Calcutta High Court (Appellete Side)
Mintu Mondal vs Union Of India & Ors on 5 July, 2017
Author: Subrata Talukdar
Bench: Subrata Talukdar
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
PRESENT:
The Hon'ble Mr. Justice Subrata Talukdar
W.P. 14868(W) of 2016
Mintu Mondal
-Vs-
Union of India & Ors.
For the Petitioner : Mr. Pratik Dhar
Mr. Debobrata Mondal
Mr. Asim Hati
Mr. Debanshu Ghorai
Ms. Sreetama Neogi
Ms. Nibedita Barui
For the Union of India : Mr. Partha Sarathi Biswas
Mr. Salil Kumar Maiti
Heard on : 17/03/2017
Judgement on : 05/07/2017
Subrata Talukdar, J.:
Under challenge in this writ petition is the action of the respondents-Border Security Force (for short BSF) removing the petitioner from his service as Constable (General Duty) w.e.f. 10th August, 2015 on the ground that since the petitioner has been found to be 'color blind', he was no longer fit to be in the service of BSF. Accordingly, Rule 25 of the BSF Rules, 1969 read with the BSF Act, 1969 was applied and the order of removal took effect on the 10th of August, 2015.
Mr. Pratik Dhar, Ld. Senior Counsel appearing for the writ petitioner submits that the petitioner was found to be provisionally selected for the post of Constable (General Duty) in the BSF upon successful completion of all stages of the selection process on 8th April, 2013. Such selection process involved a Detailed Medical Examination (DME) upon which the petitioner was found to be fit. Thereafter the credentials of the petitioner were verified and the petitioner was confirmed in the service of the BSF.
A show-cause notice dated 28th August, 2014 was issued to the petitioner while in service at Mizoram which, inter alia, conveyed the intimation that in terms of the opinion of the medical board constituted on the 8th of July, 2014 the petitioner was found to be 'color blind' and therefore unfit to discharge duties as constable. The petitioner was given the option for appearing before a review medical board to reassess his alleged 'color blindness'. Even the review medical board set up at the request of the petitioner confirmed his 'color blindness' upon which his name was struck off the rolls.
The petitioner thereafter filed an appeal under Rule 8A of the 1969 Rules and prayed for an order of reinstatement. Since, the BSF did not decide his appeal under Rule 28A (supra), the petitioner preferred an application under Article 226 of the Constitution of India being WP 6969(W) of 2006. The writ petition was disposed of by an order dated 26th April, 2016 directing the respondents/BSF to decide the appeal.
By the Memo impugned in this writ petition dated the 19th of May, 2016 the respondents/BSF reiterated its earlier opinion to the effect that the petitioner is suffering from CP(iv) (Color Perception Defective Unsafe) and therefore, to evaluate his retention in service, directed his appearance before a review medical board comprising 3 ophthalmologists. The review medical board having confirmed the findings of the first medical board, the BSF proceeded to apply its administrative procedure and retire the petitioner from service without any pensionary benefits w.e.f. 10th August, 2015 under Rule 25 of the 1969 Rules.
Mr. Dhar argues that the retirement from service of the petitioner without pensionary benefits after the petitioner has completed service of nearly two years and stood confirmed, would entail serious civil consequences. Mr. Dhar points out that at no stage of the selection the petitioner was found to be suffering from any form of 'color blindness' and therefore in the event he stands compulsorily retired at this stage, such action shall cause irreparable prejudice.
Relying on the judgment of the High Court at Delhi In Re:
Sudesh Kumar vs. Union of India & Ors., Mr. Dhar submits that Paragraphs 9, 14, 27, 36, 40, 42 and 45 thereof merit attention. The issues before the Hon'ble High Court at Delhi can be briefly summarised as follows:-
"9. The subject experts are in agreement that colour blindness is a very mild disability, but in certain situations, depending upon a job and especially where the identification of the colours red and green are important, may be a serious disability.
14. An interesting facet of colour blindness, has unfortunately escaped the attention of the Central Para- Military Forces and also the Central Government, evidenced by the fact that during arguments Ophthalmologist had assisted learned counsel for the respondents and indeed Dr.Padma Chaudhary, an Ophthalmologist had explained the various nuances pertaining to colour blindness in Court as acknowledged by the respondents in the additional affidavit filed, enclosing therewith the opinion of Dr.Padma Chaudhary, in WP(C) No.11554/2009. The facet which has escaped the attention of all is a distinctive ability of colour blind people which was first detected during World War-II. This was the ability of these individuals to be better placed than normal individuals, at penetrating certain colour camouflages and especially the colour „khaki . Reference may be made to an article published under the title „Dichromats detect colour- camouflaged objects that are not detected by trichromats published by M.J.Morgan, A.Adam and J.D.Mollons who are senior professors in the Department of Pharmacology, University of Edinburgh and the Department of Experimental Psychology, University of Cambridge. In World War-II, colour blind soldiers were used in spy planes to spot camouflage German camps.
