An upfront issue , in its legal connotation , in the case is that though body height of persons is a homogeneous dimension but can an a gender homogeneity , ...
No Acts & Articles mentioned in this case
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
(through Virtual Mode from Jammu)
Reserved on : 18.11.2022.
Pronounced on: 06.09.2023.
WP(C) No. 1757/2021
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1. Afshana Anjum Baba, Aged 31 years,
D/o Mubarak Ahmad Baba,
R/o Manzgam Kulgam.
2. Khuban, Aged 28 years,
D/o Shakeel Ahmad Buch,
R/o Buchpora Srinagar.
3. Shiba Z ahoor, Aged 29 years,
D/o Zahoor Ahmad Rather,
R/o Buchpora Srinagar.
4. Bibi Nighaar, Aged 28 years,
D/o Qazi Abdul Qadoos,
R/o Tangdar Kupwara.
5. Basira Mehraj, Aged 28 years,
D/o Mehraj u Din Bhat,
R/o Tarigam Kulgam.
6. Saima Qamar, Aged 28 yrs,
D/o Mohammad Aslam,
R/o Poonch, Jammu.
7. Azeem Raja, Aged 29 years,
D/o Ghulam Rasool,
R/o Shah Mohalla, Nawab Bazar,
Srinagar.
8. Ghulam Ahmad Najar, Aged 41 years,
S/o Gh. Rasool Najar,
R/o Kralpora, Kupwara.
…..Petitioner(s)
Through: Mr. Salman Khursheed, Sr. Advocate with
Mr. Shah Faizal , Ms. Sakshi Kotiyal & Ms. A r ifa
Rashid, Advocate .
Vs
2023:JKLHC-SGR:2177-DB
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1. Union Territory of Jammu & Kashmir
through its Chief Secretary,
Government of J&K, Civil Secretariat,
Srinagar/Jammu.
2. Commissioner Secretary to Government,
Forest Department, Civil Secretariat,
Srinagar /Jammu.
3. J&K Public Service Commission
through its Secretary,
Solina Srinagar/Resham Ghar Colony
Jammu.
4. Kafel Ahmad Mir, Aged 37 years,
S/o Abdul Rehman Mir,
R/o Sadura Anantnag.
5. Javaid Iqbal Bhat, Aged 31 years,
S/o Mauzam Ali,
R/o Kanelwan Bijbehara.
6. Farooq Ahmad Parray, Aged 27 years,
S/o Ghulam Qadir Parray,
R/o Tulmulla, Ganderbal.
7. Mohammad Saleem Wani, Aged 39 years,
S/o Habibullah Wani,
R/o Yore, Khosipora Qazigund,
Anantnag.
8. Majid Hussain, Aged 36 years,
R/o Nazeer Ahmad Gangoo
R/o Lal Bazar, Srinagar.
9. Raja Shoaib, Aged 40 years,
S/o Abdul Hamit Bhat,
R/o 43, Kohsheen House,
Rajbagh , Ext. Srinagar.
.…. Respondent(s)
Through: Mr. D. C. Raina, AG with Mr. Fayaz Ahmad Bhat,
AAG & Mr. Sajjad Ashraf, GA for R- 1& 2.
Mr. M. Y Bhat, Sr. Advocate with Mr. Hamza
Prince, Advocate for R-3.
Mr. Jahangir Iqbal Ganai, Sr. Advocate with
Mr. Murfat Naseem, Advocate for R- 4 to 7. 2023:JKLHC-SGR:2177-DB
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Mr. A. Haqani, Sr. Advocate with Mr. Shaqir
Haqani, Ms. Malika Rashid Wani, Advocate and
Mr. Aasif Wani, Advocate for R-8.
Mr. R. A. Jan. Sr. Advocate with
Mr. Aswad Attar, Advocate & Mr. Taha Khalil,
Advocate for R-9.
Coram: HON’BLE MR. JUSTICE RAJNESH OSWAL, JUDGE
HON’BLE MR. JUSTICE RAHUL BHARTI, JUDGE
JUDGMENT
Per: Rahul Bharti-J
WP(C) No. 1757/2021
01. An upfront issue, in its legal connotation, in the case is
that though body height of persons is a homogeneous dimension
but can an agender homogeneity, equalizing male and female, be
prescribed and applied in a selection process with respect to public
employment to proclaim that it amounts to equality of height
prescription under article 14 of the Constitution of India purporting
no discrimination, directly or indirectly, against female candidates.
02. Mount Everest, standing at the height of 29030 ft., with a
claim of being the highest point on Earth, succumbed to ascent by 6
ft. tall Sir Edmund Hillary in May, 1953 and 5 ft. tall Junko
Ishibashi in May, 1975 making them first man and woman to be at
the peak of the Mt. Everest to be followed in their footsteps by many
men and women to scale the peak. As the long height was not an 2023:JKLHC-SGR:2177-DB
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advantage for Sir Edmund Hillary, so was the short height not a
handicap for Junko Ishibashi to conquer the Everest. However,
given to the then Govt. of Jammu & Kashmir and also for the
Jammu & Kashmi r Public Service Commission, seven (7) female
candidates, found short in height by two or three inches but
otherwise found meritorious to be in final select list , are not to be
reckoned height fit to be Range Officer Grade-I in the J&K Forest
(Gazetted) Service. Present case has this scenario presenting before
us for adjudication at the call and challenge of said 7 (seven) female
candidates.
03. Our judgment holds the key whether the seven (7) female
candidates are to ascend peak of their achievement to become
Range Officer Grade-I or to descend to the abyss of absurdity of a
rule relating to the height requirement which is meaning to play foul
against their recommendation for appointment.
04. A relevance serving opening to this judgment is catching
the contour of the case at the outset and that is as to whether with
respect to an employment/recruitment in /to public service, a
prescribed physical standard, in terms of height and chest
measurement, can be agender without bearing any distinction
between two sexes i.e. male and female; and whether on that basis
seven (7) female candidates, who competed amongst 567 2023:JKLHC-SGR:2177-DB
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contestants to come out fully qualified on the basis of written test,
interview and walk test so as to figure in final selection list of 28
candidates against 44 posts under selection , can be faltered at the
last step to appointment just because their height is found to be
short by few inches to the agender prescribed height standard.
05. Thus, the present case engages this court pitted with a call
to pick between a status quo of the recruitment rule which means to
choke merit backed entitlement of said seven female candidates for
recommendation for appointment or the constitutional commitment
of policy and polity under the Constitution of India which aims to
empower women in all walks of national life by doing away with
every conceivable roadblock propping up in the way so as to enable
women to excel and stand tall on their merit in the social and public
life.
06. Hardware (facts) of this case needs to be set out in
chronology before we come to software (legal issue) involved for
adjudication in the matter. Hardware component of this case has
multiple situations which have converged to give rise to this case.
We shall proceed with the chronology of the facts and situations
governing and attending the case.
Chronology of the case 2023:JKLHC-SGR:2177-DB
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07. Vide Statutory Rule and Order (“SRO” in short) no. 359
dated 24.07.1970 framed by reference to Proviso to section 124 of
the then obtaining Constitution of Jammu & Kashmir (akin to
Proviso to article 309 of the Constitution of India), Jammu &
Kashmir Forest (Gazetted) Service Recruitment Rules, 1970 came to
be framed thereby creating and constituting the gammu & Kashmir
Forest (Gazetted) pervice of the then State of Jammu & Kashmir
(now of the UT of Jammu & Kashmir)K
08K In the composition of the said service, as originally
contemplated in terms of said SRO-359 of 1970, the post of Range
Officer-I was not figuring in the cadre of Jammu & Kashmir Forest
(Gazetted) Service. The post of Range Officer-I in the said Service
was a late addition by virtue of SRO-106 of 1992 dated 30.04.1992
when the post of Range Officer Class-V came to be provided in the
cadre of Jammu & Kashmir Forest (Gazetted) Service.
09. In terms of this SRO 106 of 1992, as is gatherable from the
very original text of it, the physical standard requirements for direct
recruitment came to be prescribed as under:-
a. Height -163 cms;
b. Chest girth (fully expanded) 184 cms;
Chest expansion 5 cms; 2023:JKLHC-SGR:2177-DB
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c. Physical test consisting of a walk of 25 kms to be
completed in 4 hours;
d. Physical fitness certification from Chief Medical Officer.
10. As per this SRO-106 of 1992 to be read as part and parcel
of parent SRO 359 of 1970, there is no gender distinction conceived
and provided between male and female candidate /s or for that
matter even region-wise candidates in terms of height, chest and
physical endurance walk requirement.
11. In this SRO-106 of 1992, as per the text, the required chest
girth fully expanded is 184 cms, which though seems to be a case of
typographical mistake as same is 84 cms but nevertheless remained
un-amended and uncorrected. This aspect has a passing reflection
on the mindset on the part of the rule making authority as would be
adverted to later on in the judgment.
12. The physical qualification for direct r ecruitment so
prescribed in terms of SRO-106 of 1992 for the post of Range Officer
Gazetted came to be revised vide SRO-264 dated 27.08.1998. The
revised physical standard qualification for direct recruitment, as
come to be provided under said SRO-264 of 1998, is as follow:-
(a) (i) Height for general category 5.6 feet
(ii) Height for candidates belonging
to districts Leh & Kargil.
5.4 feet 2023:JKLHC-SGR:2177-DB
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The rest of the parameters with respect to chest and walk
test remained same as provided in SRO-106 of 1992.
13. The aforesaid revised physical requirements so prescribed
also maintained agender nature i.e. no gender distinction in terms
of height/chest between male and female candidate/s aspiring to
get selected for the post of Range Officer in the Jammu & Kashmir
Forest (Gazetted) Service. It may be fitting not to miss a mention
here that perhaps that is the reason that very few women were able
to join the service as Range Officer since the introduction of the Post
in 1992 till date.
14. Thus, from SRO-106 of 1992 to coming into force of SRO-
264 of 1998 on 27.08.1998, the height requirement for direct
recruitment aspiring candidate/s had remained 163 cms which is
equivalent to 5 feet 4.173 inches, whereas under revised rule
position w.e.f 27/08/1998 the height requirement came to be 167.6
cms being equivalent to 5.6 feet for General category and for Leh &
Kargil districts candidates height requirement came to be 5.4 feet
which is equivalent to 164.5 cms.
Present Case Setup
15. In the context of the selection exercise, being the subject
matter in the present case, for the posts of Range Officers Grade-I
Forest (Territorial) in the Jammu & Kashmir Forest (Gazetted) 2023:JKLHC-SGR:2177-DB
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Service, the Department of Forest, Ecology and Environment, Govt.
of Jammu & Kashmir, vide its letter no. FST/Ser/80/2017 dated
08.02.2018, came to refer forty four (44) posts of Range Officers
Grade-I Forest (Territorial) to the Jammu & Kashmir Public Service
Commission (“JKPSC” in short). Range Officer GradeJI is a gazetted
post with Pay Scale of Rs. 930MJ348000 with grade pay of Rs. 4280 (
preJrevised)K
16K The break up of forty four (44) posts as referred for
selection comprised of 25 posts in Open Merit (OM) and 19 posts in
Reserved category in the manner of 9 posts under Reserved
Backward Area (RBA), 3 under Schedule Caste (SC), 05 under
Scheduled Tribe (ST) and 2 posts under Actual Line of Control
(ALC). Pursuant to this requisition from the J&K Forest, Ecology
and Environment Department, Govt. of J&K, the JKPSC came to
issue a selection advertisement n otification no
PSC/Exam/2018/19 dated 15.03.2018 inviting applications from
the permanent residents of the then State of Jammu & Kashmir for
appearing in the competitive examination for direct recruitment to
the posts of Range Officers Grade-I Forest (Territorial) in accordance
with the rules laid down vide said SRO-359 dated 24.07.1970 and
SRO-432 dated 28.12.2007 read with the J&K Public Service
Commission (Conduct of Examination) Rules, 2005. 2023:JKLHC-SGR:2177-DB
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17. In the advertisement notification with respect to the
Eligibility conditions figuring at clause – (3) A & C, qualification
required and prescribed with respect to educational and physical
standards was mentioned. A candidate was required to be
possessing B. Sc. Forestry as qualification. A candidate was
required to possess physical standard in terms of prescribed height
of 5.6 feet for General and 5.4 feet for Leh & Kargil region; 84 cm
chest girth fully expanded and chest expansion 05 cm. A walk of 25
km to be completed in four (4) hours as a physical endurance test
requirement was also mentioned in the clause JC to Eligibility
condition clause P(C)(v) of the said advertisement notificationK
18K Process of submission of application forms started in the
year 2018 from 19.03.2018 to 20.04.2018 when out of 575
applications finally received, 567 applications were found to be in
order for the applicants to sit in the written examination which was
conducted in the year 2019 from 20.03.2019 to 14.04.2019.
19. Out of this written examination with 567 candidates
appearing, 40 candidates came to be shortlisted for viva-voce
(interview). Roll number and name wise position of said 40
candidates is as under:-
BD
No.
