Madhya Pradesh High Court
Union Of India (Uoi) And Ors. vs Jagdish Prasad Bangre And Ors. on 18 February, 2008
Equivalent citations: 2008(2)MPHT414
Author: Dipak Misra
Bench: Dipak Misra, S.C. Sinho
ORDER Dipak Misra, J.
1. Regard being had to the similarity of facts and identicalness of the question of law involved in this batch of writ petitions it was heard analogously and is disposed of by a singular order. For the sake of clarity and convenience the facts in W.P. No. 11209/2007 are exposited hereunder:
2. Invoking the extra-ordinary jurisdiction of this Court under Articles 226/227 of the Constitution of India the Union of India and its functionaries have called in question the legal acceptability and substantiality of the order dated 3-7-2007 passed by the Central Administrative Tribunal (for short 'the Tribunal') in Original Application No. 1118/2005. The facts which are imperative to be exposited are that an advertisement was published in the Employment News dated 16-1-2004 for filling up of the posts of Durwans in the Ordnance Factory, Kharaaria. After appearing in the written test and qualifying in the same an offer for appointment was made to certain candidates and they were directed to appear before the Civil Surgeons for medical examination. The District Medical Board examined three persons, namely, Rishi Kant Soni, Ram Lakhan Rajak and Jagdish Prasad Bangare. The Medical Board as far as the respondents are concerned expressed the opinion that he is partially colour blind and fit for Class IV in which the colour vision is not required such as labourer and non-technical jobs. On the basis of this medical certificate the respondent was treated to be unfit for appointment for the post of 'Durwan' and orders to that effect were issued. The respondent filed Original Application No. 931/2005 and other selected candidates filed Original Application Nos. 922/2005 and 1118/2005. All the three original applications were heard analogously by the Tribunal and disposed of by a singular order.
3. Before the Tribunal the respondent contended that as per the medical certificate issued by the Civil Surgeon he was not entitled to get the job of 'Durwan' as the said job is a technical job which requires colour vision. That apart, the provisions contained in the recruitment rules were placed reliance upon to show that the specifications for the post of 'Durwan' are (a) height without shoes 165 cms.; (b) chest unexplained 77 cms., expanded 82 cms., and (c) weight 45 kgs. It was also putforth that for the semi skilled post people with defective colour vision had been appointed. It was also canvassed that their services have been dispensed with without affording an opportunity of hearing.
4. A reply was filed by the answering respondents contending, inter alia, that the duties of 'Durwan' require colour vision and the decision to treat the applicant-respondent as unfit for the post of 'Durwan' was taken after examining the medical reports and after obtaining the opinion of the higher authorities that the person having the eye-sight below the acceptable level or night blindness or colour blindness should not be recruited for security duties. It was also the stand in the return that the case of mason (semi-skilled) is not comparable to that of a Durwan because of the difference in the nature of duties. The respondents also enumerated details of the nature of duties of 'Durwan'. The respondents produced the guidelines of pre-employment medical examination in Ordnance and Ordnance Equipment Factory issued by the Ordnance Factory Board in which it has been mentioned that colour blindness is a disqualification for the job of Durwan'. On behalf the applicant-respondent it was contended before the Tribunal that the guidelines were issued on 15-6-2006, i.e., much after the case of the applicant was decided.
5. The Tribunal perused the guidelines that was prepared by the Committee of Experts headed by the Chief Medical Officer of Ordnance Factory, Bolangir. The Tribunal referred to the need for issue of such guidelines. On a perusal of the same the Tribunal opined that suitability or otherwise of the candidate was based on the judgment of the Medical Officer as specific criteria were laid down. In the case of 'Durwan' recruitment rules specify height, chest and weight only. The Tribunal has expressed the opinion that appointments were to be made on the basis of recommendations of the Medical Officer. The medical certificates clearly mention that though the respondents-applicants are colour blind they are fit for a Class IV job in which colour vision is not required. Labour and non-technical job have been specified as jobs, which do not require colour vision. The Tribunal opined that job of 'Durwan' is not of technical nature and 'Durwan' are not required to act as a security staff. They were supposed to work under security staff, as they have to report to security staff about any subversive or other suspicious activities of employees or unofficial persons. The Tribunal also took note of the fact that advice that has been obtained by the petitioners relating to appointment of 'Durwans' indicates that they should possess good vision and eye-sight in order to see and identify things clearly. In the advice it was provided that persons with night blindness will not be able to perform security duties. The Tribunal further held that the recruitment rules do not treat colour blindness as a disqualification and the medical certificates issued also exposit that applicants are not fit for technical job or job of driver. That apart, the Tribunal also opined that the job of Durwan is not a technical job. Being of this view the Tribunal directed the respondents therein to give affect to the appointment order in favour of the respondents- applicants within a period of three months.
