Gujarat High Court
Jagrutiben Raimalbhai Shihora vs State Of Gujarat on 28 April, 2025
Author: Vaibhavi D. Nanavati
Bench: Vaibhavi D. Nanavati
NEUTRAL CITATION
C/SCA/423/2010 JUDGMENT DATED: 28/04/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 423 of 2010
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
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Approved for Reporting Yes No
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JAGRUTIBEN RAIMALBHAI SHIHORA
Versus
STATE OF GUJARAT & ORS.
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Appearance:
MR ZUBIN F BHARDA(159) for the Petitioner(s) No. 1
MR NIRAJ SHARMA, AGP for the Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 2,3
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CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
Date : 28/04/2025
ORAL JUDGMENT
1. Heard Ms. Richa Shah, the learned advocate appearing for Mr. Zubin F. Bharda, the learned advocate appearing for the petitioner and Mr. Niraj Sharma, the learned AGP appearing for the respondent - State.
2. The petitioner herein is aggrieved and dissatisfied by the Page 1 of 19 Uploaded by K.K. SAIYED(HC00169) on Fri May 16 2025 Downloaded on : Sat May 17 05:24:37 IST 2025 NEUTRAL CITATION C/SCA/423/2010 JUDGMENT DATED: 28/04/2025 undefined impugned order dated 15.11.2009 bearing No.B/MHK/TA.3/9305-09/2009-10 passed by the respondent No.2 dismissing the petitioner from the post of Forest Guard of Gir Forest, Babaria Range, Junagadh on the ground that the petitioner herein is not meeting the minimum physical requirement. The petitioner herein has prayed for the following reliefs :-
"(A) This Honourable Court be pleased to admit and allow this petition.
(B) This Honourable Court be pleased to quash and set aside the order dated 15/11/2009 bearing No. B/MHK/TA.
3/9305-09/2009-10, passed by the respondent No.2 dismissing the petitioner as Forest Guard of Gir Forest, Babaria Range, Junagadh, by terming the impugned order illegal, unjust, unauthorized, high handed and full of malafide by issuing appropriate writ, order or direction, in the interest of justice. (C) Pending, admission and final hearing and /or final disposal of this petition, this Honourable Court may be pleased to stay the implementation and operation of the order dated 15/11/2009 passed by the respondent No.2 bearing No. B/MHK/TA. 3/9305-09/2009-10, in the interest of justice. Page 2 of 19 Uploaded by K.K. SAIYED(HC00169) on Fri May 16 2025 Downloaded on : Sat May 17 05:24:37 IST 2025
NEUTRAL CITATION C/SCA/423/2010 JUDGMENT DATED: 28/04/2025 undefined (D) Be pleased to pass such other and further order(s) as may be deemed fit and proper in the interest of justice. (E) Be pleased to award cost of this petition from the respondents."
3. Brief facts leading to the filing of the present petition read thus :-
3.1 The petitioner herein is by qualification a Post as well as Double Graduate and belongs to Socially and Educationally Backward Class. The Certificate is duly produced at Annexure
- A. The petitioner applied for the post of Forest Guard and was made to undergo physical endurance test which included running, high jump and long jump and thereafter height and weight was measured by the Medical Officers of the Government and thereafter on 24/8/2007 the petitioner was issued the order of appointment. The said appointment order was on contractual and temporary basis for a period of five years. The said order is duly produced at Annexure-B. Page 3 of 19 Uploaded by K.K. SAIYED(HC00169) on Fri May 16 2025 Downloaded on : Sat May 17 05:24:37 IST 2025 NEUTRAL CITATION C/SCA/423/2010 JUDGMENT DATED: 28/04/2025 undefined 3.2 On 29/10/2007, the petitioner was sent to Rajpipla to undergo training for a period of six months. Upon successfully completing the training the petitioner was posted at Range Forest Office (Babaria Range, Gir, Junagadh). The Range Forest Officer - respondent No.3 from the very beginning started harassing the petitioner and despite no wireless duty is supposed to be assigned to a female Forest Guard, the petitioner was confined to wireless duty for 12 hours a day. Even then the petitioner discharged her duties with zeal and utmost sincerity.
