Gujarat High Court
Jaydeepsinh Arvindsinh Zala vs Director General Of Police And ... on 8 February, 2024
Author: Nikhil S. Kariel
Bench: Nikhil S. Kariel
NEUTRAL CITATION
C/SCA/22936/2022 ORDER DATED: 08/02/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 22936 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 767 of 2023
With
R/SPECIAL CIVIL APPLICATION NO. 25086 of 2022
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JAYDEEPSINH ARVINDSINH ZALA
Versus
DIRECTOR GENERAL OF POLICE AND INSPECTOR GENERAL OF
POLICE, GUJARAT STATE
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Appearance:
MS MAMTA R VYAS(994) for the Petitioner(s) No. 1
MR SAHIL TRIVEDI, ASST. GOVERNMENT PLEADER for the
Respondent(s) No. 1,2
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CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
Date : 08/02/2024
ORAL ORDER
1. Heard learned advocate Ms.Mamta Vyas on behalf of the
petitioners and learned Assistant Government Pleader
Mr.Sahil Trivedi on behalf of the respondent - State.
2. Issue Rule returnable forthwith. Learned AGP Mr.Trivedi
waives service of rule on behalf of the respondent - State.
2.1. Since a common issue has arisen for consideration of
this Court, all the three petitions are being taken up for final
decision jointly.
3. The short question which arises for consideration of this
Court being that whether the respondents were justified in
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terminating the services of the petitioners on the ground that
the petitioners were medically unfit for holding the post of
Unarmed Police Constable/Armed Police Constable since the
petitioners were detected with the colour vision deficiency
more particularly when the statutory rules, stipulating the
requirement of a candidate appointed as an Armed/Unarmed
Police Constable being required not to be suffering from
colour blindness defect, had came into effect only vide
notification dated 01.02.2020 whereby the rules were
amended and whereas, the date of advertisement was much
prior to the date in question.
4. The facts in brief as much as are required for deciding
the petitions being that the Lok Rakshak Recruitment Board
had issued an advertisement in the year 2017 for appointment
to the post of Lok Rakshak and whereas, based upon the merit
position of the candidates, they would be given appointment
in the cadre of Unarmed Police Constable, Armed Police
Constable, Jail Sepoy and Reserved Police Constable.
4.1. It would appear that the petitioners had applied for
selection and whereas, while the petitioner of Special Civil
Application No.22936/2022 had been appointed as an Armed
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Police Constable, the petitioners of Special Civil Application
Nos.767/2023 and 25086/2022 had been appointed originally
as Jail Sepoys. It would appear that since there were many
vacant posts in the cadre of Unarmed Police Constable on
account of various reasons, a reshuffling had been done by the
respondents and whereas, the petitioner of Special Civil
Application No.22936/2022 had been offered appointment to
the post of Unarmed Police Constable whereas the petitioners
of the other two petitions were offered appointment to the
post of Armed Police Constable.
4.2. It would appear that the petitioners, after the
appointment orders, were sent for medical examination and
whereas, the medical officer concerned had given the opinion
that the petitioners were medically unfit and whereas all the
three petitioners were referred to the Board of Referees in the
M&J Institute of Ophthalmology at the Civil Hospital,
Ahmedabad. It would appear that the Board of Referees had
concurred with the finding of the medical officer as regards
the petitioners being medically unfit on account of having
colour vision defectiveness and whereas it was under such
circumstances that the petitioners were declared as unfit for
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appointment.
4.3. It would appear that consequent upon such opinion,
while the petitioners were not given appointment to the post
of Unarmed/Armed Police Constable as the case may be, the
petitioners were also not take back in their original cadre of
Armed Police Constable/Jail Sepoy.
4.4. It is under such circumstances that the present petitions
have been filed inter alia requesting this Court to set aside the
impugned orders whereby the petitioners were declared unfit
for appointment by the concerned respondents. It is required
to be mentioned that in Special Civil Application
No.22936/2022 the order in question is dated 17.12.2022
passed by the Deputy Commissioner of Police, Surat City
whereas, in Special Civil Application No.767/2023, the order
in question is dated 27.12.2022 passed by the Commissioner
of Police, Rajkot City and whereas, in Special Civil Application
No.25086/2022, the order in question is dated 18.11.2022
passed by the Deputy Commissioner of Police, Vadodara City.