27. The policy circular dated 17.5.2002 is again by way of relaxation inasmuch as it contains the decision that Central Para- Military Force Personnel whose colour blindness was ignored at the time of recruitment would not be treated ineligible for promotion and thus obviously required them to be retained in service and the reason for the policy is to be found in the policy itself through the medium of the words „cannot be held against them now , meaning thereby, it was accepted that the fault was that of the Department. The policy circular recognizes either the principle of the legitimate expectation of these force personnel to serve till they attained the age of superannuation or an estoppel against the Central Para- Military Forces who, by permitting employment to the force personnel concerned, made him alter his position in not seeking employment elsewhere and having become overage for public employment, estoppel would prohibit the Central Para-Military Force to allege or act to the contrary. It would be important to highlight that all such persons were liable to be placed in the medical category Shape-2, which as per the medical policy would mean that if within 4 years, Shape-1 was not regained required the person concerned to be boarded out. But, the policy recognized the fact that congenital colour blindness is incurable and the question of these persons regaining Shape-1 would never arise and thus it was clarified that despite being in medical category Shape-2 (permanently) they would be promoted.
36. We wish to highlight that the respondents have not been careful enough and indeed have been negligent not only at stage one when they inducted the petitioners in service by not subjecting them to a proper medical screening and had the respondents been careful, petitioners would have been told of their medical disability and this would have been at an age when all of them could have applied for public employment in such organizations where colour blindness is not a medical disability. Even at the second stage, by not correctly identifying the nature of the colour blindness suffered by them, the respondents have deprived them of a chance to serve in active duty, to wit, if anyone of them had congenital defects of the cone cells, he could volunteer active service from dusk to dawn. Further, if anyone of them suffered from anomalous trichromacy he could certainly claim a right to actively serve for the reason the impairment would not render him insensitive to colour detection, the minor impairment being the loss of the normal 3-dimensional colour vision.
40. Now, the policy circular dated 17.5.2002 recognizes the principle of either legitimate expectation or estoppel, as observed by us in para 27 above. It recognizes a wrong done to the members of the force by inducting them in service ignoring the medical disability; the wrong being that had they been told at the time when they sought employment that they were ineligible for appointment in a Central Para-Military Force, these young men could have found alternative employment on jobs where colour blindness was not an issue and not doing so and further throwing them out of jobs at an age when these young men became overage to seek public employment was to deprive them of a fair opportunity to seek public employment. The same principle on which policy circular dated 17.5.2002 was issued would equally apply where the Central Para-Military Forces would continue to be in the wrong due to negligence post 17.5.2002. In this context we find the policy decision dated 29.10.2008 being arbitrary and discriminatory in prescribing 17.5.2002 as the cut-off date as also the clarificatory policy circular dated 11.3.2011.
42. Before bringing the curtains formally down, we conclude on the issue by recording a finding that all the writ petitioners would be entitled to the benefit of the policy decision dated 17.5.2002 and we strike down the cut-off date 17.5.2002 prescribed in the policy circular dated 29.10.2008 and as clarified by the policy circular dated 11.3.2011 by directing in harmony with the decision of the Supreme Court in the decision reported as AIR 1983 SC 130 D.S.Nakara vs. UOI that this would mean the benefit of the policy circular to be extended to all force personnel of the Central Para-Military Forces who have been inducted in service at any point of time due to the negligence of the forces in not properly conducting medical examination and not detecting colour blindness in said persons.
45. WP(C) Nos.589/2010, 1668/2011 and 1681/2011 stand disposed of prohibiting the respective respondents in the said writ petitions to invalidate the writ petitioners thereof from service on account of colour blindness. They would be permitted to serve till they attain the age of superannuation, subject of course to their being otherwise entitled to do so (ignoring colour blindness). For the benefit of the respondents, we may only observe that qua some of them only partial colour blindness has been detected and the exact contour thereof has not been ascertained. We would expect the respondents to obtain better clinical evaluatory advice qua them and seek specific opinion from Ophthalmologist qua the exact span of disability to ascertain jobs which can be performed by them and needless to state if the colour blindness suffered by them does not impair night vision, why not assign them night duties. We may highlight that we have come across a large number of writ petitions where issues raised by jawans is of continuously subjecting them to night duties and they allege favouritism qua those who have been assigned more frequent day duties. If we have a reservoir of jawans who have some colour blind disability during normal day time, would it not be advisable to harness the disability as a pool of asset and use these jawans for night duties, for which we would expect these jawans to volunteer to do so; in any case commensurate with the disability of the jawan, there would be rationale in the policy decision taken to assign night duties to these jawans. Similarly, such Force Personnel who may be disabled on account of colour blindness, but would have the added advantage of spotting camouflage, why not utilize them as assets by attaching them with platoons on combing operations so that they would give the extra cutting edge to the platoon by being able to spot camouflaged camps set up by insurgents or terrorists."
