Gujarat High Court
Bharatbhai Madevbhai Raval vs Director General Of Police on 23 September, 2020
Author: Ashutosh J. Shastri
Bench: Ashutosh J. Shastri
C/SCA/4775/2020 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 4775 of 2020
With
R/SPECIAL CIVIL APPLICATION NO. 6815 of 2020
With
R/SPECIAL CIVIL APPLICATION NO. 8404 of 2020
With
R/SPECIAL CIVIL APPLICATION NO. 8448 of 2020
With
R/SPECIAL CIVIL APPLICATION NO. 8553 of 2020
With
R/SPECIAL CIVIL APPLICATION NO. 8593 of 2020
With
R/SPECIAL CIVIL APPLICATION NO. 9005 of 2020
With
R/SPECIAL CIVIL APPLICATION NO. 9197 of 2020
With
R/SPECIAL CIVIL APPLICATION NO. 9191 of 2020
With
R/SPECIAL CIVIL APPLICATION NO. 9804 of 2020
With
R/SPECIAL CIVIL APPLICATION NO. 9763 of 2020
With
R/SPECIAL CIVIL APPLICATION NO. 10060 of 2020
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BHARATBHAI MADEVBHAI RAVAL
Versus
DIRECTOR GENERAL OF POLICE
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Appearance:
MS MAMTA R VYAS(994) for the Petitioner(s) No. 1
MR BHARAT VYAS, AGP for the Respondent(s) No. 1
NOTICE SERVED BY DS(5) for the Respondent(s) No. 2
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CORAM: HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI
Date : 23/09/2020
ORAL ORDER
1. The present group of petitions is raising almost identical issue and since similar questions of law and facts have arisen, with request and consent of the learned advocates, the same are placed before this Court by clubbing all these matters and Page 1 of 19 Downloaded on : Sun Feb 14 14:33:23 IST 2021 C/SCA/4775/2020 ORDER the Court has taken up the matters accordingly for hearing.
1.1 Since common grievance is raised by all the petitioners that they cannot be either terminated or deprived of appointments to their respective position on the basis of colour vision being made as a ground to deprive them, this group of petitions is decided by treating Special Civil Application No. 4775 of 2020 as lead matter since in the said matter pleadings are completed.
2. In view of aforesaid circumstance, the facts are taken at length from the lead matter.
3. The petitioner of this petition has invoked extra ordinary jurisdiction of this Court on the premise that pursuant to the advertisement published in the month of October 2016 for the post of unarmed Police Constable, Lok Rakshak, the petitioner applied for the same and has cleared both written as well as physical examination and was called for verification of documents. After due verification of documents, the respondent No. 2 issued an appointment order on 17.5.2017 in favour of the petitioner and the petitioner pursuant to the said appointment order was also given posting at Galudi at Surat Rural vide posting order dated 13.6.2017.
4. According to the petitioner he has also completed one month training period and got the salary of two months and also thereafter called for medical examination on 19.6.2017 at Civil Hospital, Surat. In respect of this medical examination, the Civil Surgeon has referred the case of the petitioner to Board of Referees for further opinion and Board of Referees on 11.9.2017 called the petitioner and straightway without stating Page 2 of 19 Downloaded on : Sun Feb 14 14:33:23 IST 2021 C/SCA/4775/2020 ORDER any reason it was informed that the petitioner is treated unfit for the post of unarmed Lok Rakshak / Police Constable. On the basis of this oral information to the petitioner by concerned officer of the Board of Referees the petitioner is unfit on the ground of colour vision and order of termination came to be passed against the petitioner on 13.10.2017 and that has given rise to the petitioner to invoke extra-ordinary jurisdiction of this Court. According to the petitioner this issue is very much covered by the decision of the learned coordinate bench of this Court as well as decision of Division Bench of this Court and therefore, action of discontinuation on the ground of colour vision is ex-facie impermissible.
5. Almost similar issue is with respect to another petition being Special Civil Application No. 6815 of 2020 wherein also pursuant to the selection of the petitioner concerned the petitioner was sent for medical examination and the Civil Surgeon observed in his report that the petitioner was suffering from partial colour deficiency and as such, he was referred to the Board of Referees, Civil Hospital, Ahmedabad, where the petitioner did appear but has not been informed as regard the opinion of the Board of Referees and since then the petitioner was waiting for his actual resumption pursuant to the appointment. By the time the petitioner of this petition came to know that several other candidates from the selection list have been given appointments by Superintendent of Police. According to petitioner the issue is also covered by Division Bench of this Court, hence, he has approached this Court by way of present petition.
