The Allahabad High Court while directing the reinstatement of a constable who was dismissed 14 years ago for visual impairment, has set aside the September 24, 2009 order of SP Etawah.
A Single Bench of Justice Saurabh Srivastava passed this order while hearing a petition filed by Jagat Narain.
The petition has been filed for the following reliefs:
“(i) a writ, order or direction in the nature of certiorari quashing the impugned order dated 24.9.2009 passed by Senior Superintendent of Police, Etawah.
(ii) a writ, order or direction in the nature of mandamus commanding the respondents to forthwith reinstate the petitioner back in service.
(iii) any other writ, order or direction as the Court may deem fit and proper in the circumstances of the case to meet the ends of justice.
(iv) award cost of the petition to the petitioner.
(v) Issue a writ, order or direction in the nature of certiorari for quashing the order dated 3.9.2007 passed by the respondent authority.
(vi) Issue a writ, order or direction in the nature of mandamus directing the respondent authority to reinstate the petitioner in service along with other consequential benefits.”
The factual matrix necessary to be noticed is that as a consequence to the regular process of selection, appointment was accorded to the petitioner as constable in civil police.
Acting upon certain complaints submitted to the Competent Authority in the year 2005-2006, which resulted in enquiry but not in the shape of disciplinary enquiry conducted by the respondents. In the said enquiry it was alleged to have been found that petitioner has got defective colour vision; hence his services were dispensed with.
Being aggrieved by the same, the petitioners preferred a petition for writ that came to be disposed of on 23.1.2009 with a direction to get the petitioner re-examined by a specially constituted Medical Board for assessing their medical fitness. In compliance of the directions given, the petitioner was subjected to medical examination afresh and a report thereof was submitted on 3rd of Sept 2009. As per report of the Medical Board, the petitioner was not in a position to distinguish the colour plates beyond 6 out of 21. The colour distinction vision was partially found defective for red and green colours. On the basis of the report of the Medical Board, the Senior Superintendent of Police, Etawah passed an order on 24.9.2009, rejecting the application of the petitioner for reinstatement on the grounds of being medically unfit.
It is stated that in pursuance of the provisions of clause (b) of sub section (1) and Clause (b) of sub-section (2) of section 241 and Clause (b) of Section 275 of the Government of India Act, 1935, the Governor of Uttar Pradesh framed the rules in the name “The Uttar Pradesh Police Service Rules, 1942” to regulate recruitment of posts in, and the conditions of service, of persons appointed to, the Uttar Pradesh Police Service.
As per rule 19 of the Rules 1942, no person shall be appointed as a member of the service unless he is in good mental and bodily health and free from any physical defect likely to interfere with the efficient performance of his duties as a member of the Service. Before a candidate is finally approved for appointment by direct recruitment, he shall be required to pass an examination by a Medical Board that shall be conducted after he has passed the competitive examination. Regulations for the medical examination are given in Appendix E appended to the Rules. As per Appendix E, the vision of a person is required to be examined with the following standard.
From a perusal of the standards settled under the Rules for examination of vision, it is apparent that inability to distinguish the principal colours is not regarded as a cause for rejection, but this fact is required to be noted in the proceedings and necessary information of that must be given to the candidate concerned.
By relying upon standards given under the Rules 1942, it is submitted by learned counsel appearing for the petitioner that on failing to distinguish colours, the petitioner could have not been terminated from service.
Per contra, as per the Standing counsel, the petitioner failed to distinguish principal colours, therefore, on the basis of a report of Expert, he was removed from service.
It is further stated that the discontinuation of the petitioner from service though termed as removal from service is not by way of punishment but only on the count that appellants petitioners were not found medically fit to hold the post concerned.
The Court said that appointment was accorded to the petitioner as constable as a consequence of regular selection and therefore, they were working with the respondent in substantive capacity. From perusal of the impugned order, it is apparent that it is not a case of cancellation of the order of appointment, but removal from service. Though the order is labelled as an order terminating the petitioners from service in simpliciter manner, it certainly has evil consequences. The term used is “removal from service”.
The Court observed that,
In view of it, we are of the considered opinion that the respondents should have conducted an enquiry in the matter as required under the relevant Discipline and Appeal Rules before removing him from service.
The view taken by us is further fortified by a Division Bench judgment of this Court in State of U.P Vs Ali Mohd (Special Appeal (Defective) No 507 of 2013 decided on 12th Sept 2013 (supra).The issue even on merits, requires consideration.
As stated above, as per Appendix E of the Rules 1942, inability to distinguish the principal colours is not a cause for rejection but, the fact is required to be noted in the proceeding and necessary information in that regard should be given to the candidate concerned. It would also be appropriate to state that the provision aforesaid is not relating to inability to hold a post after employment, but a criteria that is to be kept in mind at the time of recruitment.
In the case in hand, that criteria must have been kept in mind while recruiting the petitioners and the ailment, if it was existing at the time of recruitment then that must have been noticed by the Medical Board. Nothing has been stated by the respondents in their counter affidavit in this regard and admittedly,no information was also given to the appellants. The presumption hence is that at the time of recruitment the appellant petitioners were not suffering from colour blindness, otherwise a note in that regard must have been made in the proceeding and information too had been given. It is further relevant to notice that if the appellants petitioners had been suffering from serious abnormality of vision, then at the time of recruitment, the respondents must have availed opinion of an Ophthalmic Specialist as required under clause (G) of the standards settled in Appendix No formalities as noticed above were conducted.
“In view of the fact that there is no material available on record to establish that the petitioner were suffering from any vision impediment at the time of recruitment, it was not open for the respondents to discontinue them from service in a simpliciter manner. If any ailment during the course of employment occurred, then the appropriate course at the first instance was to accommodate the petitioner on a post suitable looking to their medical fitness and if in any event they were to be discontinued from service, then only by taking appropriate recourse prescribed under the Rules for that purpose. In such an event, the petitioner would have been able to have a disability element also, if available”, the Court further observed while allowing the appeal.
“The order dated 3.9.2007 and 24.9.2009 is set aside. The petitioner shall be reinstated in service over the post on which colour blindness will not be an impediment for service in the department with all consequential benefits. However, it shall be open for the respondents to proceed in the matter in accordance with law”, the Court ordered.