Gujarat High Court
Rajdeep Sinh Zala vs State Of Gujarat Through Secretary on 11 July, 2018
Author: Rajesh H.Shukla
Bench: Rajesh H.Shukla
C/SCA/7595/2013 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 7595 of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE RAJESH H.SHUKLA
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1 Whether Reporters of Local Papers may be allowed to
see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
4 Whether this case involves a substantial question of law
as to the interpretation of the Constitution of India or any
order made thereunder ?
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RAJDEEP SINH ZALA
Versus
STATE OF GUJARAT THROUGH SECRETARY
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Appearance:
(MR MUKUL SINHA)(859) for the PETITIONER(s) No. 3,4
MR NIKHIL S KARIEL(2315) for the PETITIONER(s) No. 1,2,5,6
GOVERNMENT PLEADER(1) for the RESPONDENT(s) No. 1,2,3
RULE SERVED(64) for the RESPONDENT(s) No. 1,2,3
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CORAM: HONOURABLE MR.JUSTICE RAJESH H.SHUKLA
Date : 11/07/2018
ORAL JUDGMENT
The present petition is filed by the petitioner under Articles 14, 16 and 226 of the Constitution of Page 1 of 9 C/SCA/7595/2013 JUDGMENT India with a prayer interalia that appropriate writ, order or direction to declare that the decision of refusing to give appointment to the petitioner by the respondent is arbitrary, discriminatory, illegal and in violation of Articles 14 and 16 of the Constitution of India on the grounds stated in the memo of the petition.
2. Heard learned advocate Shri N.K. Majmudar for the petitioner and learned Asstt. Government Pleader Ms. Asmita Patel for the respondents.
3. The background of facts briefly summarised are as follows. The petitioner had applied for the post of Lok Rakshak pursuant to the advertisement at Annexure 'A'. However, he had cleared the selection process, having passed the written examination as well as the interview. Thereafter, at the time of medical examination before the appointment, it has been found that the petitioner has colour blindness, and therefore, the appointment has not been made, which has led to the filing of the present petition.
4. Learned advocate Shri N.K Majmudar, referred to the papers and submitted that as he has cleared the process of selection, only on the ground of colour blindness, appointment cannot be denied. To support Page 2 of 9 C/SCA/7595/2013 JUDGMENT his submission he has referred to and relied upon the judgment of the Hon'ble the Apex Court in case Union of India and Ors. Vs. Satya Prakash Vasisht reported in 1994 Supp (2) SCC 52.
5. He submitted that it was also a case regarding colour blindness and the Hon'ble Apex Court has made the observations referring to the rules applicable to the Delhi Police Service. Learned advocate for the petitioner has stated that the rules applicable in the present case would be Gujarat Civil Services (Recruitment) Rules and there is no such provision that the person with colour blindness cannot be appointed. He has also referred to the judgment of the Co-ordinate Bench (Coram : Justice A.S Supehia,J.) in Special Civil Application No. 7638/2013 dated 26.4.2018 and submitted that as observed in this judgment referring to the aforesaid judgment of the Hon'ble Apex Court, the appropriate direction may be issued.
6. Per contra learned Asstt. Government Pleader Ms Asmita Patel referred to the affidavit-in-reply and submitted that as the petitioner was declared unsuccessful in the physical test, and having passed the written test or the oral test, would not entitle him Page 3 of 9 C/SCA/7595/2013 JUDGMENT for appointment. She referred to the advertisement dated 11.2.2009 and submitted that clause 7(1) clearly provide that the clearance of the examination for passing the examination would not entitle the candidate for appointment. She, therefore, submitted that as per the rules, one has to have specific norms as prescribed in the advertisement. She referred to Rule 11 : certificate of physical fitness and submitted that such fitness is required for police service and the petitioner is having colour blindness cannot be appointed. She submitted that when he was referred for medical opinion, initially, it was suggested as "
fit for table work". Therefore, learned Assistant Government Pleader submitted that as this opinion was not clear, again a reference was made to the medical board to give specific opinion. Thereafter Western Regional Institute of Ophthalmologist, Civil Hospital Ahmedabad vide communication dated 12.12.2012 specifically opined that for the post of Lok Rakshak the petitioner is unfit. The Board of referees consisting of three doctors had considered the issue and thereafter, the opinion was given.
