Rajasthan High Court - Jodhpur

Hameer Nath Siddh vs State Of Rajasthan on 19 March, 2021

Bench: Dinesh Mehta

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR (1) S.B. Civil Writ Petition No. 13173/2019

1. Piyush Patidar S/o Shri Velji Patidar, Aged About 22 Years, R/o Vpo Biloda, Tehsil Garhi, District Banswara, Rajasthan.

2. Tulsi Ram Sarpota S/o Shri Rupsi Sarpota, Aged About 20 Years, R/o Vpo Barodaniya, Tehsil Sagwara, District Dungarpur, Rajasthan.

3. Kishor Singh Panwar S/o Shri Ishwar Singh Panwar, Aged About 27 Years, R/o Mukam Post Maal, Tehsil Sabla, District Dungarpur, Rajasthan.

4. Chirag Joshi S/o Shri Lal Shanka Joshi, Aged About 20 Years, R/o Mukam Post Limbdi, Tehsil Sagwara, District Dungarpur, Rajasthan.

5. Bhupendra Singh Chouhan S/o Shri Som Singh Chouhan, Aged About 23 Years, R/o Vpo Chikhali, Tehsil Chikhali, District Dungarpur, Rajasthan.

6. Sunil Charpota S/o Shri Dilip Charpota, Aged About 23 Years, R/o Village Bori, Tehsil Pipalkhurd, District Pratapgarh, Rajasthan.

7. Laxminarayan Gandharv S/o Shri Mahaveer Gandharv, Aged About 22 Years, R/o V And P Khansari, Tehsil And District Pratapgarh, Rajasthan.

8. Rahul Malviya S/o Shri Shankar Lal, Aged About 28 Years, R/o Village Veeravali, Tehsil Arnod, District Pratapgarh, Rajasthan.

9. Bheru Lal Meena S/o Shri Ram Lal, Aged About 23 Years, R/o Village Pipalkhud, District Pratapgarh, Rajasthan.

10. Narayan Lal Meena S/o Shri Hajari Ram Meena, Aged About 29 Years, R/o Khiarwara, District Udaipur, Rajasthan.

11. Laxman Lal Kant S/o Shri Henji, Aged About 30 Years, R/o Post Bhatar, District Banswara, Rajasthan.

12. Bhupesh Patidar S/o Shri Vajeng Patidar, Aged About 25 Years, R/o Vajakhara, District Banswara, Rajasthan.

13. Ganesh Ram S/o Shri Choga Ram, Aged About 27 Years, R/o Pindwara, Sirohi, District Sirohi, Rajasthan.

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14. Gunveer Singh Rav S/o Shri Bharat Singh Rav, Aged About 20 Years, R/o Falbada, Banswara, District Banswara, Rajasthan.

15. Dinesh Chandra Padiyar S/o Shri Arjun Singh Padiyar, Aged About 24 Years, R/o Etauwa, District Banswara, Rajasthan.

16. Kamlesh Meena S/o Shri Nana Lal Meena, Aged About 24 Years, R/o Bilakh, Udaipur, District Udaipur, Rajasthan.

17. Jitendra Kumar Dama S/o Shri Dinesh Kumar, Aged About 22 Years, R/o Padara, District Udaipur, Rajasthan.

18. Bhagwati Lal Meena S/o Shri Daulat Ram, Aged About 27 Years, R/o Girwa Sameta, District Udaipur, Rajasthan.

19. Sajjan Singh Bariya S/o Shri Manji Bariya,, Aged About 27 Years, R/o Ambapura, District Banswara, Rajasthan.

20. Sanjay Kumar Meena S/o Shri Prabhu Lal Meena, Aged About 23 Years, R/o Girwa, Udaipur, District Udaipur, Rajasthan.

21. Vishal Patidar S/o Shri Pawan Patidar,, Aged About 22 Years, R/o Vpo Surwariya, Vaya Barodiya Banswara, District Banswara, Rajasthan.

