Gujarat High Court

Shobhanaben Mahendrabhai Rajput vs Gujarat State Road Transport ... on 4 May, 2022

Bench: Hemant M. Prachchhak

     C/LPA/578/2022                                ORDER DATED: 04/05/2022



           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/LETTERS PATENT APPEAL NO. 578 of 2022
                                  In
             R/SPECIAL CIVIL APPLICATION NO. 5269 of 2022

================================================================
              SHOBHANABEN MAHENDRABHAI RAJPUT
                            Versus
          GUJARAT STATE ROAD TRANSPORT CORPORATION
================================================================
Appearance:
MR GAURANG K CHAUHAN(9858) for the Appellant(s) No.
1,10,11,12,13,14,15,16,17,18,19,2,20,21,22,23,24,25,26,27,28,29,3,30,31,32,
33,34,35,4,5,6,7,8,9
MR RAJESH CHAUHAN FOR MR HS MUNSHAW(495) for the
Respondent(s) No. 1
================================================================

 CORAM:HONOURABLE MR. JUSTICE R.M.CHHAYA
       and
       HONOURABLE MR. JUSTICE HEMANT M.
       PRACHCHHAK

                          Date : 04/05/2022
                           ORAL ORDER

(PER : HONOURABLE MR. JUSTICE R.M.CHHAYA)

1. By way of this intra-court appeal under Clause 15 of the

Letters Patent Appeal, the appellants - original petitioners have

challenged the impugned common judgment and order dated

05.04.2022 passed by the learned Single Judge.

2. Following facts emerge from the record of the appeal.

3. The respondent - Corporation gave an advertisement for

recruitment of the bus conductor and invited online application

from 01.11.2019 to 30.11.2019. The appellants applied for the

C/LPA/578/2022 ORDER DATED: 04/05/2022

post of bus conductor pursuant to the said advertisement under

respective applications. The appellants, thereafter, appeared in

the written test and were called for verification of the height as

well as documents. Record indicates that as per the prescribed

limit, the minimum height of candidate for the said post was 160

cms for male and 152 cms for female. Record further indicates

that the height of the appellants was measured twice by scale

and it was found that the height of the appellants is lesser than

the prescribe limit and, therefore, the appellants were not

considered for the post of the recruitment of the bus conductor.

The said action came to be challenged by the appellants by way

of filing writ petition with the following prayers.

(A) YOUR LORDSHIP may be pleased to issue a writ of mandamus and / or any other appropriate writ, order or direction holding the rejection of the petitioners from the recruitment process commenced pursuant to the public advertisement issued by the respondent, vacancies of bus conductor (Annexure - A) as an unjust, improper, arbitrary and illegal act and an act bad in law.

(B) YOUR LORDSHIP may be pleased to issue a writ of mandamus or any other appropriate writ, order or direction directing the respondent to consider the petitioners eligible for the post of bus conductor advertised by the advertisement issued by the respondent (Annexure - A).

(C) Pending admission, hearing and final disposal of the present petition, YOUR LORDSHIP may be pleased to issue direction to an independent agency to re-measure the height of the petitioners by digital measurement and produce the same before the Hon'ble Court.

C/LPA/578/2022 ORDER DATED: 04/05/2022

(D) Pending admission, hearing and final disposal of the present petition, YOUR LORDSHIP may be pleased to direct the respondent to keep one post vacant while preparing final select list for the post of bus conductor.

(E) To pass such other further order as deemed fit in the facts and circumstances of the case.

4. Learned Single Judge, after considering the submissions

made by learned counsel for the appellant, dismissed the

petition. Being aggrieved by the same, the present appeal is

filed.

5. Heard Mr.Gaurang Chauhan, learned counsel appearing for

the appellant and Mr.Rajesh Chauhan, learned counsel for Mr.H.

S. Munshaw, learned counsel appearing for respondent on

caveat.

6. Mr.Gaurang Chauhan, learned counsel appearing for the

appellants specifically invited the attention of this Court to the

fact that as per conditions, the height was to be measured as per

automatic machine, whereas, in the instant case, it was

measured twice by applying the scale and the same has resulted

prejudice to the appellants and, therefore, this Court may

interfere. He further contended that such illegality and

irregularity has been committed by respondent while considering

the applications of the appellants. He also contended that

C/LPA/578/2022 ORDER DATED: 04/05/2022

appropriate order for measurement of the height of the

appellants be passed. On the aforesaid grounds, Mr.Chauhan,

learned counsel appearing for the appellants contended that the

appeal be entertained and the same be allowed as prayed for.

7. Per contra, Mr.Rajesh Chauhan, learned counsel appearing

for respondent has supported the impugned judgment and order

of the learned Single Judge. He has submitted that the appeal

being meritless deserves to be dismissed.

8. Upon considering the submissions made on record of this

appeal, it appears that as may as 35839 candidates were found

to be eligible for the written test which was held on 05.09.2021.

The result was declared on 22.12.2021 wherein 13878

candidates were declared successful in the written test. The

provisional list was prepared in the ratio of 1:1.5 and merit list of

3581 candidates came to be declared. Record indicates that out

of the said 3581 candidates, when height was measured for the

first time, 354 candidates were declared unsuccessful only

because of the height and, therefore, respondent undertook

exercise again to remeasure to see that no injustice is caused to

such candidates. As noted by learned Single Judge, out of 354

candidates, 296 candidates remained present wherein the

C/LPA/578/2022 ORDER DATED: 04/05/2022

appellants were the candidates of them and 129 candidates were

found to be satisfying the criteria of minimum height and 167

candidates were unsuccessful. It has also come on record that

such exercise was done on a new folding scale length

measurement instrument which was certified by the office of the

Controller, Legal Methodology Office, Gujarat State, Gandhinagar

and re-measurement of height was taken in presence of

Dr.Mayank Patel, Honorary Medical Officer of the Corporation and

qualified M.B.B.S. Doctor from Civil Hospital. Even though, such

exercise was undertaken, the appellants did not clear the

minimum height qualification. The learned Single Judge observed

thus in para-8 and 9:

"8. What unfolds from the aforesaid exercise and from what the affidavit indicates is that after the preparation of the merit list of 3581 candidates, the remeasurement of height was done on two occasions. All unsuccessful candidates, 354 in number, who failed to qualify on account of height were once again called. Of the 354 candidates, 296 candidates remained present, of which, 167 were unsuccessful.

9. Fresh exercise was carried out where all 3581 candidates on the merit list had given an opportunity of having their height measured on a Scale Certified to be appropriated by the Controller, Legal Metrology Office, Gandhinagar in the presence of medical professionals. Having failed to qualify the height standards, the Court in its exercise under Article 226 of the Constitution of India will not sit in appeal in context of remeasurement of height when the exercise has been appropriately undertaken by the authority. Accordingly, both these petitions are dismissed. No costs. Notice stands discharged.

C/LPA/578/2022 ORDER DATED: 04/05/2022

9. We are in total agreement with the observations made by

the learned Single Judge more particularly we find that though

advertisement does not prescribe for remeasurement in order to

ruleout any possibility of injustice to 354 candidates, who did not

clear minimum requirement height, it was remeasured. In such

circumstances, only on the grounds raised by learned counsel

appearing for the appellants that it was no automatic, is of no

avail. Even considering the affidavit, which was filed before the

learned Single Judge, it appears that the learned Single Judge

has rightly come to the conclusion that in exercise of jurisdiction

under Article 226 of the Constitution of India, this Court cannot

sit in an appeal. In view of the above, no illegality is found in the

impugned judgment and order and the appeal being meritless

deserves to be dismissed and accordingly, it is dismissed.