1. Heard Sri P.K. Srivastava and Sri B.R. Singh, learned counsel for the petitioners and Sri Vishal Verma, learned State Counsel for the State-respondents.
2. Since the question of law is common in the bunch of these writ petitions and facts are those more or less identical, therefore, with the consent of learned counsel for the parties, these writ petitions are being decided by a common judgment.
3. The petitioners, Manish Kumar and Arvind Kumar Yadav of Writ Petition No.5824 (S/S) of 2014 were appointed on the post of Constable on 20.01.2004 after successfully completing their training.
4. It appears that on the basis of some complaint regarding the irregularities in the aforesaid recruitment particularly on the point that most of the Constables were not properly medically examined, the direction for re-medical examination was issued and after undergoing the re-medical test, the services of Mukesh Kumar and Arvind Kumar Yadav have been dispensed with vide order dated 07.09.2007.
5. Challenging the aforesaid punishment order dated 07.09.2007, the writ petition was filed by Mukesh Kumar, petitioner No.1 herein, bearing Writ Petition No.4925 of 2007 and Arvind Kumar Yadav, petitioner No.2 herein, also filed writ petition bearing Writ Petition No.49240 of 2007 and both the aforesaid writ petitions were decided on 23.01.2009, in which this Court was pleased to dispose of the writ petition directing the State Government to constitute a Medical Board thereby examine the petitioners medically. Pursuant to the aforesaid direction of this Court, the petitioners were re-examined medically but they have not been informed the fate of the medical examination, therefore, they again filed writ petition bearing Writ Petition No.2976 of 2013 (Manish Kumar and another vs. State of U.P. & others) wherein this Court vide order dated 10.07.2013 permitted the petitioners to prefer a fresh representation to the Competent Authority with further direction to the Competent Authority to dispose of the said representation.
6. In compliance of the aforesaid order of the Court, the impugned order dated 29.08.2014 has been passed against the petitioners whereby the petitioners were declared medical unfit and their claim has been rejected.
7. The facts in the case of Piyush Kumar Kharwar are also more or less identical inasmuch as he was appointed on the post of Constable on 20.01.2004 and on 19.08.2007 his services were dispensed with on the same reasons. Thereafter, he has filed writ petition wherein the same direction has been issued for constituting the Medical Board and further direction has been issued that the petitioner (Piyush Kumar Kharwar) be re-examined medically. When no suitable order has been passed by the Competent Authority for substantial period the said petitioner filed another writ petition bearing Writ Petition No.48223 of 2013 wherein the petitioner was permitted to prefer a representation and the direction has been issued to the Competent Authority to pass appropriate order. When no appropriate order was passed the contempt petition bearing Contempt Petition No.5292 of 2013 was filed. Thereafter, the impugned order dated 16.12.2013 has been passed rejecting the claim of the petitioner.
8. In the case of Surjeet Kumar Kashyap (the petitioner of Writ Petition No.2328 (S/S) of 2014), pursuant to the notification dated 20.01.2006 he participated in the recruitment process of Constable, P.A.C. and the said petitioner was sent for training and has completed his training on 11.08.2007. Just after completion of training when the petitioner has submitted his joining at Lakhimpur Kheri he was re-examined medically and his services were terminated on 15.10.2007 on the ground that he is suffering from medical ailment. The said petitioner has challenged the order dated 15.10.2007 by filing writ petition bearing Writ Petition No.4205 (S/S) of 2009, which was diposed of in the same manner as the aforesaid writ petitions were disposed of directing the Competent opposite party to constitute a Medical Board for re-examining the petitioner. Pursuant to the re-examination, the petitioner was again declared unfit vide order dated 16.02.2010. Therefore, the petitioner filed another writ petition bearing Writ Petition No.3975 (S/S) of 2013 seeking prayer from the Court that his case may be considered in the same manner as has been considered the identically placed employees (Constables).
9. This Court directed the petitioner to prefer a representation directing the competent opposite party to take appropriate decision. The aforesaid representation of the petitioner has been rejected vide the impugned order dated 19.11.2013, which has been assailed in the writ petition (Writ Petition No.2328 (S/S) of 2014).
10. Basically, the cases in re: Manish Kumar and another and Piyush Kumar Kharwar is slightly different from the case of Surjeet Singh Kashyap that those persons have been appointed in the year 2004 and after discharging their duties for more than three years their services have been dispensed with but in the case of Surjeet Singh Kashyap, he has completed his training and submitted his joining at a particular district and immediately thereafter his services were dispensed with. However, the ground terminating the services of all the petitioners are same that they were medically unfit for respective reasons.
