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2021 DIGILAW 649 (RAJ)

Piyush Patidar v. State Of Rajasthan

2021-03-19

DINESH MEHTA

body2021
JUDGMENT Dinesh Mehta, J. - The facts of the present cases are rather unusual; they not only require adjudication of petitioners' legal rights but also warrant invocation of equitable jurisdiction vested in this Court by virtue of its plenary powers under Article 226 of the Constitution of India. 2. As all the captioned writ petitions involve identical questions of facts and law, they are being disposed of by this common order. The small difference in the facts is noticed hereunder:- 3(a) SBCWP No.13173/2019 : Piyush Patidar & Ors. Vs. The State of Rajasthan & Ors.: (i) The petitioners herein applied for the post of constable advertised vide recruitment notification dated 16.07.2018 for recruitment in Mewar Bheel Core, Banswara. It is pertinent to note that this recruitment was meant only for candidates of TSP Area and there was 45% reservation for Scheduled Tribes and 5% for Scheduled Caste Candidates of Tribal Sub-Plan Area. (ii) The petitioners secured qualifying marks in the written test and cleared the physical efficiency test. Thereafter, they were subjected to medical test by the Medical Board of Doctors in Government Hospitals, constituted by the respondents. (iii) Petitioners were declared fit on all parameters and were offered appointments in Mewar Bheel Core vide order dated 26.12.2018. (iv) In total 486 candidates were recruited, out of which 2 did not join. Vide order dated 27.12.2018, 484 candidates were sent for training at BSF Training Centre, Udhampur, Jammu & Kashmir. Petitioners reported at B.S.F. Training Centre on 29.12.2018. 3(b) SBCWPs Nos.13461/2019 and 18047/2019: (i) The petitioners herein applied for the posts of constables advertised vide recruitment notification dated 25.05.2018 in 10th Battalion, R.A.C. (ii) The petitioners secured qualifying marks in the written test and cleared the physical efficiency test. Thereafter, they were subjected to medical test by the Medical Board of Doctors in Government Hospitals. (iii) The petitioners were declared fit on all parameters and were offered appointments vide order dated 27.09.2018 and they joined their services on 05.10.2018. 3. ********** 4. It is not in dispute that the petitioners were appointed in Mewar Bheel Core or Rajasthan Armed Constablary and they were sent to the training camp at Udhampur. The petitioners commenced their training and continued for more than three months. 5. Suddenly, as a bolt from the blue, vide order dated 02.04.2019, the Dy. 3. ********** 4. It is not in dispute that the petitioners were appointed in Mewar Bheel Core or Rajasthan Armed Constablary and they were sent to the training camp at Udhampur. The petitioners commenced their training and continued for more than three months. 5. Suddenly, as a bolt from the blue, vide order dated 02.04.2019, the Dy. Commandant (Training), Udhampur sent all the petitioners back to their Unit/Battalion, citing that these candidates are suffering from diseases mentioned against their respective names and thus, unfit for training. 6. The respondents thereafter got petitioners' medical examination done by a Medical Board, consisting of Doctors of S.M.S. Hospital, Jaipur. The Medical Board so constituted reported that all the petitioners were unfit for having either colour blindness or low vision. 7. On receipt of the medical report aforesaid, the Commandant (respondent No.4) passed orders dated 26.08.2019/27.08.2019 and terminated petitioners' services with immediate effect. 8. The petitioners immediately approached this Court and by way of interim orders dated 04.09.2019 and 09.09.2019, their rights were protected effect and operation of the orders dated 26.08.2019 and 27.08.2019 was stayed. 9. An application under Article 226(3) of the Constitution of India has been filed by the respondents, inter alia, seeking vacation of the interim orders dated 04.09.2019 and 09.09.2019. 10. Keeping in mind that career, rather livelihood of 33 duly selected is at stake, this Court expressed that sword of damocles cannot be kept hanging over the heads of these hapless petitioners. Learned counsel for the parties agreed that these petitions be decided, rather than spending time and energy on hearing stay vacation applications. 11. Mr. Jangid, learned counsel for the petitioners, at the outset, informed that the petitioners had cleared all the stages of recruitment, including the medical examination held by the Medical Board, constituted by the respondents and argued that once the Medical Board constituted by the respondents themselves had found the petitioners fit on all counts, including vision, the respondents cannot terminate the services of the petitioners. He vehemently argued that action of the respondents in terminating the services on the ground of petitioners' disabilities or defects in vision is illegal, arbitrary and violative of Articles 14 and 16 of the Constitution of India. 