Gujarat High Court
Anant Visabhai Desai vs Director General Of Police on 16 September, 2022
Bench: Biren Vaishnav
C/SCA/16818/2022 JUDGMENT DATED: 16/09/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 16818 of 2022
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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ANANT VISABHAI DESAI
Versus
DIRECTOR GENERAL OF POLICE
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Appearance:
MS.NIDHI RAVAL, ADVOCATE FOR MS MAMTA R VYAS(994) for the
Petitioner(s) No. 1
MR. SOAHAM JOSHI, ASSISTANT GOVERNMENT PLEADER/PP for the
Respondent(s) No. 1
DS AFF.NOT FILED (N) for the Respondent(s) No. 1
NOTICE SERVED BY DS for the Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
Date : 16/09/2022
ORAL JUDGMENT
1 Rule returnable forthwith. Mr.Soaham Joshi, learned
Assistant Government Pleader, waives service of notice of
rule on behalf of the State - respondent.
C/SCA/16818/2022 JUDGMENT DATED: 16/09/2022
2 Heard Ms.Nidhi Raval, learned advocate appearing
for Ms.Mamta Vyas, learned advocate for the petitioner.
The prayer in this petition is for a direction to quash and
set aside the communication dated 08.09.2017, by which,
the petitioner has been declared as unfit for the post of
SRP Lokrakshak on the ground of colour vision.
3 Ms.Nidhi Raval, learned counsel for the petitioner,
would submit that the issue is squarely covered by a
decision of this Court rendered in Special Civil
Application No. 4775 of 2020 and allied matters on
23.09.2020.
4 Having perused the decision, paras 14 to 19 of the
said decision read as under:
"14. On the basis of aforesaid observations which
are clearly made by division bench of this Court, the
issue is almost squarely covered by aforesaid
decision which is binding not only upon the Court by
way of judicial discipline but also on the State
authority and as such learned AGP Mr. Vyas has
candidly submitted that there is no other
distinguishable point available for him to confront
the situation except the fact that the issue is
challenged by the State Government before Hon'ble
Apex Court. Learned AGP has also candidly
C/SCA/16818/2022 JUDGMENT DATED: 16/09/2022
submitted that the matter is lying merely at diary
number stage and said number is also given in
affidavit in reply at page 59 of the petition
compilation in paragraph No. 14 bottom.
15. This being the situation since all the contentions
permissible in law are examined by co-ordinate
bench as well as by other decisions including
Division Bench's judgment as referred to above, as
part of judicial discipline, the Court would not like to
express any other view which is otherwise also not
permissible also. In addition to this, another group
of petition is also appeared to have been decided
identical to the present one by co-ordinate bench of
this Court on 30.6.2020 in group of petition headed
by Special Civil Application No. 6868 of 2020 and as
such without expressing much on this issue the
Court would not like to deviate merely on the
ground that the State has challenged the decision
but taking note of a situation that no orders have
been passed so far and just it is lying at a diary
number stage, the petitions deserve to be allowed
being covered by aforesaid pronouncement.
16. So far as other issue which has been raised
about delay, the same would be insignificance for
the State to raise since such an issue in view of the
fact that State was very much a party to the said
issue having being decided by several benches of
this Court and as such the Court would not like to
deviate the core issue and would like to grant relief
as prayed for in the petitions.
17. However, while allowing the petitions the Court
would surely concerned that the nature of relief and
how to be granted and for that purpose the Court
has an advantage and assistance of the operative
part of the decision of Division Bench of this Court
as stated above.
C/SCA/16818/2022 JUDGMENT DATED: 16/09/2022
18. In view of above, petitioners herein being
similarly situated as the petitioners in the above
referred cases, deserve to be granted with the same
benefit. Accordingly, the impugned orders and
actions are hereby quashed and set aside. The
respondents are directed to consider the case of the
petitioners 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 , it is left to the discretion of the
respondent authorities to appoint the petitioners to
any other Class-III post having equal pay if the posts
of Lok Rakshak are 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.
19. 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 petitioners in
the merit list on account of the late appointment of
the petitioners shall not be disturbed as a result of
the relief granted to these petitioners. Subject to
these limitations, the entire period commencing
from the date when the petitioners 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. Accordingly, all the petitions are allowed
to the aforesaid extent. Rule made absolute. Direct
service is permitted."
C/SCA/16818/2022 JUDGMENT DATED: 16/09/2022
5 Accordingly, the petition is allowed. The respondents
are directed to consider the case of the petitioner for
appointment to the post of SRP Lokrakshak ignoring his
medical incapacity and if nothing adverse is found he
shall be appointed on the post forthwith.
It is clarified that the petitioner is entitled to the
benefit of service from the date when he should have
ordinarily been appointed on being selected but his
earlier period shall be reckoned as actual service if
necessary for qualification on promotion. In the
meantime, if persons junior to the petitioner in merit list
are appointed and promoted, their seniority shall not be
disturbed. The entire period commencing from the date
when the petitioner should have ordinarily been
appointed will be treated as a part of continuous service
for all other purposes including retiral benefits and
fixation of their seniority. Rule made absolute
accordingly.
(BIREN VAISHNAV, J)
BIMAL
