Judgment:
1. In this OA, the applicant has prayed for a direction to the respondent No. 3 to give him employment to any one of the categories and/or posts for which combined examination and interview were held by the Staff Selection Commission in respect of advertisement dated 18.3.88 for appointment to the posts of Inspector of Central Excise, Income-tax etc.
2. The case of the applicant is that pursuant to the advertisement dated 18.3.88 published by the Staff Selection Commission (SSC for short) for holding a combined examination for appointment to the posts of Inspector of Central Excise, Examiner & Preventive Officers in various Customs Houses, Inspector of Income-tax and Asst. Enforcement Officer in the Directorate of Enforcement, he made an application in prescribed proforma. A copy of the advertisement is at Annexure-F. The applicant gave his first preference for the post of Inspector of Income-Tax. By a letter dated 4.8.89 (Annexure-A), the Asst. Collector (Admn.), Central Excise, Calculta-II intimated the applicant that his name was recommended by the SSC for the post of Inspector of Central Excise and accordingly he was directed to appear at the physical standard test to be held on 22.8.89, provided he was willing to accept the offer. The applicant appeared at the said selection test on the scheduled date. However, the applicant could not be selected for the post as he was found to be shorter in height by 2.5 cm as against the stipulated height of 157.2 cm as per the recruitment rules for the post of Inspector of Central Excise.
3. Being aggrieved the applicant made several representations forgiving him appointment either in other category or in the post of Inspector of Central Excise by relaxation of rules in respect of height. He even made representation to the then Minister for Youth Affairs and the matter was also examined by the M/O Personnel and a reply was also given to the applicant vide Annexure-C dt. 11.6.92 wherein it was intimated that since the applicant qualified only for the post of Inspector of Central Excise on merit, his case could not be considered for any other posts, 4. Thereafter, the applicant filed a writ petition before the Hon'ble Calcutta High Court being WP 3716 of 1992 which was dismissed by order dt. 29/1/98 on merit. Being dissatisfied with this order, the applicant preferred an appeal being APOT No. 691 of 98 which was decided on 21,4.99 wherein it was held that in view of L. Chandra Kumar's judgment, the matter ought to have been adjudicated by the Tribunal and accordingly, liberty was given to the appellant to file appropriate application before the Tribunal and if such application was filed, the matter may be decided by the Tribunal on merit ignoring the findings of theHon'ble High Court. Thereafter, the applicant has filed the instant OA for the aforesaid relief.
5. The application has been contested by the respondent Nos. 3 and 4 by filing separate replies. Respondent No. 4 i.e. Central Excise authorities stated in their reply that since the applicant was found unfit for the post of Inspector of Central Excise for which his name was recommended by the SSC on the basis of 1988 Examination, as his height was 2.5 cms. less than the stipulated height of 157.5 cms. he could not be given appointment and his dossier was returned to the SSC.A copy of the statutory recruitment rules dated 7.5.84 has been produced wherein it is clearly stipulated that candidates shall be required to possess the physical standards and pass physical test as specified therein. There the height was stipulated as 157.5 cms. both for direct recruitment and promotees. Only in respect of female candidates, the height is prescribed as 152 cms and in respect of candidates of certain North Eastern region some relaxation in height crieterian was provided. Thus, according to respondent No. 4 although the applicant qualified in the written lest, he could not be considered for appointment because of his ineligibility in respect of physical standard as stated above.
6. The respondent No.3 i.e. Staff Selection Commission in their reply has stated that on the basis of merit position secured by the applicant, he was selected for the post of Inspector of Central Excise only. It is stated that the applicant secured 342 marks as a general category candidate and hence he could only be recommended for the post of Inspector of Central Excise and not for any other posts inasmuch in other categories of posts, the last persons recommended secured higher marks than the applicant. Therefore, there was no illegality or irregularity committed by them.
7. We have heard the learned Counsel for the parties and have gone through documents produced.
8. The only question for decision in this case is whether the applicant can get any appointment on the basis of his success in the 1988 examination for which he was recommended only for the post of Inspector of Central Excise as per his merit position.
9. Although in the appellate order dt. 9.2.99 (Annexure-E), the Hon'ble CalcuttaHigh Court observed while disposing the appeal that the Tribunal may adjudicate the matter on merit if any application was filed by the applicant ignoring the findings made by the learned Single Judge, we cannot totally ignore the said decision dt. 29.1.98 of the learned Single Judge (vide page 28 of the OA) inasmuch as most of the points urged before us were also taken before the High Court and particularly, because the applicant has challenged certain averments made by the respondents in their reply affidavit filed before the High Court in the writ petition relating to vacancy position. We, therefore, think it fit and proper not to repeal the arguments of the applicant which were already decided by the Hon'blc High Court in the writ petition.
