Andhra HC (Pre-Telangana)
G.Ajay Kumar, S/O.Sri Vittal Rao, Aged ... vs The Government Of Andhra Pradesh, Rep. ... on 27 March, 2012
Author: K.G.Shankar
Bench: K.G.Shankar
HON'BLE SRI JUSTICE V.ESWARAIAH AND HON'BLE SRI JUSTICE K.G.SHANKAR
Writ Petition No.6027 of 2012
27-3-2012
G.Ajay Kumar, S/o.Sri Vittal Rao, Aged about 34 years, Occ: Unemployee,
R/o.H.No.7-1-43 (New), Mankammathota, Karimnagar, Karimnagar district
The Government of Andhra Pradesh, Rep. by its Principal Secretary,
Home (Services.II) Department, Secretariat, Hyderabad-22 and 3 others
Counsel for the Petitioner: Sri D.V.Sitharama Murthy, learned Senior Counsel,
Rep. Sri N.Ashwani Kumar.
Counsel for the Respondents 1 to 3: Government Pleader for Services II.
<Gist:
>Head Note:
?Cases referred: Nil.
Order: (per K.G.Shankar, J.)
The application of Sri G.Ajay Kumar before the Andhra Pradesh
Administrative Tribunal (the Tribunal, for short) in O.A.No.624 of 2011 seeking
to set aside the proceedings in Rc.No.225/R&T/Admn.1/2009, dated 1/2.12.2010
rejecting his candidature for the post of the Sub-Inspector of Police (Civil) on
the ground of medical unfitness, was dismissed by the Tribunal, through orders
dated 18.08.2011. The petitioner assails the same before us through the present
writ petition.
2. The case of the petitioner:
a) The petitioner was selected as Stipendiary Cadet Trainee Sub-
Inspector (Civil) in Zone-V. He was sent for training. His training commenced
on 03.08.2004. He was subsequently deputed to bandobast duty at Tank Bund in
connection with Ganesh Immersion from 24.09.2004 to 28.09.2004. The petitioner
suffered severe back pain while he was on bandobast duty.
b) The treatment given by the Unit Medical Officer (UMO) at the Police
Academy did not give relief to the petitioner. The petitioner consequently left
the Police Academy on 03.10.2010. In accordance with the advice of the Doctor,
he took bed rest from 04.10.2004 till 09.10.2004. He reported back to the
Police Academy on 11.10.2004 along with the fitness certificate. However, the
Police Academy did not allow him to resume his training on the ground that he
was unauthorizedly absent from training for more than seven days.
c) The third respondent discharged the petitioner on 20.10.2004. On the
appeal by the petitioner, Government issued G.O.Rt.No.788, Home (Services.II)
Department, dated 07.06.2005 directing the competent authority to take back the
petitioner into service and to allow him to complete training with the next
batch of Sub-Inspectors.
d) However, the petitioner was sent for medical examination. In the
medical examination, it was found that the petitioner was suffering from
defective colour vision and that he was not able to identify the three primary
colours viz., Blue, Red and Green. The petitioner was consequently disqualified.
His provisional selection was cancelled by the second respondent, through orders
dated 29.06.2007. The request of the petitioner to send him for medical
examination again was rejected.
e) The petitioner consequently filed O.A.No.5301 of 2009 before the
Tribunal. The Tribunal disposed of O.A.No.5301 of 2009 on 26.02.2010 directing
the respondents to send the petitioner for re-medical examination either to
Gandhi Hospital or Osmania General Hospital. The respondents were further
directed to issue fresh appointment orders to the petitioner and to send him for
training in the event the petitioner was found fit in the re-medical
examination. The respondents, however, questioned the orders in O.A.No.5301 of
2009, through W.P.No.26670 of 2010. This Court dismissed the writ petition.
However, the order of the Tribunal to send the petitioner to Gandhi Hospital or
Osmania General Hospital for medical examination was modified directing that the
petitioner be sent to the L.V. Prasad Eye Institute for re-medical examination.
The petitioner was subjected to medical examination on 18.11.2010 in the L.V.
