Allahabad High Court
Ravi Kumar Kaushal Son Of Devraj Prasad vs State Of U.P. Through Secretary, ... on 4 October, 2007
Author: V.K. Shukla
Bench: V.K. Shukla
JUDGMENT V.K. Shukla, J.
1. In this bunch of writ petitions, petitioners are questioning the validity of decision taken by Commandant, 12th Bn. P.A.C. Fatehpur, in exercise of authority vested under Rule 8(2)(b) of the U.P. Police Officers of Subordinate Rank (Punishment and Appeal) Rules, 1991, dispensing with the services of petitioners by holding that their services are not required, as they do not fulfill the requisite minimum eligibility criteria.
2. Brief facts, giving rise to instant writ petition, are that in the year 2004 recruitment was notified for recruiting constables in Provincial Armed Constabulary (P.A.C.) at 20th Bn. P.A.C. Azamgarh. Petitioners applied for consideration of their candidature after going through various examinations, which comprised of physical test, written examination and interview. Petitioners participated in examination at each stage; of selection and ultimately medical examination of petitioners also conducted. Petitioners have contended that they succeeded at each stage of selection and necessary communication was sent to them by Commandant 20th Bn P.A.C, Azamgarh, asking them to report at 20th Bn P.A.C, Azamgarh. Petitioners submit that pursuant to said directive, they reported at 20th Bn P.A.C, Azamgarh On 01.12.2004, and upon such reporting, petitioners were directed for undergoing training for a period of one month at 12th Bn. P.A.C. Fatehpur. On completion of one month's training, petitioners were sent for further training at 35th Bn. P.A.C. Lucknow. Petitioners have contended that during course of training also, they were subjected to medical examination; and after successfully completing training, petitioners were posted at 12th Bn. P.A.C. Fatehpur. Petitioners have contended that during continuance of their training at repeated regular interval, they had been subjected to medical check up. On 19.07.2007, petitioners were required to under go fresh medical examination. On the aforesaid date, petitioners appeared before the Medical Board, and thereafter, order impugned has been passed, dispensing with the services of the petitioners. At this juncture present writ petitions have been filed.
3. On presentation of writ petition, learned standing Counsel was asked to produce relevant record, on the basis of which impugned decision in question has been taken. On record being produced, reason of petitioners being ineligible has been disclosed as follows:
__________________________________________________________________________ Sl. Writ petition No. Petitioner's name Cause No. __________________________________________________________________________
1. 36283 of 2007 Ravi Kumar Kaushal Colour Vision __________________________________________________________________________
2. 36295 of 2007 Firoz Ahmad Colour Vision __________________________________________________________________________
3. 36277 of 2007 Awadhesh Kumar Yadav Bilateral fiat food __________________________________________________________________________
4. 36280 of 2007 Arvind Kumar Sonkar Bilateral fiat food __________________________________________________________________________
5. 36290 of 2007 Amit Kumar Bilateral fiat food __________________________________________________________________________
6. 36297 of 2007 Rais Ahmad Ansari Bilateral fiat food __________________________________________________________________________
7. 36293 of 2007 Ajay Kumar Flat Foot __________________________________________________________________________
8. 36281 of 2007 Narendra Kumar Cubitus Varus Right elbow __________________________________________________________________________
9. 36289 of 2007 Sanjay Prasad Cubitus Valgus __________________________________________________________________________
10. 36286 of 2007 Sri Krishna Yadav Bilateral Genu Varum Deformity and Colour Defect __________________________________________________________________________
4. After record in question has been perused, opportunity has been provided to learned Counsel for petitioners to peruse the same and thereafter with the consent of the parties, present writ petitions are being heard and decided finally.
5. Sri Ashok Khare, Senior Advocate, assisted by Sri Amit Srivastava, appearing for petitioners, contended with vehemence that petitioners were validly selected, they had cleared all medical examinations and the alleged disqualifications, on the basis of which petitioners are non-suited, same at no point of time were made known to petitioners and in the present Medical examination, which has been conducted, standard of evaluation has not been specified, as such entire exercisers arbitrary, unreasonable and against the rules of fair play, and coupled with this no notice or opportunity had been provided for, and by placing reliance on totally inapplicable provision, impugned order in question has been passed.
6. Sri Piyush Shukla, learned Standing Counsel, on the other hand, contended that an incumbent who is to be enrolled in the police force has to be physically and medically fit, and once it has been found that petitioners are medically unfit, they cannot be retained as member of the force, and rightfully, their services have been disengaged.
To start with the case in hand, relevant provisions of U.P. Police Regulations, i.e. Regulation 411, 412, 415 and 541 are to be looked into and they being quoted below:
411. No recruit shall be enlisted whose chest measurements is less than 34 inches expanded with a minimum expansion of 2 inches and whose height is less than 5 feet 9 inches. To this rule there are the following, exceptions:
(a) A recruit between 18 and 20 years of age who shows signs of growing, may be enlisted if his height is not less than 5 feet 5 inches and his expanded chest is not less than 32 inches with a minimum expansion of 2 inches, provided that the Civil Surgeon certified that he is under 20 years of age and that he is likely to attain standard measurements.
(b) In the case of hillmen, the height may be not less than 5 feet 4 inches.
(C) In the case of Tribal candidates, the chest measurement ,f must not be less than 34" expanded with a minimum expansion of 2" and the height must not be less than 5' 3".
