Kalpeshkumar Yogendrasinh Zala vs Director General Of Police
2022 Latest Caselaw 9983 Guj

    C/SCA/15215/2018                               JUDGMENT DATED: 12/12/2022




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/SPECIAL CIVIL APPLICATION NO. 15215 of 2018


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE NIRZAR S. DESAI

==========================================================

1    Whether Reporters of Local Papers may be allowed
     to see the judgment ?

2    To be referred to the Reporter or not ?

3    Whether their Lordships wish to see the fair copy
     of the judgment ?

4    Whether this case involves a substantial question
     of law as to the interpretation of the Constitution
     of India or any order made thereunder ?

==========================================================
                       KALPESHKUMAR YOGENDRASINH ZALA
                                    Versus
                          DIRECTOR GENERAL OF POLICE
==========================================================
Appearance:
MS MAMTA R VYAS(994) for the Petitioner(s) No. 1
MR. NIRAJ SHARMA, AGP for the Respondent(s) No. 1,2
==========================================================

    CORAM:HONOURABLE MR. JUSTICE NIRZAR S. DESAI

                               Date : 12/12/2022

                               ORAL JUDGMENT

1. By way of this petition, the petitioner has prayed for quashing

and setting aside the order dated 27.04.2018 whereby the

petitioner was declared unfit on the ground of on examination

C/SCA/15215/2018 JUDGMENT DATED: 12/12/2022

of his eyes, it was found that there was defect in eyes, the

petitioner's appointment as Lokrakshak was cancelled. The

petition was amended subsequently by way of amended

prayer, the petitioners has also prayed to direct the respondent

authority to appoint the petitioner at any post in

administration.

2. Heard learned advocate Ms. Mamta Vyas for the petitioner and

learned AGP Mr. Niraj Sharma for the respondent - State.

3. It is the case of the petitioner that in the year 2016 an

advertisement for the post of unarmed Police Constable

(Lokrakshak) was published and pursuant to the said

advertisement, the petitioner applied for the said post and on

clearing the necessary exam,, he was appointed as Unarmed

Police Constable and his name figured at Sr. No. 34 in the

select list.

4. Once the petitioner cleared the examination and necessary

training was taken for that. The petitioner was appointed as

Unarmed Police Constable vide appointment order dated

C/SCA/15215/2018 JUDGMENT DATED: 12/12/2022

18.05.2017. Thereafter, the petitioner's medical examination

took place on 15.11.2017 and upon examination the petitioner

was declared unfit, however, no reason was given for the same

and therefore, based upon the aforesaid medical report, the

petitioner's service was terminated vide order dated

27.04.2018 against which the petitioner made a representation

but the same was not considered positively and therefore, the

petitioner has preferred the present petition with the prayers

which are referred hereinabove.

5. Learned advocate Ms. Mamta Vyas appearing for the

petitioner vehemently submitted that it is not sufficient for the

respondent - Authorities to terminate the petitioner's services

merely by stating that he is unfit. The medical certificate must

state the reason as on what ground the petitioner has been

declared unfit and it must not merely state that there is some

defect in his eyes. She submitted that earlier in similar set of

facts when the petitioners has cleared the examination and yet

they were denied the appointment on the ground of color

blindness, the Coordinate Bench of this Court quashed the

C/SCA/15215/2018 JUDGMENT DATED: 12/12/2022

aforesaid orders and directed those persons to be appointed in

the within some bound scheduled by protecting their

intervening period.

6. Learned advocate for the petitioner relied upon the judgments

in case of Shaikh Tahirhusain Mohmmed Hanif V/s

Lokrakshak (Constable) Recruitment Board and other dated

26.12.2016 in Special Civil Application No. 8707 of 2016, in

case of Dineshbhai Govindbhai Kathechiya V/s. State of

Gujarat Through Secretary decided on 26.04.2018 Special

Civil Application No. 7638 of 2013 and common oral order

dated 26.07.2018 in case of Mihirkumar Arvindbhai Barot V/s.

Commissioner of Police, Ahmedabad City in Special Civil

Application No. 15431 of 2017 and allied matters.

7. By relying upon the aforesaid judgments, she submitted that in

all those decisions, the Coordinate Bench of this Court was

pleased to quash and set aside the orders whereby the services

of the petitioners were terminated on the ground of colour

blindness. She submitted that in the instant case, since no

C/SCA/15215/2018 JUDGMENT DATED: 12/12/2022

reasons were assigned at the time of terminating the service of

the present petitioner, it was duty cast upon the the respondent

- Authorities to state the reason as on which ground the

services of petitioner is sought to be terminated.

