Gujarat High Court
Kundanben Dhirubhai Jadav vs State Of Gujarat & on 14 October, 2015
Author: Sonia Gokani
Bench: Sonia Gokani
C/SCA/16596/2015 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 16596 of 2015
With
SPECIAL CIVIL APPLICATION NO. 16351 of 2015
==========================================================
KUNDANBEN DHIRUBHAI JADAV....Petitioner(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
==========================================================
Appearance:
MR NIKHIL S KARIEL, ADVOCATE for the Petitioner(s) No. 1
MS MANISHA LAVKUMAR, GOVERNMENT PLEADER with MR RASHESH
RINDANI & MS VACHA DESAI, Assistant Government Pleaders for the
Respondent(s) No. 1
NOTICE SERVED BY DS for the Respondent(s) No. 2
==========================================================
CORAM: HONOURABLE MS JUSTICE SONIA GOKANI
Date : 14/10/2015
ORAL ORDER
1. These petitioners have approached this Court preferring the writ petitions under Article 226 of the Constitution of India. They are being decided jointly as questions involved are identical.
2. Facts are drawn from Special Civil Application No. 16596 of 2015 as under:-
Page 1 of 19
HC-NIC Page 1 of 19 Created On Wed Oct 21 00:25:53 IST 2015 C/SCA/16596/2015 ORDER 2.1 The petitioner applied on-line for the post of Police Sub-Inspector (PSI) and Assistant Sub-
Inspector(ASI) pursuant to the advertisement on 20.11.2014. The criteria set out in the advertisement required that a male candidate from general category must have a height of 165 cms. and the height of a female candidate in the general category must be of 158 cms. Some reduction is prescribed in the height for the candidates belonging to Scheduled Tribe (ST). A male candidate from ST category is expected to have height of 162 cms and a female candidate of 156 cms.
3. The petitioner, belongs to general category and being female requires height of 158 cms. On clearing the physical examination conducted by respondent No.1, she was permitted to appeared in the written examination and was declared successful. She then was called for the interview and she cleared the same and qualified in the final result.
3.1 After the interview, the height of the candidate was remeasured by the very authority. It appears that at that stage the petitioner was found to be having Page 2 of 19 HC-NIC Page 2 of 19 Created On Wed Oct 21 00:25:53 IST 2015 C/SCA/16596/2015 ORDER less height than prescribed in the advertisement. Therefore, despite her having cleared the written as well as oral examination, her name has not been included in the final merit list prepared by respondent No.2 authority. Therefore, the present petition with the following prayers:-
"8] The petitioner, therefore, most respectfully pray that:
(A) Your Lordships may be pleased to admit and allow the present petition.
(B) Your Lordships may be pleased to issue a writ of mandamus or any other appropriate writ, order or direction and thereby be pleased to refer the issue of measuring of height to the Medical Board or any other competent authority for fresh measuring of height of the petitioner and if the height of the petitioner is found to be appropriate as per the qualification height criteria then Your Lordship may be pleased to direct the respondent to include the name of the petitioner in the final select list and give her appointment.
(C) Your Lordship may be pleased to pass any other further order which may be deemed fit in the interest of justice."
4. This Court vide order dated 9.10.2015 permitted the petitioner to appear before the Superintendent, Sola General Hospital, Sola, Ahmedabad for the measurement of the height by the Superintendent of the hospital. It will be profitable to reproduce the order passed in this respect:-
Page 3 of 19
HC-NIC Page 3 of 19 Created On Wed Oct 21 00:25:53 IST 2015 C/SCA/16596/2015 ORDER "1. The petitioner is a candidate for the post of Police Sub-Inspector (PSI)-Female, and at the initial stage, she had qualified for physical test and she cleared the physical test. For the said purpose, the height of the petitioner should be 158 cms. The petitioner thereafter was permitted to appear in the written examination as well as oral interview.
However, after her name appeared in the provisional select list and when she was called with all the testimonials, at that stage, there appears to be a second round of physical test and the name of the petitioner was not included in the final select list on the ground of her having less height than the prescribed one for the said post.
2. Shri Nikhil Kariel, learned counsel appearing for the petitioner, has urged that imperfect manner of measurement of the height of the petitioner is the reason for such change at a later stage. Relying upon the order dated September 30, 2015, passed by this Court while dealing with Special Civil Application No.15407 of 2015, it is urged that independent authority be directed to measure the height of the petitioner.
