JUDGMENT :

(Hiranmay Bhattacharyya, J.) :

1. The instant appeal is at the instance of the Union of India and the authorities of the Border Security Force (for short “BSF”) and is directed against the judgment and order dated July 5, 2017 passed by a learned Single Judge in WP 14868 (W) of 2016.

2. By the said judgment and order, the respondent no. 3 in the writ petition was directed to revisit the claim of the writ petitioner in the light of the beneficial provisions for utilisation of his services in jobs where public safety issues are not involved.

3. Facts, in a nutshell, that gave rise to the writ petition and are necessary for deciding this appeal are summarised hereunder.

4. Writ petitioner/respondent was appointed provisionally as Constable (General Duty) in the BSF on April 8, 2013. A show cause notice dated August 28, 2014 was issued to the writ petitioner while in service at Mizoram which, inter alia, conveyed the intimation that as per the opinion of the Medical Board constituted on July 8, 2014, the petitioner was found to be “colour blind” and therefore unfit to discharge duties as constable. The writ petitioner was given the option to appear before a review medical aboard to assess his alleged “colour blindness”. The review medical board also confirmed his “colour blindness” and accordingly his name was struck off the rolls.

5. The respondent thereafter filed an appeal under Rule 28A of the 1969 Rules and prayed for an order of reinstatement. Respondent herein filed an application under Article 226 of the Constitution of India alleging inaction of the BSF in deciding the said appeal. The writ petition was disposed of by an order dated April 26, 2016 directing BSF to decide the appeal.

6. The appellate authority by an order dated May 19, 2016 rejected the appeal petition after taking note of the fact that the superior authority agreed with the findings of the review medical board and further directed to retire the writ petitioner/respondent from service and also that subsequently vide order dated August 10, 2015 the writ petitioner was directed to retire from service on August 10, 2015 without any pensionary benefits on the ground of “colour blindness” under the provisions of Rules 1969. Challenging the said memo dated May 19, 2016 as well as the action of the BSF in removing the writ petitioner from service as Constable (General Duty) with effect from August 10, 2015, the respondent herein filed WP 14868 (W) of 2016 which was disposed of by the judgment and order dated July 5, 2017 which is impugned in this appeal.

7. Being aggrieved against the said judgment and order dated July 5, 2017, the instant appeal has been preferred.

8. Mr. Kundalia learned Counsel representing the appellants contended that the learned Single Judge after holding that the circular dated February 27, 2013 shall govern the case of the writ petitioner/ respondents herein ought to have dismissed the writ petition. He further, contended that the circular dated February 27, 2013 is to be applied in its true letter and spirit even assuming the same to be merciless in its application to colour blindness or defective vision personnel. He further contended that since the respondent herein was not appointed prior to 18.05.2012 that is the cut of date fixed by the circular dated February 27, 2013 providing for utilisation of the services of the colour blind personnel appointed prior to the said date to be utilised for the jobs where public safety issues are not involved, the leaned Single Judge erred in directing the BSF authority to revisit the claim of the petitioner/respondent herein as directed in the impugned judgment and order. He, further contended that considering the nature of the disease which the respondent is suffering, and the nature of duties which are required to be performed by a constable in the Para Military Forces, it would be against the interest of public safety to allow the respondent to continue with his service in BSF.

9. Mr. Majumdar