Roll No. Name of the Candidate MCAT Marks 2023:JKLHC-SGR:2177-DB
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1. 190013 Mir Faizan Anwar OM 426.00
2. 190016 Yasir Amin OM 417.50
3. 190019 Suhail Ahmed Wani OM 383.50
4. 190031 Rameez Raja RBA 430.50
5. 190038 Kaffel Ahmad Mir OM 371.00
6. 190046 Arooq Ahmad Shah RBA 404.00
7. 190059 Azeem Raja OM 400.00
8. 190064 Shiba Zahoor OM 395.00
9. 190065 Adnan Ahmat Bhat OM 408.00
10. 190069 Gh. Ahmad Najar RBA 392.00
11. 190070 Javid Ahmad Chopan RBA 381.50
12. 190074 Basira Mehraj OM 420.00
13. 190082 Sofi Farhan Meeraj OM 419.00
14. 190095 Prince Ahmad Mir OM 334.50
15. 190096 Khuban OM 408.00
16. 1900107 Mir Rizwan Qazi OM 312.50
17. 1900109 Afshan Anjum Baba RBA 385.50
18. 1900117 Majid Hussain OM 343.00
19. 1900118 Iavaid Iqbal Bhat OM 353.00
20. 1900121 Rayees Ahmad Tantray OM 398.50
21. 1900123 Nesa Imtiyaz OM 412.50
22. 1900148 Mudasir Ahmad Shah RBA 404.00
23. 1900153 Reyaz Rasool Malik OM 328.00
24. 1900161 Basharat Ajaz Khan ALC 404.00
25. 1900272 Raja Shoaib OM 378.00
26. 1900347 Haroon Mushtaq RBA 410.00
27. 1900355 Deskyong Namgyal ST 344.50
28. 1900362 Saqib Murtaza OM 433.50
29. 1900364 Saima Qamar ST 398.00
30. 1900365 Rakesh Singh OM 396.50
31. 1900368 Farooz Ahamad Parray OM 361.00
32. 1900373 Anil Kumar Bhagat SC 389.50
33. 1900376 Parvaiz Ahmad Shagoo OM 373.50
34. 1900380 Bibi Nagaar OM 381.50
35. 1900395 Sameer Ahmad OM 379.50
36. 1900396 Sameer Ahmed RBA 327.50
37. 1900403 Aurang Zeb ST 371.50
38. 1900421 Mohd Saleem Wani OM 368.50
39. 1900439 Vinod Kumar Sharma RBA 324.50 2023:JKLHC-SGR:2177-DB
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40. 1900571 Naveed Ahmad Padder OM 343.50
It is pertinent to mention here that though the posts
referred and advertised for selection were 44 but only 40 candidates
came to pass through the written examination, meaning thus as
against the demand the supply was found short. Composition of this
40 shortlisted candidates was that 26 candidates were in open merit
(OM) category, 9 in Resident of Backward Area (RBA) category, 3 ST
and 1 SC category.
20. The JKPSC, vide its notification no. PSC/Exam/56/2019
dated 25.06.2019, came to declare the names and roll numbers of
said 40 candidates qualifying the written examination and found
eligible for the next stage of selection process i.e., viva-voce
(interview). It is pertinent to mention here that eight (8) writ-
petitioners and six (6) private respondents no. 4 to 9 herein all
figured in this list of 40 candidates eligible for the interview stage of
selection. All the petitioners and the private respondents, except
the petitioner no. 1-Afshan Anjum (RBA) and the petitioner no. 6-
Saima Qamar (ST), were open merit (OM )competitors.
21. Interviews came to be conducted from 29.07.2019 to
31.07.2019. Out of said 40 candidates so interviewed, 29 (twenty-
nine) candidates came to be further shortlisted by the JKPSC, vide 2023:JKLHC-SGR:2177-DB
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its notification no. PSC/Exam/67/2019 dated 20.09.2019 meant for
29 posts‟ appointment and leaving remaining 15 posts with no race
for selection. paid 15 posts comprised of 7 RBA posts, 3 SC posts, 3
ST posts and 2 ALC posts which thus fell out of purview of the
selection process.
22K In this list of twenty nine (29) candidates, eight (8) came to
be female candidates and twenty one (21) male candidates. This list
of eight (8) female candidates included the writ petitioners no. 1 to
7 whereas the private respondents no. 4 to 9 failed to find place in
the list of twenty one (21) male candidates. This is a very important
statistic and aspect in the context of the case to be kept in constant
perspective. It is at this stage of the selection process that the issue
of height deficit of eight (8) female candidates in the select list of
twenty eight (28) candidates cropped up to come into play.
23. Of twenty nine (29) interview qualifying candidates, all
male and female candidates were subjected alike to physical test of
25 km walk in four hours which was held on 01.10.2019 and its
outcome was conveyed on 03.10.2019 by the Director General,
Youth Services & Sports, J&K Govt. to JKPSC whereby out of said
twenty nine (29) candidates only twenty eight (28) were declared
qualified in said walk test as well whereas one (1) candidate did not 2023:JKLHC-SGR:2177-DB
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appear leaving only twenty eight (28) candidates as final merit
drawn claimants for recommendation for appointment.
24. Thus, the selection race finally came to be with a best find
of 28 candidates having cleared the written test, interview and
physical endurance test warranting a recommendation for
appointment as foregone conclusion. List of said twenty eight (28)
candidates, inclusive of the petitioners‟ names as shown in boldI is
as under:J
Sr. No. Name of the Candidate
1. Rameez Raja
2. Mir Faizan Anwar
3. Sofi Farhan Meeraj
4. Yasir Amin
5. Neesa Imtiyaz
6. Adnan Ahmad Bhat
7. Mudasir Ahmad Shah
8. Basharat Ajaz Khan
9. Arooq Ahmad Shah
10K Rayees Ahmad Tantray
11K Anil Kumar Bhagat
12K Suhail Ahmad Wani
13K Javiad Ahmad Chopan
14K Sameer Ahmad
15K Vinod Kumar Sharma
16K Sameer Ahmed
17K Rakesh Singh
18K Deskyong Namgyal
19K Aurang Zeb 2023:JKLHC-SGR:2177-DB
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20. Haroon Mushtaq
21. Basira Mehraj
22. Khuban Buch
23. Azeem Raja
24. Saima Qamar
25. Shiba Zahoor
26. Gh. Ahmad Najar
27. Afshan Anjum Baba
28. Bibi Nagaar
25. In this list of twenty eight (28) shortlisted candidates, the
merit-wise position of eight (8) female candidates, seven (7) of them
being the writ petitioners no. 1 to 7 herein, is as under:-
i) Neesa Imtiyaz-Rank 7.
ii) Basira Mehraj – Rank 4 (Petitioner no. 5)K
iii) Khuban – Rank 9 (Petitioner no. 2)K
ivF Azeem Raja – Rank 14 (Petitioner no. 7)K
v) Saima Qamar – Rank 1S (Petitioner no. 6)K
viF Shiba Zahoor – Rank 18 (Petitioner no. 3)K
vii) Afshan Anjum Baba – Rank 2O (Petitioner no. 1FK
viiiF Bibi Nighaar – rank 24 (Petitioner no. 4)K
26K Out of twenty eight (28) finally selected candidates, drawn
out of written examination, interview and physical endurance test,
waiting to be recommended finally for appointment subject to the
formality of medical examination, nineteen (19) candidates were 2023:JKLHC-SGR:2177-DB
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reported medically fit for being recommended to the Govt., for
appointment to the Service. This medical fitness aspect included the
physical measurement aspect in terms of height and chest
prescribed for the candidates.
27. With respect to fifteen (15) candidates, borne out of these
nineteen (19) all cleared candidates , there was found to be no issue
whatsoever for their onward recommendation for appointment to the
State Govt., by the JKPSC and accordingly said fifteen (15)
candidates came to be so recommended by the JKPSC . These fifteen
(15) candidates are enlisted as under:-
Sr.
No.
Roll No.
Name of the
Candidate
Category Marks
1. 1900031 Rameez Raja RBA/OM 430.50
2. 1900013 Mir Faizan Anwar OM 426.00
3. 1900082 Sofi Farhan Meeraj OM 419.00
4. 1900016 Yasir Amin OM 417.50
5. 19000123 Neesa Imtiyaz OM 412.50
6. 1900065 Adnan Ahmad Bhat OM 408.00
7. 19000148 Mudasir ahmad Shah RBA/OM 404.00
8. 19000161 Basharat Ajaz Khan ALC/OM 404.00
9. 1900046 Arooq Ahmad Shah RBA/OM 404.00
10. 19000121 Rayees Ahmad Tantray OM 398.50
11. 19000373 Anil Kumar Bhagat SC/OM 389.50
12. 1900019 Suhail Ahmad Wani OM 383.50
13. 1900070 Javiad Ahmad Chopan RBA/OM 381.50
14. 1900395 Mushtaq Hussain OM/IS 379.50
15. 1900439 Kuldeep Raj Sharma RBA 324.50
2023:JKLHC-SGR:2177-DB
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Out of these fifteen (15) candidates, fourteen (14) are males
and one (1) female. Fifteen (15) candidates came to be recommended
under open merit (OM) category and one (1) candidate as RBA
category. The only female candidate, who came to figure in the list of
fifteen (15) recommended candidates for appointment , is Nissa
Imtiyaz. This is a very relevant statistic to be taken note of that in
the final list of 28 candidates , 8 came to be women and 20 men
whereas in the list of 15 recommended for appointment only one (1)
happens to be woman and 14 men.
28. However, with respect to four (4) out of these nineteen (19)
candidates found medically fit, said four (4) candidates‟ onward
recommendations got held up because of their getting named along
with the writ petitioners herein as respondent nos. 3 to 14 in a writ
petition WP(C) no. 3182/201V titled “Majid Hussain Vs State of
J&K and others”. With respect to these four E4) candidates, the
issue was concerning the status of their academic qualification in
terms of their academic degrees from nonJICAo rniversities.
29K After the screening of nineteen (19) candidates as medically
fit out of finally shortlisted twenty eight (28) candidates, eight (8)
candidates left over are those with respect to whom the issue of
height factor came to be cited in the manner that as against the
respective medical certificates provided by them with respect to their 2023:JKLHC-SGR:2177-DB
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respective heights, their actual height in the medical examination
was found out to be falling short of the requisite height of 5.6 feet
for general category.
30. Out of said eight (8) candidates, seven (7) candidates
happened to be the females and one male, all of them now being the
writ petitioners in the present case before us. In this regard, the
status of their respective height-wise position is given as under:-
Sr.
No.
Name of the Candidate Height as
per
certificate
Height as per
medical report
1. Afshan Anjum Baba (Female) 170 cm 5.2 ½ feet
2. Khuban (Female) 5.3 feet 5.2 feet
3. Shiba Zahoor (Female) 5.6 feet 5.4 ½ feet
4. Bibi Nighaar (Female) 170 cm 5.5 feet
5. Basira Mehraj (Female) 5.6 feet 5.4 ½ feet
6. Saima Qamar (Female) 5.5 feet 165 cm
7. Gh. Ahmad Najar (Male) 5.6 feet 5.4 feet
8. Azeem Raja (Female) 5.6 feet 4.10 feet
31. While the situation came to be so confronting the JKPSC
with respect to 28 finally shortlisted candidates meant for
recommendation for appointment out of which only 15 being found
medically fit to be recommended and others having issue on
account of qualification status and women candidates having
physical requirement height status, the JKPSC, acting through its
Secretary, came to address a letter no.
PSC/Exam/RO(Forest)/2018 /1 dated 18.10.2019 to the 2023:JKLHC-SGR:2177-DB
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Department of Forest, Ecology & Environment, Govt., of Jammu &
Kashmir with respect to issue of shortlisted female candidates in the
list of twenty (28) candidates found with shortage in height while
the SRO 359 of 1970 was providing for one height requirement for
male and female thus warranting a recheck in the rule matter.
32. In this backdrop of the situation, very first writ petition
WP(C) no. 3145/2019 titled “Kaffel Ahmad Mir and others ss
State & others” came to be preferred by six E6) male candidates in
which they came to question the very entitlement of the candidates
figuring in the list of 28 candidatesI carrying deficiency of heightI to
appear in the selection process itself. These six (6) male competitors
thus sought the ouster of eight (8) female candidates from the merit
list and correspondingly asking for redrawing of the merit list
composition by their inclusion i.e. of said six E6) male candidates in
the merit list for purpose of their consequent recommendation for
appointment. All these six male candidatesI as petitioners in the
writ petition WP(C) no. 3145/201VI are the candidates who had
figured in the list of 40 shortlisted for interview stage of competition
but failing to make it beyond interview stageK
33K In said writ petition WP (C) 3182/2019, the respondent
nos. 6 to 17 were named as under:- 2023:JKLHC-SGR:2177-DB
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i) Basira Mehraj-as respondent no. 6,
ii) Neesa Imtiyaz – as respondent no. 7,
iii) Khuban– as respondent no.8,
ivF Mudasir Ahmad Shah– as respondent no.9,
v) Arooq Ahmad Shah– as respondent no.10,
viF Azeem Raja– as respondent no.11,
vii) Saima Qamar– as respondent no.12,
viiiF Shiba Zahoor – as respondent no.13,
ixF Gh. Ahmad Najar– as respondent no.14,
x) Afshan Anjum Baba– as respondent no.N5,
xiF Javid Ahmad Chopan– respondent no.16 &
xii) Bibi Nagaar– respondent no.17K
The writ petitioners herein wereI thusI all figuring in this
array of twelve (12) respondents.
34K In said writ petition filed before this court, then existing as
High Court of Jammu & Kashmir, an interim order dated
29.10.2019 came to be passed carrying an interim direction for the
JKPSC to make recommendation in favour of only those candidates
who met the physical standards in accordance with the rules.
35. The aforesaid writ petition came to be followed in its
footstep with institution of a writ petition WP(C) no. 3182/2019
titled “Majid Hussain Vs State & others” in which the inclusion of
twelve (12) candidates, as figuring in the list of twenty eight (28) 2023:JKLHC-SGR:2177-DB
21 WP(C) No. 1757/2021
c/w
WP(C) No. 345/2022
finally shortlisted candidates out of written and interview, came to
be questioned on the ground of lack of prescribed
qualification/standard, both educational as well as physical. The
petitioner Majid Hussain in the abovementioned writ petition is also
one of candidates figuring in the list of forty (40). The candidates
whose selection to figure in list of twenty eight (28) candidates came
to be so questioned are as under:-
i. Haroon Mushtaq – respondent no. PI
iiK Rakesh Singh – respondent no.4I
iii. Aurangzaib– respondent no.RI
ivK Deskyong Namgyal – respondent no.6,
v. Basira Mehraj– respondent no.7,
viK Khuban – respondent no.8,
vii. Azeem Raja– respondent no.9,
viiiK Saima Qamar– respondent no.10I
ixK Shiba Zahoor– respondent no.11I
x. Afshan Anjum Baba – respondent no.12I
xiK Gh. Ahmad Najar – respondent no.13 &
xii. Bibi Nagaar – respondent no.14K
The petitioners herein were again figuring in this array of
twelve (12F respondents.