22. Yashwant Kumar S/o Shri Ramesh Meena, Aged About 23 Years, R/o Khairwara, District Udaipur, Rajasthan.

23. Vijay Lal S/o Shri Ramesh,, Aged About 20 Years, R/o Chhoti Sarwan, District Banswara, Rajasthan.

24. Nand Lal Maida S/o Shri Jivna, Aged About 23 Years, R/o Khandadera, District Banswara, Rajasthan.

25. Shiv Ram Meena S/o Shri Udai Lal Meena,, Aged About 20 Years, R/o Nagela, Girwa, District Udaipur, Rajasthan.

26. Radheyshyam Nagda S/o Shri Ratan Lal Nagda, Aged About 22 Years, R/o Gogunda, District Udaipur, Rajasthan.

27. Ashok Kumar S/o Shri Khet Singh Damor,, Aged About 22 Years, R/o Anandpuri, District Banswara, Rajasthan.

28. Yatish Rana S/o Shri Praveen Rana, Aged About 22 Years, R/o 8/94, Khandu Colony, Banswara, District Banswara, Rajasthan.

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29. Vinod Dindor S/o Shri Baru Dindor,, Aged About 22 Years, R/o Village Badri Dindor, P/o Chhoti Sarnra, District Banswara, Rajasthan.

----Petitioners Versus

1. State Of Rajasthan, Through The Secretary, Department Of Home, Government Of Rajasthan, Secretariat, Jaipur, Rajasthan.

2. The Director General Of Police, Police Headquarter, Jaipur, Rajasthan.

3. The Inspector Genereal Of Police (Recruitment), Headquarter, Jaipur, Rajasthan.

4. The Commandant, Mewar Bheel Core (Mbc), Banswara, District Banswara, Rajasthan.

5. The Superintendent Of Police, Banswara, District Banswara, Rajasthan.

----Respondents

(2) S.B. Civil Writ Petition No. 13461/2019

1. Hameer Nath Siddh S/o Roopnath Siddh, Aged About 21 Years, 676-Rd, Ward No.6, Tehsil Pungal, District Bikaner, Rajasthan.

2. Vikee Kumar S/o Shyam Lal, Aged About 29 Years, Village Bass Bharind, Post Bewad, Tehsil Rajgarh, District Churu, Rajasthan.

3. Rakesh Kumar Meena S/o Jai Narayan Meena, Aged About 25 Years, Village Shrinagar, Post Patan, Tehsil Bassi, District Jaipur, Rajasthan.

----Petitioners Versus

1. State Of Rajasthan, Through The Secretary, Department Of Home, Government Of Rajasthan, Secretariat, Jaipur, Rajasthan.

2. The Director General Of Police, Police Headquarter, Jaipur, Rajasthan.

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     3.      The     Inspector       General        Of      Police     (Recruitment),
             Headquarter, Jaipur, Rajasthan.

4. The Commandant, 10Th Battalion, R.a.c. (I.r.) Bikaner, District Bikaner, Rajasthan.

5. The Superintendent Of Police, Bikaner, District Bikaner, Rajasthan.

----Respondents

(3) S.B. Civil Writ Petition No. 18047/2019

Dayalal Damor S/o Bhagwati Lal Damor, Aged About 21 Years, Village Rupare (Sawaniya), Post Badi Padal, Tehsil Ghatol, District Banswara, Rajasthan.

----Petitioner Versus

1. State Of Rajasthan, Through The Secretary, Department Of Home, Government Of Rajasthan, Secretariat, Jaipur, Rajasthan.

2. The Director General Of Police, Police Headquarter, Jaipur, Rajasthan.

3. The Inspector General Of Police (Recruitment), Headquarter, Jaipur, Rajasthan.

4. The Commandant, Mewar Bheel Core (Mbc), Banswara, District Banswara, Rajasthan.

5. The Superintendent Of Police, Banswara, District Banswara, Rajasthan.

                                                                      ----Respondents


    For Petitioner(s)          :     Mr. Kailash Jangid
    For Respondent(s)          :     Mr. Sandeep Shah, AAG


                          JUSTICE DINESH MEHTA
                                      Judgment
Reportable
                                                                         19/03/2021

1. The facts of the present cases are rather unusual; they not

only require adjudication of petitioners' legal rights but also

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warrant invocation of equitable jurisdiction vested in this Court by

virtue of its plenary powers under Article 226 of the Constitution

of India.

2. As all the captioned writ petitions involve identical questions

of facts and law, they are being disposed of by this common order.

