Kalpeshkumar Yogendrasinh Zala v. Director General Of Police
2022-12-12
NIRZAR S.DESAI
body2022
DigiLaw.ai
JUDGMENT : 1. By way of this petition, the petitioner has prayed for quashing and setting aside the order dated 27.04.2018 whereby the petitioner was declared unfit on the ground of on examination of his eyes, it was found that there was defect in eyes, the petitioner’s appointment as Lokrakshak was cancelled. The petition was amended subsequently by way of amended prayer, the petitioners has also prayed to direct the respondent authority to appoint the petitioner at any post in administration. 2. Heard learned advocate Ms. Mamta Vyas for the petitioner and learned AGP Mr. Niraj Sharma for the respondent – State. 3. It is the case of the petitioner that in the year 2016 an advertisement for the post of unarmed Police Constable (Lokrakshak) was published and pursuant to the said advertisement, the petitioner applied for the said post and on clearing the necessary exam,, he was appointed as Unarmed Police Constable and his name figured at Sr. No. 34 in the select list. 4. Once the petitioner cleared the examination and necessary training was taken for that. The petitioner was appointed as Unarmed Police Constable vide appointment order dated 18.05.2017. Thereafter, the petitioner’s medical examination took place on 15.11.2017 and upon examination the petitioner was declared unfit, however, no reason was given for the same and therefore, based upon the aforesaid medical report, the petitioner’s service was terminated vide order dated 27.04.2018 against which the petitioner made a representation but the same was not considered positively and therefore, the petitioner has preferred the present petition with the prayers which are referred hereinabove. 5. Learned advocate Ms. Mamta Vyas appearing for the petitioner vehemently submitted that it is not sufficient for the respondent - Authorities to terminate the petitioner’s services merely by stating that he is unfit. The medical certificate must state the reason as on what ground the petitioner has been declared unfit and it must not merely state that there is some defect in his eyes. She submitted that earlier in similar set of facts when the petitioners has cleared the examination and yet they were denied the appointment on the ground of color blindness, the Coordinate Bench of this Court quashed the aforesaid orders and directed those persons to be appointed in the within some bound scheduled by protecting their intervening period. 6.
She submitted that earlier in similar set of facts when the petitioners has cleared the examination and yet they were denied the appointment on the ground of color blindness, the Coordinate Bench of this Court quashed the aforesaid orders and directed those persons to be appointed in the within some bound scheduled by protecting their intervening period. 6. Learned advocate for the petitioner relied upon the judgments in case of Shaikh Tahirhusain Mohmmed Hanif V/s Lokrakshak (Constable) Recruitment Board and other dated 26.12.2016 in Special Civil Application No. 8707 of 2016, in case of Dineshbhai Govindbhai Kathechiya V/s. State of Gujarat Through Secretary decided on 26.04.2018 Special Civil Application No. 7638 of 2013 and common oral order dated 26.07.2018 in case of Mihirkumar Arvindbhai Barot V/s. Commissioner of Police, Ahmedabad City in Special Civil Application No. 15431 of 2017 and allied matters. 7. By relying upon the aforesaid judgments, she submitted that in all those decisions, the Coordinate Bench of this Court was pleased to quash and set aside the orders whereby the services of the petitioners were terminated on the ground of colour blindness. She submitted that in the instant case, since no reasons were assigned at the time of terminating the service of the present petitioner, it was duty cast upon the respondent – Authorities to state the reason as on which ground the services of petitioner is sought to be terminated. 8. She submitted that the first order terminating the services of the petitioner merely states that since as per the report by the Civil Surgeon, Ophthalmology Department, Ahmedabad and as per his certificate, the petitioner was declared unfit, his services were terminated vide order dated 27.04.2018. She submitted that at the relevant point of time, no reasons were assigned pursuant to the order dated 14.02.2019, it was left to the petitioner to approach Civil Hospital and case of the petitioner was to be considered by the Board of Referees, Civil Hospital for examination of his eyes and for issuance of certificate. However, pursuant to the aforesaid order also when the Board of Referee examined the petitioner on 29.02.2019, the Board of Referee issued a certificate stating that the petitioner is one-eyed person and declared him unfit. According to learned advocate Ms.
