Madhya Pradesh High Court
Shivraj vs The State Of Madhya Pradesh on 13 July, 2017
HIGH COURT OF MADHYA PRADESH JABALPUR
WRIT PETITION NO. 8822 of 2013
SHIVRAJ
Vs.
THE STATE OF M.P. & OTHERS
For Petitioner : Mr. Vipin Yadav, Advocate
For Respondent No.1 to4/State : Mr. Devendra Gangrade, P.L.
For Respondents No.5 to 14 : Mr. Vishal Dhagat, Advocate.
Order posted for: 13.07.2017.
(SUJOY PAUL)
JUDGE
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W.P. No. 8822 of 2013
HIGH COURT OF MADHYA PRADESH, PRINCIPAL SEAT AT JABALPUR Case No. W.P. No.8822/2013 Parties Name Shivraj.
Vs.
State of Madhya Pradesh & others
Date of Judgment 13.07.2017
Bench Constituted Single Bench
Judgment delivered by Hon'ble Shri Justice Sujoy Paul
Whether approved for Yes/No
reporting
Name of counsels for parties Petitioner: Mr. Vipin Yadav, Advocate
Respondents No.1 to 4: Mr. Devendra
Gangrade, Panel Lawyer
Respondents No.5 & 14: Mr. Vishal
Dhagat, Advocate,
Law laid down -
Significant paragraph -
numbers
(Order)
13.07.2017
In this petition filed under Article 226 of the Constitution of India, the petitioner has prayed for setting aside the order dated 14.08.2012 and prayed for a direction for the department for permitting him to join on the the post of Constable. In alternatively, the petitioner has also prayed for issuance of an appropriate writ for setting aside the appointment orders passed in favour of the respondents No.5 to 14.
2. In short, the relevant facts are that the petitioner and other candidates submitted their candidature for the post of Constable in the months of January-Feburary, 2011. They have undergone physical test, written test and interview. The petitioner and other candidates were send for medical examination and as per the report of said examination, in 11 (eleven) persons colour blindness was found and they were directed to appear
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W.P. No. 8822 of 2013before the Medical Board of divisional level. The documents relating to petitioner showing the same are filed as Annexure-P/2 & P/3.
3. Mr. Vipin Yadav, learned counsel for the petitioner submits that petitioner appeared before the District, Division & State level Medical Boards. By placing reliance on the report of said Broads, learned counsel for the petitioner submits that there was no impediment for selecting and appointing the petitioner. Since petitioner was not appointed, the petitioner preferred a representation followed by W.P. No.3837/2012. The said writ petition was disposed of on 18.05.2012, by directing the respondents to decide the representation of the petitioner. The representation was not decided and therefore a Contempt Petition No.1580/2012 was filed which was decided on 02.05.2013 (Annexure-P/3). This Court opined that for the reasons given in the return, it has to be assumed that petitioner's representation is deemed to have been rejected. Even if no order is passed on the representation, the reasons given in the reply are self explanatory and therefore contempt petitioner was not entertained.However, liberty was reserved to the petitioner to file appropriate fresh proceedings. In turn, the present petition is filed by the petitioner.
4. Mr. Yadav, learned counsel for the petitioner advanced two fold submissions. Firstly, it is submitted that if medical reports of the petitioner are examined in the light of GOP No.78/1997 dated 02.04.19978 (Annexure-R/1), the petitioner cannot be treated to be unsuitable. There is no such medical report which holds the petitioner as unfit/unsuitable for differentiating the primary colours. Second contention is that the private respondents herein were suffering from the same deficiency of colour blindness, but they have been appointed. Reliance is placed on the documents filed with I.A. no.11233/2016 to show that certain private respondents were also declared unfit for duty because of colour blindness, whereas petitioner was never declared as unfit by the Medical Boards. In
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W.P. No. 8822 of 2013nutshell, the second contention is that petitioner is subjected to hostile discrimination which hits Article 14 of the Constitution of India.