11. In all the writ petitions, the petitioners have assailed the impugned orders on the ground that the Appointing Authorities have failed to consider the provisions of Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (here-in-after referred to as the "Act, 1995"), particularly the provisions of Section 47 thereof. For convenience, Section 47 of the Act, 1995 is being reproduced here-in-below:-
47. Non-discrimination in Government employments.--
(1) No establishment shall dispense with, or reduce in rank, an employee who acquires a disability during his service: Provided that, if an employee, after acquiring disability is not suitable for the post he was holding, could 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.
(2) No promotion shall be denied to a person merely on the ground of his disability: 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, as may be specified in such notification, exempt any establishment from the provisions of this section.
12. As per Sri P.K. Srivastava, had the Appointing Authority applied the provisions of Section 47 of the Act, 1995, the petitioners would have been shifted on other equivalent post, which do not require the standard of colour vision, which the petitioners have been held to possess, but the Appointing Authorities failed to consider those provisions while terminating the services. The petitioners contended before this Court that in applying these provisions the words 'during his service could ot come in their way as the petitioners were not suffering from the disease of colour vision', when they joined the service on selection and had there been such colour vision the same would have been noticed by the two medical examinations conducted by the department prior to their joining service i.e. one medical examination prior to sending them to training and second after returning from service and joining duties. The petitioners further contend that they were subjected to medical examination each year after they joined their service unitl the impugned order of termination was issued in the year 2007, but no such colour vision was found making it clear that the petitioners suffered by colour vision during their service in the department and therefore the provisions of Section 47 of the Act, 1995 was fully application. Further, the proviso to sub-section (2) in which the State Government has given the powers to exempt any establishment from the provisions of this sub-section, it is submitted that no such notification has been issued by the State Government till date, exempting the Department of Police from operation of Section 47 of the Act, 1995.
13. Learned counsel for the petitioners has contended with vehemence that in an identical case in re: Ali Mohammad vs. State of U.P. & others (SERVICE SINGLE No.3500 of 2015), this Court vide judgment and order dated 16.12.2016 considered the entire issue and allowed the the writ petition remitting back to the Authority concerned to reconsider the matter in the light of the observations made. For brevity, the order dated 16.12.2016 is being reproduced here-in-below:-
"1. The petitioner was appointed as a Constable in Provincial Armed Constabulary (PAC) in the year 2004. He has preferred this writ petition for issuance of a writ of certiorari for quashing the order dated 09.06.2015 passed by the second respondent, dismissing the services of the petitioner on the ground that he suffers from colour vision.
2. A brief reference to the factual aspects would suffice.
3. An advertisement was issued in the year 2004 calling applications for appointment to the posts of Constable. The petitioner made an application pursuant to the said advertisement and he qualified all the tests; Physical Standard Test, Physical Efficiency Test, Written Test and Interview, and was appointed on 06.12.2004 in 47th Battalion Task Force, Ghaziabad.
4. The petitioner worked till 2007. It is stated that on 28.06.2007 the Director General of Police issued an order to re-assess the suitability of the constables who had already been selected. This order was issued with reference to the recruitment of constables in the year 2005-06. Pursuant to the said order the petitioner along with other candidates, who were appointed in the year 2005-06, were subjected to re-medical examination on 13.08.2007 in Civil Hospital, Lucknow. In the said medical test it was found that the petitioner suffers from colour vision. On the basis of the said report the Commandant, 32nd Battalion, PAC, Lucknow i.e. the second respondent passed an order of the petitioner's dismissal dated 16.08.2007 on the ground that he was found suffering from colour vision.
5. Aggrieved by the order of his dismissal dated 16.08.2007 the petitioner preferred a writ petition being Service Single No. 722 of 2008. The said writ petition was allowed by this Court on 24.04.2013 and the order of dismissal dated 16.08.2007 passed by the Commandant, 32nd Battalion, PAC was set aside and a direction was issued for the reinstatement of the petitioner within a maximum period of two months. However, the Court had granted liberty to the respondents to conduct a fresh enquiry in accordance with the rules. Against the order of the learned Single Judge, the State preferred Special Appeal No. 507 of 2013.