12. He vehemently argued that action of the respondents in terminating the services on the ground of petitioners' disabilities or defects in vision is illegal, arbitrary and violative of Articles 14 and 16 of the Constitution of India. 12. Learned counsel invited Court's attention towards Clause (ix) of para No.8 of the advertisement and submitted that the respondents had fully satisfied themselves about the medical fitness of the petitioners before giving appointments. He, thus, argued that terminating petitioners' services after such a belated stage is illegal. 13. Relevant Clause (ix) of para No.8 of the advertisement reads thus:- ^^¼9½ fpfdRLdh; ekin.M 1- vH;FkhZ dh nksuks vka[kksa dh n`f"V 6 xq.kk 6 fcuk p'es ds gksuk vfuok;Z gSA 2- vH;FkhZ ekufld :i ls tkx:d] lqn`ढ LokLF; okyk ,oa lHkh 'kkjkfjd fodkjksa] nks"kksa] jksxksa ls eqDr gksuk pkfg,A vH;FkhZ ekufld :x.krk ls xzLr ugha gksuk pkfg,A 3- vH;FkhZ ds ?kqVus vkil esa Vdjkus (knlck-knees) ] ulsa Qwyh gqbZ gksuk (varicose veins) ] HkSsxkiu (squint) ] jrkSa/kh (night blindness) ] jax n`f"V nks"k (colour blindness) ] gdykdj cksyuk (stammering) ] iSj lery (flat foot) ;k vU; dksbZ fod`fr tks drZO; ikyu esa ck/kd gks (any other deformity) ugha gksuh pkfg,A** 14. Asserting that after commencement of training, the BSF Training Centre, Udhampur, subjected the petitioners to medical examination, during which they found that petitioners are unfit due to colour blindness/night blindness/squintness, learned counsel submitted that petitioners have been declared unfit obviously, as per the norms and standards set by the BSF. He argued that the norms and standards set by the Armed Forces or BSF are very stringent and the same are not applicable in the respondent-State. 15. He added that it was a matter of chance, that the petitioners were sent to BSF Training Centre at Udhampur for training, as State's training centres were occupied in giving training to other constables/recruitees (selected in Constable Recruitment, 2018). 16. He submitted that other candidates like petitioners, who were given training in the camps at Rajasthan, were not subjected to another medical test in their respective training centres. Consequently, the candidates selected in Recruitment, 2018 (advertisement dated 28.06.2018) have been retained/kept in service without examining as to whether they are having similar disabilities or impairments. He, thus, tried to make out a case of discrimination vis-a-vis similarly situated constables, who were given training in Rajasthan itself. 17. Consequently, the candidates selected in Recruitment, 2018 (advertisement dated 28.06.2018) have been retained/kept in service without examining as to whether they are having similar disabilities or impairments. He, thus, tried to make out a case of discrimination vis-a-vis similarly situated constables, who were given training in Rajasthan itself. 17. Learned counsel argued that the respondents having given appointments to the petitioners after being satisfied about their fitness, cannot throw them out simply on the basis of the communication sent by the Training Centre at Udhampur. 18. Mr. Jangid argued that medical examination can be done only once. There is no provision in the relevant service rules or even in the training program to conduct medical examination during training. He highlighted that Standing Order dated 13.10.2014 does not envisage medical examination of a trainee. 19. Mr. Sandeep Shah, learned Addl. Advocate General, on the other hand, submitted that true it is, that before offering appointment, petitioners' medical examination was got done by the Medical Board; but unfortunately, the Medical Board so constituted did not have an Ophthalmologist and thus, the impairment which the petitioners were having, could not be noticed. 20. He emphatically submitted that the respondents have not proceeded solely on the basis of communication sent by the Commandant, BSF Training Centre, Udhampur. Before taking any action prejudicial to the petitioners, the respondents have got all the petitioners examined by a Medical Board constituted by S.M.S. Hospital, Jaipur, and it was only after being doubly sure about their disability, the petitioners were terminated from State services. 21. Learned Addl. Advocate General argued that so far as petitioners' medical condition is concerned, it is undeniable that they are either colour blind or having low vision and thus, not fit to be appointed. He added that once the fact that petitioners are not physically fit, has come to the notice of the respondents, they cannot be expected to turn a blind eye and let them continue. The respondents are well within their right to cancel the appointments offered to the petitioners; was the precise submission on behalf of the State. 