Doing Discrimination Based On Aspirant’s Height In Services Having No Bearance & No Influence On Worker’s Performance Violates Fundamental Right: Rajasthan HC
|The Rajasthan High Court held that doing discrimination based on the height of an aspirant in services, where the individual’s height has no bearance and in no manner influence performance of the worker in job, violates fundamental right of that person.
The Jodhpur Bench held thus in a writ petition filed by a 25-year-old woman who was not given appointment for the post of Geologist by the State authorities, despite her eligibility.
A Single Bench of Justice Farjand Ali observed, “The post of Geologist does not fall under the category of a post with uniform like Police, Defence and Paramilitory Services, where rigid criteria of physique are required to be enforced. All the other candidates from the merit list have been afforded appointment and the petitioner has been deprived of the same on the basis of height, despite her being eligible and suitable in all aspects. Since the statutory rules framed regarding recruitment of the personnel in the Mines and Geology Service does not prescribe any minimum height for the candidates, thus, the act of the respondents in denying appointment to the petitioner is a discrimination based on physical attribute. Doing discrimination on account of height of an aspirant in services, where height of the individual has no bearance and in no manner influence performance of the worker in the job is certainly violative of his/her fundamental rights guaranteed by the Constitution of India.”
The Court added that being a constitutional court, it would not allow the executive or any department to do discrimination among candidates on this count alone when otherwise they are eligible.
Advocate K.D. Charan represented the petitioner while DyGC J.K. Mishra represented the respondents.
Facts of the Case -
The petitioner sought a direction to conduct her medical examination for the purpose of assessing her height and accord her appointment on the post of Geologist in pursuance of the advertisement with all consequential benefits. In 2016, the Rajasthan Public Service Commission (RPSC) published an advertisement inviting applications from eligible candidates for filling up various posts including 14 posts of Geologists for the Mines and Geology Department. The petitioner considering herself to be eligible for the same, submitted her application within the stipulated time in General Woman category.
The petitioner appeared in the interview and secured 66 marks and the cut off marks were 65. Thereafter, she appeared for medical examination and the respondents issued appointment letter to 20 candidates but the petitioner’s name was not included therein. On contacting the respondents, the petitioner was verbally informed that she was not given appointment due to not fulfilling the criteria of minimum height as she was having height of 139 cm against the required height of 140 cm. When no steps were taken by the authorities, the petitioner approached the High Court.
The High Court in view of the facts and circumstances of the case noted, “… neither the duties assigned to a Geologist has any nexus with height nor there is any possibility that a little shortness in height (1 cm) would hamper the work assigned. This opinion of the court is further fortified from the fact that certain classes of candidates are given relaxation in height criteria and they are supposed to do the exact same work, viz. Gorkhas, Garwalis, Assames and Nagaland Tribals etc., whose average height is distinctly lower. Even a person with locomotor disability or cerebral palsy is not debarred from appointment on the post of Geologist, rather in the advertisement dated 10.02.2016, one post has been kept reserved for LD/CP category.”
The Court further noted that the medical board itself is assigned discretion to recommend a candidate for appointment even if he or she does not fulfil the criteria provided under the instructions and under clause IV of the instructions, the State Government has reserved absolute discretion to accept or reject a candidate after considering the report of the medical board.
“… it is abundantly clear that the instructions dated 01.01.1975 are not mandatory in nature, rather they are guidelines issued for convenience. The statutory rules, i.e, The Rajasthan Mines and Geological Service Rules, 1960 nowhere prescribes any criteria of height for appointment to the post of Geologist. The Rules of 1960 were framed under Proviso to Article 309 of the Constitution and have statutory force. On the other hand, the Instructions dated 01.01.1975 are merely guidelines issued for convenience and cannot have statutory force and overriding effect upon the Rules of 1960”, it said.
The Court also referred to the judgment of the Supreme Court in the case of Ashok Ram Parhad & Ors. v. State of Maharashtra & Ors. [(2023) 03 SC CK 0046] in which it was held that in service jurisprudence, the service rules are liable to prevail.
The Court emphasised that simply because the petitioner is 1 cm short in height than the minimum height prescribed in the guidelines, she cannot be deprived from getting appointment for which she is fully eligible.
“Now almost five years have passed and the interim order is in currency in favour of the petitioner. The petitioner has suffered a lot of hardship and is facing recurring financial loss. … the action of the respondents in denying appointment to the petitioner on the post of Geologist is declared arbitary, perverse and against the principles of law as well. She is declared eligible for appointment”, it concluded.
Accordingly, the High Court allowed the writ petition and directed the respondents to grant appointment to the petitioner within two months.
Cause Title- Monika Kanwar Rathore v. State of Rajasthan & Ors. (Neutral Citation: 2024:RJ-JD:29258)
Appearance:
Petitioner: Advocates K.D. Charan and D.S. Sodha.
Respondents: DyGC J.K. Mishra and Advocate Rajesh Poonia.