Delhi High Court
Mohd. Faisal vs Govt Of Nct Of Delhi And Ors. on 28 August, 2006
Equivalent citations: 132(2006)DLT159
Author: Manmohan Sarin
Bench: Manmohan Sarin, Aruna Suresh
JUDGMENT
Manmohan Sarin, J.
1. Petitioner-Mohd. Faizal desirous of joining the Police Force had applied to the Delhi Police in response to an advertisement to fill up 2359 vacancies of Constables (Executive). Petitioner was assigned Roll. No. 429623 and was put through a written test, physical and measurement test, interview and declared provisionally selected, subject to verification of his character and antecedents. Petitioner was also got medically examined at Guru Tegh Bahadur Hospital, Delhi and declared unfit on account of “Colour Blindness”. Petitioner preferred an appeal and a Medical Board was constituted for re-examination. Upon re-examination, LNJP Hospital submitted a report on 15th January, 2004, holding the petitioner to be unfit recording it as a case of `partial colour blindness’. Delhi Police cancelled the candidature of the petitioner vide order dated 28th January, 2004.
2. Petitioner aggrieved by the cancellation of candidature, challenged it by OA. No. 522/2004, before the Central Administrative Tribunal, hereinafter referred to as the Tribunal. The Tribunal vide its order/judgment dated 13th October, 2004 dismissed the OA, holding that since petitioner was suffering from colour blindness, he was not eligible to be appointed to the post of Constable (Executive), as there was a bar under Rule 9 of the Delhi Police (Appointment & Recruitment) Rules, 1980.
3. Petitioner impugns the order/judgment dated 13th October, 2004, in the writ petition. The writ petition involves interpretation and effect of Rule 9 read with Rule 24(a) of Delhi Police (Appointment & Recruitment) Rules, 1980 and the instructions given in the Appendix to the said Rules for medical examination. For facility of reference, the text of Rule 9 as also Rule 24(1)(2) and the relevant provisions of the Appendix is reproduced below:
Rule 9 Recruitment of Constables:
(i) xxx
(ii) xxx
(iii) xxx
(iv) xxx
(v) Physical, educational, age and other standards for recruitment to the rank of Constable shall be as under:
(a) xxx
(b) xxx
(c) xxx
(d) xxx
(e)Physical Sound state of No relaxation
standard health, free from permissible
defect/deformity/
without glasses both
eyes, free from colour
blindness.
(f) xxx
Rule 24. Medical examination of candidates
(1) Before enrolment, every candidate shall be medically examined and certified physically fit for police service by the police surgeon or medical officer appointed by the officer appointed by the Commissioner of Police. A certificate, in Forms `D’ and `E’ duly signed by the medical officer, is essential for enrolment. Before his medical examination the candidates shall be required to give a declaration in Form `C’ in the presence of the medical officer, such declaration being precondition for enrolment. The candidates declared medically unfit shall be informed, in writing, of the reasons of unfitness. (2) The medical examination shall be conducted in accordance with the instructions contained in Appendix. The medical officer shall test the eye sight, speech and hearing of the candidate, his freedom from physical defects, organic or contegious disease, his age or any other defects, or tendency likely to render him unfit for police service. Candidate shall be rejected for any disease or defect likely to render them unfit for the duties of a police officer at any stage. (3)xxx (4)xxx (5)xxx APPENDIX Points to be observed by Medical Officers in examining candidates for recruitment to the Delhi Police are indicated in the following paragraphs:
Medical Officer will satisfy themselves regarding each candidate on the following points in the order given. If a disqualifying defect is noticed the recruit will be rejected without further examination and appropriate entries made in the Recruits Register. Each eye must have a full field of vision as tested by hand movements.
(a) That the vision is up to the following standard.
(i) For Constables, Head Constables and Sub-Inspectors.
Visual acuity (both eyes) 6/12 without glasses.
(ii) For drivers and Traffic visual acuity (both eyes) 6/12 without glasses shall be free from colour blindness.
(iii) For Clerical staff and technical hands. Distant vision.
Better eye Worse eye Near vision
6/6(without glasses) 6/36 corrected with J-2
without glasses
(both eyes)
Notes:in examining the recruit by means of the `Test Dot Card’, the following directions should be observed.
(i) Place the recruit with his back to the light and hold the Test Card perfectly upright in front of him at a measured distance of exactly 10 feet. The light should fall fully on the card.
(ii) Examine each eye separately. The eye not under trial should be shaded by the hand of an Assistant, who will take care not to press on the eye ball.
