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Judgment
Nirzar S. Desai, J
With the consent of the learned Advocates for the parties, this matter is taken-up for final hearing, today. Hence, Rule. Learned AGP waives service of rule on behalf of the Respondent-State.
By way of this petition, the petitioner has prayed to quash and set aside the decision taken by the Respondent-authorities, on the basis of the medical certificate dated 12.11.2013 and has further prayed to direct the Respondents to consider the petitioner to be a fit candidate and to pass appropriate orders of appointment, forthwith.
The brief facts of the case, leading to the filing of the present petition are as under;
The petitioner, who belongs to Socially and Economically Backward Class (in brief, ‘SEBC’), is a graduate and according to him, he possess the requisite qualifications for appointment on the post of Unarmed Police Constable (Lok Rakshak) for which he applied and during the course of medical examination, when the petitioner was examined by the Chief Medical Officer-cum-Civil Surgeon, GK General Hospital, Bhuj, Kachchh, on 12.11.2013, the petitioner was found to be suffering from abnormal colour vision. Therefore, the petitioner was not granted appointment on the post of Police Constable (Lok Rakshak) vide order dated 14.03.2014.
3.1 Though, the petitioner is denied the appointment vide order dated 14.03.2014, instead of challenging the same, the petitioner has filed the present petition, only challenging the medical certificate dated 12.11.2013, issued by the Chief Medical Officer-cum-Civil Surgeon, GK General Hospital, Bhuj, Kachchh, as can be seen from the prayers made in this petition.
Learned Advocate, Mr. Pandya, pressed into service various decisions of this Court annexed with this petition, whereby, the different Benches of this Court have considered the case of the similarly situated persons and have directed the concerned Respondent-authorities to appoint the concerned petitioners. On the basis of those decisions, learned Advocate, Mr. Pandya, submitted that the present petitioner may also be granted the similar reliefs.
4.1 In support of his submissions, learned Advocate, Mr. Pandya, placed reliance on the following decisions;
(1) Special Civil Application No. 3739 of 2018, Dated: 08.04.2019, ‘Rajeshkumar Vardhaji Sundhesha Vs. State of Gujarat’;
(2) Special Civil Application No. 3231 of 2020 and the allied matter, Dated: 10.02.2020, ‘Desai Ronak Jayrambhai Vs. Director General of Police’;
(3) Special Civil Application No. 6671 of 2020 and the allied matters, Dated: 30.06.2020, ‘Bhavikkumar Bharatbhai Vasava Vs. State of Gujarat’;
(4) Special Civil Application No. 8433 of 2020, Dated: 23.07.2020, ‘Rajendrasinh Agarsangbhai Dodiya Vs. State of Gujarat’;
(4) Letters Patent Appeal No. 538 of 2020, Dated: 02.02.2021, ‘Divyeshkumar Ashokbhai Patel Vs. State of Gujarat’;
4.2 Learned Advocate, Mr. Pandya, by relying on the aforesaid decisions submitted that, as the petitioner can be considered for routine office / desk-work and considering the view taken by the Coordinate Benches of this Court, the case of the present petitioner is also required to be considered in light of the above referred decisions.
Learned AGP, Mr. Davda, vehemently opposed this petition and submitted that it is not in dispute that the various Coordinate Benches of this Court have taken a view that colour blindness cannot be treated as a disease to disqualify a person from getting appointment and the persons with colour blindness can be offered routine office / desk-work. He, however, invited the attention of this Court to the decision of this Court dated 02.09.2021, rendered in Special Civil Application No. 12343 of 2021 in the case of ‘Bhaveshkumar Ratanbhai Patel Vs. State of Gujarat and Others’ and submitted that the learned Single Judge of this Court, taking note of the fact that the said petition challenged the action of the Respondent-authorities, rejecting the candidature of the petitioner for appointment on the post of Police Constable (Lok Rakshak) on the ground of colour blindness, was filed after the delay of seven years, as the impugned order was passed in the year 2014. When the aforesaid order was challenged by way of Letters Patent Appeal No. 1121 of 2021, the Division Bench of this Court also rejected the same vide order dated 13.07.2022.
5.1 Learned AGP, Mr. Davda, submitted that the case of the present petitioner is squarely covered by the aforesaid decisions and as there is a delay of about eight years, which is not explained in this petition, this petition may be dismissed on the ground of delay, itself.
