Gujarat High Court
Narendrakumar Prakashkumar Barot vs State Of Gujarat on 21 April, 2025
Author: Nirzar S. Desai
Bench: Nirzar S. Desai
NEUTRAL CITATION
C/SCA/1734/2023 JUDGMENT DATED: 21/04/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO.1734 of 2023
FOR APPROVAL AND SIGNATURE :
HONOURABLE MR. JUSTICE NIRZAR S. DESAI
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Approved for Reporting Yes No
NO
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NARENDRAKUMAR PRAKASHKUMAR BAROT
Versus
STATE OF GUJARAT & ORS.
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Appearance :
MR IMTIYAJ M KURESHI for the Petitioner.
MR ADITYA DAVDA, AGP for the Respondents.
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CORAM:HONOURABLE MR. JUSTICE NIRZAR S. DESAI
Date : 21/04/2025
ORAL JUDGMENT
1. Since the issue involved in this petition is covered issue with regard to denial of appointment to the petitioner on the post of Lok Rakshak on the ground of colour blindness, which is no longer res integra and therefore, with the consent of the learned advocates for the parties, the matter was taken up for final hearing.
2. Hence, RULE. Learned AGP Mr. Davda waives service of notice of rule for the respondents - State.
3. The facts of the petition as stated by learned advocate Mr. Imtiyaj Kureshi for the petitioner are as under :-
Page 1 of 12 Uploaded by R.N. SAVARIYA(HC00179) on Tue Apr 22 2025 Downloaded on : Tue Apr 22 22:02:40 IST 2025NEUTRAL CITATION C/SCA/1734/2023 JUDGMENT DATED: 21/04/2025 undefined 3.1 That the respondent issued an advertisement in the year 2011 for the post of Armed Police Constable in the Gujarat Police pursuant to which the petitioner applied for the same for the post of Armed Police Constable (Lok Rakshak) and the petitioner belongs to SEBC category, the petitioner appeared in the physical test and cleared the same. Thereafter, upon successfully having been declared pass, the petitioner received a call letter for appearing in the written examination and cleared the written examination as well. Thereafter, the petitioner found his name in the provisional select list at Serial No.2595 after obtaining total 79 marks for the post of Armed Constable.
3.2 Thereafter, he was called for documents verification on 2.11.2012 and the documents also were successfully verified and thereafter, the petitioner received a call letter on 29.10.2013 intimating that the petitioner was selected as Armed Constable and he was asked to submit all documents along with Character Certificate and Police Verification Certificate on 6.11.2013.
Thereafter, after completing the formalities, the petitioner was asked to undergo medical examination which was carried out by the Resident Medical Officer, New Civil Hospital, Surat on 21.11.2013 and the Medical Report of the petitioner revealed that the petitioner is having colour vision as he has colour defect with regard to red and green colour (both). Thereafter, despite receiving a call letter, the petitioner was not offered an appointment order and that is how the petitioner has challenged the action of the respondents by way of this petition and has prayed for a relief to appoint him to the post of Lok Rakshak.
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4. Learned advocate Mr. Kureshi appearing for the petitioner submitted that in the case of identically situated persons, the Coordinate Bench of this Court vide judgment dated 01.04.2024, rendered in the case of Akhed Ashok Bhimabhai Vs. State of Gujarat & Others in Special Civil Application No.10195 of 2021 and the allied matters, has held that the concerned petitioners shall be entitled for appointment from the date, when they would have ordinarily been appointed, on being selected and whereas, the period from the date of appointment, till the date of actual joining, would not be treated as the period in actual service, except for the purpose of granting retiral benefits and fixation of their seniority. Further, the Coordinate Bench has also clarified that the promotions already given, if any, to the persons junior to those petitioners in the merit-list shall not be disturbed. Subject to the aforesaid conditions, the Coordinate Bench directed the Respondents-authorities to pass appropriate orders, appointing those petitioners, if nothing adverse is found against them during the interregnum period.
5. According to learned advocate for the petitioner, the judgment dated 01.04.2024, rendered by the Coordinate Bench in the case of Akhed Ashok Bhimabhai (Supra) has been accepted by the Respondent - State and therefore, the issue involved in this matter is squarely covered by the aforesaid decision and therefore, this petition may be allowed.
