1 2025:CGHC:39738-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR WPS No. 2108 of 2022 Kamlesh Kumar Chandel S/o Bhanu Prasad Chandel Aged About 32 Years R/o Village- Madauda, Khairagardh, District- Rajnandgaon, 491885. ... Petitioner. versus 1. State Of Chhattisgarh Through The Secretary, General Administration Department, Mahanadi Bhawan, Nawa Raipur, Atal Nagar, 492002. 2. State Of Chhattisgarh, Through The Secretary, Department Of Transport, Mahanadi Bhawan, Nawa Raipur, Atal Nagar, 492002. 3. Transport Commissioner, Indrawati Bhawan, Nawa Raipur, Atal Nagar 492002. 4. Upper Transport Commissioner, Indrawati Bhawan, Nawa Raipur, Atal Nagar, 492002. 5. Additional Regional Transport Commissioner, Rajnandgaon, District- Rajnandgaon, 491441. ... Respondents. For Petitioner : Shri Tanuj Patwardhan, Advocate. For State/Respondents : Shri R.S. Marhas, Addl. Advocate General. AVINASH SHARMA Digitally signed by AVINASH SHARMA Date: 2025.08.12 17:53:03 +0530 2 Division Bench Hon'ble Shri Justice Sanjay K. Agrawal & Hon'ble Shri Justice Deepak Kumar Tiwari Order on Board (08.08.2025) Sanjay K. Agrawal, J. 1. Petitioner has preferred this Writ Petition under Article 226/227 of the Constitution of India questioning the constitutional validity of point (ii) of sub-clause (four) of clause 2 of Schedule-V of Chhattisgarh Transport Department Sub-ordinate Class-III (Executive) Service Recruitment and Condition of Service Rules, 2008, prescribing physical height of a candidate as 165 c.m. to be unconstitutional, arbitrary and discriminatory. 2. The aforesaid challenge has been made on following factual backdrop:- Petitioner’s case:- 3. Petitioner was appointed on the post of Assistant Grade III in the year 2011 in the office of the Additional Regional Transport Commissioner, Rajnandgaon through direct recruitment. The petitioner belongs to a Scheduled Caste category. Petitioner was found eligible for the post of Transport Sub Inspector (Non Technical) and his name was also forwarded to the headquarters for further action. On 04.01.2022, Respondent No.4 published the 3 final list of eligible candidates for the post of Transport Sub Inspector (Non Technical), in which, petitioner was declared ineligible for not having the requisite height for promotion i.e. 165 c.m. vide Annexure P/5, against which, petitioner submitted a representation which was rejected on 14.02.2022 stating that relaxation in height cannot be granted which led to filing of this Writ Petition questioning the constitutional validity of the aforesaid rule. Respondents’ case:- 4. Return has been filed on behalf of the State/respondents stating, inter alia, that the prescription of physical height of a candidate for the post of Transport Sub Inspector (Non technical) is prerogative of the employer and it is for the State to fix and decide the eligibility criteria for selection to any post in the Government in exercise of powers conferred by proviso to Article 309 of the Constitution of India and the prescription of such a eligibility criteria is direct prescription which requires no interference in extraordinary jurisdiction of this Court. 5. No rejoinder has been filed on behalf of the petitioner. Submissions of learned counsel for the parties:- 6. Shri Tanuj Patwardhan, learned counsel for the petitioner submits that the aforesaid rule prescribing the physical height of all the candidates except candidates belonging to Scheduled Tribes 4 category should be 165 cm is arbitrary, discriminatory and has no rationale to stand, therefore, the same is liable to be struck down. He would rely upon the decision of the Karnataka High Court at Bengaluru in the matter of Sri. Manjunath P. vs. The State of Karnataka and Another in Writ Petition No.469 of 2024, decided on 12.07.2024. 7. Shri R.S. Marhas, Addl. Advocate General for the State/respondents would support the eligibility criteria including the height of the candidate for the post of Transport Sub Inspector (Non technical) and would rely upon the decision of the Hon’ble Supreme Court in the matter of Union of India vs. Pushpa Rani And Others1 and submits that this Writ Petition deserves to be dismissed. 8. We have heard learned counsel for the parties, considered their rival submissions and went through the record with utmost circumspection. 9. First of all, we will notice the Principles for Examining Constitutional Validity of Statute / Rule. Principles for Examining Constitutional Validity of Statute / Rule: - 10.A Statute is construed so as to make it effective and operative on the principle expressed in the maxim “ut res magis valeat quam 1 (2008) 9 SCC 242 5 pereat”. Therefore, a presumption that the Legislature does not exceed its jurisdiction, and the burden of establishing that the Act is not within the competence of the Legislature, or that it has transgressed other constitutional mandates, such as those relating to fundamental rights, is always on the person who challenges its vires. (See Principles of Statutory Interpretation by Justice G.P. Singh, 12th Edition, page 592.) 