- (1.)Leave granted.
(2.)This matter has been placed before us in view of the dis-agreement by a Bench of Two Judges with the earlier order of this Court on the question whether the height can be the sole criteria for the selection of a police constable. Order dated 17th February, 2009, referring the matter to a larger Bench, reads as follows:-
"The dispute relates to the selection of constables in the State of Bihar. The minimum height requirement was 1.65 cms. for general candidates and 160 cms. for scheduled castes candidates. Admittedly, the petitioners were above that minimum height. However, it seems that they were rejected because the procedure adopted by the respondents was that height was the sole criterion for selection, which, in our view, is arbitrary and violative of Article 14 of the Constitution of India.

In our opinion, once a candidate has the minimum height as required by the relevant Rules, height then becomes an irrelevant consideration and other criteria should be taken into consideration, like intelligence, physical strength, etc. In this case, the selection amongst those who had the minimum height was done by only selecting the tallest candidates for the available vacancies. We are of the opinion that this was wholly arbitrary, and police constables must also have intelligence and other requirements, apart from height.

To give an example, supposing there are twenty vacancies and 100 candidates have the minimum height as required by the Rules, in such a situation, the selection authority, in our opinion, cannot validly select the tallest twenty mong these 100 candidates.

Learned counsel for the respondents, however, invited our attention to a judgment passed by a Division Bench of this Court in the case of State of Bihar & Ors. vs. Mal Babu Sharma (Civil Appeal No.2711 of 2002 arising out of S.L.P. ( C) No.21688 of 2001) in which the contention of the State of Bihar has been accepted. We respectfully cannot agree with the view taken by the Division Bench and hence, we refer this matter to a larger Bench to be nominated by the Hon'ble Chief Justice."

(3.)The appellants applied for the posts of constables in response to an advertisement dated 27th October, 1998, and were selected on the basis of their height being more than the height of the last candidate selected in the respective categories i.e. general, backward and Schedule Castes. It later came to light that their height was not accurately recorded on account of manipulation and on re-measurement their height was found to be less than the height of the last person selected. On that basis, after enquiry, they were dismissed from service vide order dated 25th August, 2003. They approached the High Court by way of a Writ Petition. While the learned Single Judge allowed the Writ Petition, the Division Bench held against them and observed as under:-
" ..If by resorting to wrong practices the writ petitioners got their height wrongly measured and entered in the official records, they cannot subsequently defend their selection only on the basis that their actual height even after detection of fraud is equal to or more than the minimum eligibility criteria governing height. Petitioners were terminated from service not on the ground that they did not possess the minimum stipulated height as given in the advertisement or in the rules but on the ground that they succeeded in selection process by wrong measurement and wrong entries in respect of their heights. The other issue that the impugned order or the enquiry does not contain ample materials to lay down a foundation of fraud and forgery does not merit serious consideration in view of the fact that the controversy related only to the measurement of the height which could be easily be re-checked and verified by a reliable authority who was not involved with the initial selection process. That having been done, there is no scope to hold that petitioners are not beneficiaries of fraud "