6. Learned AGP Mr. Aditya Davda appearing for the Respondent - authorities, though could not dispute the above proposition of law, but he strongly opposed this petition and submitted that the present petitioner participated and succeeded in Page 3 of 12 Uploaded by R.N. SAVARIYA(HC00179) on Tue Apr 22 2025 Downloaded on : Tue Apr 22 22:02:40 IST 2025 NEUTRAL CITATION C/SCA/1734/2023 JUDGMENT DATED: 21/04/2025 undefined the recruitment process carried out during the year 2011 to 2013, except his physical examination, where he was found to be colour blind and thereby, it was submitted that as there is a gross delay in approaching this Court, this petition may be dismissed on the ground of delay, itself.
7. Learned AGP in support of his submission invited the attention of this Court to the judgment of this Court dated 18.11.2024, passed in Special Civil Application No. 4005 of 2021, where the petitioner of the said petition, who had approached this Court in similar set of facts, i.e. challenging the denial of appointment on the ground of colour blindness for the recruitment drive carried out in the year 2013, was rejected by this Court on the ground of delay. It was, therefore, prayed that as the case of the present petitioner is covered by the aforesaid decision, this petition be dismissed.
8. At this juncture, learned advocate Mr. Kureshi appearing for the petitioner invited the attention of this Court to the decision of the Hon'ble Apex Court dated 22.10.2024 in the case of Desai Jitendra Jivanbhai Vs. State of Gujarat & Others in Civil Appeal No.81927 of 2024 (arising out of SLP (C) No. 9199 of 2024), where the Hon'ble Apex Court allowed the appeal filed by the appellant and directed the Respondent-State to grant appointment to the petitioner by considering the fact that similarly situated persons had already been granted appointment. Even, the Division Bench of this Court also in number of cases has passed the orders directing the Respondent-authorities to grant appointment to the persons, who were declared physically unfit on account of colour blindness. Thereby, it was prayed that this Page 4 of 12 Uploaded by R.N. SAVARIYA(HC00179) on Tue Apr 22 2025 Downloaded on : Tue Apr 22 22:02:40 IST 2025 NEUTRAL CITATION C/SCA/1734/2023 JUDGMENT DATED: 21/04/2025 undefined petition be allowed.
9. I have heard the learned advocates for the parties and have also perused the material on record and I find that the petitioner has succeeded in the recruitment process undertaken for appointment on the post of Lok Rakshak, except, for his physical examination, where, he was declared unsuccessful on account of his colour blindness.
10. In the above backdrop, it would be relevant to refer to the observations made by the Coordinate Bench at Paragraphs - 3 to 7 in the case of Akhed Ashok Bhimabhai (Supra), which read thus :-
"3. Considering the submissions made by the learned advocates for the parties, it would appear that insofar as principal issue is concerned i.e. whether the disability of colour blindness could be a disability for employment, this Court, seeks to rely upon the decision of Division Bench of this Court in Letters Patent Appeal no.1136 of 2018 in Special Civil Application no.7595 of 2013 dated 2 nd November, 2018. It requires to be observed here that the Hon'ble Division Bench, had inter alia observed that since there was no specific provision in the rules, which provided for disqualification on the ground that the candidate suffers from colour blindness, the orders, whereby the candidature / appointments of the petitioners had been rejected/ cancelled, were all set aside and the petitioners therein were directed to be appointed from the date on which they would have been ordinarily appointed as per the select list. It also requires to be mentioned here that the said law has been reiterated in number of decisions of this Court both of learned Co-ordinate Benches, as well as, Division Benches and whereas since the issue is no more res integra, this Court deems it appropriate to follow the law laid down by the Division Bench and whereas observation at para-12 are being reproduced herein below for benefit.Page 5 of 12 Uploaded by R.N. SAVARIYA(HC00179) on Tue Apr 22 2025 Downloaded on : Tue Apr 22 22:02:40 IST 2025
NEUTRAL CITATION C/SCA/1734/2023 JUDGMENT DATED: 21/04/2025 undefined "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 treated as medically fit in spite of negative opinion after the examination."
