Abhilash Kumar And Ors vs Union Of India And Ors

REKHA PALLI, J

The present writ petition under Article 226 of the Constitution of India has been preferred by the 16 petitioners assailing their termination from the

CISF vide orders dated 04.09.2017 and 08.09.2017. The petitioners have also assailed the order dated 08.01.2018, vide which the appeal against their

termination has been rejected by the respondent no.2/Inspector General (IG), CISF.

The brief facts as culled out from the record are that pursuant to an advertisement issued in January, 2015 by the respondents, the petitioners had

applied for the post of Constable (GD) in the CISF. Upon qualifying the Physical Standard Test, the petitioners had appeared in the Written

Examination in which they were declared successful. After undergoing the Medical Examination in May, 2016, wherein they were found ‘fit’,

the petitioners were selected and offered the post of Constable (GD) in the CISF as per the merit list published in February, 2017.

Based on their selection, the petitioners were issued appointment letters on 15.03.2017 and directed to report at their respective Recruitment

Training Centres for basic training. The offer of appointment issued to the petitioners clearly specified that they would be on probation for a period of

two years. It transpires that after the petitioners reported at the training centres, a Colour Blindness Test of all the recruitees, including the petitioners

herein, was conducted at the CISF Hospital of the respective Recruitment Training Centres, wherein they were found to be suffering from defective

colour vision. However, before taking any action to terminate their services, the petitioners were re-examined by a Review Medical Board held

between 26.07.2017 to 31.07.2017 at the Composite Hospital, CRPF Jharoda Kalan, where they were once again declared ‘unfit’ due to

defective colour vision.

Based on the aforesaid findings, the services of the petitioners were terminated vide the impugned letters dated 04.09.2017 and 08.09.2017, under

Rule 25(ii) of the CISF Rules.

Aggrieved by their termination, the petitioners had preferred an appeal before the respondent no.2/ Inspector General (IG), CISF.

Thereafter, the petitioners had approached this Court by way of filing W.P.(C) No.10247/2017, complaining of the in-action on the part of the

respondent no.2/ Inspector General (IG), CISF in deciding their appeal. The said writ petition was disposed of with a direction to the respondents to

decide the petitioners’ pending appeal by passing a detailed and speaking order within a period of eight weeks. The respondents had accordingly,

vide the impugned order dated 08.01.2018, rejected the petitioners’ appeal, leading to the filing of the present petition.

Mr.Kumar Rajesh Singh, learned counsel for the petitioners submits that the action of the respondents in terminating the services of the petitioners

after having appointed them on being found medically fit in the initial Medical Examination, is arbitrary and illegal. He submits that all the petitioners

had lost out on precious years of their life in successfully completing the selection process, which had been initiated more than two years ago and,

therefore, their termination at a belated stage when they had already undergone training for three to five months, was not only unfair, but was also

stigmatic as the decision had been taken without keeping in mind the fact that most of the petitioners had now become over-age for any other

recruitment.

Mr.Singh further submits that the termination of the petitioners is contrary to the authoritative pronouncement of a Co-ordinate Bench of this Court

in the case of Sudesh Kumar v. UOI & Anr & otherconnected matters[W.P.(C) No.5077/2008 & connected matters] as also in the case of

Sh.P.Suresh Kumar v. UOI & Ors. & connectedmatters [W.P.(C) No.356/2013 & connected matters], wherein this Court had prohibited the

respondents from invalidating the petitioners therein on account of Colour Blindness and had specifically directed that they be permitted to serve till the

age of superannuation, subject to their being otherwise entitled to do so by ignoring their Colour Blindness. The contention of Mr.Singh, thus, is that the

termination orders qua the petitioners having been admittedly passed only on the ground of their suffering from defective colour vision, the same are

unsustainable and liable to be quashed in the light of the decision of this Court that persons cannot be terminated solely on the ground that they suffer

from colour blindness.

