,,,,
Dr. S. Muralidhar, CJ.",,,,
1. The State of Odisha through the Home Department, the General Administration Department (GAD), the Director General-cum-I.G. of Police as",,,,
well as the Additional Director General (P) Training-cum-Director, Biju Patnaik State Police Academy (BPSP Academy) have in this petition",,,,
challenged an order dated 10th May, 2018 passed by the Odisha Administrative Tribunal (OAT), Principal Bench, Bhubaneswar in O.A. No.1653 of",,,,
2017, by which the OAT directed that although the Opposite Party No.1, who had applied for a post of Odisha Police Service (OPS) Group-A (Junior",,,,
Branch), had a height of 164.5 Centimetres (cm), with the minimum eligibility requirement being 165 cm, he should be allowed to continue in service",,,,
with all consequential service benefits.,,,,
2. On 18th April, 2019, this Court stayed the operation of the impugned order of the OAT. On 25th July, 2019, while admitting the petition, the interim",,,,
order was directed to continue.,,,,
3. This Court has heard the submissions of Mr. P. K. Muduli, learned Additional Government Advocate for the Petitioners-State and Mr. Sidheswar",,,,
Mallick, learned counsel appearing for Opposite Party No.1. Their respective written submissions have also been considered.",,,,
Background facts,,,,
4. The background facts are that the Odisha Public Service Commission (OPSC) had issued an advertisement on 2nd July, 2015 for the Odisha Civil",,,,
Services (OCS) Examination. Pursuant to the selection as per the list published by the OPSC on 1t6h February, 2017, Opposite Party No.1 was",,,,
appointed as OPS Group-A (Junior Branch) on 16th June, 2017. Prior thereto, Opposite Party No.1 appeared before the Medical Board on 11th April,",,,,
2017. Thereafter, he was directed to report at the BPSP Academy on 10th July, 2017. He joined the Academy and underwent training for about three",,,,
months i.e. from 10th July to 3rd October, 2017.",,,,
5. During this period, the Home Department, Government of Odisha, issued a Notification dated 26th September, 2017 cancelling the appointment on",,,,
the ground that Opposite Party No.1 did not fulfill the physical standard i.e. his height was found to be 159cm whereas the minimum prescribed height,,,,
was 165cm. A reference was made to the regulation laid down by the Home Department by a Notification dated 4th July, 2011.",,,,
6. On 4th October, 2017, Opposite Party No.1 made a representation asking that his case may be reconsidered stating that in the medical examination",,,,
his height was found to be 164cm and this was also found mention in the medical report by the CDMO, Cuttack. He pleaded that in all other physical",,,,
parameters he had succeeded “and there has been the difference of opinion regarding my height only.†Meanwhile, an enquiry was conducted by",,,,
the Director of Health Services, Odisha regarding the defective medical report furnished by the Medical Board.",,,,
7. Aggrieved by the cancellation of the appointment, Opposite Party No.1 filed O.A. No.1653 of 2017 before the OAT. By an order dated 10th May,",,,,
2018, the OAT quashed the cancellation on the following reasoning:",,,,
“Considering the submission and material, it appears that the applicant’s appointment was cancelled only because he did not conform to the physical standard",,,,
i.e. 165 Cm height. A joint enquiry was conducted by the DMET and DHS when the measurement of the height of the applicant was taken which is found to be 164.5,,,,
Cm. So the measurement taken during the training as 159 Cm is not correct. The applicant was appointed on the basis of the measurement of his height as 164.5 Cm.,,,,
As during enquiry the height of the applicant is found to be the same i.e. 164.5 Cm, there is no reason to cancel his appointment. Accordingly, the order of",,,,
cancellation is not maintainable and is quashed. Consequently, the applicant be allowed to continue in service (now under training) with all consequential benefits.",,,,
The order be complied with, within two weeks from the date of receipt of a copy of this order.â€",,,,
Submissions on behalf of the Petitioner,,,,
8. It was submitted on behalf of the Petitioners as under:,,,,