22. Mr. Sandeep Shah further pointed out that petitioners have been sent back from training by the Training Centre at Udhampur and they have not so far completed their training, and thus, their services have rightly been dispensed with on medical grounds. 22. Mr. Sandeep Shah further pointed out that petitioners have been sent back from training by the Training Centre at Udhampur and they have not so far completed their training, and thus, their services have rightly been dispensed with on medical grounds. He took the Court through Rule 37(2) of the Rajasthan Police Subordinate Service Rules, 1989 and argued that unless a recruitee completes training, his probation cannot be said to be over, merely upon completion of two years. 23. Learned Addl. Advocate General gave a suggestion that if the petitioners are not satisfied with the report so furnished by the Medical Board, the State is ready and willing to conduct one more medical examination of the petitioners and if any one of them is found fit, the State would be more than willing to review his termination order. 24. Mr. Jangid, learned counsel for the petitioners, in rejoinder argued that even if the report so furnished by the doctors at S.M.S. Hospital, Jaipur is taken to be correct, the fact remains that petitioners have been found unfit or visually impaired by the Commandant, B.S.F. Training Centre, Udhampur or by the S.M.S. Hospital, Jaipur after they joined the services. 25. Highlighting that the petitioners were allotted belt numbers, he argued that after allotment of belt numbers and after undergoing the training, their disabilities (if any), should be considered to be disabilities accruing or arising after joining the services. 26. He argued that petitioners are entitled to protection of provisions of Section 20 of the Persons with Disabilities Act, 2016 and alternatively prayed that the respondents be directed to assign other duties to the petitioners, if not that of constables, but their services and pay be protected. 27. Having made submissions on facts and law, learned counsel for the petitioners urged that all the petitioners are from lower strata of the society one candidate is from backward community while all others are Scheduled Castes/Tribes and that too from tribal areas. Mr. Jangid expressed concern and submitted that if petitioners' termination is upheld, not only their right to livelihood will be lost, they will be looked down by the society and they will not be able to get any other job. 28. Heard. 29. Indisputably, the petitioners were recruited after completing the tertiary test written examination; physical efficiency test; and medical examination. Jangid expressed concern and submitted that if petitioners' termination is upheld, not only their right to livelihood will be lost, they will be looked down by the society and they will not be able to get any other job. 28. Heard. 29. Indisputably, the petitioners were recruited after completing the tertiary test written examination; physical efficiency test; and medical examination. After the issuance of appointment orders, they were allowed to join; they were given belt numbers and were sent for training to BSF Training Centre, Udhampur. The employer-employee relationship between the petitioners and respondents attained finality and the same became indefeasible. 30. The State has failed to point out any provision of law or judicial precedent according to which a duly appointed constable can be subjected to medical examination. 31. There is no gainsaying the fact that both the BSF Training Centre at Udhampur and Medical Board at SMS Hospital, have found the petitioners to be having visual challenge/deformity. But then, by interim orders dated 04.09.2019 and 09.09.2019, this Court had stayed the effect and operation of the orders dated 26.08.2019 and 27.08.2019 by which petitioners' services were terminated. 32. The application under Article 226(3) of the Constitution of India came to be filed by the respondent-State after about a year (on 21.08.2020). The petitioners are indisputably continuing in the services, may be, on the strength of interim orders. 33. In the opinion of this Court, it is a fortuitous circumstance that the petitioners who were selected in Mewar Bheel Core or Rajasthan Armed Constablary, were sent to BSF Training Centre, Udhampur, where they were subjected to medical examination; whereas other constables recruited along with the petitioners (in Constable Recruitment, 2018), who were sent for training in different camps within the State, were not at all subjected to medical examination. 34. Mr. Shah was not in a position to make a categorical statement as to whether or not Police Training Centres of Rajasthan carry out such medical examination during the course of training. As such, the petitioners, who were sent to a centre operated by B.S.F. at Udhampur a third party, cannot be discriminated against recruitees of other Command or Cores of the State. 