Allahabad High Court
Manish Kumar Singh vs Union Of India And Anr. on 29 January, 2020
Author: Irshad Ali
Bench: Irshad Ali
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 40 Case :- WRIT - A No. - 39295 of 2016 Petitioner :- Manish Kumar Singh Respondent :- Union Of India And Anr. Counsel for Petitioner :- Vijay Kumar Singh,Satyawan Shahi Counsel for Respondent :- Vivek Singh,Rajnish Kumar Rai Hon'ble Irshad Ali,J.
Heard learned counsel for the petitioner and Sri Rajnish Kumar Rai, learned counsel for the respondents.
By means of the present writ petition, the petitioner has assailed the order dated 11.6.2016. In pursuance to the order passed by this Court, the claim that whether he is fit to rejoin on the post of constable has been decided by respondent no.2.
Factual matrix of the case is that the petitioner was initially appointed on the post of Constable in Railway Protection Force on 25.7.2006 in North Eastern Railway, Gorakhpur and since then, he is continuously discharging his duties with more sincerity, honestly and with full devotion. All of a sudden on 31.01.2009, unfortunately an accident took place wherein the petitioner was seriously injured. On 6.2.2009 the petitioner was discharged from the BRD Medical College, Gorakhpur. Doctors of BRD Medical College, Gorakhpur pointed out that there is vision problem in the eyes of the petitioner and the petitioner was referred the petitioner to the Eye Department on 21.02.2009 and on the same date i.e. 21.02.2009 Eye Department submitted its report that the blood was found in the eyes of the petitioner.
On 15.2.2010, the Periodical Medication Examination (PME) was got done by the Department and in the said examination, it was found that the petitioner has problem of colour deficiency due to which the petitioner was referred to the Eye Specialist in Railway Hospital. Petitioner submitted a detailed representation before the respondent no.2 regarding his grievances vide representation dated 20.01.2010 before respondent no.2. On the said representation, the respondent no.2 has passed recommendation/ order on 22.01.2010 regarding medical treatment of the petitioner. Since 2010, due to the aforesaid circumstances, the petitioner is discharging his duties as official Clerk till date. On 13.3.2010 a report of Eye Specialist Doctor was submitted, whereby the petitioner was further directed to check-up by the Specialist Doctor of AIIMS.
On 1.5.2010, the check-up of the petitioner by the said Medical Board was done; it was found that the petitioner has distinguished red and green colour correctly; and they came up to the conclusion that the petitioner has lower grade of colour perception. In spite of specific report of Doctor which is being narrated in detail and also the fact that the petitioner is facing hardship and inconvenience, even then order dated 24.03.2011 has been passed against the petitioner. Against the order dated 24.3.2011, the petitioner preferred a Civil Misc. Writ Petition No.34945 of 2011 (Manish Kumar Singh v. Union of India and others) which was disposed of by this Court by the certain directions.
On 16.02.2015, E.G. Lantern Test was conducted and it was ultimately found that the petitioner has colour deficiency and in this regard, the petitioner also obtained RTI regarding the aforesaid E.G. Lantern Test dated 16.02.2015 conducted by the Doctor of AIIMS, on which reply of the RTI of the petitioner has been given mentioning that the test conducted of the petitioner on 16.02.2015 shows defective colour perception which was given by the AIIMS on 19.03.2015. The petitioner sent a detailed representation along with certified copy of the order passed by this Court and the aforesaid reports to respondent no.2 for consideration which has been rejected vide the order impugned.
Learned counsel for the petitioner submits that after the appointment on the post of Constable, he met with an accident and on the ground of colour blindness, he was posted on the post of Clerk on 6.2.2010 and since then, he is continuously discharging his duty on the post of Clerk in the respondent-Department. On the basis of test conducted by the respondents, it was informed to the petitioner that his colour blindness is under the category of B1 and he is fit to continue on the post of Constable and, therefore, he was directed to discharge his duty on the post of Constable. He next submits that the petitioner filed Writ Petition No.34945 of 2011 before this Court wherein the following direction was issued by this Court:
"Considering the facts and circumstances of the case, I dispose of this writ petition with direction to the opposite party No.1/ Chief Security Commissioner (Railway), Northern East Railway, Gorakhpur to consider the claim of the petitioner in the light of the provisions contained under Paragraph No.85.4 of Railway Protection Force Rules, 1987 preferably within a period of three months from the date of production of a certified copy of this order."
