Gujarat High Court

Ashishkumar Karmanbhai Desai vs Deputy Police Commissioner ... on 26 November, 2021

Bench: Nikhil S. Kariel

     C/SCA/12172/2020                             JUDGMENT DATED: 26/11/2021




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 12172 of 2020


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE NIKHIL S. KARIEL                              Sd/-

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1     Whether Reporters of Local Papers may be allowed
      to see the judgment ?                                            NO

2     To be referred to the Reporter or not ?
                                                                       NO
3     Whether their Lordships wish to see the fair copy
      of the judgment ?                                                NO

4     Whether this case involves a substantial question
      of law as to the interpretation of the Constitution              NO
      of India or any order made thereunder ?

==========================================================
                      ASHISHKUMAR KARMANBHAI DESAI
                                  Versus
                    DEPUTY POLICE COMMISSIONER (ADMN)
==========================================================
Appearance:
MR MAHENDRA U VORA(3034) for the Petitioner(s) No. 1
MS MAMTA R VYAS(994) for the Petitioner(s) No. 1
MR UTKARSH SHARMA, AGP for the Respondent(s) No. 3
NOTICE SERVED(4) for the Respondent(s) No. 1,2
==========================================================

    CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL

                              Date : 26/11/2021

                             ORAL JUDGMENT

1. Heard learned Advocate Mrs.Mamta Vyas on behalf of

the petitioner and learned AGP Mr.Utkarsh Sharma

on behalf of the respondent State.

C/SCA/12172/2020 JUDGMENT DATED: 26/11/2021

2. Issue Rule returnable forthwith. Learned AGP

waives service of notice of Rule on behalf of the

respondent State.

3. With the consent of the learned Advocates for the

parties, the present petition is taken up for

final hearing.

4. By this petition, the petitioner challenges a

decision of respondent No.2 of not appointing the

petitioner on the post of "Lok Rakshak (Constable)

Unarmed" on the ground that the petitioner had

been declared unfit in medical examination.

5. Learned Advocate Mrs.Mamta Vyas for the petitioner

would submit that the petitioner had been selected

for the post of Lok Rakshak through the process

conducted by the respondent Authorities vide an

Advertisement No.LRB/2018-19-1 published during

the period 2018-19, and whereas the petitioner had

cleared both the written as well as physical

examinations and after verification of all

requisite documents, the petitioner had been

placed in the select-list at Sr. No.1567

(Confirmation No.23534642) published by the

Recruitment Board concerned. Mrs.Mamta Vyas would

C/SCA/12172/2020 JUDGMENT DATED: 26/11/2021

submit that as per the procedure, the petitioner

was required to undergo medical check-up. That

after the preliminary medical check-up, the

Residential Medical Officer, New Civil Hospital,

Surat addressed a letter to the Chairman, Board of

Referees, M & J Institute of Ophthalmology,

Gujarat State, Civil Hospital, Asarva, Ahmedabad.

According to Mrs.Mamta Vyas, in the said letter

the Medical Officer opined that the eye vision of

the petitioner was defective on account of colour

blindness. It has been submitted that thereafter

on 29.7.2020 Civil Hospital, Surat addressed a

letter to the respondent No.1, on the basis of

which the respondent No.1 passed the impugned

order dated 18.8.2020, refusing to give

appointment to the petitioner on the post in

question, which necessitated the present petition.

6. Learned Advoate Mrs.Mamta Vyas would submit that

the issue involved in the present petition is no

more res integra more particularly in view of the

fact that a decision of learned Single Judge of

this Court had been confirmed by Hon'ble Division

Bench, and the said judgement has been

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consistently followed by various decisions of this

Court. Learned Advocate Mrs.Mamta Vyas has drawn

the attention of this Court to a common oral order

dated 26.7.2018 passed in a group of petitions

being Special Civil Application No.15431 of 2017

and allied matters, where similar issues were

considered. She would further submit that the

above referred decision of the learned Single

Judge was challenged before the Hon'ble Division

Bench in Letters Patel Appeal No.1136 of 2018 and

the said appeal was allowed vide judgement and

order dated 2.11.2018. Mrs.Mamta Vyas has also

drawn the attention of this Court to a decision of

a Coordinate Bench rendered in Special Civil

Application No.3739 of 2018 on 8.4.2019, whereby

the Coordinate Bench, after eloberately discussing

various decisions of the Hon'ble Apex Court,

allowed the said petition and gave certain

directions to the respondent Authorities therein.

