Bombay High Court
Kum. Jayshree Zine And Ors. vs Maharashtra Public Service Commission ... on 19 June, 2008
Author: Swatanter Kumar
Bench: Swatanter Kumar, V.M. Kanade
JUDGMENT Swatanter Kumar, C.J.
1. Maharashtra Public Service Commission on 7th May, 2005 issued an advertisement in the newspaper advertising the vacancies for the posts of Assistant Motor Vehicle Inspector, Group `C' in the Transport Department of the Home Department of State of Maharashtra. In all there were 207 posts to be filled in which included reserved posts as well. 62 seats were reserved for women candidates. It is the case of the petitioners that they fulfilled all the requirements and eligibility criteria and resultantly, they submitted applications for selection to that post. A written examination was held on 12th November, 2005. The petitioners claim to have qualified the test and called for physical fitness test and subsequently for interview in March, 2006. The petitioners were asked to appear/reappear for physical fitness test as there was some doubt in regard to measurement of their height. In April, 2006, the petitioners reappeared for physical fitness test. The concerned authorities of the Commission on 7th April, 2006, the date when they were subjected to physical fitness test, found that the height of the petitioners was short by 5 cms. or above of the prescribed height.
2. The petitioners felt aggrieved by this action of the respondents in not selecting them because of less height and they made a representation to the Chairman of the respondent- Commission explaining that they satisfied and fulfilled all the terms and conditions including educational qualification and practical experience, age, domicile etc. and claiming that they also satisfied the criterian as regards the height and in any case, the difference of 5 cms. was not of much difference which should result in rejection of the petitioners and the difference in height would fall within the tolerance limit. It is specifically averred in the writ petition that average height of women in Maharashtra as furnished by the Government data itself, is 151.2 cms. and resultantly, there was no justification for providing prescribed height criteria for being eligible for the post of Assistant Motor Vehicle Inspectors. The representation preferred by the petitioners was rejected on 12th April, 2006 resulting in filing of the present writ petition.
3. The challenge in the present petition is to the action of the respondents in rejecting the representation and denying them the post. The petition is primarily directed on the grounds viz. the criteria of height of 157 cms. has no nexus to the post of Assistant Motor Vehicle Inspectors. It is an arbitrary fixation and, thus, is liable to be quashed. Keeping in view the average height of women in Maharashtra, the height of 151 cms. should be treated to be sufficient compliance of the height standards particularly when the petitioners have qualified in all other aspects and they ought to have been given appointments and lastly that the reservation of posts for women has been frustrated by depriving the petitioners of selection and appointment to the said post which is impermissible in law. On these grounds, it is prayed that the respondent No. 1 be ordered and directed to reconsider the petitioners for selection and if necessary by waiving objection about their height and/or in the alternative be ordered to be given provisional appointment to the posts in question.
4. Two separate replies were filed on behalf of the respondent Nos. 1 and 2 respectively. According to the affidavit filed on behalf of the Home Department of the State of Maharashtra, it is averred that the petitioners have made false and wrong statements in the writ petition as well as in their application forms by intentionally giving their heights incorrectly. According to the heights described in the application forms, the petitioners have claimed that they have satisfied the requirement of height of being 157 cms. It is stated that the competent authority had taken a policy decision and had provided for various requirements keeping in view the conditions and requirements of the job in question and all the candidates having been subjected to same conditions and criteria, the petitioners cannot raise any grievance. It is also averred that in accordance with the Government resolution dated 25th May, 2001, the seats in question have already been filled up by male candidates and all the selected female candidates except who did not satisfy the height criteria and no vacancy exists as of today. Thus, the petitioners, in any case, cannot be granted any relief. It is the case of the official respondent that the requirements stipulated in the policy and advertisement as declared by the State is expected to be adhered to. The requirements are as follows:
Male candidates : Height Not less than 163 cms (bare footed) Female Candidates: Height Not less than 157 cms (bare footed) Weight Not less than 45 kgs. Only those candidates who fulfill the aforesaid physical requirement are supposed to apply for the written entrance examination in the first place. The ladies or female Assistant Inspector of Vehicles in the Motor Vehicles Department for which examination of the MPSC, the Petitioners appeared, have to perform the duties as mentioned below:
1) Mechanical Inspection of Vehicles viz. Trucks and Buses.
2) To drive the vehicles practically.
3) To control the clutch, Brake, Accelerator of vehicles while conducting the driving test of the candidates seating near to them. These duties, especially the one mentioned at No. 3 clearly show that there can be no relaxation of height permitted in case of any candidates, male or female regarding for the eligibility of Departmental Examination.
5. The above parameters have been applied to all the candidates selected and/or rejected and if the criteria is altered at this stage, the entire selection process would have to be set at naught, despite the fact that the selected candidates are not party to this writ petition.
