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2014 DIGILAW 844 (JHR)

Surendra Kumar v. State of Jharkhand

2014-08-07

AMITAV K.GUPTA, R.BANUMATHI

body2014
Judgment Amitav K. Gupta, J: The instant Letters Patent Appeal has been preferred against the judgment dated 13.11.2013 of W.P(S) NO.6322/2012 passed by the learned Single Judge whereby the writ petition of the appellants/petitioners was dismissed. 2. The averments of the appellants/writ petitioners in the aforesaid writ is that in pursuance to the Advertisement no.1/2010 the appellants applied for the post of Constables; that the appellants had requisite qualification in terms of the Advertisement; that they were issued admit cards whereafter they appeared for the written test and the physical test and were declared successful; that selection letters were issued to them directing them to appear before the Superintendent of Police, Hazaribagh on 25.06.2012 along with the required certificates; that the appellants along with required certificates appeared before the office of Superintendent of Police, Hazaribagh on 25.06.2012 and on verification of the correctness of the certificates they were directed to appear for medical test on 05.07.2012; that the appellants appeared for medical test but they were not issued the appointment letters and their joining was not accepted by the authorities, thereafter, the appellants filed their representations and met the authorities where they came to know that on account of defective colour vision they were not allowed to join their duties. Thus, being aggrieved, the appellants/petitioners filed the aforesaid writ which was dismissed by the impugned order. 3. Learned counsel for the appellants has submitted that the appellants were found physically and mentally fit and as per Annexure-4 to the writ petition, the successful candidates were directed to appear with their original certificates before the office of Superintendent of Police, Hazaribagh. Learned counsel has also referred to Annexure-5 of the writ petition and submitted that impaired colour vision is not mentioned as the category of disease for medical examination and Annexure-5 is the Order no.877 dated 29.10.2004 issued by the Officer of Director General of Police(Administration.), Government of Jharkhand. He has also referred to Annexure-1 of this Appeal and submitted that in the said advertisement the requisite qualification of physical test has been prescribed and it is nowhere mentioned regarding the impaired colour vision. It is contended that the case of the appellants is squarely covered by the decision in the case of Hoshiar Singh Vs. State of Himachal Pradesh and Ors., in CWP(T) NO.4520 and 4521 of 2008, reported in (2010) 3 SLR 76. It is contended that the case of the appellants is squarely covered by the decision in the case of Hoshiar Singh Vs. State of Himachal Pradesh and Ors., in CWP(T) NO.4520 and 4521 of 2008, reported in (2010) 3 SLR 76. It is urged that in the said case, the court had observed that the persons suffering from colour blindness may not be totally unfit to discharge other routine duties whereby the colour blindness may not impair in discharge of the duties. Learned counsel relying on the decision in the case of Anil Kumar Das and Ors. Vs. Union of India and Ors., reported in 2011(4) JCR 281 (Jhr.) has submitted that in that case, the petitioners were found to be suffering from certain defective vision and colour blindness and were declared to be medically unfit but, they were directed to continue in service. In support of his argument learned counsel has also relied on the decision in the case of Nand Kumar Narayan Rao Ghodmare vrs. State of Maharashtra and Ors., reported in 1995(6) SCC 720 and also on the decision in the case of Narendra Kumar chandla vs. State of Haryana and Ors., reported in 1994(4) SCC 460 . 4. On the basis of the aforesaid judicial pronouncements and the facts of those cases, the learned counsel has contended that in the present case the action of the authorities in not allowing the appellants to join the post on the ground of impaired colour vision is arbitrary and illegal; that the other persons were not subjected to such tests hence the action of the authorities is arbitrary and discriminatory and this aspect was not considered by the learned Single Judge. Thus, the impugned judgment is not in accordance with the facts and law and is fit to be set aside. 5. Learned counsel for the State has drawn our attention to Annexure-A to the counter affidavit filed in the present appeal and submitted that the police constables are selected in terms of Rule 672 of Police Manual and Police Manual Form 104 prescribed by the Government of Jharkhand whereby a medical examination of a person for recruitment to the post of Constable is a must. It has been submitted by the learned counsel for the State that in Annexure-4 to the writ petition filed by the appellants/writ petitioners, wherein it has been categorically mentioned that after verification of the certificates the candidates have to undergo a medical examination; that after the verification of certificates, a Medical Board was constituted in terms of Rule 672 and the candidates appeared before the Medical Board consisting of five medical officers; that after conducting the medical test report was sent to the Office of the Superintendent of Police, Hazaribagh and it was found that colour vision of 19 candidates was found defective. On receipt of the medical report and considering the seriousness of the matter, the Chief Medical Officer, Hazaribagh was requested by Memo no.4583/ RD dated 28.08.2012 issued by the Superintendent of Police, Hazaribagh that the candidates who had been selected under the merit list and their colour vision was found defective, may be referred to the eye department, RIMS, Ranchi for expert opinion. Consequent to the aforesaid memo the Chief Medical Officer, Hazaribagh sent a request letter no.1447 dated 29.08.2012 alongwith the list of 19 candidates to the Director, RIMS for expert's opinion of the eye department of RIMS with respect to the 19 candidates; that a letter was also sent from the office of Superintendent of Police, Hazaribagh to the Dirctor, RIMS alongwith the list of 19 candidates and their photographs. The candidates were examined by the eye Department of RIMS and the Director, RIMS sent the expert opinion report whereby 7 were found having normal colour vision and 12 candidates including the appellants/writ petitioners were found to have abnormal colour vision; that the Annexure-4 series was conditional selection subject to the medical examination and since they had abnormal/impaired colour vision, they were not given the appointment letter. 