The small difference in the facts is noticed hereunder:-

3(a) SBCWP No.13173/2019 : Piyush Patidar & Ors. Vs. The State

of Rajasthan & Ors.:

(i) The petitioners herein applied for the post of constable

advertised vide recruitment notification dated 16.07.2018 for

recruitment in Mewar Bheel Core, Banswara. It is pertinent to note

that this recruitment was meant only for candidates of TSP Area

and there was 45% reservation for Scheduled Tribes and 5% for

Scheduled Caste Candidates of Tribal Sub-Plan Area.

(ii) The petitioners secured qualifying marks in the written test

and cleared the physical efficiency test. Thereafter, they were

subjected to medical test by the Medical Board of Doctors in

Government Hospitals, constituted by the respondents.

(iii) Petitioners were declared fit on all parameters and were

offered appointments in Mewar Bheel Core vide order dated

26.12.2018.

(iv) In total 486 candidates were recruited, out of which 2 did not

join. Vide order dated 27.12.2018, 484 candidates were sent for

training at BSF Training Centre, Udhampur, Jammu & Kashmir.

Petitioners reported at B.S.F. Training Centre on 29.12.2018.

3(b) SBCWPs Nos.13461/2019 and 18047/2019:

(i) The petitioners herein applied for the posts of constables

advertised vide recruitment notification dated 25.05.2018 in 10 th

Battalion, R.A.C.

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(ii)    The petitioners secured qualifying marks in the written test

and cleared the physical efficiency test. Thereafter, they were

subjected to medical test by the Medical Board of Doctors in

Government Hospitals.

(iii) The petitioners were declared fit on all parameters and were

offered appointments vide order dated 27.09.2018 and they

joined their services on 05.10.2018.

4. It is not in dispute that the petitioners were appointed in

Mewar Bheel Core or Rajasthan Armed Constablary and they were

sent to the training camp at Udhampur. The petitioners

commenced their training and continued for more than three

months.

5. Suddenly, as a bolt from the blue, vide order dated

02.04.2019, the Dy. Commandant (Training), Udhampur sent all

the petitioners back to their Unit/Battalion, citing that these

candidates are suffering from diseases mentioned against their

respective names and thus, unfit for training.

6. The respondents thereafter got petitioners' medical

examination done by a Medical Board, consisting of Doctors of

S.M.S. Hospital, Jaipur. The Medical Board so constituted reported

that all the petitioners were unfit for having either colour

blindness or low vision.

7. On receipt of the medical report aforesaid, the Commandant

(respondent No.4) passed orders dated 26.08.2019/27.08.2019

and terminated petitioners' services with immediate effect.

8. The petitioners immediately approached this Court and by

way of interim orders dated 04.09.2019 and 09.09.2019, their

rights were protected - effect and operation of the orders dated

26.08.2019 and 27.08.2019 was stayed.

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9. An application under Article 226(3) of the Constitution of

India has been filed by the respondents, inter alia, seeking

vacation of the interim orders dated 04.09.2019 and 09.09.2019.

10. Keeping in mind that career, rather livelihood of 33 duly

selected is at stake, this Court expressed that sword of damocles

cannot be kept hanging over the heads of these hapless

petitioners. Learned counsel for the parties agreed that these

petitions be decided, rather than spending time and energy on

hearing stay vacation applications.

11. Mr. Jangid, learned counsel for the petitioners, at the outset,

informed that the petitioners had cleared all the stages of

recruitment, including the medical examination held by the

Medical Board, constituted by the respondents and argued that

once the Medical Board constituted by the respondents themselves

had found the petitioners fit on all counts, including vision, the

respondents cannot terminate the services of the petitioners. He

vehemently argued that action of the respondents in terminating

the services on the ground of petitioners' disabilities or defects in

vision is illegal, arbitrary and violative of Articles 14 and 16 of the

Constitution of India.

12. Learned counsel invited Court's attention towards Clause (ix)

of para No.8 of the advertisement and submitted that the

respondents had fully satisfied themselves about the medical

fitness of the petitioners before giving appointments. He, thus,

argued that terminating petitioners' services after such a belated

stage is illegal.

