Gujarat High Court
Akhed Ashok Bhimabhai vs State Of Gujarat on 1 April, 2024
Author: Nikhil S. Kariel
Bench: Nikhil S. Kariel
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C/SCA/10195/2021 JUDGMENT DATED: 01/04/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 10195 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 16951 of 2023
With
R/SPECIAL CIVIL APPLICATION NO. 988 of 2024
With
R/SPECIAL CIVIL APPLICATION NO. 21174 of 2023
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 No
see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of No
the judgment ?
4 Whether this case involves a substantial question of No
law as to the interpretation of the Constitution of India
or any order made thereunder ?
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AKHED ASHOK BHIMABHAI
Versus
STATE OF GUJARAT & ORS.
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Appearance:
MS MAMTA R VYAS(994) for the Petitioner(s) No. 1
ADVANCE COPY SERVED TO GP for the Respondent(s) No. 1
MR. SAHIL TRIVEDI, AGP for the Respondent no.1
RULE SERVED for the Respondent(s) No. 2,3,4,5
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CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
Date : 01/04/2024
Page 1 of 10
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COMMON ORAL JUDGMENT
1. Heard Ms. Mamta R. Vyas, learned advocate, Ms. Simpal
S. Rathod, learned advocate for the petitioners and Mr. Sahil
Trivedi, learned AGP on behalf of the respondent - State.
2. By way of these petitions, the petitioners have
challenged their non-appointment to the post of Lok Rakshak/
Police Constable pursuant to the recruitment vide an
advertisement of the year 2009, more particularly on the
ground that the petitioners were suffering from the disability
of colour blindness. Considering that the issue raised in the
present petitions is identical and whereas submissions of both
the parties also being identical qua issue involved, this Court
deems it appropriate to take-up the present group of petitions
for hearing together.
3. Considering the submissions made by the learned
advocates for the parties, it would appear that insofar as
principal issue is concerned i.e. whether the disability of
colour blindness could be a disability for employment, this
Court, seeks to rely upon the decision of Division Bench of this
Court in Letters Patent Appeal no.1136 of 2018 in Special
Civil Application no.7595 of 2013 dated 2 nd November, 2018.
It requires to be observed here that the Hon'ble Division
Bench, had inter alia observed that since there was no specific
provision in the rules, which provided for disqualification on
the ground that the candidate suffers from colour blindness,
the orders, whereby the candidature / appointments of the
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petitioners had been rejected/ cancelled, were all set aside
and the petitioners therein were directed to be appointed
from the date on which they would have been ordinarily
appointed as per the select list. It also requires to be
mentioned here that the said law has been reiterated in
number of decisions of this Court both of learned Co-ordinate
Benches, as well as, Division Benches and whereas since the
issue is no more res integra, this Court deems it appropriate
to follow the law laid down by the Division Bench and whereas
observation at para-12 are being reproduced hereinbelow for
benefit.
"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
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petitioner therein should be treated as medically
fit in spite of negative opinion after the
examination."
4. As far as the principal issue is concerned, while the
same is a settled position, the bone of contention in the
present group of petitions is with regard to the petitioners
having been approached this Court after a considerable delay.
While it is the case of the petitioners that the petitioners
should be treated similarly to the other candidates, who had
approached this Court questioning their non-appointment and
whereas reliance is placed by the learned advocates for the
petitioners upon observations of the Hon'ble Division Bench of
this Court in Letters Patent Appeal no.538 of 2020 dated 2 nd
February, 2021, more particularly whereby the Hon'ble
Division Bench has inter alia observed that since the
candidate therein belonged to the Scheduled Tribe and was
residing in a remote area, therefore, he should not be
deprived of employment if he is otherwise found to be
qualified, simply on the issue that the candidate was suffering
from colour blindness.
Importantly, the petitioners would rely upon a decision
of the respondent authorities dated 14 th September, 2022,
whereby a candidate i.e. one Chaudhary Sanjaykumar
Ambalal had been appointed, more particularly, the candidate
having been disqualified in a recruitment process of the year
2009. Learned advocates would point-out that the said
candidate had initially approached this Court by preferring
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Special Civil Application no.15651 of 2021 and whereas, vide
an order dated 18th October, 2021, this Court had inter alia
accepted the request of the petitioner to approach the
respondents by preferring representation for agitating his
grievances. It is submitted by learned advocates that the
order dated 14th September, 2022 referred to hereinabove by
the respondents, was an order passed upon the representation
by the very petitioner, which was directed to be decided by
this Court. Learned advocates for the petitioners would point-
out that the petitioner therein, having not succeeded in
getting an appointment in the year 2009, more particularly his
candidature having been cancelled on the ground of being
afflicted with colour blindness, yet, the respondent authorities
themselves had deem it appropriate to appoint the said
petitioner in the year 2022. Learned advocates for the
petitioners would further submit that the respondent
authorities having taken a stand to appoint a candidate, who
had been disqualified the selection of the year 2009, it would
not be open for the respondents to take a different view in the
present group of petitions.
5. Per contra, the present group of petitions are
vehemently opposed by Mr. Sahil Trivedi, learned AGP on
behalf of the respondent - State. Learned AGP would submit
that while this Court has been taking a view time and again in
various petitions, that the affliction of colour blindness would
not be a disqualification for appointment as a Lok Rakshak,
Police Constable and whereas, one of the earliest decisions
being decision of the Division Bench, which is referred to
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hereinabove, yet, what requires to be noted is that the
decision of Division Bench was also of the year 2018 whereas,
the petitioners have approached this Court six years
thereafter. Mr. Trivedi, learned AGP, would further submit
that in Special Civil Application no.10838 of 2021 vide a
decision dated 5th August, 2021, learned Co-ordinate Bench,
had rejected the case of an applicant, whose candidatature
had been rejected on the ground that the candidate had been
afflicted with colour blindness, more particularly, the
recruitment process being of the year 2009. Learned AGP
would submit that the Co-ordinate Bench had rejected the
petition on the ground of inordinate delay. Learned AGP
would further rely upon decision of Division Bench of this
Court in Letters Patent Appeal no.397 of 2020, whereby a
decision dated 16th October, 2009 in Special Civil Application
no.12147 of 2019 by the Co-ordinate Bench, more particularly
rejecting the petition of similar nature on the ground of
inordinate delay had been confirmed by the Division Bench.