36K In this writ petition, in terms of an interim order dated
02.11.2019, the learned Single Bench of this High Court came to
order stay of the selection of the afore-named persons figuring as 2023:JKLHC-SGR:2177-DB
22 WP(C) No. 1757/2021
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WP(C) No. 345/2022
respondent nos. 3 to 14 in said writ petition. It is pertinent to
mention here that out of these 12 respondents no. 3 to 14, 9
respondents were pointed out as lacking the requisite height and 3
respondents objected in the context of their degree status.
37. In view of the interim direction so passed in the aforesaid
two writ petitions, the JKPSC , vide its communication no.
PSC/Exam/RO(Forest)/2018/1 dated 13/11/2019, had came to
recommend the names of fifteen (15) candidates only as being
undisputed out of twenty (28) candidates to the Department of
Forest, Ecology & Environment, Govt., of J&K for the purpose of
consequent appointments leaving thirteen (13) candidates un-
recommended.
38. Pursuant to the recommendations so made by the JKPSC
with respect to fifteen (15) candidates for appointment as a Range
Officer Grade-I, the respondent no. 1- Department of Forest, Ecology
and Environment, Govt., of UT of Jammu & Kashmir came forward
with a Govt. Order no. 519-JK(Est) of 2019 dated 25.11.2019
thereby ordering appointment of fifteen (15) candidates as Range
Officers Grade-I in the Pay-Scale of Level 6E (35900-113500).
39. With respect to remaining un-recommended thirteen (13)
candidates, twelve (12) candidates are the ones whose participation 2023:JKLHC-SGR:2177-DB
23 WP(C) No. 1757/2021
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WP(C) No. 345/2022
in the selection process came to be under challenge in the
aforementioned two writ petitions on account of purported
deficiency pertaining to educational as well as physical qualification,
whereas one candidate‟s recommendation was kept on hold by the
JKPSC for some technical issue having nothing to do with the
litigation so germinated in the matter.
40K Finding themselves being prejudiced on account of their
purported height factor deficiency despite having come successful in
the written examination and interview as also in the walk test of 25
km within four hours, six female candidates namely 1) Afshan
Anjum Baba, 2) Khuban, 3) Shiba Zahoor, 4) Bibi Nagaar, 5)Saima
Qamar & 6) Saima Qamar, who are the writ-petitioners 1 to 6
herein, came to file a writ petition WP(C) no. 3798/2019 titled
“Afshan Anjum Baba and others Vs UT of J&K and others” before
this Court thereby seeking the following reliefs:J
“a. Issue a writ of mandamus or any other appropriate
writ, order or directions, to declare the SRO-359 of
24
th July, 1970 (impugned herein) as ultra vires to
the Constitution of India in so far as the impugned
rule suffers from the voice of gender discrimination
while prescribing same physical standards for male
and female candidates alike. 2023:JKLHC-SGR:2177-DB
24 WP(C) No. 1757/2021
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WP(C) No. 345/2022
b. Issue a writ of mandamus or any other appropriate
writ, order or direction, commanding the respondent
J&K Public Service Commission to forward the
names of all the petitioner to the department for
their appointment against the post of Range Officers
Grade-I Forest in the J&K Forest Department
(Territorial) since the names of the petitioners have
been withheld on the basis of this impugned
discriminatory rule.
c. Any other writ, order of direction which this Hon’ble
Court may deem fit and proper also be issued in
favour of the petitioners and against the
respondents.”
41. With respect to the present writ petitioners 1 to 8, who
came to figure in the final select list of twenty eight (28) candidates,
their respective merit position in the merit list obtained as follow:-
i. Petitioner no. 1-Afshan Anjum Baba at Sr. no. 12
as RBA/OM,
ii. Petitioner no. 2-Khuban at Sr. no. 7 as OM,
iii. Petitioner no. 3 – Shiba Zahoor at Sr. no. 10 as
OM,
ivK Petitioner no. 4- Bibi Nagaar at Sr. no. 13 as
RBA/OM,
v. Petitioner no. 5- Basira Mehraj at Sr. no. 6 as
OM. 2023:JKLHC-SGR:2177-DB
25 WP(C) No. 1757/2021
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WP(C) No. 345/2022
vi. Petitioner no. 6 – Saima Qamar at Sr. no. V as
ST/OM &
vii. Petitioner no. 7 Azeem Raja at Sr. no.14.
viii. Petitioner no. 8 Gh. Ahmad Najjar at Sr. no. 19.
42. In the meantime, two more writ petitions WP(C)
3655/2019 titled “Parvaiz Ahmad Shagoo and others Vs UT of
J&h & others” and “Azeem Raja Vs UT of J&K and others” came
to be preferred before this High Court relating to the matter of
selection process/exercise in reference. It is pertinent to mention
here that petitioner Parvaiz Ahmad Shagoo in the writ petition
WP(C) no. 3655/2020 was also figuring in the list of 40 candidates
and his case was similar with that of petitioners in WP (C) no.
3145/2019 & 3182L 2019 in targeting the writ petitioners 1 to 7
herein in particular. In so far as writ petition filed by Azeem Raja is
concernedI she happened to be one of eight EU) female candidates
whose recommendation for appointment was also being sought to be
undermined on account of her short height. The writ petitioner no. 7
herein is said Azeem Raja.
43K While the aforesaid five writ petitions were so pending
consideration before this court, on account of coming into scene of
Jammu & Kashmir Reorganization Act, 2019 thereby extending the
jurisdiction of the Central Administrative Tribunal CAT with respect 2023:JKLHC-SGR:2177-DB
26 WP(C) No. 1757/2021
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WP(C) No. 345/2022
to matters of UT of Jammu & Kashmir and UT of Ladakh qua the
service as well as service selection related all pending writ petitions
came to be transferred from the High Court of Jammu & Kashmir
and Ladakh to the Central Administrative Tribunal Jammu Bench
pursuant to Notification no.G.S.R. 267(E) dated 29th April, 2020
read with Notification no.G.S.R. 317(E) dated 28th May, 2020,
issued by the Ministry of Personnel, Public Grievances and Pensions
(Department of Personnel and Training) and so were said five writ
petitions above referred.
44. Thus, writ petition WP(C) no. 3145/2019 titled “Kaffel
Ahmad Mir and others Vs State & others” upon its transfer to the
Central Administrative Tribunal, Jammu Bench ( “CAT Jammu
Bench” in short) came to be diarized as T.A. no. 6O/5540/2020.
In the writ petition WP(C) 3145/201V , registered as T.A. no.
62/5540/2020 titled “Kaffel Ahmad Mir and others Vs State of
J&K and others”, the petitioners figuring therein were as under:J
i) Kaffel Ahmad Mir – petitioner no. 1I
iiF Prince Ahmad Mir – petitioner no. 2,
iii) Javaid Iqbal Bhat – petitioner no. 3I
ivF Reyaz Rasool Malik – petitioner no. 4I
v) Arooz Ahmad Parray – petitioner no. 5 &
viF Mohd. Saleem Wani – petitioner no. 6K 2023:JKLHC-SGR:2177-DB
27 WP(C) No. 1757/2021
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WP(C) No. 345/2022
Whereas, the private respondents in said case were
twelve (12) in numbers figuring from serial no. 6 to 17.
45. The writ petition WP(C) no. 3182/2019 titled “Majid
Hussain Vs State of J&K and others” came to be diarized as T.A.
no. 62/5677/2020K
46K The writ petition WP(C) no. 3798/2019 titled “Afshan
Anjum Baba and others Vs UT of J&K & Ors” came to be diarized
as T. A. no. 62/5610/2020.
47K The writ petition WP (C) 3655/2019 titled “Parvaiz Ahmad
Shagoo and others Vs UT of J&K & Ors” came to be registered as
T.A. no. 61/1693/202M. The writ petition titled “Azeem Raja Vs UT
of J&K and others” got registered as T. A. no. 62/920/202N.
48K Thus, all the aforesaid five writ petitions came to be re-
registered as five transfer applications i.e.
T.A.62/5540/2020: Kaffel Ahmad & Ors Vs State of J&K & Ors,
T.A.62/5677/2020: Majid Hussain Vs State of J&K and Ors,
T.A.62/5610/2020: Afshan Anjum & Ors Vs UT of J&K & Ors ,
T.A.61/1693/2020 Parvaiz Ahmad Shagoo Vs UT of J&K & Ors,
T.A.62/920/2021 Azeem Raja Vs UT of J&K & Ors 2023:JKLHC-SGR:2177-DB
28 WP(C) No. 1757/2021
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WP(C) No. 345/2022
before the CAT Jammu Bench, thereby bringing the battle of the
adjudication of the matter at the disposal of the CAT Jammu Bench.
49. JKPSC in its stance in the cases before the CAT Jammu
Bench at first instance had come to acknowledge and plead that
non-distinction in the prescribed physical parameters in terms of
SRO-359 of 1970 ex-facie appears to be suffering from gender
discrimination and, as such, needed rectification in the rule before
actual appointments are made. JKPSC went to the extent of saying
that physical standard prescribed was recognizing geographical
distinction between Leh & Kargil districts as a class apart vis-a-vis
rest of the then State of Jammu & Kashmir but in the context of
Nature prescribed distinction between male and female physical
parameters, the rule was gender dissolving. This stance on the part
of the JKPSC before CAT Jammu Bench came to be later retracted
and revised by coming forward with the second reply which put
forth mechanical mindset at the forefront saying that the rules are
what they are and, as such, the same are to be carried in
compliance to the extent of disqualifying the female candidates who
otherwise happened to be in the merit list.
50. It is pertinent to bear in mind that JKPSC had appeared to
answer the cases before CAT Jammu Bench in the light of its
Secretary‟s communication no. PSC/Exam/R.O.(Forest)/2018/1 2023:JKLHC-SGR:2177-DB
29 WP(C) No. 1757/2021
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WP(C) No. 345/2022
dated 18.10.2019 addressed to the Commissioner/ Secretary to
Government, Forest Department, Govt. Of UT of J&K by bearing a
reference that successful female candidates have approached the
higher authorities requesting re-visiting the physical standard to be
scaled down to a lower side as against male candidates and, as
such, clarification was solicited from the government‟s end.
51K The CAT Jammu Bench considering the fact that the
controversy involved in all the five cases was of same nature came to
hear them collectively and pass five judgments all dated
12.07.2021 but placing respective judgment qua each case
individually.
52. T.A. no. 62/5540/2020 titled “Kaffel Ahmad Mir Vs
State of J&K & Ors” came to be disposed of by the CAT Jammu
Bench vide its judgment dated 12/07/2021 holding the select list
appended as annexure JB to communication no.
PSC/Exam/RO/Grade JI/Territorial/2018 dated 20.09.201V vitiated
to the extent of the candidates being included who did not fulfill the
height criteria and accordingly passed the following consequent
directions:J
a. The select list i.e. Annexure-B to Communication no.
PSC/Exam/RO/Grade -I/Territorial/2018 dated
20.09.2019 (Annexure-1) includes the names of the 2023:JKLHC-SGR:2177-DB
30 WP(C) No. 1757/2021
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WP(C) No. 345/2022
persons inclusive of respondent nos. 6 to 14 who are to
figure in the Walk Test and Medical Examination. So,
PSC (respondent no. 3) shall in the first instance
conduct the exercise of height measurement, if not
conducted as on date;
b. To conduct the tests mentioned in the advertisement
notice;
c. Thereafter prepare the final select list of candidates
who fulfill all the eligibility criteria mentioned in the
advertisement notice;
d. Follow the procedure for bringing the selection
procedure to its conclusion.
This exercise was directed to be carried out from the date of
receipt of the judgment. The JKPSC, in particular, was directed to
ensure that the final list does not contain the name of the
candidates who do not fulfill the eligibility criteria as per the rules
and conditions of the advertisement notice.
53. T.A. no. 62/5677/2020 titled “Majid Hussain Vs State of
J&K & Ors” too came to be disposed of on the same conclusion and
directions as reproduced herein above with respect to T.A. no.
SO/5540/2020K 2023:JKLHC-SGR:2177-DB
31 WP(C) No. 1757/2021
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WP(C) No. 345/2022
54. T.A. no. 61/1693/2020 titled Parvaiz Ahmad Shagoo Vs
State also came to be concluded on the same directions as
reproduced herein above with respect to T.A. no. 62/5540/2020.
55. T. A. no. 62/920/2021 titled “Azeem Raja Vs UT of J&K
& Ors” came to be dismissed for non Jjoinder of the necessary
party/ies as in the said case the petitioner Azeem RajaI being a
female candidateI was seeking a relief with respect to height
prescription in the application of SRlJ359 of 1970 which did not
differentiate between male and female candidates. The CAT Jammu
Bench came to hold that it is not within its power to issue directions
to the Government to frame rules and to legislate and it came to
hold that physical standard (height) prescribed by the rules and the
advertisement cannot be said to be illegal, arbitrary and
discriminatory or violative of articles 14/15/16 & 21 of the
Constitution of India.