6. It is stated that after the judgment of the learned Single Judge, the respondents have complied the order and the petitioner was permitted to join subject to decision of the Special Appeal. Consequently, the petitioner was reinstated on 08.07.2013 but he was not given backwages.
7. The Special Appeal of the State was dismissed on 12.09.2013. After the dismissal of the special appeal, a preliminary enquiry was conducted against the petitioner by the Assistant Commandant, 32nd Battalion, PAC and he submitted a report dated 16.07.2014. The disciplinary authority, on the basis of the preliminary enquiry report, took a decision to conduct disciplinary proceedings against the petitioner.
8. Accordingly, a charg-sheet dated 26.08.2014 was served upon the petitioner. A copy of the charge-sheet is on the record as annexure-6 to the writ petition. The petitioner submitted his reply, wherein he took a stand that he was examined twice by the Medical Board and he was found medically fit for the appointment on the post of Constable, PAC, however by the impugned order dated 09.06.2015 the petitioner's services have been dismissed on the same ground that the petitioner is suffering from colour vision.
9. In paragraph-28 of the writ petition the petitioner has stated that there is no allegation of misconduct in the charge-sheet. He has been assigned various important duties which he has performed successfully. It is stated that he has done his duties relating to the security of Hon'ble Chief Minister, security of temple in Ayodhya, maintenance of law and order and security duties during Lok Sabha poll as well as duties during rally of the Hon'ble Prime Minister and other services for which he was awarded for his good performance.
10. It is stated that the colour vision did not make impact in performing duties and he discharged his duties excellently. The only defect pointed out in the medical report is regarding his eyesight. It is further submitted that the circular of Director General of Police, which has been made applicable, is, in fact, inapplicable as the recruitment of the petitioner was prior to the issuance of the said circular.
11. A counter affidavit has been filed, wherein the grounds mentioned in the impugned order have been reiterated. However, in the counter affidavit the fact that the petitioner was assigned several important duties, mentioned above, has not been denied.
12. I have heard Sri P.K. Srivastava, learned counsel for the petitioner and the learned Standing Counsel.
13. Learned counsel for the petitioner submits that the petitioner has performed his duties for the last more than seven years excellently and no complaint was made against his functioning. It is stated that earlier he was examined twice by the Medical Board and no medical infirmity was found. Lastly, he urged that, in any view of the matter, the order of the extreme punishment of dismissal is too harsh and contrary to the provisions of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (for short, the "Act, 1995"), wherein it is provided that the services of an employee shall not be dispensed with or reduced in rank who acquires disability during the service period and he could be shifted to some other post with the same pay scale and service benefits.
14. Learned Standing Counsel has defended the grounds mentioned in the impugned order and he submits that in the Police Force a person who is working with such disability can cause serious prejudice to the force.
15. I have considered the submissions advanced on either side and perused the record.
16. The petitioner was selected in the year 2004-05. At the time of recruitment, a candidate for appointment on the post of constable is subjected to rigorous medical examinations at two stages; (i) Physical Standard Test, and (ii) Physical Efficiency Test. Subsequent to his appointment he is also subjected to medical examination each year. In the initial Physical Standard Test and Physical Efficiency Test no such infirmity was found and the petitioner was appointed. Later, on the order of the DGP a fresh medical examination was conducted in the year 2007, wherein the said infirmity was found.
17. The petitioner was dismissed on the same ground which had been challenged by him in earlier writ petition. This Court had set aside that order on the ground that no opportunity was given. It was left open to the authority to pass appropriate order in accordance with law. The authority concerned preferred to initiate disciplinary proceedings against the petitioner. From a perusal of the charge-sheet it is evident that except medical ground no other ground has been alleged against the petitioner regarding his work or conduct.
18. The case of the petitioner is that he is not physically unfit and even if it is found that he is suffering from colour vision, it was after his employment as at the time of his initial appointment he was found medically fit.
19. The proviso to the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 provides that the meeting convened by the Economic and Social Commission for Asia and Pacific to launch the Asian and Pacific Decade of Disabled Persons adopted the Proclamation on the Full Participation and Equality of People with Disabilities in the Asian and Pacific Region. India is one of the signatories of the said Proclamation.