6. We have heard Mr. S.A. Dharmadhikari, learned Counsel for the petitioner and Mr. Sujoy Paul, learned Counsel for the respondents. It is submitted by Mr. Dharmadhikari, learned Counsel that the Tribunal has fallen into grave error by not appreciating the duties to be performed by 'Durwan' and coming to hold that such an aspect was not mentioned as the requirement for the post in question. It is urged by him that 'Durwans' are required to work in both, day and night shifts, and normal colour vision is a must to recognize objects from a considerable distance. It is further proponed by him that the Tribunal has failed to take note of the document dated 23-6-2005, which has been brought on record as Annexure R-2 to the counter affidavit filed to the original application.
7. Mr. Sujoy Paul, learned Counsel for the respondents, per contra, submitted that the provisions did not contain the specifications with regard to colour blindness and, therefore, the petitioner cannot rely upon the same. It is urged by him that the guidelines dated 15-6-2006 were issued after selection of the petitioners and, therefore, cannot be made applicable to them. Learned Counsel further submitted that the Tribunal is absolutely correct in holding that from the duties assigned to 'Durwan' it is amply clear that they are not required to perform the security duties and, therefore, the order passed by the Tribunal cannot be found fault with.
8. To appreciate the submissions raised at the Bar we have carefully perused the order passed by the Tribunal. The Tribunal, in essentiality, has adverted to the guidelines and expressed an opinion that the guidelines were issued after the case of the respondents were decided. The Tribunal has taken note of the fact that the said guidelines have been prepared by a Committee of Experts headed by Chief Medical Officer, Ordnance Factory, Bolangir. The Tribunal has referred to the specific criteria that have been provided in the recruitment rules which relate to height, chest and weight. Quite apart from the above, the Tribunal has referred to the medical certificates which states that the respondents are colour blind and they are fit for Class IV job in which colour vision is not required. The medical certificates that have been brought on record before the Tribunal specify that the respondents were not fit for technical and driving job. The Tribunal has adverted to the duties enumerated by the respondents in respect of the job of 'Durwan' and has opined that the nature of job of 'Durwan' is not of technical nature and 'Durwan' are not required to act as security staff and, in fact, they are required to work under the security staff as they have to report to security staff about any subversive or other suspicious Activities of employees or unofficial persons.
9. The Tribunal has also referred to the advice received by the Department which provides that it is essential that 'Durwans' shall possess good vision and eye-sight in order to see and identify things clearly. The Tribunal has expressed the view that it is only for the security duty that colour blindness should be treated as a disqualification. From the nature of duties assigned to 'Durwan' it is amply clear that 'Durwan' is not required to perform the security duties which is to be performed by the employee belonging to a Defence Security Grade. The Tribunal has placed reliance on the decision rendered in Union of India and Ors. v. Satya Prakash Vashist (1994) Supp 2 SCC 52, wherein the Apex Court has ruled that as the colour blindness was not a prescribed qualification for the post of Sub Inspector (Executive) according to the rules, and hence the appointment to the said post cannot be denied to the candidate having colour blindness.
10. To appreciate the sustainability and substantiality of the order passed by the Tribunal it is apposite to refer to the duties and responsibilities of 'Durwan' in the Ordnance Factory, which have been brought on record. They are enumerated as under:
(i) They will be alert at all times and will not leave their posts/areas until relieved properly.
(ii) They will prevent unauthorized persons from entering the Factory and Estate.
(iii) They will endeavour to prevent attempts of sabotage and guard Government property whether building or stores entrusted to them.
(iv) They will make themselves conversant with regard to their duties at different part/areas of the Factory and Estate.
(v) They will get themselves acquainted with regard to their duties in case of fire.
(vi) They will report to Security Staff regarding the subversive activities of workers.
(vii) They will collect security information and inform security staff or any other member of security staff.
(viii) They will make themselves conversant with regard to pass system in use for both personnel and material and will not allow anybody to leave the factory unless passed out by the security staff or by the security JCO on duty.
(ix) The tenure of duty of 'Durwan' will be 8 hours or more as per overtime.
(x) They will not allow any hand bills, cow-dung to be pasted either at the factory or estate walls.
(xi) They will report all irregularities and unusual occurrence and apprehend persons concerned.
