Gujarat High Court
Sonalben Bhaurao Saindane vs State Of Gujarat on 17 April, 2025
Author: Nirzar S. Desai
Bench: Nirzar S. Desai
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 20657 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE NIRZAR S. DESAI Sd./-
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Approved for Reporting Yes No
✔
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SONALBEN BHAURAO SAINDANE
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR.DEVENDRA H PANDYA(6462) for the Petitioner(s) No. 1
MR SG UDHWANI, NOTICE SERVED for the Respondent(s) No. 1,2
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CORAM:HONOURABLE MR. JUSTICE NIRZAR S. DESAI
Date : 17/04/2025
ORAL JUDGMENT
1. Heard, learned Advocate, Mr. Pandya, for the petitioner
and learned AGP, Mr. Udhwani, for the Respondents.
2. Since, the issue involved in this petition is a covered
issue, i.e. it pertains to the denial of appointment to the
petitioner on the post of Lok Rakshak / Unarmed Police
Constable, on the ground of colour vision, this matter is taken-
up for final hearing and disposal, today.
3. Hence, RULE. Learned AGP, Mr. Udhwani, waives
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service for the Respondents.
3.1 By way of this petition, the petitioner has prayed for the
following reliefs;
"11. ...
a) Your Lordships may be pleased to admit and allow this
petition.
b) Your Lordships may be pleased to issue a writ of
mandamus or any other appropriate writ, order or direction
against the respondents quashing and setting aside the
decision taken by the respondents on the basis of medical
certificate dated 25-08-2022 and further be pleased to direct
to authorities to consider the petitioner to be fit candidate
and be direct the respondent to issue appointment order
forthwith.
c) Pending admission, hearing and final disposal of the
present Special Civil Application, Your Lordships may be
pleased to direct the respondent to keep one post of armed
Police Constable vacant and stay the execution,
implementation and pursuant to the advertisement published
in the year 2018.
d) Your Lordships may be pleased to pass such other
and further order as the nature, facts and circumstances of
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the case as may be required in the interest of justice."
4. The brief facts of the case, as narrated in this petition
and as canvassed by learned Advocate, Mr. Pandya, appearing
for the petitioner are that the petitioner possesses the
qualification of graduation. Pursuant to an advertisement
issued by the Respondents for recruitment for the post of Lok
Rakshak / Armed Police Constable, the petitioner applied for
the same and she was ultimately selected and was sent for
training, after completing the necessary formalities, at
Palanpur in the year 2018.
4.1 Subsequently, the petitioner was selected for Unarmed
Police Constable and therefore, she was relieved from the post
of Armed Police Constable vide letter / order dated 20.01.2018.
4.2 It is, further, the case of the petitioner, when she
reported at Surat as Unarmed Police Constable, she was sent
for medical examination at New Civil Hospital, Surat. Pursuant
thereto, the petitioner was referred to the Board of Referee, M
& J Institute of Ophthalmology, Civil Hospital, Asarwa,
Ahmedabad on 25.01.2018. According to the petitioner,
pursuant thereto, she mad several attempts to get the
information about the result of her medical examination by the
Board of Referee, but, she could not get the same. Thereafter,
there was situation of pandemic due to Covid-19 virus.
Ultimately, she received the report / medical certificate issued
by the Board of Referee, M&J Institute of Ophthalmology, Civil
Hospital, Asarwa, Ahmedabad, on 25.08.2022, whereby, she
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was declared unfit for the post of Unarmed Police Constable.
Hence, the present petition is filed challenging the
aforesaid medical certificate / report.
5. Learned Advocate, Mr. Pandya, appearing for the
petitioner submitted that in the case of identically situated
persons, the Coordinate Bench of this Court vide judgment
dated 01.04.2024, rendered in the case of 'Akhed Ashok
Bhimabhai Vs. State of Gujarat & Others' in Special Civil
Application No. 10195 of 2021 and the allied matters, has held
that the concerned petitioners shall be entitled for
appointment from the date, when they would have ordinarily
been 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 the purpose of granting retiral benefits and fixation of their
seniority. Further, the Coordinate Bench has also clarified that
the promotions already given, if any, to the persons junior to
those petitioners in the merit-list shall not be disturbed.