Note.- (i) As far as possible tall and well built men should be enlisted in the Police as constable as physical appearance and personality are important factors for efficient discharge of their duties.
(ii) Persons with bow legs, irrespective of the degree of bow present shall not be recruited. Slight curvature of legs is however, to be treated as normal and should not lead to unnecessary rejections.
412. Before a candidate for recruitment is sent to the Civil Surged for I medical examination his height and chest measurements must be accurately taken before the reserve inspector. The candidate must be measured round his bare chest with his arms raised.
No candidate shall be enlisted without a health certificate in Form 29 signed by the Civil Surgeon of the district. Every candidate must also, before he is enlisted, sign an agreement in the following form: I..., son of...of village...thana...district...agree to undertake that on being enlisted as a constable in the Uttar Pradesh Police Force, I will serve for two years in the said Uttar Pradesh Police, from the date of joining of the force, unless I am discharged of dismissed or certified by a Civil Surgeon to be unfit for such service. If I resign before the expiry of the said two years, I undertake and agree to forfeit a sum to be calculated according to the following rates:
(a) Up to 3 months' service Re. 1 For each completed month of service.
(b) Over three months but not exceeding six month's service Rs. 12 for each completed month of service subject to a maximum of Rs. 10.
(c) Over six months but not exceeding one year's service Rs. 3 for each completed month of service subject to a maximum of Rs. 25.
(d) After one year's but within two years' service Rs. 4 for each completed month of service subject to a maximum of Rs. 50.
415. All recruits must possess the minimum physical qualifications be medically fit and of good character. In selecting candidates for enlistment, Superintendents of Police will accept those who are considered to be most suitable for Police Service. For the Civil Police, the candidates must have passed VIII class examination (Junior High School) or an equivalent examination recognized by Government for recruitment to the posts and service under Government and for the Armed Police the candidate must have passed VI class examination or an equivalent' examination recognjzed by Government. For both Civil and Armed Police, the candidates must also possess a working knowledge of Hindi.
Any person including one of Nepalese origin, who is Citizen of India, Shall be eligible for recruitment to the services and posts under the rule-making control of Governor Provided that in the case of a person of Nepalese origin the orders of Inspector General of Police must first be obtained before such a person is considered for recruitment. When reporting cases to the Inspector General of Police full details duly verified as to caste, residence, etc. must be intimated along with reasons for recommending the case.
Note.- This revised sub-paragraph shall be deemed to have come into effect from March 21, 1959.
Full publicity as regards the time and place of selection and the qualifications required should be given through tahsils Schools, Colleges, Panchayats etc. before recruiting is started by the Superintendent of Police.
541. (1) A recruit will be on probation from the date he begins to officiate in a clear vacancy. The period of probation will be two years except in the following cases:
(a) those recruited directly in the Criminal Investigation Department or District Intelligence Staff will be on probation for three years, and
(b) those transferred to the Mounted Police will be governed by the directions in paragraph 84 of the Police Regulations.
If at the end of period of probation conduct and work have been satisfactory and the recruit has been approved by the Deputy Inspector General of Police for service in the force, the Superintendent of Police will confirm him in his appointment.
(2) In any case in which either during or at the end of the period of probation, the Superintendent of Police is of opinion that a recruit is unlikely to make a good police officer he may dispense with his service. Before, however, this is done the recruit must be supplied with specific complaints and grounds on which it is proposed to discharge him and then he should be called upon to show cause as to why he should not be discharged. The recruit must furnish his representation in wrung and it will be duly counter signed by the Superintendent of Police before passing the orders of discharge.
(3) Every order passed by a Superintendent of Police under Sub-section (2) above shall, subject to the control of the Deputy Inspector General be final.
7. A bare perusal of Regulations would go to show that Regulation 411 prescribes for standard in respect of chest measurement and height and further provides that persons with bow legs, irrespective of the degree of bow present shall not be recruited, Slight curvature of legs is, however, to be treated as normal and should not lead to unnecessary rejections. As far as possible, tall and well built man are to be enlisted, as physical appearance and personality are important I factors, for efficient discharge of duties. Regulation 412 provides hat no Candidate shall be enlisted without a health certificate in form 29 issued by Civil Surgeon. Regulation. 415 is clear and provides that All Hebruits must possess minimum physical qualifications, be medically fit and of good character. Thus for being recruited as member of the police force three mandatory requirements are that an incumbent must, possess minimum physical qualifications, be medically fit and of good character. Regulation 415 further, stipulates that ad regards the time, and place of selection and the qualifications required, full publicity should be given through tahsils Schools, Colleges, Panchayats etc. before recruitment is started by the Superintendent of Police. Idea behind this provision is that best of, the candidates should come forward for becoming member of the force. Regulation 541 deals with the way and manner probationer has to be dealt with.
