Gujarat High Court

Katubhai Vestabhai Rathava vs State Of Gujarat on 27 January, 2022

Bench: Biren Vaishnav

     C/SCA/11761/2020                               JUDGMENT DATED: 27/01/2022




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 11761 of 2020


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE BIREN VAISHNAV

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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 ?

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                        KATUBHAI VESTABHAI RATHAVA
                                   Versus
                             STATE OF GUJARAT
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Appearance:
MR.DEVENDRA H PANDYA(6462) for the Petitioner(s) No. 1
MR KURVEN DESAI, AGP (99) for the Respondent(s) No. 1
DS AFF.NOT FILED (N)(11) for the Respondent(s) No. 2
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     CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
                      Date : 27/01/2022
                      ORAL JUDGMENT

1. Rule returnable forthwith. Mr. Kurven Desai,

learned Assistant Government Pleader waives

service of notice of Rule for respondent-State.

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2. With the consent of the learned counsels for the

respective parties, the petition is taken up for final

hearing today.

3. Heard Mr. Devendra N. Pandya , learned counsel for

the petitioner and Mr. Kurven Desai, learned AGP

for the respondents - State through Video

Conferencing. Perused the record.

4. The petitioner belongs to the Scheduled Tribe

Category. He was selected for the post of Police

Constable (Police Protector) in the Unarmed Police

Constable Department. It appears that by a

communication dated 18.8.2020 in pursuance to a

certificate issued by the M & J Institute of

Ophthalmology, the petitioner's candidature for

being selected to the post was rejected on the

ground that he had been declared as `unfit'. This is

the subject matter of challenge in this petition. The

petitioner, therefore, was declared as unfit on

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account of he being a color blind.

5. Mr. Devendra Pandya, learned counsel for the

petitioner would submit that the issue is no longer

debatable in view of the decisions of this Court in

Special Civil Application Nos.3739 of 2018 dated

8.4.2019, 3231 of 2020 and allied matter dated

10.2.2020, and 6671 of 2020 and allied matters

dated 30.6.2020 as well as the decision of the

Division Bench of this Court in Letters Patent Appeal

No.1136 of 2018 dated 2.11.2018.

6. Mr. Kurven Desai, learned Assistant Government

Pleader for the State would rely on an affidavit-in-

reply by the Assistant Commissioner of Police, Surat

City justifying the action of the respondent in

declaring the petitioner as unfit. Relying on the

contents of the affidavit, Mr. Desai would submit

that the petitioner was required to undergo physical

and eye examination to ascertain his fitness and he

having been found with impaired vision as being

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color blind was rightly declared as unfit.

6.1. Reliance is placed on the amended the

"Police Constable (Unarmed Branch), Class III in the

Police Department Recruitment Rules, 2016.

Considering the fact that the issue is no longer

debatable as covered by the decision of this Court,

this Court in Special Civil Application No.3231 of

2020 and allied matters dated 10.2.2020 (Relevant

paragraph Nos.5 to 9) following the decision in the

case of the petitioner in SCA No.15431/2017 held as

under:

"5. This Court in Special Civil Application No. 15431 of 2017 and allied matters considering the law laid down by this Court and the relevant provisions of Gujarat Civil Services (General Condition of Services) Rules, 2002 held in paragraphs no. 5.3 to 6.1 as under:

"5.3 It was unequivocally held that the colour blindness would not lead to disqualification from being appointed to the post of Unarmed Police Constable as under:

"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

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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 ClassIII 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 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."

5.4 The Court proceeded to rely on an Apex Court decision,

"10. The Supreme Court in the case of Union of India and ors Vs. Satyaprakash Vashishth [1994 (Suppl) 2 SCC 52] 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

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rendered in the case of Khant Harischandra Amarsinh Vs. Superintendent of Police [2003 (4) GHJ 300], 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." 6.

Reverting to the facts of the present case, in case of each of the petitioners, though the

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competent authority issued letters of appointment to them, the actual appointment was not given on the ground that in the medical examination, the petitioners were noticed to be colour blind. Having regard to the position of law as laid down by this Court in Shaikh Tahirhusain Mohmmed Hanif (supra) as well as in Dineshbhai Govindbhai Kathechiya (supra), the action on the part of the respondents in not granting the appointment to the petitioners, is rendered arbitrary and illegal. The petitioners have to be treated as qualified and to be entitled to be appointed to the post in question. 6.1 As a result of above, the respondents are hereby directed to act upon the appointment orders already issued to the respective petitioners and consider to appoint them on the post of Unarmed Police Constable, by not treating their colour blindness as ineligibility and ignoring the colour blindness, if nothing adverse is otherwise found against them."

7. Even the Division Bench in LPA No.1138/2018 dated

2.11.2018 held as under:

6. It is not in dispute that the case of the petitioners is now covered by the decision rendered by this Court in Letters Patent

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Appeal No. 1136 of 2018 wherein this Court directed the respondents to consider the case of the appellants for appointment to the post of Lokrakshak ignoring their colour blindness and if nothing adverse against them is found. The petitioners therein were directed to be appointed on the said post forthwith. The Division Bench considering the issue on hand held as under in paragraph no. 12 to 15:

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

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

7. In view of the above, petitioners herein being similarly situated as the petitioners in the abovereferred cases, deserve to be granted the

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same benefit. Accordingly, the impugned orders are hereby quashed and set aside. The respondents are directed to consider the case of the appellants for appointment to the post of Lok Rakshak ignoring their medical incapacity, 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 directed that in case the appellants are not assigned active duty of Lok Rakshak, they may be assigned table work as an alternative.

8. 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

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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.

9. Accordingly, the petitions are allowed to the aforesaid extent. Rule made absolute. Direct service is permitted."

8. Accordingly, the petition is allowed considering the

fact that the petitioner is being similarly situated as

in those petitions, the respondents are directed to

consider the case of the petitioner for appointment

to the post of Police Constable (Police Protector) in

the Unarmed Police Constable Department ignoring

his medical incapacity and if nothing is found

adverse against him, he shall be appointed on the

post forthwith. The case of the petitioner shall be

considered in line with the decisions i.e. SCA

Nos.3739/2018 dated 8.4.2019, 3231/2020 and