6. In terms of the affidavit filed on behalf of the MPSC, similar stand has been taken. It is explained that the height and weight criteria has been strictly adhered to in selection of male as well as female candidates. No exception has been made to any of the candidates. It is not proper for the Government to grant concession to any of the present petitioners as well. Referring to the falsehood in the case of the petitioners, it is averred as under:
(iv) In their applications to the Commission, the Petitioners had falsely mentioned in their own hand that their height as mentioned below.
1. Jayashree Zine 159 cms.
2. Aparna Pawar 157 cms.
3. Seema Khete 157 cms.
4. Priyanka Tokle 158 cms.
5. Rita Sandanshiv 159 cms.
6. Aparna Chavan 158 cms.
(v) According to the aforesaid information given by the Petitioners themselves they were called Physical measurement and Viva-voce, the datewise measurements were recorded as below:
1. Jayashree Zine 155.6 cms. 10.3.2006
2. Aparna Pawar 156.5 cms. 27.3.2006
3. Seema Khete 156.5 cms. 4.4.2006
4. Priyanka Tokle 155.6 cms. 10.3.2006
5. Rita Sandanshiv 154.6 cms. 10.3.2006
6. Aparna Chavan 156.5 cms. 10.3.2006
7. The Appeal committee had also considered the case of the petitioners independently and even in the physical examination held on on 7th April, 2006, the Committee found that all the petitioners were falling short in height and are not satisfying the height criteria.
8. During the pendency of this writ petition, another applicant viz. Sheetal P. Pawar filed Chamber Summons No. 63 of 2006 praying that she be impleaded as petitioner No. 7. This chamber summons was opposed on behalf of the respondents who took similar stand and prayed that the Chamber Summons be declined. However, having heard the counsel appearing for the parties, we find that no prejudice would be caused to the non-applicants-respondents if the applicant is impleaded as petitioner in asmuch as case of the applicant in the Chamber Summons is identical to that of the other petitioners, which the court, on merit or otherwise, will decide in the petition. Consequently, in the interest of justice, we allow the chamber summons No. 63 of 2006 and applicant shall be deemed to be impleaded as petitioner No. 7 in the writ petition.
9. We may notice that this applicant was also heard alongwith other petitioners on merits.
10. Coming to the contentions raised on behalf of the petitioners, firstly, we must notice that it is a settled principle of law that the court would not interfere in the policy framed by the State and/or opinion of the expert bodies identifying the job requirements or criteria relating to educational or other qualifications including physical fitness. There is hardly any exception to this rule and such decision of the Government or the Commission shall fall beyond the purview of judicial review. In the recent judgment, the Division Bench of this Court in Consumer Guidance Society of India and Ors. v. Union of India and Ors. PIL No. 124 of 2006, this Court has held as under:
10. The present case hardly falls in the exception to the Rule. Framing of policy necessitating financial burden on the State exchequer is something which should be done by the State and Competent Authority. We have already indicated that there are no justifying circumstances in this case which would persuade us to issue the direction prayed and very limited is the scope of judicial review in relation to policy matter unless such policy was inconsistent with the Constitution and the law or so arbitrary or irrational or tantamounting to abuse of power, judicial intervention would normally be not necessitated. It will be useful at this stage to refer to the judgments in Balco Employees' Union (Regd.) v. Union of India and Ors. and Federation of Railway Officers Association and Ors. v. Union of India . In the case of Federation of Railway Officers Association (supra), the Supreme Court observed as under:
In examining a question of this nature where a policy is evolved by the Government judicial review thereof is limited. When policy according to which or the purpose for which discretion is to be exercised is clearly expressed in the statute, it cannot be said to be an unrestricted discretion. On matters affecting policy and requiring technical expertise the court would leave the matter for decision of those who are qualified to address the issues. Unless the policy or action is inconsistent with the Constitution and the laws or arbitrary or irrational or abuse of power, the court will not interfere with such matters.
11. The Appellate Tribunal to be known as the "Telecom Disputes Settlement and Appellate Tribunal" was established under Section 134 of that Act. In terms of Section 14, the Central Government by notification established the Tribunal to adjudicate any or all of the disputes specified under that provision. Upon consideration of the Appellate Tribunal in terms of Section 14B(c) the Appellate Tribunal may exercise jurisdiction by Benches. The Benches shall ordinarily sit at New Delhi and such other places as the Central Government may in consultation with the Chairperson of the Appellate Tribunal, notify. In the event such Benches are constituted then Section 14B(d) requires the Central Government to define areas of jurisdiction which each Bench may exercise. In other words, the constitution of the Appellate Tribunal, its Benches and their respective jurisdiction shall be controlled by the Central Government which has to issue notification, of course, such notification or decision is to be taken in consultation with the Chairperson of the Appellate Authority. It is clear from the bare reading of this provision and the scheme of the Act that consultation has to be an effective and meaningful one as the Chairperson of the Appellate Authority would be in a better position to give objective consultation which would be based upon hard reality of the constitution of the Tribunal. This matter, thus could hardly be entertained under Article 226 of the Constitution on of India.