Relying upon the said decisions, learned AGP would request
this Court not to entertain the present petitions.
6. Heard learned advocates for the respective parties and
perused the documents on record. As noted hereinabove,
insofar as the decision on merits is concerned, the same is no
more res integra inasmuch as, the law on the issue having
been settled by decision of the Division Bench referred to
hereinabove i.e. in Letters Patent Appeal no.1136 of 2018 in
Special Civil Application no.7595 of 2013 dated 2 nd November,
2018, in the considered opinion of this Court, the same is
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required to be followed.
7. As noted hereinabove, the only issue which arises for
consideration of this Court that, would this Court entertain a
writ petition, more particularly after such a considerable
delay at the end of petitioner himself.
8. At the outset, in this regard, it is to be noted that the
issue that the petitioners are not required to be appointed
since they have come to this Court belatedly, may not be open
for the respondent themselves to contend, the reason being
that in writ petition i.e. Special Civil Application no.15651 of
2021, as referred to hereinabove vide decision dated 18 th
October, 2021, this Court had acceded to the request of
learned advocate for the petitioner for permitting the
petitioner to approach the respondents by preferring a
representation and whereas the respondents were directed to
decide the representation in accordance with law within a
specific period of time. It would appear as noted hereinabove
that vide order dated 14th September, 2022 the respondents,
had appointed the said petitioner in spite of noting that the
petitioner had not cleared the selection process of the year
2021. In the considered opinion of this Court, the
respondents having deemed it appropriate to appoint a
candidate whose candidature had been rejected in spite of
selection, more particularly, the process having started in the
year 2009, and whereas it also appears pursuant to the order
dated 14th September, 2022 that the order does not notice any
special circumstance for taking a view in question, therefore,
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now it would not be open for the respondents to take a stand
that even if the petitioners having approached this Court
belatedly, more particularly, the selection pertaining to the
year 2009, therefore, their cases ought not to be entertained
by this Court. The State having taken a particular view in
case of a particular employee, the same stand is required to
be reiterated by this Court in case of the present petitioners,
who are otherwise similarly situated to the employee/
beneficiary of order dated 14th September, 2022.
9. Insofar as the decisions of learned Co-ordinate Bench in
Special Civil Application no.10838 of 2021 and Letters Patent
Appeal no.397 of 2020, it requires to be observed that while
the Hon'ble Division Bench, as well as, learned Co-ordinate
Bench had taken a view that the case of the petitioners/
employees therein ought not to be entertained on the ground
of delay, yet, it would appear that in a later decision, Hon'ble
Division Bench, more particularly vide decision dated 2 nd
February, 2021 in Letters Patent Appeal no.538 of 2020 had
inter alia taken a view that merely on the ground of delay, a
candidate should not be deprived of employment, more
particularly since in similar petitions, where the petitioners
have challenged their non-appointment on the ground that
they detected with the affliction of colour blindness had been
interfered by the learned Co-ordinate Benches and Division
Benches of this Court, therefore, the later decision of the
Hon'ble Division Bench in the considered opinion of this
Court, is required to be followed, more particularly since it
appears that the present petitioners are otherwise similarly
situated to the petitioners, who had approached this Court
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and whereas the only difference being that the petitioners
have approached this Court belatedly.
At this stage, it would also be worthwhile to note that
the aspect of belated approaching this Court, may not
otherwise prejudice the respondents at all except for the
benefits of seniority, this Court in almost all the cases has not
awarded any back-wages to the petitioners and whereas the
only benefit apart from directing appointment, which has been
granted to the employee is to be treated as being appointed at
the relevant point of time, when persons similarly situated to
the petitioners had appointed and whereas the period of
service prior to the date of service, has been directed not to
be treated as period in actual service. Thus, it would appear
that this Court, more particularly starting from decision dated
2nd November, 2018 in Letters Patent Appeal no.1136 of 2018
while directing appointment, had also balanced the equities
by ensuring that the interest of the State is also protected,
therefore, in the considered opinion of this Court, delay may
not have any real bearing on the issue in question and
whereas as noted hereinabove, since the State itself has
deemed it appropriate to appoint the employee in the year
2022, whose candidature had been rejected pursuant to the
selection of the year 2009, therefore, it may not be open for
the State to agitate the issue of delay in the present group of
petitions.
7. Considering the above discussion, observations and
conclusions, in the opinion of this Court, the petitions would
succeed. The petitioners are entitled for appointment from
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the date when they would have ordinarily appointed on being
selected and whereas the period from the date of appointment
till the date of actual joining, would not be treated as the
period in actual service except for retiral benefits and fixation
of seniority. Furthermore, it is clarified that the promotions
given if any to persons junior to the petitioners in the merit
list shall not be disturbed. The respondents to pass
appropriate orders appointing the present petitioners subject
to the above conditions more particularly if nothing adverse is
found against the petitioners within the period of eight
weeks from the date of receipt of this order. Rule made
absolute to the aforesaid extent.
Sd/-
(NIKHIL S. KARIEL, J.)
AMAR RATHOD...