56K In so far as T. A. no. 62/5610/2020 titled “Afshan Anjum
Baba and others Vs UT of J&h & Ors” is concerned, the same
came to be disposed of by rejection on the same note and context as
the case of T. A. no. 62/920/2021 titled Azeem Raja Vs UT of J&K &
Ors K 2023:JKLHC-SGR:2177-DB
32 WP(C) No. 1757/2021
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WP(C) No. 345/2022
57. CAT Jammu Bench in dealing with the application T.A. no.
62/5610/2020 [WP(C) no. 3798/2019] which was filed by the writ
petitioners 1 to 6 herein came to act upon the following premise:-
a. It is the policy of the Govt. to fix physical and other
parameters as qualifying standards for a highly
competitive selection process.
b. Prescribing of height requirement with respect to
selection and appointment in a government service is
a matter within the Govt. Policy and it is for the Govt.
to see what qualification to be held by a person who is
to be appointed for the post of Range Officer.
c. The court does not interfere unless the policy is
unconstitutional, arbitrary or irrational or contrary to
the statutory provisions and it is improper for the
Judges to step into the sphere except in a rare and
exceptional case.
d. Recommending the case of the candidates those
selected but found short of height prescribed for
regularization would be an injustice to those persons
who opted not to apply for the post on account of
lacking height prescribed.
e. There was no scope for approbation and reprobation
for the female candidates. CAT Jammu Bench was not
vested with reach to strike down the p rescription
settled by executive as an employer in its wisdom.
f. Rules of the game cannot be changed once the game is
played. Delay and laches on the part of the female
candidates reckoned from the date of issuance of 2023:JKLHC-SGR:2177-DB
33 WP(C) No. 1757/2021
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WP(C) No. 345/2022
advertisement notification dated 15.03.2018 till filing
of the writ petition WP(C) no. 3798/2019 (T.A. no.
62/5610/2020) i.e. almost after a gap of one and a
half year to question the height parameter
requirement and the discrimination attending there
with.
g. Non-joinder of the necessary party in the form of
candidates 15 in numbers, who came to be appointed
on the recommendation of JKPSC by the Govt., out of
28 finally shortlisted candidates.
In support of its conclusions arrived at in dismissing
T.A. no. 62/5610/2020 (WP(C) no. 3798/2019), CAT
Jammu Bench cited following judgments to buttress
the reasoning in its judgment. Said judgments are:-
1. Krushna Chandra Sahu Vs State of Orissa , (1995) 6
SCC 1.
2. Zonal Manager Vs Aarya K. Babu, (2019)8 SCC 587.
3. P.U. Joshi Vs Accountant General, (2003)2 SCC 632.
4. Chandigarh Administration Vs Jasmine Kaur, (2014)10
SCC 521.
5. Chandra Prakash Tiwari Vs Shakuntala Shukla ,
(2002)6 SCC 127.
6. Air Commodore Naveen Jain Vs Union of India ,
(2019)10 SCC 34.
7. Madan Lal Vs State of Jammu & Kashmir , (1995)3
SCC 486.
8. “Ramesh Chandra Shah Vs Anil Joshi” (2013)11 SCC
309.
9. District Collector Vs M. Tripura Sundari Devi, (1990)3
SCC 655. 2023:JKLHC-SGR:2177-DB
34 WP(C) No. 1757/2021
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WP(C) No. 345/2022
10. Manish Kumar Shahi Vs State of Bihar, (2010)12 SCC
576.
11. Pradeep Kumar Rai Vs Dinesh Kumar Pandey ,
(2015)11 SCC 493.
12. Amrit Lal Berry Vs Collector of Central Excise, (1975) 4
SCC 714.
13. Trilokchand Motichand Vs H. B. Munshi , (1970) SCC
898.
14. Arun Tewari Vs Zila Mansavi Shikshak Singh , (1998)
SCC 331.
58. Thus, out of five (5) petitions so disposed of by the CAT
Jammu Bench, two (2) petitions i.e. T. A. no. 62/920/2021 titled
Azeem Raja Vs UT of J&K and others & T. A. no.
62/5610/2020 titled Afshan Anjum Baba and others Vs UT of
J&K and others came to be negated bearing the parting directions
similar to one as in the other three petitions i.e. T.A. no.
62/5540/2020 titled Kaffel Ahmad Mir Vs State of J&K and others,
T.A. no. 62/5677/2020 titled Majid Hussain Vs State of J&K and
others & T.A. no. 61/1693/2020 titled Parvaiz Ahmad Shagoo Vs
State of J&K and others.
59. Upon passing of the judgments by the CAT Jammu Bench
in the aforesaid five (5) cases, the JKPSC, in its 17th meeting with an
agenda item no. 17 -18 held on 06.08.2021 , came to order
rejection of candidature of eight (8) candidates because of deficiency 2023:JKLHC-SGR:2177-DB
35 WP(C) No. 1757/2021
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WP(C) No. 345/2022
in prescribed height requirement. Out of these eight (8) candidates,
seven (7) happened to be female candidates and one (1) male.
60. Pursuant to this decision at its end, the JKPSC‟s approval
for cancellation of the candidature of eight (8) candidates on
account of height deficiency factor came to be apprised vide its
communication no. PSC/Exam/RO/F/2018/1 dated 27.08.2021
to the Department of Forest, Ecology & Environment, Govt. of
Jammu & Kashmir.
61K On account of purported ouster of eight (8) candidates from
the list of twenty (28) candidates, and purportedly acting in
compliance with the direction of the CAT Jammu Bench in terms of
its judgment dated 12.07.2021, the JKPSC, vide its communication
no. PSC/Exam/ RO(Forest)/2018/1 dated 27.08.2021 , came to
forward the names of six ( 6) candidates, in place of ousted
candidates, for their medical examination by the Govt. Medical
College, Srinagar. These candidates happened to be the ones who
were petitioners in T.A. No. 62/5540/2020 titled “Kaffel Ahmad
Mir Vs State of J&K & Ors”K
62K Vide another communication no. PSC/Stamp/RO/Grade -
I/2018/1 dated 02.09.2021, the JKPSC came to forward the name 2023:JKLHC-SGR:2177-DB
36 WP(C) No. 1757/2021
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WP(C) No. 345/2022
of Majid Hussain, the petitioner in T.A. no. 62/5677/2020 to Govt.
Medical College Srinagar for medical examination.
63. On account of the aforesaid emerging developments, five
(5) female candidates out of the six (6) candidates, who were the
petitioners in T. A. no. 62/5610/2020 titled “Afshan Anjum Baba
and others Vs State of J&K and others”, came forward with the
institution of the present writ petition WP(C) no. 1757/202N
instituted on 03.09.2021 before this Court thereby challenging the
judgment dated 12.07.2021 passed by the CAT Jammu Ben ch in T.
A. no. 62/5610/2020I and consequently asking for quashment of
SRlJ359 of 1970 in the context of prescription of height
requirement without discrimination between the male and female
candidateI read with a direction unto the JKPSC to forward the
selection list dated 20.09.2019 figuring the names of twenty (28F
candidates to the GovtKI for carrying out the appointments against
the posts of Range Officers GradeJI.
64K In this writ petition WP(C) no. 1757/2021, five (5) female
petitioners originally petitioning this court are –
i) Afshan Anjum Baba – petitioner no. 1I
iiF Khuban – petitioner no. 2I
iii) Shiba Zahoor – petitioner no. 3I
ivF Bibi Nighaar – petitioner no. 4 & 2023:JKLHC-SGR:2177-DB
37 WP(C) No. 1757/2021
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WP(C) No. 345/2022
v) Basira Mehraj – petitioner no. 5K
Saima Qamar, who was along with the above named female
candidates in T. A. no. 62/5610/2020I opted to stay out in joining
five writ petitioners in the institution of writ petition to fight for her
claim.
65K It is this writ petition WP(C) no. 1757/2021 filed by five
petitioners which presented itself for adjudication before this court.
66. Some developments on the file of this case post its
institution need to be referred for the sake of having clear
perspective.
67. In this writ petition, the original writ petitioners 1 to 5
carried forward the same set up of respondents as were in their T.
A. No. 62/5610/2020 and those are (1) UT of Jammu & Kashmir
through its Chief Secretary as the respondent no.1, (2)
Commissioner/Secretary to Govt., Forest Department as the
respondent no. 2 & (3) J&K Public Service Commission as the
respondent no. 3.
68. Considering that they need to intervene in the writ petition
WP(C) no. 1757/2021 as respondents so as to oppose the writ
petition, an application CM no. 6241/2021 came to be filed by four
(4) applicants namely Kaffel Ahmad Mir, Javaid Iqbal Bhat, Arooz 2023:JKLHC-SGR:2177-DB
38 WP(C) No. 1757/2021
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WP(C) No. 345/2022
Ahmad Parray & Mohammad Saleem Wani on 17.09.2021 for
their impleadment. It is pertinent to mention here that these four (4)
applicants were out of six (6) petitioners figuring in T.A. no.
62/5540/2020 titled Kaffel Ahmad Mir Vs State.
69. Similarly, an application CM no. 6296/2021 came to be
filed by Majid Hussain on 21.09.2021 also seeking his impleadment
as a party respondent in the writ petition WP(C) no. 1757/2021.
Applicant Majid Hussain was the petitioner in T.A. no.
62/5677/2020.
70. It is pertinent to mention here that in the aforementioned
two T.As i.e. T.A. no. 62/5540/2020 titled “Kaffel Ahmad Mir &
Ors Vs State of J&K & Ors” & T.A. no. 62/5677/2020 titled
“Majid Hussain Vs State of J&K & Ors”, the original writ petitioners
1 to 5 in the present WP(C) no. 1757/2021 were named as the
party respondents therein but in T. A. no. 62/5610/2020 titled
“Afshan Anjum Baba and others Vs State of J&K and others”
only three respondents all being officials had figured and that is the
reason that application for impleadment as the respondents came to
be so filed resulting in impleadment of new respondents in addition
to the originally named respondents 1 to 3. 2023:JKLHC-SGR:2177-DB
39 WP(C) No. 1757/2021
c/w
WP(C) No. 345/2022
71. In terms of orders dated 07.10.2021 and 07.12.2021
impleadment of private respondents came to take place who came to
be granted time to file reply to the writ petition.
72. Thus, the writ petition WP(C) no. 1757/2021 came to have
the respondents 1 to 9. The respondent no. 9–Raja Shoaib came to
be impleaded last in terms of an order dated 17.12.2021 passed in
CM no. 7633/2021K
73K In between, an application CM no. 673/2021 came to be
filed on 06.10.2021 by the applicant namely Saima Qamar (female),
Azeem Raja (female) and Gh. Ahmad Najar (male), seeking their
impleadment as co-petitioners in WP(C) no. 1757/2021. It is
pertinent to mention here that applicant Saima Qamar was one of
the six petitioners in T. A. no. 62/5610/2020, whereas Azeem Raja
was the petitioner in T. A. no. 62/920/2021.
74. Thus, with the addition of these three applicants as co-
petitioners, the writ petition came to be on behalf of the eight (8)
petitioners and nine (9) respondents in the matter.
75. It is this position of parties which is finally obtaining on the
file and the contest has obtained against each other with UT of J&K,
JKPSC and private respondents on same page against the
petitioners. 2023:JKLHC-SGR:2177-DB
40 WP(C) No. 1757/2021
c/w
WP(C) No. 345/2022
76. In the case on 07.11.2021, the Division Bench was pleased
to stay operation of the impugned judgment dated 12.07.2021
passed in the petitioners‟ T.A. no. 62/5610/2020 by the CAT
Jammu Bench with a direction to the official respondents figuring in
the writ petition not to finalize the selection in question. Notice on
behalf of the JKPSC came to be accepted by the counsel.
77K In terms of an order dated 27.12.2021, the Division Bench
came to modify the direction as given in the order dated 09.09.2021
and thus came to allow the respondent no. 1 – Govt. of UT of J&K to
act upon the recommendation of the respondent no. 3 – JKPSC with
a rider to keep 8 posts reserved out of the available posts to be later
on utilized for the petitioners in the event of their succeeding in the
writ petition. This direction to keep 8 (eightF posts available came to
be reiterated in an order dated 14.03.2022K
78K This case has not only the facts which were on board at the
passing of the impugned judgment dated 12.07.2021 by the CAT
Jammu Bench but also facts post institution of this writ petition
and all of them having bearing on the core aspect of this case.
79. JKPSC, vide its communication no. PSC/DR/Posts/2019
dated 11.02.2022, came to release 15 out of 44 posts of Range 2023:JKLHC-SGR:2177-DB
41 WP(C) No. 1757/2021
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WP(C) No. 345/2022
Officers Grade-I back to Govt., because when only 29 candidates
had come to be finally shortlisted, there was no takers for 15 posts.
80. In view of the subsequent developments having accrued
during the pendency of the writ petition WP(C) no. 1757/2021, the
the writ petitioners 1 to 8 came forward with institution of writ
petition WP(C) no. 345/2022 on 21/02/2022 in which in terms of
an order dated 31.03.2022 notice came to be issued to the
respondents and the interim directions operating in the first writ
petition WP(C) no. 1757/2021 were directed to govern the
subsequent writ petition WP(C) no. 345/2022. In this writ petition
WP(C) no. 345/2022, 8 (eight) writ petitioners are seeking
quashment of Order no. PSC/DR/Posts/2019 dated 11.02.2022
issued by respondent no. 3-JKPSC whereby posts going un -
recommended for appointment other than 15 posts recommended
for appointment of candidates were returned back to the Govt.
Outcome of this writ petition WP(C) no. 345/2022 is obviously
dependent upon outcome of writ petition WP(C) no. 1757/2021.
81. Despite interim court directions mandating the official
respondents, in particular, the respondent nos. 1 & 2 not to carry
forward the selection expect for all 15 candidates recommended by
JKPSC, the JKPSC came to refer on 28.04.2022, seven (7) non-
selected candidates who were out of the private respondents herein 2023:JKLHC-SGR:2177-DB
42 WP(C) No. 1757/2021
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WP(C) No. 345/2022
for walk test by issuance of notification no.
PSC/Exam/R.O.(O)/2018/1 .