(i) The advertisement No.8 of 2015-16 issued on 2nd July, 2015 required all candidates opting for the OPS to undergo physical standard tests in terms",,,,
of the Home Department Notification dated 4th July, 2011. That Notification prescribed a minimum standard of height and chest girth. The required",,,,
height for men whether unreserved, belonging to the SEBC or SC categories was 165cm. While undergoing training at the BPSP Academy, it was",,,,
found that the height of Opposite Party No.1 was not in conformity to the physical standard prescribed in the advertisement. There was no power of,,,,
relaxation in the advertisement as far as the height of the candidates is concerned. The selection process had to be conducted strictly in accordance,,,,
with the procedure stipulated in the advertisement. Reliance is placed on the decisions of the Supreme Court in Hoshiar Singh v. State of Haryana,",,,,
1993 Suppl. (4) SCC 377 and Bedanga Talukdar v. Saifudaullah Khan, (2011) 12 SCC 85.",,,,
(ii) It is pointed out that there was no provision to consider 164.5cm. as 165cm. nor is there any provision for rounding off the height by adding .5cm to,,,,
make it 1cm more. Reference is made to the decisions of the Supreme Court in Orissa Public Service Commission v. Rupashree Chowdhary,",,,,
(2011) 8 SCC 108, Registrar, Rajiv Gandhi University of Health Sciences, Bangalore v. G. Hemlatha, (2012) 8 SCC 568, West Bengal Joint",,,,
Entrance Examination Board v. Sarit Chakraborthy, (2015) 13 SCC 668 and Taniya Malik v. Registrar General of the High Court of Delhi,",,,,
(2018) 14 SCC 129.,,,,
(iii) It is further pointed out that the appointment of Opposite Party No.1 in the first place was on account of a bonafide mistake and it had been,,,,
corrected by cancelling the order of appointment. This was permissible in law. Reliance was placed on the decisions in Amol v. State of,,,,
Maharashtra, (2018) 1 SCC 134, Chandra Sekhar Swain v State of Odisha, 2017 (I) OLR-66a6n d Giridharilal Agrawal v. State of Odisha,",,,,
2021 (I) ILR-CUT-274.,,,,
(iv) It was further contended that no prejudice was caused to Opposite Party No.1 by not providing an opportunity of hearing prior to the cancellation,,,,
of appointment since in any event, he could not have improved his case by enhancing his height from 164.5cm to 165cm. The result would have been",,,,
the same. Reliance was placed on the decision of the Supreme Court in Dharampal Satyapal Limited v. Deputy Commissioner of Central Excise,",,,,
Gauhati, (2015) 8 SCC 519.",,,,
(v) Relying on the decision in State of Uttaranchal v. Ajit Singh Bhola, (2004) 6 SCC 800, it was submitted that the OAT ought not to have set",,,,
aside the cancellation thereby reviving the illegal order of appointment. Reliance was also placed in this regard on a decision of the Supreme Court in,,,,
State of Orissa v. Mamata Mohanty, (2011) 3 SCC 436.",,,,
Submissions of Opposite Party No.1,,,,
9. In reply, it was submitted on behalf of Opposite Party No.1 as under:",,,,
(i) During the joint enquiry by the Director of Health Services and DMET, Odisha, it was revealed that the height of Opposite Party No.1 was",,,,
Â,,Height,"Chest
Girth fully
expanded",Expansion
1,2,3,4,5
1,"Men
(UR/SEBC/SC)",165 cm,84 cm,5 cm
2,Men (ST),160 cm,84,5 cm
3,"Women
(UR/SEBC/SC)",150 cm,79 cm,5 cm
4,Women (ST),145 cm,79 cm,5 cm
of the Professor and HOD of Medicine, S.C.B. Medical College, Cuttack, Professor and HOD of Surgery, S.C.B. Medical College,",,,,
Cuttack and Chief District Medical Officer, Cuttack. The relevant portion of the said proceedings reads as under:",,,,
“Today i.e. on 01.11.2017, the Height of Sri Subha Narayan Mishra measured in presence of the above members and it is found that the height of the candidate is",,,,
164.5 CM (One hundred Sixty four point Five). It is also certified that the height was measured in the same height measurement instrument available in the office of,,,,
CDMO Cuttack supplied by Govt., which is being used in the Standing Medical Board and which also has been certified by the Senior Inspector Legal Metrology",,,,
Cuttack-I.â€,,,,
14. The said proceedings have been countersigned by Opposite Party No.1.,,,,