3. Notice, returnable on October 13, 2015. The formal service of notice is waived by Ms.Vacha Desai, learned Assistant Government Pleader on behalf of the respondent-State.
4. On a joint request, the petitioner is permitted to appear before Dr.H.K. Bhavsar, Superintendent, General Hospital, Sola, Ahmedabad, on October 12, 2015 at 09-30 a.m. along with all her testimonials, including her identification, without fail. The request of the respondent to keep one officer of the respondent-authority present in simple dress at the time of measurement of height is acceded to.
5. Ms.Vacha Desai, learned Assistant Government Pleader, appears on an advance copy and urges this Court to pass an order directing Page 4 of 19 HC-NIC Page 4 of 19 Created On Wed Oct 21 00:25:53 IST 2015 C/SCA/16596/2015 ORDER the Superintendent, Sola General Hospital, Ahmedabad, to permit videograph measurement of the height of the petitioner. According to her, the entire process by the Recruitment Board has been videographed.
6. Shri Nikhil Kariel, learned counsel appearing for the petitioner, has no objection to this request being allowed, provided that there is no interference on the part of the respondent-authority in carrying out the task of measurement. The request is acceded to.
7. In view of aforesaid, (1) Dr.H.K. Bhavsar, Superintendent, General Hospital, Sola, Ahmedabad, shall carry out the task of measurement. Mrs.Bindu Acharya, Section Officer, Gujarat High Court, is appointed as Court Officer to supervise while the task of measurement of the height of the petitioner, is carried out.
8. It is clarified that the work of measurement, as directed, shall be exclusively within the domain of the Superintendent, Sola General Hospital, Ahmedabad. No interference shall be made by the either side and more particularly, by the officer from the respondent's side who may be present at the Sola General Hospital.
9. The report in respect of the same be submitted to this Court in a sealed cover on the next date of hearing.
10. Communication of this order is permitted through the learned Government Pleader to the Court officer Ms.Bindu Acharya and to the Superintendent, General Hospital, Sola, Ahmedabad.
Direct Service is permitted, TODAY.
5. On 13.10.2015 this Court received certificate from Sola General Hospital, Ahmedabad issued by the Medical Superintendent, Medical College, Sola, Page 5 of 19 HC-NIC Page 5 of 19 Created On Wed Oct 21 00:25:53 IST 2015 C/SCA/16596/2015 ORDER Ahmedabad along with the report of Court Officer Ms.Bindu Acharya, who was present at the hospital with the petitioner when this process of measurement was carried out along with others.
6. The certificate very clearly indicated that the height measured of the petitioner is 159 cms. The required height for female candidates in general category being 158 cms she has qualified as per the requirement of the advertisement. The report further indicates that such measurement was taken in the presence of the following persons:-
1. Dr. H.K.Bhavsar, Superintendent, Sola General Hospital.
2. Regional Medical Officer, Sola General Hospital.
3. Asst. R.M.O. Sola General Hospital
4. D.C.P. Ms. Avidhi Chaudhary.
7. This exercise of measurement of height was videographed at the request of respondent authority as entire recruitment process for the post of PSI/ASI has been videographed.
Page 6 of 19 HC-NIC Page 6 of 19 Created On Wed Oct 21 00:25:53 IST 2015 C/SCA/16596/2015 ORDER
8. It is also noted by the Court Officer that the measurement unit has been calibrated by the Superintendent for ensuring correct results as far as the measurement of height is concerned. A report prepared by the Court Officer is reproduced herein- below:-
"This is in connection with the SCA/16210/2015 (Petitioner-Komalben A. Desai) and SCA/16190/2015 (Niruben M.Bapodara) who were referred to Sola General Hospital on 8.10.2015 and I was appointed as Court Officer in the said matters.