Prasad Eye Institute. The petitioner claims that he came to know that he was
found to be medically fit and that the petitioner, however, was directed to
appear before the Institute again on the next day on 19.11.2010.
The petitioner further contended that on account of the pressure exerted upon
the Institute, the Institute issued a medical report to the effect that the
petitioner is medically not fit.
f) The petitioner was subjected to Ischihara test on 18.11.2010. The result
disclosed that the petitioner was medically fit. In order to disqualify the
petitioner, the L.V. Prasad Eye Institute subjected the petitioner once again to
Ischihara test on 19.11.2010.
The petitioner was again successful. The petitioner was consequently subjected
to 15 Degree/Disc Colour Vision Test (D-15 test, for short) wherein it was
detected that the petitioner was suffering from red and green colour vision
defect. No one is subjected to D-15 test when one passes through Ischihara test.
D-15 test was conducted upon the petitioner with the sole purpose of
disqualifying the petitioner.
g) As the petitioner was successful in the Ischihara test, the petitioner
shall be considered to have passed the re-medical examination test. The
petitioner claims that he is liable to be re-appointed.
3. The respondents opposed the contention and the allegation of the
petitioner through their counter. The history of the case as narrated by the
petitioner was by and large admitted. The respondents, however, contended that
when the petitioner was sent to medical examination to the Mahathama Gandhi
Medical Hospital, Warangal, it was detected that the petitioner was suffering
from defective colour vision. He was consequently found unfit for employment.
4. The respondents submitted that on 18.11.2010, the petitioner was subjected
to medical examination in the L.V. Prasad Eye Institute.
The examination revealed that the petitioner was suffering from red and green
colour vision defect.
The petitioner, therefore, is not qualified medically for reappointment.
5. The primary contention of Sri D.V. Sitharama Murhty, learned senior
counsel for the petitioner is that Ischihara test is the normal test for
detecting colour vision deficiency and that D-15 test is resorted to in highly
sensitive jobs like air pilots and not for Sub-Inspectors. His further
contention is that the report of the L.V. Prasad Eye Institute cannot be taken
into consideration.
6. Before going into the question of the main case, we may refer to
W.P.No.29468 of 2011. We have disposed of the same wherein question regarding
Ischihara test and D-15 test came up for consideration. We held that for the
post of Stipendiary Cadet Trainee Police Sub-Inspector (Civil), Ischara test is
the requisite test and not D-15 test. The same learned Senior Counsel who
appeared on behalf of the rival parties in W.P.No.29468 of 2011 appeared in the
present case also. His primary contentions in this case did not differ from his
contentions in W.P.No.29468 of 2011. In view of our orders in W.P.No.29468 of
2011 dated 09.03.2012, we have no hesitation to hold that a Stipendiary Cadet
Trainee Sub-Inspector (Civil) is liable to be subjected Ischihara test only and
not D-15 test. We may examine the present case on the above premises that
Ischihara test is the requisite test and not D-15 test.
7. The writ petitioner joined as SCT Sub Inspector (Civil) on 03-8-2004.
Admittedly, he underwent medical examination before he was sent to training.
Evidently, the petitioner did not suffer from any medical disqualification lest
he should not have been sent for training. However, for reasons of physical ill
health, not connected with the efficiency of the vision, the petitioner was
absent from duty. When he was discharged from service, the Government directed
that the petitioner be taken back into service and send him to training through
orders in G.O.Rt.No.788, HOME (SERVICES-II) DEPARTMENT, dated 07-6-2005. There
is no condition in G.O.Rt.No.788 that the petitioner shall be taken back into
service, after subjecting him to medical examination, provided he is found fit
in the medical examination.
The learned Senior Counsel for the petitioner repeatedly emphasized this aspect
contending that there is no justification in subjecting the petitioner to the
second medical examination after the petitioner has once completed the rigmorale
before he was admitted for training. His contention would appear to be that the
very submission of the petitioner for the second medical examination per se is
invalid and non est. It may be noticed that the petitioner underwent the second
set of medical examination before Mahatma Gandhi Memorial Hospital, Warangal and
the L.V.Prasad Eye Institute, Hyderabad, without any demur or protest.