However, pursuant to the aforesaid order also when the Board of Referee examined the petitioner on 29.02.2019, the Board of Referee issued a certificate stating that the petitioner is one-eyed person and declared him unfit. According to learned advocate Ms. Mamta Vyas, the aforesaid reason due to which the petitioner was declared unfit was never there in the past and for the first time by way of certificate dated 27.02.2019, such reasons have come forward and therefore, in view of the contradiction in stating the reasons, the impugned order can be said to be bad and unsustainable in the eyes of law and therefore, the same is required to be quashed and set aside. 9. Learned advocate Ms. Vyas further submitted that though the petitioner was examined by the export Doctors on four different occasions, the first certificate issued by the Board of Referees whereby the petitioner was declared unfit does not bear the reason as to how the petitioner was considered to be unfit by the Board of Referee. 10. By one certificate dated 31.03.2017, the vision of the petitioner’s left eye was not found to be 6/6 and instead of was found as 5/60 and on that ground the case of the petitioner was referred to the Board of Referees and ultimately, the Board of Referees declared the petitioner unfit whereas in the year 2019 vide certificate dated 27.02.2019, the Board of Referees found the petitioner to be one eyed and on altogether different reason, the petitioner was declared unfit which is not permissible according to the learned advocate Ms. Vyas. 11. Learned advocate Ms. Vyas urged that as it was directed in other cases of colour blindness that the person who is selected and completed training where under directions of this Court, directed to give table work and thereby, the respondent authorities were directed to consider the case of those petitioners by protecting their interim period during which their services remain terminated. She submitted that in the instant case also there is a certificate issued by the Police Sub Inspector, Jinjuvada certifying that the petitioner had performed his duties with utmost, sincerity diligently which would indicate that the petitioner can do the table work and therefore, the petitioner’s case also is required to be considered for table work by ignoring the certificate in stating that the petitioner is unfit for the post of Lokrakshak. 12.
12. Learned AGP Mr. Niraj Sharma appearing for the respondent – State opposed this petition and pointed out that the case of the present petitioner is different as compared to the cases relied upon by learned advocate for the petitioner. Those cases are in respect of the color blindness wherein this Court interfered and directed the respondent authorities to appoint those petitioners on the various post of Constables in Police Department. He pointed out from the judgment in case of Dineshbhai Govindbhai Kathechiya V/s. State of Gujarat Through Secretary in Special Civil Application No. 7638 of 2013, that the Court considered the case of that petitioner on the basis of specific recommendation by the Police Head Quarter as that person was certified by Medical Board as fit for table work, in the instant case, there is no such certificate. 13. He further submitted that the Rules in respect of appointment of Police Constable specifically provides about certain kind of physical fitness as prerequisite for substantive appointment or continues in services, he relied upon the Rule 11 of the Gujarat Civil Services (General Condition of Services), Rules 2002 and more particularly Schedule B Rule (2) which specifically provides for doubtful and unsuitable cases which are usually referred to the Board of Referees and how and what aspect the Board of Referees is required to be considered. He submitted that the Board of Referees consists of three expert ophthalmologists and the conclusion arrived at by the Board of Referees who are the expert doctors cannot be interfered or altered with by way of any judicial order by this Court by exercising the powers under Article 226 of the Constitution of India. 14. He submitted that Board of Referees have specifically considered the fact that the petitioner is one eyed person and they have not opined that the petitioner is fit for any table work. In absence of there being any opinion by the Board of Referees that the petitioner is fit for table work, the case of the present petitioner cannot be equated with the case of the petitioner of those petitions who were declared unfit on the ground of color blindness. 15. Learned AGP Mr.
In absence of there being any opinion by the Board of Referees that the petitioner is fit for table work, the case of the present petitioner cannot be equated with the case of the petitioner of those petitions who were declared unfit on the ground of color blindness. 15. Learned AGP Mr. Sharma further submitted that in the instant case, even the earlier certificate also states that the petitioner does not have proper vision in the left eye and it is only 5/60 instead of 6/6, which otherwise also declares the petitioner to unfit. He submitted that though the petitioner had been examined by the various medical bodies, time and again, the end result of each of the examination was the same and at no point of time, the petitioner was declared fit for the post nor any suggestion was made that the petitioner be assigned any table work. In absence of there being any material in favour of the petitioner, the case of the petitioner may not be considered at par with the petitioners of those petitions wherein the services were terminated on the ground of colorblindness. 16. Learned AGP submitted that considering the nature of work of police department, the continuation of services of the petitioner must be in accordance with Rules and by relaxing the Rule beyond the particular limit may ultimately affect the performance of the police department and therefore, considering the fact that the petitioner’s vision was found to be less than what was prescribed by way of Rules and also considering the fact that the petitioner is declared to be one eyed person by Board of Referees, the petitioner is unfit for the post of Police Constable and therefore, the petition may be dismissed. 17. I have heard learned advocates for the respective parties and perused the record and considered the submissions in light of judgments relied upon by learned advocate Ms. Vyas for the petitioner. 18. It is undisputed position that the petitioner was initially selected on the post of Unarmed Lokrakshak in the year 2017 vide appointment order dated 18.05.2017.