5. Learned advocate Ms.Mamta Vyas on behalf of the
petitioners would challenge the decision of the respondents of
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declaring the petitioners as unfit for appointment on the
ground that when the respondents had issued an
advertisement in the year 2017-18, there was no policy of the
State Government whereby the colour blindness defectiveness
was an impediment for appointment as an Armed/Unarmed
Police Constable. Learned advocate Ms.Vyas would submit
that it is only vide notification dated 01.02.2020 that the
respondent - State had sought to amend the Police Constable
(Unarmed Branch), Class-III in the Police Department
Recruitment Rules, 2016 whereby it was inter alia provided
that the candidates with colour blindness defects would be
considered unfit for appointment.
5.1. Learned advocate Ms.Vyas would submit that while the
notification is dated 01.02.2020, it would clearly appear that
prior to that date, there was no policy of the State which
required the candidate to be free from colour vision defect.
Learned advocate Ms.Vyas in this regard would submit that
the policy does not in any manner envisage retrospective
applicability and whereas, under such circumstances, the said
policy could not be relied upon by the respondents for
declaring the petitioners unfit more particularly when the
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advertisement, pursuant to which the petitioners had applied,
was for the year 2017-18.
5.2. Learned advocate Ms.Vyas would submit that as such, it
is a well settled position as laid down by this Court in number
of judgments, relying upon the decision of the Hon'ble Apex
Court that unless the rules stipulate a particular physical
condition as being a disqualification, the respondent State
could not declare such a physical condition as being an
impediment for appointment. Learned advocate would submit
that the rules not requiring a candidate to be free from the
colour vision defectiveness prior to 01.02.2020, the
respondents could not have required the candidates to be free
from such defect and could not have declared that a candidate
having such defect would be unfit for appointment prior to
such recruitment.
5.3. Learned advocate, in this regard, would rely upon a
decision of the learned Coordinate Bench of this Court
rendered in Special Civil Application No.6868/2020 and allied
matters dated 30.06.2020, whereby the learned Coordinate
Bench after analyzing earlier decisions of this Court, had
reiterated the position that unless the rules stipulate a
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particular impediment, the respondent State could not rely
upon such a stipulation to deny appointment to the
candidates.
5.4. It would be pertinent to observe that the learned
Coordinate Benches have observed that the petitioners
therein could not be deprived of appointment more
particularly on the ground of having colour vision
defectiveness when the rules do not stipulate that the
candidates should be free from such defect.
5.5. Learned advocate would therefore request this Court to
pass appropriate orders setting aside the decision of the
respondent authorities and directing the authorities to
appoint the petitioners on the post which they were offered
appointment after their initial order of appointment.
6. These petitions are vehemently opposed by learned AGP
Mr.Trivedi who would submit that admittedly, the petitioners
were found to be suffering from the defect of colour vision.
Learned AGP would submit that the petitioners having the
said defect, the respondents were absolutely justified in
declaring the petitioners unfit for appointment. Learned AGP
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would submit that while the advertisement would have been
of the year 2017-18, but, by the time the petitioners were sent
for medical examination, the rules had already been amended
and whereas under such circumstances, the respondents were
perfectly justified in relying upon the amended rules to deny
appointment to the present petitioners.
6.1. Learned AGP would submit that having regard to the
said submissions, the petitions may not be interfered with by
this Court.
7. Having heard learned advocates for the respective
parties, while it would appear that the issue with regard to
the respondents not being entitled to deny the appointment to
a candidate suffering from colour vision defect prior to the
amendment dated 01.02.2020 does not appear to be res
integra any more. Learned Coordinate Benches of this Court
as well as the Hon'ble Division Bench of this Court has
rendered numerous decisions on this aspect, this Court deems
it appropriate not to dwell on the same and whereas, this
Court deems it appropriate to refer to few of the decisions of
this Court where the view as above had been laid down.
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(i) The decision of the Hon'ble Division Bench of this Court
in case of Rajdeep Sinh Takhatsinh Zala & Ors. vs. State of
Gujarat through Secretary & Ors. [Letters Patent Appeal
No.1136/2018, decided on 02.11.2018]
(ii) The decision of learned Coordinate Bench in case of
Mihirkumar Arvindbhai Barot vs. Commissioner of Police,
Ahmedabad City & Anr. [Special Civil Application
No.15431/2017, decided on 26.07.2018]
(iii) The decision of learned Coordinate Bench in case of
Rajeshkumar Vardhaji Sundhesha vs. State of Gujarat & Anr.
[Special Civil Application No.3739/2018, decided on
08.04.2019]
7.1. Coming back to the principal issue being whether the
amendment dated 01.02.2020 would have retrospective
applicability or not, it requires to be mentioned that the
amendment does not in any manner reflect its retrospective
applicability. The amendment only states as regards Clause-D
of Appendix-A of the Police Constable (Unarmed Branch)
Class-III in the Police Department Recruitment Rules, 2016
being inserted. The inserted portion being "provided that the
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candidate with colour blindness defects shall be considered
unfit for appointment."
