Gujarat High Court
Uday Jagdishbhai Raval vs State Of Gujarat on 6 May, 2024
Author: Nikhil S. Kariel
Bench: Nikhil S. Kariel
NEUTRAL CITATION
C/SCA/8613/2020 ORDER DATED: 06/05/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 8613 of 2020
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UDAY JAGDISHBHAI RAVAL
Versus
STATE OF GUJARAT & ANR.
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Appearance:
SUDHANSHU A JHA(8345) for the Petitioner(s) No. 1
MR SAHIL TRIVEDI ASSISTANT GOVERNMENT PLEADER for the
Respondent(s) No. 1,2
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CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
Date : 06/05/2024
ORAL ORDER
1. Heard learned Advocate Mr. Sudhanshu Jha on behalf of the petitioner and learned Assistant Government Pleader Mr.Sahil Trivedi on behalf of the respondent - State.
2. By way of this petition, the petitioner challenges the decision of the respondents of declaring the petitioner unfit for the post of Lok Rakshak Unarmed (Male) on the ground of the petitioner suffering from the defect of colour blindness.
3. At the outset, learned Advocate Mr. Jha would submit that this Court vide decision dated 21.02.2024 in Special Civil Application No.20605/2023 and allied matter had decided a similar issue more particularly where the advertisement was of the year 2017 and whereas considering that the advertisement in the present case is of the year 2014-2015, the said decision would otherwise is squarely applicable.
4. This Court has perused the said decision and is in agreement with the Page 1 of 10 Downloaded on : Thu May 09 20:41:21 IST 2024 NEUTRAL CITATION C/SCA/8613/2020 ORDER DATED: 06/05/2024 undefined submissions made by learned Advocate Mr. Jha.
5. Having regard to the same, paragraph nos. 3 and 4 of the said decision being relevant for the present purpose, are reproduced hereinbelow for benefit:-
"3. Considering the submissions made by learned advocate Ms. Vyas, it would appear that the issue is no more res integra. It would appear that this Court in various decisions, starting from Special Civil Application No.8707 of 2016, vide order date 26.12.2016 and Special Civil Application No.7595 of 2013, vide order dated 11.07.2018 which have been confirmed by Division Bench of this Court in Letters Patent Appeal No.1136 of 2018, vide decision dated 02.11.2018, have taken the view that the State was precluded from denying appointment to the petitioners to the post in question on the ground of medical incapacity since the relevant rules did not prescribe color vision deficiency as being a disqualification for appointment to service.
3.1 It would appear that while the petitioners after being selected have been sent for medical examination and whereas in the medical examination, the petitioners have been declared unfit on account of having color vision deficiency, yet it would appear that since the relevant rules i.e. Appendix-A of Appendix-(3) under Rule-11 of GCSR which lays down the preliminary visual standards for all services, does not envisage color vision deficiency as incapacity for service to the post in question, therefore, the respondents were not entitled to deny appointment to the present petitioners. Relevant observations of Hon'ble Division Bench of this Court in Letters Patent Appeal No.1136 of 2018 as referred is relied upon for benefit.
"8. Adverting to the merits of the controversy, viz., whether on account of suffering from the defect of colour blindness, the appellants herein can be said to be disqualified for the post of Lok Rakshak.
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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 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 Page 3 of 10 Downloaded on : Thu May 09 20:41:21 IST 2024 NEUTRAL CITATION C/SCA/8613/2020 ORDER DATED: 06/05/2024 undefined 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 1 of 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.Page 4 of 10 Downloaded on : Thu May 09 20:41:21 IST 2024
NEUTRAL CITATION C/SCA/8613/2020 ORDER DATED: 06/05/2024 undefined
(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 by certain classic standards according to the work to be assigned to the candidate.
3. The Board shall have the right to order the reexamination 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 Page 14 of 20 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 Page 5 of 10 Downloaded on : Thu May 09 20:41:21 IST 2024 NEUTRAL CITATION C/SCA/8613/2020 ORDER DATED: 06/05/2024 undefined 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.
Group 'D' For posts which can do with a moderate degree of visual acuity 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 "visual acuity - 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, Page 6 of 10 Downloaded on : Thu May 09 20:41:21 IST 2024 NEUTRAL CITATION C/SCA/8613/2020 ORDER DATED: 06/05/2024 undefined 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 StoreKeepers.
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 Ishihara 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.
10. 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 SubInspectors (Executive). The court held that it was obvious that the disqualification of colour blindness has no application to subclause (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 Page 7 of 10 Downloaded on : Thu May 09 20:41:21 IST 2024 NEUTRAL CITATION C/SCA/8613/2020 ORDER DATED: 06/05/2024 undefined different from that of a Sub-Inspector (Executive).
11. Moreover, a Division Bench of this court in Khant Harishchandra Amarsinh v. Superintendent of Police (supra) has, in a similar set of facts, held that when there was no 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 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 Page 8 of 10 Downloaded on : Thu May 09 20:41:21 IST 2024 NEUTRAL CITATION C/SCA/8613/2020 ORDER DATED: 06/05/2024 undefined treated as medically fit in spite of negative opinion after the examination.
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 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."
4. Having regard to the above observations, the present petitions stand allowed. The petitioners shall be forthwith issued appointment to the post of Armed Police Constable/ Unarmed Police Constable as the case may be and whereas the petitioners would be entitled to benefit of appointment in service from the date when persons similarly situated to the petitioners have been appointed. It is also clarified that the seniority to persons Junior to the petitioners though appointed earlier shall not be disturbed and whereas the services of the petitioners shall be treated as continuous from the date of appointment as clarified hereinabove and whereas the Page 9 of 10 Downloaded on : Thu May 09 20:41:21 IST 2024 NEUTRAL CITATION C/SCA/8613/2020 ORDER DATED: 06/05/2024 undefined petitioners shall not be entitled for any backwages that the period of service of the petitioners shall be treated as notional and whereas the petitioner would be entitled for salary as if they have been appointed from the date as clarified hereinabove."
6. In view of the reasons stated by this Court in the above quoted decision, the present petition also is required to be allowed and the same is hereby allowed. Consequently, it is directed that the petitioners shall be forthwith issued appointment to the post of Armed Police Constable/ Unarmed Police Constable as the case may be and whereas the petitioner would be entitled to benefit of appointment in service from the date when persons similarly situated to the petitioners have been appointed. It is also clarified that the seniority of persons Junior to the petitioner though appointed earlier shall not be disturbed and whereas the services of the petitioner shall be treated as continuous from the date of appointment as clarified hereinabove and whereas the petitioner shall not be entitled for any backwages that the period of service of the petitioner shall be treated as notional and whereas the petitioner would be entitled for salary as if the petitioner has been appointed from the date as clarified hereinabove.
7. With the above directions and observations, the present petition stand disposed of. Direct service is permitted.
(NIKHIL S. KARIEL,J) NIRU Page 10 of 10 Downloaded on : Thu May 09 20:41:21 IST 2024