Hc(Ministerial) Kunwar Pal Singh vs Union Of India & Ors.
2013 Latest Caselaw 1819 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI


+                        W.P.(C) No. 2667/2012
%                                 Date of decision: 23rd April, 2013
        HC(MINISTERIAL) KUNWAR PAL SINGH               ..... Petitioner
                          Through: Mr. Ashutosh Rana, Adv.


                               versus


        UNION OF INDIA & ORS.                                   ..... Respondents

                           Through:         Mr. Himanshu Bajaj, Adv.

        CORAM:
        HON'BLE MS. JUSTICE GITA MITTAL
        HON'BLE MS. JUSTICE DEEPA SHARMA

GITA MITTAL, J (Oral)

1. Petitioner, who is serving as HC (Ministerial), was recruited on the 1st

February, 2006. He contends that he was medically examined several times and was

found in the medical category of SHAPE-1.

2. On 6th July, 2011, the petitioner's name was recommended by respondent

No.2 along with other eligible batch mates for the post of ASI (M) w.e.f 18th August,

2011. The petitioner cleared the departmental examination 2010 held for this

promotion and was also considered by the Department of Promotion Committee for

the purpose of effecting the promotion, the petitioner was medically examined by the

Senior Medical Officer, at the Station Hospital CRPF Gurgaon, and was declared

medically unfit for reasons of colour blindness and placed in the category of SHAPE-

3. The review medical examination of the petitioner by the board of medical officers

confirmed this finding so far as the colour blindness of the petitioner was concerned.

4. In the meantime, the respondents appear to have proceeded further in the

matter of promotion and also verified that no preliminary enquiry or disciplinary

proceedings are pending or contemplated against the petitioner. Unfortunately, the

medical status of the petitioner as being colour blind could not be ignored and has

impacted the petitioner's promotion which action of the respondents has been

challenged by way of present writ petition.

5. Arguing before us, learned counsel for petitioner has contended that the

challenge of the petitioner is covered by several judicial pronouncements of this

court. In this regard, our attention has been drawn inter alia to the following:-

(i) Judgment dated 22nd March, 2011 passed in Writ Petition (Civil) No.

5077/2008 titled as Sudesh Kumar & Ors. V. Union of India & Anr.

and other connected writ petitions.

(ii) Writ petition No. 11855/2009 titled as Mohan Lal Sharma Vs. Union

of India decided on 16th March, 2011.

(iii) The recent pronouncement dated 28th February,2013 in Writ Petition

(Civil) No. 356/2011 titled as Sh.P.Suresh Kumar Vs. Union of India.

6. Learned counsel for the petitioner submits that though, in the writ petition the

petitioner has challenged the medical finding returned in his medical examination to

his being colour blind reiterated in the review board, he abandons the challenge and

accepts the findings. It is contended by the learned counsel for the petitioners that

the petitioner is suffering from colour blindness which was undetected at the time of

his induction and is therefore entitled to the benefit of the several judicial

pronouncements.

7. A reading of these pronouncements would show that the matter of the force

personnel who were not discovered as suffering from colour blindness at the time of

original induction, but were detected as being colour blind at subsequent stages has

agitated the respondents and several measures have been taken pursuant to issuance

of circulars from time to time. The present case is similar to the case of the

petitioners in the above writ petitions in as much as despite the medical examination,

at the time of his original induction, the colour blindness of the petitioner was also

not detected then. The petitioner contends that in these circumstances, he is entitled

to the same benefits which have been given to the force personnel whose cases have

been considered in the aforenoted judicial pronouncements.

8. There is no real contest to these submissions made on behalf of the petitioner.

We find that so far as the issues raised by the petitioner are concerned, the same have

been considered in paras 9 to 11 of the pronouncement in Sh.P.Suresh Kumar Vs.