(iii) Expose some of the `dots’. Not more than 5 to 6 at a time, and desire the recruit to name their number and positions and vary the group frequently to provide against deception.
(iv) The ‘Test Dot Card’ must be kept perfectly clean.
4. Mr.Shyam Babu, learned Counsel for the petitioner submits that the Tribunal has completely mis-directed itself by ignoring and not taking note of the provisions of Appendix and simply deciding the matter on the basis of Rule 9(v)(e). Undoubtedly Rule 9(v)(e) requires the vision of 6/12 without glasses in both eyes and the person to be free from colour blindness. Further, it does not permit any relaxation. However, Tribunal has simply proceeded taking into account Rule 9(v)(e). It has ignored the provisions of Sub-rule (2) of Rule 24, which requires the medical examination to be conducted in accordance with the instructions contained in the Appendix. It enjoins upon the Medical Officer to test the eye sight, speech and hearing of the candidate, his freedom from physical defects, organic or contagious diseases, his age or any other defects.
5. Llearned Counsel for the petitioner relying on the provisions of the Appendix reproduced in para 3 hereinbefore urged that petitioner being an aspirant for the post of Constable, the only requirement was having a vision of 6/12 without glasses in both the eyes. Further, that being free from colour blindness was a requirement for recruits, who were to be engaged as drivers and in traffic police. Petitioner being an aspirant for Constable (Executive), the requirement of being free from colour blindness had not been specified in the instructions. It was, accordingly, urged that the Appendix contained specific provisions and only those who were to be employed as drivers and in the traffic department, were required to be free from colour blindness. The said conditions would not apply to Constable (Executive). Llearned Counsel for the petitioner also places reliance on Union of India and Ors. v. Satya Prakash Vasisht reported at 1994 Supp (2) Supreme Court Cases 52, where the respondent had been selected for appointment as Sub-Inspector (Executive) in Delhi Police but appointment had been denied to him on account of being colour blind. The Tribunal had allowed the respondent’s appeal and directed his appointment. Union of India went in appeal to the Supreme Court. The Supreme Court had the occasion to consider this very provision of the Appendix. It was urged by Union of India before the Supreme Court that the requirement of person to be free from colour blindness was applicable, both to Sub clauses (i) and (iii) of Clause (a) i.e. to Constable, Head Constable, Inspector, clerical staff and technical hands and not only to drivers and traffic personnel. The Supreme Court rejected the same. It held, ” reading the above extract as a whole, it is clear that the requirement that the candidate should be free from colour blindness applied only to the post of Drivers and traffic staff and it did not apply to Constables, Head Constables, Sub-Inspectors (Executive), clerical staff and technical hands.” The Court also held that “there was clearly discernible basis for the disqualification of colour blindness for persons appointed as Drivers and traffic staff, the nature of whose duties are different from that of a Sub-Inspector (Executive).”
6. Reference may also be usefully made to a decision of the Supreme Court in Jaibir Singh v.Deputy Commissioner of Police and Ors. SLP (civil). No. 17002/1995, where the Court allowed the appeal against the judgment of the Central Administrative Tribunal, setting aside the impugned judgment of C.A.T holding him to be disqualified for being appointed to the post of Constable in Delhi Police on account of being colour blind. The Court relied on the case of Union of India and Ors. v.Satya Prakash Vasisht (Supra) in holding the person, who was colour blind, to be eligible to the post of Constable (Executive).
7. Llearned Counsel for the petitioner has rightly assailed the judgment of the Tribunal, declining relief on the basis that the provisions under consideration in Union of India and Ors. v.Satya Prakash Vasisht (Supra) were of 1978 while we were dealing with the Rules of 1980. We find that the provisions of the Appendix in Satya Prakash Vasisht’s case, is the same Appendix, which had been considered by the Supreme Court and which is now part of the Rules of 1980 and as such the Tribunal erred in holding that the judgment in Union of India and Ors. v.Satya Prakash Vasisht (Supra) and Jaibir Singh v.Deputy Commissioner of Police and Ors. (supra) would not come to the rescue of the petitioner herein.
8. Llearned Counsel for the respondent, Mr.R.Madan, conscious of the fact that the provisions of the Appendix to Rule 24 of Delhi Police (Appointment & Recruitment) Rules, 1980 were the same that were considered in the above cited cases and presently applicable, sought to urge that Rule 24 and the Appendix would have no application as Rule 9 was inserted subsequently and its provisions would prevail and supersede the provisions of Appendix under Rule 24. He further urged that accordingly the bar of Rule 9 would prevail. Mr.Madan next urged that the provisions of the Appendix to Rule 24 would stand impliedly overruled by the provisions of Rule 9.