4. As far as the principal issue is concerned, while the same is a settled position, the bone of contention in the present group of petitions is with regard to the petitioners having been approached this Court after a considerable delay. While it is the case of the petitioners that the petitioners should be treated similarly to the other candidates, who had approached this Court questioning their non-appointment and whereas reliance is placed by the learned advocates for the petitioners upon observations of the Hon'ble Division Bench of this Court in Letters Patent Appeal no.538 of 2020 dated 2nd February, 2021, more particularly whereby the Hon'ble Division Bench has inter alia observed that since the candidate therein belonged to the Scheduled Tribe and was residing in a remote area, therefore, he should not be deprived of employment if he is otherwise found to be qualified, simply on the issue that the candidate was suffering from colour blindness.
Importantly, the petitioners would rely upon a decision of the respondent authorities dated 14th September, 2022, whereby a candidate i.e. one Chaudhary Sanjaykumar Ambalal had been appointed, more particularly, the candidate having been disqualified in a recruitment process of the year 2009.Learned advocates would point-out that the said candidate had initially approached this Court by preferring Special Civil Application no.15651 of 2021 and whereas, vide an order dated 18th October, 2021, this Court had inter alia accepted the request Page 6 of 12 Uploaded by R.N. SAVARIYA(HC00179) on Tue Apr 22 2025 Downloaded on : Tue Apr 22 22:02:40 IST 2025 NEUTRAL CITATION C/SCA/1734/2023 JUDGMENT DATED: 21/04/2025 undefined of the petitioner to approach the respondents by preferring representation for agitating his grievances. It is submitted by learned advocates that the order dated 14th September, 2022 referred to herein above by the respondents, was an order passed upon the representation by the very petitioner, which was directed to be decided by this Court. Learned advocates for the petitioners would point out that the petitioner therein, having not succeeded in getting an appointment in the year 2009, more particularly his candidature having been canceled on the ground of being afflicted with colour blindness, yet, the respondent authorities themselves had deem it appropriate to appoint the said petitioner in the year 2022. Learned advocates for the petitioners would further submit that the respondent authorities having taken a stand to appoint a candidate, who had been disqualified the selection of the year 2009, it would not be open for the respondents to take a different view in the present group of petitions.
5. Per contra, the present group of petitions are vehemently opposed by Mr. Sahil Trivedi, learned AGP on behalf of the respondent - State. Learned AGP would submit that while this Court has been taking a view time and again in various petitions, that the affliction of colour blindness would not be a disqualification for appointment as a Lok Rakshak, Police Constable and whereas, one of the earliest decisions being decision of the Division Bench, which is referred to herein above, yet, what requires to be noted is that the decision of Division Bench was also of the year 2018 whereas, the petitioners have approached this Court six years thereafter. Mr. Trivedi, learned AGP, would further submit that in Special Civil Application no.10838 of 2021 vide a decision dated 5th August, 2021, learned Co-ordinate Bench, had rejected the case of an applicant, whose candidatature had been rejected on the ground that the candidate had been afflicted with colour blindness, more particularly, the recruitment process being of the year 2009. Learned AGP would submit that the Co-ordinate Bench had rejected the petition on the ground of inordinate delay. Learned AGP would further rely upon decision of Division Bench of this Court in Letters Patent Appeal no.397 of 2020, whereby a decision dated 16th October, 2009 in Special Civil Application no.12147 of 2019 by the Co-ordinate Bench, more particularly rejecting the petition of similar nature on the ground of inordinate delay had been confirmed by the Division Bench. Relying upon the said decisions, learned AGP would request Page 7 of 12 Uploaded by R.N. SAVARIYA(HC00179) on Tue Apr 22 2025 Downloaded on : Tue Apr 22 22:02:40 IST 2025 NEUTRAL CITATION C/SCA/1734/2023 JUDGMENT DATED: 21/04/2025 undefined this Court not to entertain the present petitions.
6. Heard learned advocates for the respective parties and perused the documents on record. As noted herein above, insofar as the decision on merits is concerned, the same is no more res integra inasmuch as, the law on the issue having been settled by decision of the Division Bench referred to herein above i.e. in Letters Patent Appeal no.1136 of 2018 in Special Civil Application no.7595 of 2013 dated 2nd November, 2018, in the considered opinion of this Court, the same is required to be followed.
7. As noted herein above, the only issue which arises for consideration of this Court that, would this Court entertain a writ petition, more particularly after such a considerable delay at the end of petitioner himself.