The petitioners were or, are serving in different paramilitary forces and each of them suffers from 'color blindness'. The first petitioner namely, Sudesh Kumar was found fit for selection to the Central Indian Security Force (CISF) and, at every subsequent annual medical examination was found to be medically fit.
However, connected to a regular departmental examination for promotion, the said Sudesh Kumar was again medically examined and found to be unfit on the ground of 'color blindness'. Similarly, other petitioners before the Hon'ble High Court at Delhi were also diagnosed with 'color blindness' and therefore faced threats to their respective careers with the paramilitary forces.
Discussing the several policy circulars namely, dated 16th of May, 1991, 12th of June, 1997, 17th of May, 2002, 31st of July, 2002, 29th of October, 2008 and lastly on 11th of March, 2011 the Hon'ble Division Bench of the High Court at Delhi observed, inter alia, that the paramilitary forces had not been careful in examining each of the petitioners while inducting them in service after a medical test. The relevant discussion can be gathered from Paragraphs 36 to 42 and 45 which are set out as follows:-
"36. We wish to highlight that the respondents have not been careful enough and indeed have been negligent not only at stage one when they inducted the petitioners in service by not subjecting them to a proper medical screening and had the respondents been careful, petitioners would have been told of their medical disability and this would have been at an age when all of them could have applied for public employment in such organizations where colour blindness is not a medical disability. Even at the second stage, by not correctly identifying the nature of the colour blindness suffered by them, the respondents have deprived them of a chance to serve in active duty, to wit, if anyone of them had congenital defects of the cone cells, he could volunteer active service from dusk to dawn. Further, if anyone of them suffered from anomalous trichromacy he could certainly claim a right to actively serve for the reason the impairment would not render him insensitive to colour detection, the minor impairment being the loss of the normal 3-dimensional colour vision.
37. We wish to emphasize that there are 7 S s which help in identification of an object. They are as under:-
(i) S - Shape
(ii) S - Shine
(iii) S - Silhouette
(iv) S - Shadow
(v) S - Shade
(vi) S - Size
(vii) S - Sound
38. It is no doubt true that while prescribing the recruitment rules and standards of proficiency to be achieved, physical and medical standards can be prescribed and thus a feeble attempt made to urge that the respondents could not prescribe the requisite medical standards, is noted and rejected; with the clarification that the feeble argument was advanced just for the sake of advancing an argument.
39. It is true that a policy decision is in the exclusive domain of the State and can be struck down only when the same is ultra vires or unconstitutional i.e. is in violation of Article 14 or 16 of the Constitution of India, pertaining to a matter of service, no policy decision can be done away with unless so found. We need not list various authorities which hold so as we do not intend to prepare any catalogue and for the additional reason we have written enough in the present opinion. But where a policy is demonstrably not informed by a reason or is ex-facie discriminatory or founded on the mere ipsit- dixit of the Executive thereby offending Article 14 of the Constitution, as opined in the decision reported as 1977 (7) SCC 592 M.P.Oil Extraction vs. State of M.P., a Writ Court would be under an obligation to direct remedial measures to be taken.
40. Now, the policy circular dated 17.5.2002 recognizes the principle of either legitimate expectation or estoppel, as observed by us in para 27 above. It recognizes a wrong done to the members of the force by inducting them in service ignoring the medical disability; the wrong being that had they been told at the time when they sought employment that they were ineligible for appointment in a Central Para-Military Force, these young men could have found alternative employment on jobs where colour blindness was not an issue and not doing so and further throwing them out of jobs at an age when these young men became overage to seek public employment was to deprive them of a fair opportunity to seek public employment. The same principle on which policy circular dated 17.5.2002 was issued would equally apply where the Central Para-Military Forces would continue to be in the wrong due to negligence post 17.5.2002. In this context we find the policy decision dated 29.10.2008 being arbitrary and discriminatory in prescribing 17.5.2002 as the cut-off date as also the clarificatory policy circular dated 11.3.2011.
41. The policy circular dated 29.10.2008, while restricting the benefit thereof to those who were engaged prior to 17.5.2002, a cut-off date which we have opined to be arbitrary, contains a beneficial policy of adjusting the members of the force who suffer from colour blindness, to be made to perform such duties where colour blindness is not a handicap. Being a beneficial policy, it needs to be construed liberally and as long as the language thereof permits, in the widest amplitude. The same guiding beneficial principles, we see no reason, should not apply to all the writ petitioners. In this context we seek to highlight a very anomalous situation created by the respondents evidenced by the case of Sudesh Kumar, the writ petitioner of WP(C) No.5077/2008 who joined service as a Constable (General Duty) under CISF on 19.4.2003 and was not detected with colour blindness then nor at any subsequent medical examination, but is being denied the fruits of promotion as a Sub-Inspector (Executive) notwithstanding he having successfully cleared the written and physical examination as also the interview on the ground that on 5.7.2007 he was detected with a defective colour vision. What is the exact extent of the defective colour vision has not been brought out. But what is unexplainable is that as per CISF he can continue to work as a Constable (General Duty), but not earn a promotion as a Sub-Inspector (Executive). We just do not see any rationale in the action taken. We also find absurdity in the stand taken by the CISF of not convening a Review Medical Board on the ground of the deficiency in the language of the certificates obtained by him from civil hospitals. Law is clear. Unless the language of a document is statutorily prescribed, as long as there is substantial compliance with the substance of an issue, the language of a document is immaterial. We find no justification for CISF not to subject him to a Review Medical Board, but in the final view which we have taken, there may be no requirement of so doing.