She also relies upon the decision of a Coordinate

Bench passed in Special Civil Application Nos.3231

& 3236 of 2020 delivered on 10.2.2020 and submits

that the case of the present petitioner is

C/SCA/12172/2020 JUDGMENT DATED: 26/11/2021

squarely covered by the above referred decision of

this Hon'ble Court.

7. Learned AGP could not controvert the legal

position inasmuch as this Court speaking through

learned Single Judge as well as Hon'ble Division

Bench has held that in absence of colour blindness

not being one of the grounds as per the Rules

based upon which the candidate could be

disqualified.

8. Having regard to the submissions made by the

learned Advocates for the parties, who have not

submitted anything further, it appears that this

Court (Coram: A.S. Suphehia, J.) in Dinesh G. K.

Vs. State of Gujarat (SCA No.7638 of 2013) had

inter alia held that the Rules with regard to

appointment do not refer to colour blindness as a

predicament for the appointment of a candidate to

the post of Lok Rakshak. Having come to such a

conclusion, this Court had directed the respondent

to consider the case of the petitioners for

appointment to the post in question as per

Government Resolution, ignoring colour blindness,

if nothing adverse found against them. Relevant

C/SCA/12172/2020 JUDGMENT DATED: 26/11/2021

paragraph of the decision of this Court are quoted

herein below for benefits:-

"7. In the present writ petition, the sole ground for which the appointment of the petitioners to the post of Lok Rakshak is denied emanates from the certificate of physical fitness issued by the Civil Surgeon of Civil Hospital, Ahmedabad. Initially, the petitioners were issued the certificate that they were fit for the table work since, they are suffering from colour blindness. Unquestionably, as reflected in the communication dated 29.08.2012, the petitioners are referred to for medical examination under the Bombay Civil Services Rules Chapter-3 and for obtaining the certificate as per Appendix-7. At this stage, it is required to be noted that in fact the aforesaid rules are repealed by the Gujarat Civil Services (General Conditions) Rules, 2000, however, the corresponding appendix of the Bombay Civil Services Rules is Rule 11 and the relevant Appendix-3 of Annexure-B of the Gujarat Civil Services (General condition of Services), Rules 2002 are pari materia to the Bombay Civil Services Rules, Chapter-3, as stated in the letter dated 29.08.2012. The Appendix-A of Appendix-3 under Rule 11 of the Gujarat Civil Services General Conditions of Rules, 2002 also laid down the similar conditions as to the Bombay Civil Services Rules, Chapter-3. At this stage, it would be gainful to extract the provisions Appendix-III of Rule 11 of the Gujarat Civil Services (General Condition of Services), Rules, 2002.

Relevant extract of Rule 11 thereof is reproduced as below:

RULE 11 : Certificate of physical fitness a prerequisite for substantive appointment or continuance in service (1) Every Government employee shall produce a medical certificate of health specified in Appendix III either before he is appointed substantively to a permanent post in Government service or before he completes six

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months service from the date of his appointment, whichever is earlier.

(2) x x x x

Note 1.-Rules for the medical examination of the candidates as to their physical fitness for Government service have been embodied in Appendix III.

Note 2. XXxX Note 3 XXX Note 4.- XXXX

Note 5.- (i) For a proper observance of the procedure in the above Notes 3 and 4 above, it is necessary that intimation regarding unfitness should immediately on receipt, be communicated to the person concerned with a note that appeal, if any, must be made by the Government employee concerned, within one month from the date of communication of the findings of the Medical Officer and that if any medical certificate issued by the Registered Medical Practitioner is produced as piece of evidence about the possibility of an error of judgment in the decision of the Medical Officer who examined him in the first instance the certificate must contain a note by the Medical Practitioner Concerned to the effect that it has been given full knowledge of the fact that the candidate has already been rejected as unfit for Government servcie by the Medical Officer.

