IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 26.09.2008 CORAM THE HONOURABLE MR. JUSTICE P. JYOTHIMANI W.P. No. 5844 of 2005 & W.P.M.P. Nos. 6402 of 2005 V. Sankar ..Petitioner Vs. Director General of Police and Chairman, Tamilnadu Uniformed Services Recruitment Board, Chennai 2. ..Respondent Prayer: Petition under Article 226 of the Constitution of India praying for a Writ of Certiorarified Mandamus to call for the records in C.No. D1/4053/2004 dated 30.11.2004 on the file of the respondent, quash the same and consequently to direct the respondent to appoint the petitioner as fireman for the year 1999-2000 in Tamilnadu Fire Service Department . For Petitioner :: Mr.A. Immanuel For Respondent :: Mr.P. Muthukumar, GA O R D E R
This writ petition is directed against the order of the respondent dated 30.11.2004 by which the respondent has informed the petitioner that his appointment as Fireman for the year 1999-2000 cannot be considered on the ground that he was found disqualified in Physical Measurement Test/Physical Efficiency test on 17.4.2000 and subsequently, he was marked absent on 17.4.2000 and again, he was allowed to attend the recruitment process on final day i.e, 24.4.2000 and got selection provisionally by back door entry for Medical Examination and Police Verification. Therefore, as per the impugned order, it is the case of the respondent that a discrepancy has been found in the selection process relating to the petitioner, that is branded as back-door entry and in view of the same, selection of the petitioner has not been given effect to under the impugned order.
2. The facts leading to passing the impugned order and the consequent filing of the writ petition are as follows:
The petitioner had applied for appointment to the post of Fireman for the year 1999-2000. It is seen that by communication dated 25.3.2000 sent by the Tamil Nadu Uniformed Services Recruitment Board, the petitioner was directed to appear on 18.4.2000 for the Physical Measurement Test/Physical Efficiency Test . It is the case of the petitioner that he got selected in the Physical Measurement Test/ Physical Efficiency test on the said date, and thereafter, he was called for a written examination on 5.6.2000 in which also he had passed. That was followed by an oral interview on 29.8.2000 in which also he was declared to have passed. Subsequently, the petitioner was called for a medical test on 16.10.2000 and in that also, he was found fit. On 19.10.2000, there was a police verification in which also there was no difficulty for him. However, the petitioner was not selected in spite of his having undergone all the above said tests. He made a representation on 12.11.2001 by registered post, but there was no reply. He approached this Court by filing W.P. No. 25946/2004 in which this Court, by order dated 13.9.2004, directed the respondent to consider the representation of the petitioner dated 12.11.2001. Pursuant to the said direction, the respondent has passed the present impugned order.
3. On 28.3.2008, when the interim application in W.P.M.P. No. 6402 of 2005 was taken up, learned counsel for the respondent, on instructions, submitted that when the petitioner was called for Physical Measurement Test/Physical Efficiency Test on 24.4.2000, his height was found to be 171 cms and his chest measurement was 79 cms in normal and 85 cms in extension, which is the normal requirement for selection in the said test. However, on the basis of the request made by the learned counsel for the respondent, that the chest measurement of the petitioner should be taken once again, by a consent order, the petitioner was directed to appear before the Committee at the Tamil Nadu Uniformed Services Recruitment Board on 2.4.2008 at 10.30a.m. At the Tamil Nadu Uniformed Services Recruitment Board, on the said date, namely, 2.4.2008, when the measurement was taken as per the directions of this Court, the original measurement taken on 24.4.2000 did not tally with the measurement which was taken on 2.4.2008. Having found that there was some discrepancy, this Court, by order dated 11.4.2008 directed the petitioner to appear before the Medical Officer attached to the High Court dispensary, Chennai at 3.p.m. on 11.4.2008 for taking his height and chest measurement.
