Vijaykumar Arajanji Thakor vs State Of Gujarat

A.C. Rao, J

Heard learned advocates appearing for the respective parties through video conferencing. Rule returnable forthwith. Mr.Ishan Joshi, learned Assistant Government Pleader waives service of notice of rule on behalf of respondent State. With the consent of the learned advocates for the respective parties, as the issue involved in this petition has already been decided by this Court, the present petition is being taken up for final hearing today.

In this petition, under Article 226 of the Constitution of India, the short question is whether the petitioner could have been sidelined for being appointed to the post of armed/unarmed police constable/Lokrakshak as per his merit with all consequential benefits. As the issue involved in the present petition has already been discussed in earlier petitions, without delving into the facts in detail, the main grievance of the petitioner is required to be looked into as to whether he could be sidelined for such appointment on the ground of his medical incapacity of colour blindness.

Mr. Devendra Pandya, learned advocate for the petitioner invited my attention to a common oral order dated 26.07.2018 passed in a group of petitions being Special Civil Application No. 15431 of 2017 and allied matters where similar cases were considered. He submitted that the aforesaid order of the learned Single Judge was carried in appeal before the Division Bench of this Court vide Letters Patent Appeal No. 1136 of 2018 and the appeal was allowed vide judgement and order dated 02.11.2018.

3.1 Mr. Pandya has further drawn the attention of this court to the decision of the co-ordinate bench of this court rendered in Special Civil Application No. 3739 of 2018 on 08.04.2019 whereby this court after discussing various decisions of the Apex Court allowed the petitions and gave certain directions. He has also relied on a decision of this court rendered in Special Civil Application No. 3231 of 2020 with Special Civil Application No. 3236 of 2020 on 10.02.2020.

3.2 Mr. Pandya has also relied on the decision of the Apex Court in the case of Bir Bajrang Kumar vs. State of Bihar and Others reported in AIR 1987 SC 1345, wherein in paragraph 2 it is stated as under :

"2. Heard counsel for the parties. After going through the record of the case it appears that one of the cases involving an identical point has already been admitted by the High Court but another identical petition was dismissed by the same High Court. This, therefore, creates a very anomalous position and there is a clear possibility of two contradictory judgments being rendered in the same case by the High Court. In these circumstances, we allow this appeal and set aside the order dismissing C.W.J.C. No. 163 of 1985. This appeal is remanded to the High Court to be heard along with C.W.J.C. No. 5728 of 1984 which is pending hearing."

This Court in petitions being Special Civil Application No. 3231 with 3236 of 2020 followed the decision rendered by this court in Special Civil Application No. 3739 of 2018 as well as Special Civil Application No. 15431 of 2017 and passed the following order :

"5. This Court in Special Civil Application No. 15431 of 2017 and allied matters considering the law laid down by this Court and the relevant provisions of Gujarat Civil Services (General Condition of Services) Rules, 2002 held in paragraphs no. 5.3 to 6.1 as under:

"5.3 It was unequivocally held that the colour blindness would not lead to disqualification from being appointed to the post of Unarmed Police Constable as under,

"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 the aforesaid rules, the colour blindness is not provided as a disqualification to the post to any ClassIII 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."

5.4 The Court proceeded to rely on an Apex Court decision,

"10. The Supreme Court in the case of Union of India and ors Vs. Satyaprakash Vashishth [1994 (Suppl) 2 SCC 52] 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 Harischandra Amarsinh Vs. Superintendent of Police [2003 (4) GHJ 300], this Court while examining the case of Unarmed Constable, who was having colour blindness, has set aside the termination and it is 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."

Reverting to the facts of the present case, in case of each of the petitioners, though the competent authority issued letters of appointment to them, the actual appointment was not given on the ground that in the medical examination, the petitioners were noticed to be colour blind. Having regard to the position of law as laid down by this Court in Shaikh Tahirhusain Mohmmed Hanif (supra) as well as in Dineshbhai Govindbhai Kathechiya (supra), the action on the part of the respondents in not granting the appointment to the petitioners, is rendered arbitrary and illegal. The petitioners have to be treated as qualified and to be entitled to be appointed to the post in question.