42. Before bringing the curtains formally down, we conclude on the issue by recording a finding that all the writ petitioners would be entitled to the benefit of the policy decision dated 17.5.2002 and we strike down the cut-off date 17.5.2002 prescribed in the policy circular dated 29.10.2008 and as clarified by the policy circular dated 11.3.2011 by directing in harmony with the decision of the Supreme Court in the decision reported as AIR 1983 SC 130 D.S.Nakara vs. UOI that this would mean the benefit of the policy circular to be extended to all force personnel of the Central Para-Military Forces who have been inducted in service at any point of time due to the negligence of the forces in not properly conducting medical examination and not detecting colour blindness in said persons.
45. WP(C) Nos.589/2010, 1668/2011 and 1681/2011 stand disposed of prohibiting the respective respondents in the said writ petitions to invalidate the writ petitioners thereof from service on account of colour blindness. They would be permitted to serve till they attain the age of superannuation, subject of course to their being otherwise entitled to do so (ignoring colour blindness). For the benefit of the respondents, we may only observe that qua some of them only partial colour blindness has been detected and the exact contour thereof has not been ascertained. We would expect the respondents to obtain better clinical evaluatory advice qua them and seek specific opinion from Ophthalmologist qua the exact span of disability to ascertain jobs which can be performed by them and needless to state if the colour blindness suffered by them does not impair night vision, why not assign them night duties. We may highlight that we have come across a large number of writ petitions where issues raised by jawans is of continuously subjecting them to night duties and they allege favouritism qua those who have been assigned more frequent day duties. If we have a reservoir of jawans who have some colour blind disability during normal day time, would it not be advisable to harness the disability as a pool of asset and use these jawans for night duties, for which we would expect these jawans to volunteer to do so; in any case commensurate with the disability of the jawan, there would be rationale in the policy decision taken to assign night duties to these jawans. Similarly, such Force Personnel who may be disabled on account of colour blindness, but would have the added advantage of spotting camouflage, why not utilize them as assets by attaching them with platoons on combing operations so that they would give the extra cutting edge to the platoon by being able to spot camouflaged camps set up by insurgents or terrorists."
The consequences connected to 'color blindness' are specifically encapsulated at Paragraph 45 wherein the Hon'ble Division Bench at Delhi prohibited the respective respondents from invalidating the services of the petitioners on the ground of their 'color blindness' and directed them to be continued in service under the respondents in appropriate capacities commensurate to their disability till the age of superannuation.
Mr. Dhar prays for a parity of treatment connected to the relief granted In Re: Sudesh Kumar (supra) in so far as it applies to the status of the present petitioner.
Arguing for the respondents/BSF, Mr. Partha Sarathi Biswas, Ld. Counsel, strongly relies upon the affidavit-in-opposition and supplementary affidavit filed on behalf of his client.
Referring to the pleadings on record in the supplementary affidavit and the affidavit-in-opposition, Mr. Biswas argues that the petitioner was found to be specifically unsuitable for duties as a Constable. Relying on the instructions dated 28th May, 2013, the BSF could not remove from service any of its personnel recruited prior to 27th of February, 2013. However, any person recruited after 27th of February, 2013, if found 'color blind', would automatically stand boarded out from service.
Mr. Biswas submits that the old policy guidelines dated 18th May, 2012 which have been struck down In Re: Sudesh Kumar (supra), have been replaced by new policy guidelines connected to 'color blindness' which are dated 20th October, 2014. The new policy guidelines dated 20th October, 2014 read as follows:-
"Apropos the said Order of MHA, the Hon'ble High Court of Delhi vide Order dated 28.02.2013 in 24 WPs clubbed together directing the MHA/CAPFs that a Force person suffering from colour blindness should also be given promotion if otherwise found fit. MHA has filed an SLP No. CC-21152-21175/2013 against the Hon'ble High Court's order dated 28.02.2013. the matter is subjudice at present. Subsequently, on the basis of recommendation of all CAPFs & AR and ADG(Med), CAPFs, NSG & AR, the matter regarding re-introduction of paras 5 & 6 and the paras relevant to colour blindness of the New Policy Guidelines on visual Standards has been reviewed in this Ministry. It has been decided to re-introduce paras 5 & 6 and other paras relevant to colour blindness of the New Policy guidelines on Visual Standard dated 18.05.2012, which were withdrawn vide above said order dated 27.02.2013, with immediate effect."