35. The respondents were also not in a position to point out any provision in the recruitment notification or under the relevant Rules, which permits them to subject a duly recruited constable to a medical examination. 35. The respondents were also not in a position to point out any provision in the recruitment notification or under the relevant Rules, which permits them to subject a duly recruited constable to a medical examination. In the opinion of this Court, subjecting the petitioners to medical examination, per-se, was impermissible. 36. This Court cannot side-track this vital aspect of the matter that the fact that the petitioners are having visual impairment (colour blindness or low vision) has emerged incidentally. If they were given training in any centre at Rajasthan, perhaps everything would have been normal. No similar incident has been brought to the notice of the Court, when a duly appointed constable has been discharged after medical examination during training. 37. This Court is not much convinced with the stand of the respondents that the constitution of first Medical Board for the purpose of medical examination before appointment was not proper, as no Ophthalmologist was included in the Board. 38. A perusal of the document at Annex.8 reveals that the Medical Board of two or more doctors of Government Hospital was constituted. There were even four doctors in some of the Boards, but none of them was an Ophthalmologist. A natural question, which crops up in everybody's mind is; who was responsible in not keeping an eye specialist in the Medical Board. It is rather shocking that when the condition of the advertisement in relation to medical examination is so specific that a candidate should be free from squint, night blindness and color blindness, how could the respondents afford to constitute a Medical Board without an eye specialist. 39. Be that as it may. Since the Medical Board constituted by the respondents itself had declared the petitioners fit (though at the time of recruitment), in the opinion of this Court, respondents cannot disown their own report, that too furnished by Government Doctors. Subsequent report of BSF Training Centre or even the report furnished by the Medical Board of S.M.S. Hospital, Jaipur cannot be made a basis to scoop the petitioners out of the employment. 40. It can be conveniently presumed, if not concluded, that other constables recruited pursuant to Constable Recruitment-2018 or in earlier recruitments, were examined by the similar medical boards without an Ophthalmologist. Hence, possibility of other candidates having similar deformities in eyes and remaining unnoticed cannot be ruled out. 40. It can be conveniently presumed, if not concluded, that other constables recruited pursuant to Constable Recruitment-2018 or in earlier recruitments, were examined by the similar medical boards without an Ophthalmologist. Hence, possibility of other candidates having similar deformities in eyes and remaining unnoticed cannot be ruled out. Assertion of the petitioners that problem in their eyes has come to fore (about which even they were not aware), only because of the medical examination got conducted by BSF Training Centre, which has very high standards of physical fitness, appears to be correct and their argument that they have been made victim of fortuitous circumstances, sounds convincing. 41. Concededly, no notice was issued to the petitioners before terminating their services. A duly selected government employee can be terminated only after conducting an inquiry under Rule 16 of the Rajasthan Civil Services (Classification, Control and Appeals) Rules, 1958 or in exercise of powers available to the State under Proviso to Article 311 of the Constitution of India. 42. Neither any inquiry was held nor petitioners' conduct can be alleged to be such, which disentitles them to continue in the government employment there is no misconduct as a matter of fact. No inquiry under Rule 16, CCA Rules, 1958, can be triggered against the petitioners, as they have not secured the appointments fraudulently or by submitting false or misleading information. 43. The petitioners have not completed their training, which is a pre-requisite for completion of probation period. If the impugned orders are allowed to sustain and the petitioners' termination is upheld, the order which is based on petitioners' medical condition, would be a stigma, much more than a social stigma of being thrown out of the job. 44. A terminated or dismissed employee from Government job is always looked down by the society. And the situation is even worse, in the society from where these petitioners hail. Even their families will never be able to comprehend why petitioners have been removed from service. Some of the petitioners might have become over-age by now. The fact that their services have been terminated, will always remain etched not only in the memory of the masses but also in their resume. Even their families will never be able to comprehend why petitioners have been removed from service. Some of the petitioners might have become over-age by now. The fact that their services have been terminated, will always remain etched not only in the memory of the masses but also in their resume. Impugned orders of termination will therefore be, violative of petitioners' fundamental rights enshrined under Articles 14 and 16 of the Constitution on the one hand and on the other hand, it will affect their right to live with dignity, which is an integral part of Article 21 the soul of our Constitution. 