Union of India which read as follows:-

"9. It is, therefore, evident from the above extract that right from 2002 to 2008, the respondents were sensitive and alive to the fact that colour blind personnel recruited prior to 2002 could not be treated differently from their other colleagues who did not suffer from this disability as far as promotion and other conditions of the service were concerned. The doubts expressed from time to time, which were sought to be allayed in the form of Circular dated 29.10.2008 resulted in greater uncertainty and possibly some conflict. All these were given a quietus by the Circular dated 11.3.2011 which reiterated that promotional prospectus of colour blind

personnel recruited by any of the forces would not be prejudicially or adversely affected. One would have thought that in such state of affairs and with two adverse judgments by Division Bench, the matter would have ended. This Court is also conscious that the appeals by the respondents through special leave to the Supreme Court against the directions in Sudesh Kumar‟s case (supra) were unsuccessful; the SLPs were dismissed. It meant that not only did the petitioners in Mohal Lal Sharma and Sudesh Kumar cases acquire a right in the form of a declaration that they would not be treated differently from their other non- colour blind colleagues, such right also vested and inured in all similarly situated employees and personnel of all the forces. Such being the case, the respondents cannot now argue that in the form of the mere Circular - of 18.5.2012 or in that matter of 27.2.2012, the present petitioners, orthose who had not approached the Court, but are found to have the same conditions as the petitioners in Mohal Lal Sharma‟s case, can be in any manner discriminated against. That some approached the Court whilst the others felt no compulsion to do so, can be no rationale for a valid classification. In fact, the entire class of colour blind personnel WP (C) 356/2013 with connected matters Page 12 under such circumstance is indistinguishable. The respondents cannot treat the equals unequally by separating those who approached the Court and continue to give them promotions and other such benefits while denying the same to those who had not approached the Court and perhaps had no occasion to approach the Court on account of the declaration given. That would be plainly violation of Article 14 of the Constitution of India.

10. As a consequence of the above discussion, it is held that though the respondents have to some extent stated that posts suitable for colour blind personnel have been identified and allocated to accommodate their claims for promotion; it is hereby declared and directed that the effect of the previous judgments of the Court based on the respondents' own thinking contained in the three Circulars dated 17.5.2002, 31.7.2002 and 11.3.2011 would continue to bind the parties. There is, in fact, no denial in the facts situation warranting any different thinking. The petitioners and all others like

them would be entitled to full benefits of promotions as is extended to those who do not suffer from colour blindness impugned in the previous directions of this Court in Mohal Lal Sharma and Sudesh Kumar‟s case.

11. In view of the above discussion, all the directions and orders impugned in the present case which denied or deprived the petitioners the chance or right to occupy the promotional posts are hereby quashed. The respondents are directed to issue consequential orders wherever the promotions have been actually effected with effect from the date the petitioners' juniors were promoted."

9. These observations apply squarely to the case of the petitioner. Giving the

nature of the adjudication by this court in all the aforenoted pronouncements, we are

of the view that petitioner is also entitled to the reliefs which was given in the case of

Suresh Kumar (supra).

10. In view of the above, we direct as follows:-

(i) The signal dated 14th March, 2012, cancelling the promotion of the

petitioner is held to be illegal and is hereby set aside and quashed.

(ii) A writ of mandamus is issued hereby directing the respondents to pass

appropriate orders promoting the petition to the post of ASI (M) subject to

completion of all formalities.

11. Having regard to the passage of time since the last medical board, if it is

required, the petitioner may be required to undergo fresh medical examination.

12. The medical examination shall be conducted within a period of four weeks

from today. Orders shall be passed immediately thereafter.

13. The petitioner will be entitled to the financial benefits accrued from the date of

promotion, however, he will be deemed to have been promoted on the date on which

his immediate juniors were promoted and his position shall be maintained at the

appropriate place in seniority.

14. This writ petition is allowed in the above terms.

CM No.4347/2013

In view of the orders passed in the writ petition, application does not survive

for adjudication.

Dismissed.

(GITA MITTAL) JUDGE

(DEEPA SHARMA) JUDGE APRIL 23, 2013 ss