Gujarat High Court
Dineshbhai Govindbhai Kathechiya vs State Of Gujarat Through Secretary on 26 April, 2018
Author: A. S. Supehia
Bench: A.S. Supehia
C/SCA/7638/2013 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 7638 of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE A.S. SUPEHIA
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1 Whether Reporters of Local Papers may be allowed to
see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
4 Whether this case involves a substantial question of law
as to the interpretation of the Constitution of India or any
order made thereunder ?
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DINESHBHAI GOVINDBHAI KATHECHIYA
Versus
STATE OF GUJARAT THROUGH SECRETARY
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Appearance:
(MR MUKUL SINHA)(859) for the PETITIONER(s) No. 3,6
MR NIKHIL S KARIEL(2315) for the PETITIONER(s) No. 1,2,4,5
MR PRANAV TRIVEDI, AGP ((1) for the RESPONDENT(s) No. 1,2,3
RULE SERVED(64) for the RESPONDENT(s) No. 1,2,3
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CORAM: HONOURABLE MR.JUSTICE A.S. SUPEHIA
Date : 26/04/2018
ORAL JUDGMENT
1. In the present writ petition the petitioners have prayed for directions to declare the decision of the respondents of Page 1 of 13 C/SCA/7638/2013 JUDGMENT refusing to appoint them on the post of Lok Rakshak as arbitrary and illegal.
2. Brief facts:
2.1. An advertisement dated 11.02.2009 was issued by the respondents to fill-up the post of Lok Rakshaks. The petitioners, who were eligible for the post of Lok Rakshaks, applied for the post and successfully passed the written examination and oral interview. They were also medically examined by the civil surgeon and were declared medically fit for the table work.
2.2. Thereafter, vide letter dated 12.07.2011 the petitioners were asked to remain present in the Police Commissioner's Office with all the original certificates within seven days. In the meantime, they were also told to give a bond of Rs. 1,000/-
in case they fail to complete the training period. 2.3. Since nothing was heard, the petitioners went to the Shahibaug Police Commissioner's Office to inquire. It was informed to them that at the relevant point of time all training centers were full and, therefore, they will have to wait for their turn. For one year, they did not receive any intimation from the Commissioner's Office regarding their appointment. However, they came to know from some reliable sources that Page 2 of 13 C/SCA/7638/2013 JUDGMENT few persons from the same select list are working as Lok Rakshak in Ahmedabad. The petitioners then decided to prefer an application under the Right to Information Act, 2005. It is the case of the petitioner that they received reply from the concerned authority on 23.01.2013. In the said letter, it is clearly mentioned that they have been selected by the selection board and they have been included in the list of "fit for table work". The petitioners further submit that on 11.01.2013, they received one letter from Additional Police Commissioner refusing their appointment for the reason that as per the letter of the professor and other officers of the Medical College, Civil Hospital and also as per the letter received from Gandhinagar, Police Head Quarter, it was decided not to appoint those persons who are certified by the Medical Board as "fit for table work" and thereby they have been declared unfit for the Lok Rakshak Post.
3. Learned advocate Mr. Nikhil Kariel appearing on behalf of the writ petitioners has submitted that the respondents have not appointed the petitioners as Lok Rakshak only for the reason that they are colour blind. He has submitted that the respondent authorities are not justified in refusing the appointment of the petitioners, since, "colour blindness" is not disqualification as per the rules for the purpose of Page 3 of 13 C/SCA/7638/2013 JUDGMENT appointment to the post of Lok Rakshak. In support of his contention, he has placed reliance on the decision of the apex court rendered in the case of Union of India and ors Vs. Satyaprakash Vashishth, reported in 1994 (Suppl.) (2), S.C.C.
52. He has also submitted that in fact in the case of one Unarmed Police Constable who was declared unfit in view of his colour blindness approached this Court and by the judgment rendered in the his case i.e Khant Harischandra Amarsinh Vs. Superintendent of Police, reported in 2003 (4) GHJ 300, the order of termination was quashed and set aside. In view of the aforesaid submission, he has urged that the respondents may be directed to appoint the petitioners on the post of Lok Rakshak.
4. In response to the aforesaid submissions made by the learned advocate Mr. Kariel, learned Assistant Government Pleader Mr. Trivedi, while placing reliance on the affidavit has submitted that the petitioners are not entitled for the post of Lok Rakshak since, they are unfit due to their colour blindness. He has submitted accordingly, the petitioners were referred to the Medical Board and after the Medical Board intimated that they are not fit for the post of Lok Rakshak, their appointment orders are not issued. He has Page 4 of 13 C/SCA/7638/2013 JUDGMENT placed reliance on the averments made in the affidavit that the appointments of the Lok Rakshak is governed by the advertisement dated 11.02.2009, Resolution dated 28.12.2006 as well as the circular dated 09.09.2011 and as per the aforesaid resolution and circular they are required to undergo the physical examination and if they are declared fit, in that case, only they would be entitled for the appointments.
