Gujarat High Court
Solanki Sartansinh Kodarsinh vs State Of Gujarat & 3 on 23 February, 2016
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SCA/2864/2016 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 2864 of 2016
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SOLANKI SARTANSINH KODARSINH....Petitioner(s)
Versus
STATE OF GUJARAT & 3....Respondent(s)
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Appearance:
MR VIRAT G POPAT, ADVOCATE for the Petitioner(s) No. 1
ADVANCE COPY SERVED TO GP/PP for the RESPONDENT(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 23/02/2016
ORAL ORDER
1. By this writ application under Article 226 of the Constitution of India, the petitioner, desirous of seeking appointment on the post of the Bus Conductor, has prayed for the following reliefs;
"(A) To allow this petition;
(B) To quash and set aside the communication at Annexure-A and further be pleased to direct that the petitioner be recruited as Bus Conductor pursuant to the advertisement dated 13.5.2015 at Annexure-A with all consequential benefits;
(C ) To declare the action of not recruiting the present petitioner on the ground that the higher of the present petitioner is inadequate as illegal, bad in law and further be pleased to direct that the present petitioner be recruited as Bus Conductor in the respondent Corporation as per advertisement dated 13.5.2015;
Page 1 of 5HC-NIC Page 1 of 5 Created On Sun Feb 28 05:51:26 IST 2016 C/SCA/2864/2016 ORDER (D) Pending admission, hearing and final disposal of the present petition, to direct an independent agency such as Civil Hospital to re measure the height of the present petitioner in the morning hours if the need so arises;
(E) Pending admission, hearing and final disposal of the present petition, to direct that the height of the present petitioner be re-measured by any other independent agency.
(F) To pass any other and further orders as may be deemed fit and proper to this Hon'ble Court."
2. It appears that this is a second round of litigation. In the first round, the following order was passed by a Coordinate Bench dated 29.01.2016 in Special Civil Application No.330 of 2016.
"1. Petitioner herein is aggrieved by the action of the respondent authority of not giving him appointment on the post of bus conductor despite his having cleared oral as well as written examination only on the ground that he is not fulfilling the criteria of possessing requisite height of 160 cms. The petitioner applied for the post of bus conductor in response to the recruitment process which was initiated by way of advertisement dated 13.5.2015. The laser machine had measured him 159 cms. Subsequently, he filed Special Civil Application No.16932 of 2015 before this Court. This Court vide order dated 26.10.2015 directed to re-measure the height of the petitioner. The height was found to be 159.9 cms. Thus he was short by only 1 mm. It is his grievance that such measurement was done at 11.14 a.m., and therefore, this difference.
2. Following reliefs are sought for by the petitioner in this petition:-
8. The petitioner, therefore, prays that this Honble Court be pleased:
(a) To allow this petition;Page 2 of 5
HC-NIC Page 2 of 5 Created On Sun Feb 28 05:51:26 IST 2016 C/SCA/2864/2016 ORDER
(b) To quash and set aside the communication at Annexure-A and further be pleased to direct that the petitioner be recruited as Bus Conductor pursuant to the advertisement dated 13.05.2015 at Annexure-A with all consequential benefits.
c. To declare the action of not recruiting the present petitioner on the ground that the height of the present petitioner is inadequate as illegal, bad in law and further be pleased to direct that the present petitioner be recruited as Bus Conductor in the respondent Corporation as per advertisement dated 13.5.2015;
d. Pending admission, hearing and final disposal of the present petition, to direct the Corporation to remeasure the height of the present petitioner in the morning hours if the need so arises;
(e) Pending admission, hearing and final disposal of the present petition, to direct that the height of the present petitioner be re-measured by any other independent agency;
(f) To pass any other and further orders as may be deemed fit and proper to this Honble Court.
3. Detailed reply has been filed by the Gujarat State Road Transport Corporation (Corporation for short), respondents No.2 and 3 herein. It is the stand of the Corporation that when the petitioner has sought to take shelter of +1/-1 mm calibration difference, he, during re- measurement, was found to be measuring 159.9 cms. Thus, he was short by only 1 mm. It is not only +1 mm that needs to be taken into consideration, but -1 mm also could be made applicable in the case of the petitioner.
4. Learned advocate Mr.Popat has relied upon the decision of this Court in the case of Kundanben Dhirubhai Jadav v. State of Gujarat decided on 14.10.2015 in Special Civil Application No. 16596 of 2015 with Special Civil Application No. 16451 of 2015. He emphasized that unless the height is measured in the morning hours, it is likely to have some variation.
5. Learned Senior Advocate Mr.Shalin Mehta appearing with Mr. Shah for the respondents No.2 to 4 agreed that the measurement can be taken in the morning hours.
Page 3 of 5HC-NIC Page 3 of 5 Created On Sun Feb 28 05:51:26 IST 2016 C/SCA/2864/2016 ORDER However, he has strongly objected to giving any benefit of +1/-1 mm as averred by the petitioner being the calibration difference. According to him, that may open Pendoras box.
6. It can be noticed that the petitioner herein is aggrieved by the action of the respondent authority of not giving him appointment on the post of bus conductor despite his having cleared oral as well as written examination only on the ground that he is not fulfilling the criteria of possessing requisite height of 160 cms. The petitioner applied for the post of bus conductor in response to the recruitment process which was initiated by way of advertisement dated 13.5.2015. Anybody who is measuring less than 160 cms has been rejected by the Corporation and, therefore, unless the petitioner actually measures 160 cms, his case cannot be regarded.
7. Bearing in mind the observations made by this Court in the case of Kundanben Dhirubhai Jadav v. State of Gujarat(supra), as assured to by the respondent Corporation in peculiar set of circumstances, it would be desirable to direct measurement of the height of the present petitioner in the morning hours for this issue being in the realm of science, as the respondent Corporation has agreed that second time the measurement of the height was otherwise done at 11:14 a.m.
8. With regard to calibration difference of +1/-1, the respondent Corporation is right in contending that all those candidates, who otherwise measure 159.9 cannot automatically be given such benefit, as it also needs to regard -1 difference in calibration as a whole. However, without further delving into this subject, as respondent No.3 has agreed to re-measure the height of the petitioner, the petition is being allowed only to that extent.
9(a). Resultantly, petition is partly allowed. The respondent No.3 is directed to conduct such test of remeasurement of the height of the petitioner.
9(b). Remeasurement of the height of the petitioner shall be done in the office of respondent No.3 on 10.2.2016 at 9:00 a.m. followed by the consequences that may result.
Page 4 of 5HC-NIC Page 4 of 5 Created On Sun Feb 28 05:51:26 IST 2016 C/SCA/2864/2016 ORDER This order shall not be regarded as a precedent. The outcome of such measurement shall bring quietus to the issue and no further challenge shall lie in this regard. Petition stands disposed of accordingly."
3. It appears that the height of the petitioner was remeasured as directed by this Court, and it seems that he is falling short by .01 or .02 mm. The required height according to the rules is 160 cm.
4. Mr. Popoat, the learned advocate appearing for the petitioner, submitted that the height is being measured on machines. There is always some margin of error.
5. Having regard to the very minimal difference, i.e., of .01 mm, the authorities shall consider the case of the petitioner in that regard and also keeping in mind some margin of error so far as the machine is concerned. I do not propose to express anything further.
6. With the above, this writ application is disposed of.
Direct service is permitted.
(J.B.PARDIWALA, J.) Vahid Page 5 of 5 HC-NIC Page 5 of 5 Created On Sun Feb 28 05:51:26 IST 2016