20. Section 2(t) of the Act, 1995 defines the "person with disability", which means a person suffering from not less than forty per cent of any disability as certified by a medical authority. Section-2(u) defines "person with low vision", which means a person with impairment of visual functioning even after treatment or standard refractive correction but who uses or is potentially capable of using vision for the planning or execution of a task with appropriate assistive device. Sections-2(t) and 2(u) of the Act, 1995 read thus:
"2(t) "person with disability" means a person suffering from not less than forty per cent of any disability as certified by a medical authority;
2(u) "person with low vision" means a person with impairment of visual functioning even after treatment or standard refractive correction but who uses or is potentially capable of using vision for the planning or execution of a task with appropriate assistive device."
21. Section-33 of the Act, 1995 provides "reservation of posts" that one per cent posts shall be reserved for persons suffering from; (i) blindness or low vision; (ii) hearing impairment and, (iii) locomotor disability or cerebral palsy; in the posts identified for each disability. Section-33 of the Act, 1995 is quoted as under:
"33. Reservation of posts.---Every appropriate Government shall appoint in every establishment such percentage of vacancies not less than three per cent for persons or class of persons with disability of which one per cent each shall be reserved for persons suffering from---
(i) blindness or low vision;
(ii) hearing impairment;
(iii) locomotor disability or cerebral palsy, in the posts identified for each disability:
Provided that the appropriate Government may, having regard to the type of work carried on in any department or establishment, by notification subject to such conditions, if any, as may be specified in such notification, exempt any establishment from the provisions of this section."
22. Chapter-VII of the Act, 1995 deals with "affirmative action". Section-47 provides non-discrimination in Government employment. The provisions of this Section has a material bearing on this case hence it reads thus:
"47. Non-discrimination in Government employment.-(1) No establishment shall dispense with, or reduce in rank, an employee who acquires a disability during his service:
Provided that, if an employee, after acquiring disability is not suitable for the post he was holding, could 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.
(2) No promotion shall be denied to a person merely on the ground of his disability:
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, as may be specified in such notification, exempt any establishment from the provisions of this Section."
23. From a simple reading of Section-47 of the Act, 1995 it instantly brings out that the services of an employee shall not be dispensed with or reduced in rank who acquires disability during his service.
24. Having regard to the fact that the petitioner has worked for last seven years and he has performed several important duties which has not been denied in the counter affidavit, in my view, the order of dismissal dated 09.06.2015 is too harsh in the facts and circumstances of the case. It is, accordingly, quashed.
25. Relevant, it would be to point out that no Medical Board has been constituted in this case. Only on the basis of the report of Assistant Professor of K.G.M.U., the petitioner has been found suffering from colour vision, I am of the view that the ends of justice would be met by issuing a direction upon the respondents to re-consider the case of the petitioner for any other suitable post preferably in the ministerial establishment.
26. With the aforesaid observations the writ petition is allowed and the matter is remitted back to the authority concerned to re-consider the matter in the light of the aforesaid observations expeditiously, preferably within six weeks from the date of communication of this order.
27. No order as to costs."
14. The identical issue was filed before this Court at Allahabad in re: Pramod Prasad and another vs. State of U.P. & others bearing Writ-A No.66951 of 2009 and the said writ petition was dismissed by the learned Single Judge vide order dated 09.12.2009, which was assailed before the Division Bench of this Court by filing special appeal bearing Special Appeal No.59 of 2015; Pramod Prasad and another vs. State of U.P. & others and the said appeal has been allowed and the judgment and order dated 09.12.2009 of the learned Single Judge was set aside vide judgment and order dated 15.05.2019, which is being reproduced here-in-below:-
"1. By order dated 9th of December 2009, learned Single Bench dismissed the petition for writ bearing No 66951 of 2009 by arriving at a conclusion that the appellants petitioners being not medically fit were rightly discontinued from service of Uttar Pradesh Police.
2. The factual matrix necessary to be noticed is that as a consequence to regular process of selection, appointment was accorded to the appellants petitioners as constable with Provincial Armed Constabulary on 4th December 2004. Acting upon certain complaints submitted to the Competent Authority in the year 2005-2006, the medical fitness of the appellants petitioners was re-examined and vide order dated 20th August 2007, they were declared medically unfit and were terminated from service. 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 appellants petitioners re-examined by a specially constituted Medical Board for assessing their medical fitness. In compliance of the directions given, the appellants petitioners were subjected to medical examination afresh and a report thereof was submitted on 3rd of Sept 2009. As per report of the Medical Board, the appellants petitioners were not in a position to distinguish the colour plates beyond 3 out of 21 and 2 out of 21 respectively. their colour distinction vision was partially found defective for red and green colours. On basis of the report of Medical Board, the appellants petitioners were treated as persons disqualified for engagement with P.A.C. Challenging the decision aforesaid, the petitioners appellants again preferred a petition for writ, i.e. Writ Petition No 66951 of 2009 with assertion that the ailment noticed by the Medical board is not sufficient to hold them unfit to serve the Provincial Armed Constabulary. The learned Single Bench by the impugned order dismissed the petition for writ. The order passed by learned Single Bench reads as under:
"The petitioners were declared unsuccessful in the medical examination for engagement as constable/ wireless operators. They filed an earlier writ petition, where after they were examined by a Medical Board and they are aggrieved by the report of the Medical Board.
