Gujarat High Court
Tusharkumar Karsanbhai Vinzuda vs State Of Gujarat on 8 February, 2022
Author: Biren Vaishnav
Bench: Biren Vaishnav
C/SCA/6217/2021 CAV JUDGMENT DATED: 08/02/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 6217 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 8611 of 2020
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE BIREN VAISHNAV
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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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TUSHARKUMAR KARSANBHAI VINZUDA
Versus
STATE OF GUJARAT
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Appearance:
MS SHUBHA B TRIPATHI(5597) for the Petitioner(s) No. 1
NOTICE NOT RECD BACK for the Respondent(s) No. 2
MR. K.B.PUJARA, ADVOCATE for MR.VICKY B MEHTA, ADVOCATE(5597)
for the Petitioner(s) No. 1 in SCA No. 8611 of 2020
MR. MEET THAKKAR, AGP,for the Respondent(s) No. 1,3
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CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
Date : 08/02/2022
CAV JUDGMENT
1 In both these petitions under Article 226 of the Constitution of India, the petitioners have challenged the action of the respondent, Gujarat Electricity Company of disqualifying them for the purposes of Page 1 of 11 Downloaded on : Tue Feb 08 22:21:38 IST 2022 C/SCA/6217/2021 CAV JUDGMENT DATED: 08/02/2022 appointment to the post of Electrical Assistant on the basis that the petitioners are handicapped and colour blind.
2 Heard Mr. K.B.Pujara learned advocate appearing with Mr.Vicky Mehta, learned advocate for the petitioners and Mr.Dipak Dave for the Board and Mr. Meet Thakkar, learned Assistant Government Pleader for the State.
3 For the purposes of the adjudication of these petitions, facts of Special Civil Application No. 8611 of 2020 are considered. 3.1 It is the case of the petitioner that on he clearing the higher secondary examination board in the year 2011 and having completed his industrial training course as Trade Electrician at the ITI Centre , Dhandhuka, and having cleared his apprenticeship training with the respondent Electricity Company, the petitioner when appointed as an Apprentice Lineman, was sent for medical examination and was declared fit and a certificate to that effect was issued on 20.10.2014. According to the petitioner at that time, the Certificate was issued after due verification of the petitioner's vision etc. The petitioner continued to discharge duties from the year 2014 to 2017 as an Apprenticeship Lineman. After completion of the apprentice course, since the petitioner was eligible for getting appointment on the post of Electrical Assistant, he underwent a Page 2 of 11 Downloaded on : Tue Feb 08 22:21:38 IST 2022 C/SCA/6217/2021 CAV JUDGMENT DATED: 08/02/2022 departmental examination and a Pole Climbing Test and was found eligible for being appointed as an Electrical Assistant. A merit list was published where the petitioner's name appeared at serial no.7. On being referred to the Medical Board for his medical examination, and on being examined, the petitioners were declared unfit on account of colour blindness and a certificate to that effect was issued on 18.06.2020. This is the subject matter of challenge.
4 Mr. K.B.Pujara, learned advocate, appearing with Mr.Vicky Mehta, learned advocate for the petitioners, would draw the attention of the Court to the certificate issued by the Chief Medical Officer at the point of time when the petitioner was appointed as an Apprentice Line- Man and submitted that once that certificate was issued certifying the petitioner to be medically fit at the time of his being selected for his appointment to the post of Electrical Assistant, the issuance of Medical Certificate dated 18.06.2020 is misconceived.
4.1 Relying on the Certificate at page 39, Mr.Pujara, learned advocate, would submit that the certificate is completely vague, in asmuch as, it only declares that the petitioner is unfit for duty as an Electrical Assistant as declared by the Opthalmology Board. No further certificate as to on what basis is the petitioner declared unfit is provided. 4.2 Mr. Pujara, learned advocate, would further submit that pursuant to Page 3 of 11 Downloaded on : Tue Feb 08 22:21:38 IST 2022 C/SCA/6217/2021 CAV JUDGMENT DATED: 08/02/2022 an order passed by this Court on 28.09.2020, the petitioner was asked to remain present before the Medical Board of the institute, namely, the M & J Institute of Opthalmology Board, wherein, he remained present and the only certificate that the Board has given is that the petitioner is unfit as an Electrical Assistant. No reasons based on which such a certificate is issued by the Board is placed on record.