8. On this proposition that a medically unfit incumbent cannot be inducted as member of disciplined force, there can be hardly any 1 dispute, as Regulation 415 specifically provides I that recruits must possess the minimum physical qualifications, be medically fit and of good character. Hon'ble Apex Court in the case of I.C.A.R. v. Shashi Gupta , has clearly taken the view that medical it fitness is the sine qua non for appointment to public service. It is inherent right of an employer to be satisfied about medical fitness of person before offering appointments In the present case undisputed position is that petitioners had cleared their written examinations, interview, medical examination and (completed training and thereafter accorded placement. In medical examination which has been conducted, on subsequent occasion petitioners have been non-suited and have been declared unfit. With the change of Government, State Government took up policy decision, for which letter was circulated by Director General of Police on 20.06.2007 in respect of every recruitment made during 2004 to 2006 in Police and P.A.C. directing review proceedings to be undertaken, specially in reference to medical fitness. Pursuant to directives of Director General of Police, proceeding in question has been undertaken, and thereafter Four-member Medical Board was constituted on 18.07.2007 by the Chief Medical Officer, Fathepur, which comprised of:
(1) Dr. Kamlesh Kumar Chairman (2) Dr. R.C. Gupta, District Eye Hospital, Fatehpur (3) Dr. B.K. Chauhan, Orthopaedics, District hospital, Fatehpur (4) Pr. N.K. Saxena, Physician District Hospital, Fatehpur This Medical Board, which was constituted, examined forty incumbents on 19.07.2007, and thereafter on the tyasis of deficiency pointed out decision in question has been taken declaring each one of the petitioners as unfit. Deficiency mainly found put are; (i) colour Virion and. (ii) physical deficiency - bow legged and flat footed and others.
9. To start with the case, much emphasis has been laid on the fact that on the basis of colour blindness, an incumbent cannot be disqualified as under U.P. Police Regulation same has not been prescribed as disqualification and further under U.P. Police Service Rules, 1942, which, though, does pot relate to Subordinate Police service, it has been provided that inability to distinguish the principal colours will not be regarded as a cause for rejection, but the fact will be noted in the proceedings and the candidate will be informed Question to be determined is as to whether a person who suffers from colour blindness is disqualified from being enrolled as member of police force tinder U.P. Police Regulations colour blindness has not been Inscribed as disqualification, but there is specific requirement of being medically fit However, State Government under U.P. Medical Manual has made, provision in respect of standard of vision required for said service with effect from 01.01.1958,Svberein it has been provided that State empjoyees should be classified Technical and Non-technical categories Relevant extract of the same namely, para 247(6) of U.P. Medical Manual, is being quoted below.
With Effect from January 1, 1958, the following standards of vision aid prescribed for first entry in the State Services, including the U.P. Civil Service (Executive Branch):
(1) The State employees should be classified into the following Technical and Non-Technical categories and separate standards proscribed for each:
(a) Non Technical-
Class I-All gazetted State Services including subordinate executive--- (gazetted) Class II-Subordinate executive services (non-gazetted).
Class III-Ministerial staff.
Class IV-Inferior staff.
(b) Technical-
(i) Engineering Services-
(a) P.W.D. (B, and R. Branch), (b) P.W.D. Irrigation Branch, (c) (P.W.D. Electricity Branch, and (d) Mechanical Branch.
(ii) Medical Services and Animal husbandry.
(iii) Agricultural Engineering Service.
(iv) Transport Services-Drivers, Mechanics and Foreman under the Transport Department who fall in Class IV with also---
(v) Police Services of all categories.
(2) Naked Eye Vision-No standard (minimum naked eye vision should simply be recorded to judge the condition of the eye).
(3) Distant and near vision-(with or without glasses).
_________________________________________________________________________________ | ---- of service | Distant Vision | Near vision | | |____________________________|______________________________| | |Better eye | Worse eye | Better eye | Worse eye | |____________________|____________|_______________|_______________|______________| | Class I and both | 6/9 6/9 | ---- | | Technical and non | or | | | Techinical | 6/9 6/13 | | |____________________|____________________________|______________________________| | Class III | ---- | ---- | | | 6/12 6/12 | | | | or | | | | 6/9 6/18 | | |____________________|____________________________|______________________________| | Class IV | 6/9 6/36 | no standards | | | or | | | | 6/18 6/18 | | | | or | | | | 6/12 6/24 | | |____________________|____________________________|______________________________| (4) Maximum permissible refractive error Subject to the visual standards as in para (3) above being satisfied, the refractive error allowed in respect of Class I and II Services should be as below:
(i) All Technical Services, Transport Service and Police Services Total amount of Myopla (including the Cylinder) shall not exceed 4.00D. Total amount of Hyper motrepis (Including the---)
(ii) Non-Technical---- Total amount of Hypermotorpia shall not exceed +6.00D.
(iii) Class III and Class IV Services No limit, provide that the visual--- is in accordance with the standards given paragraph. (3)
(iv) Standard of corrected vision for candidates who are of 35 years of age of more at the time of first appointment. The standards for corrected vision of these candid ates, should be reduced by one step further as follows,:
________________________________________________________________________________ | Class of Service | Corrected | | |________________________________________________________| | | Batter eye | Worse eye | |______________________|____________________________|___________________________| | Class 1 and Class | 6/12 | 6/12 | | Services | or | | | | 6/9 | 6/18 | |______________________|____________________________|___________________________| | Class III Service | 6/9 | 6/60 | | | or | | | | 6/18 | 6/18 | | | or | | | | 6/12 | 6/12 | |______________________|____________________________|___________________________| | Class IV Service | 6/12 | 6/60 | | | or | | | | 6/24 | 6/24 | | | or | | | | 6/18 | 6/36 | |______________________|____________________________|___________________________| Permissible refractive error for various, services will be the same as mentioned above in respect of the said candidates.