Subject to the aforesaid conditions, the Coordinate Bench
directed the Respondents-authorities to pass appropriate
orders, appointing those petitioners, if, nothing adverse is
found against them during the interregnum period.
5.1 According to learned Advocate for the petitioner, the
judgment dated 01.04.2024, rendered by the Coordinate
Bench in the case of 'Akhed Ashok Bhimabhai' (Supra) has
been accepted by the Respondent-State and therefore, the
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issue involved in this matter is squarely covered by the
aforesaid decision and therefore, this petition be allowed.
6. Learned AGP, Mr. Udhwani, appearing for the
Respondent-authorities, though, could not dispute the above
proposition of law, he strongly opposed this petition and
submitted that the present petitioner participated and
succeeded in the recruitment process carried out during the
year 2018, except, her physical examination, where, she was
found to be having colour vision and thereby, it was submitted
that as there is a gross delay in approaching this Court, this
petition may be dismissed on the ground of delay, itself.
6.1 Learned AGP, Mr. Udhwani, in support of his submission
invited the attention of this Court to the judgment of this Court
dated 18.11.2024, passed in Special Civil Application No. 4005
of 2021, where, the petition of that petitioner, who had
approached this Court in similar set of facts, i.e. challenging
the denial of appointment on the ground of colour blindness for
the recruitment drive carried out in the year 2013, was
rejected by this Court on the ground of delay. It was, therefore,
prayed that as the case of the present petitioner is covered by
the aforesaid decision, this petition be also dismissed.
6.2 Learned AGP, Mr. Udhwani, lastly, submitted that the
rules for recruitment for the post of Lok Rakshak / Police
Constable are amended in the year 2020 and as per the new
rules, 'Colour Vision' is to be treated as a disability or
disqualification and therefore, he prayed that this petition be
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dismissed.
7. At this juncture, learned Advocate, Mr. Pandya, appearing
for the petitioner invited the attention of this Court to the
decision of the Hon'ble Apex Court dated 22.10.2024, rendered
in the case of 'Desai Jitendra Jivanbhai Vs. State of
Gujarat & Others' in Civil Appeal No. of 2024 (arising out of
SLP (C) No. 9199 of 2024), where, the Apex Court allowed the
appeal filed by the appellant, therein, and directed the
Respondent-State to grant appointment to the petitioner by
considering the fact that similarly situated persons had already
been granted appointment. Even, the Division Bench of this
Court also in a number of cases has passed the orders
directing the Respondent-authorities to grant appointment to
the persons, who were declared physically unfit on account of
colour vision. Thereby, it was prayed that this petition be
allowed.
8. I have heard the learned Advocates for the parties and
have also perused the material on record and I find that the
petitioner has succeeded in the recruitment process
undertaken for appointment on the post of Lok Rakshak /
Unarmed Police Constable, Class-III, except, for her physical
examination, where, she was declared unsuccessful on account
of colour vision.
8.1 In the above backdrop, it would be relevant to refer to
the observations made by the Coordinate Bench at Paragraphs
- 3 to 7 in the case of 'Akhed Ashok Bhimabhai' (Supra),
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which read thus;
"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 2nd
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 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 herein below for benefit.
"12. In the light of the law laid down in the above
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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."
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
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Bench of this Court in Letters Patent Appeal no.538 of 2020
dated 2nd 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 14th 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 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 herein above 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
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2009, more particularly his candidature having been
canceled 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 herein
above, 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
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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 herein above,
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
herein above i.e. in Letters Patent Appeal no.1136 of 2018 in
Special Civil Application no.7595 of 2013 dated 2nd
November, 2018, in the considered opinion of this Court, the
same is required to be followed.
7. As noted herein above, the only issue which arises for
consideration of this Court that, would this Court entertain a
writ petition, more particularly after such a considerable
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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 herein above vide decision dated 18th
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 herein
above 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, 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,
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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 2nd 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
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petitioners are otherwise similarly situated to the petitioners,
who had approached this Court 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 2 nd 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 herein above, 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
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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
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."
8.2 Learned AGP, Mr. Udhwani, is not in a position to
demonstrate, as to how the case of the present petitioner is
different from the case of the petitioners in 'Akhed Ashok
Bhimabhai' (Supra).