11.It is a settled principle of law that the Statute enacted by the Parliament or State Legislature cannot be declared unconstitutional lightly. The Court must be able to hold beyond any iota of doubt that the violation of the constitutional provisions was so glaring that the legislative provisions under challenge cannot stand. 12.The Constitution Bench of the Supreme Court in the matter of Shayara Bano v. Union of India and others (Ministry of Women and Child Development Secretary and others)2 held that legislation can be struck down if it is manifestly arbitrary and manifest arbitrariness is the ground to negate legislation as well under Article 14 of the Constitution of India. It has been observed by their Lordships as under: - “101. It will be noticed that a Constitution Bench of this Court in Indian Express Newspapers (Bombay) (P) Ltd. v. 2 (2017) 9 SCC 1 6 Union of India3 stated that it was settled law that subordinate legislation can be challenged on any of the grounds available for challenge against plenary legislation. This being the case, there is no rational distinction between the two types of legislation when it comes to this ground of challenge under Article 14. The test of manifest arbitrariness, therefore, as laid down in the aforesaid judgments would apply to invalidate legislation as well as subordinate legislation under Article 14. Manifest arbitrariness, therefore, must be something done by the legislature capriciously, irrationally and/or without adequate determining principle. Also, when something is done which is excessive and disproportionate, such legislation would be manifestly arbitrary. We are, therefore, of the view that arbitrariness in the sense of manifest arbitrariness as pointed out by us above would apply to negate legislation as well under Article 14.” 13.In the matter of Dr. Jaya Thakur v. Union of India and others4, it has been held by three-judge Bench of the Supreme Court that judicial review is a powerful weapon to restrain unconstitutional exercise of power by the legislature and executive by observing as under: - “68. It could thus be seen that the role of the judiciary is to ensure that the aforesaid two organs of the State i.e. the Legislature and Executive function within the constitutional limits. Judicial review is a powerful weapon to restrain unconstitutional exercise of power by the legislature and executive. The role of this Court is limited to examine as to whether the Legislature or the Executive has acted within the powers and functions assigned under the Constitution. However, while doing so, the court must remain within its self-imposed limits.” 3 (1985) 1 SCC 641 : 1985 SCC (Tax) 121 4 2023 SCC OnLine SC 813 7 14.Thereafter, in Dr. Jaya Thakur (supra), their Lordships of the Supreme Court relying upon their earlier judgment in the matter of Binoy Viswam v. Union of India and others5 and reviewing their earlier decisions, speaking through B.R. Gavai, J., have held that the statute enacted by Parliament or a State Legislature cannot be declared unconstitutional lightly, and observed as under: - “70. It could thus be seen that this Court has held that the statute enacted by Parliament or a State Legislature cannot be declared unconstitutional lightly. To do so, the Court must be able to hold beyond any iota of doubt that the violation of the constitutional provisions was so glaring that the legislative provision under challenge cannot stand. It has been held that unless there is flagrant violation of the constitutional provisions, the law made by Parliament or a State Legislature cannot be declared bad. 71. It has been the consistent view of this Court that legislative enactment can be struck down only on two grounds. Firstly, that the appropriate legislature does not have the competence to make the law; and secondly, that it takes away or abridges any of the fundamental rights enumerated in Part III of the Constitution or any other constitutional provisions. It has been held that no enactment can be struck down by just saying that it is arbitrary or unreasonable. Some or the other constitutional infirmity has to be found before invalidating an Act. It has been held that Parliament and the legislatures, composed as they are of the representatives of the people, are supposed to know and be aware of the needs of the people and what is good and bad for them. The court cannot sit in judgment over their wisdom. 72. It has been held by this Court that there is one and only one ground for declaring an Act of the legislature or a 5 (2017) 7 SCC 59 8 provision in the Act to be invalid, and that is if it clearly violates some provision of the Constitution in so evident a manner as to leave no manner of doubt. It has further been held that if two views are possible, one making the statute constitutional and the other making it unconstitutional, the former view must always be preferred. It has been held that the Court must make every effort to uphold the constitutional validity of a statute, even if that requires giving a strained construction or narrowing down its scope. 