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
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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.
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(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.
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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
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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
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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
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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
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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
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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
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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.
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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.
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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.
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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
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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
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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
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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
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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
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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
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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