3.3 The petitioner applied for the post of Van Pal pursuant to the advertisement which was issued. The petitioner was called for the test which the petitioner cleared with ease. The clearance certificate is duly produced at Annexure-C. The certificate provides that the petitioner cleared all the tests of physical endurance. It is the say of the petitioner that one Trushiben Vitthalbhai Chauhan, who happens to be the Page 4 of 19 Uploaded by K.K. SAIYED(HC00169) on Fri May 16 2025 Downloaded on : Sat May 17 05:24:37 IST 2025 NEUTRAL CITATION C/SCA/423/2010 JUDGMENT DATED: 28/04/2025 undefined daughter, the sister-in-law of the respondent No.3 had also applied for the post of Van Pal and the respondent No.3 was interested to see that the said Trushiben is appointed and not the petitioner on the post of Van Pal.
3.4 The petitioner was at the time of taking measurements of candidates was informed that the petitioner is not meeting with the minimum requirement regarding the height as according to the officials the height of the petitioner is not 150 centimeters.
3.5 Considering the fact that the petitioner was already employed as Forest Guard, the petitioner withdrew her candidature for the post of Van Pal. On 15/11/2009 the petitioner was served with an order of dismissal from service as Forest Guard issued by the respondent No.2 on the ground that on 28/7/2009 the height of the petitioner was measured through Resident Medical Officer, Junagadh, who certified that the height of the petitioner was 4 feet and 10 inches and Page 5 of 19 Uploaded by K.K. SAIYED(HC00169) on Fri May 16 2025 Downloaded on : Sat May 17 05:24:37 IST 2025 NEUTRAL CITATION C/SCA/423/2010 JUDGMENT DATED: 28/04/2025 undefined according to the respondent No.2 because the height of the petitioner was less than 150 cm. (5 feet) which is the stipulated requirement for being selected as Forest Guard, the appointment of the petitioner was liable to be terminated on account of the petitioner not fulfilling the minimum requirement. The said order of dismissal was passed with notice pay of one month which is duly produced at Annexure
- D. 3.6 It is the case of the petitioner that the bare perusal of the impugned order dated 15/11/2009 indicates that the same is tainted with malafide and the petitioner was dismissed on a vague and flimsy ground only to satisfy the vested interest of the respondent No.3 who from the very beginning is not satisfied with the petitioner's appointment and who wanted the petitioner to be out of service.
3.7 The petitioner herein fulfills all the requirements for appointment as Forest Guard having minimum educational Page 6 of 19 Uploaded by K.K. SAIYED(HC00169) on Fri May 16 2025 Downloaded on : Sat May 17 05:24:37 IST 2025 NEUTRAL CITATION C/SCA/423/2010 JUDGMENT DATED: 28/04/2025 undefined qualification for the post of Forest Guard which is a clearance of Secondary Certificate Examination, the petitioner is a Post Graduate and hails from a Socially and Educationally Backward Strata of the society. The petitioner was in fact required to be encouraged but instead was served with an order of dismissal which does not deserve to be sustained.
3.8 The aforesaid has given rise to filing of the present petition for the prayers, as referred above.
4. Ms. Richa Shah, the learned advocate appearing for Mr. Zubin F. Bharda, the learned advocate appearing for the petitioner relies on the documents produced on record and submits that the impugned order is required to be quashed and set aside on the ground that the impugned order dated 15.11.2009 is insufficient and vague to allege that although the height of the petitioner is shown to be 150 cm., in the report submitted by the Medical Officer at the time of measuring the weight and height of the candidates who Page 7 of 19 Uploaded by K.K. SAIYED(HC00169) on Fri May 16 2025 Downloaded on : Sat May 17 05:24:37 IST 2025 NEUTRAL CITATION C/SCA/423/2010 JUDGMENT DATED: 28/04/2025 undefined successfully cleared the written as well as the oral tests and also the physical endurance test for the post of Forest Guard, subsequently upon determination of the height by getting it re-
measured by Resident Medical Officer, Junagadh it was reported to be 4 feet and 10 inches (below 5 feet) and the petitioner was dismissed.
4.1 It is submitted that it is not the case of the respondent No.2 that the petitioner cheated and obtained the employment as the reporting and measurement of height and weight was never in the control of the petitioner, but it was always subject to the report of the Medical Officer as well as the Forest Assistant who measured the height and weight of the petitioner.
4.2 It is submitted that the petitioner successfully served as the Forest Guard for more than 2 years and 4 months without any untoward incident having occurred or without any complaints against the petitioner, cannot be made to suffer for Page 8 of 19 Uploaded by K.K. SAIYED(HC00169) on Fri May 16 2025 Downloaded on : Sat May 17 05:24:37 IST 2025 NEUTRAL CITATION C/SCA/423/2010 JUDGMENT DATED: 28/04/2025 undefined the incompetence or negligence of the Medical Officer who found the height of the petitioner to be meeting the stipulation at the relevant point of time. It is submitted that the order of terminating the services of the petitioner for no fault of the petitioner cannot be permitted to stand. 4.3 It is submitted that though the petitioner's appointment was contractual and were terminable at any stage before the completion of 5 years, the powers or the right is required to be exercised with reasonableness and utmost caution and the same cannot be left at the mercy of the whims of vested interest.