Page 3 of 19 Downloaded on : Sun Feb 14 14:33:23 IST 2021 C/SCA/4775/2020 ORDER5.1 So far as Special Civil Application No.8404 of 2020 is concerned, this petitioner also appeared in the competitive examination of Lok Rakshak, Unarmed Police Constable and was selected but on account of declaration by medical board that the petitioner is suffering from colour vision he has not been taken in duty. As a result of this, for the purpose of seeking appointment / actual resumption and allowing him to appear in training, the petitioner has approached this Court by way of present petition. According to this petitioner he was declared as having deficiency in colour vision by medical board on 10.12.2019 and as such his case is also absolutely covered by the decision of Division Bench as has been pointed out in other cases. Hence, the petitioner has approached this Court by way of present petition.
5.2 In so far as other petitions i.e. Special Civil Application No. 8448 of 2020 with Special Civil Application No. 4775 of 2020 with Special Civil Application No.8553 of 2020, the petitioners of these petitions have also approached this Court with the grievance that pursuant to the advertisement of October 2016 for the post of Unarmed / Armed and SRP Lok Rakshak, the petitioner cleared the examinations both written as well as physical but was called for medical examination at General Hospital, sola, Ahmedabad wherein he was declared as having defective colour vision on 8.6.2020 and as such was referred to Board of Referees for further opinion. The Board of Referees also opined vide communication dated 17.6.2020 that the petitioner is suffering from colour vision and on the basis of this, by treating the petitioner as unfit for the post of Armed Police Constable he was denied appointment. As a Page 4 of 19 Downloaded on : Sun Feb 14 14:33:23 IST 2021 C/SCA/4775/2020 ORDER result of this, he has approached this Court by way of present petition.
5.3 In special Civil Application No. 8553 of 2020 also similar is the situation and as such for the purpose of seeking his appointment the petition is brought before this Court by clearly stating through learned advocate that the case is also covered by Division Bench of this Court.
5.4 In Special Civil Application No. 8593 of 2020 also the petitioner applied for the post of unarmed Police Constable pursuant to the advertisement has successfully cleared written as well as physical examination and was called for the medical examination at General Hospital, Mahesana but was declared as having defective colur vision. Hence, the petitioner was referred to Board of Referees. The Board of Referees opined that there is defect of colour vision and therefore, by treating the petitioner unfit he was deprived of resuming duty though he was appointed. Hence, the petitioner has approached this Court by way of present petition under Article 226 of the Constitution of India.
5.5 With respect to Special Civil Application No.9005 of 2020 here also the petitioner applied for the post of unarmed / armed and SRP Lok Rakshak. The petitioner successfully cleared written as well as physical examination and was selected and posted at SRPF Group, 10-Bharuch but was declared unfit on account of colour vision. The issue, according to the petitioner is squarely covered by the decision of division bench as well as by co-ordinate bench of this Court. As such for Page 5 of 19 Downloaded on : Sun Feb 14 14:33:23 IST 2021 C/SCA/4775/2020 ORDER seeking appointment with all consequential benefits, the petitioner has approached this Court.
5.6 So far as Special Civil Application No.9197 of 2020 is concerned, here also the petitioner was selected as Police Constable in the unarmed Police Constable Department but is declared unfit on account of colour vision hence, approached this Court by way of present petition for seeking appointment. According to this petitioner also his case is squarely covered under the decision delivered by Division Bench as well as by co-ordinate bench of this Court.
5.7 So far as Special Civil Application No. 9191 of 2020 is concerned, here also the petitioner has invoked extra ordinary jurisdiction on the premise that he was selected as Police Constable in Armed Police Constable Department but on the basis of medical opinion that he is suffering from colour vision, he was deprived of his actual appointment and therefore has approached this Court. According to this petitioner also colour blindness / vision is the only circumstance otherwise on rest of the count, the petitioner is fully eligible.