10. In this context, we observe that the Hon'ble High Court before rendering its decision dt. 29.1.98 on merit, made efforts by passing some interlocutory orders to the respondents to consider whether the applicant could be accommodated in any other post including the post of Income-tax Inspector where there is no height bar. The reply of the respondents in this regard was found to be satisfactory to the Hon'ble High Court. It is consistently urged by the respondents, particularly the SSC (respondent No. 3) that as per merit position, the applicant could not be considered for other posts excepting the post of Inspector of Central Excise, but even for that post he was found ineligible due to height bar. It is contended that if the applicant's case is considered inspite of his lower merit position vis-a-vis other candidates, it will cause prejudice to them which will not be in the interest of justice and fairness. There is much force in this contention of the respondent No. 3.
11. The learned Counsel for the applicant has contended that the applicant initially gave his first preference for the post of Inspector of Income-lax. But he was asked to exercise further option at the time of interview wherein also he gave first preference for the post of Income-tax Inspector and for the said post there is no height bar.
According to him, there is no scope for such second option. In any event, we find that for such second option, the applicant has not been prejudiced in any manner because in both cases, his first preference was for the post of Inspector of Income-tax.
12. The learned Counsel further contended that in total 49 candidates were recommended for the post of Income-tax Inspector including 32 general category candidates. But in the affidavit filed by the respondents before the High Court in the writ petition filed by the applicant, it was disclosed that 58 persons were recommended for the said post. Thus there were 9 additional candidates recommended for the post of Income-tax Inspector. It is also stated that out of total 61 candidates successful for the West Bengal and Sikkim zone, 45 candidates preceded the applicant and 4 of them had been selected for All India posts. 32 candidates have been recommended for the post of Income-tax Inspector and therefore there are 9 persons ahead of the applicant on the basis of merit. The applicant contends that all the 36 persons i.e. 32+4=36 may not have opted for the post of Income-tax Inspector and therefore, the applicant could have been appointed to the said post when 9 additional candidates were recommended for the post as per the respondents' own affidavit before the High Court.
13. He has also contended that so far as the post of Inspector of Central Excise is concerned, the position of the applicant as per merit list was at Sl. No. 10 and there were at least 26 general category candidates recommended for the said post. Therefore, the applicant ought to have been given appointment, if necessary, by relaxation of the height criteria since there is a provision for such relaxation as will be evident from clause 18 of the recruitment notice. According to him, the height of 157.5 prescribed for the post of Inspector of Central Excise is wholly arbitrary and irrational.
14. From Annexure-G, which is the affidavit-in-opposition filed by the respondents before the High Court in the writ petition filed by the applicant, it was mentioned that 58 candidates were selected for the post of Income-tax Inspector out of which 32 candidates were of general category candidates whereas in the result sheet, the number of candidates, who were successful in that group, was mentioned as 49 including 17 reserved category candidates. There is, therefore, an anomaly. However, the respondent No. 3 (i.e. SSC) in their reply have stated that 9 more reserved category candidates were recommended for the post of Income-tax Inspector and that no general category candidate below the last persons i.e. Roll No. 3181702 was recommended. It is mentioned that the last person i.e. one Shri Sridhar Bhattacharya was at Sl. No. 00423 as per merit list whereas the position of the applicant was at Sl. No. 00438. Thus, there were at least 14 candidates ahead of the applicant for the post of Income-tax Inspector in general category as per merit list. Therefore, the applicant's name could not be recommended. We find force in this contention of the respondents. In our view, the decision of the respondents in this regard cannot be faulted. As regards the other contention of the Counsel for the applicant that all the successful candidates as per merit list should not have been recommended for the post of Income-tax Inspector as all of them may not have opted for the said post. This is. a hypothetical question and we cannot make any roving enquiry by scrutinising the records and option forms of each and every successful candidates merely on the basis of surmise and conjecture of the applicant.
15. Learned Counsel for the applicant has argued that even for the post of Inspector of Central Excise, the applicant cannot be denied appointment, as he was selected for that post on merit. His contention is that the height bar is arbitrary and irrational, He has referred to a decision of the Allahabad High Court reported in 1997 AWC (Supp.) 195 (Krishna Kumar Sharma v. State of UP and Ors.) wherein it has been held that requirement of minimum height of 162 cms for the post of Excise Inspector is wholly arbitrary and violative of Article 14 of the Constitution. We have gone through this judgment. It is in relation to U.P. Subordinate Excise Service Rules, 1992. In the instant case, the post in question is Inspector of Central Excise. The Id. Counsel, however, contended that ratio should apply in this case also. A copy of the Presidential notification dated 7.5.84 issued under Article 309 of the Constitution amending the Central Excise and Land Customs Department Group C Posts Recruitment Rules has been placed on record.
