Point of Law: Though the petitioner is entitled to the benefit of service from the date when he 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

JUDGMENT :

1. RULE. Learned AGP Mr.Ishan Joshi waives service of Rule on behalf of the respondents.

2. The present petition is filed seeking direction of this Court to appoint the petitioner as SRP Lokrakshak with all consequential benefits, back wages and to direct the respondents to issue appointment letter with a further direction to quash and set aside unfit certificate issued by the respondents.

2.1 It is the case of the petitioner that pursuant to advertisement for direct recruitment of various posts, the petitioner, being eligible and qualified, applied for the same. The petitioner successfully cleared written and main examination and oral interview. The petitioner was informed about his selection in the armed category.

2.2 After selection, the petitioner was sent for medical examination at Civil Hospital, Nadiad, where he was declared unfit as having colour vision blindness. The petitioner was again sent for re-examination to Board of Referees, where also he was declared unfit.

3. According to learned Advocate for the petitioner, this issue is very much covered by the decision of the Coordinate Bench of this Court as well as decision of Division Bench of this Court and therefore, action of discontinuation on the ground of colour vision is ex-facie impermissible.

3.1 It is submitted that the petitioner is fully eligible and has successfully cleared process of recruitment, but it is only on account of colour vision issue, on the opinion given by the Board of Referees that he is deprived of actual appointment and this issue according to the petitioner is squarely covered by decision of this Court in past and as such the petitioner has requested the Court to deal with and dispose of the petition.

4. As against this, learned AGP for the respondent-State authority pointed out that all the petitioners have approached the Court at a belated stage. By virtue of resolution dated 21.3.2017, it would be open for the respondent authority to put an end to the services even if, taken on job without issuance of notice. A further contention is also raised that it was expected by all the petitioner to submit an appeal before appropriate authority against certificate issued by the Medical Officer. No such appeal is filed by the petitioner. It is further pointed out that it may be that Co-ordinate Bench as well as Division Bench of this Court has taken decision in favour of concerned petitioners on this very issue, but the State Government has already preferred Special Leave Petition which is lying with Diary Number 12397 of 2020 in Apex Court and as such, the State appears to have taken a stand that since the State Government has challenged the decision of Division Bench of this Court, in Supreme Court the petitions may not be entertained.

4.1 However, there is nothing on record to show that any notice is issued or even any interim relief is granted by the Apex Court simply and at a diary number stage the State Appeal is pending. With this background learned AGP for the State Authority has attempted to oppose this petition, but has candidly submitted that issue is dealt with in past by this Court and it was decided against the State Authority on the issue of colour vision being suffered by candidate and as such learned AGP has ultimately submitted that even if an eventuality to take place to allow the petitioner to be reinstated then liberty be kept open for the State authority to specifically mention in their appointment that such appointment would be subject to the result of the decision being take by Hon’ble Apex Court in Special Leave Petition.

4.2 Learned AGP also objected to the grant of petition, particularly on the ground of delay stating that though the order of discontinue was passed earlier, the petitioner has approached this Court after waiting for considerable period and was in fact, fence sitter, watching the outcome of other petitions of similarly situated candidates, and thereafter, looking to the success in those petitions, now,