6. Learned counsel for the appellants/petitioners has relied on the decision in the case of Hoshiar Singh Vs. 6. Learned counsel for the appellants/petitioners has relied on the decision in the case of Hoshiar Singh Vs. State of Himachal Pradesh(Supra), but we find that the said decision is not applicable to the facts of the case in hand, because in the said case, the petitioners were undergoing recruitment training after giving their formal joining at the police lines meaning thereby that they had been issued the appointment letters and they joined their duties, likewise, in the case of Anil Kumar Das(Supra), the petitioners were given appointment letters and they completed their probation period of 3 years and they were posted at different places. Similarly, in the case of Narendra Kumar Chandla(Supra) the petitioner was working as Sub-Station Attendant in the Electricity Board whereas in the present case, the appointment letters were not issued and in the call letters(Annexure-4 series of the writ petition), it has been mentioned that the call letters shall not be treated as appointment letters and it has been clearly mentioned that after the verification of certificates the candidates will have to undergo a medical test. 7. Learned counsel for the respondent-state has drawn our attention to Police Manual Rule 672 and Police Manual Form 104. Rule 672 reads as under:- “672.(a)All Constables before being enlisted will be sent to the Medical Officer of Police Hospital for examination, together with a register in P.M.Form No.104, in which every man's name will be entered. The candidate's left thumb impression shall be taken in the register. The examining Medical Officer shall take a similar impression on the corresponding side and the two impressions shall be compared. No one shall be enlisted unless the Medical Officer passes him as fit.Only selected recruits shall be sent, and no charge shall be made for a medical examination in their case. The superintendent may bring to the notice of Senior Executive Medical Officer-Cum-Civil Surgeon any case in which he thinks a fresh examination should be taken up by him. (b) Selected candidates for employment in Government service will be examined only on requisition of the head of the Department of Office in which they have been selected. Such requisition shall be addressed to Deputy Superintendent of Sadar Hospital or to the Medical Officer of that Hospital of the district in which they are to serve vide Government of Bihar(Health Department) Memo No.IIIM/1602/5921361/4 dated 9th July, 1960.” 8. Such requisition shall be addressed to Deputy Superintendent of Sadar Hospital or to the Medical Officer of that Hospital of the district in which they are to serve vide Government of Bihar(Health Department) Memo No.IIIM/1602/5921361/4 dated 9th July, 1960.” 8. Admittedly, Rule 672 mandates that a medical examination is a must and the contention of the learned counsel for the appellants that as per Annexure-4 only verification and examination of certificates were required is rather misplaced because as noticed above, it has been specifically mentioned in Annexure-4 to the writ petition that after verification of the certificates, the candidate has to appear for a medical test. Consequently, the appellants/writ petitioners were sent for medical test to the Medical Board, consisting of 5 medical officers constituted by the Chief Medical Officer, Sadar Hospital, Hazaribagh and thereafter, they were sent for medical examination to RIMS in accordance with the Rule 672 prescribed by the Police Manual. Totally 19 candidates were examined in RIMS and 12 candidates including the petitioners were found to be having abnormal/impaired colour vision and therefore they were not given appointment. 9. The argument of the learned counsel for the appellants that in Annexure-5 to the writ petition, the order issued by the office of Director General of Police(Administration), Government of Jharkhand, impaired vision or defective colour vision has not been enumerated as one of the diseases for medical examination is not acceptable because in the said Annexure, it has not been mentioned whether it has been issued in terms of Rule 672 of the Police Manual or it has been approved by the Government. Neither there is any mention that the Medical examination, with respect to the category of diseases, enumerated therein, is with reference to or in the matter of recruitment of Police Constables. 10. Learned counsel for the appellants has relied on the decision in the case of Nand Kumar Narayan Rao Ghodmare(Supra) but the said decision is of no help as in the said case the facts were with respect to not giving appointment letter to the appellant, who was selected by Public Service Commission to the post of Agricultural Officer, Class II Service on the ground of colour blindness. In the said case, an affidavit was filed detailing that there were 35 posts in the department and only 5 posts required perfect revision without colour blindness. In the said case, an affidavit was filed detailing that there were 35 posts in the department and only 5 posts required perfect revision without colour blindness. In the given facts, the Supreme Court directed the Government to consider the case of the appellant to be appointed to any of the posts other than the 5 posts as mentioned in the affidavit. 11. It is evident that in the present case, there is no bifurcation of posts exclusively for candidates with perfect vision, without colour blindness and the persons with impaired vision. The nature and functions of a job of a Constable cannot be equated with that of the duties and functions of an Agricultural Officer. The Police Constables require to have proper vision including colour vision as they may have to be engaged in extremists' operation which is rampant in the State; that the appellants can not claim to be posted throughout their career to such posts where functions relating to impaired vision or routine jobs can be done because the essence of recruitment of Police Constable is to discharge their duties for which they are selected irrespective of the hours of the day. 12. The plea of the learned counsel for the appellants that the authorities have discriminated the appellants/writ petitioners is rather fallacious because the Medical Board at the District level had detected 19 persons with defect of colour vision. At the cost of the repetition, it is noticed that the case of all the 19 persons, as stated by the learned counsel for the respondent, was sent for expert's opinion to RIMS alongwith their photographs and the said 19 persons were examined out of which 7 were declared to be having normal vision and 12 persons including the appellants/ writ petitioners were detected with abnormal colour vision which has not been disputed. Accordingly, it is held that there was no discrimination or arbitrary action in denial of appointment letter by the authorities. 13. In the emergent scenario and the facts and circumstances of the case, the appeal is devoid of merit and the impugned order of the learned Single Judge requires no interference by this Court. 14. Accordingly, the appeal is hereby dismissed.