4.4 It is submitted that the petitioner chose to withdraw the nomination for the post of Van Pal as she was already serving as Forest Gurad and not because the petitioner was found ineligible due to the height for the post of Van Pal. 4.5 To substantiate the aforesaid contentions reliance is Page 9 of 19 Uploaded by K.K. SAIYED(HC00169) on Fri May 16 2025 Downloaded on : Sat May 17 05:24:37 IST 2025 NEUTRAL CITATION C/SCA/423/2010 JUDGMENT DATED: 28/04/2025 undefined placed on the order passed in the Special Civil Application No.22681 of 2019 CAV Judgment dated 8.2.2022.
5. Mr. Niraj Sharma, the learned AGP relied on the affidavit-in-reply duly produced at page-23. Placing reliance on the same, it is submitted that vide Notification dated 25.6.2007 a Committee was appointed for appointment of Van Raksha Sahayak. Pursuant to the constitution of the said Committee, an advertisement was issued inviting applications on 11.8.2007 for the post of Van Raksha Sahayak. The said advertisement is duly produced at Annexure-R1. Reliance is placed on the advertisement duly produced at Annexure-R1. 5.1 It is submitted that the petitioner applied for the said post on 18.08.2007 and was appointed on 24.08.2007. It is submitted that the petitioner also applied for the post of Vanpal Sahayak on 03.07.2009 and withdrew willingly the said application on 13.07.2009. Reliance is placed on Annexure-R2. Page 10 of 19 Uploaded by K.K. SAIYED(HC00169) on Fri May 16 2025 Downloaded on : Sat May 17 05:24:37 IST 2025
NEUTRAL CITATION C/SCA/423/2010 JUDGMENT DATED: 28/04/2025 undefined 5.2 It is submitted that it came to notice of the respondent authority that the petitioner is not having requisite height as required for the post of the Van Raksha Sahayak so on 27.07.2009 the respondent authority sent the petitioner for the verification of her height to Civil Surgeon, Junagadh which is duly produced at Annexure-R3.
5.3 It is submitted that the Medical Officer, Junagadh certified that the height of the petitioner is 4'-10' i.e. 145 cms ., the said certificate is duly produced at Annexure-R4. 5.4 It is submitted that at the time of selection of the petitioner as Van Raksha Sahayak, the petitioner's height was not as per the advertisement and the petitioner's height was wrongly certified as 150 cms. It is submitted that in light of the aforesaid, the Committee decided to dismiss the petitioner and recommended to take action against the Dr. Prafulla Dhabaria for having certified the petitioner's height as 150 cms. The said letter is duly produced at Annexure-R6. Page 11 of 19 Uploaded by K.K. SAIYED(HC00169) on Fri May 16 2025 Downloaded on : Sat May 17 05:24:37 IST 2025
NEUTRAL CITATION C/SCA/423/2010 JUDGMENT DATED: 28/04/2025 undefined 5.5 It is submitted that at the time of appointment the petitioner made a declaration whereby the petitioner has declared that the petitioner would abide by the conditions of the respondent authority. Reliance is placed on the said declaration duly produced on record at page-36 as Annexure- R7.
5.6 Placing reliance on the aforesaid submissions it is submitted that the respondent authority having noticed that the petitioner's initial appointment as Van Raksha Sahayak is on contractual basis wherein the petitioner has filed an undertaking in accordance with the Government Resolution dated 16.2.2006 Clause (4). Placing reliance on Clause (4) it is submitted that the petitioner's height is less than the prescribed criteria and the advertisement and, therefore, the aforesaid is noticed by the respondent authority before completion of 05 years. In view thereof upon giving notice and pay for month the petitioner's services are terminated. Page 12 of 19 Uploaded by K.K. SAIYED(HC00169) on Fri May 16 2025 Downloaded on : Sat May 17 05:24:37 IST 2025
NEUTRAL CITATION C/SCA/423/2010 JUDGMENT DATED: 28/04/2025 undefined
6. Having heard the learned advocates appearing for the respective parties, it emerges that the respondent authority by Notification dated 25.6.2007 constituted a Committee for the appointment of Van Raksha Sahayak. In the said Committee, Conservator of Forests, Dy. Conservator of Forests, Collector or the representative of the District Collector not below the rank of the Dy. Collector and the Superintendent of Police or representative of District Superintendent of Police not below the rank of the Dy. Superintendent of Police were the members. The advertisement came to be issued for the post of Van Raksha Sahayak on 11.8.2007 which is duly produced at page-28 Annexure-R1. This Court has perused the said advertisement wherein the requirement for physical eligibility is 163 cms for male and 150 cms for female. The said appointment is on contractual basis for period of 05 years on fixed pay.
