Punjab-Haryana High Court
2009 (O&M) vs Satish Kumar on 2 August, 2011
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.
Date of Decision: August 2, 2011
1. LPA No. 882 of 2009
2009 (O&M)
State of Haryana and others
...Appellants
Versus
Satish Kumar
...Respondent
2. LPA No. 1320 of 200
2009 (O&M)
State of Haryana and others
...Appellants
Versus
Chander Pal
...Respondent
CORAM: HON'BLE MR
MR. JUSTICE M.M. KUMAR
HON'BLE MR
MR. JUSTICE GURDEV SINGH
Present: Mr. Aman Chaudhary, Addl. AG, Haryana,
for the appellant(s).
Mr. D.S. Patwalia, Advocate,
for the respondent (in LPA No. 882 of 2009).
Mr. Jaiveer Yadav, Advocate,
for the respondent (in LPA No. 1320 of 2009).
1. To be referred to the Reporters or not?
2. Whether the judgment should be reported in the Digest?
M.M. KUMAR,
KUMAR, J.
1. With the consent of the parties these matters are taken on board for hearing and final disposal.
2. This judgment shall dispose of LPA Nos. 882 and 1320 of 2009, filed by the State of Haryana along with its officers under Clause X of the Letters Patent against orders dated 29.4.2009 and 11.9.2009 rendered by the learned Single Judge(s) allowing CWP LPA Nos. 882 & 1320 of 2009 (O&M) 2 Nos. 13338 of 2008 and 1661 of 2008 respectively filed by the petitioner-respondent(s). In CWP No. 13338 of 2008, learned Single Judge has primarily placed reliance on the judgment of Hon'ble the Supreme Court rendered in the case of Union of India v. Satya Prakash Vasishs Vasishst, 1994 Suppl. (2) SCC 52, 52 in accepting the prayer made by the writ petitioner-respondent that despite the fact that he is a colour blind, he would be entitled to be appointed as a Constable in the appellant department. In the other case i.e. CWP No. 1661 of 2008, learned Single Judge has allowed the writ petition in terms of the order dated 29.4.2009 rendered in CWP No. 13338 of 2008.
3. There is no conflict between the parties with regard to the factual position that in both the cases posts of Constables were advertised and the petitioner-respondent(s) were selected by the Selection Board. They were directed to undergo medical examination in which they were found colour blind and, thus, declared as medically unfit. On this score they were denied appointment on the post of Constable.
4. We have heard learned counsel for the parties at length and perused the paper books with their able assistance. It seems that the learned Single Judge has proceeded on the assumption that the writ petitioner-respondent had applied for appointment to the post of Executive Constable, whereas the factual position is otherwise. It is the case of the writ petitioner-respondent(s) that applications were invited for filling up the posts of Constables. There is nothing inferable from the record that the advertised posts were meant for Executive Constable. Accordingly, the reliance of LPA Nos. 882 & 1320 of 2009 (O&M) 3 the learned Single Judge on the judgment of Hon'ble the Supreme Court rendered in the case of Satya Parkash Vashishst (supra) is wholly misplaced. A similar controversy came up for consideration before a Division Bench of this Court in the case of Neeraj and others v. Union of India and others (CWP No. 19339 of 2010, decided decided on 28.10.2010), 28.10.2010) wherein the Division Bench has considered the issue whether a person suffering from colour blindness could be appointed to the post of a Constable. The Division Bench distinguished the judgment of Hon'ble the Supreme Court in the case of Satya Parkash Vashishst (supra) by observing as under:-
" The judgment 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 find any merit in the contention based on the judgment rendered in the case of Satya Parkash Vashishst (supra)."
5. Similar view has been followed and applied by the Letters Patent Bench of this Court in the case of State of Haryana LPA Nos. 882 & 1320 of 2009 (O&M) 4 and others v. Nasib (LPA No. 1191 of 2010, decided on 8.2.2011).
8.2.2011) In that case the Letters Patent Bench further went on to observe as under:
" ......It does not need much imagination to visualize 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 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 observations made by Hon'ble the Supreme Court in the case of Union of India v. Devendra Kumar Pant and others, 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. ......."LPA Nos. 882 & 1320 of 2009 (O&M) 5
6. It is relevant to notice here that Appendix 12.16(a) of the Punjab Police Rules, 1934 (as applicable to the State of Haryana) [for brevity, 'the Rules'] prescribes the points to be observed by the Medical Officers in examining police recruits. The said provision mandates as under:
"APPENDIX NO. 12.16 Points to be observed by Medical Officers in examining Police recruits.
Medical officers will satisfy themselves regarding each candidate on the following points in the order. If a disqualifying defect is noticed, register (form No. 12.13) will be completed and the recruit rejected without further examinations;
(a) that the vision is upto the following standard:
The recruit must be able to read the Test Dot Card at a distance of ten feet without any mistake, with each eye without spectacles. Failure to do this renders him unfit. Each eye must have a full field of vision as tested by hand movements. Squint or any other morbid condition of the eyes or eye lids liable to the risk of aggravation or recurrence will render him unfit. For those who can read English the test should be the Snellen's type and the standard -
Right eye... V = 6/6 JI) without glasses Left eye... V = 6/6 JI) LPA Nos. 882 & 1320 of 2009 (O&M) 6 For illiterate the split rink test as used in the North- Western Railways should be employed. This corresponds to the Snellen's type."
7. A bare perusal of Appendix No. 12.16(a) makes it clear that the police recruit must be able to read the 'Test Dot Card'' at a distance of ten feet without any mistake with each eye without spectacles and if he fails it would render him unfit. On 21.9.2010, when LPA No. 882 of 2009 came up for consideration before Hon'lbe Ist Division Bench, a pointed query was raised and the appellant State was required to file a supplementary affidavit explaining the import of the 'Dot Card Test' as stated in Appendix No. 12.16(a) of the Rules.
8. In the supplementary affidavit, dated 12.10.2010, filed by the Superintendent of Police, Kaithal, it has been explained that the 'Dot Card Test' is a test in which the eyes of a person is tested to examine whether he is colour blind or not. For this purpose, cards known as 'Ishihara Cards' are shown to him. These cards contain dots of various colours in which some figure is prescribed. The person has to tell the figure i.e. numbers or alphabets on the card that is submerged in the other colour dots. If a person is not able to tell the figure correctly he is declared as a colour blind person. It has further been pointed out that in the police department a Constable is deployed for different kinds of duties like drivers and traffic duties. They are also deputed to perform the duty of Pilot and Escort. Thus, a Constable with colour blindness could cause danger to the life of public by giving or noticing wrong coloured signal. Therefore, proper colour vision is a pre-requisite LPA Nos. 882 & 1320 of 2009 (O&M) 7 for such type of duties. Not only this, after a Constable is promoted to further ranks, he is required to perform the duty as an Investigating Officer, which also require proper colour vision to inspect the spots and collection of the evidence. In other words, it has been emphasised that the 'Dot Card Test' is an essential test and a person who is not able to pass this test could not be offered appointment as a Constable in the police force.
9. Once the aforesaid position on facts and law is clear, then the view taken by the learned Single Judge cannot be accepted. Accordingly, these appeals are allowed and the orders dated 29.4.2009 and 11.9.2009 passed in CWP Nos. 13338 and 1661 of 2008 respectively are set aside. Both the writ petitions would stand dismissed.
10. A photocopy of this judgment be placed on the file of LPA No. 1320 of 2009.
(M.M. KUMAR) JUDGE (GURDEV SINGH) SINGH) August 2, 2, 2011 JUDGE JUDGE PKapoor