82. Not only this, the JKPSC, vide its communication no.
PSC/Exam/R.O.(F)-2018/II dated 31.05.202 2, came to
recommend to the Govt., seven (7) new names for appointment as
Range Officers Grade-I in place of eight (8) candidates purportedly
ousted out of the list of twenty nine 29 shortlisted candidates,
which includes the petitioners as well. All these seven (7) candidates
figured as the respondent nos. 4 to 9 in the present writ petition.
Filing of Reply on behalf of the respondents to the present writ
petition:
83. Reply on behalf of the respondent nos. 1 & 2 i.e. Govt. of
UT of J&K and Department of Forest came to be first submitted on
18.10.2021.
84. Private respondents nos. 4 to 7 i.e. 4, out of 6 petitioners in
Kaffel Ahmad Mir and others Vs State of J&K and others, came to
submit their reply to the writ petition on 21.10.2021.
85. Reply on behalf of the respondent no. 8-Majid Hussain,
who was the sole petitioner in T.A. no. 62/5677/2020, WP(C) no.
3182/2019 came to be submitted on 21.10.2021. 2023:JKLHC-SGR:2177-DB
43 WP(C) No. 1757/2021
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WP(C) No. 345/2022
86. Reply on behalf of the respondent no. 3-JKPSC to the writ
petition came to be submitted on 16.12.2021.
87. Before proceeding to deal with the merits of the present
case, we would like to lay out some important related and
contemporary aspects cited in the case and which have a bearing
with respect to our judgment making in the case and this we state
under heading :
Related/Contemporary Aspects
88. The writ petitioners bank reliance upon a Study done by
one Angus Deaton with respect to subject of “eeight, health and
inequality: the distribution of adult heights in India ”. Angus
DeatonI the author of the said studyI is from Centre for Health &
Wellbeing and Research Program in Development Studies, Princeton
Universities, in which a reference has been made that averageJwise
Indian males in different ptates of India have longer height as
compared to femalesK In the context of J&hI average male height has
been found to be 168.3 cm and female 154.9 cmK This has been
cited to plead a fact that rule with respect to height prescription in
SRO 106 of 1992 is an exhibit of absentmindedness of the part of
the rule making authority to be in sync with the reality of life in
Indian context in general and of J&K in particular that females‟ 2023:JKLHC-SGR:2177-DB
44 WP(C) No. 1757/2021
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WP(C) No. 345/2022
average height is shorter than males whereas the height prescribed
in SRO 162 of 1992 read with SRO 264 of 1998 is more male
conceptualized than female related.
89. Previous to the selection process initiated pursuant to the
JKPSC‟s advertisement notification dated 15.03.2018 in issue in
the present case, the JKPSC had carried out selection process for
Range Officer GradeJI on an earlier occasion in which some of the
petitioners could not get their application forms through for
competing in the examination of the time because of height factor.
This fact is being cited by the learned counsel for the private
respondents to highlight the fact that most of the petitioners were
aware of his/her height requirement deficiency as obtaining in
terms of the rules, andI thus, their entry in the selection process in
reference to advertisement notification dated 15.03.2018 was
lacking bonafide and their consequent success in getting through
written examination, interview, physical endurance test ought not to
fetch them any equity in their favour.
90K The petitioners highlight the fact that except for this J&K
Forest (Gazetted) Service constituted in terms of SRO-359 of 1970
read with SRO-106 of 1992 in the context of height prescription, in
most of other allied Services now in the UT of J&K and before that
in the State of J&K requiring height factor for recruitment, a 2023:JKLHC-SGR:2177-DB
45 WP(C) No. 1757/2021
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WP(C) No. 345/2022
classification has been maintained between male and female height
with prescribed female height lower in comparison to the prescribed
male height and so also with respect to the requirement of chest
girth prescribed separately for male and female.
91. The petitioners cite the fact that for the post of Range
Officer under the Central Entrance and Training Rules (Revised)
2004, height and chest prescribed for male and female are different
with respect to male height of 163 cm (5.4 feet) whereas for female
150 cm (4.11 feet) are prescribed.
92. The petitioners cite advertisement notice no. PSC/Exam/
2007/25 of 2007 by JKPSC for the same very post of Range Officer
Territorial wherein the height prescribed was 5.4 feet (163 cm)
which was on the lesser side though without any classification
between the male and the female candidates but on the lesser side
to the one prescribed in 2018 notification.
93. The petitioners refer to a Notification F. No. 3-17/99-RT
dated 10.01.2006 issued by the Govt. of India, Ministry of
Environment & Forest with respect to Entrance & Training Rules
(Revised) 2004 for Forest Range Officers notified vide Gazette
Notification GFR no. 466(E) dated 22.07.2004 wherein the
existing physical standard were changed to new ones provided 2023:JKLHC-SGR:2177-DB
46 WP(C) No. 1757/2021
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WP(C) No. 345/2022
differently for male as well as female. Existing male height was 163
cm and female height was 150 cm which stood revised to remain
same but with respect to chest girth the existing requirement of 84
cm for male is revised to 79 cm and for female existing 79 cm to
revised 74 cm.
94. The petitioners refer to an advertisement notification no.
PSC/Exam/2013/27 dated 22.04.2013 for selection to the post of
Range Officer Grade-I in which the height prescribed though
without differentiation between male and female was 163 cm (5.4
feet) lower than the one in issue.
95. The petitioners also cite JKPSC Notification no.
PSC/Exam/2015/27 dated 21.08.2015 for the selection for the
post of Range Officer Grade-I with a prescription of height 163 cm
(5.4 feet) lower than the one in issue.
96. The petitioners cite PSC advertisement notification no.
PSC/Exam/23/2017 dated 24.04.2017 for selection to the posts
of Assistant Conservator of Forest in the very same J&K Forest
(Gazetted) Service in which there is a separate prescription of height
for male and female candidates with height for females on lesser
side than male height. 2023:JKLHC-SGR:2177-DB
47 WP(C) No. 1757/2021
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WP(C) No. 345/2022
97. The petitioners cite that with respect to the J&K Forest
Protection Force (Gazetted) Service Recruitment Rules brought
into existence vide SRO-421 of 2017 dated 05.10.2017 , height
prescription is obtaining separately for male and female candidates.
In the context of male candidates height requirement is 165 cm with
chest girth of 84 cm, whereas for female candidates height
requirement is 160 cm and chest girth is 79 cm.
98. The petitioners cite that in a selection advertisement
notice no. PSC/Exam/2018/38 dated 25.05.2018 issued by
JKPSC for the Combined Competitive Examination for the post of Jr.
Scale Kashmir Administrative Service, Police Service and Accounts
Service, there was a separate height and chest prescription with
respect to male and female candidates. Prescribed male height and
chest girth is 165 cm & 84 cm and for female 150 cm and 79 cm.
99. The petitioners cite that in selection advertisement no.
PSC/Exam/2018/17 date d 19.04.2018 issued by the JKPSC for
the post of Range Officer Wild Life, height prescribed though without
distinction between male and female is 5.4 feet (163 cm) which is on
the lesser side than the height in reference under SRO-359 of 1970
read with SRO-106 of 1992. 2023:JKLHC-SGR:2177-DB
48 WP(C) No. 1757/2021
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WP(C) No. 345/2022
100. The petitioners cite that in the UPSC examination notice
no.05/2019-IFOS dated 18.03.2019 for the Indian Forest Service
there is a distinction approved for physical requirements with
respect to male and female candidates as w ith respect to male
candidates height and chest requirement is 150 cm and 84 cam and
for female candidates 140 cm and 79 cm.
101. The petitioners cite that with respect to selection of 215
vacancies of Range Officer Grade-I in the J&K Forest Gazetted
Service, J KPSC vide its communication no.
PSC/Exam/R.O.(F)/2018/01 dated 09.07.2020 addressed to the
Forest Department, UT of J&K had recommended appointments of
04 persons as Range Officer Grade -I Territorial in which the
candidate at Sr. no. 1 Muneera Bandey, who being a female
candidate was having 164 cm height but came to be so appointed
notwithstanding the height deficit .
102. While as against 44 posts of Range Officers Grade -I
referred by the Department of Forest, Ecology & Environment, the
Govt. of UT of J&K to JKPSC, only 29 candidates came to be
shortlisted which had resulted in release of 15 posts so referred to it
for selection. With respect to these 15 posts, the Department of
Forest, Ecology & Environment, the Govt. of UT of J&K came to
make second reference vide communication no. FST/Ser/65/2020 2023:JKLHC-SGR:2177-DB
49 WP(C) No. 1757/2021
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WP(C) No. 345/2022
dated 28.10.2020 to JKPSC for carrying out the selection process
afresh. In this referral for selection, insistence for height parameter
without any distinction between male and female candidates was
reiterated to be 5.6 feet.
103. During the pendency of the adjudication in the matter
before the CAT Jammu Bench, a meeting had taken place between
the Department of Forest, Ecology & Environment, Govt. of UT of
J&K and JKPSC on the height issue aspect, but the General
Administration Department (GAD), Govt. of UT of J&K vide its
communication no. GDC -154/CM/2020 dated 24.12.2020
addressed to the Secretary, JKPSC, impressed upon JKPSC to
contest the pending cases before the CAT vigorously instead of
becoming realistic to the issue. This ritualistic mind set was given a
go ahead given by the UT of J&K over the realistic mindset approach
with respect to the issue involved in the case. In fact, in the meeting
dated 24.12.2020 as is born from the GADs communication no.
GDC/154/14/201 9 dated 24.12.2020 bearing reference to the
meeting of 22.12.2020 with respect to the selection matter in issue
in the context of height prescription without any distinction
between male and female candidates, a meeting had taken place
between the GAD officials and the Department of Forest, Ecology &
Environment in which as per item no. 2, the Department of Forest, 2023:JKLHC-SGR:2177-DB
50 WP(C) No. 1757/2021
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WP(C) No. 345/2022
Ecology and Environment was called upon to move a proposal for
amendment of physical standards obtaining with respect to SRO-
359 of 1970 read with SRO-106 of 1992.
104. The Department of Forest, Ecology & Environment, Govt.
of UT of J&K in its communication no. FST -Ser/83/2021-02-
Forest dated 04.08.2021 addressed to the Principal Chief
Conservator of Forest, J&K Srinagar referred to the exercise with
respect to proposed amendment to SRO-359 of 1970 read with SRO-
106 of 1992 with reference to the amendment in physical standards
of female candidates for their selection for the posts of Range Officer
under direct recruitment.
105. The petitioners cite that J&K Services Selection Board‟s
advertisement dated 21.10.2021 for 800 posts of SubJInspectors
under J&K Civil Services (Decentralization & Recruitment) Act,
2010 read with Police Rules, 1960 also prescribed separate height
and chest girth for male and female candidates as for male height
required is 5.6 feet and chest girth is 32 inch, whereas female
candidate height required is 5.4 feet and no chest dimensionK
106. O.M. no. GAD-MTGO RB-IV/200/2021-09-GAD dated
03.02.2022 came to be issued vide which General Administration
Department (GAD), Govt. of UT of J&K came to apprise that the 2023:JKLHC-SGR:2177-DB
51 WP(C) No. 1757/2021
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WP(C) No. 345/2022
Administrative Council has decided to withdraw all posts referred to
JKPSC and Service Selection Board prior to 31.10.2019 for which
selection was not made. In view of this developm ent, the
respondents 1 & 2 i.e. Govt. of UT of J&K and the
Commissioner/Secretary to Govt., Forest Department submits that
the writ petition filed by the petitioners is rendered infructuous
because of non challenge to this development.
107. The petitioners have highlighted a development that Govt.
of UT of J&K came to realize the fact that there cannot be a same
height for male and female in the matter of selection to the public
service and for this purpose vide Govt. Order no. 22-JK(Fst) 2022
dated 07.03.2022 an amendment came to be made to the J&K
Forest (Subordinate) Service Rules, 1991, framed vide SRO-335
dated 28.11.1991. In view of the amendment so made , for male
candidates height and chest requirement came to be separately
prescribed i.e. 163 cm and 84cm and for female 150 cm and 79 cm.
108. This act is literally an acknowledgment on the part of the
Govt. of UT of J&K that SRO-359 of 1970 was out of tune with
constitutional reality of the time. In fact, even with respect to
physical endurance test, male and female candidates came to be
recognized as a class apart by prescribing 25 km walk in four hours
by male and 16 km walk in four hours by female. This Service is 2023:JKLHC-SGR:2177-DB
52 WP(C) No. 1757/2021
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WP(C) No. 345/2022
also source of recruitment to posts of Range Officer Grade-I in J&K
Forest (Gazetted) Service by 50% promotion mode from the post of
Range officer II born on the cadre of J&K Forest (Subordinate)
Service. Thus 50% persons to be recruitment to the posts of Range
Officer Grade I can be from Range officer II bearing different height
prescription for male and female but for 50% direct recruitment to
post of Range Officer Grade-I, there is only one height prescription
without any male and female distinction. This development is
sufficient in itself amounting to self correction and statement from
the Govt. that SRO 106 of 1992 read with SRO 164 of 1998 are
factually and legally misconceived in terms of height prescription
therein.
109. The petitioners cite that with respect to J&K Soil
Conservation (Subordinate) Service Recruitment Rules, 2004 ,
revision came to be effected vide Govt. Order no. 38-JK (Fst) of
2022 dated 29.03.2022 whereby height prescription for male and
female candidates came to be separate, as for male candidates
height requirement came to be 163 cm and for female the same is
150 cm.
110. In the light of the afore stated facts and circumstances , we
have scanned and looked into the salient aspects of the CAT Jammu
Bench‟s judgments and the standpoint of the respondents K
2023:JKLHC-SGR:2177-DB
53 WP(C) No. 1757/2021
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WP(C) No. 345/2022
CAT’s Judgments in three cases
111. In T.A. no. 62/5540/2020 (WP(C) no. 3145/2019) titled
Kaffel Ahmad Mir and others Vs State & others , the CAT Jammu
Bench came to hold that since height prescription is a requirement
prescribed by the State in exercise of power under section 124 of the
Constitution of Jammu & Kashmir is within the wisdom of the State
and cannot be substituted by the CAT Jammu Bench as it is,
without any exception in favour of female candidates. CAT Jammu
Bench came to held that inclusion of 8 candidates over short of
height prescription in the select list dated 20.09.2019 issued by the
JKPSC is vitiated to the said extent and thus warranted directions
from the CAT Jammu Bench which came to be imparted as under: -
a. The select list i.e. Annexure-B to Communication no.