Learned counsel for the petitioners states that the colour blindness ought to have not disqualified the petitioners for engagement of in the PAC.
Having considered the submission of learned counsel for the petitioners and perused the record, it appears that the re-medical examination found both the petitioners to be having vision defected and the findings of the Medical Board of both the petitioners is quoted hereunder:-"
^^ftlesa ik;k x;k fd ;s 21 IysVksa esa ls dsoy 3 i<+ ikrs gSA mDr vk/kkj ij budk dyj fotu ikf'kZ;y jsM xzhu fMQsfDVo ik;k x;kA^^ ftlesa ik;k x;k fd ;s IysVksa esa ls dsoy 2 i<+ ikrs gSA mDr ds vk/kkj ij budk dyj fotu ikf'kZ;y jsM xzhu fMQsfDVo ik;k x;kA^^ In view of the report of Medical Board, this Court cannot adjudicate upon the correctness of the report, since it is a report of the medical experts and therefore, no error can be found in the impugned reports.
The further submission of learned counsel for the petitioners is that a Government Order provides the standards of vision in the services of the State Government shall be disqualification for motor drivers in the transport department, it is not a bar in the Police Department. The Government Order referred to in paragraph 19 of the writ petition, clearly indicates that it was issued for the drivers in the Transport Department. It does not exclude the other services under the State Government and particularly in the police services, where the petitioners are seeking recruitment. Since they have been declared medically unfit, this Court cannot grant any relief, claimed in this writ petition.
The writ petition has no merit and it is dismissed.
No order is passed as to costs."
3. In appeal, the argument advanced is that the learned Single Bench relied upon the report of Medical Board without examining the scheme pertaining to medical fitness under the relevant Rules. 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 be 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.
"6 (A) the examination for determining the acuteness of vision includes two tests: one for distance, the other for near vision. Snellen's test types will be used for the test for distant vision,without glasses at a distance of 20 feet and for the test for near vision, without glasses, at any distance selected by the candidate. The standards of minimum acuteness of vision which will be used for guidance in the examination of a candidate are as follows:
4. 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.
5. By relying upon standards given under the Rules 1942, it is submitted by learned counsel appearing for the appellants petitioners that on failing to distinguish colours, the appellants petitioners could have not been terminated from service. To support his argument, the learned counsel has placed reliance upon a Division Bench of this Court in State of U.P. Vs Ali Mohd (Special Appeal (Defective) No 507 of 2013 decided on 12th Sept 2013. In the case aforesaid, the Division Bench of this Court arrived at a conclusion that major punishment, i.e. removal from service would have not been inflicted upon a constable in P.A.C without undertaking the requisite enquiry.
6. Per contra, as per learned Standing counsel, the appellants petitioners failed to distinguish principal colours, therefore, on basis of a report of Expert, they were removed from service. It is further stated that the discontinuation of the appellants petitioners 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.
7. Heard learned counsel for the parties and considered the arguments advanced across the bar.
8. At the threshold, we would like to state that appointment was accorded to the appellants petitioners as constable as a consequence of regular selection and therefore, they were working with the respondent in substantive capacity. From perusal of the order dated 20th August 2007, 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 simplicitor manner but, it certainly has evil consequence. In the order term used is "removal from service". 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).
T
6.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 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 Opthalmic Specialist as required under clause (G) of the standards settled in Appendix E. No formalities as noticed above were conducted.
9. In view of the fact that there is no material available on record to establish that the appellants petitioners 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 simplicitor manner. If any ailment during the course of employment occurred, then appropriate course at the first instance was to accommodate the appellants petitioners 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 event, the appellants petitioners would have been able to have a disability element also, if available. In entirety, we are of the considered opinion that the learned Single Bench erred by dismissing the petition for writ without examining the complete scheme of the set of Rules available.