(ii) XXXXXX

Schedule "B' reads as under:

1. When a candidate for admission into the Civil Services of Government, appears before the medical authority for visual test, the medical authority shall be guided by the different minimum standards as prescribed in Annexure 'A' to this Schedule. This is the "Sorting Out" stage, where the obviously suited are certified fit without further

C/SCA/12172/2020 JUDGMENT DATED: 26/11/2021

trouble.

2. The doubtful and unsuitable cases shall be referred to a "Board of Referees", comprising of at least three ophthalmologists who shall get the cases examined on the following points :

(i) Previous record of glasses worn.

(ii) Determination of refractive error under homatropine.

(iii) Fundus changes, particularly in the anterior part of choria-retina.

(iv) Vitreous changes.

(v) Absolute Visual Acuity.

(vi) Radius of curvature of cornea.

(vii) Ascertainment of the nature of his work, particularly in relation to subjective and objective hazards. And shall assess the visual capacity against the visual task expected in which they shall be guided by certain classic standards according to the work to be assigned to the candidate.

3. The Board shall have the right to order the re-examination of a candidate annually for three years to determine the stability or unstability of a refractive error before he is finally confirmed.

4. The "Board of Referees" decision shall be final and irrevocable.

5. When a candidate is referred to a Medical Board, the Board shall be guided by the standards laid down in Annexure 'A' (Preliminary standards) and those who fall short of the standard shall be referred to the "Board of Referees".

6. Rules for the guidance of Board of Referees

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are as specified in Annexure 'B'

8. Annexure 'A' of Appendix-III which is relevant for deciding the controversy raised in the present petition reads under:

ANNEXURE 'A' of APPENDIX III Preliminary Visual Standard for all Services Group 'A' For posts requiring very high degree of visual acuity with unaided eye Visual acuity unaided vision is not less than 6/6 in one eye and not less than 6/9 in the other. Posts for which such a higher standard is required : Armed and unarmed Police etc. Group 'B' For post requiring a very high degree of vision acuity with glasses and moderate degree without glass Visual acuity 6/24 each eye without glasses.

6/6 each eye with 2.5 D after correction. Normal colour vision as tested with the Ishihara test. No evident signs of infective condition of the external eye e.g. Trachoma. No squint.

Group 'D' For posts which can do with a moderate degree of visual acuity Visual acuity Better eye 6/6 4.0 D worse eye 6/24 with glasses. No infective condition of the external eye.

Posts that can do with such a moderate degree of visual acuity Class III posts and all types of desk work e.g. Clerks, Accountants, Organising Officers, Store keepers.

9. A conspectus of the aforesaid rules and the requirement of the Appendix, would clarify that the same do not refer to colour blindness, which is treated as a predicament for the appointment of the petitioners to the post of Lok Rakshak. In the aforesaid rules, the colour blindness is not provided as a disqualification to the post to any Class-III posts, indisputably the post of Lok Rakshak, for which the petitioners seek appointment falls under Class-III post. In Group 'A', which refers to "Armed and unarmed Police etc.", the requirement is "very high degree of visual acuity with unaided eye. It is not the case of the respondents that the petitioners are having

C/SCA/12172/2020 JUDGMENT DATED: 26/11/2021

any myopic vision for which they require the aid of glasses. Their case will not fall under Group 'B' which refer to "a very high degree of vision of acuity with glasses and moderate degree without glasses". The posts under Group 'D' which refer to desk work also does not refer to colour blindness as a disqualification. Hence, it is ostensible that the respondents have acted contrary to the rules which govern their medical fitness.

