- (1.) PRAFULLA C. Pant, J. By means of this writ petition, moved under Article 226 of the Constitution of India, the petitioner has sought mandamus com manding the respondents to give him join ing in the Army as G. D. soldier.
(2.) BRIEF facts of the case, as narrated in the writ petition, are that the respond ents got published advertisement for recruit ment of G. D. soldiers in the month of Sep tember, 2003 in response to which, since the petitioner fulfilled the minimum quali fication, he reached at the recruitment center on 29. 9. 2003 and under went medi cal and physical tests and cleared the same. On the same day the petitioner appeared for the written examination, and was de clared successful in the written test as well. In response to the selection letter dated 28. 11. 2003 (copy Annexure-3 to the writ petition), the petitioner submitted his docu ments for verification before the Branch Recruiting Office at Almora, which included the Character Certificate, Caste Certificate and Domicile Certificate (copy Annexure 4 to this writ petition ). At the time of veri fication of documents, the respondents de manded certificate of permanent residence for 40 years which was not the requirement in the advertisement. As such the petitioner has alleged that he is deprived from join ing the Indian Army illegally and arbitrar ily hence the writ petition. A counter affidavit has been filed on behalf of the respondents in which it has been stated that the Branch Recruit ment Office, Almora organized a recruit ment fair for the recruitment of certain posts in the Indian Army. As per the stand ards laid down by the army authorities, there is requirement of minimum height of a candidate as per the letter A/62518/rtg 5 (OR) (A) dated 27th July, 1995. Further, candidates from Western U. P region are required to be atleast of 170 cm height. However, for Kumaonis and Garhwalis, it is 163 cm. For the purpose of identifying Kumaonis and Garhwalis as per the army guidelines, Hindus, who are habitual resi dents of Kumaon and Garhwal region of Uttaranchal are said to be the Kumaonis and Garhwalis. Earlier there used to be the physical standards based upon the class of and caste but now entire country has been divided into six regions and the physi cal standards are based there for. Vide Army Headquarters letter no. A. /5262/rtg 5 (OR) (A) dated 6th Jan, 1984, a person who shifts his domicile from region of one standard to another standard will have to settle there and produce certificate of resi dence at the shifted place for two generation to take benefit of lower standards of that region. In the counter affidavit it has been admitted that the petitioner did ap pear in the written examination and cleared the same. However, it is stated that his height was found to be 168 cm which was short of minimum required standards. When petitioner claimed for relaxation on the ground that he is a Kumaoni, he was given opportunity by the respondents to produce either two generation certificate or 40 years domicile certificate at the time of final document verification. It is further stated in the counter affidavit that the pe titioner failed to produce the required cer tificates as such his candidature was re jected. The medical test which the peti tioner states he has qualified was infact a preliminary medical test for enrolment for a written test and Medical test. A supple mentary affidavit has also been filed on behalf of the respondents stating that let ter no. 62518/rtg 5 (OR) (A) dated 14th August, 2003 (copy Annexure SA-2 to the Supplementary Affidavit ). was still appli cable for lower standards of the various regions. I heard learned counsel for the par ties and perused the affidavit, counter af fidavit and rejoinder affidavit along with the annexures annexed thereto.
(3.) THE short question for considera tion before this Court is whether, the peti tioner is wrongly denied from joining in the Indian Army by the respondents. Admittedly, the petitioner appeared for written test in the recruitment process held by Branch Recruitment Office, Almora. It is also admitted that the peti tioner cleared the written test. The dispute relates to the medical test and domicile certificate. Question of retirement of domi cile certificate for a period of 40 years or for two generations certificates arose be cause of the fact that according to the re spondents, petitioner's height was found 168 cms, which is short by 2 cm of the required 170 cm. From the perusal of the Annexure C A-1 to the counter affidavit it is clear that for the candidates of western Himalayan region minimum required height is 163 cm. This region includes Kumaon and Garhwal regions. The same document dated 27th July 1995 further shows that for the western plains region, which in cluded western UP (earlier Uttaranchal was part of western U. P), the minimum re quired height was 170 cm. It appears that on the date of physical test,, petitioner's height was found short thereby 2 cm. He claimed to be Kumaoni on which he was asked to produce 40 years domicile certifi cate or two generation domicile certificate. The petitioner has a certificate of the cat egory of other backward class which is Annexure-5 to the writ petition and the domicile certificate of resident of District Udham Singh Nagar of Uttaranchal, which is Annexure-6 to the writ petition. The said certificate shows that the petitioner belongs to village Umru Khurd, Tehsil Khatima, District-Udham Singh Nagar. Undoubtedly, he could not produce certificate showing 40 years domicile or two generation domi cile, but of course he did produce certifi cates showing the petitioner is a perma nent resident of District Udham Singh Nagar and belongs to the other backward class as he is a Muslim Phakeer.;