45. As a result of discussion foregoing, this Court has reached to an irresistible conclusion that termination of petitioners' services is iniquitous, besides being absolutely illegal. 46. In the instant factual backdrop, this Court is required to balance the equities. At one hand is, the petitioners' livelihood and dignity and on the other hand is, the respondents' innate inability to retain the petitioners in employment because of their medical conditions. 47. In the opinion of this Court, petitioners' fundamental rights outweigh the State's endeavour of getting rid of these 'young, but sitting at the lowest rung', candidates. 48. For the purpose of balancing the equities, provision of Section 20 of the Persons with Disabilities Act, 2016 becomes relevant. Section 20 reads thus:- "20. Non-discrimination in employment.-(1) No Government establishment shall discriminate against any person with disability in any matter relating to employment: Provided that the appropriate Government may, having regard to the type of work carried on in any establishment, by notification and subject to such conditions, if any, exempt any establishment from the provisions of this section. (2) Every Government establishment shall provide reasonable accommodation and appropriate barrier free and conducive environment to employees with disability. (3) No promotion shall be denied to a person merely on the ground of disability. (2) Every Government establishment shall provide reasonable accommodation and appropriate barrier free and conducive environment to employees with disability. (3) No promotion shall be denied to a person merely on the ground of disability. (4) No Government establishment shall dispense with or reduce in rank, an employee who acquires a disability during his or her service: Provided that, if an employee after acquiring disability is not suitable for the post he was holding, shall be shifted to some other post with the same pay scale and service benefits: Provided further that if it is not possible to adjust the employee against any post, he may be kept on a supernumerary post until a suitable post is available or he attains the age of superannuation, whichever is earlier. (5) The appropriate Government may frame policies for posting and transfer of employees with disabilities." 49. According to this Court, the petitioners should be deemed to have been found physically unfit or visually impaired during the course of employment, as it was after about 3/6 months of their appointments, that the respondents came to know that petitioners are physically unfit. Petitioners have joined the services, they have been allotted belt number and were sent to training, whereafter they have been informed about their deformity. 50. Nature has already been unfair to them the State cannot. The State has to be alive to the ground realities and should try to fathom the agony and feelings of a young candidate, who having been selected in government job, having continued for two years, is thrown out of employment, for none of his fault. 51. Situation becomes more alarming, when one considers the fact that all the 29 petitioners from SBCWP No.13173/2019 and 18047/2019 are from TSP Area, whereas out of three candidates in SBCWP No.13461/2019, one is SC, another is ST and the third one is from backward community. 52. Impugned orders dated 26.08.2019 and 27.08.2019, are therefore quashed. Writ petitions are allowed. 53. However, for the impairment/disability, petitioners' cases shall be considered in terms of Section 20 of the Act of 2016. The respondents will be free to provide/assign appropriate duties to the petitioners, of course befitting their status/education. 54. 52. Impugned orders dated 26.08.2019 and 27.08.2019, are therefore quashed. Writ petitions are allowed. 53. However, for the impairment/disability, petitioners' cases shall be considered in terms of Section 20 of the Act of 2016. The respondents will be free to provide/assign appropriate duties to the petitioners, of course befitting their status/education. 54. The petitioners will not continue as constables and they will be required to discharge the duties and/or accept the post offered by the respondents, however, with the pay and other usual consequential benefits/emolouments payable to the constable. 55. The stay applications also stand disposed of accordingly.