In this connection, I would like to submit that, I had handed over the Sealed Cover during the Course of the hearing of the above said matters in the Honourable Court on 9.10.2015 along with my report. Today, i.e. on 12.10.2015, I had been to Sola General Hospital to comply with the orders passed in another two SCA/16596/2015 and SCA/16351/2015. Dr.H. K. Bhavsar and the Regional Medical Officer had informed me that, when they received the order for measuring the height of the other two candidates, they for their self satisfaction checked the scale used by them with the measure tape available with the hospital and found that there is some discrepancies and the same is about one centimeter between both the scales. As per their say, it seems that the two candidates, whose height were measured on 8.10.2015 was not accurate, and there are chances of variations in their height. I requested Dr. Bhavsar and the R.M.O to randomly check two-three people and verify that whether any mistake had occurred on 8.10.2015. After doing the exercise, it was found that, there is almost one centimeter difference in both the Page 7 of 19 HC-NIC Page 7 of 19 Created On Wed Oct 21 00:25:53 IST 2015 C/SCA/16596/2015 ORDER measuring tapes and error had occurred in the measurement taken on 8/10/2015.(wherein it was certified that both the candidates were below than the required height for appointment). Today, after looking to the discrepancies in the height verified randomly, I am of the view that, those two candidates would have been declared qualified, if this error had come to the notice on 8.10.2015.
Today, before taking measurement of the petitioners, the scales were verified, checked thoroughly and was placed properly. It was also cross checked with other measuring scales like laser scale, which is generally used by civil engineers in construction of buildings, to find out its accuracy and thereafter accurate scale was used for measuring the height of the candidates.
At this juncture, I would also like to point out that, Dr. Bhavsar, Superintendent, also showed references from books wherein it was stated that the stature of a person varies two times a day by one and half or two centimeters. The height varies in the various hours of the day, being maximum in the morning and less by 1.5 to 2 c.m. in the evening due to reduction of elasticity of inter vertebral discs. (Reference: The Essentials of Forensic Medicines & Toxicology- Author Dr.K.S.Narayan Reddy & Forensic Medicine & Toxicology Principles & Practice- Author Dr. Krishnan Vij)"
9. Learned advocate Mr.Nikhil Kariel appearing for the petitioner has urged that thrice the petitioner was already measured and was found to possess the required height as per the advertisement. Certificate which has been sent by the Superintendent, Sola Page 8 of 19 HC-NIC Page 8 of 19 Created On Wed Oct 21 00:25:53 IST 2015 C/SCA/16596/2015 ORDER General Hospital satisfies her height criteria, and therefore, the petition be allowed. He has also urged that the case of others who have been excluded only on this count be also considered as all may not be in a position to approach this Court.
10. Learned advocate Mr.Popat appearing for the petitioner in Special Civil Application No.16351 of 2015 has urged that the literature on the subject indicates that due to diurnal changes in spinal mechanics, the clinical significance would vary. He has urged that there is bound to be variation in the height measured during the morning hours and that measured thereafter during the course of the day. As such, there would be average decrease of nearly 2 mm. He has urged that the first time the height which was measured of the petitioner and others were in the morning whereas the second time, after the interview, the measurement was in the evening, and there is a likelihood of variation on account of this scientific phenomenon. He has produced before this Court literature on the subject in support of his submissions. He urged that as such there was no Page 9 of 19 HC-NIC Page 9 of 19 Created On Wed Oct 21 00:25:53 IST 2015 C/SCA/16596/2015 ORDER rationale for measuring the height second time when in fact the same authority did such physical examination while permitting to take written examination. It is further urged that the others who have not approached this Court are nearly 42 in number and due to this action of the respondent all may be required to rush to the Court.
10.1 Learned Government Pleader Ms. Manisha Lavkumar appearing in both the matters has urged that to ensure perfection in case of height of candidates, second time this exercise was done. She urged further that entire process of selection is videographed so as to make it amply transparent and to lend it requisite credibility. She did state that this is not an adversarial litigation, but, at the same time, no finger can be pointed against the very process. She of course has no objection to the certificate of the Superintendent being considered, prepared in presence of Court Officer and DCP Ms. Avidhi Chaudhary and necessary directions being issued by the Court. She also does not dispute the fact that there are about 42 persons, who have been excluded from the final merit Page 10 of 19 HC-NIC Page 10 of 19 Created On Wed Oct 21 00:25:53 IST 2015 C/SCA/16596/2015 ORDER list as their inclusion could not be done for want of fulfillment of height criteria. In other words, the fact remains undisputed that because of measurement of the height recorded second time at the time of interview, the authority could not include all these candidates.