8. She submitted that the first order terminating the services of

the petitioner merely states that since as per the report by the

Civil Surgeon, Ophthalmology Department, Ahmedabad and

as per his certificate, the petitioner was declared unfit, his

services were terminated vide order dated 27.04.2018. She

submitted that at the relevant point of time, no reasons were

assigned pursuant to the order dated 14.02.2019, it was left to

the petitioner to approach Civil Hospital and case of the

petitioner was to be considered by the Board of Referees, Civil

Hospital for examination of his eyes and for issuance of

certificate. However, pursuant to the aforesaid order also when

the Board of Referee examined the petitioner on 29.02.2019,

the Board of Referee issued a certificate stating that the

petitioner is one-eyed person and declared him unfit.

According to learned advocate Ms. Mamta Vyas, the aforesaid

C/SCA/15215/2018 JUDGMENT DATED: 12/12/2022

reason due to which the petitioner was declared unfit was

never there in the past and for the first time by way of

certificate dated 27.02.2019, such reasons have come forward

and therefore, in view of the contradiction in stating the

reasons, the impugned order can be said to be bad and

unsustainable in the eyes of law and therefore, the same is

required to be quashed and set aside.

9. Learned advocate Ms. Vyas further submitted that though the

petitioner was examined by the export Doctors on four

different occasions, the first certificate issued by the Board of

Referees whereby the petitioner was declared unfit does not

bear the reason as to how the petitioner was considered to be

unfit by the Board of Referee.

10. By one certificate dated 31.03.2017, the vision of the

petitioner's left eye was not found to be 6/6 and instead of was

found as 5/60 and on that ground the case of the petitioner was

referred to the Board of Referees and ultimately, the Board of

Referees declared the petitioner unfit whereas in the year 2019

C/SCA/15215/2018 JUDGMENT DATED: 12/12/2022

vide certificate dated 27.02.2019, the Board of Referees found

the petitioner to be one eyed and on altogether different

reason, the petitioner was declared unfit which is not

permissible according to the learned advocate Ms. Vyas.

11. Learned advocate Ms. Vyas urged that as it was directed

in other cases of colour blindness that the person who is

selected and completed training where under directions of this

Court, directed to give table work and thereby, the respondent

authorities were directed to consider the case of those

petitioners by protecting their interim period during which

their services remain terminated. She submitted that in the

instant case also there is a certificate issued by the Police Sub

Inspector, Jinjuvada certifying that the petitioner had

performed his duties with utmost, sincerity diligently which

would indicate that the petitioner can do the table work and

therefore, the petitioner's case also is required to be considered

for table work by ignoring the certificate in stating that the

petitioner is unfit for the post of Lokrakshak.

C/SCA/15215/2018 JUDGMENT DATED: 12/12/2022

12. Learned AGP Mr. Niraj Sharma appearing for the

respondent - State opposed this petition and pointed out that

the case of the present petitioner is different as compared to

the cases relied upon by learned advocate for the petitioner.

Those cases are in respect of the color blindness wherein this

Court interfered and directed the respondent authorities to

appoint those petitioners on the various post of Constables in

Police Department. He pointed out from the judgment in case

of Dineshbhai Govindbhai Kathechiya V/s. State of Gujarat

Through Secretary in Special Civil Application No. 7638 of

2013, that the Court considered the case of that petitioner on

the basis of specific recommendation by the Police Head

Quarter as that person was certified by Medical Board as fit

for table work, in the instant case, there is no such certificate.

13. He further submitted that the Rules in respect of

appointment of Police Constable specifically provides about

certain kind of physical fitness as prerequisite for substantive

appointment or continues in services, he relied upon the Rule

11 of the Gujarat Civil Services (General Condition of

C/SCA/15215/2018 JUDGMENT DATED: 12/12/2022

Services), Rules 2002 and more particularly Schedule B Rule

(2) which specifically provides for doubtful and unsuitable

cases which are usually referred to the Board of Referees and

how and what aspect the Board of Referees is required to be

considered. He submitted that the Board of Referees consists

of three expert ophthalmologists and the conclusion arrived at

by the Board of Referees who are the expert doctors cannot be

interfered or altered with by way of any judicial order by this

Court by exercising the powers under Article 226 of the

Constitution of India.

14. He submitted that Board of Referees have specifically

considered the fact that the petitioner is one eyed person and

they have not opined that the petitioner is fit for any table

work. In absence of there being any opinion by the Board of

Referees that the petitioner is fit for table work, the case of the

present petitioner cannot be equated with the case of the

petitioner of those petitions who were declared unfit on the

ground of color blindness.

C/SCA/15215/2018 JUDGMENT DATED: 12/12/2022

15. Learned AGP Mr. Sharma further submitted that in the

instant case, even the earlier certificate also states that the

petitioner does not have proper vision in the left eye and it is

only 5/60 instead of 6/6, which otherwise also declares the

petitioner to unfit. He submitted that though the petitioner had

been examined by the various medical bodies, time and again,

the end result of each of the examination was the same and at

no point of time, the petitioner was declared fit for the post nor

any suggestion was made that the petitioner be assigned any

table work. In absence of there being any material in favour of

the petitioner, the case of the petitioner may not be considered

at par with the petitioners of those petitions wherein the

services were terminated on the ground of colorblindness.