4.3 Taking the Court to the affidavit-in-reply filed by the Board, Mr. Pujara, learned advocate, would submit that the reliance placed on the general conditions of service are mere guidelines and there is nothing in the rules to show that for the purposes of discharge of duties as an Electrical Assistant, their impediment of colour blindness could disqualify a candidate. He would rely on the affidavit-in- reply and on the establishment circulars annexures, wherein, the general standards of fitness have been referred to. He would submit that these general standards of fitness do not in any case provide for a disqualification on the ground of being colour blind. Even as far the visual test is concerned, what is provided for is that the incumbent should have a normal colour vision as tested with Ishihara test and nothing clearly is provided for in context of it being applicable to the post of Electrical Assistant. 4.4 In absence of any rules, the candidature of the petitioner, in the submission of Mr.Pujara, learned advocate, could not have been rejected on the ground of being colour blind. Reliance is placed on the decision of Page 4 of 11 Downloaded on : Tue Feb 08 22:21:38 IST 2022 C/SCA/6217/2021 CAV JUDGMENT DATED: 08/02/2022 the Division Bench rendered in LPA No. 1136 of 2018 dated 02.11.2018 in context of colour blindness being a disqualification for Lok Rakshaks and the Court in the aforesaid decision, according to Mr.Pujara, learned advocate, set aside the decision of the respondent, State Government, to hold the Lok Rakshaks being disqualified on the ground of being colour blind. The same would apply to the facts of the present case. 5 Mr. Dipak Dave, learned advocate appearing for the Board, would rely on the affidavit in reply filed on behalf of the Vij Company and submit as under:
5.1 The Certificate of fitness granted to the petitioner to carry out the work of an Apprentice Line-Man cannot be a yardstick for claiming the fitness for Electrical Assistants. It is a well settled provision of law that the post of an apprentice is not a regular post and it is merely an engagement and the same cannot be made as a right to be claiming appointment to the regular post of Electrical Assistant. After undergoing a successful completion of apprenticeship, the petitioner was required to undergo a departmental and a physical examination for the purposes of appointment of an Electrical Assistant.
5.2 In order to be fit for discharging duties on the post of Electrical Assistant, the petitioner had to undergo a medical examination and a certificate which had been issued by the GMERS Medical College is not Page 5 of 11 Downloaded on : Tue Feb 08 22:21:38 IST 2022 C/SCA/6217/2021 CAV JUDGMENT DATED: 08/02/2022 a subject matter of challenge in this petition. The duties of Electrical Assistants are more onerous and are responsible, and therefore, utmost care needs to be taken by the Company while appointing an employee to the post of an Electrical Assistant. An Electrical Assistant is to deal with live electrical wires, and therefore, has to clearly distinguish the colour of the wires in discharge of his duties, and therefore, in the event of a candidate having a handicap of colour blindness is a grave risk for being appointed because the identification of red, blue and green colours, is a necessity or requirement at the installation of transformers at Meter Testing Laboratories is a pre-requisite.
5.3 Relying on the annexure to the establishment circular, Mr.Dipak Dave, learned advocate, would submit that the visual test prescribed for physical fitness clearly indicates that it applies to the line staff and such posts require a high degree of visual acquity with glasses. 6 Mr.S.B.Tripathi, learned counsel of Special Civil Application No. 6217 of 2021 has not made any submissions and submitted that he would adopt the submissions made by learned counsel Mr.Pujara for the petitioner in Special Civil Application No. 8611 of 2020. 7 Considering the submissions made by the learned counsels appearing for the petitioners, which for the reasons hereunder is Page 6 of 11 Downloaded on : Tue Feb 08 22:21:38 IST 2022 C/SCA/6217/2021 CAV JUDGMENT DATED: 08/02/2022 misconceived, deserves to be dismissed:
7.1 It is misconceived on the part of the petitioners to rely on a Certificate of the year 2014 produced by the petitioner while the petitioner was appointed as an Apprentice Line-man with the Electricity Company. Nowhere in the certificate does it talk about colour blindness and that even if it is so in the case of the petitioner, the certificate of an appointment as an Apprentice Line-man cannot give a due claim to appointment to the regular post of Electrical Assistant which has to be done in accordance with the rules in question.
7.2 During the course of hearing of these petitions, in order to see that no injustice is done to the petitoner and the apprehension of the petitioner is addresed, this Court had on 28.09.2020 passed the following order :
"1. Heard Mr. K.B. Pujara, learned advocate appearing with Mr. Vicky Mehta, learned advocate for the petitioner, Mr. Dipak Dave, learned advocate for UGVCL and Mr. K.M. Antani, learned AGP through video conferencing.
2. On the last occasion, Mr. Pujara had drawn the attention of this court to the certificate dated 18.06.2020 issued by GMERS Medical College and Hospital, Sola, Ahmedabad certifying that the petitioner was unfit for duty as an Electrical Assistant as declared by the letter of the Opthalmology Board dated 18.06.2020. The contention of the petitioner is that if with the same handicap, the petitioner was found fit for carrying out his duties as linesman that should not have been a disqualification for being appointed as an Electrical Assistant. At the request of learned advocates for the respective parties, Mr. K.M. Antani, learned AGP through whatsapp had produced a copy of the opinion of the Board No. 432/2020 which reference is made in the certificate at page 39. Mr. Antani would submit that on examination, the petitioner was found to be colour vision defective.