5. He has placed reliance on the letter dated 29.08.20012, wherein the petitioners were sent for physical examination to the Civil Surgeon, Civil Hospital. He has invited the attention of this court that the same were sent as per the requirement of Bombay Civil Services Rules, Volume-2, Chapter-3 and Appendix-7. He has submitted that the aforesaid rules require a certificate of fitness from the Civil Surgeon. The petitioner being detected of colour blindness; their cases were not considered fit for appointment. In this view of the matter, he has submitted that no interference is required by this court.
6. I have considered the rival contentions made by the learned advocates for the respective parties to the lis.
7. In the present writ petition, the sole ground for which the appointment of the petitioners to the post of Lok Rakshak is denied emanates from the certificate of physical fitness Page 5 of 13 C/SCA/7638/2013 JUDGMENT issued by the Civil Surgeon of Civil Hospital, Ahmedabad. Initially, the petitioners were issued the certificate that they were fit for the table work since, they are suffering from colour blindness. Unquestionably, as reflected in the communication dated 29.08.2012, the petitioners are referred to for medical examination under the Bombay Civil Services Rules Chapter-3 and for obtaining the certificate as per Appendix-7. At this stage, it is required to be noted that in fact the aforesaid rules are repealed by the Gujarat Civil Services (General Conditions) Rules, 2000, however, the corresponding appendix of the Bombay Civil Services Rules is Rule 11 and the relevant Appendix-3 of Annexure-B of the Gujarat Civil Services (General condition of Services), Rules 2002 are pari materia to the Bombay Civil Services Rules, Chapter-3, as stated in the letter dated 29.08.2012. The Appendix-A of Appendix-3 under Rule 11 of the Gujarat Civil Services General Conditions of Rules, 2002 also laid down the similar conditions as to the Bombay Civil Services Rules, Chapter-3. At this stage, it would be gainful to extract the provisions Appendix-III of Rule 11 of the Gujarat Civil Services (General Condition of Services), Rules, 2002.
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C/SCA/7638/2013 JUDGMENT Relevant extract of Rule 11 thereof is reproduced as below:
RULE 11 : Certificate of physical fitness a prerequisite for substantive appointment or continuance in service (1) 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.
(2) x x x x Note 1.-Rules for the medical examination of the candidates as to their physical fitness for Government service have been embodied in Appendix III.
Note 2. XXxX Note 3 XXX Note 4.- XXXX Note 5.-
(i) For a proper observance of the procedure in the above Notes 3 and 4 above, it is necessary that intimation regarding unfitness should immediately on receipt, be communicated to the person concerned with a note that appeal, if any, must be made by the Government employee concerned, within one month from the date of communication of the findings of the Medical Officer and that if any medical certificate issued by the Registered Medical Practitioner is produced as piece of evidence about the possibility of an error of judgment in the decision of the Medical Officer who examined him in the first instance the certificate must contain a note by the Medical Practitioner Concerned to the effect that it has been given full knowledge of the fact that the candidate has already been rejected as unfit for Government servcie by the Medical Officer.
(ii) XXXXXX
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C/SCA/7638/2013 JUDGMENT
Schedule "B' reads as under:
1. When a candidate for admission into the Civil Services of Government, appears before the medical authority for visual test, the medical authority shall be guided by the different minimum standards as prescribed in Annexure 'A' to this Schedule. This is the "Sorting Out" stage, where the obviously suited are certified fit without further trouble.
2. The doubtful and unsuitable cases shall be referred to a "Board of Referees", comprising of at least three ophthalmologists who shall get the cases examined on the following points :
(i) Previous record of glasses worn.
(ii) Determination of refractive error under homatropine.
(iii) Fundus changes, particularly in the anterior part of choria-retina.
(iv) Vitreous changes.
(v) Absolute Visual Acuity.
(vi) Radius of curvature of cornea.
(vii) Ascertainment of the nature of his work, particularly in relation to subjective and objective hazards.
And shall assess the visual capacity against the visual task expected in which they shall be guided by certain classic standards according to the work to be assigned to the candidate.
3. The Board shall have the right to order the re-examination of a candidate annually for three years to determine the stability or unstability of a refractive error before he is finally confirmed.
4. The "Board of Referees" decision shall be final and irrevocable.
5. When a candidate is referred to a Medical Board, the Board shall be guided by the standards laid down in Annexure 'A' (Preliminary standards) and those who fall short of the standard shall be referred to the "Board of Referees".