4. It is seen that the petitioner has filed an affidavit before this Court on 15.6.2008 stating that when he went to the High Court Dispensary on 11.4.2008 at 2.30p.m., for taking measurement as per the directions of this Court, two officers of the respondent office entered the Dispensary and informed the Lab Technician of the Dispensary that the Superintendent of Police had come to meet the doctor in respect of height and chest measurement of a candidate. Thereafter, the Superintendent of Police, Ms. Hema entered the Dispensary and tried to meet the Doctor and on seeing the same, the petitioner came out of the Dispensary and he did not subject himself to physical measurement since he felt that due to interference by the said Superintendent of Police, justice would not be done to him. This was reported to this Court on 25.4.2008 and on hearing both sides, by order dated 25.4.2008, this Court directed the petitioner to appear before the Dean, Government Medical College Hospital, Tirunelveli for the purpose of taking measurement. It is seen that the said order dated 25.4.2008 was not communicated by this Court to the Dean, Government Medical College Hospital, Tirunelveli, with the result, the Dean, Tiruneveli Medical College Hospital was unable to take measurement as per the order dated 25.4.2008. Thereafter, by a fresh order dated 18.7.2008, this Court directed the petitioner to appear before the Dean, Kilpauk Medical College and Hospital, Chennai with a direction to the Dean to constitute a committee to note down the physical measurement of the petitioner with regard to height and chest (normal and on expansion) and send a report. Pursuant to the said direction of this Court on 18.7.2008, the Dean, Kilpauk Medical College and Hospital has sent a report dated 13.8.2008 pursuant to the measurement taken by the Regional Medical Board. The Board consisted of three members namely, Dr.M.D. Selvam, M.D. (Professor of Medicine), Dr.T. Bavani Sankar, M.S. (Professor of Surgery) and Dr.M. Muthulakshmi, M.D., D.G.O. (Professor of Obstetrics and Gynaecology). The report of the Medical Board dated 13.8.2008 submitted by the Dean, Kilpauk Medical College and Hospital reads as follows:
“Thiru V. Sankar, appeared before this Board on 12.8.2008. Physical measurements taken before the board members reveals as per direction of measurement height 172 cms chest normal 81 cm. Expansion 86 cms.
The above measurement, as per the report of the Regional Medical Board, admittedly, is in conformity with the requirement for appointment to the post of Fireman.
5. In the counter affidavit filed by the respondent, it is stated that in Tirunelveli Centre, four candidates were initially disqualified in Physical Measurement Test/Physical Efficiency Test and subsequently shown as absentee on 17.4.2000, which included the petitioner also, were again allowed to attend the Physical Measurement Test/Physical Efficiency Test on the final day, i.e., 24.4.2000 and they got provisionally selected through backdoor entry for Medical Examination and Police Verification in collusion with some of the officers. The averments found in Paragraph 4 of the counter affidavit are not only contradictory, but also cannot be believed by any normal person and it is extracted hereunder:
With regard to averments made in para 3, it is submitted that the respondent Board had notified for the recruitment of Firemen for the year 1999-2000. The recruitment process consists of Physical Measurement Test, Physical Efficiency Test, Written Test, Viva-voce, Medical Examination and Police Verification. Each test is a qualifying stage of the test to move to the next stage of test. In Tirunelveli Center four candidates who were initially disqualified in Physical Measurement Test/Physical Efficiency Test and subsequently shown as absentee on 17.4.2000 were again allowed to attend the Physical Measurement Test/Physical Efficiency Test on the final day, i.e, 24.4.2000 and got provisionally selected through backdoor entry for Medical Examination and Police Verification. On receiving reports of malpractices by the erring officers in allowing the four candidates to appear for the second time for PMT/PET, an enquiry was ordered. On receipt of the enquiry report the Board has taken a decision to disqualify them besides to take disciplinary action against the erring officers who were responsible for the above malpractices vide the Boards Proceedings C.No. A1/1100/99 dated 29.05.2001, the four candidates were disqualified. The petitioner Tr.V. Sankar is one among the disqualified candidates.”