10. The appeal hence is allowed. The judgment dated 9.12.2009 is set aside. The petition for writ too is allowed. The order dated 20th August 2007 is set aside. The appellants petitioners shall be reinstated in service with all consequential benefits. However, it shall be open for the respondents to proceed in the matter in accordance with law.
11. There shall be no order as to costs."
15. It would be apt to indicate here that the aforesaid judgment and order dated 15.05.2019 passed by the Division Bench has been assailed before the Hon'ble Supreme Court by filing Special Leave to Appeal (C) No.27004 of 2019 (State of Uttar Pradesh & others vs. Pramod Prasad and another) and the Hon'ble Supreme Court dismissed the aforesaid special appeal filed by the State Government vide order dated 15.11.2019.
16. The order passed in re: Ali Mohammad (supra) was assailed before the Division Bench filing special appeal bearing Special Appeal No.208 of 2017(State of U.P. vs. Ali Mohammad) and the said special appeal was dismissed by this Court vide judgment and order dated 22.08.2019 in the light of the judgment and order passed by the Division Bench in re: Pramod Prasad and another (supra). For convenience, the judgment and order dated 22.08.2019 is being reproduced here-in-below:-
"(1) Heard Sri Anand Singh, learned Standing Counsel for the appellants State and perused the record.
(2) This special appeal has been filed by the State against the Judgment and Order dated 16.12.2016 passed in Service Single No. 3500 of 2015 : Ali Mohammad Vs. State of U.P. and others, whereby the learned Writ Court, by allowing the writ petition, quashed the order of termination dated 9.6.2015 passed by the appellant no.2-Commandant, 32nd Battalion, P.A.C., Lucknow, and further directed to remit the matter back to the authority concerned to re-consider the matter in the light of the observations made in the order, expeditiously, preferably within six weeks from the date of communication of the order.
(3) The facts of the case are that in year 2004, an advertisement was issued calling applications for appointment to the posts of Constable. Pursuant to the said advertisement, the writ petitioner made an application for the said post. He qualified all the tests viz. physical standard test, physical efficiency test, written test and interview, as a consequence of which, he was selected and appointed as Constable and posted in 47th Battalion Task Force, Ghaziabad on 6.12.2004, where he worked till 2007.
(4) In pursuance of the order dated 28.6.2007 issued by the Director General of Police with regard to re-assessing the suitability of the recruits (Constables) of the year 2005-2006, the writ petitioner along with other candidates, who were selected and appointed in the year 2005-2006, were subjected to re-medical examination on 13.8.2007 in Civil Hospital, Lucknow. For the first time, in the said medical test, it was found that the writ petitioner suffered from Colour Vision. On the basis of the aforesaid report, the Commandant, 32th Battalion, PAC, Lucknow had passed the order dated 16.8.2007 dismissing the services of the writ petitioner on the ground that he was suffering from Colour Vision.
(5) The writ petitioner has challenged the aforesaid order of dismissal dated 16.8.2007 by filing Service Single No. 722 of 2008, which was allowed vide judgment and order dated 24.4.2013 by quashing the order of dismissal dated 16.8.2007 with the direction to reinstate the writ petitioner within a maximum period of two months. However, liberty was granted by the learned Writ Court to the appellants herein to conduct a fresh enquiry in accordance with the rules.
(6) Against the aforesaid judgment and order dated 24.4.2013, the Appellants State had preferred Special Appeal No. 507 of 2013. In the meanwhile, the writ petitioner was permitted to join subject to the decision of the aforesaid special appeal. Consequently, the writ petitioner was reinstated on 8.7.2013 but he was not given backwages. Later on, the aforesaid special appeal of the State was dismissed on 12.9.2013. Thereafter, a preliminary enquiry was conducted against the writ petitioner by the Assistant Commandant, 32nd Battalion, PAC, who, after due enquiry, submitted a report dated 16.7.2014. On the basis of the preliminary enquiry report dated 16.7.2014, the disciplinary authority took a decision to conduct disciplinary proceedings against the writ petitioner. A charge-sheet dated 26.8.2014 was served upon the writ petitioner, who, after receipt of the same, submitted his reply, stating therein that he was examined twice by the Medical Board and he was declared medically fit for the appointment on the post of Constable, PAC, therefore, the services of the writ petitioner have wrongly been dismissed on the ground that he is suffering from Colour Vision.