8. At the outset, in this regard, it is to be noted that the issue that the petitioners are not required to be appointed since they have come to this Court belatedly, may not be open for the respondent themselves to contend, the reason being that in writ petition i.e. Special Civil Application no.15651 of 2021, as referred to herein above vide decision dated 18 th October, 2021, this Court had acceded to the request of learned advocate for the petitioner for permitting the petitioner to approach the respondents by preferring a representation and whereas the respondents were directed to decide the representation in accordance with law within a specific period of time. It would appear as noted herein above that vide order dated 14th September, 2022 the respondents, had appointed the said petitioner in spite of noting that the petitioner had not cleared the selection process of the year 2021. In the considered opinion of this Court, the respondents having deemed it appropriate to appoint a candidate whose candidature had been rejected in spite of selection, more particularly, the process having started in the year 2009, and whereas it also appears pursuant to the order dated 14th September, 2022 that the order does not notice any special circumstance for taking a view in question, therefore, now it would not be open for the respondents to take a stand that even if the petitioners having approached this Court belatedly, more particularly, the selection pertaining to the year 2009, therefore, their cases ought not to be entertained by this Court. The State having taken a particular view in case of a particular employee, the same stand is required to be Page 8 of 12 Uploaded by R.N. SAVARIYA(HC00179) on Tue Apr 22 2025 Downloaded on : Tue Apr 22 22:02:40 IST 2025 NEUTRAL CITATION C/SCA/1734/2023 JUDGMENT DATED: 21/04/2025 undefined reiterated by this Court in case of the present petitioners, who are otherwise similarly situated to the employee/ beneficiary of order dated 14th September, 2022.
9. Insofar as the decisions of learned Co-ordinate Bench in Special Civil Application no.10838 of 2021 and Letters Patent Appeal no.397 of 2020, it requires to be observed that while the Hon'ble Division Bench, as well as, learned Coordinate Bench had taken a view that the case of the petitioners/ employees therein ought not to be entertained on the ground of delay, yet, it would appear that in a later decision, Hon'ble Division Bench, more particularly vide decision dated 2nd February, 2021 in Letters Patent Appeal No.538 of 2020 had inter alia taken a view that merely on the ground of delay, a candidate should not be deprived of employment, more particularly since in similar petitions, where the petitioners have challenged their non-appointment on the ground that they detected with the affliction of colour blindness had been interfered by the learned Co-ordinate Benches and Division Benches of this Court, therefore, the later decision of the Hon'ble Division Bench in the considered opinion of this Court, is required to be followed, more particularly since it appears that the present petitioners are otherwise similarly situated to the petitioners, who had approached this Court and whereas the only difference being that the petitioners have approached this Court belatedly.
At this stage, it would also be worthwhile to note that the aspect of belated approaching this Court, may not otherwise prejudice the respondents at all except for the benefits of seniority, this Court in almost all the cases has not awarded any back-wages to the petitioners and whereas the only benefit apart from directing appointment, which has been granted to the employee is to be treated as being appointed at the relevant point of time, when persons similarly situated to the petitioners had appointed and whereas the period of service prior to the date of service, has been directed not to be treated as period in actual service. Thus, it would appear that this Court, more particularly starting from decision dated 2nd November, 2018 in Letters Patent Appeal no.1136 of 2018 while directing appointment, had also balanced the equities by ensuring that the interest of the State is also protected, therefore, in the considered opinion of this Court, delay may not have any real bearing on the issue in question and whereas as noted herein above, since the State itself has Page 9 of 12 Uploaded by R.N. SAVARIYA(HC00179) on Tue Apr 22 2025 Downloaded on : Tue Apr 22 22:02:40 IST 2025 NEUTRAL CITATION C/SCA/1734/2023 JUDGMENT DATED: 21/04/2025 undefined deemed it appropriate to appoint the employee in the year 2022, whose candidature had been rejected pursuant to the selection of the year 2009, therefore, it may not be open for the State to agitate the issue of delay in the present group of petitions.
7. Considering the above discussion, observations and conclusions, in the opinion of this Court, the petitions would succeed. The petitioners are entitled for appointment from the date when they would have ordinarily appointed on being selected and whereas the period from the date of appointment till the date of actual joining, would not be treated as the period in actual service except for retiral benefits and fixation of seniority. Furthermore, it is clarified that the promotions given if any to persons junior to the petitioners in the merit list shall not be disturbed. The respondents to pass appropriate orders appointing the present petitioners subject to the above conditions more particularly if nothing adverse is found against the petitioners within the period of eight weeks from the date of receipt of this order. Rule made absolute to the aforesaid extent."
