Punjab-Haryana High Court
State Of Haryana And Others vs Nasib on 8 February, 2011
Author: T.P.S. Mann
Bench: T.P.S. Mann
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
L.P.A. No. 1191 of 2010 (O&M)
Date of Decision : February 08, 2011
State of Haryana and others
....Appellants
Versus
Nasib
.... Respondent
CORAM : HON'BLE MR. JUSTICE M.M. KUMAR
HON'BLE MR. JUSTICE T.P.S. MANN
Present : Mr. Aman Chaudhary, Additional Advocate General, Hry.
for the appellants.
Mr. Abhishek Yadav, Advocate
for the respondent.
1. To be referred to the Reporters or not ?
2. Whether the judgment should be reported in the Digest ?
M.M. KUMAR, J.
The instant appeal filed under Clause X of the Letters Patent is directed against the judgment dated 4.3.2010 passed by the learned Single Judge accepting the prayer made by the writ petitioner- respondent that despite the fact that he is colour blind, he would be entitled to be appointed as Constable in the appellant department. Learned Single Judge has proceeded on the assumption that the writ petitioner-respondent had applied for appointment to the post of Executive Constable, whereas a perusal of the advertisement dated 24.5.2006 (Annexure P.1)would show that the applications were invited for filling up the posts of Temporary Constable (Normal Duty). There is nothing inferable from the advertisement that 3700 posts advertised L.P.A. No. 1191 of 2010 (O&M) -2- were for the post of Executive Constable. Accordingly, the reliance of the learned Single Judge on the judgment of Hon'ble the Supreme Court in the case of Union of India v. Satya Parkash Vashishst, 1994 Supplement (2) SCC 52, is wholly misplaced. In C.W.P. No.17339 of 2010 decided on 28.10.2010 (Neeraj and others v. Union of India and others), which is similar on facts to the case in hand, a Division Bench of this Court has distinguished the aforesaid judgment by observing as under :-
"The judgement of Hon'ble the Supreme Court in the case of UOI v. Satya Parkash Vashishst, 1994 Suppl. (2) SCC 52 has no application to the facts of the present case. There the selection and appointment was sought to be made to the post of Sub Inspector (Executive) Delhi Police. It is well known that executive cadre is different than the general duty cadre or IRB cadre. The members of the executive cadre perform ministerial functions and the colour blindness may not come in the way of performance of their duty. The general duty constable or IRB constables have to perform variety of functions and colour blindness would certainly affect their performance of duty. Therefore, we do not fine any merit in the contention based on the judgment rendered in the case of Satya Parkash Vashishst (supra)."
A perusal of the aforesaid para would show that in the case of Satya Parkash Vashishst (supra), the selection and appointment was sought to be made to the post of Constable (Executive) in Delhi Police. It does not need much imagination to visualize that executive cadre is L.P.A. No. 1191 of 2010 (O&M) -3- different than the general duty cadre or IRB cadre. The members of the executive cadre perform ministerial functions and the colour blindness of a candidate, like the petitioner, may not come in the way of performance of their duty. The general duty Constable have to perform various functions and colour blindness would certainly affect their performance of duties. In that regard, the Division Bench in Neeraj's case (supra) have placed reliance on the observation made by Hon'ble the Supreme Court in the case of Union of India v. Devendra Kumar Pant and others, (2009) 14 SCC 546. Referring to the provision of Section 47(2) of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, Hon'ble the Supreme Court has observed that Section 47(2) bars disability per se being made a disqualification for promotion but the position is different if disability would affect discharge of functions or performance in a higher post or if disability would pose a threat to the safety of co- employees, members of public or employee himself, or to the assets and equipments of employer. Once the aforesaid position in facts and law is clear, then the view taken by the learned Single Judge cannot be accepted. Accordingly, the appeal is allowed and judgment of the learned Single Judge is set aside. No order as to costs.
( M.M. KUMAR )
JUDGE
( T.P.S. MANN )
February 08, 2011 JUDGE
satish