(7) The aforesaid order dated 9.6.2015 has been challenged by the writ petitioner by filing Service Single No. 3500 of 2015. The case of the writ petitioner before the learned Writ Court was that he was selected and appointed as Constable in the year 2004-2005; at the time of recruitment, a candidate, who sought appointment on the post of constable, is subjected to rigorous medical examinations at two stages i.e. (i) Physical Standard Test, and (ii) Physical Efficiency Test; he is also subjected to medical examination each year subsequent to his appointment; in the initial Physical Standard Test and Physical Efficiency Test, no such infirmity was found and the petitioner was appointed; later, on the order of the DGP, a fresh medical examination was conducted in the year 2007, wherein the said infirmity was found; the petitioner was dismissed on the same ground which had been challenged by him in earlier writ petition and the learned Writ Court had set aside that order on the ground that no opportunity was given; from a perusal of the charge-sheet it is evident that except medical ground no other ground has been alleged against the petitioner regarding his work or conduct. In these backgrounds, the case of the writ petitioner is that he is not physically unfit and even if it is found that he is suffering from Colour Vision, it was after his employment as at the time of his initial appointment, he was found medically fit.
(8) The learned Writ Court, after appreciating the aforesaid submissions of the writ petitioner and on placing reliance upon the provision of Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (hereainafter referred to as "Act, 1995"), came to the conclusion that the writ petitioner has worked for the last seven years; he has performed several important duties which has not been denied in the counter affidavit; no Medical Board has been constituted; only on the basis of report of Assistant Professor of K.G.M.U., the writ petitioner has been found suffering from colour vision; as per Section 47 of Act, 1995, the services of an employee shall not be dispensed with or reduced in rank who acquires disability during his service. Accordingly, the learned Writ Court, on allowing the writ petition vide judgment and order dated 16.12.2016, quashed the order of dismissal dated 9.6.2015 and further remitted the matter to the authority concerned for re-consideration in the light of the observations made in the judgment, expeditiously, preferably, within six weeks from the date of communication of the order.
(9) Not satisfied with the judgment and order dated 16.12.2016, the appellants State has filed the present special appeal.
(10) Learned counsel for the appellants State has drawn our attention to the decision of a Co-ordinate Bench of this Court in the case of State of U.P. and others Vs. Sardar Khan Constable and another (Service Single No. 29803 of 2017) decided on 20.5.2019, and has submitted that in identical circumstances, a Co-ordinate Bench of this Court has taken a view that there was serious allegation of mass bungling in respect of appointment which was made in year 2006 and the duration in between the appointment and the medical is only of few months and not with delay, therefore, as the writ petitioners therein were suffering from Colour blindness, the order of termination passed by the authorities concerned was just and proper and, accordingly, set-aside the order passed by the Tribunal while allowing the writ petition. In these backgrounds, his submission is that the impugned order passed by the learned Writ Court is liable to be set-aside.
(11) From perusal of record, it reveals that the appointment of the writ petitioners were made somewhere in the year 2004 and after his appointment, he was examined twice by the Medical Board and no medical infirmity was found. As per the provisions of the Act, 1995, the services of an employee shall not be dispensed with or reduced in rank who acquires disability during the service period and he could be shifted to some other post with the same pay-scale and service benefits.
(12) It appears that in pursuance of order/circular dated 28.6.2007 issued by the Director General of Police, Uttar Pradesh, Lucknow with regard to re-assessing the suitability of the recruits (Constables) who were selected and appointed during 2005-2006, the writ petitioner along with other candidates, who were appointed in the year 2005-2006, were subjected to re-medical examination, whereupon for the first time, the defects of Colour Vision were found. In the counter affidavit also, it is no where stated that in the year 2004 i.e. on the date of appointment, the writ petitioner was found to be suffering from Colour Vision. In these backgrounds, the learned Writ Court has came to the opinion that the writ petitioner had worked for last seven years and has performed several important duties which were not denied by the State in the counter affidavit, therefore, the learned Writ Court has allowed the writ petition and remitted the matter to the authority concerned to re-consider the matter in the light of the observations made in the the order.