On the other hand, Mr.Satyendra Kumar, learned counsel for the respondents while defending the impugned termination orders, submits that the

action of the respondents is strictly in accordance with the policy guidelines dated 27.03.2013 issued by the Ministry of Home Affairs for

Recruitment/Retention in respect of Central Armed Police Forces and Assam Rifles Personnel, which guidelines were framed keeping in view the

decisions of this Court in Sudesh Kumar(supra) and Sh.P.Suresh Kumar (supra). Therefore, he contends, the action of the respondents in terminating

the services of the petitioners on the basis of the extant guidelines, cannot be faulted. He further submits that the decision in the case of Sudesh

Kumar (supra) relied upon by the learned counsel for the petitioner, is not at all applicable to the facts of the present case as the said case related to

personnel who were sought to be invalidated on the ground of defective colour vision after many years of service unlike the present petitioners, who

were only probationers at the time of their termination.

Mr. Kumar further submits that the said decisions are even otherwise inapplicable to the facts of the present case as all the petitioners were

admittedly recruited after 27.03.2013, i.e., after issuance of the Policy Guidelines which clearly state that any person who has a defective colour vision

or is Colour Blind will not be recruited. He submits that not only do the petitioners admittedly suffer from defective colour vision, but they had all given

an undertaking that in case they are found to be suffering from defective colour vision, they would be liable to be boarded out as per the aforesaid

policy guidelines dated 27.03.2018. Therefore, he prays that the present petition be dismissed.

We have heard the learned counsel for the parties at length and with their assistance, perused the records. Before dealing with the rival

contentions of the parties, we may note that it is an undisputed position before us that all the petitioners are suffering from defective colour vision.

Therefore, the only issue which needs to be determined is as to whether the petitioners having once been appointed, can their services be subsequently

terminated on the ground of their suffering from Colour Blindness, while they were still on probation.

Since the termination of the petitioners is based on the Policy Guidelines dated 27.02.2013, we deem it appropriate to note the contents thereof in

extenso:-

“ F.No.1-45024/1/2008-Pers.II

Government of India/Bharat Sarkar

Ministry of Home Affairs/Grih Mantralaya

(Police-II Division)

          North Block, New Delhi -01

          Dated, the 27th Feb., 2013       ORDER

Subject : New Policy Guidelines on recruitment/retention in respect of Central Armed Police Forces (CAPFs) and Assam Rifles(ARS) personnel

having defective vision including colour blindness- regarding

 The standing policy of the Government is that only persons who are fully fit in all respects i.e. in SHAPE-I are to be recruited to the CAPFs and

AR. It is and has always been the standing policy of the Government that if any member of the CAPFs & AR is declared permanently unfit while in

service, he is boarded out from service. The reasons for this are very clear. The personnel of the CAPFs & AR are issued with lethal weapons and

are expected to use lethal force against insurgents and terrorists. If any of the personnel of the CAPFs & AR is not fully fit, he will either not be able

to protect himself or his colleagues in a battle with insurgents/terrorist groups or he will run the risk of killing innocent people especially if his eyesight

is weak and he cannot distinguish between uniforms, etc. The policy of boarding out personnel who had been declared unfit applies to all types of

unfitness whether it be unfitness in physical parameters or in any other SHAPE component and that is how it should have remained. However, in the

years 1991,1997, 2002, 2008, 2011 and 2012, various orders were issued saying that those who had been recruited prior to a particular date and were

found to be colour blind at a later stage, would not be boarded out while those recruited after that date would be boarded out. This marked a

departure/an exception from the standing policy and this departure/exception was not in the public interest-these departures were also bad in law

because no policy could apply retrospectively. For the above reasons, it has been decided as follows:

(i) The circulars/orders/instructions issued by the Ministry of Home Affairs or by any of the Central Armed Police Force (CAPF) & Assam Rife(AR)

vide communication No. R.II 31/91E-II dated 16.5.1991, No. R.II-31/97-E-II dated 12.6.1997,

No. 1-45020/52/2001- Pers-II dated 17.05.2002, No.I45024/1/2008-Pers-II dated 29.10.2008, No.I-45024/1/2008Pers-II dated 11.3.2011 and No.I-

45024/1/2008-Pers-II dated 08.12.2011, are withdrawn with immediate effect. Further, any reference to the colour blindness especially Para- 5 & 6,

including those for the gazetted officers contained in New visual Standard Policy No.I-45024/1/2008-Pers-II dated 18.5.2012 also stands withdrawn

with immediate effect.