Mr. Biswas points out that Paragraphs 5 and 6 relating to the policy guidelines on visual standards as contained in the policy of 18th of May, 2012 have been affirmed in the policy of 20th October, 2014 and the said Paragraphs 5 and 6 read as follows:-
"5. The board so constituted recommended that with the newer research & developments, a more scientific system to define colour vision needs to be adopted which is defined in terms of CP (Colour Perception) as CP I, CP II, CP III, CP IV & CP V. Except in rare cases of specific injury and disease, the CP (Colour Perception) of a person does not alter during life time. Colour blindness is usually congenital which is affecting both the eyes and functions of the eyes are otherwise normal. Acquired colour blindness is often found in the diseases of retina and optic nerve, and the commonest cause is toxic retinoneuropathy CP standards are based on Martin Lantern (ML) Test and Ishihara Book Test or Tokyo Medical College Book test is only for ground duties. It has been further detailed that:
a. There are two important tests which are being practiced in Indian context for the standardization of Colour Perception (CP) or Color Vision.
b. The commonest is Ishihara Book Test which is sufficient to confirm CP II, CP III, CP IV and CP V. This book has total 38 plates having single and double digit formats with both qualitative and quantitative tests. Plates from 1-25 are sufficient to confirm above mentioned CPgradings in literate persons. For children and illiterates, different Ishihara test books/charts/plates are available.
c. Another similar test with the name Tokyo Medical College Book test is also available in the international scenario which is equally confirmatory for CP II to CP V. this book test has only 13 plates in double digit format with both qualitative and quantitative test plates. But this test is not in practice in Indian context. d. These plates from both the test books, are to be held at a distance of 75 cms (66 to 75cms) or one arm length. The test should be carried out in ordinary day light and not directly in the sun. Preferably the day light should come through a window at 45 degree angle on the plate. Each plate should be shown for 2-3 seconds for quantitative test and not more than 8 seconds in exceptional cases.
But no time limit is set for qualitative test. The answers given are go be noted. Due to unavoidable reasons, if color vision or colour perception test is done at night or when there is no day light, than a day light fluorescent lamp or table light with daylight filter must be used.
e. In the interest of uniformity in CAPFs & ARs, it is recommended to use the original Ishihara Test Book only. Furthermore, once the plates starts fading, the new book is to be used. f. Martin Lantern Test: This is the most sensitive test required mainly to confirm CP I grading for the assessment of flying duties e.g. in the case of Pilots. There are other lanterns also available for the test in international scenario. But in the Indian context this Martin Lantern test is in practice. This test is performed in perfectly darkened room and all colors are shown through small apertures of Martin's Lantern at a distance of 6 mtrs for CP I provided the person is dark adopted for 20 minutes before the test is carried out.
g. Persons who fail to be placed in CPI are to be graded in CP II or CP IV by making them sit at 1.5 meter distance from Mertin Lantern and will be asked to name colors, presented singly with the large aperture. When the person recognizes signal red, signal green and white perfectly and passes the test; the person will be assessed CP III, if fails than CP IV.
h. It is recommended that in Indian scenario Martin Lantern test should be conducted throughout CAPFs & ARs in the best interest of uniformly in the system.
6. The Board has further described the Colour perception (CP) standards as under:
a. CPI:CP I is Colour Perception Normal High.
Correct answering by the candidate, without hesitation, including the series of colours shown with the pair of small apertures during Martin Lantern Test, will be interpreted as CP I. In addition, the person, candidate must also pass Ishihara/TMC Book Test by correctly reading the numbers on plates from plates 1-17 and 22-
25. No number should be read on plates 18-21 as they do not have any numbers. CP I standard is required for flying duties e.g. Pilots.
b. CPII:CP II is Colour Perception Normal.
This is the highest CP standard for ground duty jobs The person/candidate should read correctly the numbers on all the plates from plates 1-17 and 22-25 of Ishihara Test Book. No numbers should read on plates 18-21 as these plates do not have any numbers. In Tokyo Medical College Test Book, the person/candidate in CP II will be able to read correctly the screening plates I (1-5) and II 91 and 2) and qualitative plates. This standard is permissible for all the jobs in CAPFs, NSG&ARs except the jobs like Pilots/flyers.
c. CP III: CP III is Colour Perception Defective Safe. Person/candidate may misread plates/some of the plates from Ishihara Test Book plates 1-17 and 18-21. But plates 22-25 of the same book are read correctly (one figure is clearer than the other). in Tokyo Medical College Test Book, the person/candidate may misread screening plates/some of the plates from I (1-5) and II (1-
2), but qualitative plates (1-3) are read correctly. This standard is permissible for all the jobs for ORs, SOs and GOs except for the drivers, Pilots and flyers jobs in CAPFs & ARs. d. CP IV: CP IV is Colour Perception Defective unsafe. In Ishihara Test Book, the person/candidate is unable to read even plates 2-9 and 22-25. In Tokyo Medical College Test Book, the person/candidate is unable to read screening plates I and II as well as qualitative plates (1-3). Person/candidate will be able to recognize red and green colours. Appropriate permissible for various tradesman categories of jobs in CAPFs & ARs. e. CP V: CP v is Colour Perception Defective Absolute or Colour Blind.
