Anant Visabhai Desai vs Director General Of Police

Biren Vaishnav, J

1 Rule returnable forthwith. Mr.Soaham Joshi, learned Assistant Government Pleader, waives service of notice of rule on behalf of the State – respondent.

2 Heard Ms.Nidhi Raval, learned advocate appearing for Ms.Mamta Vyas, learned advocate for the petitioner. The prayer in this petition is for a direction to quash and set aside the communication dated 08.09.2017, by which, the petitioner has been declared as unfit for the post of SRP Lokrakshak on the ground of colour vision.

3 Ms.Nidhi Raval, learned counsel for the petitioner, would submit that the issue is squarely covered by a decision of this Court rendered in Special Civil Application No. 4775 of 2020 and allied matters on 23.09.2020.

4 Having perused the decision, paras 14 to 19 of the said decision read as under:

“14. On the basis of aforesaid observations which are clearly made by division bench of this Court, the issue is almost squarely covered by aforesaid decision which is binding not only upon the Court by way of judicial discipline but also on the State authority and as such learned AGP Mr. Vyas has candidly submitted that there is no other distinguishable point available for him to confront the situation except the fact that the issue is challenged by the State Government before Hon’ble Apex Court. Learned AGP has also candidly submitted that the matter is lying merely at diary number stage and said number is also given in affidavit in reply at page 59 of the petition compilation in paragraph No. 14 bottom.

This being the situation since all the contentions permissible in law are examined by co-ordinate bench as well as by other decisions including Division Bench’s judgment as referred to above, as part of judicial discipline, the Court would not like to express any other view which is otherwise also not permissible also. In addition to this, another group of petition is also appeared to have been decided identical to the present one by co-ordinate bench of this Court on 30.6.2020 in group of petition headed by Special Civil Application No. 6868 of 2020 and as such without expressing much on this issue the Court would not like to deviate merely on the ground that the State has challenged the decision but taking note of a situation that no orders have been passed so far and just it is lying at a diary number stage, the petitions deserve to be allowed being covered by aforesaid pronouncement.

So far as other issue which has been raised about delay, the same would be insignificance for the State to raise since such an issue in view of the fact that State was very much a party to the said issue having being decided by several benches of this Court and as such the Court would not like to deviate the core issue and would like to grant relief as prayed for in the petitions.

However, while allowing the petitions the Court would surely concerned that the nature of relief and how to be granted and for that purpose the Court has an advantage and assistance of the operative part of the decision of Division Bench of this Court as stated above.

In view of above, petitioners herein being similarly situated as the petitioners in the above referred cases, deserve to be granted with the same benefit. Accordingly, the impugned orders and actions are hereby quashed and set aside. The respondents are directed to consider the case of the petitioners for appointment to the post of Lok Rakshak ignoring their medical incapacity, and if nothing adverse is found against them, they shall be appointed on the said post forthwith. Since considerable time has elapsed since the recruitment , it is left to the discretion of the respondent authorities to appoint the petitioners to any other Class-III post having equal pay if the posts of Lok Rakshak are not available. It is also directed that in case the appellants are not assigned active duty of Lok Rakshak, they may be assigned table work as an alternative.

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 petitioners in the merit list on account of the late appointment of the petitioners shall not be disturbed as a result of the relief granted to these petitioners. Subject to these limitations, the entire period commencing from the date when the petitioners 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. Accordingly, all the petitions are allowed to the aforesaid extent. Rule made absolute. Direct service is permitted.”

5 Accordingly, the petition is allowed. The respondents are directed to consider the case of the petitioner for appointment to the post of SRP Lokrakshak ignoring his medical incapacity and if nothing adverse is found he shall be appointed on the post forthwith.

It is clarified that the petitioner is entitled to the benefit of service from the date when he should have ordinarily been appointed on being selected but his earlier period shall be reckoned as actual service if necessary for qualification on promotion. In the meantime, if persons junior to the petitioner in merit list are appointed and promoted, their seniority shall not be disturbed. The entire period commencing from the date when the petitioner should have ordinarily been appointed will be treated as a part of continuous service for all other purposes including retiral benefits and fixation of their seniority. Rule made absolute accordingly.