73. It has consistently been held that there is always a presumption in favour of constitutionality, and a law will not be declared unconstitutional unless the case is so clear as to be free from doubt. It has been held that if the law which is passed is within the scope of the power conferred on a legislature and violates no restrictions on that power, the law must be upheld whatever a court may think of it. 74. It could thus be seen that the challenge to the legislative Act would be sustainable only if it is established that the legislature concerned had no legislative competence to enact on the subject it has enacted. The other ground on which the validity can be challenged is that such an enactment is in contravention of any of the fundamental rights stipulated in Part III of the Constitution or any other provision of the Constitution. Another ground as could be culled out from the recent judgments of this Court is that the validity of the legislative act can be challenged on the ground of manifest arbitrariness. However, while doing so, it will have to be remembered that the presumption is in favour of the constitutionality of a legislative enactment.” 15.Furthermore, in the matter of Dental Council of India v. Biyani Shikshan Samiti and another6, their Lordships of the Supreme Court have held that there is always a presumption in favour of 6 (2022) 6 SCC 65 9 constitutionality or validity of a subordinate legislation and the burden is upon him who attacks it to show that it is invalid. B.R. Gavai, J., speaking for the Supreme Court, held in paragraphs 27 & 28 of the report as under: - “27. It could thus be seen that this Court has held that the subordinate legislation may be questioned on any of the grounds on which plenary legislation is questioned. In addition, it may also be questioned on the ground that it does not conform to the statute under which it is made. It may further be questioned on the ground that it is contrary to some other statute. Though it may also be questioned on the ground of unreasonableness, such unreasonableness should not be in the sense of not being reasonable, but should be in the sense that it is manifestly arbitrary. 28. It has further been held by this Court in the said case that for challenging the subordinate legislation on the ground of arbitrariness, it can only be done when it is found that it is not in conformity with the statute or that it offends Article 14 of the Constitution. It has further been held that it cannot be done merely on the ground that it is not reasonable or that it has not taken into account relevant circumstances which the Court considers relevant.” 16.Similarly, in the matter of PGF Limited and others v. Union of India and another7, their Lordships of the Supreme Court have laid down certain guidelines by taking note of certain precautions to be observed whenever the vires of any provision of law is raised before the Court and cautioned the Courts in paragraph 37 as under: - 7 (2015) 13 SCC 50 10 “37. The Court can, in the first instance, examine whether there is a prima facie strong ground made out in order to examine the vires of the provisions raised in the writ petition. The Court can also note whether such challenge is made at the earliest point of time when the statute came to be introduced or any provision was brought into the statute book or any long time-gap exists as between the date of the enactment and the date when the challenge is made. It should also be noted as to whether the grounds of challenge based on the facts pleaded and the implication of the provision really has any nexus apart from the grounds of challenge made. With reference to those relevant provisions, the Court should be conscious of the position as to the extent of public interest involved when the provision operates the field as against the prevention of such operation. The Court should also examine the extent of financial implications by virtue of the operation of the provision vis-a-vis the State and alleged extent of sufferance by the person who seeks to challenge based on the alleged invalidity of the provision with particular reference to the vires made. Even if the writ court is of the view that the challenge raised requires to be considered, then again it will have to be examined, while entertaining the challenge raised for consideration, whether it calls for prevention of the operation of the provision in the larger interest of the public. We have only attempted to set out some of the basic considerations to be borne in mind by the writ court and the same is not exhaustive. In other words, the writ court should examine such other grounds on the above lines for consideration