7. It is in this circumstances, the rival submissions are required to be appreciated.
7.1 It is well accepted that the Government servant Page 4 of 9 C/SCA/7595/2013 JUDGMENT would require a medical certificate of fitness after clearance of examination before the appointment is made. In the facts of the case, initially as it was referred to as 'fit for table work' , reference was made to the Institute of Ophthalmologist, Civil Hospital, Ahmedbad to give specific opinion, and therefore, a panel of three doctors had given specific opinion, that the petitioner should be considered as "unfit" for the post of Lok Rakshak. The reasons are also stated in the nature of duty which he was required to discharge are to be considered and if the vision is not clear it may adversely affect the discharge of duty including Medico legal cases as stated in the communication dated 12.12.2012. Thus, the person cannot claim appointment as a matter of right merely because one has cleared the exam. The medical certificate of fitness is also one of the requirement before the appointment. The petitioner having been found unfit for the post of Lok Rakshak cannot claim as a matter of right. The justification or the reason which has been offered also make sense, that if there is poor reason due to the colour blindness, it would affect in discharge of duties including Medico Legal cases.
8. However, the submissions which have been made by learned advocate Shri Kariel that the Page 5 of 9 C/SCA/7595/2013 JUDGMENT recruitment rules does not refer to the colour blindness as a reason for unfitness, cannot be accepted, as every kind of unfitness or incapacity or deficiency is not to be stated in the recruitment rules. In fact, the medical examination of fitness is for this purpose only that if the fitness certificate is required it would suggest that, the person is fit for the job or not.
9. The another facet of the submissions, which have been referred to and relied upon by learned advocate Shri Kariel is the judgment of the Hon'ble Apex Court in the case of Union of India and Ors. Vs. Satya Prakash Vasisht (supra). This also would not help the petitioner inasmuch as according to the case, it refers to the Delhi Police Service. Moreover, it refers to the Police services in para 3, where the Hon'ble Apex Court has also observed " we are unable to accept this contention. Reading the above extract as a whole, it is clear that the requirement that the candidate should be free from colour blindness is only for the post of drivers and traffic staff in sub-clause (ii) and that does not apply to sub-clause (I) relating to Constables, Head Constables and Sub-
Page 6 of 9 C/SCA/7595/2013 JUDGMENT
Inspectors (executive). It is obvious that
the disqualification of colour blindness has no application to sub-clause (iii) and this was not rightly disputed by learned counsel for the appellants."
10. In the facts of the present case there is no such specific reference in the rules or the advertisement does not refer to the vision or the blindness at all. Therefore, in the aforesaid judgment there was specific requirement stated with reference to its qualification of colour blindness. In the facts of the case as the provisions of Rule 11 of the Gujarat Civil Service Manual 2002 has reference to Schedule B. When the reference is made the procedure is rquired to be followed for reference made to the Board of Referees. Thereafter, the Board may given the opinion on the basis of which fitness of the candidate is considered.
11. As stated above, 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 should be treated as medically fit inspite of negative opinion after the examination.
Page 7 of 9C/SCA/7595/2013 JUDGMENT
12. The very purpose of medical examination before the appointment is only to ascertain about the fitness of the person or the candidature before the appointment qua the post for which he is discharging his duty. Reliance is placed by learned advocate Shri Kariel on the judgment passed by High court (coram : A.S. Supehia,J.), dated 26.4.2018 in Special Civil Application No. 7638/2013, would not help the petitioner on merits. The Bench has also observed :
" however, it is left to the
discretion of the respondent
authorities to appoint them to any
other class-III post having equal pay if the post of Lok Rakshak is not available."
13. This difference would suggest that all that was observed was that the case of the petitioner will be considered for any other post for the table work where he could be accommodated. It is required to be stated thate Rule 11 of the Gujarat Civil Service Manual, 2002 has been referred to by the co-ordinate Bench and it has been quoted also in schedule B. " Board of Referees" decision shall be final and irrevocable."
Page 8 of 9C/SCA/7595/2013 JUDGMENT 14. When the candidate is referred to medical board, the board shall be guided by the standards
laid down in Annexure A (preliminary standards) and those who fall short of the standard shall be referred to the "Board of Referees". Thus, the appendix has a reference to Annexure A, -Preliminary Visual Standard for all services in respect of the fact that the post which is claimed by the petitioner is in police service, requiring more accuracy, he has been referred to institute and the committee of doctor or the Board has declared him unfit of visual blindness
15. In the circumstances, the present petition deserves to be dismissed, however, with a clarification that as observed by the Co-ordinate Bench, the respondent may consider in their discretion to accommodate the petitioner in any suitable post for the table work having similar payscale and it may be considered in a sympathetic way.
16. With the aforesaid discussions, the present petition, stands disposed of. Rule is discharged.
(RAJESH H.SHUKLA, J) MARY VADAKKAN Page 9 of 9