9. We are unable to accept this contention. In our view the provisions of Rule 9 cannot and do not impliedly overrule the provisions of Rule 24 and the Appendix thereto. The provisions of the Appendix and Rule 24 in fact are specific provisions, which carve out an exception to the general bar contained in Rule 9. Besides, the provision contained in the Instructions and Appendix, barring recruitment to certain specific categories due to colour blindness has a rational basis and an intelligible differentia based on job requirements from the category of service. In other words, being free from colour blindness is an essential requisite for drivers and those controlling the traffic, which has been provided for in the Appendix. Colour Blindness does not disable functions to be performed by other categories such as Executive and ministerial. As noticed earlier, the Tribunal has not considered the provisions of the Appendix and Rule 24, which carve out an exception to the general bar contained in Rule 9.
10. Assuming that there is inconsistency or repugnancy between the provisions of Rule 9 and Rule 24, the doctrine of harmonious construction requires the Court to interpret these provisions in such a manner that they are allowed to operate with harmony and none of them is rendered otiose or dead letter. The view that we have taken, as noted above, is in consonance with the principles of harmonious construction. Reference may usefully be made to the judgment of the Supreme Court in Anwar Hasan Khan v.Mohd.Shafi reported at (2001) 8 Supreme Court Cases 540. The Court held as under:
For interpreting a particular provision of an Act, the import and effect of the meaning of the words and phrases used in the statute have to be gathered from the text, the nature of the subject matter and the purpose and intention of the statute. It is a cardinal principle of construction of a statute that effort should be made in construing its provisions by avaoiding a conflict and adopting a harmonious construction. The statute or rules made there under should be read as a whole and one provision should be construed with reference to the other provision to make the provision consistent with the object sought to be achieved. The well-known principle of harmonious construction is that effect should be given to all the provisions and a construction that reduces one of the provisions to a “dead letter” is not harmonious construction.
11. We may also at this stage refer to Dr. Kunal Kumar v.Union of India, a decision by one of us (Manmohan Sarin, J.) in CW. No. 4608/2002. In the said case, the Court had the occasion to consider the question of validity of disqualification of a MBBS Doctor to the MD course in Pathology his being colour blind. The Court considered the nature and meaning of colour blindness. It was observed as under:
Colour blindness is a misnomer as it refers to blindness which is normally understood s inability to see. In case of a colour blind person, the person is able to see colours, but has a reduced spectrum and there is inability or deficiency to distinguish colours. Colour blindness is a malfunction of the retina, which converts light energy that is then transmitted to the brain. This conversion is accomplished by two types of photoreceptor cells in the retina; rods and cones. The retina has about 120 million rods and about 6 million cones. Colour blindness occurs when the cones, which are used for distinguishing colours either become deficient or some of them, are non-functional. It should appropriately be called colour vision deficiently, rather than colour blindness. Colour deficient patients are not completely red or green blind. Compared to persons with normal colour vision, they have some troubles differentiating between certain colours, but the severity of the colour deficiency is variable.
12. The various tests, which are available to assess colour blindness are Edridge Green Colour Lantern test, Ischihara test and Nagels Anamaloscope Colour test. In the instant case, it is sufficient to notice that the report only mentions `partially colour blind’. As such, in the absence of comprehensive report based on the above tests, it cannot be predicted with any degree of certainty as to the nature of deficiency. However, it could be a mild colour deficiency, which has led the hospital to report it as partial colour blindness. The colour deficiency may be confined to a particular hue of colour. Considering these factors and specially that the petitioner was an aspirant only for the post of Constable (Executive), we find that the decision of the Authorities to debar him on ground of colour blindness, apart from being contrary to the provisions of Rule 24 read with Appendix, has resulted in unjustly depriving the petitioner to a post, to which he has been selected. Besides, it also runs counter to the decision of the Supreme Court in Union of India and Ors. v. Satya Prakash Vasisht (Supra) and Jaibir Singh v. Deputy Commissioner of Police and Ors. (Supra) and is thus not sustainable.
13. We, accordingly, allow the writ petition and quash the decision of the respondent Authorities, cancelling the candidature and the judgment of the Tribunal, dismissing the OA. Respondent shall process the case for appointment of the petitioner within one month. Petitioner would also be entitled to have the period from which he should have ordinarily been appointed to be treated as part of his continuous service for all purposes, excluding back wages but including the retiral benefits and fixation of his seniority, subject to it not affecting the promotions already made of persons junior to the petitioner and those who may have been already promoted.