
a case of appointment on compassionate
ground. In the case of Pankaj Kumar
Vishnoi (supra), the respondent therein had
been given benefit of appointment on
compassionate ground on the post of
Constable and as such the same benefit
could not be given to him for the second
time, for the post of Sub Inspector (Civil
Police).

20. The judgment in the case of Om
Pal Singh (supra ) relied by the learned
Standing Counsel is also distinguishable, as
in the said case, the petitioner therein had
written to the authorities in his own hand
writing that he was satisfied with the
8 All. Jitendra Kumar Singh & Ors. Vs. State of U.P. & Ors.
29
manner his height had been measured. In
the present case, the petitioners have
specifically stated in paragraph 11 of the
writ petition that none of the authorities
have paid any heed to their request of remeasurement/re-test for Physical Standard
in a fair and proper manner in presence of a
superior police authority. The case of Om
Pal Singh is, thus, not of any help to the
respondents.

21. Once Rule 15(3)(D) of the Rules
2017, provides for conducting Physical
Standard Test, in case the candidate who
has been unsuccessful for the first time,
raises objection and as the petitioners in the
present
case
raised
such
grievance/objection, they have right under
Rule 15(3)(D) of the Rules 2017 for their
Physical Standard Test being conducted,
once again. Since, the authorities did not
pay any attention to their objection,
although they ought to have done so, in
view of Rule 15(3)(D) of the Rules 2017,
the authorities have failed to discharge their
statutory duty infringing the petitioners'
legal right to re-measurement of their
chest/Physical Standard Test.

22. The submission of the learned
Standing Counsel that this Court could not
direct holding of Physical Standard Test for
the petitioners for the second time, and the
report of the Board submitted through the
Chief Medical Officer, Gorakhpur, for that
reason, cannot be considered for issue of
direction in favour of the petitioners,
deserves to be rejected as misconceived.
The order passed by this Court dated
03.02.2020 by which the directions were
issued to the Chief Medical Officer,
Gorakhpur to constitute a Medical Board,
consisting of three Doctors of the level of
Professor and Associate Professor available
at the District Hospital, for medical
examination
of
the
petitioners,
and
submission of the report signed by the
Chairman of the Board, through the Chief
Medical Officer, Gorakhpur, has not been
challenged before the appropriate forum.

23. Besides, Rule 15(3)(D) of the
Rules 2017 provides for holding of Physical
Standard Test for the second time, by the
committee, in the presence of the nominated
Additional Superintendent of Police, as
nominated by the Board. If the Board failed
to nominate one Additional Superintendent
of Police and Committee failed to conduct
Physical Standard Test again, in the presence
of
such
nominated
Additional
Superintendent of Police, in spite of the
petitioners' objection with respect to their
first Physical Standard Test, this Court has
ample power and jurisdiction under article
226 of Constitution of India to direct the
petitioners' re-examination by the Medical
Board consisting of three Doctors of the
level of Professor and Associate Professors
to enforce the petitioners' statutory right,
violated
by
the
respondents,
for
advancement of justice. The direction given
by this Court by order dated 03.02.2020,
took care of Rule 15(3)(D) inasmuch as the
re-examination was directed to be conducted
in the presence of an officer of the rank of
Additional Superintendent of Police to be
deputed by the Senior Superintendent of
Police of the district, which is also the
requirement of the said Rule.

24. Hon'ble Supreme Court of India,
in the case of Dwarka Nath vs. Income
Tax Officer AIR 1966 Supreme Court 81,
has held that Article 226 is couched in a
comprehensive phraseology and ex-facie
confers a wide power on the High Court to
reach injustice wherever it is found. The
paragraph-4 of Dwarka Nath's case (supra)
is being reproduced as under:
30 INDIAN LAW REPORTS ALLAHABAD SERIES

"4. We shall first take the
preliminary objection, for if we maintain it,
no
other
question
will
arise
for
consideration.
Article
226
of
the
Constitution reads :

"... every High Court shall have
power, throughout the territories in relation
to which it exercise jurisdiction, to issue to
any person or authority, including in
appropriate cases any Government, within
those territories directions, orders, or writs,
including writs in the nature of habeas
corpus,
mandamus,
prohibition,
quo
warranto and certiorari, or any of them, for
the enforcement of any of the rights
conferred by Part III and for any other
purpose."