Learned counsel for the petitioner next submits that under direction of this Court to consider the claim of the petitioner, the impugned order dated 11.6.2016 has been passed whereby claim set-up by the petitioner has been rejected which has been assailed in the present writ petition. Next submission of learned counsel for the petitioner is that this Court after considering the entire material on record and after hearing the parties, passed a detailed order on 24.8.2018 whereby with the consent of the parties, direction was issued to the petitioner to appear before the Head of Ophthalmology, SGPGI, Lucknow with further direction to the Head of Ophthalmology to examine the petitioner and submit his own report by Panel of Doctors headed by him within two months.
Learned counsel next submits that in compliance of the order passed by this Court on 24.8.2016, the petitioner was examined by the Doctors of S.G.P.G.I. and a report dated 8.9.2016 was given to the petitioner that he is suffering from Red-Green colour deficiency in both the eyes. The report has been brought on record as Annexure RA2 to the rejoinder affidavit. There are several other reports from different Medical Colleges of India which are brought on record as Annexure- RA 3 to 7.
Learned counsel next submits that the petitioner is discharging his duty on the post of Constable since 2016. Whether he is fit to continue on the post of Constable, no-where consideration was made by the respondent while passing the impugned order. Learned counsel next submits that this Court only to consider that whether he can hold the post of Constable in Railway Protection Force or not has directed examination from S.G.P.G.I., therefore non-consideration of this report shall affect the placement of the petitioner on the post of Constable and he cannot be able to discharge duty in proper manner on the said post.
On the other hand, learned counsel for the respondents submits that the Doctors appointed in S.G.P.G.I. to examine the petitioner are not known about the category of blindness, therefore, they cannot certify that whether deficiency which was found in both the eyes of the petitioner comes under the category of B1 or not. He next submits that the claim setup by the petitioner was duly considered under the impugned order and reasoned and speaking order has been passed holding that the petitioner being come under the B1 category, can discharge duty on the post of Constable in Railway Protection Force.
On a pointed query made to learned counsel for the respondents that whether after lapse of long spell of time on the post of Clerk, there was consideration by the respondents that whether he is physically fit was not considered, he submits that the order which is impugned in the writ petition has considered all the aspects of the matter and thereafter, the decision was taken that the petitioner is fit to discharge his duty on the post of Constable.
Having heard the rival submissions of learned counsel for the parties, I have perused the material on record as well as impugned order.
In regard to first submission of learned counsel for the petitioner that this Court, upon examination of the material on record, directed to the Head of Ophthalmology, SGPGI, Lucknow to conduct medical examination which was conducted and deficiency was found of colour blindness, the same has not been considered by the respondents that whether the petitioner is fit to continue on the post of Constable or not. Thus, his submission is that in case latest report is placed before the respondent no.2 for fresh consideration, justice would be met.
It is also evident that report of the Head of Ophthalmology, S.G.P.G.I., Lucknow was not before the respondent no.2 while passing the impugned order. It has been submitted in pursuance to the order passed by this Court, therefore, it will be appropriate in the interest of justice to remit the matter back for reconsideration before the respondents and to pass appropriate order in accordance with law.
In regard to second submission that the petitioner has discharged his duty on the post of Clerk for a long spell of time under the order of the respondents and upon medical examination, the order that he has been found to be fit to discharge his duty on the post of Constable, has been passed without physical examination of the petitioner, this aspect of the matter has not been considered by the respondent no.2 while passing the impugned order.
Page 92-A of the writ petition also reveals that this aspect has not been considered while passing the impugned order appointing the petitioner on the post of Constable. Thus, the impugned order suffers from apparent illegality and cannot be sustained.
In regard to last submission of learned counsel for the respondents that Head of Department of S.G.P.G.I. does not know in regard to category of blindness, therefore, they cannot examine that whether the petitioner is fit to hold the post of Constable or not, this Court has also considered the submission advanced in this regard and has recorded on the basis of report of the Ophthalmology, S.G.P.G.I., Lucknow that still matter requires reconsideration by the competent authority that whether the colour blindness report by the S.G.P.G.I. certifies the petitioner to be competent to hold the post of Constable or not. Thus, the submission advanced by the learned counsel for the respondents has duly been considered and observations in this regard has already been made in the above paragraphs.
In view of the entire facts and circumstances of the case, I am of the considered opinion that the impugned order dated 11.6.2016, on that score, cannot be sustained and is hereby set aside.
Accordingly, this writ petition succeeds and is hereby allowed with a direction to the respondent no.2 to reconsider the reports annexed as Annexure RA-2 to 7 to the rejoinder affidavit and pass appropriate, reasoned and speaking order taking into consideration the reports as well as physical fitness of the petitioner in accordance with law within a period of two months from the date of production of certified copy of this order.
Order Date :- 29.1.2020 GK Sinha