13. Relevant Clause (ix) of para No.8 of the advertisement reads

thus:-

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      "(ix)   fpfdRLdh; ekin.M

      1-      vH;FkhZ dh nksuks vka[kksa dh n`f'V 6X6 fcuk p"es ds gksuk
              vfuok;Z gSA

      2-      vH;FkhZ ekufld :i ls tkx:d] lqn`< LokLF; okyk ,oa

lHkh "kkfjfjd fodkjksa] nks'kksa] jksxksa ls eqDr gksuk pkfg,A vH;FkhZ ekufld :x.krk ls xzLr ughas gksuk pkfg,A

3- vH;FkhZ ds ?kqVus vkil esa Vdjkus (knlck-knees)] ulsa Qwyh gqbZ gksuk (varicose veins)] HkSsxkiu (squint)] jrkSa/kh (night blindness)] jax n`f'V nks'k (colour blindness) gdykdj cksyuk (stammering)] iSj lery (flat foot) ;k vU; dksbZ fod`fr tks drZO; ikyu esa ck/kd gks (any other deformity) ugha gksuh pkfg,A"

14. Asserting that after commencement of training, the BSF

Training Centre, Udhampur, subjected the petitioners to medical

examination, during which they found that petitioners are unfit

due to colour blindness/night blindness/squintness, learned

counsel submitted that petitioners have been declared unfit

obviously, as per the norms and standards set by the BSF. He

argued that the norms and standards set by the Armed Forces or

BSF are very stringent and the same are not applicable in the

respondent-State.

15. He added that it was a matter of chance, that the petitioners

were sent to BSF Training Centre at Udhampur for training, as

State's training centres were occupied in giving training to other

constables/recruitees (selected in Constable Recruitment, 2018).

16. He submitted that other candidates like petitioners, who

were given training in the camps at Rajasthan, were not subjected

to another medical test in their respective training centres.

Consequently, the candidates selected in Recruitment, 2018

(advertisement dated 28.06.2018) have been retained/kept in

service without examining as to whether they are having similar

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disabilities or impairments. He, thus, tried to make out a case of

discrimination vis-a-vis similarly situated constables, who were

given training in Rajasthan itself.

17. Learned counsel argued that the respondents having given

appointments to the petitioners after being satisfied about their

fitness, cannot throw them out simply on the basis of the

communication sent by the Training Centre at Udhampur.

18. Mr. Jangid argued that medical examination can be done only

once. There is no provision in the relevant service rules or even in

the training program to conduct medical examination during

training. He highlighted that Standing Order dated 13.10.2014

does not envisage medical examination of a trainee.

19. Mr. Sandeep Shah, learned Addl. Advocate General, on the

other hand, submitted that true it is, that before offering

appointment, petitioners' medical examination was got done by

the Medical Board; but unfortunately, the Medical Board so

constituted did not have an Ophthalmologist and thus, the

impairment which the petitioners were having, could not be

noticed.

20. He emphatically submitted that the respondents have not

proceeded solely on the basis of communication sent by the

Commandant, BSF Training Centre, Udhampur. Before taking any

action prejudicial to the petitioners, the respondents have got all

the petitioners examined by a Medical Board constituted by S.M.S.

Hospital, Jaipur, and it was only after being doubly sure about

their disability, the petitioners were terminated from State

services.

21. Learned Addl. Advocate General argued that so far as

petitioners' medical condition is concerned, it is undeniable that

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they are either colour blind or having low vision and thus, not fit

to be appointed. He added that once the fact that petitioners are

not physically fit, has come to the notice of the respondents, they

cannot be expected to turn a blind eye and let them continue. The

respondents are well within their right to cancel the appointments

offered to the petitioners; was the precise submission on behalf of

the State.

22. Mr. Sandeep Shah further pointed out that petitioners have

been sent back from training by the Training Centre at Udhampur

and they have not so far completed their training, and thus, their

services have rightly been dispensed with on medical grounds. He

took the Court through Rule 37(2) of the Rajasthan Police

Subordinate Service Rules, 1989 and argued that unless a

recruitee completes training, his probation cannot be said to be

over, merely upon completion of two years.

23. Learned Addl. Advocate General gave a suggestion that if the

petitioners are not satisfied with the report so furnished by the

Medical Board, the State is ready and willing to conduct one more

medical examination of the petitioners and if any one of them is

found fit, the State would be more than willing to review his

termination order.