17. I have heard learned advocates for the respective parties and perused the record and considered the submissions in light of judgments relied upon by learned advocate Ms. Vyas for the petitioner. 18. It is undisputed position that the petitioner was initially selected on the post of Unarmed Lokrakshak in the year 2017 vide appointment order dated 18.05.2017. It is during the medical examination of the petitioner, he was declared unfit on the basis of a certificate dated 31.05.2017 wherein in the left eyes of the petitioner, the required eyesight was not meeting with the criteria prescribed for the post of the Police Constable and vision of the petitioner was not 6/6 but was 5/60 in the left eyes. However, since, reason was assigned at the relevant point of time, the termination order based upon the aforesaid certificate was challenged before this Court by the present petitioner by way of this petition. However, during the pendency of this petition, vide order dated 14.02.2019 once again an opportunity was given to the petitioner to appear before the Board of Referees, Civil Hospital, Ahmedabad and the authorities also were directed to diagnose the precise ailment that the petitioner is suffering from. Accordingly the petitioner appeared before the Board of Referees on 27.02.2019 and Board of Referees comprising of three members gave a certificate dated 27.02.2019 declaring the petitioner unfit on the ground that the petitioner is one eyed person. 19. Considering the fact that being one eyed person and having colour blindness are all together different things. Colour blindness would mean that a person’s vision otherwise is perfect either naturally or by wearing glasses, however, here in the instant case, the petitioner is declared a one eyed person by the expert doctor. More particularly, when the expert doctors even after carrying out the examination of the present petitioner more than once have come to the conclusion that the petitioner’s eyesight is not meeting with the requirement and more particularly when there is some defect in the eyesight of the petitioner, the case of the petitioner is required to be considered keeping this fact in mind in light of judgments relied upon by learned advocate Ms. Vyas. 20. As far as the judgments relied upon by learned advocate Ms.
Vyas. 20. As far as the judgments relied upon by learned advocate Ms. Vyas is concerned, all these three judgments are in respect of person suffering from colour blindness, meaning thereby, though have perfect eyesight either naturally or by wearing glasses, but they find it difficult to recognize a particular colour, defect of recognizing a particular colour cannot be said to have same kind of implications in performing the job which a person may face while performing the duties with one eye. When the certificate issued by panel of expert doctor dated 27.02.2019 specifically states that the petitioner is one eyed person and he is not fitting the criteria, in that case, the opinion of expert doctor cannot be interfered with or altered by this Court in a writ petition under Article 226 of the Constitution of India. 21. More particularly, in the earlier case, it was a specifically recommended by the Board of Doctors that the petitioner is fit to perform the table work, in the instant case there is no such certificate by the Expert Doctor or by the higher authority, the only certificate that is relied upon by the learned advocate Ms. Vyas is a certificate issued by the Police Sub Inspector certifying that the petitioner has performed his duty as Unarmed Constable and has done the table work with utmost, sincerity and honesty. However, since, the said certificate is not by the appointing authority or the doctor, such certificate cannot be considered for issuing any directions to the respondent authority to consider the case of the petitioner for table work. 22. In view of above discussions and more particularly, considering the fact that police force is a force which performinge various kind of duties right from maintaining the law and order to working in the adverse situation like rioting as well as managing traffic etc. and nature of duties of 24 hours and police is expected to work all 365 days, considering the nature of work involved and more particularly when the Medical Board has declared the petitioner unfit on the ground that the petitioner is one eyed person, this Court do not deem it appropriate to interfere with that decision and to direct the respondent authorities to consider the case of the petitioner even for table work. As stated in foregoing paragraphs, the three judgments relied upon by learned advocate Ms.
As stated in foregoing paragraphs, the three judgments relied upon by learned advocate Ms. Vyas would not be applicable in the facts of the present case, as those three judgments are in respect of defect of colour blindness. Colour blindness is altogether different as compared to one eyed person and therefore, those judgments would not help the petitioner. 23. In view of the aforesaid discussions, the present petition fails and the same is dismissed. Notice is discharged. No order as to costs.