This
article
is
couched
in
comprehensive phraseology and it ex facie
confers a wide power on the high court to
reach injustice wherever it is found. The
constitution
designedly
used
a
wide
language in describing the nature of the
power, the purposes for which and the
person or authority against whom it can be
exercised. It can issue writs in the nature of
prerogative writs as understood in England;
but the scope of those writs also is widened
by the use of the expression "nature", for
the said expression does not equate the
writs that can be issued in India with the
those in England, but only draws in
analogy from them. That apart, High Courts
can also issue directions, orders or writs
other than the prerogative writs. It enables
the High Courts to mould the reliefs to
meet
the
peculiar
and
complicated
requirements of this country. Any attempt
to equate the scope of the power of the
High Court under article 226 of the
Constitution with that of the English courts
to issue prerogative writs is to introduce the
unnecessary procedural restrictions grown
over the years in a comparatively small
country like England with a unitary from of
Government to a vast country like India
functioning under a federal structure. Such
a construction defeats the purpose of the
article itself. To say this is not to say that
the High Courts can function arbitrarily
under this Article. Some limitations are
implicit in the article and others may be
evolved to direct the article through defined
channels. This interpretation has been
accepted by this Court in T.C. Basappa v.
Nagappa, 1955-1 SCR 250":(AIR 1951 SC
440) and Irani v. Stae of Madras, 1962-(2)
SCR 169:(AIR 1961 SC 1731).'

25. In the case of Prateek Kumar
(supra),
this
Court
directed
for
consideration of the case of the petitioner
no.3 therein, for appointment as his height
was found above 168 cm on the basis of the
report submitted by the Board through the
Chief Medical Officer, under the orders of
this Court passed in that writ petition.

26. In view of the above, I find that
the benefit as extended to the petitioners of
Writ A No.1364 of 2020 (Prateek Kumar
and 3 others vs. State of U.P. and 3 others),
decided on 25.2.2020 by this Court,
deserves to be given to the petitioner nos.
1, 2, 3, 4, 5, 7 and 8 of this writ petition in
the following terms.

27. The writ petition is, therefore,
allowed with the following directions, with
respect to petitioner nos.1, 2 3, 4, 5, 7, and
8.

1. The petitioner nos. 1,2,3,4,5,7
and 8 shall be permitted to appear for next
stage of recruitment i.e. Physical Efficiency
Test, as provided by Rule 15(4) of the
Rules 2017, and thereafter, if found
successful in Physical Efficiency Test, they
shall be considered for selection and final
merit
list.
The
petitioners
shall
be
8 All. Ruksar Khan Vs. State of U.P. & Ors.
31
considered in next stages, in accordance
with Rule 15(4) of the Recruitment
Rules, considering that the petitioners
have been found successful in the
Physical Standard Test, conducted by the
Board constituted in terms of the order
dated 03.02.2020 passed by this Court.
This
exercise
shall
be
done
as
expeditiously as possible and preferably
within a period of six weeks from the
date a certified copy of this order is
produced
before
the
Chairman/`Secretary, the Uttar Pradesh
Police
Recruitment
and
Promotion
Board, 19C, Tulsiganga Complex Vidhan
Sabha Marg, Lucknow, respondent-4

2. Office is directed to supply a
certified copy of the report to the learned
Standing Counsel free of cost who shall
transmit
it
to
respondent-4/
Chairman/`Secretary, the Uttar Pradesh
Police
Recruitment
and
Promotion
Board, 19C, Tulsiganga Complex Vidhan
Sabha Marg, Lucknow.

3. The said report shall form
part of the record of the present writ
petition as well.

28. The writ petition is dismissed
with respect to petitioner-6.
----------
(2020)08ILR A31
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.07.2020

BEFORE

THE HON'BLE J.J. MUNIR, J.

Wrti A No. 4677 of 2020
connected with other cases

Ruksar Khan ...Petitioner
Versus
State of U.P. & Ors. ...Respondents
Counsel for the Petitioner:
Sri Shailendra Kumar Tripathi, Sri Anurag
Dubey, Sri Shashi Kumar Mishra

Counsel for the Respondents:
C.S.C., Sri Vikram Bahadur Singh

A. Service Law - Selection/Recruitment
- Appendix-I to the U.P. Basic Education
(Teachers)
Service
Rules
1981
(as
amended vide (Twentieth Amendment)
Rules, 2017 w.e.f. 09.11.2017; GO dated
01.12.2018: Schedule II; Advertisement
issued by the Examination Regulatory
Authority,
U.P.,
Prayagraj,
dated
05.12.2018.

The
petitioners
qualified
the
written
examination. They committed mistakes while
filling
up
various
particulars,
personal,
educational and others, in their online
registration form. Respondents refused to
allow the correction and rectification of those
mistakes. Hence, this writ is before the Court
to command the respondents to permit the
petitioners to rectify their mistakes. According
to petitioners, mistakes have occurred on
account of a 'human error' and therefore, it is
arbitrary not to permit them to reform those
errors. (Para 7)

Court held that each candidate necessarily
must bear the consequences of his
failure to fill up the application form
correctly. In matters of public affairs, like
the process of recruitment to posts under the
State, there has to be an element of
certainty. The process of recruitment must
proceed on the foundation of firm and reliable
data.
A
public
recruitment
cannot
be
permitted to be a shaky affair with shifting
positions of aspirants about their candidature.
If this were to be permitted, it would
introduce uncertainties in the recruitment
process leading to its embarrassment. (Para
56, 57, 58, 62)

B. Principle of sub-silentio - Precedents,
sub-silentio and without argument, are
of no merit - The decision has a value of
precedent, where it lays down a principle
governing a point that arises for consideration