5.8 Same is the case in Special Civil Application No. 9804 of 2020 wherein also the petitioner applied for the post of unarmed Police Constable / SRP Lok Rakshak pursuant to the advertisement issued in October 2016 and had successfully cleared the written as well as physical examination but on account of opinion of Board of Referees he was declared unfit for the said post and therefore deprived of legitimate appointment though has successfully cleared selection Page 6 of 19 Downloaded on : Sun Feb 14 14:33:23 IST 2021 C/SCA/4775/2020 ORDER process.
5.9 So far as Special Civil Application No.9763 of 2020 is concerned, here also the petitioner applied for the post of Armed Police Constable has successfully cleared written as well as physical examination. The documents have also been verified by the department and the petitioner was placed in merit list as well but then upon medical examination the petitioner was declared unfit on account of colour vision and therefore according to the petitioner the same cannot be the ground for not allowing the petitioner for his legitimate appointment therefore, the petitioner has approached this Court by way of petition under Article 226 of the Constitution of India since his case is squarely covered by several decisions including decisions of Division Bench of this Court.
5.10 Last in line is Special Civil Application No. 10060 of 2020 wherein also the petitioner concerned has applied for the post of Armed Police Constable pursuant to the advertisement was selected and was actually given posting at Bhuj-Kuthch. His document verification process has also been completed but the Board of Referees has give opinion that the petitioner suffering from colour blindness. Except that there is no other infirmity to the petitioner and therefore, alongwith others the petitioner also approached this Court by way of present petition for seeking appointment with all consequential benefits since his case is also covered by the decision of this Court in other group of petitions.
6. All these cases on the basis the aforesaid background Page 7 of 19 Downloaded on : Sun Feb 14 14:33:23 IST 2021 C/SCA/4775/2020 ORDER have reflected that though all the petitioners concerned are fully eligible, have successfully cleared their process of recruitment but it is only on account of colour vision issue opinion given by the Board of Referees that they are deprived of actual appointment and this issue according to the petitioner is squarely covered by decision of this Court in past and as such all these petitioners have requested the Court to deal with and dispose of the petitions on the basis of this common grievance.
7. As against this in one of the group matters which is requested to be treated as lead matter, the respondent State authority has filed an affidavit and pointed out that all these petitioners have approached the Court at a belated stage. By virtue of resolution dated 21.3.2017, it would be open for the respondent authority to put an end to the services even if, taken on job without issuance of notice. A further contention is also raised that it was expected by all these petitioners to submit an appeal before appropriate authority against certificate issued by the Medical Officer. No such appeals are filed by these petitioners. It is further pointed out that it may be that co-ordinate bench as well as Division Bench of this Court has taken decision in favour of concerned petitioners on this very issue but the State Government has already preferred Special Leave Petition which is lying with Diary Number 12397 of 2020 in Apex Court and as such the State appears to have taken a stand that since the State Government has challenged the decision of Division Bench of this Court, in Supreme Court the petitions may not be entertained.
8. However, there is no reference candidly made in any Page 8 of 19 Downloaded on : Sun Feb 14 14:33:23 IST 2021 C/SCA/4775/2020 ORDER corner of the affidavit-in-reply that any notice is issued or even any interim relief is granted by Hon'ble Apex Court simply at a diary number stage the State Appeal is pending. With this background learned AGP for the State Authority has attempted to oppose this group of petitions but has candidly submitted that issue is dealt with in past by this Court and it was decided against the State Authority on the issue of colour vision being suffered by candidate and as such learned AGP has ultimately submitted that even if an eventuality to take place to allow these petitioners to be reinstated then liberty be kept open for the State authority to specifically mention in their appointment that such appointment would be subject to the result of the decision being take by Hon'ble Apex Court in Special Leave Petition.
9. With these submissions, learned AGP has fairly left the issue to the discretion of the Court with no much resistance. No other submissions have been made.
10. As against this learned advocates for the petitioners have no objection if it may written in their respective orders.