(13) So far as the reliance placed by the learned counsel for the Appellants State to the decision of the Co-ordinate Bench of this Court in the case of Sardar Khan (Supra) is concerned, we are of the view that the same is not applicable in the facts and circumstances of the present case insofar as in Sardar Khan (supra), the Co-ordinate Bench, after appreciating the rival submissions of the learned counsel for the parties and gone through the record, found that the writ petitioner has suppressed the fact of colour blindness and by suppression of the colour blindness, the services was obtained by the writ petitioner and accordingly, order of termination was made. In the aforesaid matter, the writ petitioner/respondent had not come with the case that colour blindness occurred during the service and there was allegation of mass irregularity in respect of appointment of Constable in the year 2006 and, therefore, the direction was issued for medical examination.
(14) At this juncture, it would be apt to add that in respect of appointment of Constable made in the year 2004, the matter was considered by another Co-ordinate Bench of this Court in Pramod Prasad and another Vs. State of U.P. and others (Special Appeal No. 59 of 2015) decided on 15.5.2019. The relevant portion of the judgment in the case of Pramod Prasad (supra) is being reproduced for convenient perusal :
"8. At the threshold, we would like to state that appointment was accorded to the appellants petitioners as constable as a consequence of regular selection and therefore, they were working with the respondent in substantive capacity. From perusal of the order dated 20th August 2007, 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 simplicitor manner but, it certainly has evil consequence. In the order term used is "removal from service". 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).
6. 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 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 Opthalmic Specialist as required under clause (G) of the standards settled in Appendix E. No formalities as noticed above were conducted.
9. In view of the fact that there is no material available on record to establish that the appellants petitioners 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 simplicitor manner. If any ailment during the course of employment occurred, then appropriate course at the first instance was to accommodate the appellants petitioners 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 event, the appellants petitioners would have been able to have a disability element also, if available. In entirety, we are of the considered opinion that the learned Single Bench erred by dismissing the petition for writ without examining the complete scheme of the set of Rules available."
(15) In the aforesaid case [Pramod Prasad (supra)], the Co-ordinate Bench of this Court considered the case of similarly situated persons as that of the writ petitioner and the Co-ordinate Bench of this Court considering the entire facts of the matter found that the removal of the said appellants in the special appeal was absolutely unjustified and it set-aside the order and the appellate Court in the special appeal also allowed the writ petition by means of order dated 15.5.2019.
(16) Considering the aforesaid, we are of the view that the judgment of Pramod Prasad (supra) is fully applicable in the present facts and circumstances of the case. Learned Standing Counsel for the appellants has not disputed that the case of the present writ petitioner is not covered by the case of Pramod Prasad (supra).
(17) With the aforesaid, we are of the view that the learned Writ Court has not committed any error in allowing the writ petition.
(18) The special appeal filed by the State has no merit and is, accordingly, dismissed."
17. Not only the above, this Court in other similar writ petitions has passed the favourable order in favour of the petitioners. It has been noticed that the State Government has complied those orders and most of the writ petitioners of other writ petitions have been permitted to continue in service and have been discharging their regular duties of Constable, even they have not been provided any substitute appointment as per the Act, 1995.
18. Learned State Counsel could not dispute the aforesaid submissions of learned counsel for the petitioners that the present matter is squarely covered by the facts based upon the Special Appeal No.59 of 2015 in re: Pramod Prasad (supra), which has been decided on 15.05.2019 and also in compliance of the orders being passed in various writ petitions the writ petitioners of those writ petitions have been permitted to discharge their respective duties as Constable.
19. In view of the aforesaid facts, the present matters are being squarely covered with the facts which lead to passing of the judgment and order dated 15.05.2019 in re:Pramod Prasad (supra), which has been upheld by Hon'ble Supreme Court, therefore, the same is binding upon this Court. The orders impugned in the present bunch of writ petitions are liable to be quashed.
20. Accordingly, the orders dated 28/29.06.2007 (Annexure No.1-A), 07.09.2007 and 29.08.2013, passed by the Commandant, 10th Battalion P.A.C., Barabanki, (Annexure Nos.1 & 2 in Writ Petition No.5824 (SS) of 2014), orders dated 28/29.06.2007 (Annexure No.1-A), 19.08.2007 and 16.12.2013, passed by the opposite party No.5 (Annexure Nos.1 & 2 in Writ Petition No.5613(SS) of 2014) and order dated 19.11.2013, passed by the opposite party No.3 (Annexure No.1 in Writ Petition No.2328 (SS) of 2014), are hereby quashed. The petitioners shall be reinstated in service with all consequential benefits.
21. In the result, all the writ petitions succeed, and are hereby allowed.
22. No order as to costs.
Order Date :- December 20th, 2019 Suresh/ [Rajesh Singh Chauhan,J.]