Srinagar: The High Court Thursday stayed a Central Administrative Tribunal’s (CAT) order regarding selection of Range Officer, Grade-I Forest (Territorial) posts.
Some aggrieved female candidates have challenged constitutional validity of SRO 359 of 1970 with the contention that it prescribes a common height (5 feet 6 inches) for men and women in the selection. “The SRO is discriminatory in nature,” they say.
The Government’s stand before Tribunal was that while prescribing the qualifications for post, the State, as employer, may legitimately bear in mind several features including the nature of the job, the aptitudes requisite for the efficient discharge of duties and the functionality of a qualification.
As against this, the petitioners contended that a number of surveys show that the average height of female is less than average height of male in J&K and therefore, treating “unequals as equals” violates Article 14 and 16 of the Constitution of India.
In its order the CAT had ruled that “it is policy of the Government to fix physical and other parameters as qualifying standards for a highly competitive selection process for post like the J&K (sic)”.
Subsequently in its order of July 12, the CAT asked PSC to conduct the exercise of height measurement and the tests mentioned in the advertisement notice and thereafter prepare the final select list of candidates who fulfill all the eligibility criteria mentioned in the advertisement notice.
In their plea before the High Court, the female candidates through senior counsel Salman Khursheed who appeared through virtual mode contended that the Tribunal has not appreciated the contentions raised by the petitioners in their true and correct perspective, thereby resulting in violation of the rights guaranteed to them under the Constitution.
The senior counsel argued that the rule making power vested with the Legislature is to be exercised within the circumference of the scheme enshrined in the Constitution and that the power cannot allowed to be exercised in a manner to qualify to be unreasonable and of the nature of perpetuating the inequality on the basis of physical standard—the stand of height.
He said that while CAT has said that adjudication of constitutional validity of a Rule cannot be done by it, the Tribunal, instead of directing the PSC to complete the process of selection by strictly adhering to the rules, ought to have referred the same to High Court.
After hearing the petitioners, a division bench of Justices Ali Muhammad Magrey and Vinod Chatterji Koul issued notice to government and the PSC for their response to the petition by September 28.
The Court however stayed the CAT order after it found a prima facie substance in the argument of the senior counsel. “Meanwhile, subject to objections from the other side and till the next date of hearing before the Bench, the operation of the impugned order dated 12th of July, 2021 passed by the Tribunal in TA No. 62/5610/2020 shall remain stayed with further direction to the respondents not to finalize the selection in question.”