PSC/Exam/RO/Grade -I/Territorial/2018 dated
20.09.2019 (Annexure-1) includes the names of the
persons inclusive of respondent nos. 6 to 14 who are to
figure in the Walk Test and Medical Examination. So,
PSC (respondent no. 3) shall in the first instance
conduct the exercise of height measurement, if not
conducted as on date;
b. Conduct the tests mentioned in the advertisement
notice. 2023:JKLHC-SGR:2177-DB
54 WP(C) No. 1757/2021
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WP(C) No. 345/2022
c. Thereafter prepare the final select list of candidates
who fulfill all the eligibility criteria mentioned in the
advertisement notice.
d. Follow the procedure for bringing the selection
procedure to its conclusion.
112. In its aforesaid judgment, the CAT Jammu Bench came to
rely upon the following judgments:-
i) Manjusree v/s State of Andhra Pradesh, 2008 SC 1420.
ii) Bedanga Talukdar v/s Saifudaullah Khan and others,
2012 SC 1803.
iii) Firdousa Ahmed v/s State of J&K, (2010)4 JKK 996.
iv) Sudesh Kumar v/s State of J&K, LPA no. 68/2019 date of
decision 06.03.2019.
v) Chandigarh Admn. v/s Jasmine Kaur, (2014) 10 SCC 521,
vi) Chandra Prakash Tiwari v/s Shakuntala Shukla, (2002) 6
SCC 127,
vii) Air Commodore Naveen v/s Union of India, of India, (2019)
10 SCC 34,
viii) Madan La! v/s The State of Jammu & Kashmir, (1995) 3
SCC 486,
ix) Ramesh Chandra Shah v. Anil Joshi, (2013) 11 SCC 309.
x) District Collector v. M. Tripura Sundari Devi, (1990) 3
SCC 655,
xi) Manish Kumar Shahi v. State of Bihar, 2010 (12) SCC
576,
xii) P.U. Joshi Vs Accountant Genral, (2003)2 SCC 632 &
xiii) Balco Employees Union Vs Union of India, (2002)2 SCC
333.
2023:JKLHC-SGR:2177-DB
55 WP(C) No. 1757/2021
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WP(C) No. 345/2022
113. The judgment of CAT Jammu Bench in the case of Majid
Hussain Vs State of J&K and others as T.A. no. 65/5677/2020
(WP(C) no. 3182/2019) and in the case of Parvaiz Ahmad Shagoo
and others Vs UT of J&K & Ors as T.A. no. 61/1693/2020
proceeded on the same text and tone as in the case of Kaffel Ahmad
Mir and others Vs State of J&K and others as T. A. no.
62/5540/2020.
Reply/response to the present writ petition by the respondents
114. The respondent nos. 1 & 2 i.e. Govt. of UT of Jammu &
Kashmir and its Forest Department, in its reply came to maintain
that the petitioners were the persons having no genuine cause of
action to have the grievance set up in the writ petition. The
respondents 1 & 2 defended SRO-359 of 1970 read with SRO-106 of
1992 by saying that the same does not suffer from any illegality as
the State being the employer had kept in mind several features
including the nature of job, aptitude requisite for the efficient
discharge of the duties and functionality of the qualification. The
respondent nos. 1 & 2 have urged this Court not to extend the scope
of this writ petition beyond examination of the legality of the CAT
Jammu Bench. In supports its contention so made in its reply, the
respondents 1 & 2 refers to the following judgments of the Hon‟ble
Supreme Court of India:J 2023:JKLHC-SGR:2177-DB
56 WP(C) No. 1757/2021
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WP(C) No. 345/2022
i) Islamic Academy of Education and another Vs State of
Karnataka and others, (2003)6 SCC 697.
ii) Federation of Railway Officers Association and others Vs
Union of India, (2003)4 SCC 289.
iii) Directorate of Film Festivals Vs Gaurav Ashwin Jain and
others, (2007)4 SCC 737.
iv) State of Punjab and others Vs Ram Lubhaya Bagga and
others,(1995) 4 SCC 117.
v) Balco Employees Union (Regd.) Vs Union of India and
others, (2002)2 SCC 333 &
vi) Chief Manager, Punjab National Bank and others Vs Anit
Kumar Das, 2021(2) SLR 354 (SC).
115. The respondent no. 3- JKPSC in its reply has submitted
that there is no justification for the intervention of this Court in the
matter at the instance of the writ petitioners, as the selection
criteria as well as the prescribed qualification/standards were
notified in advance in the selection advertisement notification itself
to which the petitioners participated without any demur only to be
caught on the wrong foot with the filing of the writ petition WP(C)
no. 3798/2019 (T. A. no. 62/5610/2020) titled Afshan Anjum Baba
and others Vs UT of J&K and others.
116. JKPSC has submitted that the petitioners were not only
aware of all the criteria in the advertisement notice but even joined
the selection race by producing fraudulent medical certificates
regarding their height which made the JKPSC to permit them to 2023:JKLHC-SGR:2177-DB
57 WP(C) No. 1757/2021
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WP(C) No. 345/2022
compete in the selection process initially and, as such, the
petitioners are the persons not carrying clean hands at their end.
JKPSC has defended the selection process as to the exclusion of the
petitioners being made in accordance with rules and the criteria.
JKPSC is maintaining the stand that it has neither authority nor
any requirement to relax the prescribed standards/eligibility. JKPSC
with respect to its contrast stand first stated before the CAT Jammu
Bench, has stated that the said stand withdrawn inter alia for the
reasons that firstly it did not cover the full factual background of
the case and secondly same was filed without approval of the
competent authority.
117. The respondents 4 to 7, i.e. the persons who were
petitioners in T.A. no. 62/5540/2020 (WP(C) no.3145/2019 titled
“Kaffel Ahmad Mir and others Vs State of J&K and others”), in their
reply have led thrust that the petitioners took part in the selection
process knowing fully well the procedure laid down in SRlJ359 of
1970 read with SRlJ106 of 1992 and as such cannot turn around
to question the same. The respondents 4 to 7 have alleged the
petitioners to have resorted to unfair means in gaining participation
in the selection process given the fact that on earlier occasions for
the selection process for the same post, majority of the petitioners
were weeded out on account of lack of height requirement, as 2023:JKLHC-SGR:2177-DB
58 WP(C) No. 1757/2021
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WP(C) No. 345/2022
warranted under SRO-359 of 1970 read with SRO-106 of 1992. The
respondents 4 to 7 are vehemently questioning the maintainability
of the writ petition by the petitioners on the count that they have
chosen not to question the respective judgments by the CAT Jammu
Bench in T.A. no. 62/540/2020, T. A. no. 62/5677/2020 & T.A. no.
61/1693/2020 and on account of the said omission the CAT
Jammu Bench judgments in the said three T.A.s become final
against the petitioners and, therefore, operate as a res judicata.
118. The reply submitted by the respondent no. 8 -Majid
Hussain also proceeded on the similar tone and tenor as reply
submitted by the respondents 4 to 7. The respondent no. 8 has
pressed into service the principle of res judicata against the
petitioners on account of their failure to call in question the
judgment dated 12.07.2021 passed by the CAT Jammu Bench in T.
A. nos. 62/5677/2020, 61/1693/2020 & 62/5540/2020. The
respondent no. 8 presses into service the principle of estoppel
against the petitioners on account of the fact that the petitioners,
out of their own free will, voluntarily and without any demur applied
before JKPSC in response to the selection advertisement notice
dated 15.03.2018 in the face of the rule position obtaining with
respect to height requirement which had remained in force over a
prolonged period carrying a legal permission of constitutional 2023:JKLHC-SGR:2177-DB
59 WP(C) No. 1757/2021
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validity particularly when it does not suffer any gender
discrimination and applicable uniformly to all the citizens
irrespective of sex.
119. Thus, what was the battle field in five cases before CAT
Jammu Bench is the action replay in the present writ petition
before us, by pressing into service the same set up of submissions
and arguments with addition of some technical one as to the
sustainability of the writ petition in an over-all scenario of the case.
120. The written submissions submitted on behalf of the
respondent no. 1 pressed into service the following case law:-
i. State of West Bengal Vs Subhas Kumar Chatterjee
and others, (2010)11 SCC 694.
ii. Zonal Manager, Bank of India Vs Aarya K. Babu,
(2019)8 SCC 587.
iii. Pradeep Kumar Roy Vs Dinesh Kumar Pandey,
(2015)11 SCC 493.
iv. Chief Manager Punjab National Bank Vs Anit
Kumar Das, (2021)2 SLR 354(SC).
v. State of Tripura Vs Subash Chandra (2017)5 SCC
163.
vi. Balco Employees Union Vs Union of India, (2002)2
SCC 333.
vii. State of Punjab and others Vs Ram Lubhaya Bagga
and others,(1995) 4 SCC 117. 2023:JKLHC-SGR:2177-DB
60 WP(C) No. 1757/2021
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WP(C) No. 345/2022
viii. Directorate of Film Festivals Vs Gaurav Ashwin
Jain and others, (2007)4 SCC 737.
ix. Air Commodore Naveen Jain Vs Union of India,
(2019)10 SCC 34.
x. Ramesh Chandra Shah Vs Anil Joshi, (2013)11
SCC 309.
xi. Islamic Academy of Education and another Vs
State of Karnataka and others, (2003)6 SCC 697.
xii. P.U. Joshi Vs Accountant General, (2003)2 SCC
632.
xiii. Arun Tewari Vs Zila Mansavi Shikshak Singh,
(1998) SCC 331.
xiv. (2019)2 SCC 404, Zahoor Ahmad Rather and
others Vs Sheikh Imtiyaz Ahmad and others.
xv. 1951 SC 41, Charanjit Lal Chowdhary Vs Union of
India.
xvi. 1959 AP 471, Mahant Narayana Dessjivaru Vs
State of Andhra, Hyderabad and others.
xvii. 1980 SC 286, Ganga Sugar Corporation Ltd. and
others Vs State of UP.
xviii. 1977 JK 4, Avtar Singh Vs State of J&K.
xix. (2008)2 SCC 254, Karnataka Bank Ltd. Vs State of
A.P.
xx. (2006) 6 SCC 395, K. H. Siraj Vs High Court of
Kerala and others.
xxi. 1994 AIR 1808, J&K Public Service Commission Vs
Dr. Narender Mohan. 2023:JKLHC-SGR:2177-DB
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121. The respondent no. 3-JKPSC in its written submission has
pressed into service the rationale for defending non -gender
distinguishing height prescription by saying that the women while
working as Range Officer are required to work for protection and
development of forest, requiring movement in forest at time
accompanied by one or two persons only and, as such, require
sound body, stamina and strong nervous systems, which justify the
height prescription without discrimination between male and
female. JKPSC in its written submissions have gone to the extent of
saying that if women of lesser height will be appointed then in that
eventuality weak women have to work in tough situations, terrains
and wild life area and such women cannot be a substitute of men of
stronger bodies. JKPSC is acknowledging that it is because of this
height prescription that good number of women coul d not get
selected in the said Forest Service.
122. From the petitioners‟ end in their written submissions they
have come to reflect upon violation of article 14 of the Constitution
of India with respect to the height prescription in SRlJ359 of 1970,
corresponding services requirements in terms of height and other
physical factors providing both for male and female, conduct of
JKPSC, bona fide conduct of the petitioners in the matter of
submitting their medical certificates issued by the respective Chief 2023:JKLHC-SGR:2177-DB
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Medical Officers and moulding of relief by striking down the
provisions, reading down the provisions, application of equal
opportunity principle, direction to the government to exercise its
power to relax in the justification for not challenging the CAT
judgments in the said three T.A.s. In support of their submissions,
the petitioners have pressed into service the following case law.
i) Dr. (Major) Meeta Sahai Vs State of Bihar and
others, (2019)20 SCC 17.
ii) D. S. Nakara Vs Union of India, (1983)1 SCC 305.
iii) Delhi Transport Corporation Vs DTC Maz door
Congress, 1991 Supp.1 SCC 600.
iv) Lt. Col. Nitisha and Others Vs Union of India and
others, (2021)15 SCC 125.
v) State of Maharashtra and others Vs Ravdeep Singh
Sohal, 2009 SCC 184.
123. The private respondents from their end have also provided
the written submissions following the tone and tenor of their
respective replies.
Court’s appraisal and summation:
124. Job/employment getting, in commensuration with one‟s
ability/meritI is a life making moment for a young man and woman
and that is the reason there is always keen competition to avail any 2023:JKLHC-SGR:2177-DB
63 WP(C) No. 1757/2021
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given opportunity for job/employment for which the aspirants
invest their time and energy to do well in the selection field.
125. With respect to public employment, the State. as being the
largest employer and its employment has surety and security of its
own kind particularly in country like India, the competition to grab
an opportunity of employment is very crowded and competitive
which often times bring the matter in litigation by and between the
selected and non-selection ones. That is how the jurisprudence of
selection with respect to public employment has evolved and
developed under the Constitution of India.
126. As is evident from the facts and circumstances narrated
herein before, the present case is one where the tussle has been
very keen making this Court to labour to draw a correct perspective
with respect to the present case out of varying aspects attending it.