6. Rules for the guidance of Board of Referees are as specified in Annexure 'B'
8. Annexure 'A' of Appendix-III which is relevant for deciding the controversy raised in the present petition reads under:
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C/SCA/7638/2013 JUDGMENT ANNEXURE 'A' of APPENDIX III Preliminary Visual Standard for all Services Group 'A' For posts requiring very high degree of visual acuity with unaided eye Visual acuity unaided vision is not less than 6/6 in one eye and not less than 6/9 in the other.
Posts for which such a higher standard is required : Armed and unarmed Police etc. Group 'B' For post requiring a very high degree of vision acuity with glasses and moderate degree without glass Visual acuity 6/24 each eye without glasses.
6/6 each eye with 2.5 D after correction.
Normal colour vision as tested with the Ishihara test. No evident signs of infective condition of the external eye e.g. Trachoma.
No squint.
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. A conspectus of the aforesaid rules and the requirement of the Appendix, would clarify that the same do not refer to colour blindness, which is treated as a predicament for the appointment of the petitioners to the post of Lok Rakshak. In Page 9 of 13 C/SCA/7638/2013 JUDGMENT the aforesaid rules, the colour blindness is not provided as a disqualification to the post to any Class-III posts, indisputably the post of Lok Rakshak, for which the petitioners seek appointment falls under Class-III post. In Group 'A', which refers to "Armed and unarmed Police etc.", the requirement is "very high degree of visual acuity with unaided eye. It is not the case of the respondents that the petitioners are having any myopic vision for which they require the aid of glasses. Their case will not fall under Group 'B' which refer to "a very high degree of vision of acuity with glasses and moderate degree without glasses". The posts under Group 'D' which refer to desk work also does not refer to colour blindness as a disqualification. Hence, it is ostensible that the respondents have acted contrary to the rules which govern their medical fitness.
10. The Supreme Court in the case of Satya Prakash Vashishth (supra) while examining a similar issue and rules prescribed for the post of Sub-Inspector (Executive) has held that colour blindness was not a disqualification, as the same was not incorporated in the rules. In the judgment rendered in the case of Khant Harishchandra (supra), this court while examining the case of Unarmed Constable, who was having colour blindness, has set aside the termination and it is Page 10 of 13 C/SCA/7638/2013 JUDGMENT observed that "It cannot be ipso facto judged that the colour blindness, is itself a disqualification for any post in question." It is also observed that there are no specific provisions which treats colour blindness as a disqualification or unfitness for the post of Unarmed Police Constable. In the present case, the petitioners have applied for the post of Lok Rakshak, which is Class-III post and stands at equal pedestal to the post of Unarmed Police Constable. The advertisement dated 11.02.2009 referred by the learned Assistant Government Pleader does not reflect any clause which denies appointment to the post of Lok Rakshak to such candidates who suffer from colour blindness. The Resolutions dated 28.12.2006 & Circular dated 11.02.2009 are neither annexed with the affidavit in reply nor they are shown to this Court. Hence, the less the law enunciated in the aforenoted judgments will prevail.
11. On the backdrop of the aforenoted pronouncement of law by the Apex Court and on a careful scrutiny of the rules and provisions of appendix under which the petitioners are sent for physical examination, this court is of the opinion that the respondent authorities have illegally and arbitrarily refused the appointment of the present writ petitioners Page 11 of 13 C/SCA/7638/2013 JUDGMENT without properly examining the rules governing their medical examination.
12. Learned advocate Mr. Kariel has fairly stated that in the alternative the petitioners are ready and willing to do table work or desk work if they are appointed on such post.
13. Having regard to the aforesaid submissions made by the learned advocate appearing on behalf of the petitioners, the respondents are hereby directed to consider the case of the petitioners for the appointment to the post of Lok Rakshak ignoring their color blindness, and if nothing adverse is found against them, they shall be appointed on the said post forthwith. However, it is left to the discretion of the respondent authorities to appoint them to any other Class-III post having equal pay if the post of Lok Rakhshak is not available. It is also directed that in case the petitioners are not assigned the active duty of Lok Rakshak, they may be assigned the table work as an alternative.
14. Necessary orders shall be passed by the respondent authorities within a period of six weeks from the date of receipt of this order. Necessary benefits - like seniority as well as continuity of service shall also be incorporated in the Page 12 of 13 C/SCA/7638/2013 JUDGMENT orders appointing them. However, as observed by the Division Bench in the judgement rendered in the case of Khant Harischandra (supra), the petitioners shall not be entitled to any back wages.
(A. S. SUPEHIA, J) URIL Page 13 of 13