The lack of a vacancy cannot obstruct the consideration for appointment in circumstances where the petitioner was arbitrarily found lacking the required height despite having the requisite minimum height. Gross injustice to the petitioner by the respondent-Police Department cannot be countenanced under the Constitution of India.

JUDGMENT

Rekha Borana, J. - The present writ petition has been filed aggrieved of the non appointment of the petitioner on the post of Constable qua the recruitment process of the year 2018.

2. It is the case of the petitioner that in the selection process, he cleared the written examination and was called for the Physical Efficiency Test and after that for the interviews also. But after the interviews, he was not accorded appointment on the ground that he did not qualify in the Physical Efficiency Test as his height was 167 cms whereas according to the minimum qualification required, it ought to have been 168 cms.

3. Learned counsel for the petitioner submitted that soon after the physical examination when he was declared unsuccessful, he preferred an appeal in terms of the advertisement but no action whatsoever was taken by the department on that appeal. Ultimately, when he was not selected, he preferred the present writ petition. Learned counsel submitted that after being declared unsuccessful he approached the Government Hospital wherein measurement of his height was taken and according to the report of the Government Doctor, his height is 169 cms. Learned counsel therefore prayed that a fresh Medical Board be constituted by this Court and the measurements pertaining to his height be directed to be calculated de novo.

4. During the pendency of the writ petition, this Court had directed the counsel for the petitioner to place on record the affidavit of the Doctor who had granted him the medical certificate as produced on record. As the Doctor issuing the certificate had been transferred by that date, the certificate of the authority concerned has been filed specifying the fact that the petitioner's name was there in the visitors/patients list of 04.09.2018 which proves the fact that the petitioner did approach the said Government Hospital on the said date and the certificate was issued by the medical officer therein.

5. Learned counsel for the petitioner also placed on record one application moved by one similarly situated candidate Tarun Kumar before the respondent authorities whereby it has been directed by the concerned officer for constituting a Medical Board at SMS Hospital, Jaipur for the purposes of re-measurement of height of the candidate therein.

6. Per contra, it has been submitted in the reply filed by the respondents that after an appeal being filed by the petitioner, his re-measurement of height was conducted by the Medical Board and according to that report also his height was 167 cms which was not within the parameters specified and therefore, he was disqualified. Learned counsel further argued that no vacancy qua the advertisement in question exist as of date and therefore too, the petitioner cannot be granted any indulgence.

7. Heard learned counsel for the parties and perused the material available on record.

8. A reply has been submitted on behalf of the respondents and it has been submitted that on an appeal being filed by the petitioner, the re-measurement of the height and chest of the petitioner was conducted wherein also the petitioner had failed. But no such report of the Medical Board after the re-examination of the petitioner has been placed on record. What has been placed on record is only the first PST result which shows the height of the petitioner to be 167 cms. Therefore, in absence of any document specifying the fact that the re-examination or the re-measurement of the physical parameters of the petitioner was conducted, it cannot be concluded that any action was taken in pursuance to the appeal filed by the petitioner. Moresoever, the medical certificate issued by a competent Government Doctor placed on record by the petitioner specifies his height to be 169 cms. Further, soon after the rejection of the candidature of the petitioner, he had approached this Court and therefore, the ground of the respondents that all the seats have now been filled up and no indulgence can be granted in favour of the