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PETITIONER: ISMAIL ABDUL LATIF SHAIKH

       Vs.

RESPONDENT: STATE OF MAHARASHTRA & ANR.

DATE OF JUDGMENT:       29/02/1996

BENCH: HANSARIA B.L. (J) BENCH: HANSARIA B.L. (J) BHARUCHA S.P. (J)

CITATION:  1996 SCC  (7) 545        JT 1996 (3)   158  1996 SCALE  (2)593

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T HANSARIA,J.      The  appellant   joined  the   Prohibition  and  Excise Department as  a  Constable  in  the  year  1961.  The  next promotional post  is that  of Sub-Inspector.  He was  indeed interviewed for  that post  in the  year 1966,  but was  not promoted on  the ground  that his chest measurement was less than the  standard said to be  required to hold the post. He ultimately came  to be  promoted as a Sub-Inspector in 1970. His grievance,  is however,  is that  the promotion  has  to relate back  to 1966  inasmuch as his rejection in that year for the  promotional post  on the ground above noted was not tenable for  two reasons  : (1) there is no such requirement as would  appear, inter  alia,  from  the  decision  of  the Maharashtra Administrative  Tribunal itself  in the  case of one Shashikant Dhaku Chavan rendered in Transfer Application No.278 of  1991 on  27.8.1993, whereas  his approach  to the Tribunal was  dismissed by  an order  dated 15.6.1993 on the ground of his having not fulfilled the physical requirement; and (2)  the Government  had allowed  S/Shri S.H.  Avhad and S.K. Throat  to hold  the promotional  post though they were below height. 2.   We find  merit in  both the  grievances inasmuch as the rule relating  to physical requirement has no application in the case of Sub-Inspectors as would appear from the judgment of the  tribunal in the case of Chavan. Chavan’s case cannot be distinguished  on the ground that he belonged to clerical branch whereas  the appellant was in constabulary, as sought to be done by the learned counsel for the State, inasmuch as Rule 3  noted by  the Tribunal  in  Chavan’s  case  has  not mentioned about  physical requirement  as qualification  for Sub Inspectors.  This apart,  the Government  having allowed the aforesaid  two persons  to hold  the promotional of Sub- Inspector despite their being below the required height, the same benefit  has to  be made  available to the appellant as

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the short-fall  of  physical  requirement  in  his  case  is relatable to the chest being not of required measurement. 3.   The appeal is, therefore, allowed and we state that the promotion of  the appellant  to the  post  of  Sub-Inspector shall be  deemed to  be from  the date  of rejection  of his promotion in the year 1986. This notional promotion shall be confined to the benefit of seniority alone as was the prayer of the  appellant in  the writ  petition filed by him before the High  Court, which  had come  to be  transferred to  the Tribunal for disposal. No order as to costs.