11. Considering the submissions of learned advocates for both the sides and particularly, noting down the certificates issued by the Medical Superintendent, Sola General Hospital in case of the petitioner of Special Civil Application No. 16596 of 2015, who applied for the post of PSI (Female) and whose height has been measured at 159 cms and in case of petitioner of Special Civil Application No. 16351 of 2015 of 2015 who applied for the post of PSI(Male) and whose height has been measured at 165 cms, they both qualify and fulfill requisite criteria of the height, and therefore, their exclusion by the respondent authority cannot be sustained.
11.1 Mention is to be made of the study report sought to be relied upon by the learned advocate for Page 11 of 19 HC-NIC Page 11 of 19 Created On Wed Oct 21 00:25:53 IST 2015 C/SCA/16596/2015 ORDER the petitioner as under:-
" Diurnal Variation of Stature in Three Adults and One child"
Kewal Kirshnan* and Krishan Vij** *Department of Anthropology, Punjab University, Chandigarh
1. Now, it is possible to say that the stature of a person shows diurnal variation whether the person is a child, adult or old one in both the sexes. The amount and extent of variation depends upon the time of measuring the stature and varies from individual to individual. Diurnal stature loss can be a problem in short term longitudinal studies, in which apparent changes might simply reflect variations in the time of the day at which the measurement was taken (Malina and Beunen, 1996). The diurnal loss in stature may be attributed to the compression of fibrous discs of cartilage that separate the vertebrae. With the forces of gravity imposed by standing, walking and involving in physical activity, the discs are gradually compressed (Malina, 1995). The greater proportion of the change occurs in the vertebral column than in any other part of the body. Some agree that this is due not only to inter-vertebral shortening but also to bending of the vertebral column during the daytime (Hattori and Nishio, 1982) and still others say the diurnal variation in height is mainly due to loss of fluid from the inter-vertebral discs rather than postural changes (Fairbank, 1998).
CONCLUSION It has been concluded that intra-
individual variation in stature may substantially affect the reliability of height data and careful consideration should be given to the time at which the measurements are to be recorded. Therefore, in view of the accountable and significant variations in stature of an individual at different times of the day, the investigation alarms the scientists, Page 12 of 19 HC-NIC Page 12 of 19 Created On Wed Oct 21 00:25:53 IST 2015 C/SCA/16596/2015 ORDER researchers and clinicians engaged in conducting community based surveys involving stature as a measurement and for making reference date pertaining to growth, development and nutritional studies as well as for personal identification in forensic examinations."
11.2 Dr.K.S.Narayan Reddy in his book 'The Essentials of Forensic Medicine and Toxicology"
(Seventeenth Edition-1998)" in Chapter IV of "Identification" under the head of "Stature" (pg. 65) notes as under:-
" Stature varies at different times of the day by 1.5 to 2cm. It is less in the afternoon and evening due to the reduced elasticity of the intervertebral discs and the longitudinal vertebral muscles. Both malnutrition and advancing years reduce stature. After the age of thirty, the natural processes of senile degeneration cause gradual decrease in stature by about 0.6 mm. per year on an average. The stature is greater by one to three cm, on lying."
12. Undisputedly, the process of recruitment is videographed appreciably at each stage and therefore, neither any other challenge is made by the petitioner nor is there any requirement to go into any other aspect, except the measurement of height. It is commonly believed that height of a person after certain age would continue to remain the same once the Page 13 of 19 HC-NIC Page 13 of 19 Created On Wed Oct 21 00:25:53 IST 2015 C/SCA/16596/2015 ORDER growing age is over. However, the study speaks of its variation when measured in the various hours of the day as reflected above. A possibility also would emerge is of defect of measuring instrument if the same person is twice measured by the very person and second possibility could be of inaccurate manner of measurement either the first time or the second time, not to dilate the issue of effect of scientific phenomenon as referred to hereinabove. 13.1 It was given to understand by the learned Government Pleader that process in the first round was very honorous by sheer number of candidates and hence, to lend more precision and accuracy to the process, second time measurement was done. Without adjudicating this aspect, it is being observed that video recording of process of recruitment may eliminate unnecessary allegations against arbitrariness and favouritism but that may not be a sure cure to imperfection or limitation of the measuring instrument. And, in absence of any possibility of permissible margin in this criteria of height, missing by 1 cm or 2 cms also seals the fate of the candidates. This assumes Page 14 of 19 HC-NIC Page 14 of 19 Created On Wed Oct 21 00:25:53 IST 2015 C/SCA/16596/2015 ORDER importance, particularly when the reference in the standard book speaks of possible variation in different hours of the day, being maximum in the morning and less by 1.5 cms to 2 cms in the evening. In cases of all the candidates, admittedly, measurement was done the first time in the morning hours and second time in the late afternoon or evening.
