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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
A.Y. KOGJE, J.
DABHI UMESHBHAI DAYALBHAI - Appellant
Versus
DIRECTOR GENERAL OF POLICE - Respondent
SPECIAL CIVIL APPLICATION NO. 15287 of 2020
Decided On : 16-07-2021
Constitution of India,1950 - Seeking direction of this Court to appoint the petitioner as Armed Police Constable /Lokrakshak with all consequential benefits - Quash and set aside unfit certificate issued by respondents - Notice - Whether a particular type of unfit certificate by Medical Board would be ground of termination of service or cancellation of the appointment order or not respondent-State authority pointed out that all petitioners have approached the Court at a belated stage - By virtue of resolution it would be open for the respondent authority to put an end to the services even if, taken on job without issuance of notice - Further contention is also raised that it was expected by all petitioner to submit an appeal before appropriate authority against certificate issued by Medical Officer - No such appeal is filed by 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, State Government has already preferred Special Leave Petition which is lying with Diary in Apex Court and as such, State appears to have taken a stand that since the State Government has challenged decision of Division Bench of this Court, in Supreme Court the petitions may not be entertained - background learned AGP for 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 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 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 decision being take by Hon’ble Apex Court in Special Leave Petition
Findings of the Court: Situation and since all contentions permissible in law are examined by Coordinate Bench as well as by other decisions including Division Bench’s judgment, there is no reason to take a different view - State was very much a party to said issue having being decided by several benches of this Court and as such the Court would not like to deviate core issue and would like to grant relief as prayed for in the petitions - Deserves to be granted with same benefit - Impugned orders and actions are hereby quashed and set aside - Respondents are directed to consider the case of the petitioner for appointment to the post of Lok Rakshak ignoring his medical incapacity, and if nothing adverse is found against him, he shall be appointed on the said post forthwith. Since considerable time has elapsed since the recruitment, it is left to the discretion of respondent authorities to appoint the petitioner 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 petitioner is not assigned active duty of Lok Rakshak, he may be considered for table work as an alternative - Promotion already made of persons junior to petitioner in the merit list on account of late appointment of petitioner shall not be disturbed as a result of relief granted to the petitioner - Subject to these limitations, entire period commencing from when petitioner should have ordinarily been appointed would be treated as a part of his continuous service for purposes of retiral benefits and fixation of their seniority
Result- petition is allowed
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 Armed Police Constable /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 New Civil Hospital, Surat, 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
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