ORAL JUDGMENT:---By consent, taken up for final hearing.

2.Is this a case of a biological miracle where respondent Nos. 4 to 38, all adult employees promoted as Sub-Inspectors of Excise, have grown in physical height in some cases in as much as 8 centimeters after their employment? Or is this a plain case of a fraud committed by them with the aid of Medical Officers for the purpose of getting promotion without possessing necessary physical qualifications required for the post? -is what the Government wants to enquire into. Is it prevented from doing so by reason of several orders of the Maharashtra Administrative Tribunal (for short M.A.T.) is the question which arises for the consideration in this petition under Articles 226 227 of the Constitution of India.

3.The facts giving rise to the petition may be briefly stated thus :--

The petitioners as well as respondent Nos. 4 to 38 were employed either as clerks or constables, in the State Excise Department of State of Maharashtra. 50% of the posts of sub-inspectors in State Excise are filled in by promotion of clerks and Constables. The State of Maharashtra has published Recruitment Rules for the posts of Sub-inspectors of State Excise by issuance of a Notification No. EST-2390/342/EXC-4 dated 1st January, 1993. The Rules prescribe the minimum height of 165 cm. for male and 160 cm. for female candidates for being appointed to the post of Sub-Inspector of Excise. In June 1993, height of the departmental candidates who had applied for the post of Sub-Inspectors was measured departmentally and the respondent Nos. 4 to 38 were found to possess height less than the height prescribed by the Rules. They were however allowed to appear for written examination conducted for the post of Sub-Inspectors of Excise or their giving a written undertaking that they would be considered for promotion only if the Rules relation to the height were relaxed by the Government and if they passed the written examination. It was common ground that the requirement of the minimum height was not relaxed by the Government and the respondent Nos. 4 to 38 were therefore, not promoted as Sub-Inspectors of excise in the year 1993.

4.In the year 1997, Excise Department again decided to fill up posts of Sub-Inspector of Excise, through promotion. Accordingly, applications were invited from the clerks and constables working in the Department vide circular dated 13th August, 1997. The applicants were required to produce medical certificate from a Civil Surgeon or R.M.O. that they fulfilled the prescribed physical requirement of height. Respondent Nos. 4 to 38 who were not considered as eligible for promotion in the year 1993 as possessing less than the prescribed height managed to produce medical certificates issued by Civil Surgeons or R.M.Os about their heights being 165 cm. or 160 cm. as the case may be, respondent Nos. 4 to 38 suppressed in their application the fact that they were found to possess height less than the prescribed height at the time of departmental measurement made at the time of examination for promotion in the year 1993 and that they were allowed to appear for the written examination on the basis of their undertakings that their height was less but they would be considered for promotion only if the rules were relaxed by the Government. All the candidates who successfully passed the written examination in the year 1997 including respondent Nos. 4 to 38 were called for physical test on 6th March, 1998 before committee of Panel Doctors set up by the department. Thereafter, a final merit list of successful candidates were found eligible for promotion. According to the petitioners names of respondent Nos. 4 to 38 were not included in the final list and they were declared unfit (not possessing required physical height). Petitioners names found place in the list.

5.Thereafter, the respondent Nos. 4 to 38 filed separate Original Applications before the Maharashtra Administrative Tribunal (for short MAT)

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