11. Having heard learned advocates for the parties and having gone through the aforesaid factual background of the case, it appears that common question of fact and the issue is that all these petitioners are deprived of their appointment only on the ground of colour vision. Except that there is no other issue about any infirmity in their selection or their eligibility or suitability and as such before dealing this issue the Court would like to observe that in series of decisions co- ordinate bench as well as by Division Bench of this Court dealt Page 9 of 19 Downloaded on : Sun Feb 14 14:33:23 IST 2021 C/SCA/4775/2020 ORDER with and clearly opined in favour of the concerned petitioner. On the record of lead matter from page 21 onwards of petition compilation, the decisions have been attached to substantiate their submissions. On the basis of order dated 26.7.2018 passed in group of petitions headed by Special Civil Application No. 15431 of 2017 this colour blindness / vision issue is extensively dealt with by co-ordinate bench of this Court and looking to the observations at length made in paragraph No. 4.1 to paragraph No. 7, it has been decided that the stand of the authority is not permissible. While taking this decision, the Court has also analyzed at length, relevant rules precisely Rule 11 alongwith Schedule B and Appendix-3 and on the basis of such analyzes at length, co-ordinate bench of this Court has also followed earlier decisions which have been taken on this very same issue and then ultimately allowed the petitions. Operative part whereof reads as under:-
"7.The petitioners shall be given appointments immediately and in any case within ten days from the date of receipt of this order. As the facts clearly show that the petitioners were given letters of appointment but their appointments were withheld on the ground that they had colour blindness and that the said ground was quite unsustainable in law rendering denial of appointment to be illegal, the petitioners were deprived of the appointment for no good reasons, much less their own fault, and the action of the respondents being manifestly illegal,and treated as not to be the valid ground, the petitioners shall be entitled to full salary and emoluments for the intervening period. The petitioners shall be entitled to all consequential benefits as a result of the aforesaid order, which shall be paid within six weeks from the date of receipt of this order. The petitions stand allowed accordingly."
12. Examining the record further of this lead matter, it appears to this Court that this very issue was also examined by even Division Bench of this Court in Letters Patent Appeal No. 1136 of 2018 reflecting on page 33 the decision dated Page 10 of 19 Downloaded on : Sun Feb 14 14:33:23 IST 2021 C/SCA/4775/2020 ORDER 2.11.2018 wherein also by detailed examination of all these relevant rules and the stand taken by the State authority, the Division Bench was of the clear opinion that no case made out by the State authority. As a result of this, the appeals of the candidates came to be allowed by moulding relief.
13. Since learned Counsel appearing on behalf of the petitioners have heavily relied on these two decisions the observations made by Division Bench of this Court in Letters Patent Appeal No.1136 of 2018 dated 2.11.2018, the Court would like to reproduce certain relevant observations herein:-
" 9. A perusal of the record of the case reveals that vide communication dated 29.08.2012, the Additional Police Commissioner (Administration), Ahmedabad city requested the Civil Surgeon, Sola Civil Hospital that the candidates for appointment of unarmed Lok Rakshaks had been sent to them for the purpose of medical examination in terms of the Bombay Civil Services Rules, Part-II, Appendix VII, rule 3 and calling upon them to refer the candidates for further examination to the Board of Referees, Civil Hospital and send medical fitness certificates accordingly. Thus, the authorities have placed reliance upon rule 3 of Appendix VII of the Bombay Civil Services Rules. The Bombay Civil Services Rules have since been repealed by the Gujarat Civil Services (General Conditions) Rules, 2000; however, rule 11 of the Gujarat Civil Services (General Conditions) Rules, 2000 which provides that certificate of physical fitness is a prerequisite for substantive appointment or continuance in service is in pari materia with the Bombay Civil Services Rules. Annexure-A of Appendix III under rule 11 of the Gujarat Civil Services (General Conditions)Rules, 2000 also lays down similar conditions as the Bombay Civil Services Rules, Chapter III. Rule 11 of the General Conditions of Service, Chapter-III bears the heading "Certificate of physical fitness, a prerequisite for substantive appointment or continuance in service" and lays down that every Government employee shall produce a medical certificate of health specified in Appendix-III either before he is appointed substantively to a permanent Page 11 of 19 Downloaded on : Sun Feb 14 14:33:23 IST 2021 C/SCA/4775/2020 ORDER post in Government service or before he completes six months' service from the date of his appointment, whichever is earlier. Appendix-III as prescribed under rule 11 provides for form of medical certificate. It is further provided that candidate will be required to pass the visual test laid down in the regulations as to the standards of vision vide Schedule "B" below. A candidate whose standard of vision does not come up to the requirement of services specified in Annexure "A" to Schedule "B" shall be referred to the Board of Referees for assessment of their visual standard in relation to the nature of work the candidate is expected to do. The candidate declared unfit by the Board of Referees will not be eligible for appointment in Government service. Rule 1of Appendix-III provides that candidates will be examined and certified by the Civil Surgeon of the District in which they are employed or resided for the time being or by a Medical Officer duly appointed for the purpose (vide Schedule "A" below).