15. Therefore, the admitted position, even according to Opposite Party No.1, is that his height is 164.5cm, which is .5cm less than the minimum",,,,
standard of 165cm.,,,,
16. Turning to the case law, it is seen that Hoshiar Singh (supra), the Supreme Court concurred with the High Court that “good physique†takes",,,,
within its ambit, the height and physical specifications relating to chest measurement and the one star physical test has been introduced to evaluate the",,,,
' active habits' of the applicants. It has been held that these tests supplement the Rules and make their applicability more uniform. It was further noted,,,,
as under:,,,,
“Once it is held that the standards for physical fitness which have been laid down in the advertisement could be so prescribed, the matter of relaxation of the said",,,,
standards would depend on the terms of the advertisement. The advertisement and the corrigendum are silent about relaxation of the said standards by the Board. In,,,,
these circumstances, the Board could not, on its own, relax the standards of physical fitness as mentioned in the advertisement and the corrigendum.â€",,,,
17. The Supreme Court then concluded as under:,,,,
“12. In our view, therefore, it was not permissible for the Board to relax the standards of physical fitness as prescribed in the advertisement and treat candidates",,,,
who had passed in three out of five items of the one star physical test mentioned in the said advertisement as having qualified in the physical fitness test. The,,,,
selection of person who failed to qualify in all the five items prescribed for the test was, therefore, rightly quashed by the High Court.â€",,,,
18. In Bedanga Talukdar (supra), it was reiterated by the Supreme Court that the selection process had to be conducted strictly in accordance with",,,,
stipulated selection procedure which needs to be scrupulously maintained. There cannot be any relaxation in terms and conditions of advertisement,,,,
unless such power is specifically reserved in relevant rules and/or in advertisement. Even where power of relaxation is or is not provided in relevant,,,,
rules it must be mentioned in advertisement. Such power, if exercised should be given due publicity to ensure that those candidates who become",,,,
eligible due to relaxation are afforded equal opportunity to apply and compete. Relaxation of any condition in advertisement without due publication is,,,,
contrary to mandate of equality in Articles 14 and 16 of the Constitution.,,,,
19. In the present case, with there being no provision for relaxation of the rules, it is not open to the OAT to have issued a mandamus that Opposite",,,,
Party No.1 should be reinstated.,,,,
20. In Rupashree Choudhary (supra), the Supreme Court held that since there was no power provided to the applicable Rules for rounding off or",,,,
giving grace marks so as to bring a candidate up to minimum requirement, “no dilution or amendment to such Rules was permissible or possible by",,,,
adding words to Rules for giving benefit of rounding off or relaxation.†In that case, it was held that the High Court had erred in ordering rounding off",,,,
of aggregate marks of the Respondent from 44.93% to 45% and it was accordingly set aside. To the same effect are the decisions in Registrar,",,,,
Rajiv Gandhi University (supra), West Bengal Joint Entrance Examination Board (supra) and Taniya Malik (supra).",,,,
21. In the present case, the appointment of Opposite Party No.1 was made on a mistake of fact as far as the height parameter was concerned. The",,,,
Petitioners were entitled to correct that mistake. In Amol (supra) while agreeing with the High Court that the appointment offered was a mistake of,,,,
fact, it was held that even if the appointment of the Appellant was taken to be under the Schedule Caste category, he had obtained marks less than the",,,,
last successful candidate.,,,,
22. In the present case, even if it was held that the cancellation was based on the measurement of the height of the Opposite Party No.1 as 159cm",,,,
whereas it turned down to the 164.5cm, the fact remains that it is still less than 165cm. Therefore, no mandamus could have been issued by the OAT",,,,