10. The Supreme Court in the case of Satya Prakash Vashishth (supra) while examining a similar issue and rules prescribed for the post of Sub-Inspector (Executive) has held that colour blindness was not a disqualification, as the same was not incorporated in the rules. In the judgment rendered in the case of Khant Harishchandra (supra), this court while examining the case of Unarmed Constable, who was having colour blindness, has set aside the termination and it is observed that "It cannot be ipso facto judged that the colour blindness, is itself a disqualification for any post in question." It is also observed that there are no specific provisions which treats colour blindness as a disqualification or unfitness for the post of Unarmed Police Constable. In the present case, the petitioners have applied for the post of Lok Rakshak, which is Class-III post and stands at equal pedestal to the post of Unarmed Police Constable. The advertisement dated 11.02.2009 referred by the learned Assistant Government Pleader does not reflect any clause which denies appointment to the post of Lok Rakshak to such candidates who suffer from colour blindness. The Resolutions dated 28.12.2006 & Circular dated 11.02.2009 are neither annexed with the affidavit in reply nor they are shown to this Court. Hence, the less the law enunciated in the aforenoted judgments will prevail.

11. On the backdrop of the aforenoted pronouncement of law by the Apex Court and on a careful scrutiny of the rules and provisions of appendix under which the petitioners are sent for physical examination, this court is of the opinion that the respondent authorities have illegally and

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arbitrarily refused the appointment of the present writ petitioners without properly examining the rules governing their medical examination.

12. Learned advocate Mr. Kariel has fairly stated that in the alternative the petitioners are ready and willing to do table work or desk work if they are appointed on such post.

13. Having regard to the aforesaid submissions made by the learned advocate appearing on behalf of the petitioners, the respondents are hereby directed to consider the case of the petitioners for the appointment to the post of Lok Rakshak ignoring their color blindness, and if nothing adverse is found against them, they shall be appointed on the said post forthwith. However, it is left to the discretion of the respondent authorities to appoint them to any other Class-III post having equal pay if the post of Lok Rakhshak is not available. It is also directed that in case the petitioners are not assigned the active duty of Lok Rakshak, they may be assigned the table work as an alternative. 14. Necessary orders shall be passed by the respondent authorities within a period of six weeks from the date of receipt of this order. Necessary benefits - like seniority as well as continuity of service shall also be incorporated in the orders appointing them. However, as observed by the Division Bench in the judgement rendered in the case of Khant Harischandra (supra), the petitioners shall not be entitled to any back wages."

9. Furthermore, it appears that the Hon'ble Division

of this Court in case of Rajdeep Vs. State of

Gujarat, reported in 2018(1) JX (Guj) 603 (LPA

No.1136 of 2018) had held on a similar issue as

thus:-

"10. In the backdrop of the aforesaid facts as emerging from the record, the legal position is

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required to be examined. The Supreme Court in Union of India v. Satya Prakash Vasisht, 1994 Supp (2) SCC 52, has, after perusing the relevant rules as applicable in the facts of the said case, observed that it was clear that the requirement that the candidate should be free from colour blindness is only for the post of Drivers and traffic staff in sub-clause (ii) and that does not apply to sub-clause (i) relating to Constables, Head Constables and Sub- Inspectors (Executive). The court held that it was obvious that the disqualification of colour blindness has no application to subclause (iii). The court observed that there was clearly discernible basis for the disqualification of colour blindness for persons appointed as Drivers and traffic staff, the nature of whose duties are different from that of a Sub- Inspector (Executive).

11. Moreover, a Division Bench of this court in Khant Harishchandra Amarsinh v. Superintendent of Police (supra) has, in a similar set of facts, held that when there was no provision which disqualified or rendered "colour blindness" unfit for the post of Unarmed Police Constable, the termination of the services of the petitioner therein could not be said to be in consonance with the terms of his appointment. The court held that merely because the order of appointment stipulated that the appointment was subject to medical unfitness, does not necessarily ipso facto lead to unerring inference that such an appointment, despite the colour blindness certified by the Medical Board is not legal and proper. The court held that whether a particular type of unfit certificate by the Medical Board would be ground of termination of service or cancellation of the appointment order or not, will have to be adjudicated upon the terms and conditions of the service and the governing rules. It cannot be ipso facto judged that the colour blindness is itself disqualification for any post in question.