5. Per-contra, Mr. Gangrade, learned P.L. opposed the said contention and placed reliance on the return filed by the department. It is averred that District Medical Board, Chhindwara found seven candidates suffering for the deficiency of colour blindness and therefore these candidates were again examined by Divisional Medical Board in order to examine their fitness. The petitioner's case was referred for re-examination by Divisional Medical Board, Jabalpur. All seven persons including petitioner were again examined by Divisional Medical Board. After thorough examination, the Divisional Medical Board found five persons out of these seven with normal eyes site, whereas petitioner alongwith one Mahendra Bawani were found to be partially colour blind. Since petitioner submitted his candidature for the post of constable in the police force, the eye site of the petitioner must be prefect and proper. Learned P.L. place reliance on GOP No.78/1997 and contended that the said provision does not contains any provision of relaxation in physical parameters. In view of deficiency of petitioner relating to vision, he has no right to be appointed.
6. It is averred that five persons who have been found fit by Divisional Medical Board (Annexure-P/3) have been given appointment. Their appointment was inaccordance with law, whereas petitioner has no right because he was found to be unfit by the Divisional Medical Board.
7. Mr. Vishal Dhagat, learned counsel for the respondents No.5 to 14 borrowed the arguments of the department and further contended that the documents filed vide I.A. no.11233/2016 shows that certain private respondents who were initially declared unfit or against whom the report of Medical Boards were there that they are having colour blindness, were considered by the Divisional Medical Board and were found fit by the said
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W.P. No. 8822 of 2013board. Thus, no fault can be found in the action of the respondents in appointing them. Petitioner cannot claim parity with the said persons.
8. No other point is pressed by the parties.
9. I have heard the parties at length and perused the record in the light of submissions made hereinabove.
10. Before dealing with the rival contentions, it is apposite to quote the relevant provisions from GOP No.78/1998 dated 02.04.1997, which reads as under:
"2-¼5½ n`f"V & mEehnokjksa dh vka[kksa ls laca/kh dksbZ jksx ugha gksuk pkfg;s rFkk vka[kksa dh n`f"V rhozrk fcuk p'esa ds 6@9 ls de ,oa nwljh vka[k dh n`f"V rhozrk fcuk p'esa 6@12 ls de ugha gksuk pkfg;sA eq[; jaxksa dk Hksn djus esa mEehnokjksa dks l{ke gksuk pkfg,A "
11. The following charts contain the names of petitioner and private respondents. The finding given by various medical boards are extracted in the said charts in order to examine the findings of the Boards at a glance. The said charts reads as under:
"A. Extracted from certificates filed with IA no. 11233/2016 by state.
S. NAME OF PRIVATE DISTRICT MEDICAL OFFICE OF JOINT
No. RESPONDENT BOARD, DISTRICT DIRECTOR HEALTH
HOSPITAL CHHINDWARA SERVICES
MEDICAL REPORT JABALPUR, DISTRICT
JABALPUR
MEDICAL
CERTIFICATE
1. NITIN SINGH Unfit. Partially color blind.
(Respondent No. 05) Color blindness Can identify colors Red,
green, yellow.
2. SHAILESH KUMAR Unfit. Partially color blind.
(Respondent No. 06) Color blind Can identify basic colors.
(referred to divisional medical
board, Jabalpur)
3. JITENDRA SINGH Unfit. Partially color blind.
(Respondent No. 07) Color blind His appointment can be
referred to medical college, decided by the concerned
Jabalpur department rules
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W.P. No. 8822 of 2013
4. NITESH DOGRE Unfit. CV normal
(Respondent No. 08) Partial color blind.
referred to divisional medical
board, Jabalpur
5. KAMLESH SHARMA Unfit. CV normal
(Respondent No. 09) Partial color blind
referred to divisional medical
board, Jabalpur
6. MAHENDRA Unfit. CV normal
BABARIA Total color blind
(Respondent No. 10) referred to divisional medical board, Jabalpur
7. AMIT KUMAR Unfit. Color V normal (Respondent No. 11) Color blind referred to medical college, Jabalpur
8. RAVINDRA SINGH Unfit. Color vision normal (Respondent No. 12) Partial color blind
9. SATISH BHALAVI Unfit. Color vision-N (Respondent No. 13) Partial color blind referred to divisional medical board, Jabalpur
10. RAJENDRA PRASAD Unfit. CV normal SIRNAM Partial color blind (Respondent No. 14) B. Extracted from Annexure P/4, P/5 and P/7 filed with the petition.
