N.Rajendra Kumar vs The Bharat Heavy Electronics ...
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  THE HON'BLE THE CHIEF JUSTICE SATISH CHANDRA SHARMA
                                      AND
           THE HON'BLE SRI JUSTICE N. TUKARAMJI


                  WRIT APPEAL No.535 of 2019

JUDGMENT:   (Per the Hon'ble the Chief Justice Satish Chandra Sharma)




     The present writ appeal is arising out of order dated

15.04.2019 passed in W.P.No.7888 of 2019 by the learned

Single Judge.

      The facts of the case reveal that a writ petition was

preferred by the present appellant challenging legality and

validity of order dated 22.06.2016 by which his claim was

rejected for appointment to the post of temporary employee

(Artisan) (Electrician Trade) on the ground that he was

suffering from deformity of colour blindness.

     The undisputed facts reveal that the writ petitioner's

father/N.Chakrapani was serving in Bharat Heavy Electronic

Limited (for short, "the BHEL") and expired while in service on

24.11.2009. The petitioner was holding a qualification of ITI

Machinist Trade and was eligible for appointment to the post

of Temporary Employee (Artisan) in the services of BHEL. It

was further stated that the BHEL in large number of cases

granted compassionate appointment to the dependents of the

deceased employees on temporary basis on the post of Master

Technician in the Grameena Vikas Seva Samithi with a

consolidated pay of Rs.5,209.60 per month during the

training period and after completion of training, they were
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paid Rs.11,981/- per month.        The petitioner was also

appointed as Master Technician in Grameena Vikas Seva

Samithi and is working to the satisfaction of higher

authorities. It was also stated that a promise was made to

him that he will be considered against a regular vacancy as

and when advertised.

     The facts further reveal that an advertisement was

issued vide employment notice No.HY/01/2013 notifying as

many as 800 vacancies in the BHEL and some of the

vacancies were also earmarked for the dependents of the

BHEL deceased employees. The petitioner participated in the

written examination held on 10.11.2013 and was included,

after the interview, in the provisional select list.   He was

informed about his placement in the provisional select list on

13.01.2014 and he was directed to undergo medical test.

However, his candidature was rejected on account of the fact

that he was suffering from colour blindness. Thereafter, he

approached Sarojini Devi Eye Hospital and L.V. Prasad Eye

Institute and both the hospitals have given him a clean chit

informing him that he does not suffer from any deformity and

in those circumstances, a representation was made to the

employer to refer him to a second medical examination. His

request for second medical examination was not accepted and

therefore, a writ petition was preferred i.e., W.P.No.872 of

2016.   The learned Single Judge has disposed of the writ

petition on 24.02.2016 directing the respondents therein to

constitute a Medical Board afresh for re-examination of the

petitioner and as nothing was done in the matter in spite of

there being a direction from the Court, a contempt case was

preferred i.e., C.C.No.1037 of 2016. It was only after the

contempt petition was preferred, a second medical

examination took place and the claim of the petitioner for his

appointment was rejected vide order dated 22.06.2016. It is

pertinent to note that the same BHEL through its Doctors

subjected the petitioner for second medical examination. In

those circumstances, a second writ petition was preferred and

the learned Single Judge has dismissed the writ petition even

though there was a prayer for referring his case to L.V.

Prasad Eye Institute. The order passed by the learned Single

Judge is reproduced as under:

"Having considered the rival submissions made by the learned counsel on either side, this Court is of the considered view that based on the opinion of the Medical Board, the respondents have rightly rejected the case of the petitioner as he is suffering from colour blindness. No arbitrariness could be attributed to the Medical Board as the petitioner was examined twice and on both occasions, he was declared unfit because of the colour blindness. Therefore, this Court is of the view that no useful purpose would be served even if the petitioner is referred to the Government Hospital or LV Prasad Eye Hospital. The opinion given by the Medical Board cannot be doubted because the petitioner was examined twice and thereafter, it came to the conclusion that the petitioner is unfit for employment. Therefore, this Court is not inclined to interfere with the rejection order passed by the respondents. There are no merits in the writ petition and the same is liable to be dismissed.

Accordingly, the Writ Petition is dismissed. No costs."

The employee preferred a writ appeal before this Court

and this Court, as there was an allegation made by the

appellant/petitioner in the open Court about the Doctors

serving in BHEL, the case of the petitioner was referred by

this Court to L.V. Prasad Eye Institute, Hyderabad.

A report has been received from Dr. Gazella Bruce

Warjri, which is on record. She has conducted all medical

examinations in respect of the appellant and she has given

her opinion that the appellant Sri Rajendra Kumar has mild

colour blindness (CP2) and his vision is 20/20 in both eyes.

She has further gone ahead in stating that the type of mild

colour blindness, which the appellant is having, will not affect

his normal routine professional (electrical) activities at all.

Meaning thereby, Dr. Gazella Bruce Warjri of L.V. Prasad Eye

Institute, which is a renowned institute of this country, has

given a report after subjecting the present appellant to

various tests that he is fit for job in question.

Another important aspect of the case is that the

appellant was granted compassionate appointment and he is

working with the ancillary of BHEL since 2010. He is working

on the post of Artisan without any complaint. He has proved

his worth by qualifying the examination pursuant to the

employment notice No.HY/01/2013 and he was placed in the

merit list. On account of the alleged colour blindness, he was

not being appointed as a regular employee in the BHEL. The

repeated requests made by the present appellant to get him

examined from the independent body were turned down and

the same doctors of BHEL, who have done the medical

examination earlier, did the second medical examination

upholding their earlier verdict. In all fairness, once a request

was made by the petitioner/appellant to get him examined

from some other independent organisation, the same should

have been accepted by the respondent/BHEL. It was only

after the intervention of this Court, he was subjected to

examination by L.V. Prasad Eye Institute and the institute

has given a report that he suffers from mild colour blindness

and it will not affect his normal routine professional activities.

In the light of the report submitted by the L.V. Prasad

Eye Institute through Dr. Gazella Bruce Warjri, this Court is

of the opinion that the order dated 15.04.2019 passed by the

learned Single Judge and the order dated 22.06.2016 passed

by the respondent/BHEL deserve to be set aside and are

accordingly, set aside. The respondents are directed to

appoint the appellant/petitioner, as he was already placed in

the select list, on the post of Artisan (Electrical Trade)

forthwith. It is needless to mention that the

appellant/petitioner shall be entitled for appointment from

the date the other persons have been given appointment on

the post of Artisan (Electrical Trade) pursuant to the

employment notice No.HY/01/2013 and he shall also be

entitled for seniority and all consequential benefits, including

notional fixation of salary except back wages.

With the aforesaid, the writ appeal stands allowed. The

report received from the L.V. Prasad Institute shall be kept as

part of the record in a sealed cover.

Miscellaneous petitions, if any, shall stand closed.

There shall be no order as to costs.

__________________________________ SATISH CHANDRA SHARMA, CJ

______________________________ N. TUKARAMJI, J 28.12.2021 ES