(5) Fondue Examination- It is necessary for excluding any underling and organ to--- or progressive refractive error Such examination should be confined to candidates for Class I and II Services; both technical and non-technical. It should essentially tie done in candidates haying Myopia above (-)---. In other cases it may be done' at the discretion of the examining authority. If the examining officer or the Medical Board despite the standard of vision, consider that the defect in fondues is such as to render the candidate unfit for service, then without recording their opinion to that effect, they should refer the case to a Special Board constituted for such cases in accordance with the procedure given in para (9) below.
(6) Colour vision-(a) The testing of colour vision is essential in respect of the following Class I and II Services:
(i) All Technical Services given in para (1)(ii) Police Services.
(b) In respect of category of Class I and II non-Technical and Class III and IV Services, the colour vision must be tested and recorded. Defective colour vision will constitute a case for rejection in case of police, Transport and Technical Services and Laboratory Technicians, etc.
(c) The colour perception should be graded into a higher and lower grade according in the--- of the--- in the lantern and described.
________________________________________________________________________________ | Grade | Higher grade of | lower grade of | | |____________________________|___________________________| | | Colour perception | Colour preception | |______________________|____________________________|___________________________| |1. Distance between | 10 | 10 | |the lamp and candidate| | | |______________________|____________________________|___________________________| | 2. Size of aperture | 1.3 m.m. | ----- | |______________________|____________________________|___________________________| | 3. Time of exposure | 5 sedcond | 5 second | |______________________|____________________________|___________________________| For the services--- with the safety of the public, e.g. driver the higher grade of colour vision is essential but for others the lower grade colour vision should be considered as sufficient.
(d) Satisfactory colour vision constitutes recognition with case and without hesitation of--- red, signal green and white colours. The use of Ishiar's plates, shown in good light and a suitable lantern like Edridge Green's can be considered quite dependable for testing colour vision. While either of the two tests may be considered sufficient in respect of Technical, Police and Transport. Services, it is to carry on the lantern tots in doubtful can or where & candidate fails to qualify when tested by any one of the two--- both the tests should be employed.
(7) Night Blindness- The Night Blindness test should be carried out in the came of Transport employee and Police Services. The examine officer or the Medical Board shall have the discretion to improvise rough test such a recording of Visual acuity with--- illumination or by making the candidate recognize various objects darkened room after the candidate has been there for 20-30 minutes. In cases where the examining officer or the Board consider that the Night Blindness is of a temporary nature and in the candidate should be given the opportunity to appear before the officer or the Boards as the case may be after treatment, In case where the Night Blindness is considered to be a permanent nature, it will constitute a case for---
(8) Ocular condition other than visual acuity- The following ocular conditions or disnases should be considered as disqualifications:
(i) Any or a progressive refractive error which is like to result is lowering the visual acuity.
(ii) Trachoma of complicated nature only.
(iii) Squint-For the Police and Transport Services-even if the visual acuity is of the prescribed standard.
(9) Procedure to be followed in disputed or doubtful cases There should be a provision for review in disputed or doubtful cases. In cases where the medical examination has been carried out by the Civil Sargoons a Review Board should be constituted at the Divisional Head quarters of the district. The Board should include one Ophthalmologist and its finding should be final. In cases where the examination has been carried out by the Medical Board the review should be done by a Special Board which should include two Ophthalmologists The finding of the Special Board should be considered as final, but an appeal may be permissible when considered necessary. The Appellate Board should consist of two Ophthalmologists. The chairman of the Board should be a person other than these who have examined the case in the original Board.
6(b)--- The following standards of visual nouity have been prescribed by the Central Government, vide letter No. F-5(11)-12-57-M II (Pt. II), dated December 17, 1957 from the Government of India, Ministry of Health, in respect of the candidates for appointment to Central Services;
(1) The existing into Technical and Non-Technical Services given below should continue and to most their special requirements, separates standards should be prescribed for different categories;
A-Technical-
(1) Railway Engineering Service (Civil Electrical--- and Signal), Transpiration (Traffic) and Commercial--- and--- Department and Marine Establishment.
Thereafter, partial modification has been made on 24.12.1959, providing for a revision of standard of vision in respect of services under State Government. Relevant extract of said Modification of revision of standard of vision dated 24.12.1959 is being extracted below:
From Sachiv Uttar Pradesh Shashan To, Swasthya Bima Sanchalak, Uttar Pradesh, Luvknow Dated Lucknow, December, 24, 1959 Subject:--- Revision of standard of vision in respect of services under the State Government.
Sir,
---the standard of vision--- 70-B/V-596 1957 dated--- 1958, was found to be still--- It was therefore, deemed necessary to review certain aspects of the earlier decision. A committee consisting of some ophthalmic experts of the State and certain Heads of Technical Departments was formed to examine the matter. After a thorough examination thereof the Committee had submitted its recommendations for modifying, in certain respects, the prescribed standard of vision for first entry in the State Services including the Uttar Pradesh Civil Service (Executive Branch). The Government after having given careful consideration to the Committee's suggests has, in partial modification of G.O. No. 70-B/V-596 1957 dated January 8,1958 (referred to above), been pleased to order as follows:
A- entry of one-eyed person in service under the State Government.:
(i) Class I and Class II Services--- Non one-eyed person should be appointed to class I or Class II services except where he appointment is to be on contract basis,
(ii) Class III Ministerial Services One-eyed person may be recruited to Class III Services and such other non-technical Class III Services which to don not involved hazardous work provided that the such eye has a vision of 6/6 or 6/9.