(xii) Each Durwan has been allotted specified area to be looked after, which he will watch properly and turn over as per orders.
(xiii) They will watch for any unauthorized persons entering his area. He will always challenge him and if not satisfied, he will hand him over to the security staff.
(xiv) They will sign in a register as a token of handing and taking over kept for this purpose at each post.
(xv) They will report any loitering of Factory employees during working hours to the security staff. (xvi) They will held the DSC personnel on duty in search of labourers passing IN and OUT.
(xvii) They will control visiting IN/OUT of the factory.
(xviii) They will arrange for opening and closing of the gates when required.
(xxv) They will carry out the duties allotted to them by the security staff during the working hours as well as during non-working hours.
11. The Tribunal, as is patent, has arrived at the conclusion that the aforesaid nature of duties are non-technical in nature and do not come in the compartment of security duty. That apart, as is manifest, the Tribunal has referred to the decision rendered in Satya Prakash Vashist (supra), and come to hold that such a disqualification was not provided. That apart, the Tribunal has referred to the guidelines and has expressed that the same will not be applicable to the present respondents as the said guidelines have come into force at a subsequent point of time.
12. Submission of Mr. Dharmadhikari, learned Counsel for the petitioner is that the appointment letters were issued subject to suitability in the medical examination. The Civil Surgeon, Jabalpur has submitted a report wherefrom it is discernible that the respondents are partially colour blind. The Civil Surgeon has expressed an opinion that he is fit for Class IV job other than the technical job and driving job. He has referred to Annexure R-2, dated 23-6-2005. The same relates to medical examination before appointment to the post of 'Durwan'. It is seemly to reproduce the same:
With reference to your Fax dated 28-4-2005 cited above on the subject, it is to mention that as duties charter of Durwan are under control of CSO/OFB, his opinion was sought and he has given the following opinion:
Durwan are recruited for performing security and guard duties. It is essential that they posses good vision and eye-sight in order to see and identify things clearly. A person with night blindness will not be able to perform security duties and hence is an undesirable candidate at recruitment stage. Any person confirmed to be a person having weak (below acceptable levers) eye-sight or night and colour blindness should not be recruited for Security duties.
In view of the above, the factory may take action, accordingly.
13. Be it noted the guidelines have been issued on 15-6-2006. Prior to that an opinion was sought. The duties which we have enumerated above have their own signification. If they are properly appreciated it is difficult to concur with the view of the Tribunal that 'Durwans' do not perform the security duty. It can be stated with certitude and definiteness that number of duties that have been assigned to 'Durwans' have character and contour of security duties. It can be (sic: cannot be) lost sight of the fact that Ordnance Factory is manufacturing sophisticated Arms and Ammunition for the use of defence. The Ordnance Factory, Khamaria being a defence installation is prohibited place and, therefore, absolute clear vision is essential for 'Durwans' inasmuch as security has to be effective to prevent sabotage and pilferage of the property. The Tribunal has taken a view that colour blindness was not a prescribed qualification. The appointment was made subject to candidates having medical fitness. What was prescribed in the rules is the eligibility criteria that related to the height, chest and weight. The same cannot be treated to be absolute.
14. The view taken in Satya Prakash Vashist (supra), relates to the post of Sub Inspector. Here the post is that of 'Durwan' in the Ordnance Factory. The duties have been prescribed and the appointment was subject to medical examination and suitability. The medical opinion categorically and unequivocally lays down that a person partially colour blind is ineligible for technical job. The advice brought on record by letter dated 23-6-2005 from the Ministry of Defence, Ordnance Factory Board lays emphasis on the functionalism and significance of duties of 'Durwan'. We have already held that duties invite the basic facet of security. Thus, the decision rendered in Satya Prakash Vashist (supra), is distinguishable. The view expressed by the Tribunal that they are only assisting the security staff and are not required to perform the security duties is untenable. The duties of 'Durwan' in Ordnance Factory, as the chart shows, have their significance. It is sensitive job and when an advice was brought on record prior to the guidelines. Regard being had to the nature of job, the desirability of performing duties of 'Durwan' in case of a person suffering from colour blindness and considering the importance of manufacturing of sophisticated arms and ammunition, the order passed by the Tribunal, we are afraid cannot be regarded as invulnerable. In our considered opinion it deserves to be quashed and is hereby annulled. Consequently the writ petitions are allowed and the order passed by the Tribunal is quashed. However, in the peculiar facts and circumstances of the case there shall be no order as to costs.