11. A similar view was taken by another Division Bench of this Court in the case of Shri Pradeep Chandrakant Indulkar and Anr. v. The Municipal Corporation of the City of Thane and Ors. PIL 20 of 2007 wherein the court, after discussing the various judgments of the Supreme Court on the subject, stated that the courts, while dealing with the challenge of policy decision will be covered by the principles laid down in those cases and the scope in any case is very limited. Policy decisions are taken after obtaining experts advice and they are preceded by deliberations and the courts would not interfere unless and until they were patently opposed to law and smacked malafides. There also the court would be slow in interference.
12. In a very recent judgment, the Supreme Court in the case of Dhampur Sugar (Kashipur) Ltd. v. State of Uttaranchal and Ors. 2007 AIR SCW 6169 mandated that if the overall assessment or decision is arrived at after a proper classification on the reasonable basis, it is not for the courts to interfere with the policy leading up to such assessment. In the present case, it is nobody's case that the respondents have exercised their power malafidely or contrary to law. The respondents are stated to have exercised their power and have offered employment by granting equal opportunity to all the applicants. However, have strictly adhered to the criteria prescribed. Thus, no fault can be traced in the action of the respondents. The report on the basis of which it is contended in the writ petition that the average height of women in the State of Maharashtra is 151.2 cms. was a fact wellknown to the Home Department as well as to the Commission. Despite such awareness, they have taken a view and have adhered to the condition of height and weight in relation to the selection of all candidates whether male or female.
13. It is a settled principle of law that the appointing authority can lay down such pre-requisites conditions of eligibility for service as would be conducive to proper discipline amongst Government servants and they are also entitled to pick and choose from amongst the number of candidates offering themselves for employment under the government in accordance with the prescribed criteria, qualifications and requirements. Once such test is equally applied to the candidates, selection process can hardly be faulted with. Reference can be made to the judgment of the Supreme Court in the case of Banarasidas v. State of U.P. . Amplifying this principle of equal opportunity, the Supreme Court in the case of Jagdish Lal v. State of Haryana stated the principle that true import of equality of opportunity is not simply a matter of legal equality. Its existence depends not merely on the absence of disabilities but the presence of abilities and opportunity of excellence in each cadre/grade. It is not even the case of the petitioners that the specified criteria in relation to matters including the requirement of height and weight was not equally applied to all female candidates. The contention of the petitioners apparently suffers from a patent defect in asmuch as out of 62 seats reserved for female candidates, 17 have already been found fit, selected and appointed to the post. In other words, this is not even factually true that female candidates of appropriate height are not available in the State of Maharashtra and this requirement frustrates the principle of equality in selection.
14. We are also unable to assent or approve the argument advanced on behalf of the petitioners that fixation of height for women candidates of 157 cms. is arbitrary. The respondents in their reply affidavit have specifically stated that this aspect was fully examined by the concerned authorities and keeping in view the job requirement, the height was fixed. The required conditions of eligibility for physical measurement and viva-voce have been prescribed upon after due deliberations and have been uniformally applied. The respondents have taken a specific stand in their reply affidavit that the duties specifically in regard to driving the vehicle practically controlling the clutch, brake, accelerator of vehicle while conducting the driving test of the candidate sitting near to them requires that the candidate should have the prescribed height and it cannot in any way be relaxed. The decision being of the expert bodies, it is not for the court to examine this aspect merely on the bald averment made on behalf of the petitioners. Prescription of qualification by the respondents does not suffer from the element of arbitrariness besides the fact that any of the grounds raised on behalf of the petitioners is devoid of any merit. We must notice that the petitioners would also not be entitled to any relief in exercise of equitable and discretionary powers of this Court under Article 226 of the Constitution of India. The conduct of the petitioners is such which would disentitle them from claiming any relief in the present writ petition. As already noticed, in the application forms, the petitioners had described in their own hand writing, their height in excess of 157 cms. In fact, they had declared their heights between 157 cms. to 159 cms. thus, showing to have possessing and satisfying the criteria in relation to prescribed height. It was only when they were subjected to physical examination and on their requests, physical re-examination, which was conducted on 7th April, 2006 by the Appellate Committee, that it was found that they do not satisfy the requirement in relation to height. It is unfair for the candidate to make a false averment in the application form and then to claim the equitable relief on such falsehood. This conduct of the applicants, in our considered view, disentitles them from claiming any relief in the present petition. It is a settled principle of law that one who claims any equitable relief must come to the court with clean hands and true facts. Attempt to misrepresent the facts and/or to claim any relief on the basis of falsehood will disentitle the petitioners from claiming equitable reliefs.
For the reasons afore-recorded, we find no merit in this petition and the same is dismissed without any order as to costs.