(iii) Class IV Services Absence of vision in one eye should not be deemed an absolute disqualification for entry in Class IV Services if the vision in the functioning eye is 6/6 or 6/9 and there is no likelihood of deterioration of vision in the functioning eye. If a Class IV Service constitutes technical personnel employed in a factory or in grinding work or on a similar job involving hazardous duties the absence of one eye should be a definite disqualification for the recruitment of such personnel.
B- Standard of colour vision for services under the State Government.
I. Non-Technical Services:
Colour vision should be tested and recorded for all class of non-technical services (Class I, II, III and IV) but defective colour vision should not be a disqualification for entering into these services:
II. Technical Services:
(i) POLICE SERVICE: For all class of Police Services a
defective colour vision as tested on
Ishihara's platos should constitute a
disqualification.
(ii) ---SERVICES Persons with defective colour vision
as tested on Ishihara's plats should
not be recruited to the posts of
Drivers, Mechanics, and Foreman under
the Transport Department. For other
posts in the Transport Department colour
vision should be tested and recorded but
defective colour vision will not constitute
a cause for rejection in their cases.
(iii) Medical Services: Candidates who can recognize gross forms
of principal colours (red, green, blue
and yellow) as tested by colour discs of
the above colours of diameter should be
considered medically tit for recruitment
to Medical Services.
(iv) Engineering Services (1) Recognition of gross from red,
Irrigation Departme- blue green and yellow colours as tested
nts by colour discs diameter should be cons-
idered sufficient for entry into services
(2) For Architects in the above services
finer colour differentiation being essential
colour vision should be tested on in Ishihara's
plats and any defect shown by them should be
a cause of disqualification.
C-Acuity of Vision
1. Naked eye vision (As already prescribed in G.O. No.
2. Distance and near (70-B/V-596-57, dated January 8, 1958)
vision
3. Maximum permissible Subject to visual standards as already
laid down in G.O. No. 70-B/V-596-57,
dated January 8, 1958
Refractive error: Refractive error in respect of Class I and II Services should be as below:
(i) All Technical Services, Correction upto +6, dioptres or -6 (Transport and Police Services. Dioptres (inclusive of cylinders) should be permissible provided there are no degenerative changes on fundus examination and the myopia is not of the progressive type. Presence of myopia crescent by itself without any other degenerative change should not constitute a cause for rejection.
(ii) Non-Technical Service.... Correction upto +8, dioptres or -8 dioptres (inclusive of cylinders) should be permissible provided there are no degenerative changes on fundus examination and the myopia is not of the progressive type. Presence of myopia crescent by itself without any other degenerative change should not constitute a cause for rejection.
Class III and IV Services No limit for respective error if the visual acutiy is in accordance with the standards already laid down in G.O. No. 70-BA/-596-57, dated January 8, 1958.
Motor Drivers;
(I) Naked eyfe Vision --- As already provided in the said Government Order.
(ii) Correctec Vision --- Minimum vision after correction with glasses should not be below 6/12 in any of the eyes
(iii) Maximum permissible Subject to the above visual standards the refractive error. Amount of refractive error should not exceed +6 dioptres or -6 dioptres provided there are no degenerative changes on fundus examination and the myopia is not of the progressive type. Presence of myopia crescent by itself without any other degenerative change should not constitute a cause for rejection,
(iv) Colour Vision Drivers should be tested for colour vision on Ishihara's plate sand any defect detected on this test should be a cause for rejection,
(v) Field of Vision --- This should be tested in all drivers by confrontation test and suspicion of any defect should be confirmed by porimetry of careen,
(vi) Squint....--- Presence of manifest squint in the case of drivers should constitute a cause for rejection,
(vii) Periodical Check up. The drivers should be required to have & check up after every four years under the above headings.
D-General
1. Such of the candidates as do not fulfill all the standards but are yet considered likely fit cases' by the ophthalmic surgeon in the Board, should be referred to a special Medical Board comprising of three ophthalmic surgeons the senior most of whom will act as Chairman.
2. In all respects excepting the above, the provisions of G.O. No. 70-B/V-596-57, dated January 8,1958 shall remain unaltered.
3. The above orders will come into force with effect from the date of their issue and all cases as have not finally been disposed of should be covered by these orders and dealt with accordingly.
4. Necessary draft correction slip to paragraph 247 of the Uttar Pradesh Medical Manual Second Edition corrected upto June, 30 1953) may be submitted to Government for approval in due course.
Yours faithfully, K.C. Joshi, Up Sachiv For Sachiv.