In this statutory rules, the physical standard for male candidates for the post of Inspector of Central Excise has been prescribed as 157.5 cms. This rule was not challenged before any Court of Law, In our opinion, until this statutory rule is amended by the competent authority relaxing the standard, the applicant cannot avail of the aforesaid decision of the Allahabad High Court.
16. Ld. Counsel for the applicant contended that there is provision for relaxation of height criteria. But we find that relaxation to the extent of 5 cms is in respect of Garwalies, Assamese Gorkhas and members of ST for obvious reason. He has cited the decision of R.R.Verma and Ors. v. UOI and Ors., (1980) 3 SCC 402. However, it is now settled law that relaxation should be made in respect of a group or category of persons and not in respect of a particular person alone. In our view, no relaxation of standard is admissible only to accommodate the applicant. There may be other persons who may have got appointment if relaxed physical standard is prescribed. This contention of the application cannot, therefore, be accepted. Moreover, the examination was notified in 1988 and the result was published in 1989. The selected candidates have already got appointment on its basis. Subsequent examinations have also been held in the meanwhile. Therefore, at this late slage, it is not justified to grant relaxation in favour of the applicant only.
17. Ld. Counsel has also relied on the case of Prasadini Guru v. State of Orissa, AIR 2001 Orissa 63. It was a case where a candidate for the post of doctor was disqualified as she was found short in chest measurement. Obviously, this is a case relating to a female candidate.
We find in the Central Excise Rules referred to above, for female candidates separate lower physical standard has been prescribed. The applicant cannot, therefore, claim the benefit of this decision as well. Furthermore, the job contents of a doctor and the Inspector of Central Excise are totally different and are not comparable.
18. Lastly, the Id. Counsel has also referred to the decision of Air India v. Nargesh Meerza and Ors., AIR 1981 SC 1829=1981(2) SLJ 349 (SC). That was the case of air hostesses of Air India. In that case, the appellants' services were terminated on becoming pregnant and the Hon'ble Supreme Court held that the rule in this regard was discriminatory and unconstitutional. Here the question is totally different.
19. Ld. Counsel for the respondents, on the other hand, has referred to a decision of Madras Bench of the Tribunal dated 22.2.2001 in the case of Rishi Raj Saxena v. UOI and Ors (OA 23 of 1996J. In that case also the applicant failed in the physical standard examination for the post of Inspector of Central Excise. The Tribunal following an earlier decision on the subject Mrs. K, Sudha v. Collector of Central Excise, Madras in OA. No. 1021 of 91 decided on 22.6.95, held that once the applicant had appeared in the test knowing fully well about the requirement of physical standard, he cannot challenge the examination after his failure to qualify 20. We have gone through the employment notice at Annexure/F. In Clause 18 it is clearly mentioned that for the posts of Inspector of Central Excise and Preventive Officer, candidates will have to satisfy the specified minimum physical standard failing which they will not be eligible for appointment. The minimum physical standard has also been indicated therein. Thus, when the applicant was first intimated that he was selected for the post of Inspector of Central Excise and was asked to appear at the physical standard test, he knew well about the rule position. After having participated in the test and after having been disqualified in respect of height, he cannot now challenge his non-selection.
21. The learned Counsel for the applicant has produced before us a copy showing details of the marks obtained by the applicant and last persons recommended for various posts. It appears that the applicant, whose Roll. No. was 3016505 was a general category candidate and secured 342 marks in order of merit. He gave preference for various posts in the order-D (Inspector of Income-tax), C (Preventive Officer), B (Examiner), A (Inspector of Central Excise), E (Asst. Enforcement Officer) & F (Grade II of Delhi Admn. Subordinate Service). The last persons recommended in respect of the aforesaid categories of post secured marks as below : 22. Thus, it is quite clear that the applicant could only be recommended for the post of Inspector of Central Excise as the last person recommended in that category secured 334 marks which is less than that of the applicant. In all other categories, the last person recommended obtained higher marks than the applicant.
23. So far as other contentions raised by the applicant arc concerned, we need not discuss them as the same had already been decided by the Hon'ble High Court in details and the same has rejected those contention's. It is not considered necessary to repeat the same once again by us this judgment.
24. For the reasons stated above, we find no merit in this OA and it is accordingly dismissed. There will be no order as to costs.