Candidate/personnel who fail to reach the minimum standard of Colour Perception by any method of prescribed tests, are to be graded as CP V. The one who can only recognize grey and white colour is in true sense Colour Blind. Appropriate trade testing (normally using a wire board and stationary tabs of different colours) will discriminate between CP IV and CP V." Mr. Biswas further argues that the medical standards connected to vision are required to be followed while assessing the continuation in service of the writ petitioner who is recruited to perform the active duties of a Constable.
Having heard the parties and considering the materials placed, this Court arrives at the following findings:-
A) That admittedly the induction of personnel suffering from 'color blindness' or, defective vision amounting to disqualification from continuing in service has been the subject matter of intense introspection at the administrative level and, thereafter exhaustive judicial scrutiny on a case-to-case basis. B) That the judgment In Re: Sudesh Kumar (supra) had the occasion to opine on the policy circulars related to above noted disabilities as issued up to 11th March, 2011 by the Ministry of Home Affairs.
C) That following the pronouncement In Re: Sudesh Kumar (supra), the MHA revised the policy on visual standards in paramilitary forces on the 18th of May, 2012. The recommendations at Paragraphs 5 and 6 of the policy circular of the 18th of May, 2012 were reintroduced vide the fresh policy guidelines of 20th October, 2014 albeit, with the rider that the guidelines of 20th October, 2014 shall apply with prospective effect and, instructions connected to the policy of 27th February, 2013 shall continue to apply until further orders.
D) Now, in the backdrop of the above discussion, the policy of 27th February, 2013 requires to be reproduced in full:-
"The standing policy of the Government is that only persons who are fully fit in all respects i.e. in SHAPE-I are to recruited to the CAPFs and AR. It is and has always been the standing policy of the Government that if any member of the CAPFs & AR is declared permanently unfit while in service, he is boarded out from service. The reasons for this are very clear. The personnel of the CAPFs and AR are issued with lethal weapons and are expected to use lethal force against insurgents and terrorists. I f any of the personnel of the CAPFs and AR is not fully fit, he will either not be able to protect himself or his colleagues in a battle with insurgents/terrorist groups or he will run the risk of killing innocent people especially if his eyesight is weak and he cannot distinguish between uniforms, etc. The policy of boarding out personnel who had been declared unfit applies to all types of unfitness whether it be unfitness in physical parameters or in any other SHAPE component and that is how it should have remained. However, in the years 1991,, 1997, 2002, 2008,2011 and 2012, various orders were issued saying that those who had been recruited prior to a particular date and were found to be colour blind at a later stage, would not be boarded out while those recruited after that would be boarded out. This marked a departure/an exception from the standing policy and departure exception was not in the public interest- these departures were also bad in law because no policy could apply retrospectively. For the above reasons, it has been decided as follows :-
(i) The circulars/orders/instructions issued by the Ministry of Home Affairs or by any of the Central Armed Police Force (CAPF) & Assam Riffle (AR) vide communication No. R.II-
31/91-E-II dated 16.5.1991, No. R.II-31/97-E-II dated 12.6.1997, No. I-45020/52/2001- Pers-II dated 17.5.2002, No. I- 45024/1/2008-Pers-II dated 29.10.2008, No.I-45024/1/2008- Pers-II Dated 11.3.2011 and No.I-45024/1/2008-Pers-II dated 08.12.2008-Pers-II dated 08.12.2011,are withdrawn with immediate effect. Further, any reference to the colour blindness especially Para-5 & 6, including those for the gazetted officers contained in New Visual Standard Policy No.I-45024/1/2008- Pers-II dated 18.5.2012 also stands withdrawn with immediate effect :
(ii) Any person who has defective vision or is colour blind will not be recruited in future. If any person is wrongly recruited despite having defect in vision or despite being colour blind, he will be promptly removed from service as soon as the defect is noticed. The Doctor who declared him fit will be proceeded against in Departmental Proceedings for major penalty. The person who was wrongly recruited will not be allowed to continue to take advantage of this wrong act, and the Govt. cannot be bound by the wrong act of any of its functionaries.
(iii) It is however, clarified that the present directions will only apply prospectively. Those personnel recruited earlier and thereafter found to be colour blind will not be boarded out on account of colour blindness. But, it is reiterated that, any person recruited herein after, if found colour blind even after recruitment shall promptly be boarded out of service. Keeping in view the directions of the Hon'ble High Court and in the public interest, the services of the colour blind personnel recruited prior to 18.05.2012, would be utilized for the jobs where public safety issues are not involved. Some of the posts/cadres identified for such personnel by CAPFs are enlisted in the Annexure-I.
(iv) As the Colour Blindness is a congenital disease, to obviate the induction of colour blind personnel in CAPFs & Assam Rifles by error or by manipulation in any of the future recruitments, an undertaking shall be taken from all the selected candidates at the time of joining that if at any stage of their service career, if they are found to be colour blind, they will be boarded out as per the SHAPE Policy in vogue.