10. As per said provisions which have been quoted, and which are applicable in respect of State Services, same has been clearly divided in two parts; Technical and Non-technical. As far as Police service is concerned, it falls under Technical service. Under 1958 Government Order, testing of colour vision has been made essential in respect of police service and further it has been provided that colour perception should be graded into higher and lower grade, and further it has also been mentioned that for the services with safety of the public, e.g. Driver the higher grade of colour vision is essential but for others the lower grade colour vision should be considered as sufficient. It also provides for procedure to be followed in disputed or doubtful cases. It provides for constitution of Review Board at Divisional Head Quarters of the district; the Board so constituted should include one Ophthalmologist and its finding should be final, and also in cases where examination has been carried out by the Medical Board, the review should be done by a special Board which should include two Ophthalmologists and the finding of the Special Board is to be considered as final, but an appeal may be permissible when considered necessary. Under 1959 Government Order, colour vision of non-technical service has to be mandatorily tested and recorded, but defactive colour vision is not be treated as disqualification. In respect of police service categorical mention has been made that with defective colour vision as tested on Ishihara's plates should constitute a disqualification. It has also been mentioned therein that in all other respects excepting as mentioned in paragraph of Government Order, 1959, the provisions of Government Order dated 08.01.1958 shall remain unaltered.
11. Colour blindness is the inability to distinguish the differences between certain colours. The most common type is red-green colour blindness, where red and green are seen as the same colour. Usually Ishihara (pseudoisochromatic) plates are used to test colour vision. They are made of dot patterns composed of primary colours. These dot patterns represent a symbol that is superimposed on a background of randomly mixed colours. It consists of a number of coloured plates, each of which contains a circle made of many different sized dots of slightly different colours, spread in a seemingly random manner. Within the dot pattern, and differentiated only by colour, is a number. What or even if, a number is visible indicates if and what form of colour blindness the Viewer has. The full test consists of thirty-eight plates, but the existence of a deficiency is usually clear after no more than four plates. Common plates include a circle of dots in shades of green and light blues with a figure differentiated in shades of brown or a circle of dots in shades or red, orange and yellow with a figure second for deuteranopia. The test can determine certain abnormalities in a person's colour vision. Reference Books (i) Medline Plus Medical Encyclopedia: Colour Blindness Tests (ii) Wikipedia, the free encyclopedia: Isihara Colour Test.
12. Thus, in respect of police service of all classes which falls within the ambit of Technical Service, defective colour vision as tested on Ishihara's plates constitutes disqualification, except where something contrary is provided for, under the Rules, providing for that defective colour vision would not constitute disqualification, such as U.P. Police Service Rules, 1942. Judgment of Hon'ble Apex Court, in the case of Union of India and Ors. v. Satya Prakash Vasisht 1994 (2) Supp. S.C. 52, will not at all come to rescue of petitioners, as in the said case, on interpretation of rules, applicable to Delhi Police Service, view was taken that colour blindness was not a disqualification, for appointment as sub-Inspector (Executive). Here, to the contrary, there is specific Government Order, which covers the field, dealing specifically with colour blindness, and same being tested positive, on the touchstone of Ishiara Colour Test, has mandatorily, to be treated as disqualification, for being member of Police Force.
13. In the present case, thus, in respect of police service of all classes defective colour vision as tested on Ishihara's plates constitutes disqualification, except where colour blindness excluded as disqualification under the Rules. Petitioners with defective colour vision cannot be permitted to continue in service, as defective colour vision is disqualification for entry into service. Petitioners with defective colour vision, at the point of time of enlistment, were declared fit by Medical Officer. In review proceedings of medical fitness, Medical Board has been reconstituted, wherein one Ophthalmologist was one of the members. Said Medical Board has found petitioners Ravi Kumar Kaushal, Firoz Ahmad and Shri Krishna Yadav, to be colour blind. Petitioners have appeared before the Medical Board and have got themselves medically examined, and it is the Medical Board, which has found the petitioners medically unfit. Against the members of Medical Board, no bias or malice has been alleged. In all forty candidates were sent, out of which only twelve have been declared unfit. Once Medical Board has taken decision, holding petitioners to be of detective colour vision, then this Court will not sit in appeal over the decision of Medical Board. Hon'ble Apex Court, in the case of State Bank of India v. G.K. Dakshak , has clearly cautioned that High Court should not take upon itself to decide the question of fitness, and same should be left to be decided by the experts of the said field. Similar view has been expressed by Hon'ble Apex Court, again in the case of ICAR v. Shashi Gupta , that there should be no overstepping of authority in overruling medical reports. In the said case Shashi Gupta, at the time of her appointment as Senior Computer Technical Assistant, had already been examined by Medical Expert, in this background, she contended that she could not be subjected to further medical examination. Central Administrative Tribunal accepted her contention, but Hon'ble Apex Court did not agree with the reasoning and conclusions, and concluded that once Medical Board and Appellate Medical Board found incumbent medically unfit, the Tribunal had no jurisdiction to get over said medical reports and direct for appointment. Once petitioners Ravi Kumar Kaushal, Firoz Ahmad and Shri Krishna Yadav were being non-suited on the basis of defective colour vision, i.e. non-fulfilment of pre-requisite condition of being medically fit, no fault could be found in the said action taken by Appointing Authority. However, as it has been contended that medical report was not made known which fact is being disputed by State-respondents, but in the background and in view of the fact that petitioners were earlier declared medically fit by Medical Officer and on subsequent occasion, they have been sought to be declared medically unfit by Medical Board, as such respondents are directed to see that the candidates, who suffer from colour vision, namely, Ravi Kumar Kushal, Firoz Ahmad and Shri Krishna Yadav, in case they chose to challenge the opinion off Medical Board, they be subjected to fresh medical examination by a Special Board which shall include two Ophthalmologists and the finding of the Special Board shall be considered as final. After said examination is done, report of the same be transmitted to Appointing Authority, who shall, thereafter, pass fresh orders in respect of said incumbents keeping in view the report that is given by Special Board, and earlier order passed dispensing with services of petitioners, shall abide by fresh report of the Special Medical Board.