12. In the light of the law laid down in the above decisions, it clearly emerges that in case

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any candidates are sought to be disqualified on the ground that they suffer from colour blindness, there has to be a specific provision in the rules providing for such disqualification. In the facts of the present case, a perusal of the relevant rules clearly indicates that no such disqualification has been provided for the post in question. Under the circumstances, it is not permissible for the respondents to adopt a stand that the appellants herein are not qualified for the post of Lok Rakshak. The learned Single Judge was, therefore, not justified in holding that every kind of deficiency or incapacity is not to be mentioned in the recruitment rules, and therefore, merely because it has not been specifically provided in the rules, it cannot be presumed that the petitioner therein should be treated as medically fit in spite of negative opinion after the examination.

13 This court is of the opinion that the view adopted by the learned Single Judge in Dineshbhai Govindbhai Kathechiya (supra), is in consonance with the settled legal position and the relevant rules and does not find it possible to agree with the view adopted by the learned Single Judge in the present case.

14. The appeals stand allowed accordingly. The impugned judgment and order dated 11.07.2018 passed by the learned Single Judge in Special Civil Application No.7595 of 2013 is hereby quashed and set aside. The writ petition being Special Civil Application No.7595 of 2013 is hereby allowed to the following extent.

15. The respondents are directed to consider the case of the appellants for appointment to the post of Lok Rakshak ignoring their colour blindness, and if nothing adverse is found against them, they shall be appointed on the said post forthwith. Since considerable time has elapsed since the recruitment was made, it is left to the discretion of the respondent authorities to appoint the appellants to any other Class-III post having equal pay if the post of Lok Rakshak is not available. It is also

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directed that in case the appellants are not assigned active duty of Lok Rakshak, they may be assigned table work as an alternative.

16. The question now is of the nature of relief which should be granted to the appellants in view of the fact though the selections took place in the year 2009, they would be appointed only now after a period of more than nine years. In the meanwhile the other selected candidates have been duly appointed and have been working for several years since then. In such a situation the grant of back-wages does not appear to be just and proper. This court is further of the view that though the appellants are entitled to the benefit of service from the date when they should have ordinarily been appointed on being selected yet it would not be appropriate to treat the earlier period prior to the date of their appointment as a period to be reckoned as actual service if a period of actual service is prescribed as a necessary qualification or promotion. It is also made clear that the promotion already made of persons junior to the appellants in the merit list on account of the late appointment of the appellants shall not be disturbed as a result of the relief granted to the appellants. Subject to these limitations, the entire period commencing from the date when the appellants should have ordinarily been appointed would be treated as a part of their continuous service for all other purposes including the retiral benefits and fixation of their seniority."

10. Having regard to the proposition of law laid

down by the learned Single Judge and impliedly

confirming the decision of the learned Single

Judge of this Court in case of Dinesh G. K. Vs.

State of Gujarat (supra) on merits, since the

petitioner has been sought to be disqualified only

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on the ground of colour blindness, in absence of

any specific provision prescribing the medical

condition of colour blindness as disqualification,

the impugned order of refusing the appointment

could be termed to be illegal.

11. It would be beneficial to refer to and reproduce

the observation of the Hon'ble Division Bench

(Coram: Vikram Nath, C.J. and A.S. Shastri, J.) in

the judgement dated 2.2.2021:-

"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

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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 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."

12. Having regard to the observations and findings

of this Court as above, in the considered opinion

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of this Court, the petition deserves

consideration. In the considered opinion of this

Court, appropriate directions deserve to be issued

to the respondents. The respondent authorities

are directed to appoint the petitioner on the post

of Lok Rakshak ignoring his colour blindness, if

nothing adverse is found against him. The

petitioner shall be granted continuity of service,

but the petitioner would not be entitled for