13.2 In the aforesaid backdrop, direction was issued on a joint request to get the petitioner examined by a neutral agency and Superintendent, Sola General Hospital also got the measuring unit calibrated to rule out any error/imperfection. This process was permitted to be carried out and videographed in the presence of Court Officer and independent police officer who has no connection with the recruitment process. Resultantly, these petitions deserve to be allowed interfering with the decision of the exclusion of petitioners by the respondent authority.
14. The respondent authority, resultantly, is Page 15 of 19 HC-NIC Page 15 of 19 Created On Wed Oct 21 00:25:53 IST 2015 C/SCA/16596/2015 ORDER directed to include their names in the select list and place them as per their merit. This exercise shall be carried out within four weeks.
15. At this stage, it is required to be noted that there are about 7 petitions filed before this Court on the very ground by different candidates who have not been included on account of less measurement of the height after oral interviews were conducted. All of them have suffered on account of such non-inclusion. As conveyed to this Court, including those who have approached this Court, in all 42 candidates are denied inclusion in merit list only on this very ground. Ordinarily, all prayers made in this writ petition remain restricted for the petitioners concerned, unless it is public interest litigation. However, so as to ensure that litigations do not increase only on this count when it is found in case of some of the petitioners that measurement of their height taken second time by the respondent turned out to be incorrect and when the respondent authority also has not objected to wider general directions being given, Page 16 of 19 HC-NIC Page 16 of 19 Created On Wed Oct 21 00:25:53 IST 2015 C/SCA/16596/2015 ORDER the respondent authority is required to be directed to measure the height of all those candidates who have otherwise succeeded in the written examination as well as in the oral interviews and whose selection is hampered on account of less measurement of the height for the second time. Those candidates otherwise could have figured in the select list. They all shall be given an opportunity by remeasurement of their height as is being directed hereinafter.
16. This Court in the case of Vipulkumar Atmaram Parekh and others vs. State of Gujarat through Secretary and others reported in 2009(5) GLR 3914, of course in a different context, where the issue of grant of higher pay-scale on completion of 9 years' service was already decided in case of some of the employees, had directed employer to consider the same for rest of the employees, who were otherwise similarly situated, by holding that similarly situated employees should not be driven to the Court for addressing their just grievance.
17 In wake of the discussion made hereinabove, the Page 17 of 19 HC-NIC Page 17 of 19 Created On Wed Oct 21 00:25:53 IST 2015 C/SCA/16596/2015 ORDER following directions are necessary to be issued:-
(a) The respondents are directed to avail the opportunity of remeasurement of the height of all those candidates who participated in the very recruitment process of PSI/ASI who have been excluded on account of less measurement of the height the second time.
(b) They shall be called by issuance of individual notice, as per acceptable mode as is otherwise followed by the recruitment board.
(c) Their measurement shall be carried out either at Sola General Hospital, Ahmedabad or at Civil Hospital, Ahmedabad as may be deemed appropriate by the respondent authority.
(d) Such exercise shall be done in the morning hours between 8:00 a.m. to 11: a.m.
(e) The result of measurement shall be communicated to the candidates.
(f) Entire exercise shall be carried out within four weeks and videographing of the same also shall be done so that no grievance remains on either side.
Copy of this shall be provided to learned Page 18 of 19 HC-NIC Page 18 of 19 Created On Wed Oct 21 00:25:53 IST 2015 C/SCA/16596/2015 ORDER Government Pleader for onward communication and follow up action. This Court places on record appreciation for the Dr.Bhavsar, Superintendent, Sola General Hospital and his colleagues for rendering their services with promptitude and to the Court Officer Ms.Bindu Acharya.
18. Both the petitions stand disposed of in above terms.
(MS SONIA GOKANI, J.) SUDHIR Page 19 of 19 HC-NIC Page 19 of 19 Created On Wed Oct 21 00:25:53 IST 2015