S. NAME OF DISTRICT OFFICE OF M.P STATE MEDICAL BOARD
No. PETITIONE MEDICAL JOINT
R BOARD\CIVIL DIRECTOR
SURGEON, HEALTH
JABALPUR SERVICES,
CERTIFICATE JABALPUR CERTIFICATE
ANNEXURE CERTIFICATE ANNEXURE P/7
P/4 ANNEXURE P/5
01. SHIVRAJ Color MI+ve Partial color 1. Person is having resting
recognized red blindness tachycardia 120/mint/sr
and green color only identified red 2. finding of CBP are not within can be fit for his appointment normal limits job can be decided by 3. person is advised to have chest concerned physician opinion and department FT3FT4T3T4TSH and cardiologist opinion for the same.
Field of vision-normal.
Partial red green color blindness."
12. The first contention of the petitioner is that as per GOP aforesaid petitioner cannot be treated as unsuitable. The GOP provides that the candidate must be able to identify the difference in primary colours. The primary colours are basic colours which are examined together to produce
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W.P. No. 8822 of 2013other colours, they are usually considered to be green, yellow and blue. In Collins Cobuld English Dictionary for advanced learners the meaning of primary colour is as under:
"Primary colour are basic colours that can be mixed together to produce other colours. They are usually considered to be red, yellow, blue and sometimes green."
Thus petitioner can be treated to be a fit candidate provided he is able to differentiate between aforesaid primary colours. The District Medical Board opined that petitioner recognized red and green colour, whereas Divisional Medical Board opined that petitioner is suffering from partial colour blindness and only identified red colour. The petitioner was further sent before MP State Medical Board, whereas private respondents herein were not sent for further check-up before the State Medical Board. The State Medical Board gave a finding that the petitioner is partial red-green colour blind and treated the petitioner as unfit for employment. This Court cannot sit in an appeal against the finding/judgment of Medical Boards which were consisted of five experts/doctors. Moreso, when there is no allegation of malafides against the members of the Medical Board. In the light of the findings of the divisional and State Level Medical Boards which clearly shows that the petitioner is suffering from red-green colour blindness, I am unable to hold that the petitioner is able to differentiate between the primary colour. Thus, the first contention of Mr. Vipin Yadav, learned counsel for the petitioner must fail.
13. The second point raised by Mr. Yadav, learned counsel for the petitioner is regarding discrimination qua private respondents. No doubt, the Medical Board found private respondents as partially suffering from the deficiency of colour blindness. However, the private respondents were subjected to another medical examination by divisional level Medical Board. For respondent No.1 a clear finding was given that he is partially suffering from colour blindness, but can identify red, green & yellow colour. The similar finding was given for Shri Shailesh Kumar. Except
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W.P. No. 8822 of 2013respondent No.7, Jitendra Singh for other private respondents, the Divisional Medical Board opined the colour vision was normal. The Jitendra Singh was found to be suffering from partial colour blindness and his suitably is directed to be decided by the department.
14. In view of findings of Divisional Medical Board in respect of private respondents, it cannot be said that their deficiency of vision is of same nature and degree qua the petitioner. At the cost of repetition, the petitioner was held to be suffering from partial red-green colour blindness, which will mean that he will not be able to differentiate between the primary colours. Whereas, no such adverse finding is given in the medical report prepared at the level of Joint Director, Health Services, Jabalpur in relation to the private respondents. Thus, it cannot be said that petitioner and private respondents are similarly situated. Since, their deficiency is not of exactly similar nature, it cannot be said that petitioner was subjected to any step- motherly treatment. At the cost of repetition, the medical report of petitioner at Joint Director level shows that he only identified red colour and this finding is re-affirmed by the state level Medical Board which opined that petitioner is suffering from red-green colour blindness. In this view of the matter, petitioner could not established that he was subjected to discrimination. Thus the second point raised by the petitioner is also devoid of substance.
15. In view of aforesaid foregoing analysis, no fault can be found in the action of the respondents. Petition is bereft of merits and is hereby dismissed.
(Sujoy Paul) Judge s@if