8.3 Insofar as, the contention raised by learned AGP, Mr.
Udhwani, with regard to the delay is concerned, it would be
profitable to refer to the decision of the Hon'ble Apex Court,
rendered in the case of 'Desai Jitendra Jivanbhai' (Supra),
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wherein, at Paragraphs- 2 to 10, the Apex Court has held as
under;
"2. This appeal challenges the judgment and order
passed by the Division Bench of the High Court of Gujarat at
Ahmedabad dated 21.06.2022, thereby dismissing the order
dated 03.09.2021 passed by the learned Single Judge of the
High Court, vide which the appellant has challenged the
order dated 11.01.2012. By the said order, the appellant was
denied appointment to the post of Lok Rakshak on the ground
that he suffered from colour-blindness.
3. Ms. Swati Ghildiyal, learned Counsel appearing for the
State submits that although the appellant was denied the
appointment in the year 2012, he had waited for eight long
years for this opportunity and, as a result, was rightly denied
the appointment.
4. We find that in other matter (s) where the parties had
approached the Court with some delay, the High of Gujarat
recognized colour-blindness is not a disability for
disqualification and granted relief in favour of such persons.
5. We have perused several orders passed by the learned
Single Judge of the High Court of Gujarat and which are
being upheld by the Division Bench of the High Court,
wherein even after some delay, the High Court has interfered
and allowed the petition(s) of persons who are suffering from
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colour-blindness.
6. We, therefore, allow the appeal. The impugned order
dated 21,06.2022 passed by the learned Division Bench of
the High court and order dated 03.09.2021 passed by the
learned single Judge of the High Court are quashed and set
aside. The appellant (Desai Jitendra Jivanbhai) is directed to
be appointed as 'Lok Rakshak'. The appointment order would
be issued forthwith.
7. The appellant shall be granted deemed date from the date
on which the other candidates selected from the said
selection process were appointed.
8. Though the appellant would be entitled to continuity in
service for all the purposes, including the retiral benefits and
fixation of salary and seniority, he would not be entitled for
the wages for the period between the deemed date and date
of actual joining of services.
9. No order as to costs.
10. Pending application (s), if any, stand(s) disposed of. "
8.4 From a perusal of the observations made by the Hon'ble
Apex Court and as reproduced herein above, it becomes clear
that the Apex Court allowed the appeal of the appellant, who
was denied appointment in the year 2012 on the ground of
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colour blindness, and therefore, the case of the present
petitioner shall also be covered by the aforesaid decision of the
Hon'ble Apex Court. Therefore, in view of the above referred
decision of the Hon'ble Apex Court, the delay shall not come in
the way of the present petitioner, who succeeded in the
recruitment process for appointment on the post of Lok
Rakshak / unarmed police constables, Class-III, in the year
2018, except, her medical examination, where, she is declared
colour blind and is denied the appointment.
8.4.1 Insofar as, the contention raised by the learned
AGP, Mr. Udhwani, with regard to amendment in the rules for
recruitment for the post of Lok Rakshak / Police Constable is
concerned, he could not point out anything to suggest that the
amended rule shall apply retrospectively, i.e. the same shall
also cover the recruitment, which took place in the year 2018.
Therefore, the aforesaid argument advanced by the learned
AGP, Mr. Udhwani, is totally misconceived and cannot be
accepted.
9. In the result, this petition is ALLOWED. The present
petitioner is held to be entitled for appointment from the date,
when she would have ordinarily been appointed on being
selected and whereas, the period from the date of her
appointment till the date of actual joining, would not be
treated as the period in actual service, except, for granting
retiral benefits and for fixation of seniority. Furthermore, it is
clarified that the promotions already given, if any, to the
persons junior to the petitioner in the merit-list shall not be
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disturbed. The respondents are directed to pass appropriate
orders appointing the present petitioner, subject to the above
conditions and more particularly, if, nothing adverse is found
against her in the interregnum, within the period of eight
weeks, from the date of receipt of a copy of this order.
9.1 Rule is made absolute to the aforesaid extent. No order
as to costs. Direct service is permitted.
Sd./-
(NIRZAR S. DESAI,J)
UMESH/-