5.1.1 At this stage, learned Advocate, Mr. Pandya, though, tried to explain the delay and submitted that after the petitioner came to know about the various decisions of this Court, whereby, the Respondent-authorities were directed to consider the case of the concerned petitioners, ignoring their colour blindness, immediately this petition was filed and therefore, this petition may be entertained by overlooking the delay in view of the various decisions of this Court on the subjetmatter.
Heard learned Advocates for the parties and perused the material on record and this Court finds that a similarly situated person, namely Bhaveshkumar Ratanbhai Patel, who was denied appointment on the post of Police Constable (Lok Rakshak) on the ground of colour blindness, had filed Special Civil Application No. 12343 of 2021, which came to be dismissed by the Coordinate Bench of this Court vide order dated 02.09.2021, on the ground of delay.
6.1 When the aforesaid order was challenged by way of Letters Patent Appeal No. 1121 of 2021, the Division Bench of this Court also rejected the same vide order dated 13.07.2022, while observing as under at Paragraphs-4 to 6 thereof;
“[4.0] We have heard learned advocates appearing for the respective parties and perused the judgment of the learned Single Judge. It is an undisputed fact that the recruitment which took place in the year 2011 was challenged after a period of 10 years in the year 2021 by filing writ petition without explaining the delay and hence, the same was rightly dismissed by the learned Single Judge on the ground of delay. [5.0] The decision relied upon by the learned advocate Ms. Jhala rendered in Letters Patent Appeal No.1002 of 2021 on 02.02.2021 squarely applies to the facts of the present case. The observations made in paragraphs 5.1 and 5.2 read as under:-
"5.1 The decision of the Supreme Court in Uttar Pradesh Vs. Arvind Kumar Srivastava [(2015) 1 SCC 237] which was relied on by learned single Judge, enunciates the principle that the delay would bar the relief even in such cases where a person is seeking the benefit on the basis that similarly situated persons were granted the benefit. The doctrine of acquiescence would come into play.
5.2 Following observations were reproduced from Arvind Kumar Srivastava (supra),
“4. It is true that ordinarily when an employee is given relief by the court, similarly situated persons would not be denied the relief on the plain ground that such person had not approached the court. However, this may not be a rule of universal truth more particularly in the cases which are marred by delay, latches and acquiescence and therefore, barred for relief.”
5.2.1 The Supreme Court sounded a caution in this regard in the following words,
“However, this principle is subject to well recognised exceptions in the form of laches and delays as well as acquiescence. Those persons who did not challenge the wrongful action in their cases and acquiesced into the same and woke up after long delay only because of the reason that their counterparts who had approached the court earlier in time succeeded in their efforts, then such employees cannot claim that the benefit of the judgment rendered in the case of similarly situated persons be extended to them. They would be treated as fencesitters and laches and delays, and/or the acquiescence, would be a valid ground to dismiss their claim.” (para 22.2)
5.2.2 It was stated,
“5. In the present case, the aforesaid principle applies inasmuch as more than eight years have lapsed. It was after a yawning gap of eight years that the petitioner filed present petition seeking appointment in connection with the recruitment process which was held in the year 2011 and in which the petitioner had participated at that time. Not only that the delay and inaction on part of the petitioner is evident, there is also no justification whatsoever except a vague reason stated in ground (h) in the memorandum of the petition that, “impugned order was passed in the year 2011 and petitioner is now challenging the same after delay”. It was stated further by the petitioner that after he was disqualified in the process of recruitment in the year 2011 he became hopeless therefore delay may be countenanced. This does not convince to make it plausible and acceptable ground to countenance the gross delay of more than 8 years in approaching the court and seeking relief, which is otherwise stale in itself.”
[6.0] Hence, we do not find any reason to entertain the present appeal and hence, the same stands dismissed.”
6.2 It may be noted that, in that case also, the challenge was made to the order denying appointment on the ground of colour blindness, after the period of about seven years and in the instant case there is a delay of about eight years, since, the impugned medical certificate was issued in the year 2013, which came to be challenged in the year 2021, which is not explained in this petition. Even the learned Advocate, Mr. Pandya, appearing for the petitioner also failed to point out any reason or ground, which would justify the delay, except, making the submission that similarly situated persons, who had preferred such petitions earlier, succeeded before this Court and when the petitioner came to know about the same, he filed the present petition, immediately.
6.3 Under the circumstances, in the case on hand also, since, the order denying appointment, which was passed in the year 2013, came to be challenged only in the year 2021, i.e. after the delay of about eight years, which is not explained, this petition deserves to be dismissed.
Resultantly, this petition fails and the same is dismissed. Rule is discharged. No order as to costs.