State Of Rajasthan vs Piyush Patidar
2022 Latest Caselaw 88 Raj

(1 of 8) [SAW-515/2021]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR D.B. Spl. Appl. Writ No. 515/2021

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 Superintendnt of Police, Banswara, District Banswara, Rajasthan.

----Appellants Versus

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,

(2 of 8) [SAW-515/2021]

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

13. Bhagirath Meena S/o Shri Mana Lal, Aged About 19 Years, R/o Sandani Pratapgarh, District Pratapgarh, Rajasthan.

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

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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.

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

                                                                 ----Respondents


For Appellant(s)          :     Mr. Sandeep Shah, AAG
For Respondent(s)         :     Mr. Manoj Bhandari
                                Mr. Kailash Jangid

HON'BLE THE CHIEF JUSTICE MR. AKIL KURESHI HON'BLE MR. JUSTICE RAMESHWAR VYAS

Judgment

04/01/2022

This appeal arises out of the judgment dated 19.03.2021

passed by the learned Single Judge in S.B. Civil Writ Petition

No. 13173/2019.

Briefly stated the facts are that the respondents-original

petitioners had participated in selection process for the post of

Constable in State Police Services. The recruitment was meant

only for the candidates of Tribal Sub Plan area. The petitioners

were subjected to written test and once they cleared, they were

subjected to physical efficiency test. They were, thereafter,

selected and sent for medical test, which was performed by the

Medical Board constituted by the State authorities. Once the

petitioners cleared the physical efficiency test and medical test

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also, they were recruited along with other candidates and under

order dated 27.12.2018 were sent for training at BSF Training

Center, Udhampur (Jammu and Kashmir). While under training,

they were once again subjected to physical test. During such

testing, the petitioners failed the required standards on the

grounds of low night vision or colour blindness etc. In essence, all

the petitioners suffered from one or other similar deficiencies.

Without issuing any notice, the petitioners' services were

terminated in August, 2019. The petitioners immediately

approached the High Court and learned Single Judge stayed the

termination orders. Eventually, the present writ petition and other

connected petitions were heard and disposed of by the common

impugned judgment. The learned Judge referred to recruitment

advertisement in which, it was stated that the persons with low

night vision and colour blindness would not be qualified. However,

learned Single Judge was of the opinion that the State authorities

had already examined the physical fitness of the petitioners

through the Medical Board at one stage and thereafter, recruited

the petitioners in service. Once the recruitment was over, the

petitioners could not have been subjected to fresh physical

examination. In the opinion of the learned Single Judge, it was a

wholly fortuitous circumstance that the petitioners were sent for

training at BSF Camp, where such physical examination was

conducted again. If other candidates were not sent to the same

training center, in the opinion of the learned Single Judge, such

physical shortcomings would have gone undetected. The learned

Single Judge was, however, conscious of the fact that in the police

force, persons with low night vision or colour blindness as per

recruitment rules were not qualified. The learned Judge,

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therefore, referred to Section 20 of the Rights of Persons with

Disabilities Act, 2016 (hereinafter referred to as "the Act of 2016")

and while setting aside the termination orders, permitted the

State Government to engage the petitioners in any other service.

It is this judgment that the State Government has challenged in

present appeal.

We have heard learned counsel for the parties and perused

the documents on record. What emerges as undisputed position is

that (i) all the petitioners were subjected to full scale selection

process comprising of written test followed by physical efficiency

test; (ii) once the petitioners cleared both and were found

meritorious enough to be included in the select list, they were

subjected to physical examination through medical board

constituted by the State Government; (iii) the Medical Board also

found the petitioners physically fit enough to discharge duties as

Constables; (iv) it was after such detailed process that the

petitioners were offered appointment. They were appointed and

sent for in-service training; (v) during such in-service training,

they were subjected to physical examination again when it was

noticed that they suffered from low night vision or colour

blindness; (vi) on this ground, the services of the petitioners were

terminated without affording them any opportunity of hearing.

In our opinion, the learned Single Judge has committed no

error. As noted, the petitioners were recruited and appointed to a

Government post. They were, thus, in-service when they were

sent for training. It may be that for being confirmed on the post,

successful completion of the training is compulsory as per the

rules. However, the petitioners did not fail to complete the

training. Their services were terminated on entirely different

(6 of 8) [SAW-515/2021]

grounds. The learned Single Judge, therefore, correctly viewed

the situation as one in which, the services of a Government

servant were terminated after engagement. Clearly for whatever

reasons, the State Government could not detect the deficiency in

the vision of the petitioners before appointing them in the State

service. Once the petitioners became part of the Government

employment, they would be governed by Section 20 of the Act of

2016. Sub-section (1) of Section 20 says that no Government

establishment shall discriminate against any person with disability

in any matter relating to employment. Sub-section (3) of Section

20 provides that no promotion shall be denied to a person merely

on the ground of disability. As per sub-section (4), no Government

establishment shall dispense with or reduce in rank, an employee

who acquires a disability during his or her service. The proviso to

sub-section (4) says that if an employee after acquiring disability

is not suitable for the post he was holding, he or she shall be

shifted to some other post in the same pay scale and service

benefits.

It may be that the petitioners cannot be stated to have

acquired the disability during their service and in that sense,

learned Additional Advocate General is correct in pointing out that

sub-section (4) of Section 20 would not apply. Nevertheless, the

very philosophy behind the enactment of the Act of 2016 and

which is also manifest in Section 20 is that the person suffering

from disability shall not be subjected to discriminatory treatment.

This is clearly provided in sub-section (1) of Section 20. The

Government having recruited the petitioners in service, now

cannot be allowed to terminate their services and that too without

affording an opportunity of hearing on the ground that subsequent

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to their recruitment, the Government learnt about the existing

disability.

There is no denial that the requirement of police force is to

engage the persons who are physically fit in all respects. It is

essentially for this reason that the learned Single Judge has

permitted the State authorities to assign any other duties to the

petitioners while protecting them against termination. The

learned Additional Advocate General, however, submitted that the

recruitment process for such other posts is separate. He may be

correct in such contention. Nevertheless, in the peculiar

circumstances and situation which arises on account of error on

the part of the State Government, administrative adjustment for

meeting with the ends of justice shall have to be made. Surely,

there are large number of posts even in the police department,

which are of clerical and other cadres must be vacant.

At this stage, the learned Additional Advocate General drew

attention to the direction issued by the learned Single Judge to

give alternative post commensurate with the status and

educational qualification of the petitioners. Learned counsel for

the original petitioners clarified that as long as their pay is

protected, they would work on any post. In view of this

clarification, the direction of the learned Single Judge stands

modified.

We are informed that by virtue of stay of the judgment of the

learned Single Judge, the services of the petitioners were once

again terminated. Such termination shall stand recalled.

However, it is clarified that for the intervening period, during

which the petitioners did not discharge any duties, they would not

be entitled to any pay.

(8 of 8) [SAW-515/2021]

Subject to above, the appeal is disposed of.

                                   (RAMESHWAR VYAS),J                                      (AKIL KURESHI),CJ


                                   22-Inder/-









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