The petitioner, who has undergone medical examination subsequent to issuance of
G.O.Rt.No.788, is estopped from questioning the conduct of the competent
authority in sending the petitioner for further medical examination. We,
therefore, reject this contention of the learned Senior Counsel for the
petitioner.
8. The learned Senior Counsel for the petitioner also pointed out that the
L.V.Prasad Eye Institute wanted to disqualify the petitioner in the vision test
on one count or the other, lest there should be no need to subject the
petitioner to D-15 test. He pointed out that no candidate for SCT Sub Inspector
post was subjected to D-15 test, while every one of them was subjected to
Ischihara test and that the petitioner could be subjected to Ischihara test only
and not to D-15 test. He tried to draw analogy between this case and the case
of the petitioner in W.P.No.29468 of 2011 (supra). We are afraid that the
analogy is misconceived. Indeed, the petitioner in W.P.No.29468 of 2011 was
also a candidate for SCT Sub Inspector post. The petitioner therein failed in
the Ischihara test on the first occasion before the Government General Hospital,
Guntur, but was successful in the Ischihara test conducted by the L.V.Prasad Eye
Institute. The petitioner therein, however, was subjected to D-15 test. In
those circumstances, we held that holding D-15 test was improper.
9. As against the facts in that case, in the present case, the petitioner indeed
was found fit in all respects including eye vision and in fact was admitted to
training as SCT Sub Inspector. However, when he was subjected to medical
examination in the peculiar circumstances of the case, he was not successful in
the eye vision test. The petitioner cannot compare himself with the case of the
writ petitioner in W.P.No.29468 of 2011.
10. In the present case, the petitioner was initially subjected to the medical
examination in Mahatma Gandhi Memorial Hospital on the second occasion on
12-6-2007. The learned Government Pleader for Services-II placed the entire
file relate to the petitioner before us. Page 2 of the Medical Report of
Mahatma Gandhi Memorial Hospital shows that the petitioner was suffering from
colour vision defect in identifying three primary colours and that he was
consequently unfit.
11. The Report led to the petitioner filing O.A.No.5301 of 2009 before the
Tribunal.
In W.P.No.26670 of 2010 arising from the orders in O.A.No.5301 of 2009, this
Court modified the orders of the Tribunal and directed the petitioner to be
examined by the L.V.Prasad Eye Institute. Consequently, the petitioner was sent
to the L.V.Prasad Eye Institute for the medical examination. The petitioner
cannot question this action of the competent authority in sending the petitioner
to the L.V.Prasad Eye Institute. The competent authority was acting in terms of
the orders of the Tribunal in O.A.No.5301 of 2009, dated 26-02-2010, as modified
by this Court through orders in W.P.No.26670 of 2010. We thus are clear that
the examination of the petitioner by the L.V.Prasad Eye Institute cannot be
questioned by the petitioner.
12. The learned Senior Counsel for the petitioner questioned the Medical Report
of the L.V.Prasad Eye Institute contending that the petitioner was unnecessarily
subjected to D-15 test and that he was successful in Ischihara test. As already
pointed out, the petitioner shall clear the Ischihara test only and need not
clear D-15 test to be medically qualified for the post of SCT Sub Inspector (for
the reasons already stated).
The petitioner, however, contended that the L.V.Prasad Eye Institute conducted
Ischihara test both on
18-11-2010 and 19-11-2010 and on both the occasions, the petitioner cleared the
test. It is the claim of the petitioner that to disqualify the petitioner, the
L.V.Prasad Eye Institute subjected the petitioner to D-15 test and that he was
disqualified on the ground that he did not succeed in the eye vision medical
fitness.
13. The only record produced by the petitioner is the Medical Report of the
L.V.Prasad Eye Institute, dated 19-11-2010. The Medical Report disclosed that
he was subjected to medical examination on 18-11-2010 and
19-11-2010. The Report did not show anywhere that the petitioner was subjected
to Ischihara test on 18-11-2010 and 19-11-2010 and that the petitioner was
successful on both the occasions. The Report does not show that the petitioner
was subjected to Ischihara test, let alone the result thereof.