16. Learned AGP submitted that considering the nature of

work of police department, the continuation of services of the

petitioner must be in accordance with Rules and by relaxing

the Rule beyond the particular limit may ultimately affect the

performance of the police department and therefore,

considering the fact that the petitioner's vision was found to be

C/SCA/15215/2018 JUDGMENT DATED: 12/12/2022

less than what was prescribed by way of Rules and also

considering the fact that the petitioner is declared to be one

eyed person by Board of Referees, the petitioner is unfit for

the post of Police Constable and therefore, the petition may be

dismissed.

17. I have heard learned advocates for the respective parties

and perused the record and considered the submissions in light

of judgments relied upon by learned advocate Ms. Vyas for the

petitioner.

18. It is undisputed position that the petitioner was initially

selected on the post of Unarmed Lokrakshak in the year 2017

vide appointment order dated 18.05.2017. It is during the

medical examination of the petitioner, he was declared unfit on

the basis of a certificate dated 31.05.2017 wherein in the left

eyes of the petitioner, the required eyesight was not meeting

with the criteria prescribed for the post of the Police Constable

and vision of the petitioner was not 6/6 but was 5/60 in the left

eyes. However, since, reason was assigned at the relevant

C/SCA/15215/2018 JUDGMENT DATED: 12/12/2022

point of time, the termination order based upon the aforesaid

certificate was challenged before this Court by the present

petitioner by way of this petition. However, during the

pendency of this petition, vide order dated 14.02.2019 once

again an opportunity was given to the petitioner to appear

before the Board of Referees, Civil Hospital, Ahmedabad and

the authorities also were directed to diagnose the precise

ailment that the petitioner is suffering from. Accordingly the

petitioner appeared before the Board of Referees on

27.02.2019 and Board of Referees comprising of three

members gave a certificate dated 27.02.2019 declaring the

petitioner unfit on the ground that the petitioner is one eyed

person.

19. Considering the fact that being one eyed person and

having colour blindness are all together different things.

Colour blindness would mean that a person's vision otherwise

is perfect either naturally or by wearing glasses, however, here

in the instant case, the petitioner is declared a one eyed person

by the expert doctor. More particularly, when the expert

C/SCA/15215/2018 JUDGMENT DATED: 12/12/2022

doctors even after carrying out the examination of the present

petitioner more than once have come to the conclusion that the

petitioner's eyesight is not meeting with the requirement and

more particularly when there is some defect in the eyesight of

the petitioner, the case of the petitioner is required to be

considered keeping this fact in mind in light of judgments

relied upon by learned advocate Ms. Vyas.

20. As far as the judgments relied upon by learned advocate

Ms. Vyas is concerned, all these three judgments are in respect

of person suffering from colour blindness, meaning thereby,

though have perfect eyesight either naturally or by wearing

glasses, but they find it difficult to recognize a particular

colour, defect of recognizing a particular colour cannot be said

to have same kind of implications in performing the job which

a person may face while performing the duties with one eye.

When the certificate issued by panel of expert doctor dated

27.02.2019 specifically states that the petitioner is one eyed

person and he is not fitting the criteria, in that case, the opinion

of expert doctor cannot be interfered with or altered by this

C/SCA/15215/2018 JUDGMENT DATED: 12/12/2022

Court in a writ petition under Article 226 of the Constitution

of India.

21. More particularly, in the earlier case, it was a

specifically recommended by the Board of Doctors that the

petitioner is fit to perform the table work, in the instant case

there is no such certificate by the Expert Doctor or by the

higher authority, the only certificate that is relied upon by

the learned advocate Ms. Vyas is a certificate issued by the

Police Sub Inspector certifying that the petitioner has

performed his duty as Unarmed Constable and has done the

table work with utmost, sincerity and honesty. However, since,

the said certificate is not by the appointing authority or the

doctor, such certificate cannot be considered for issuing any

directions to the respondent authority to consider the case of

the petitioner for table work.

22. In view of above discussions and more particularly,

considering the fact that police force is a force which

performinge various kind of duties right from maintaining the

C/SCA/15215/2018 JUDGMENT DATED: 12/12/2022

law and order to working in the adverse situation like rioting

as well as managing traffic etc. and nature of duties of 24

hours and police is expected to work all 365 days, considering

the nature of work involved and more particularly when the

Medical Board has declared the petitioner unfit on the ground

that the petitioner is one eyed person, this Court do not deem it

appropriate to interfere with that decision and to direct the

respondent authorities to consider the case of the petitioner

even for table work. As stated in foregoing paragraphs, the

three judgments relied upon by learned advocate Ms. Vyas

would not be applicable in the facts of the present case, as

those three judgments are in respect of defect of colour

blindness. Colour blindness is altogether different as compared

to one eyed person and therefore, those judgments would not

help the petitioner.

23. In view of the aforesaid discussions, the present petition

fails and the same is dismissed. Notice is discharged. No

order as to costs.

(NIRZAR S. DESAI,J) VARSHA DESAI