(ii) Any person who has defective vision or is colour blind will not be recruited in future. If any person is wrongly recruited despite having defect in

vision or despite being colour blind, he will be promptly removed from service as soon as the defect is noticed. The Doctor who declared him fit will be

proceeded against in Departmental Proceedings for major penalty. The person who was wrongly recruited will not be allowed to continue to take

advantage of this wrong act, and the Govt. cannot be bound by the wrong act of any of its functionaries.

(iii) It is however, clarified that the present directions will only apply prospectively. Those personnel recruited earlier and thereafter found to be colour

blind will not be boarded out on account of colour blindness. But, it is reiterated that, any person recruited herein after, if found colour blind even after

recruitment shall promptly be boarded out of service. Keeping in view the directions of the Hon'ble High Court and in the public interest, the services

of the colour blind personnel recruited prior to 18.05.2012, would be utilised for the jobs where public safety issues are not involved. Some of the

posts/cadres identified for such personnel by CAPFs are enlisted in the Annexure I.

(iv) As the Colour Blindness Is a congenital disease, to obviate the Induction of colour blind personnel in CAPFs &Assam Rifles by error or by

manipulation in any of the future recruitments, an undertaking shall be taken from all the selected candidates at the time of joining that if at any stage

of their service career, if they are found to be colour blind, they will be boarded out as per the SHAPE Policy in vogue.

 2. This issues with the approval of Union Home Secretary.

-sd-

(Dinesh Mahur)

Director (Pers.)â€​

The aforesaid Guidelines leave no manner of doubt that any person who has a defective vision or is colour blind, is ineligible for recruitment in the

CAPF or Assam Rifles. In fact, if any person is wrongly recruited despite having the aforesaid defects, he is to be promptly removed from service as

soon as the defect is noticed and appropriate disciplinary action for major penalty is required to be initiated against the Doctor who had declared him

‘fit’.

The aforesaid Guidelines are not under challenge before us and therefore, on this ground alone, the challenge of the petitioners is liable to fail as it

has neither been urged before us that the petitioners are not suffering from Colour Blindness, nor it has been contended that the aforesaid Guidelines

are inapplicable to them.

We have also carefully considered the decisions of this Court in the case of Sudesh Kumar (supra) and Sh.P.Suresh Kumar (supra) and find that

the same are not at all applicable to the facts of the present case. In Sudesh Kumar (supra),the Court was dealing with force personnel who had

already served for at least 4 to 5 years before being invalidated from service on the ground of Colour Blindness. In that case, the Court had also

noticed a circular dated 17.05.2002 and circular dated 11.03.2011 issued by the respondents themselves, in which it had been decided that those

members of the CAPF who had been inducted in service prior to 17.05.2002 despite suffering from Colour Blindness, would be retained in service and

also in promotion if otherwise found ‘fit’. Similarly, in Sh.P.Suresh Kumar (supra), the concerned personnel had been recruited prior to

27.02.2013, i.e., before the issuance of the guidelines now applicable to the petitioners.

Per contra, the facts of the present case clearly show that the petitioners were recruited after a condition had been introduced in the Policy

Guidelines dated 27.02.2013 specifically prohibiting the recruitment of persons suffering from Colour Blindness or defective vision. Even otherwise,

we are of the view that once the respondents have specifically prescribed a set of medical standards for recruitment, it is not open to the Court to

tinker with the said standards or to hold that the action of the respondents in terminating the services of the petitioners, who admittedly did not meet

the criteria prescribed in the Guidelines, is in any manner illegal.

For the aforesaid reasons, we see no merit in the writ petition which is dismissed as meritless, with no order as to costs.