14. The Medical Report of the L.V.Prasad Eye Institute in the circumstances in
which the petitioner was subjected to D-15 test are noted in the last para of
the Medical Report as:-
"Based on the above clinical findings a diagnosis of emmetropia in the left eye
was made. He was referred to retina clinic for further management. He was sent
by Dr. Padmaja, and he was referred to neuro-ophthalmologist for further
management. He was seen by me on 19/11/2010. Colour vision test was done using
D15 panel test. This test was repeated thrice and patient showed red-green
colour defects. Enclosed copy of colour vision test done."
15. Thus, it is found that the petitioner was suffering from Emmetropia. The
learned Senior Counsel for the petitioner produced Internet downloaded meaning
of "Emmetropia". He drew our attention to the reference to "An eye problem
requiring no correction". We deem it appropriate to reproduce the relevant
Internet download:
"Emmetropia (from Greek emmetros, "well-proportioned" or "fitting") describes
the state of vision where an object at infinity is in sharp focus with the eye
lens in a neutral or relaxed state. This condition of the normal eye is
achieved when the refractive power of the cornea and and axial length of the eye
balance out, which focuses rays exactly on the retina, resulting in perfect
vision. An eye in a state of emmetropia requires no correction.
Emmetropia is a state in which the eye is relaxed and focused on an object more
than 6 meters or 20 feet away. The light rays coming from that object are
essentially parallel, and the rays are focused on the retina without effort (an
emmetropic eye does not need corrective lenses). If the gaze shifts to
something closer, light rays from the source are too divergent to be focused
without effort. In other words, the eye is automatically focused on things in
the distance unless a conscious effort is made to focus elsewhere. For a wild
animal or human prehistorical ancestors, this arrangement would be adaptive
because it allows for alertness to predators or prey at a distance.
Accommodation of the lens does not occur in emmetropia. In emmetropia, the lens
is about 3.6 mm thick at the center; in accommodation, it thickens to about 4.5
mm. A relatively thin lens and relatively dilated pupil are also associated.
The lens usually stiffens with age, causing less ability to focus when the eyes
are not in a state of emmetropia.
Corrective eye surgery such as LASIK and PRK aims to correct an emmetropic
vision. This is accomplished by ensuring the curvature of the cornea, the shape
of the lens and their distances from each other and the retina are in harmony.
By shaping the cornea, emmetropic vision can be achieved without corrective
lenses. The correction for only emmetropic vision is often why patients are
still advised to wear glasses to read as they age due to presbyopia."
16. It may be noticed that while it was stated that Emmetropia requires no
correction, it was pointed out that LASIK and PRK surgeries are intended to
correct emmetropic vision. Thus, the emmetropic vision appears to be an eye
vision problem. "Requires no correction" in the Internet download, would appear
to mean no requirement of corrective lens. The LASIK and PRK indeed are two of
the surgeries, which aim to correct an emmetropic vision. The learned Senior
Counsel for the petitioner, therefore, cannot contend that Emmetropia was not a
disease at all and there was no need to subject the petitioner to D-15 test.
17. The 2nd para of the Medical Report shows that the petitioner was found to be
suffering from large pigmented patch in the left eye. Be that as it may, there
is no reference to subjecting the petitioner to Ischihara test. The petitioner
was straight away subjected to D-15 test as Emmetropia was found in the left
eye. In D-15 test, the L.V.Prasad Eye Institute found that the petitioner was
suffering from red and green colour blindness. It is not clear whether this
defect was only with reference to the left eye, which was suffering from
Emmetropia or it was a disease for both the eyes. At any rate, it is the Report
of the L.V.Prasad Eye Institute that the petitioner was suffering from colour
blindness and that the same was revealed by D-15 test.