3. In order to resolve the issue, the Director, M & J Institute of Page 7 of 11 Downloaded on : Tue Feb 08 22:21:38 IST 2022 C/SCA/6217/2021 CAV JUDGMENT DATED: 08/02/2022 Opthalmology, Civil Hospital, Ahmedabad is requested to arrange for reexamination of the petitioner. The petitioner shall present himself before the concerned board of the M & J Institute of Opthalmology, Civil Hospital, Ahmedabad on 06.10.2020 on which date the board shall reexamine the petitioner on his fitness with regard to colour vision and issue a fresh certificate and opinion. Stand over to 08.10.2020.
4. Registry to communicate the order through email to Mr. Mehta, learned advocate for the petitioner and Mr. Antani, learned AGP for onward communication."
7.3 Pursuant to this, the learned AGP had informed the M&J Optholmology Institute, which carried out re-examination of the petitioners. A Certificate dated 18.10.2020 was issued certifiying that the petitioner had been examined by the Board of Reference of the Optholmology Institution and the petitoiner was declared unfit as an Electrical Assistant.
7.4 Judicial notice can be taken of the expertise of the Board of the Optholmology Institute and this court in exercise of powers under Article 226 of the Constitution of India, would not adjudicate or get into the veracity and legality and / or genuineness of expert bodies for the "Certificate" issued to the petitioner, wherein, the petitioner has specificallly been declared as unfit as an Electrical Assistant.
8 There is more reason to not entertain the petition. From the affidavit-in-reply filed by the Board and on the basis of the annexure which is reproduced to the establishment circular, it is clearly evident that Page 8 of 11 Downloaded on : Tue Feb 08 22:21:38 IST 2022 C/SCA/6217/2021 CAV JUDGMENT DATED: 08/02/2022 the petitioner has to satisfy not only the General Standards of fitness but also the visual tests in terms of having normal colour vision. Relevant para of the Physical Fitness Standards reads as under:
"1. General Standard of Physical Fitness :
(a) The general examination as to the physical fitness of candidates for appointment to the service of the Board shall consist of routine examination into the health and bodily condition of the candidates with reference to the points noted below
i) General Confirmation
ii) Presence of otherwise of heamorrhords or fistula
iii) presence of otherwise of hernia or weakness of the inguinal rings and cannals.
iv) presence of vancocle, or other affections of the testicle
v) presence of pyorrohoea alveolaris
vi) Any evidence of veneral disease
vii) Presence of trachoma.
Viii) Any investerate skin disease.
ix) Any Tubercular disease
X) A neurotic temperament.
(b) In the case of chowkidars and Watchman who have to grapple and deal with intruders and trespassers and heamals and others such as mazdurs who have to do manual work including lifting of heavy weights, higher standard of vision, physique and general conditions of health than those who have to do desk work or those such as peons who have to do light manual work is necessary.
II. Visual Test :
(1) For posts requiring a very high degree of visual acuity with glasses and moderate degree without glasses.
(i) Visual activity 6/24 each eye without glasses 6/6 each eye with +2.50 with correction
ii) Normal colour vision as tested with Eshihara test. Iii) No evident signs of infectious conditions of the external eye eg. Erachoma.
These posts will normally be in class I and II and also such of the Artisan groups such as a Line Staff Drawing staff and such other categories whose nature of duties call for high standard vision, as may be specified by the competent authority.
Page 9 of 11 Downloaded on : Tue Feb 08 22:21:38 IST 2022 C/SCA/6217/2021 CAV JUDGMENT DATED: 08/02/2022 (2) For posts requiring a high degree of visual acquity with glasses.
Visual activity 6/6 each eye + 4 OD after correction.
The rest as in (1) above.
Chowkidars, Watchmen and Machine Workers such as Mechanics, Fitters, Machine Operators, Machine attendants, Chargemen, Welders, Employees handling inflammable substances and scuh other employees as may be specified by the competent authority, will come under this category."
8.1 Reading the physical fitness standards, it categorically provides that the same applies to the Line Staff. The submission of Mr.Pujara, learned advocate, therefore, that the colour blindness is not a disqualification included in the standards of physical fitness, more so for an Electrical Assistant, is a submission which does not merit consideration.
9 Looking to the nature of duties which are onerous and when the Electrical Assistant has to deal with live wires, especially during the istallation where the colour of the wires is of prime importance, the nature of duties that he has to discharge, if an expert body like the Opthalmology Institute has also opined that the petitioner is colour blind and therefore unfit to be appointed as an Electrical Assistant, this Court cannot find fault with the Corporation's decision in issuing a Certificate of 18.06.2020 which stands justified by a subsequent certificate issued by the Opthalmology Institute and denying the appointment to the petitioner Page 10 of 11 Downloaded on : Tue Feb 08 22:21:38 IST 2022 C/SCA/6217/2021 CAV JUDGMENT DATED: 08/02/2022 to the post of Electrical Assistant of the Electricity Company. 10 For all these reasons, both these petitions are not entertained and are dismissed accordingly.
(BIREN VAISHNAV, J) Bimal Page 11 of 11 Downloaded on : Tue Feb 08 22:21:38 IST 2022