9.1 Schedule "B" bears the heading "Regulations as to the standard provision" and reads thus:
"SCHEDULE"B"
[See Rules - 7 and 11 (vi) of Appendix-III] Regulation as to the standard provision
1. When a candidate for admission into the Civil Services of Government, appears before the medical authority for visual test, the medical authority shall be guided by the different minimum standards as prescribed in Annexure 'A' to this Schedule. This is the "Sorting Out" stage, where the obviously suited are certified fit without further trouble.
2. The doubtful and unsuitable cases shall be referred to a "Board of Referees", comprising of at least three ophthalmologists who shall get the cases examined on the following points: (i) Previous record of glasses worn. (ii) Determination of refractive error under homatropine. (iii) Fundus changes, particularly in the anterior part of choria-retina. (iv) Vitreous changes. (v) Absolute Visual Acuity. (vi) Radius of curvature of cornea. (vii) Ascertainment of the nature of his work, particularly in relation to subjective and objective hazards. And shall assess the visual capacity against the visual task expected in which they shall be guided Page 12 of 19 Downloaded on : Sun Feb 14 14:33:23 IST 2021 C/SCA/4775/2020 ORDER by certain classic standards according to the work to be assigned to the candidate.
3. The Board shall have the right to order the re- examination of a candidate annually for three years to determine the stability or unstability of a refractive error before he is finally confirmed.
4. The "Board of Referees" decision shall be final and irrevocable.
5. When a candidate is referred to a Medical Board, the Board shall be guided by the standards laid down in Annexure 'A' (Preliminary standards) and those who fall short of the standard shall be referred to the "Board of Referees".
6. Rules for the guidance of Board of Referees are as specified in Annexure 'B' 9.2 Annexure "A" of Appendix-III, to the extent the same is relevant for the present purpose, reads thus:
"ANNEXURE 'A' of APPENDIX III Preliminary Visual Standard for all Services Group 'A' For posts requiring very high degree of visual acuity with unaided eye Visual acuity unaided vision is not less than 6/6 in one eye and not less than 6/9 in the other.
Posts for which such a higher standard is required:
Armed and unarmed Police etc. Group 'B' For post requiring a very high degree of vision acuity with glasses and moderate degree without glass Visual acuity 6/24 each eye without glasses. 6/6 each eye with 2.5 D after correction. Normal colour vision as tested with the Ishihara test. No evident signs of infective condition of the external eye e.g. Trachoma.
No squint.Page 13 of 19 Downloaded on : Sun Feb 14 14:33:23 IST 2021 C/SCA/4775/2020 ORDER
Group 'D' For posts which can do with a moderate degree of visualacuity Visual acuity Better eye 6/6 4.0 D worse eye 6/24 with glasses. No infective condition of the external eye.
Posts that can do with such a moderate degree of visual acuity Class III posts and all types of desk work e.g. Clerks, Accountants, Organising Officers, Store keepers."
9.3 A perusal of the above rules reveals that insofar as the candidates for the post of Armed and Unarmed Police, who fall under Group "A", are concerned, the requirement is "visualacuity - unaided vision is not less than 6/6 in one eye and not less than 6/9 in the other". For the said group, colour blindness is not shown to be a disqualification. Insofar as Group "B" is concerned, the same specifically provides for "normal colour vision as tested with the Ishihara test". The said requirement relates to all Class-I and Class-II posts, namely, Medical and Engineering Services, Class II, Superintendents and Sub-Inspectors of Police, with which we are not concerned in the present case. Group "D" relates to the post with a moderate degree of visual acuity, which provides for visual acuity - Better eye 6/6 +/- 4.0 D worse eye 6/24 with glasses. This is the requirement for Class-III posts and all types of desk work,viz., Clerks, Accountants, Organising Officers, and Store-Keepers.