127. After perusing the entire canvass of the case obtaining in
the form of pleadings, vehement submissions and persuasive
arguments and appealing case law from both sides, we have no
hesitation to observe and register at the very outset that there is
every allurement and pull confronting us to succumb to the
submissions so made from the respondents‟ end to dislodge the
present writJpetition of the petitionersI in particular of the petitioner 2023:JKLHC-SGR:2177-DB
64 WP(C) No. 1757/2021
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nos. 1 to 7 who are the female candidates. The reason for
allurement is because there cannot be any iota of difference of
opinion and mind with the perspectives with which the respondents
in general, and in particular the respondents 4 to 9, are seeing the
case scenario. In a normal happening case where the qualification
prescribed for any selection process is well meaning and objective,
any candidate not meeting said prescribed qualification cannot be
allowed any accommodation in selection participation or
recommendation for appointment on any pretext whatsoever or
cannot be heard to ask for customization of the requirements
prescribed. In that scenario every plea and citation from the
respondents‟ end would have applied on all fours making our job of
judgment making most easy.
128. In the present case in the light of the case law cited by the
respondents, a very thrusting plea is made out to deal with the
petitioner nos. 1 to 7 with vigor as laid down in the said citations
and citing that CAT Jammu Bench has followed the said script
literally in coming up with the judgments.
129. However, in case of yielding to this solicitation we are afraid
that we would be missing the woods for the trees and in the process
fail to see and examine the case from the perspective of the
Constitution of India and instead would be caught confining our 2023:JKLHC-SGR:2177-DB
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view and vision dictated purely by the ritual of the rule requirement
in reference. We reckon if we do so that would be letting down the
justice in the present case to the extent of belittling the
Constitution of India‟s commitment in empowering and freeing the
women as a class against entrenched and stereotyped prejudicesI be
it at the end of the pociety in terms of its social norms or at the end
of the State in terms of its legal norms.
130. The most eye and mind catching scenario of this case is
that from the respondents‟ end, in particular the respondent nos. 1
& O‟s end, there has been no whisper of statement with respect to
the rationale in providing gender neutral height and chest
prescription in SROJ359 of 1970 read with SRlJ106 of 199O read
with SRO 264 of 1998 particularly when not only with respect to
other contemporary State and Central Service, the relevant Rules
are providing for differential physical standard prescription for male
and female candidatesI particularly when the said contemporary
pervices are of demanding nature equal to the one of which the
present case is related toI but also in the J&K Forest (Subordinate)
Service where the irrationality obtaining in the form of one height
prescription without any gender distinction for Range officer II has
been set to correction by Govt. of UT of Jammu & KashmirK 2023:JKLHC-SGR:2177-DB
66 WP(C) No. 1757/2021
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131. We find that there is a sheepish avoidance on the part of
the respondent nos. 1 to 3 particularly in affording an explanation
as to with which mindset the rule makers of the time at the time of
conception of SRO-106 of 1992 had conceived the height
prescription without any distinction between male and female sex
when the Constitution of India in the year of its making on
26.11.1949 was conceiving and bearing in comprehension for
ensuring to the women citizens of India fundamental rights under
article 15 & 16 of the Constitution of India vesting with the State a
constitutional empowerment to make special provisions for women
and children as a class apart. The Constitution of India did provide
a generic fundamental right to equality to all citizens under its
article 14 but simultaneously carved out an exception in terms of
law making for women and children under its article 15 (3).
132. SRO-359 of 1970 read with SRO-106 of 1992 in terms of
height and chest prescription without mak ing any gender
distinction, is, in fact, pregnant with dormant, passive & latent, if
not active and patent discrimination, against women on the face of
it. Dissolution of distinction does not and cannot in all cases point
out to be a case of generic equality under article 14 of the
Constitution of India as that may in some cases amount to pinching
form of inequality which the SRO-359 of 1970 read with SRO-106 of 2023:JKLHC-SGR:2177-DB
67 WP(C) No. 1757/2021
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1992 is an exhibit of. Inequality sets in when equality is considered
with a dissolved perception as is the case on the part of rule making
authority in framing height prescription under SRO-106 of 1992
read with SRO-264 of 1998 without bearing in perspective most
obvious and natural difference and distinction in height requirement
of male and female as class apart from each other.
133. The private respondents herein, along with their other
colleagues who had come forward with institution of three writ
petitions before this Court which later on transferred to CAT Jammu
Bench, are the persons who had lost in competition to the
petitioners no. 1 to 7 all being women. This loss was reckoned by
the private respondents as usurpation and intrusion by the
petitioners no. 1 to 7 of the merit positions which would have come
to the private respondents in case the petitioner nos. 1 to 7
participation in the selection process would have been nipped in the
bud or clipped in the course of selection process by the JKPSC on
account of shortage of height requirement.
134. It is from this “Nothing to lose” position that the private
respondents had ventured to take a hit at the selection of the
petitioners noK 1 to 7 to present a picture that the petitioners noK 1
to TI who are otherwise higher in their respective merit as against
the private respondents, be downsized by the fact of their deficit 2023:JKLHC-SGR:2177-DB
68 WP(C) No. 1757/2021
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physical height otherwise falling short of so called prescribed height
just by one or two inches except in the case of the petitioner no. 7
Azeem Raja who has higher height difference.
135. We have no patience to withhold our observation that the
rule makers of SRO-106 of 1992 read with SRO 264 of 1998 were
suffering from discernment dysfunctioning in missing out bearing
in mind the fact that when Nature herself has made with respect to
living beings in general and human beings in particular, two sexes
different in terms of respective physical features, functionalities
and potentialities which even the highest law of nation in the form
of the Constitution of India lost no time to acknowledge and state
the said distinction in its perspective , then for the rule makers of
the time to prescribe one height requirement, one chest dimension
requirement and one physical walk requirement of 25 km in 4 hours
for male and female candidates alike was and is nothing but sheer
repulsion to the principle of life and law which governs the creation
and recognition of two sexes i.e. male and female in their respective
dimension..
136. The respondents urge us to reckon SRO-359 of 1970 read
with SRO-106 of 1992 & SRO-264 of 1998 in the context of height
prescription requirement as an island in itself in the sea of
contemporary service rules wherein male and female candidates 2023:JKLHC-SGR:2177-DB
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have been differentiated and provided for separately in terms of
physical requirement prescription. We cannot extend such a
courtesy to the said plea of the respondents to hold that woman of
merit cannot be a deserving Range Officer Grade-I in the J&K Forest
Gazetted Service in case she is falling short of the prescribed height
of 5.6 feet by two or three inches while in any other contemporary
Govt. Service her height is not to be a handicap.
137. Without meaning any disrespect to the submissions of the
respondents, we are called upon both to accord with and act upon
an absurdity as patented by the rule in reference, particularly when
we see around in social and public life context that at every public
and social place there are separate facilities meant and provided for
male and female, in sports competitions from amateur level upto
Olympic level male and female sports persons compete separately,
separate laws for the treatment and protection of women from social
harms and evils, reservation for women in local bodies, and so many
varying situations providing separately for women are accepted
reality of public life and law.
138. Many laws are evolving to bring forward the women from
back pages of life to front page to be co-participant and co-partner
in the Nation‟s life. SRlJ359 of 1970 read with SRlJ106 of 1992 not
only in the context of height prescription of candidates for the post 2023:JKLHC-SGR:2177-DB
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of Range Officer Grade-I is antiquated but also frozen in time not
keeping in reality alignment with the spirit of the Constitution of
India which envisages reckoning and recognizing the women with a
commitment to empower them by setting aside of the express or
implied barriers in law and life which otherwise were least realized
to be speed breakers, be it social, religious or legal, in women‟s
drive towards empowerment in and outside the householdK So much
so even the World of Business and Industry shifted their perception
towards women as a class distinct from men and that is the reason
that a Scooter which was once meant to be man driven vehicle came
to have its equivalent and competitor in the form of pcooty for
women to have the freedom to drive on their own empowering them
in their own selfJdependence.
139. We find that the respondents 1 to 3 in particular in their
stance and stand in the case before CAT Jammu Bench and also
before us in this case have opted to be ritualistic and perhaps if we
can take liberty to say so maleminded to side with the rule
prescription rather than being realistic with the fact that the
dissolution of sexes in the context of the height rule prescription is
inherently discriminatory and antithetical to the equality edifice of
the articles 14, 15 & 16 of the Constitution of India making no
correlation with the objective to the post of Range Officer-I. 2023:JKLHC-SGR:2177-DB
71 WP(C) No. 1757/2021
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140. We are mindful of the fact that the issue with respect to the
legality and validity of height related prescription came to take place
at the last leg of selection process when the writ petitioners 1 to 7
were meant to be disqualified from being recommended for
appointment because of their lack of requisite height and that
invited the debate with respect to the height prescribed bearing no
distinction between male and female.
141. If we allow ourselves to be driven by the submissions of the
respondents‟ side to disqualify the petitioner nos. 1 to 7 from
agitating their grievance in the matter after their selection
participation, then that would mean the prescribed height
parameter needs to be challenged by a woman/girl without joining
the selection process of a given time and by the time the issue is
finally resolved by long drawn course of legal declaration of a
constitutional court, last of which is the Hon‟ble Supreme Court of
India, and till that time a woman/girl aspiring to be Range Officer
GradeJI in J&K Forest (Gazetted) Service has to settle herself as a
spectator to the selection process/processes passing by while
awaiting the outcome of the litigation with respect to the legality and
validity of the nonJgender height prescription. We cannot read such
a state of helplessness in law and life for a woman to get in. In fact
we would refer ourselves to legal maxim to best explain the legal 2023:JKLHC-SGR:2177-DB
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venture of the petitioners no. 1 to 7 and that is “ vigilantibus et
non dormientibus jura subveniunt” meaning that law aid those
who are vigilant, not those who sleep upon their rights. This maxim
should have been kept into consideration by the CAT Bench Jammu
when it came to denounce the petitioners 1 to 7 in saying that in the
face of height prescription many women must not have applied in
response to the JKPSC Selection Advertisement Notification and
that the petitioners 1 to 7 cannot have an undue advantage by
having participated in the selection without requisite physical height
eligibility.
142. In this regard the verdict of the Hon‟ble Supreme Court of
India in the case of Dr. (Major) Meeta Sahai Vs State of Bihar and
others, (2019)20 SCC 17 which strongly comes to over aid, in which
in para 17 the Hon‟ble Supreme Court of India has attended the
situation in the following manner:J
“17. However, we must differentiate from this principle
insofar as the candidate by agreeing to participate
in the selection process only accepts the prescribed
procedure and not the illegality in it. In a situation
where a candidate alleges misconstruction of
statutory rules and discriminating consequences
arising therefrom, the same cannot be condoned
merely because a candidate has partaken in it. The
constitutional scheme is sacrosanct and its 2023:JKLHC-SGR:2177-DB
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violation in any manner is impermissible. In fact, a
candidate may not have locus to assail the
incurable illegality or derogation of the provisions
of the Constitution, unless he/she participates in
the selection process.”
143. Though, the CAT Jammu Bench in its judgment has
registered its inability to examine the legality of non-gender
distinguishing prescribed height requirement by holding that unless
and until the policy is unconstitutional, arbitrary or irrational or
contrary to the statutory provisions, it is improper for the Judges to
step into the sphere except in a rare and exceptional case but the
CAT Jammu Bench failed to pose a question of rationality/
irrationality attending the said height requirement and then
examine the case before it from the angle of rationality/
irrationality of the prescribed height which was dissolving difference
between male and female candidates by subscribing a non-gender
height requirement.
144. SRO 106 of 1992 read with SRO 264 of 1998 are product of
exercise of legislative power of the Governor vested under proviso to
section 125 of the then Constitution of India ( akin to article 309 of
the Constitution of India). Said SROs are amenable to judicial
review jurisdiction of this Court in case of being in conflict with the
Constitution of India Part III guaranteed fundamental rights of 2023:JKLHC-SGR:2177-DB
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persons. No other legal formality is required to be done before
dealing with a rule so framed if found coming in the way of
depriving a person of his/her fundamental right which in the
present case if of the petitioners no. 1 to 7 in the context of height
prescription which is unfair, unreasonable and irrational at every
point of its operation and effect. In this regard, judgment of the
Hon‟ble Supreme Court of India in the case of Brajendra Singh
Yambem Vs Union of India and Ors 2016 AIR SC 410T comes to
our assistance.
145. The very act on the part of the Govt. of UT of J&K in
coming up at its own with an amendment to the J&K Forest
(Subordinate) Service Recruitment Rules, 1991 vide Govt. Order no.
22-JK(Fst)2022 dated 07.03.2022 thereby prescribing separate
height for male and female candidates inspiring to become Range
Officer-II in the J&K Forest Subordinate Service, is an express
acknowledgement on the part of the Govt., as being the rule making
authority, that SRO-335 of 1991 with respect to the J&K Forest
(Subordinate Service) Recruitment Rules, 1991 in which height
requirement for Forester and consequently for Range Officer-II being
non-gender distinguishing seriously devoid of rationale and reason
was requiring immediate amend for sparing the embarrassment
further so as to come up with separate height prescription for male 2023:JKLHC-SGR:2177-DB
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and female candidates and even separate chest dimension for male
and female candidates, separate distance for walk test for male and
female candidates.
146. Now, what has been set right and correct for the J&K
Forest (Subordinate) Service if not to be applicable in the case of
J&K Forest (Gazetted) Service is and would be an exhibit of
absurdity in itself to say the least when both Services are better half
of each other.