6.1 As a result of above, the respondents are hereby directed to act upon the appointment orders already issued to the respective petitioners and consider to appoint them on the post of Unarmed Police Constable, by not treating their colour blindness as ineligibility and ignoring the colour blindness, if nothing adverse is otherwise found against them."

It is not in dispute that the case of the petitioners is now covered by the decision rendered by this Court in Letters Patent Appeal No. 1136 of 2018 wherein this Court directed the respondents to consider the case of the appellants for appointment to the post of Lokrakshak ignoring their colour blindness and if nothing adverse against them is found. The petitioners therein were directed to be appointed on the said post forthwith. The Division Bench considering the issue on hand held as under in paragraph no. 12 to 15:

"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.

This Court is of the opinion that the view adopted by the learned Single Judge in Dineshbhai Govindbhai Kathechiya (supra), is in consonance with the settled legal position and the relevant rules and does not find it possible to agree with the view adopted by the learned Single Judge in the present case.

The appeals stand allowed accordingly. The impugned judgment and order dated 11.07.2018 passed by the learned Single Judge in Special Civil Application No.7595 of 2013 is hereby quashed and set aside. The writ petition being Special Civil Application No.7595 of 2013 is hereby allowed to the following extent.

The respondents are directed to consider the case of the appellants for appointment to the post of Lok Rakshak ignoring their colour blindness, 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 was made, it is left to the discretion of the respondent authorities to appoint the appellants to any other Class-III post having equal pay if the post of Lok Rakshak is 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."

In view of the above, petitioners herein being similarly situated as the petitioners in the abovereferred cases, deserve to be granted the same benefit. Accordingly, the impugned orders are hereby quashed and set aside. The respondents are directed to consider the case of the appellants 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 was made, it is left to the discretion of the respondent authorities to appoint the appellants to any other Class-III post having equal pay if the post of Lok Rakshak is 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 appellants in the merit list on account of the late appointment of the appellants shall not be disturbed as a result of the relief granted to the appellants. Subject to these limitations, the entire period commencing from the date when the appellants 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."

Per contra, the learned AGP has opposed this petition and contended that in the petition the petitioner has not stated that when his appointment was denied. It is contended that from the plain reading of the petition itself, it is clear that the petitioner's appointment is denied in the year 2017 and thereafter, in the year 2018, again recruitment procedure was conducted by the respondents. It is contended that there is delay and latches on the part of the petitioner. It is contended that there is no averment in the petition that the petitioner had applied for the post when his appointment was denied and he had received the intimation of his denial.

5.1 In this regard the learned AGP has relied on the judgement of the Apex Court in the case of Rani Laxmibai Kshetriya & Gramin vs. Chand Behari Kapoor & Ors, reported in AIR 1978 SC 3104, wherein in paragraph 8, it is observed as under :

"We have carefully scrutinised the averments made in the writ petitions filed by the respondents in the High Court as well as the rejoinder affidavit filed in the said court and we do not find any assertion has been made in that regard. From the impugned judgment, however, it appears that in course of argument a contention in that regard had been advanced by the respondents and the bank had been called upon to give its reply but no positive reply had been filed the High Court jumped to the coclusion that in fact six persons resigned and consequential vacancies were there. We, however, are unable to sustain this line of reasoning of the High Court. ......... the bank might have been obliged to file the specific reply but no such material appears to have been produced by the writ petitioners before the High Court and in such context absence of reply by the bank does not ipso facto establishes the contention raised. It is too well' settled that die petitioner who approaches the court invoking the extra-ordinary jurisdiction of the Court under Article 226 must fully aver and establish his rights flowing from the bundle of facts thereby requiring respondent to indicate its stand either by denial or by positive assertions. But in the absence of any averments in the writ petition or even in the rejoinder affidavit it is not permissible for a court to arrive at a conclusion on a factual position merely on the basis of submissions made in course of hearing."