24. Mr. Jangid, learned counsel for the petitioners, in rejoinder

argued that even if the report so furnished by the doctors at

S.M.S. Hospital, Jaipur is taken to be correct, the fact remains that

petitioners have been found unfit or visually impaired by the

Commandant, B.S.F. Training Centre, Udhampur or by the S.M.S.

Hospital, Jaipur after they joined the services.

25. Highlighting that the petitioners were allotted belt numbers,

he argued that after allotment of belt numbers and after

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undergoing the training, their disabilities (if any), should be

considered to be disabilities accruing or arising after joining the

services.

26. He argued that petitioners are entitled to protection of

provisions of Section 20 of the Persons with Disabilities Act, 2016

and alternatively prayed that the respondents be directed to

assign other duties to the petitioners, if not that of constables, but

their services and pay be protected.

27. Having made submissions on facts and law, learned counsel

for the petitioners urged that all the petitioners are from lower

strata of the society - one candidate is from backward community

while all others are Scheduled Castes/Tribes and that too from

tribal areas. Mr. Jangid expressed concern and submitted that if

petitioners' termination is upheld, not only their right to livelihood

will be lost, they will be looked down by the society and they will

not be able to get any other job.

28. Heard.

29. Indisputably, the petitioners were recruited after completing

the tertiary test - written examination; physical efficiency test;

and medical examination. After the issuance of appointment

orders, they were allowed to join; they were given belt numbers

and were sent for training to BSF Training Centre, Udhampur. The

employer-employee relationship between the petitioners and

respondents attained finality and the same became indefeasible.

30. The State has failed to point out any provision of law or

judicial precedent according to which a duly appointed constable

can be subjected to medical examination.

31. There is no gainsaying the fact that both - the BSF Training

Centre at Udhampur and Medical Board at SMS Hospital, have

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found the petitioners to be having visual challenge/deformity. But

then, by interim orders dated 04.09.2019 and 09.09.2019, this

Court had stayed the effect and operation of the orders dated

26.08.2019 and 27.08.2019 by which petitioners' services were

terminated.

32. The application under Article 226(3) of the Constitution of

India came to be filed by the respondent-State after about a year

(on 21.08.2020). The petitioners are indisputably continuing in the

services, may be, on the strength of interim orders.

33. In the opinion of this Court, it is a fortuitous circumstance

that the petitioners who were selected in Mewar Bheel Core or

Rajasthan Armed Constablary, were sent to BSF Training Centre,

Udhampur, where they were subjected to medical examination;

whereas other constables recruited along with the petitioners (in

Constable Recruitment, 2018), who were sent for training in

different camps within the State, were not at all subjected to

medical examination.

34. Mr. Shah was not in a position to make a categorical

statement as to whether or not Police Training Centres of

Rajasthan carry out such medical examination during the course

of training. As such, the petitioners, who were sent to a centre

operated by B.S.F. at Udhampur - a third party, cannot be

discriminated against recruitees of other Command or Cores of the

State.

35. The respondents were also not in a position to point out any

provision in the recruitment notification or under the relevant

Rules, which permits them to subject a duly recruited constable to

a medical examination. In the opinion of this Court, subjecting the

petitioners to medical examination, per-se, was impermissible.

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36. This Court cannot side-track this vital aspect of the matter

that the fact that the petitioners are having visual impairment

(colour blindness or low vision) has emerged incidentally. If they

were given training in any centre at Rajasthan, perhaps everything

would have been normal. No similar incident has been brought to

the notice of the Court, when a duly appointed constable has been

discharged after medical examination during training.

37. This Court is not much convinced with the stand of the

respondents that the constitution of first Medical Board for the

purpose of medical examination before appointment was not

proper, as no Ophthalmologist was included in the Board.

38. A perusal of the document at Annex.8 reveals that the

Medical Board of two or more doctors of Government Hospital was

constituted. There were even four doctors in some of the Boards,

but none of them was an Ophthalmologist. A natural question,

which crops up in everybody's mind is; who was responsible in not

keeping an eye specialist in the Medical Board. It is rather

shocking that when the condition of the advertisement in relation

to medical examination is so specific that a candidate should be

free from squint, night blindness and color blindness, how could

the respondents afford to constitute a Medical Board without an

eye specialist.