6. As elicited above, the call letter was given to the petitioner to appear for Physical Efficiency Test on 18.4.2000 at Tirunelveli along with certain certificates. While so, the case of the petitioner is that he appeared for the test on 18.4.2000 and ultimately, the test was taken on 24.4.2000 since during the said period, Physical Measurement Test/Physical Efficiency Test was taken on all these days, in respect of the candidates who appeared for the post of Fireman for the year 1999-2000 and on the test taken on 24.4.2000, he was found eligible for the post. However, strangely, the respondent has chosen to state that the petitioner was an absentee on 17.4.2000, the date on which the petitioner was not at all called upon to appear. Moreover, the counter affidavit states that even before 17.4.2000, the petitioner and others were found to be disqualified in the Physical Measurement Test/Physical Efficiency Test. Such a stand taken by the respondent is quite unsustainable in the absence of any record to show that either on 17.4.2000, the petitioner did not appear or to show that before 17.4.2000, the petitioner was found to be disqualified on the basis of the Physical Measurement Test/Physical Efficiency Test. Further, the averment in the affidavit that on 24.4.2000, the petitioner got himself selected in the Physical Efficiency Test cannot be treated as abnormal when admittedly the officers of the respondent were carrying on the said test between 18.4.2000 and 24.4.2000 and the petitioner, who was asked to appear on 18.4.2000, would have been examined on 24.4.2000. Unless the respondent shows any record that the petitioner who was directed to appear on 18.4.2000, appeared on the said date and was disqualified in the Physical Measurement Test/Physical Efficiency Test and subsequently, by dubious means, attended the Physical Measurement Test/Physical Efficiency Test on 24.4.2000 and got qualified, it is not possible for this Court to accept the stand taken by the respondent in the counter especially, in paragraph 4.
7. It is to be noted that the respondent, who is a responsible officer of the Government, has chosen to make a statement, which on the face of it, is not acceptable and it can be safely presumed that the same has been made without reference to any record. Therefore, there is no difficulty to come to the conclusion that the impugned order, which has been passed by the respondent on the basis that the petitioner got selection by dubious method cannot be sustained. If there are any bona fides in the contention of the respondent that the petitioner got selected through back door entry, the respondent should have taken steps to produce necessary records to establish the same. As already stated, on 17.4.2000. there was no possibility at all for the petitioner to have appeared for the Physical Measurement Test/Physical Efficiency Test since, admittedly, the test was conducted by the respondent from 18.4.2000 and the petitioner was asked to appear only on 18.4.2000 and therefore, the petitioner could not have appeared either on 17.4.2000 or at an early date for the Physical Measurement Test/Physical Efficiency Test. As per the directions of this Court, the Dean of Kilpauk Medical College and Hospital, has taken measurement which has been reported to this Court. As per the said report, as on date, the petitioner is eligible for appointment to the post of Fireman. The lethargic attitude on the part of the respondent cannot be a ground for refusing appointment to the petitioner, who is otherwise found to be qualified in all the tests, about which there is no dispute at all.
8. In view of the same, the writ petition is allowed and the impugned order of the respondent dated 30.11.2004 is set aside with a direction to the respondent to consider the appointment of the petitioner as Fireman in the Tamil Nadu Uniformed Services Recruitment Board and the orders shall be passed expeditiously, in any event, within a period of 8 weeks from the date of receipt of a copy of this order. It is submitted by the learned counsel for the petitioner that at the time when the petitioner submitted the application for appointment to the post of Fireman for the year 1999-2000, he had the required age qualification. The petitioner, being an MBC candidate, the relaxation of age limit was upto 30 years then. However, as per the recruitment rules prevailing as on date, the maximum age limit for an MBC candidate has been revised as 26 years and the petitioner has already crossed 30 years. In the light of the subsequent change in the recruitment rules, the respondent shall consider the case of the petitioner by granting relaxation as far as age requirement is concerned. No costs. Connected W.P.M.P. is closed.
nv
To
Director General of Police and Chairman,
Tamilnadu Uniformed Services Recruitment
Board,
Chennai 2
[ PRV / 15897 ]