This issues with the approval of Union Home Secretary." E) The petitioner was recruited in April, 2013. Therefore, on a bare perusal of the policy of 20th October, 2014 incorporating the recommendations at Paragraphs 5 and 6 of the policy of 18th May, 2012, the fact emerges that the petitioner, as on the date of his appointment, stood governed by the policy of 27th February, 2013.
F) Admittedly, Clause (ii) of the policy of 27th February, 2013 is merciless in its application to 'color blind' or defective vision personnel. However, recruitments prior to 18th May, 2012 are saved.
G) At this stage this Court must notice the continuous policy revisions at the administrative level attempting to apply the judicial reviews on the issue of 'color blindness'/defective vision by seeking to reconcile the needs of the forces with the civil consequences on the employment potential of individuals already recruited.
Therefore, this Court must also notice the conscience grappling efforts by the policy makers to make the prohibition/exclusion arising out of a congenital disease to be made prospective, so that the direct damage caused to the forces at the threshold of the recruitment process either by way of deliberate unethical or, substandard or, downright ignorant medical filtration procedure is minimised.
H) Now, without dilating on the lack of legal validity of the exercise providing for repeated cut-off dates to maintain a posture of integrity at the induction level, this Court must base its conclusions on the facts of the present case. Undoubtedly, 'color blindness' or 'defective vision', which is not akin to blindness in a visible form, is a disease which cannot be attributed to the wilful knowledge and, therefore suppression by the petitioner having regard to his status in life read with the general level of his recruitment may not be inferred. In other words, the vision tests which may apply to a fighter pilot, who must know what is required of him, apply in much diluted form to the self-knowledge of the petitioner submitting for recruitment as Constable.
I) Accordingly, the lack of perception of the threshold qualification relating to 'color blindness'/defective vision attributable to the petitioner, casts an opposite burden of high responsibility on the employer/paramilitary forces to publicise and insist on the rigid standards at the threshold itself. In the event the reasons for disqualification were enforced qua the petitioner at the threshold, such action could not have been stigmatic. However, after being recruited in service, the prospect of being 'boarded out' and, again having regard to the particular station in life of the writ petitioner, has the effect of casting a deep shadow of stigma to his future employability. The 'color blindness' shall stalk the petitioner' prospect, at his age, in his search for employment at the level commensurate to his abilities.
With reference to the above referred point the observations In Re: State of Uttar Pradesh vs. Madan Mohan Nagar reported in AIR 1967 SC 1260 at Paragraphs 1 to 7 can be usefully referred to:-
"1. The respondent, Shri Madan Mohan Nagar, filed a Writ Petition in the High Court of Judicature at Allahabad for quashing the order of compulsory retirement dated July 28, 1960, passed against him. The order of compulsory retirement was in the following terms:
"I am directed to say that the Governor has been pleased to order in the public interest under Article 465-A and Note (1) thereof of the Civil Service Regulations, the compulsory retirement with effect from September, 1, 1960 of Shri Madan Mohan Nagar, Director, State Museum Lucknow who completed 52 years of age on July 1, 1960, and 28 years and 3 months of qualifying service on 31st May, 1960, as he has outlived his utility."
2. The learned Single Judge who heard the Petition quashed the order on the ground that "Rule 465 of the Civil Service Regulations as amended by the U.P. Government while providing a criterion for the guidance of Government when inflicting compulsory retirement on a government servant nevertheless violates the guarantee of equality of opportunity in matters relating to employment under Article 6(1)" of the Constitution. He further held that the order inflicting compulsory retirement on the petitioner was invalid because it was passed in violation of the principles of natural justice.
3. The state appealed and the Division Bench on appeal upheld the order passed by the learned Single Judge on the ground that the order of compulsory retirement was passed in violation of the provisions of Article 311 of the Constitution and was, therefore, ultra vires. The State having obtained special leave, the appeal is now before us.
4. Before we deal with the arguments of the learned counsel for the appellant, we may give a few facts and set out Article 465-A and Note (1) thereof of the Civil Service Regulation, as amended by the Government of Uttar Pradesh. The facts, in brief, are that the respondent was first appointed in 1931 on one year's probation to the post of Custodian, Sarnath Museum, Banaras, under the Archaeological Department of the Government of India. In 1939, he was posted to Mathura Museum as Curator, and he was appointed substantively to this post from January 5, 1941. Later, he was appointed on the recommendation of the Provincial Public Service Commission as Curator of the State Museum, Lucknow, on a scale of pay Rs 250 to Rs 850. The post of Curator was upgraded to the post of Director, State Museum, Lucknow, in the U.P. Educational Service, Senior Scale, and the respondent was appointed to it. Thereafter the respondent continued in service as Director of State Museum, Lucknow, until he was compulsorily retired by the order of the Government, dated July 28, 1960, which has already been set out above. It is common ground that no enquiry as contemplated by Article 311(2) was held.