7. The petitioner was initially issued appointment on the Page 13 of 19 Uploaded by K.K. SAIYED(HC00169) on Fri May 16 2025 Downloaded on : Sat May 17 05:24:37 IST 2025 NEUTRAL CITATION C/SCA/423/2010 JUDGMENT DATED: 28/04/2025 undefined contractual basis by order dated 24.8.2007. The petitioner herein also underwent the requisite training subsequent to such appointment. The petitioner herein also applied for the post of Van Pal Sahayak on 3.7.2009. It emerges that when the petitioner went for physical examination for the said post, it came to the notice of authorities that the petitioner's height was 145 cms only. Upon aforesaid coming to the notice of the respondent authority, the petitioner was once again sent for height verification to the Civil Surgeon, Junagadh. It emerges that upon perusal of the certificate dated 27.7.2009 duly produced at Annexure-R4, the petitioner's height is 145 cms.
8. At the time when the petitioner was appointed, the petitioner's height was shown as 150 cms as measured by Dr. Prafulla Dhabaria wherein the petitioner appeared at Sr. No.15. The aforesaid having come to the notice of the respondent authority, the Committee recommended to dismiss the petitioner and take action against Dr. Prafulla Dhabaria. In light of the undertaking which is produced on record at Page 14 of 19 Uploaded by K.K. SAIYED(HC00169) on Fri May 16 2025 Downloaded on : Sat May 17 05:24:37 IST 2025 NEUTRAL CITATION C/SCA/423/2010 JUDGMENT DATED: 28/04/2025 undefined Annexure-R7, it emerges that an undertaking is also given by the petitioner that the petitioner herein is appointed on probation period and as per the Government Resolution of the Finance Department dated 16.2.2006 Clause-4 which reads thus:-
"(4) Prior to this, I have not been removed / dismissed from Government Service and I have not been declared as disqualified for the Government Service. If it will be observed by the Government during the period of five years that I do not hold qualification for a government service, then it will be admissible to terminate the appointment given to me without giving any type of notice and without showing any reasons."
In the petitioner's declaration, the petitioner has declared that the petitioner would abide by the conditions of the respondent authority which is duly produced at Annexure-R7.
9. Reliance placed on the order passed in the Special Civil Application No.22681 of 2019 by CAV Judgment dated 8.2.2022, in the opinion of this Court, is not applicable in the Page 15 of 19 Uploaded by K.K. SAIYED(HC00169) on Fri May 16 2025 Downloaded on : Sat May 17 05:24:37 IST 2025 NEUTRAL CITATION C/SCA/423/2010 JUDGMENT DATED: 28/04/2025 undefined facts of the present case, wherein the services of temporary employee was terminated on the ground of misconduct which is stigmatic in nature. Under such circumstances, it was held that the allegations of misconduct is manifestly stigmatic, even though the petitioner was under contractual employment a fulfledged inquiry was required to be held.
In the facts of the present case, upon noticing that the petitioner's height is less than 150 cms., as per the requirement of the advertisement, as referred above, the height of the petitioner was verified by a Civil Surgeon wherein it was certified that the petitioner's height is less than 145 cms.
10. In light of the aforesaid, the impugned order came to be passed on 15.11.2009 assigning the reasons, as referred above wherein the height of the petitioner came to be noticed less than 150 cums. The aforesaid is noticed by the respondent authority wherein the petitioner's appointment is contractual and were terminable before completion of 05 years. In light of the undertaking given by the petitioner herein, no case is Page 16 of 19 Uploaded by K.K. SAIYED(HC00169) on Fri May 16 2025 Downloaded on : Sat May 17 05:24:37 IST 2025 NEUTRAL CITATION C/SCA/423/2010 JUDGMENT DATED: 28/04/2025 undefined made out to exercise extraordinary jurisdiction under Article 226 of the Constitution of India.