14. Now coming to the cases where incumbents have been non-suited on the ground of physical disability. The incumbents, who are with bow legs, irrespective of the degree of bow present are not liable to be recruited. In respect of incumbents who have knocked knees and varicose veins, decision has already been taken that candidates with these symptoms are not suitable for service in the Police Force. Government Order dated 21.05.1979, declared the incumbents with such deficiency as disqualified for being members of the police force, as they cannot undertake journey for long time. Flat foot, in the British Medical Dictionary, edited by Sir Arthur Salsbury MacJulty has described the same as "Pronated foot, pes valgus; a condition of the foot in which inner longitudinal arch is lowered or is absent. Spastic flat foot, flattening of longitudinal arch of the foot, associated with aversion of heal and spasm of personal muscle. In the Text book of Orthopadics, written by Tureque, while dealing with the chapter, The Foot and the Ankle, Flat Foot, has been dealt with as follows:
Flat Foot: A flat foot is essentially one with depression or complete loss of the longitudinal arch. As a result of, bony structure, the ligaments, and the muscles are altered, and the typical planus or planovalgus deformity ensues. The forefoot is in abduction and slight supsination, the navicular and the head of the talus are prominent on the medical aspect of the foot, the calcaneus is everted (valgus), and the longitudinal arch is depressed. The head of the talus, instead of being supported by the anterior end of the of calcis is displaced medically and downward so that the entire talus angulates forward, downward sand medically. The entire of calcis is also angulated medically, its posterior extremity being displaced laterally and the anterior extremity medically. Secondly changes occur in the bones and the soft tissues which the deformity has existed for some time. The navicular, the cuneiform and the cuboid become wedge shaped, the apex of each being directed laterally and drosally. The planner, the calcaneonavicular (spring), and the deltoid ligaments are contracted. The anterior and the posterior tibial tendons and the planar muscles are stretched, whereas the Achilles tendon becomes shortened.
Flat footed incumbents are disqualified to be enlisted, as they cannot be said to be medically fit. While declaring an incumbent medically fit, the concerned Medical Officer/Medical Board/Special Medical Board, will have to see that incumbents' limbs, hands and feet are well formed and developed and that there is perfect motion of all joints. The unfitness pointed out qua Narendra Kumar is Cubitus Varus Right Elbow. Unfitness pointed out qua Sanjay Prasad is Cubitus Valgus Right Elbow. Same has been described in British Medical Dictionary as "Cubitus" (i) The forearm (ii) the elbow. "Cubitus Valgus, a deformity of forearm consisting of an inward deviation or extension. "Cubitus Varus" Gunstock deformity. Medical Board has found deformity in Right elbow of Narendra Kumar and Sanjay Prasad. The unfitness pointed out qua Sri Krishna Yadav, apart from defective colour vision is bilateral "Genu Varum". "Genu Varum" has been described as bow leg, outward carving of the knee. Remaining incumbents have all been found flat footed. Infirmities which have been found by Medical Board, clearly makes each one of the incumbents as Medically unfit, in the opinion of Medical Board.
15. These disqualifications are of perpetual character and once incumbent does not conform to the test prescribed qua medical fitness, he cannot be enlisted as member of Police Force, and he cannot be inducted as member of the force. In the present case, each one of petitioners have been invalidated by the Medical Board and each one of petitioners in lieu of medical examination have duly appended their signatures on the said medical report. Petitioners are thus, well aware of the fact that they have been declared unfit. Petitioners have not lodge any malice or bias towards members of the Medical Board, who have examined the petitioners and who have declared them as medically unfit. The plea of bias and malice even otherwise is also completely ruled out in the present case as in all forty incumbents have been medically examined and out of said forty, 12 incumbents have been found to be medically unfit, qua whom action in question has been subsequently taken, mentioning therein that they lack requisite eligibility criteria. Rest have been retained. However, as in the past at the point of time when petitioners entered into service they had been certified to be medically fit by Medical Officer and subsequent to the same in review proceeding, by the Medical Board, they have been declared medically unfit. In this peculiar facts and circumstances of the case, in case, petitioners are not satisfied with said medical opinion of the Medical Board, then liberty can be given to each one of petitioners to approach for second opinion before Second Medical Board to be constituted by competent authority in this regard. Consequently, in the facts of the present case, right of petitioners is being reserved for making application for getting medically examined by Second Medical Board, wherein two Orthopaedist should be there, so that petitioners may not have any further grievance or cause of complaint, but as on date, when label of medical unfitness is there, this Court cannot come to rescue of petitioners by directing their continuance as members of police force.