18. Questioning the authenticity of D-15 test apart from the propriety of
holding D-15 test, the learned Senior Counsel for the petitioner contended that
colour blindness more or less is congenital and that the colour blindness would
not develop suddenly. His contention is that the petitioner, who was subjected
to medical examination before he joined training, would not have been sent for
training had he been suffering from colour blindness and that it, therefore, is
preposterous to hold that the petitioner was suffering from colour blindness
now. It may be noticed that the petitioner was sent for training in August,
2004. The Report of the L.V.Prasad Eye Institute was on 18-11-2010 and 19-11-
2010, more than six years after the earlier test. In between, the petitioner
suffered from ill health albeit not for the eye.
It is not for us to decide whether the colour blindness does not occur all of a
sudden and that the colour blindness would more or less be congenital. It is
for the doctors to subject or not to subject a candidate for colour vision
efficiency test. Once it is found that the petitioner was suffering from colour
vision defect, it is immaterial as to when did it set in.
19. It does not appear to be the case of the petitioner that the result of the
L.V.Prasad Eye Institute is incorrect. His claim is that he should not have
been subjected to D-15 test and that he cleared Ischihara test. As already
pointed out, the Medical Report dated
19-11-2010 does not show that the petitioner was subjected to Ischihara test.
20. The learned Senior Counsel for the petitioner did not agree for referring
the petitioner to the L.V.Prasad Eye Institute or some other prominent Eye
Institute at Hyderabad to subject him to Ischihara test. His steadfast
contention is that there was no point in subjecting the petitioner to any test
and that he ought to be taken into service without further tests. He himself
logically submitted that the test of Mahatma Gandhi Memorial Hospital, Warangal,
became ineffective once the petitioner was sent to the L.V.Prasad Eye Institute,
Hyderabad, whether the L.V.Prasad Eye Institute concurred with the opinion of
the M.G.M. Hospital, Warangal, or otherwise. Added to it, while the M.G.M.
Hospital, Warangal, found that the petitioner was colour blindness to three
primary colours of blue, red and green, the L.V.Prasad Eye Institute found, even
after D-15 test, that the petitioner was colour blind to red and green colours
only. In view of the difference in the result in the Reports of the
M.G.M.Hospital and the L.V.Prasad Eye Institute, we agree with the contention of
the learned Senior Counsel for the petitioner that the Report of the
M.G.M.Hospital, Warangal, is liable to be discarded.
21. The learned Senior Counsel for the petitioner, however, takes a further step
and contends that the Report of the L.V.Prasad Eye Institute cannot be accepted
as the petitioner should not have been subjected to D-15 test. We have no
objection to agree with the claim of the learned Senior Counsel for the
petitioner. However, the learned Senior Counsel for the petitioner contended
that the petitioner cannot be sent for further Ischihara test and that it should
be held that the petitioner was medically fit in respect of the eye vision. We
are unable to agree with this contention of the learned Senior Counsel for the
petitioner.
22. If the Report of the M.G.M.Hospital, Warangal, is liable to be discarded and
the Report of the L.V.Prasad Eye Institute cannot be accepted as D-15 test is
not prescribed, it cannot be concluded that the petitioner cleared colour vision
test. The petitioner should undergo Ischihara test in one medical institute or
the other. If the petitioner is successful in the Ischihara test, to the extent
of eye vision, he deserves to be cleared medically.
We gather from the unequivocal contentions of the learned Senior Counsel for the
petitioner that the petitioner is not willing to subject himself to Ischihara
test in any medical institute. We are afraid that the apprehension of the
petitioner that the competent authority would influence the medical institute
and would obtain a Certificate that the petitioner did not succeed in the
Ischihara test cannot be countenanced. At any rate, the main point is that the
petitioner is not ready to undergo Ischihara test in any leading eye
hospital/institute at Hyderabad. The petitioner in effect thus refused to
undergo the medical examination.
When the petitioner did not undergo the medical examination establishing his
medical fitness, we are afraid that the Tribunal was justified in dismissing the
application of the petitioner for a direction to the competent authority to send
the petitioner for training along with next batch of SCT Sub Inspectors.
23. We, therefore, see no merits in this writ petition. This writ petition
accordingly is dismissed. In view of disposal of the writ petition,
W.P.M.P.No.7655 of 2012 is also dismissed. No costs.
_________________
V.ESWARAIAH, J.
________________ K.G.SHANKAR, J.s