7.2. In the considered opinion of this Court, it is a trite
position that as far as amendment of a policy or promulgation
of a new policy is concerned, if a substantive change is being
effected then the policy would not have a retrospective
applicability and whereas, considering the present aspect
from the said perspective, it would appear that the
respondents, by inserting the said requirement, have brought
about a substantive change i.e. to state that from the date the
said insertion had taken effect i.e. from 01.02.2020, a
candidate with colour blindness was declared unfit for
appointment. The amendment, bringing a substantive change
in the policy, in the considered opinion of this Court, there
could not have been any retrospective applicability of the said
policy.
7.3. It would be required to be mentioned here that while
exact the date of the advertisement has not been mentioned in
the petition, yet, from the documents it would appear that the
advertisement was named as "Lok Rakshak Selection Board-
2018". It would also be required to be mentioned that the
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order whereby the petitioner of Special Civil Application
No.22936/2022 had been offered appointment in the post of
Unarmed Police Constable clearly reflect that the
advertisement was of the year 2018. This Court has also
perused the orders in the later petitions whereby the
candidates were offered appointment to the post of Armed
Police Constable from the post of Jail Sepoy and whereas, it
would appear that the said orders also contain a reference to
the advertisement of the year 2018.
7.4. Considering such a position, in the thoughtful opinion of
this Court, it becomes clear that the advertisement being
issued somewhere in the year 2017-18 and the petitioners
being selected pursuant to the said advertisement, a
substantive change in the policy vide notification dated
01.02.2020 would not be applicable to the petitioners and
whereas, the same would only be applicable to any selection
which has taken place after the amendment had come into
effect.
8. Having regard to the above findings, in the considered
opinion of this Court, the present petitions require
interference. Hence, the following directions are passed:-
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(i) The impugned orders dated 17.10.2022, 27.12.2022 and
18.11.2022 declaring the petitioners unfit for appointment,
are hereby quashed and set aside.
(ii) The petitioners are declared to be entitled for
appointment i.e. petitioner of Special Civil Application
No.22936/2022 is declared to be entitled for appointment to
the post of Unarmed Police Constable whereas the petitioners
of Special Civil Application Nos.767/2023 and 25086/2022 are
declared eligible for appointment to the post of Armed Police
Constable.
(iii) The respondents shall ensure appropriate appointment
orders being issued to the present petitioners within a period
of four weeks from the date of receipt of this order.
(iv) Furthermore, considering the fact that the petitioners
were initially appointed as Armed Police Constable/Jail Sepoy
and whereas after having worked for few years on the said
post, the petitioners were upon the process of reshuffling
given appointment to the higher post of Unarmed/Armed
Police Constable as the case may be and whereas it is during
the medical check-up for appointment to the said higher post
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that the petitioners were declared medically unfit resulting in
the petitioners not being appointed to the higher post and the
petitioners not even being permitted to join on the post which
they were already holding and whereas, this Court having
held such a decision on the part of the respondents as being
illegal, in the considered opinion of this Court, the petitioners
would be entitled for all consequential benefits i.e. the
petitioners would be entitled to be treated as appointed in the
post of Unarmed/Armed Police Constable as the case may be
from the date juniors to the petitioners were appointed and
whereas, the petitioners shall also be granted the benefit of
seniority etc.
(v) As far as backwages are concerned, learned advocate
Ms.Vyas has fairly conceded that she would leave the aspect
of backwages to the discretion of this Court. Considering that
petitioners were already working as Armed Police
Constable/Jail Sepoy, when on account of reshuffling they
were considered fit for appointment to higher post and
whereas considering that on an erroneous ground the
petitioners were declared unfit resulting in the petitioners
were losing on the employment in which they were already
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there, this Court deems it appropriate to direct the
respondents to grant 50% of backwages to the present
petitioners.
(vi) It is clarified that the petitioners shall be treated as
having been appointed from the date juniors to the petitioners
are appointed and whereas the entire period would be treated
as the petitioners were getting benefit of salary, increment
etc. and as directed hereinabove, while the petitioners shall
be granted 50% backwages, the remaining 50% shall be
treated as notional. It is also clarified that there shall not be
any break in service of the petitioners since the petitioners
were already appointed in a subordinate post before being
appointed to the post in question.
(vii) The calculation and appropriate payment shall be made
to the petitioners within a period of eight weeks from the date
of receipt of this order.
9. With the above directions, the present petitions stand
disposed of as allowed. Rule is made absolute accordingly.
Direct service is permitted.
(NIKHIL S. KARIEL,J)
Bhoomi