5. The relevant part of Article 465-A of the Civil Service Regulation is in the following terms:
"Government retains the right to retire any government servant after he has completed 25 years qualifying service without giving any reasons, and no claim to special compensation on this account shall be entertained. This right shall only be exercised by Government in the Administrative Department when it is in the public interest to dispense with the services of government servant who has outlived his usefulness."
6. The learned Solicitor-General, who appears on behalf of the appellant has urged that the fact that the impugned order of compulsory retirement states the reason for compulsory retirement, namely, that the respondent had outlived his utility, does not lead to the conclusion that the order amounts to dismissal or removal because in every case of compulsory retirement it is implied that the person who is compulsorily retired had outlived his usefulness. He refers to Shyam Lal v. State of Uttar Pradesh [(1955) I SCR 26] and says that in that case it was implied that Shyam Lal was not fit to be retained in service. We are unable to read Shyam Lal case [(1955) I SCR 26] in that manner because the Court expressly said at p. 41, as follows:
"It is true that this power of compulsory retirement may be used when the authority exercising this power cannot substantiate the misconduct which may be the real cause for taking the action but what is important to note is that the direction in the last sentence in Note 1 to Article 465-A make it abundantly clear that an imputation or charge is not in terms made a condition for the exercise of the power. In other words, a compulsory retirement has no stigma or implication of misbehaviour or incapacity."
In the present case there is not only no question of implication but a clear statement appears on the face of the order that the respondent had outlived his utility, in other words, it is stated that he was incapacitated from holding the post of Director, State Museum, Lucknow. The order clearly attaches a stigma to him and any person who reads the order would immediately consider that there is something wrong with him or his capacity to work.
In our opinion this case is covered by the principle applied in Jagdish Mitter v. Union of India [AIR (1964) SC 449] . It is true that that was a case of a temporary servant, but that does not matter. The order in that case reads as follows:
"Shri Jagdish Mitter, a temporary 2nd Division Clerk of this office having been found undesirable to be retained in Government service is hereby served with a month's notice of discharge with effect from November 1, 1949."
Gajendragadkar, J., as he then was, speaking for the Court, said;
"No doubt the order purports to be one of discharge and as such can be referred to the power of the authority to terminate the temporary appointment with one month's notice. But it seems to us that when the order refers to the fact that the appellant was found undesirable to be retianed in government service, it expressly casts a stigma on the appellant and in that sense must be held to be an order of dismissal and not a mere order of discharge."
Later, he observed:
"It seems that anyone who reads the order in a reasonable way, would naturally conclude that the appellant was found to be undesirable, and that must necessarily import an element of punishment which is the basis of the order and is its integral part. When an authority wants to terminate the services of a temporary servant, it can pass a simple order of discharge without casting any aspersion against the temporary servant or attaching any stigma to his character. As soon as it is shown that the order purports to cast in aspersion on the temporary servant, it would be idle to suggest that the order is a simple order of discharge. The test in such cases must be: does the order cast aspersion or attach stigma to the officer when it purports to discharge him? If the answer to this question is in the affirmative, then notwithstanding the form of the order, the termination of service must be held, in substance, to amount to dismissal."
7. It seems to us that the same test must apply in the case of compulsory retirement, namely: does the order of compulsory retirement cast an aspersion or attach a stigma to the officer when it purports to retire him compulsorily? In the present case there is no doubt that the order does cast a stigma on the respondent."
J) Next, answering the point touched by Mr. Dhar that the petitioner is entitled to protection under the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (for short the PWD Act), this Court is satisfied that the general standards for recruitment of Constables for active duty in the paramilitary forces restrains this Court from applying any 'in rem' jurisdiction while only addressing the facts of this case.
K) Addressing another limb of the submissions of Mr. Biswas that the petitioner claims not to be 'color blind' in his pleadings on affidavit, this Court is persuaded to take the view that the petitioner was influenced to make such assertion on the basis of the general nature of the medical certificates issued by doctors who did not have the occasion to apply the tests as prescribed in the policy circulars as discussed above.
In the backdrop of the above discussion, the Memo impugned dated 19th May, 2016 stands permanently stayed.
The respondent No.3 is directed to revisit the claim of the petitioner in the light of the beneficial provisions for utilization of his services in jobs where public safety issues are not involved. It is expected that the respondent No.3 shall complete the above directed exercise within a period of six weeks from the date of communication of this order.
The petitioner shall be entitled to continuity in service and regularisation of his benefits in accordance with law.
Registry to also communicate this order to the Respondent No.3.
WP 14868(W) of 2016 stands accordingly disposed of. Urgent Xerox certified photocopies of this judgment, if applied for, be given to the parties upon compliance of all requisite formalities.
(Subrata Talukdar, J.) Later Mr. Partha Sarathi Biswas, Ld. Counsel for the petitioner prays for stay of operation of this judgment and order. Prayer for stay is considered and rejected.
(Subrata Talukdar, J.)