39. Be that as it may. Since the Medical Board constituted by the

respondents itself had declared the petitioners fit (though at the

time of recruitment), in the opinion of this Court, respondents

cannot disown their own report, that too furnished by Government

Doctors. Subsequent report of BSF Training Centre or even the

report furnished by the Medical Board of S.M.S. Hospital, Jaipur

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cannot be made a basis to scoop the petitioners out of the

employment.

40. It can be conveniently presumed, if not concluded, that other

constables recruited pursuant to Constable Recruitment-2018 or in

earlier recruitments, were examined by the similar medical boards

- without an Ophthalmologist. Hence, possibility of other

candidates having similar deformities in eyes and remaining

unnoticed cannot be ruled out. Assertion of the petitioners that

problem in their eyes has come to fore (about which even they

were not aware), only because of the medical examination got

conducted by BSF Training Centre, which has very high standards

of physical fitness, appears to be correct and their argument that

they have been made victim of fortuitous circumstances, sounds

convincing.

41. Concededly, no notice was issued to the petitioners before

terminating their services. A duly selected government employee

can be terminated only after conducting an inquiry under Rule 16

of the Rajasthan Civil Services (Classification, Control and

Appeals) Rules, 1958 or in exercise of powers available to the

State under Proviso to Article 311 of the Constitution of India.

42. Neither any inquiry was held nor petitioners' conduct can be

alleged to be such, which disentitles them to continue in the

government employment - there is no misconduct as a matter of

fact. No inquiry under Rule 16, CCA Rules, 1958, can be triggered

against the petitioners, as they have not secured the

appointments fraudulently or by submitting false or misleading

information.

43. The petitioners have not completed their training, which is a

pre-requisite for completion of probation period. If the impugned

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orders are allowed to sustain and the petitioners' termination is

upheld, the order which is based on petitioners' medical condition,

would be a stigma, much more than a social stigma of being

thrown out of the job.

44. A terminated or dismissed employee from Government job is

always looked down by the society. And the situation is even

worse, in the society from where these petitioners hail. Even their

families will never be able to comprehend why petitioners have

been removed from service. Some of the petitioners might have

become over-age by now. The fact that their services have been

terminated, will always remain etched not only in the memory of

the masses but also in their resume. Impugned orders of

termination will therefore be, violative of petitioners' fundamental

rights enshrined under Articles 14 and 16 of the Constitution on

the one hand and on the other hand, it will affect their right to live

with dignity, which is an integral part of Article 21 - the soul of

our Constitution.

45. As a result of discussion foregoing, this Court has reached to

an irresistible conclusion that termination of petitioners' services is

iniquitous, besides being absolutely illegal.

46. In the instant factual backdrop, this Court is required to

balance the equities. At one hand is, the petitioners' livelihood and

dignity and on the other hand is, the respondents' innate inability

to retain the petitioners in employment because of their medical

conditions.

47. In the opinion of this Court, petitioners' fundamental rights

outweigh the State's endeavour of getting rid of these 'young, but

sitting at the lowest rung', candidates.

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48. For the purpose of balancing the equities, provision of

Section 20 of the Persons with Disabilities Act, 2016 becomes

relevant. Section 20 reads thus:-

"20. Non-discrimination in employment.-- (1) No Government establishment shall discriminate against any person with disability in any matter relating to employment:

Provided that the appropriate Government may, having regard to the type of work carried on in any establishment, by notification and subject to such conditions, if any, exempt any establishment from the provisions of this section.

(2) Every Government establishment shall provide reasonable accommodation and appropriate barrier free and conducive environment to employees with disability.

(3) No promotion shall be denied to a person merely on the ground of disability.

(4) No Government establishment shall dispense with or reduce in rank, an employee who acquires a disability during his or her service:

Provided that, if an employee after acquiring disability is not suitable for the post he was holding, shall be shifted to some other post with the same pay scale and service benefits:

Provided further that if it is not possible to adjust the employee against any post, he may be kept on a supernumerary post until a suitable post is available or he attains the age of superannuation, whichever is earlier.