to overlook the failure to qualify and quash the cancellation of appointment of Opposite Party No.1.,,,,
23. There is no question of the violation of principles of natural justice in such case since the facts are absolutely clear and even if a hearing had been,,,,
given, the height of Opposite Party No.1 could not have been increased to 165cm. In Dharampal Satyapal Limited (supra), it was observed by the",,,,
Supreme Court, after noticing the decision in ECIL v. B. Karunakar, (1993) 4 SCC 727, as under:",,,,
“45. Keeping in view the aforesaid principles in mind, even when we find that there is an infraction of principles of natural justice, we have to address a further",,,,
question as to whether any purpose would be served in remitting the case to the authority to make fresh demand of amount recoverable, only after issuing notice to",,,,
show cause to the appellant.â€,,,,
24. On the facts of that case, it was held that it would be futile to have issued a prior notice to the Petitioners.",,,,
25. Turning now to the decision cited by the learned counsel for Opposite Party No.1, the Court finds that the facts in Harjinder Singh (supra) turned",,,,
down in its own facts. The employer had approached the High Court against the award of Labour Court, which was held the termination of the",,,,
workman's services to be illegal and accepted its claim for reinstatement with back wages. The High Court had while agreeing with the Labour Court,,,,
that the termination was contrary to Section 25-G of the Industrial Disputes Act, which embodied the rule of last come first go, substituted the award",,,,
of reinstatement with compensation by assuming that the workman had initially been appointed contrary to Articles 14 and 16 of the Constitution of,,,,
India and according to the relevant regulations.,,,,
26. The Supreme Court reversed the decision after noting that in the reply filed on behalf of the employer before the Labour Court, no such plea was",,,,
taken regarding the initial appointment itself being illegal. Therefore, it was held that in those circumstances that no such plea could have been allowed",,,,
to be raised for the first time in the High Court.,,,,
27. In the present case, although no reply may have been filed before the OAT by no means can there be said to be any admission by the present",,,,
Petitioners that Opposite Party No.1 was fully qualified to be appointed as OPS Group-A (Junior Branch) when in fact that Opposite Party No.1 had,,,,
a height of only 164.5cm. It makes no difference whether reply was filed or not since this fact could not have been changed. Once it was clear that,,,,
Opposite Party No.1 did not satisfy the minimum requirement of 165cm, the question of interfering with the cancellation of his appointment did not",,,,
arise.,,,,
28. The clause in the guidance note of medical examination which states that the medical officer should opine whether the defect found would,,,,
interfere with the efficient performance of the duties would not apply where there is no discretion in the clauses governing the selection to allow any,,,,
relaxation. The Court finds that the reliance on the decision in Sabyasachi Lenka (supra) is misplaced. There the height of Lenka was more than the,,,,
height prescribed. Further, in the case of Dolamani Bishi 2020 (II) OLR 950, there was a recommendation made in favour of Dolamani Bishi to the",,,,
State Government for relaxation of the height, which was rejected by the State Government without providing an opportunity of hearing to the",,,,
Dolamani Bishi. In the present case, there is absolutely no power of relaxation provided for in the advertisement.",,,,
29. On the contrary, as rightly pointed out by the Petitioners, the OAT has actually restored an illegal order of appointment of Opposite Party No.1,",,,,
which was not permissible for it to do in terms of the law explained in Ajit Singh Bhola (supra) and which has been reiterated in Mamata Mohanty,,,,
(supra).,,,,
30. For all of the aforesaid reasons, the Court finds the impugned order of the OAT to be unsustainable in law and it is hereby set aside. The writ",,,,
petition is allowed in the above terms, but in the circumstances with no order as to costs.",,,,
