Point of Law: Employment and Service matter – Disqualified - Colour blindness - Any person who has defective vision or is colour blind will not be recruited in future. If any person is wrongly recruited despite having defect in vision or despite being colour blind, he will be promptly removed from service as soon as the defect is noticed. The Doctor who declared him fit will be proceeded against in Departmental Proceedings for major penalty. The person who was wrongly recruited will not be allowed to continue to take advantage of this wrong act, and the Govt, cannot be bound by the wrong act of any of its functionarie

JUDGMENT :

Heard Mr. R. Dhar, learned counsel for the petitioner. Also heard Mrs. A. Gayan, learned CGC appearing for the respondents.

2. The petitioner is aggrieved by the Order dated 02.08.2016 issued by the Commandant, 95th Batallion BSF, by which the petitioner has been discharged from service and struck off from the strength of RTC, BSF, Bhondsi under Section 11 of the BSF Act, 1968 read with Rule 13 of the BSF Rules, 1969, as amended in 2017.

3. The petitioner’s case in brief is that after a selection test which involved medical examination, the petitioner was appointed to the post of Constable (GD) in the BSF. The petitioner was immediately sent for training and during routine medical examination of the petitioner held on 06.04.2015, the petitioner was found to be having defective colour vision and was referred to an Eye Specialist at FHQ Hospital-I. On examination by the Eye Specialist on 26.05.2015, the petitioner was found to be suffering from defective colour vision (colour blindness). Thereafter, the petitioner was discharged due to him suffering from colour blindness vide the impugned Order dated 02.08.2016.

4. The petitioner’s counsel submits that the petitioner could not have been discharged from service in terms of Section 11 of the BSF Act, 1968 read with Rule 13 of the BSF Rules, 1969 as only the Director General, Inspector General or Deputy Inspector General could have discharged the petitioner from service. He also submits that the petitioner had himself examined in Safdarjung Hospital, New Delhi on 24.05.2016, wherein it was found that he was not suffering from colour blindness. He accordingly submits that a review Medical Board should be constituted to examine the petitioner.

5. The petitioner’s counsel submits that even if the petitioner is found to be suffering from colour blindness, the petitioner should have been adjusted against some other clerical work in the BSF organization, keeping in view Section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation), Act, 1995 hereinafter referred to as the “PWD Act, 1995”. He further submits that the petitioner is entitled to grant of pension, as he was discharged from service on medical grounds.

6. Mrs. A. Gayan, learned CGC submits that the petitioner was appointed by the Commandant and in terms of Section 11 of the BSF Act, 1968, the petitioner can be terminated by the Commandant. She also submits that Section 47 of the PWD Act, 1995 is not applicable to the petitioner and that the petitioner does not have the minimum qualifying years of service to be granted pension. She also submits that the petitioner was examined by three review Medical Boards on 03.06.2015, 03.03.2016 and 31.08.2016, wherein the petitioner was found to be suffering from colour blindness.

7. I have heard the learned counsels for the parties.

8. A perusal of Section 11 (2) of the BSF Act, 1968 shows that an officer not below the rank of Deputy Inspector-General or any prescribed officer may dismiss or remove from service, any person under his command other than an officer or a subordinate officer of such rank or ranks as may be prescribed. The petitioner having been appointed by the Commandant who comes within the meaning of “or any prescribed officers” in terms of Rule 177 of the BSF Rules, 1969, shows that the Commandant has the authority to discharge the petitioner from service.

9. The next ground of challenge made by the petitioner is with regard to Section 47 of the PWD Act, 1995, wherein the petitioner’s counsel has stated that even if the petitioner was found to be suffering from colour blindness, he should have been adjusted against some other work, like clerical work in the BSF organization, instead of discharging him from service. Section 47 of the PWD Act states that no establishment shall dispense with, or reduce in rank, an employee who acquires a disability during service. As colour blindness is a congenital disease, i.e. it is a disea