16. Much emphasis has been laid by petitioners that in present case authority under Rule 8(2)(b) of the U.P. Police Officers of Subordinate Rank (Punishment and Appeal) Rules, 1991 has been wrongly exercised, and the said authority could not have been exercised when it was reasonably and practically possible to hold enquiry. This is well settled that wrong quoting of provisions will not vitiate the order in case authority otherwise has authority to take decision. Here, in the present case, Appointing Authority has proceeded to take decision, as is reflected from the record on the basis of medical unfitness of each one of petitioners, for which no further enquiry was required. This is a case of cancelling appointment, wherein incumbents on account of being medically unfit were not at ail entitled to be selected as constable but had succeeded in getting themselves selected. In this background mere mention of Rule 8(2)(b) of the U.P. Police Officers of Subordinate Rank (Punishment and Appeal) Rules, 1991 in the impugned order would not vitiate the action taken, as otherwise action taken can be very well subscribed, for the simple reason that medically unfit persons, cannot efficiently discharge their duties, as members of police force.
17. Much emphasis has been laid on the fact that petitioners are probationers and in terms of Regulation 541 of the U.P. Police Regulations opportunity of hearing was mandatory. Sub-regulation (2) of Regulation 541 as noted in the earlier part of judgment, provides that in any case in which either during or at the end of the period of probation, the Superintendent of Police is of opinion that a recruit is unlikely to make a good police officer he may dispense with his service. Said Rules have neen subject matter of interpretation in the case of Chandra Prakash Shahi v. State of U.P. and Ors. 2000 (2) L.B.E.S.R. page. 308, and therein it has been mentioned that where services of a probationer are proposed to be terminated and a particular procedure is prescribed by the Regulations for that purpose then the termination has to be brought in that manner. The probationer constable has to be informed of the grounds on which his services are proposed to be terminated and he is required to explain his position. The reply is to be considered by the Superintendent of Police so that if the reply is found to be convincing, he may not be deprived of his service. In the said case, it has been held that even if appellant successfully completed the period of probation, his period of probation shall be treated as having been extended, as permanent status can be acquired by specific order of confirmation. Apart from this, in the said case, preliminary enquiry was got conducted, to find out appellants involvement, in the incident in question, in this background, view taken was that decision taken was punitive in character as it was founded on the allegation of misconduct, then procedure prescribed, ought to have been complied with.
18. Paragraph 541 of the U.P. Police Regulations, thus, provides that in any case in which either during or at the end of the period of probation, the Superintendent of Police is of opinion that a recruit is unlikely to make a good police officer he may dispense with his service and in that event recruit must be supplied with specific complaints and grounds on which it is proposed to discharge him and then he should be called upon to show cause as to why he should not be discharged. In the present case provisions of paragraph 541 of the UP. Police Regulations are not at all attracted, inasmuch as qua the category of cases in hand, admittedly there are no complaints qua their work and conduct, on account of which they will not make themselves as good police officer. This is not at all case whereof a recruit is unlikely to make a good police officer on account of his work and conduct and before proceeding to take any action recruit is to be supplied with specific complaints and grounds on which it is proposed to discharge him. Here question is not of making of a good police officer on account of work and conduct, rather the larger question is that petitioners have been declared medically unfit by the Medical Board and once petitioners have been declared medically unfit by Medical Board, then their enlistment of member of police force itself is at stake which has totally no co-relation with the work and conduct of incumbent. A medically unfit incumbent cannot be permitted to continue in service. Petitioners are probationers; their services have been dispensed with without any stigma, by mentioning that on account of intelligibility, their services are not required, as such there cannot be any cause for grievance in respect of provisions of paragraph 541 of the U.P. Police Regulations. The proceedings undertaken are, in fact, cancellation of appointment, which cannot be kept at par with disciplinary proceedings or dispensation of service on account of some act. Rather to the contrary, the very entry of petitioners in the arena of police service has been put to issue, on account of petitioners being declared medically unfit, in this background the cloak of protection, under Regulation 541 is not available.
19. In the present case factual position is that large scale selections were made qua members of police force, and with the change of Government, State Government formed opinion that large scale infirmities are there in the selection and illegalities had been carried out in the said selection proceedings, and in this view of the matter policy decision was taken for review of selections made of a particular period. Here action in question cannot be termed to be arbitrary, for the simple reason that each and every individual case has been examined and on short comings being found which totally disqualified the incumbents, then qua such incumbents, opinion has been formed to cancel such appointments. Tainted selections have been sought to be done away with and untainted selections have been protected. Each one of the petitioners has been declared medically unfit, and once a candidate has been declared medically unfit, then certainly he is not fit to perform duties as is required by the member of a police force. In these circumstances and in this background, as from the record produced, it is evident that petitioners have been non-suited on the ground of medical unfitness and medically unfit person can not be enlisted as member of police force, as such with the impugned order of dispensation of service, no interference is being made. However, liberty is given to each one of petitioners to represent before the appointing authority within a period of one month from the date of delivery of judgment, requesting therein for constitution of a Special Medical Board for medical examination of petitioners. In cases where defect in colour vision has been pointed out Special Medical Boarc shall be constituted wherein two Ophthalmologists be thire, who shall examine the incumbents and give their report. Thereafter based on the said report, competent authority will re-consider the matter and take decision. Qua petitioners, who have been declared unfit on account of physical deficiency, Special Medical Board shall be constituted wherein two Orthopaedist be there, who shall examine the incumbents and give their report. Thereafter based on the said report, competent authority will re-consider the matter and take decision. In care reports are submitted in favour of petitioners, then from the date of seceipt of such report, fresh decision be taken, within next four weeks, thereafter.
20. Subject to directions given above, no interference is made with the impugned order. Writ petitions are accordingly, disposed of 04.10.2007.