5.2 The learned AGP has also relied on the judgement rendered in the case of State of U.P. & Ors. vs. Arvind Kumar Srivastava & Ors reported in 2014 (12) SCALE 234, wherein it is observed as under :

"The submission of learned counsel for the appellants, on the other hand, is that the respondents did not approach the Court earlier and acquiesced into the termination orders. Approaching the Court at such a belated stage, after the judgment in some other case, was clearly impermissible and such a petition should have been dismissed on the ground of laches and delays as well as acquiescence. It was submitted that in such circumstances this Court has taken consistent view to the effect that benefit of judgment in the other case should not be extended even if the persons in the two sets of cases were similarly situated. Mr. P.N. Misra, learned senior counsel appearing for the appellants, pointed out in this behalf that though the orders were passed by the appellants on June 22, 1987, the respondents have filed their claim petition before the Tribunal only in the year 1996, i.e. after a period of 9 years from the date of passing of the orders. He drew our attention to the following observations in M/s. Rup Diamonds & Ors. v. Union of India & Ors.[6]:

"8. Apart altogether from the merits of the grounds for rejection - on which it cannot be aid that the mere rejection of the special leave petitions in the cases of M/s Ripal Kumar & Co., and M/s. H. Patel & Co., could, by itself, be construed as the imprematur of this Court on the correctness of the decisions sought to be appealed against - there is one more ground which basically sets the present case apart. Petitioner are re- agitating claims which they had not pursued for several years. Petitioners were not vigilant but were content to be dormant and chose to sit on the fence till somebody else's case came to be decided. Their case cannot be considered on the analogy of one where a law had been declared unconstitutional and void by a court, so as to enable persons to recover monies paid under the compulsion of a law later so declared void. There is also an unexplained, inordinate delay in preferring this writ petition which is brought after almost an year after the first rejection. From the orders in M/s Ripal Kumar & Co.'s case and M/s H. Patel & Co.'s case it is seen that in the former case the application for revalidation and endorsement was made on March 12, 1984 within four months of the date of the redemption certificate dated November 16, 1983 and in the latter case the application for revalidation was filed on June 20, 1984 in about three months from the Redemption Certificate dated March 9, 1984." That case pertains to import facility for import of OGL items available under para 185(3) and (4) of Import - Export Policy, 1982-83 to export houses after discharging export obligation on advance/imprest licence. The petitioners had applied for, and were granted, this imprest licence for the import of uncut and unset diamonds with the obligation to fulfil certain export commitment for the export, out of India, of cut and polished diamonds of the FOB value, stipulated in each of the imprest licences. As per the petitioners, they have discharged their export obligation and, therefore, in terms of para 185(4) of the Import - Export policy, they were entitled to the facility for the import of OGL items. However, they sought revalidation four years after discharge of export obligation and five years after the expiry of the licence. This claim was rejected by the authorities on the ground of delay. Writ petition was filed in this Court one year after such rejection. In these circumstances, the Court dismissed the writ petition for approaching the Court belatedly and refused to follow the orders passed in another petitions by this Court, which was sought to be extended on the ground that the petitions were exactly similar to those petitions which were preferred in another case."

After considering rival submissions and considering the facts of the case as well as keeping in mind the citations relied on by the learned advocates for the respective parties, it cannot be denied that as per the averments made in the petition, the medical certificate was issued on 16.06.2017 and thereafter also, recruitment process was conducted by the respondents in the year 2018. The petitioner has nowhere stated as to when he had received the order but he has produced the copy of the certificate and the order of the respondent holding the present petitioner as not fit candidate which is also dated 22.08.2017.

6.1 Under the circumstance, I find substance in the submissions made by the learned AGP that the order itself was received in the year 2017 or latest in the month of September, 2017. Nowhere the petitioner has stated as to when he has received the order. No where there is any justification in the petition regarding lapse of two years. If the present petition is allowed by this court, it would put the respondents in difficult situation and in subsequent recruitment process, they might have filled the vacancy for which the present petitioner is claiming to be appointed. Under the circumstances, it is a clear cut case of delay and latches and negligence on the part of the petitioner.

6.2 In view of the above, I am not inclined to entertain the present petition. The present petition deserves to be dismissed and is hereby dismissed. Rule is discharged.