9.4 The post of a Lok Rakshak can either be considered in Group "A" viz. Armed and Unarmed Police or a Class-III post falling in the category of Group "D". In either case, no disqualification is provided for colour blindness. It is evident on reading the rules as a whole that where the rules wanted to provide for normal colour vision, the same is specifically stated in the group as in the case of the Group "B" where the requirement is normal colour vision as tested with the IshiharaPage 16 of 20 test. Clearly therefore, the relevant rules governing appointment to the post of Lok Rakshak do not provide for any specific disqualification for candidates suffering from colour blindness.
Page 14 of 19 Downloaded on : Sun Feb 14 14:33:23 IST 2021 C/SCA/4775/2020 ORDER10.In the backdrop of the aforesaid facts as emerging from the record, the legal position is required to be examined. The Supreme Court in Union of India v. Satya Prakash Vasisht, 1994 Supp (2) SCC 52, has, after perusing the relevant rules as applicable in the facts of the said case, observed that it was clear that the requirement that the candidate should be free from colour blindness is only for the post of Drivers and traffic staff in sub-clause (ii) and that does not apply to sub-clause (i)relating to Constables, Head Constables and Sub-Inspectors(Executive). The court held that it was obvious that the disqualification of colour blindness has no application to sub-clause (iii). The court observed that there was clearly discernible basis for the disqualification of colour blindness for persons appointed as Drivers and traffic staff, the nature of whose duties are different from that of a Sub-Inspector(Executive).
11. Moreover, a Division Bench of this court in KhantHarishchandra Amarsinh v. Superintendent of Police(supra) has, in a similar set of facts, held that when there wasno provision which disqualified or rendered "colour blindness"unfit for the post of Unarmed Police Constable, the termination of the services of the petitioner therein could not be said to be in consonance with the terms of his appointment. The court held that merely because the order of appointment stipulated that the appointment was subject to medical unfitness, does not necessarily ipso facto lead to unerring inference that such an appointment, despite the colour blindness certified by the Medical Board is not legal and proper. The court held that whether a particular type of unfit certificate by the Medical Board would be ground of termination of service or cancellation of the appointment order or not, will have to be adjudicated upon the terms and conditions of the service and the governing rules. It cannot be ipso facto judged that the colour blindness is itself disqualification for any post in question.
12.In the light of the law laid down in the above decisions, it clearly emerges that in case any candidates are sought to be disqualified on the ground that they suffer from colour blindness, there has to be a specific provision in the rules providing for such disqualification. In the facts of the present case, a perusal of the relevant rules clearly indicates that no such disqualification has been provided for the post in question. Under the circumstances, it is not Page 15 of 19 Downloaded on : Sun Feb 14 14:33:23 IST 2021 C/SCA/4775/2020 ORDER permissible for the respondents to adopt a stand that the appellants herein are not qualified for the post of Lok Rakshak. The learned Single Judge was, therefore, not justified in holding that every kind of deficiency or incapacity is not to be mentioned in the recruitment rules, and therefore, merely because it has not been specifically provided in the rules, it cannot be presumed that the petitioner therein should be treated as medically fit inspite of negative opinion after the examination.
13This court is of the opinion that the view adopted by the learned Single Judge in Dineshbhai Govindbhai Kathechiya(supra), is in consonance with the settled legal position and the relevant rules and does not find it possible to agree with the view adopted by the learned Single Judge in the present case.
14.The appeals stand allowed accordingly. The impugned judgment and order dated 11.07.2018 passed by the learned Single Judge in Special Civil Application No.7595 of 2013 is hereby quashed and set aside. The writ petition being Special Civil Application No.7595 of 2013 is hereby allowed to the following extent.
15.The respondents are directed to consider the case of the appellants for appointment to the post of Lok Rakshak ignoring their colour blindness, and if nothing adverse is found against them, they shall be appointed on the said post forthwith. Since considerable time has elapsed since the recruitment was made, it is left to the discretion of the respondent authorities to appoint the appellants to any other Class-III post having equal pay if the post of Lok Rakshak is not available. It is also directed that in case the appellants are not assigned active duty of Lok Rakshak, they may be assigned table work as an alternative.