147. The irrationality of height prescription incorporated in
terms of SRO-106 of 1992 read with SRO -264 of 1998 is self-
exhibited from the fact that the post of Range Officer Grade-I came
to be placed in the cadre of J&K Forest (Gazetted) Service vide SRO-
106 of 1992. The height prescription for the candidate was 163 cms
without bearing any geographical or biological distinction but upon
coming into scene of SRO-264 of 1998, a geographical distinction
came to be recognized and introduced, inasmuch as, for General
Category candidate prescribed height came to be 5.6 feet, but for the
candidate of Leh and Kargil districts of Ladakh province the height
prescription came to be 5.4 feet, meaning thereby that the rule
making authority came to realize a fact that the said two districts of
province of Ladakh were having a different and distinct height
scenario of its inhabitants. 2023:JKLHC-SGR:2177-DB
76 WP(C) No. 1757/2021
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148. Now, it is not that every resident of Leh or Kargil would be
of short height, inasmuch as, a person originally born resident of
Kashmir or Jammu province could be a resident of Leh and Kargil
and that would not mean that he or she per se was born with a
short height on account of genetic make-up but it is the original and
hereditary resident of Leh and Kargil districts who were conceived to
be of height shorter to the rest of the region of the then State of
Jammu & Kashmir.
149. Now, if the particular region could be the basis of
distinction in terms of height prescription, then for same very rule
making authority to keep biological aspect of male and female
height out of its purview is nothing but an act of absentmindedness
which is another name of abandoned application of mind at all the
relevant point of time on the part of the rule making authority which
kept agender height prescription in play all along the years till the
coming into scene of the present case of seven female candidates i.e.
the petitioners 1 to 7 to take on the anomaly and absurdity so
obtaining in terms of the height prescription in the rules.
150. Development of law with respect to searching, selecting and
deleting long and deep seated, intended or unintended ,
discriminations, denials, deprivations, and tendencies related there
with, in the context of due role and rights of Indian women is not a 2023:JKLHC-SGR:2177-DB
77 WP(C) No. 1757/2021
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one hit exercise but an ever evolving exercise at the service end of
the Society and the State, the Laity and the Law in their respective
role and responsibility. Any presenting occasion or an opportunity
to undo a reported or detected discrimination, deprivation or denial,
if left or let go begging is to pronounce to a suffering woman that
unfairness in life and reluctance of law in her context are mutual
serving.
151. We have been confronted with an opportunity through this
case to set right a long seated illegal and irrational discrimination in
terms of rule position in reference and in case if we also choose to
take a copybook approach to the case then we would be keeping
ourselves at the same page with the rule making authority, which at
the first instance at the time of conception of SRO-106 of 1992
followed by SRO-264 of 1998 had come up with agender height
prescription without bearing in mind that male and female heights
stand on a different pedestal and cannot be equated und er one
umbrella.
152. It is pertinent to bear in mind that Govt. Order no. 22-
JK(Fst) 2022 dated 07.03.2022 with respect to J&K Forest
(Subordinate) Service amendment coming into scene during the
pendency of the controversy involved in the present case, means
thereby that a realization finally dawned upon the Govt. not to 2023:JKLHC-SGR:2177-DB
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embarrass the Constitution of India any further in the context of its
article 14, 15 & 16 by perpetuating the artificiality of non-gender
height prescription with respect to the J&K Forest Service, be it
„Subordinate‟ or „Gazetted‟ and the Govt. I started from the
Subordinate Service though shying away from extending it to
Gazetted Service for the reason which does not sound any sense to
usK The Govt. is not supposed to make and maintain an ego
statement and position in the matter of carrying out self correction
in its actions/decisions particularly when the correction is
warranted to be in alignment with the call of article 14, 15 & 16 of
the Constitution of IndiaK
153. Even without the Govt. of UT of J&K having carried out the
requisite amendment with respect to the irrationality of the height
prescription in J&K Forest (Subordinate) Service, which too from its
inception in 1991 in terms of SRO 335 of 1991 was maintaining and
requiring height of 163 cms without any gender distinction i.e. male
and female candidates and same walk test , even then this court
would not have allowed the irrationality of the height requirement to
run its course any further because the height prescription was and
is amounting to nothing but dishonoring a woman‟s identify in
terms of her physicality getting a dissolved identification with
physicality of man. Very fact that even by chest dimension and walk 2023:JKLHC-SGR:2177-DB
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test the male and female candidate were being kept on same page in
said SRO 335 of 1991 and SRO 106 of 1992 is an exhibit of fact that
the rule makers of the time were suffering a conviction that post of
Range Officer in the Forest Service is to be meant only for men to
man. The very thought process was and is nothing but stereotyped
and retrogressive.
154. As we have already observed hereinabove, that none of the
respondents, in particular the respondents 1 to 3 i.e. Govt. of UT of
Jammu & Kashmir and JKPSC , have come forward with a whisper
of rationale with respect to non-gender height prescription, so we
were to read and are reading the said agender height requirement as
inherently discriminatory in nature for all intents and purposes
against none else than female candidates who happen to be the
petitioner nos. 1 to 7 in the case.
155. We pose a situation to ourselves that in case if rule would
have provided a separate height for male and separate for female
then surely we would not have entertained any grouse or grievance
of the petitioners 1 to 7 herein that the prescribed height for female
under the rules is on the higher side as against the prescribed
average height of female under rules in the rest of country and the
region. In that respect we would have excused ourselves from
getting into the dissection of the policy governing the said height 2023:JKLHC-SGR:2177-DB
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particular prescription for female at the instance of the female
candidates similarly situated as the petitioners 1 to 7 herein in the
case having qualified the written and interview of the selection
competition. Since that is not the situation obtaining in the present
case that is why we are led into the adjudication of the
rationality/irrationality of non-gender height prescription and that
is the reason we have observed that this case is not to be looked
only from the lens of the private respondents‟ standpoint which in
routine would have prevailed without requiring any labour from us.
156. Given the fact that in almost all other Govt. Services which
are part of the same eco-system of the public employment, which
prescribe and require height of a candidate relatable to given
service, there is a distinction obtaining between male and female
candidates with different height and chest presc ribed
measurements, then we cannot countenance a concession to the
J&K Forest (Gazetted) Service to be an island in itself particularly
when the creator and author of all Service and Service Rules is not
different entities but only one and that being the State.
157. The Hon‟ble Supreme Court of India in the case of Lt. Col.
Nitisha and others Vs Union of India and others , (2021)15 SCC
12R has examined the concept of discrimination in the context of
women thoroughly by approaching it from the angle of systemic 2023:JKLHC-SGR:2177-DB
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discrimination. In the limited context of the present case, we are
also confronted with the case of indirect discrimination ex-facie
pretending non-gender height prescription. What was held by the
Hon‟ble Supreme Court of India in Lt. Col Nitisha‟s case in para 123
is reproduced hereunder:J
“123. We must recognize here that the structures of
our society have been created by males and for males.
As a result, certain structures that may seem to be
the “norm” and may appear to be harmless, are a
reflection of the insidious patriarchal system. At the
time of Independence, our Constitution sought to
achieve a transformation in our society by envisaging
equal opportunity in public employment and gender
equality. Since then, we have continuously
endeavored to achieve the guarantee of equality
enshrined in our Constitution. A facially equal
application of laws to unequal parties is a farce,
when the law is structured to cater to a male
standpoint. Presently, adjustments, both in
thought and letter, are necessary to rebuilt the
structures of en equal society. These adjustments
and amendments however, are not concessions
being granted to a set of persons, but instead are
the wrongs being remedied to obliterate years of
suppression of opportunities which should have
been granted to women. It is not enough proudly
state that women officers are allowed to serve the
nation in the Armed Forces, when the true picture of 2023:JKLHC-SGR:2177-DB
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their service conditions tells a different story. A
superficial sense of equality is not in the true spirit of
the Constitution and attempts to make equality only
symbolic.”
158. We reckon that the height prescription in the present case
constrains female candidates to think as a man, which thought is
held to be abominable for its slaughters a core identity of a woman
as held by the Hon‟ble Supreme Court of India in the case of Joseph
Shine Vs Union of India, 2018 SC 4898 . An antiquated service
rule prescription cannot be allowed to stare down essence of articles
14, 15 and 16 of the Constitution of India to the prejudice of
entitlement and empowerment of seven female candidates who the
petitioners 1 to 7 are.
159. In the case of A. P. Vs P. B. Vijaykumar and another,
1995 SC 1648, the Hon‟ble Supreme Court of India has dealt with
as to what is meant by “any special provision for women” in article
15(3) whereby reading an affirmative action or reservation by the
State to improve women‟s participation in all activities, thereby
upholding preference given to women in selection for direct
recruitment without being covered under reservation.
160. Having so stated and understood, in the context of facts
and circumstances of the case, we hold that CAT Jammu Bench 2023:JKLHC-SGR:2177-DB
83 WP(C) No. 1757/2021
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WP(C) No. 345/2022
failed to see and reach the core of the case and fetched the
conclusions for its judgments only from the optics of the cases.
161. We, hold that the petitioners 1 to 7‟s recommendation for
appointment should not have been made or held hostage by the
JKPSC as being a constitutional body to a discriminatory, unfair,
unreasonable and unintelligible height requirement and that it
should have been left for the Govt. of UT of J&K to address its
discernment and discretion in favour of the petitioners noK 1 to 7 by
exercise of its rule relaxing power and appoint the petitioners no. 1
to 7 as Range OfficersJGrade f who at the end of day are the merit
makers making the Jammu & Kashmir Forest Gazetted Service to
get for the very first time in its history induction of 8 women officers
borne out of single selection process.
162. Now, coming to the matter of doing what is needed to be
done in the present case, we reckon that the ends of justice would
be served by directing the JKPSC to consider recommending for
appointment the names of the petitioners 1 to 7 to the Govt. of UT of
J&K at the first instance on account of their merit based and proved
claims, whereupon the Govt. of UT of J&K having the execut ive
power as well as the power under rule 4 of the J&K Civil Services
(Classification, Control & Appeal) Rules, 1956 to relax the rigor of
any service rule, to consider accepting JKPSC recommendation 2023:JKLHC-SGR:2177-DB
84 WP(C) No. 1757/2021
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WP(C) No. 345/2022
with respect to the petitioners 1 to 7 and granting appointment to
the petitioners 1 to 7 as Range Officer-Grade I by relaxing the height
requirement in their favour in acknowledgement of their meritorious
position in the selection process.
163. This Court further directs the Govt. of UT of J&K to carry
out immediate amendment of the physical requirement stipulated in
obtaining in SRO-359 of 1970 read with SRO-106 of 1992 and SRO-
264 of 1998 in tune with amendment of like requirement in the J&K
Forest (Gazetted) Service so as to set the field free for more female
candidates to join the competition in future for the service.
164. In the light of the aforesaid, we hold that judgments passed
by the CAT Jammu Be nch in T. A. no. 62/5610/2020 & T. A. no.
62/920/2021 is not sound in law and deserves to be set aside and
consequently it results in ouster from scene of the respondents 4 to
9 herein as well as the persons who co-figured as the petitioners in
T.A. no. 62/5540/2020, T.A. no. 62/5677/2020 & T. A. no.
61/1693/2020 with respect to their purported claim for selection in
place of the writ petitioners 1 to 7.
165. We are conscious of the fact that the petitioners 1 to 7 in
particular were party respondents in T. A. no. 62/5540/2020 & T.A.
no. 62/5677/2020 in which the CAT Jammu Bench came up with 2023:JKLHC-SGR:2177-DB
85 WP(C) No. 1757/2021
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WP(C) No. 345/2022
the respective judgment and that those two judgments along with
the judgment in T.A. no. 61/1693/2020 have not been challenged
separately by the petitioners 1 to 7 herein but given the fact that in
the event of the judgment dated 12.07.2021 passed by the CAT
Jammu Bench in T.A. no.62/5610/2020 and T.A. no.62/920/2021
getting reversal through our judgment in the present writ petition,
the inevitable consequence would be that the judgments passed by
the CAT Jammu Bench in said three T.A.s i.e. T.A. no.
62/5540/2020, T.A. no.62/5677/2020 & T. A. no.61/1693/2020
will per se collapse and, therefore, we accordingly declare that the
judgments passed in said three T.A.s by the CAT Jammu Bench to
be rendered null and void.
166. As a consequence of the reliefs being granted by us in
favour of the petitioners 1 to 7 any and all intervening
decision/action on the part of the JKPSC as well as the Govt. of UT
of J&K with respect to cancellation of candidature of the petitioners
1 to 7 with respect to selection, the recommendation of names of
respondents 4 to 6 and other male candi dates to substitute the
petitioners 1 to 7, action at the end of Govt. of UT of J&K in
purportedly accepting the cancellation of candidature of the
petitioners no. 1 to 7, and lastly of recalling of all unfilled posts from 2023:JKLHC-SGR:2177-DB
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selection process pending before selection authorities, shall stand
nullified.
167. With respect to the petitioner no. 8 in the present petition,
we are afraid that at no point of time he had any cause and case in
the matter to even figure in the litigation and, therefore, with respect
to him he is held entitled to no relief on the count that he did not
figure at his own initiative in any case before the CAT Jammu
Bench and otherwise also he is an alien to the matter in issue by
every reference of the case.
Disposed of accordingly.
WP(C) No. 345/2022
In the light of the aforementioned final outcome arrived at
by us, We, therefore, dispose of the connected writ petition WP(C)
no. 345/2022 on the same analogy bearing similar conclusion
except with respect to the petitioner no. 8 therein to whom we have
ousted from any consideration even in the present writ petition
WP(C) no. 345/2022.
Before parting with the judgment, we would like to put on
record the reason for some delay caused in judgement making of
this case at our end on account of intervening roster shifting
between Jammu and Srinagar and also that the case required 2023:JKLHC-SGR:2177-DB
87 WP(C) No. 1757/2021
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WP(C) No. 345/2022
perusal of the physical file given its bulk record the perusal of which
from the digital file was not feasible.
A best epilogue to end our judgment representing the
essence of this case is a quote by Maya Angelou which is “Each
time a woman stands up for herself, without knowing it
possibly, without claiming it, she stands up for all women”.
(Rahul Bharti)
Judge
(Rajnesh Oswal)
Judge
Jammu
06.09.2023
Muneesh
Whether the order is reportable : Yes
Whether the order is speaking : Yes 2023:JKLHC-SGR:2177-DB
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