Hon'ble Jaspreet Singh,J.
(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). 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."
(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.