Divyeshkumar Ashokbhai Patel vs State Of Gujarat
2021 Latest Caselaw 1510 Guj

         C/LPA/538/2020                               ORDER




       IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

         R/LETTERS PATENT APPEAL NO. 538 of 2020
                             In
        R/SPECIAL CIVIL APPLICATION NO. 9199 of 2020

=========================================================
               DIVYESHKUMAR ASHOKBHAI PATEL
                            Versus
                      STATE OF GUJARAT
=========================================================
Appearance:
MR.DEVENDRA H PANDYA(6462) for the Appellant(s) No. 1
MR DM DEVNANI ASSISTANT GOVERNMENT PLEADER for the
Respondent(s) No.
NOTICE SERVED(4) for the Respondent(s) No. 2
NOTICE UNSERVED(8) for the Respondent(s) No. 1
=========================================================

 CORAM: HONOURABLE THE CHIEF JUSTICE MR. JUSTICE VIKRAM NATH
                             and
        HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI

Date : 02/02/2021

ORAL ORDER

(PER : HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI)

1. The present Letters Patent Appeal under Clause 15 of the Letters Patent is directed against the judgment and order dated 10.08.2020 passed by the learned Single Judge in Special Civil Application No. 9199 of 2020, whereby the petition came to be dismissed.

2. The case of the appellant - original petitioner is that pursuant to the advertisement, the appellant applied for the post of Police Constable (Police Protector) in Un­Armed Police Constable category and though he was eligible to be appointed, was deprived of his appointment, mainly on the ground that the appellant is suffering from colour blindness and, thereby, was

C/LPA/538/2020 ORDER

declared as unfit for the post in question, which has given rise to the filing of the present petition in which, the following relief is claimed by the original petitioner :­

"8(b) Your Lordships may be pleased to issue a writ of mandamus or any other appropriate writ, order or direction against the respondents quashing and setting aside the decision taken by the respondents on the basis of medical certificate dated 05.02.2016 and further be pleased to direct to authorities to consider the petitioner to be fit candidate and be direct the respondent to issue appointment order forthwith."

3. Mr. Devendra Pandya, learned counsel appearing on behalf of the appellant, has submitted that this issue has been dealt with in past in number of matters in which colour blindness is not be treated as disqualification for the candidates who are otherwise qualified for the post of Un­Armed Police Constable (Police Protector) and the appellant having come to know about such number of decisions has approached this Court by way of petition. Mr. Pandya, learned advocate has drawn attention of this Court to several such decisions and the last line is a decision dated 23.07.2020 passed in Special Civil Application No. 8433 of 2020 in which, relying upon number of such decisions, the petition came to be allowed with a direction which is contained in para 3 of the said decision.

3.1. Mr. Pandya, learned advocate has further submitted that the appellant is coming from scheduled tribe family and possessed requisite qualification, but since was residing in a remote area could not approached the Court promptly, but having come to know about number of such petitions having

C/LPA/538/2020 ORDER

been allowed, has immediately rush down to the Court. The learned advocate for the appellant as such has submitted that the order which has been passed by the learned Single Judge is substantially taking a too technical approach to the issue. The basic prayer which has been been in the main petition is with regard to the decision taken by the authority on the basis of medical certificate dated 05.02.2016. So in substance, the appellant has been deprived of employment only on the ground that he is suffering from colour blindness, otherwise, there is no other infirmity with regard to the eligibility criteria prescribed for the post in question and the learned Single Judge has erroneously discarded the request of the petitioner and as such has reiterated to set aside the impugned order and grant the relief as prayed for in the petition similar on the line in which several cases have been considered.

4. As against this, Mr. D.M. Devnani, learned Assistant Government Pleader appearing on behalf of the State - authorities has submitted that there is a delay in approaching the Court by the appellant and as such, the learned Single Judge has rightly not considered the case. In fact, the original decision i.e. rejection letter dated 22.03.2016 is not challenged and hence, no fault can be found in an order dated 10.08.2020. However, Mr. Devnani, learned Assistant Government Pleader has candidly submitted that this issue regarding colour blindness has been examined at various levels by the Court and several petitions have been allowed and as such, has left if to the discretion of the Court without much insistence.

C/LPA/538/2020 ORDER

5. Having heard the learned counsel appearing for the respective parties and having gone through the material on record, it is quite clear that the issue related to colour blindness whether to be treated as disqualification to deprive the candidate from being appointed has been examined in number of cases and even the petition is also attached with similar such orders being passed by several Benches of this Court and during the course of hearing, yet another decision has also been placed on record dated 23.07.2020 passed in Special Civil Application

No. 8433 of 2020 and we found that this issue has been well examined time and again and as such, simply because some delay has taken place at the instance of the appellant - petitioner would not be an impediment. The appellant is belonging to scheduled tribe candidate, coming from remote area of Taluka Mahuva, we of the considered opinion that the appellant - petitioner shall not be deprived of the employment, if otherwise, found to be qualified, simply on the issue, that the petitioner is suffering from colour blindness.

5.1. Upon perusal of the order dated 23.07.2020, as referred to above, is also based upon several such kind of decisions which are narrated in para 2 of the said decision, but with a view to avoid unnecessary burden of the record of the present order, we prefer not to reproduce the extract of the said order. Thus, having carefully gone through the same, we are of the considered opinion that a case is made out by the appellant to call for interference. On perusal of the oder passed by the learned Single Judge, we found that the issue related to several such orders which are attached to the petition has not been examined and as

C/LPA/538/2020 ORDER

such, undisputedly, since this issue of colour blindness is the only issue by virtue of which the appellant - petitioner is deprived of employment, we are inclined to consider the case of the appellant.

6. Accordingly, we deem it proper to quash and set aside the order passed by the learned Single Judge and direct the authority to consider the case of the appellant - petitioner on the similar line on which several candidates have been considered for appointment to the post in question, ignoring the appellant's medical incapacity about colour blindness only and if nothing adverse otherwise is found against the appellant - petitioner, the respondent - authorities are directed to appoint the appellant - petitioner to the post in question and such decision about appointment to the petitioner shall be taken within a period of eight weeks from the date of the receipt of writ of this Court. It is needless to state that whatever benefits that are granted to the other candidates of similar petitions, the same shall be extended to the present appellant as well.

7. With the aforesaid observations and directions, the present appeal is allowed and is disposed of accordingly.

(VIKRAM NATH, CJ)

(ASHUTOSH J. SHASTRI, J) /phalguni/