11. Learned AGP is not in a position to demonstrate, as to how the case of the present petitioner is different from the case of the petitioners in Akhed Ashok Bhimabhai (Supra).
12. Insofar as, the contention raised by learned AGP with regard to the delay is concerned, it would be profitable to refer to the decision of the Hon'ble Apex Court, rendered in the case of Desai Jitendra Jivanbhai (Supra), wherein, at Paragraphs 2 to 10, the Apex Court has held as under :-
"2. This appeal challenges the judgment and order passed by the Division Bench of the High Court of Gujarat at Ahmedabad dated 21.06.2022, thereby dismissing the order dated 03.09.2021 passed by the learned Single Judge of the High Court, vide which the appellant has challenged the order dated 11.01.2012. By the said order, the appellant was denied appointment to the post of Lok Rakshak on the ground that he suffered from colour-blindness.Page 10 of 12 Uploaded by R.N. SAVARIYA(HC00179) on Tue Apr 22 2025 Downloaded on : Tue Apr 22 22:02:40 IST 2025
NEUTRAL CITATION C/SCA/1734/2023 JUDGMENT DATED: 21/04/2025 undefined
3. Ms. Swati Ghildiyal, learned Counsel appearing for the State submits that although the appellant was denied the appointment in the year 2012, he had waited for eight long years for this opportunity and, as a result, was rightly denied the appointment.
4. We find that in other matter (s) where the parties had approached the Court with some delay, the High of Gujarat recognized colour-blindness is not a disability for disqualification and granted relief in favour of such persons.
5. We have perused several orders passed by the learned Single Judge of the High Court of Gujarat and which are being upheld by the Division Bench of the High Court, wherein even after some delay, the High Court has interfered and allowed the petition(s) of persons who are suffering from colour- blindness.
6. We, therefore, allow the appeal. The impugned order dated 21,06.2022 passed by the learned Division Bench of the High court and order dated 03.09.2021 passed by the learned single Judge of the High Court are quashed and set aside. The appellant (Desai Jitendra Jivanbhai) is directed to be appointed as 'Lok Rakshak'. The appointment order would be issued forthwith.
7. The appellant shall be granted deemed date from the date on which the other candidates selected from the said selection process were appointed.
8. Though the appellant would be entitled to continuity in service for all the purposes, including the retiral benefits and fixation of salary and seniority, he would not be entitled for the wages for the period between the deemed date and date of actual joining of services.
9. No order as to costs.
10. Pending application (s), if any, stand(s) disposed of."
13. From perusal of the observations made by the Hon'ble Apex Court reproduced herein above, it becomes clear that the Page 11 of 12 Uploaded by R.N. SAVARIYA(HC00179) on Tue Apr 22 2025 Downloaded on : Tue Apr 22 22:02:40 IST 2025 NEUTRAL CITATION C/SCA/1734/2023 JUDGMENT DATED: 21/04/2025 undefined Apex Court allowed the appeal of the appellant, who was denied appointment in the year 2012 on the ground of colour blindness, and therefore, the case of the present petitioner shall also be covered by the aforesaid decision of the Hon'ble Apex Court. Therefore, in view of the above referred decision of the Hon'ble Apex Court, the delay shall not come in the way of the present petitioner, who succeeded in the recruitment process for appointment on the post of Lok Rakshak in the year 2011 to 2013, except, his medical examination, where he was declared colour blind and was denied the appointment.
14. In the result, this petition is allowed. The present petitioner is held to be entitled for appointment from the date, when he would have ordinarily been appointed on being selected and whereas, the period from the date of appointment till the date of actual joining, would not be treated as the period in actual service, except, for retiral benefits and fixation of seniority. Furthermore, it is clarified that the promotions already given, if any, to the persons junior to the petitioner in the merit list shall not be disturbed. The respondents are directed to pass appropriate orders appointing the present petitioner, subject to the above conditions and more particularly, if, nothing adverse is found against him in the interregnum, within a period of eight weeks from the date of receipt of a copy of this order.
15. Rule is made absolute to the aforesaid extent. No order as to costs. Direct service is permitted.
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