16.The question now is of the nature of relief which should be granted to the appellants in view of the fact though the selections took place in the year 2009, they would be appointed only now after a period of more than nine years. In the meanwhile the other selected candidates have been duly appointed and have been working for several years since then. In such a situation the grant of back-wages does not appear to be just and proper. This court is further of the view that though the appellants are entitled to the benefit of service from the date when they should have Page 16 of 19 Downloaded on : Sun Feb 14 14:33:23 IST 2021 C/SCA/4775/2020 ORDER ordinarily been appointed on being selected yet it would not be appropriate to treat the earlier period prior to the date of their appointment as a period to be reckoned as actual service if a period of actual service is prescribed as a necessary qualification or promotion. It is also made clear that the promotion already made of persons junior to the appellants in the merit list on account of the late appointment of the appellants shall not be disturbed as a result of the relief granted to the appellants. Subject to these limitations, the entire period commencing from the date when the appellants should have ordinarily been appointed would be treated as a part of their continuous service for all other purposes including the retiral benefits and fixation of their seniority.
17.Necessary orders shall be passed by the respondent authorities within a period of six weeks from the date of receipt of a writ of this court."
14. On the basis of aforesaid observations which are clearly made by division bench of this Court, the issue is almost squarely covered by aforesaid decision which is binding not only upon the Court by way of judicial discipline but also on the State authority and as such learned AGP Mr. Vyas has candidly submitted that there is no other distinguishable point available for him to confront the situation except the fact that the issue is challenged by the State Government before Hon'ble Apex Court. Learned AGP has also candidly submitted that the matter is lying merely at diary number stage and said number is also given in affidavit in reply at page 59 of the petition compilation in paragraph No. 14 bottom.
15. This being the situation since all the contentions permissible in law are examined by co-ordinate bench as well as by other decisions including Division Bench's judgment as referred to above, as part of judicial discipline, the Court would not like to express any other view which is otherwise also not Page 17 of 19 Downloaded on : Sun Feb 14 14:33:23 IST 2021 C/SCA/4775/2020 ORDER permissible also. In addition to this, another group of petition is also appeared to have been decided identical to the present one by co-ordinate bench of this Court on 30.6.2020 in group of petition headed by Special Civil Application No. 6868 of 2020 and as such without expressing much on this issue the Court would not like to deviate merely on the ground that the State has challenged the decision but taking note of a situation that no orders have been passed so far and just it is lying at a diary number stage, the petitions deserve to be allowed being covered by aforesaid pronouncement.
16. So far as other issue which has been raised about delay, the same would be insignificance for the State to raise since such an issue in view of the fact that State was very much a party to the said issue having being decided by several benches of this Court and as such the Court would not like to deviate the core issue and would like to grant relief as prayed for in the petitions.
17. However, while allowing the petitions the Court would surely concerned that the nature of relief and how to be granted and for that purpose the Court has an advantage and assistance of the operative part of the decision of Division Bench of this Court as stated above.
18. In view of above, petitioners herein being similarly situated as the petitioners in the abovereferred cases, deserve to be granted with the same benefit. Accordingly, the impugned orders and actions are hereby quashed and set aside. The respondents are directed to consider the case of the petitioners for appointment to the post of Lok Rakshak ignoring their medical incapacity, and if nothing adverse is found Page 18 of 19 Downloaded on : Sun Feb 14 14:33:23 IST 2021 C/SCA/4775/2020 ORDER against them, they shall be appointed on the said post forthwith. Since considerable time has elapsed since the recruitment , it is left to the discretion of the respondent authorities to appoint the petitioners to any other Class-III post having equal pay if the posts of Lok Rakshak are not available. It is also directed that in case the appellants are not assigned active duty of Lok Rakshak, they may be assigned table work as an alternative.
19. This Court is further of the view that though the appellants are entitled to the benefit of service from the date when they should have ordinarily been appointed on being selected yet it would not be appropriate to treat the earlier period prior to the date of their appointment as a period to be reckoned as actual service if a period of actual service is prescribed as a necessary qualification or promotion. It is also made clear that the promotion already made of persons junior to the petitioners in the merit list on account of the late appointment of the petitioners shall not be disturbed as a result of the relief granted to these petitioners. Subject to these limitations, the entire period commencing from the date when the petitioners should have ordinarily been appointed would be treated as a part of their continuous service for all other purposes including the retiral benefits and fixation of their seniority.
Accordingly, all the petitions are allowed to the aforesaid extent. Rule made absolute. Direct service is permitted.
(ASHUTOSH J. SHASTRI, J) MEHUL B. TUVAR/SURESH Page 19 of 19 Downloaded on : Sun Feb 14 14:33:23 IST 2021