11. It is apposite to refer to the ratio laid down by the Hon'ble Supreme Court in case of Municipal Corporation of Greater Mumbai and Ors. vs. Vivek V. Gawde etc. etc. reported in 2024 SCC Online SC 3722. Paragraphs 19 and 20 of the said decision read thus:-
"19. We now proceed to consider the second relief claimed in the writ petition of the respondents, i.e., the challenge laid to the order passed by the Inquiry Officer. It is well settled that decisions rendered by administrative authorities can be interfered with by high courts in exercise of Article 226 powers, however, sparingly. Recently, this Court in W.B. Central School Service Commission v. Abdul Halim while considering the scope of interference under Article 226 in an administrative action held that:
"31. In exercise of its power of judicial review, the Court is to see whether the decision impugned is vitiated by an apparent error of law. The test to determine whether a decision is vitiated by error apparent on the face of the record is whether the error is self- evident on the face of the record or whether the error requires examination or argument to establish it. If an error has to be established by a process of reasoning, on points where there may reasonably be two opinions, it cannot be said to be an error on the face of the record, as held by this Court in Satyanarayan Laxminarayan Hegde v. Millikarjun Bhavanappa Tirumale [Satyanarayan Laxminarayan Hegde v. Millikarjun Page 17 of 19 Uploaded by K.K. SAIYED(HC00169) on Fri May 16 2025 Downloaded on : Sat May 17 05:24:37 IST 2025 NEUTRAL CITATION C/SCA/423/2010 JUDGMENT DATED: 28/04/2025 undefined Bhavanappa Tirumale, AIR 1960 SC 137] . If the provision of a statutory rule is reasonably capable of two or more constructions and one construction has been adopted, the decision would not be open to interference by the writ court. It is only an obvious misinterpretation of a relevant statutory provision, or ignorance or disregard thereof, or a decision founded on reasons which are clearly wrong in law, which can be corrected by the writ court by issuance of writ of certiorari.
32. The sweep of power under Article 226 may be wide enough to quash unreasonable orders. If a decision is so arbitrary and capricious that no reasonable person could have ever arrived at it, the same is liable to be struck down by a writ court. If the decision cannot rationally be supported by the materials on record, the same may be regarded as perverse.
33. However, the power of the Court to examine the reasonableness of an order of the authorities does not enable the Court to look into the sufficiency of the grounds in support of a decision to examine the merits of the decision, sitting as if in appeal over the decision. The test is not what the Court considers reasonable or unreasonable but a decision which the Court thinks that no reasonable person could have taken, which has led to manifest injustice. The writ court does not interfere, because a decision is not perfect.' (emphasis supplied)"
20. The decision was approved by a further decision of this Court in Municipal Council, Neemuch v. Mahadeo Real Estate, wherein it was held that:
"14. It could thus be seen that the scope of judicial review of an administrative action is very limited. Unless the Court comes to a conclusion that the decision-maker has not understood the law correctly that regulates his decision-making power or when it is found that the decision of the decision-maker is vitiated by irrationality and that too on the principle of 'Wednesbury Page 18 of 19 Uploaded by K.K. SAIYED(HC00169) on Fri May 16 2025 Downloaded on : Sat May 17 05:24:37 IST 2025 NEUTRAL CITATION C/SCA/423/2010 JUDGMENT DATED: 28/04/2025 undefined unreasonableness' or unless it is found that there has been a procedural impropriety in the decision-making process, it would not be permissible for the High Court to interfere in the decision-making process. It is also equally well settled that it is not permissible for the Court to examine the validity of the decision but this Court can examine only the correctness of the decision-making process.
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16. It could thus be seen that an interference by the High Court would be warranted only when the decision impugned is vitiated by an apparent error of law i.e. when the error is apparent on the face of the record and is self-evident. The High Court would be empowered to exercise the powers when it finds that the decision impugned is so arbitrary and capricious that no reasonable person would have ever arrived at. It has been reiterated that the test is not what the Court considers reasonable or unreasonable but a decision which the Court thinks that no reasonable person could have taken. Not only this but such a decision must have led to manifest injustice."
(emphasis supplied)"
12. In the facts of the present case for the reasons, as referred above, and the position of law, as referred above, no case is made out to exercise extraordinary jurisdiction under Article 226 of the Constitution of India. The present petition fails and the same stands dismissed. Rule is discharged.
(VAIBHAVI D. NANAVATI,J) K.K. SAIYED Page 19 of 19 Uploaded by K.K. SAIYED(HC00169) on Fri May 16 2025 Downloaded on : Sat May 17 05:24:37 IST 2025