while considering a 11 challenge on the ground of vires to a statute or the provision of law made before it for the purpose of entertaining the same as well as for granting any interim relief during the pendency of such writ petitions. For the abovestated reasons it is also imperative that when such writ petitions are entertained, the same should be disposed of as expeditiously as possible and on a time-bound basis, so that the legal position is settled one way or the other.” Legal Analysis and Discussion: - 17.After having considered the principles for examining the constitutional validity of an Act or the Rules, it would bring us to the facts of the case. 18.The Schedule-V appended to the Scheme for selection to the post of Transport Sub Inspector (Non Technical) provides as under:- 2. Eligibility:- Only such member of the ministerial service of Transport Department who possess following qualification shall be eligible to take benefit from this plan. (One) Who has completed the regular service at least five year by permanent or officiating capacity after completing the provisional period on any ministerial post in the office of the Transport Commissioner in Transport Department and any Sub-Ordinate Department, and (Two) Who has passed the bachelor graduation examination from any recognized university, (Three) 1 January of the year which selection is to be made not exceeding of the age of 45 year, the employees belonging to Scheduled Caste, Scheduled Tribe and Other Backward Class the upper age limit shall be 50 year, and (four) Who possess the following physical fitness, namely:- (i) The candidate beyond of any kind of physical and Mental disability. 12 (ii) The height of the candidate should not be less than 165 cm. Whenever belonging to the scheduled tribes, the height should not be less than 158 cm. 19. The aforesaid rule provides that for the promotional post of Sub Inspector Transport (Non Technical) height of a candidate should not be less than 165 cm except for the candidates belonging to Scheduled Tribes category which the petitioner has sought to challenge by way of this Writ Petition. 20.In the matter of Pushpa Rani (supra), their lordships of the Hon’ble Supreme Court have held that as to what should be the structure of cadre, source/mode of recruitment, prescription of minimum qualification, selection criteria are matters which fall exclusively in the realm of the employer, judicial review of which is very limited. It has been held in para 37 as under: “37. Before parting with this aspect of the case, we consider it necessary to reiterate the settled legal position that matters relating to creation and abolition of posts, formation and structuring/restructuring of cadres, prescribing the source/mode of recruitment and qualifications, criteria of selection, evaluation of service records of the employees fall within the exclusive domain of the employer. What steps should be taken for improving efficiency of the administration is also the preserve of the employer. The power of judicial review can be exercised in such matters only if it is shown that the action of the 13 employer is contrary to any constitutional or statutory provision or is patently arbitrary or is vitiated due to mala fides. The Court cannot sit in appeal over the judgment of the employer and ordain that a particular post be filled by direct recruitment or promotion or by transfer. The Court has no role in determining the methodology of recruitment or laying down the criteria of selection. It is also not open to the Court to make comparative evaluation of the merit of the candidates. The Court cannot suggest the manner in which the employer should structure or restructure the cadres for the purpose of improving efficiency of administration.” 21.Coming to the facts of the present case, in light of the principles and dicta, it is quite clear that scope of judicial review concerning prescription of minimum physical standard for recruitment for a particular post is purely a prerogative of the employer and the petitioner cannot dictate as to what should be the height of the candidate for the post such as Transport Sub Inspector (Non Technical) and it is not for the Court to decide the height of a candidate for the post of Transport Sub Inspector (Non Technical) as Transport Sub Inspector is also required to be posted in the field and therefore, the prescription of 165 cm height for said post has a rationale basis and prescription of said height cannot be said to be arbitrary and discriminatory as well. 14 22.The Judgment relied upon by counsel for the petitioner is distinguishable on facts and not applicable to the facts and circumstances of the present case. 23.In that view of the matter, we do not find any merit in the instant Writ Petition which deserves to be and is hereby dismissed, leaving parties to bear their own cost(s). Sd/- Sd/- (Sanjay K. Agrawal) (Deepak Kumar Tiwari) Judge Judge Avinash