SUDESH KUMAR Vs. UOI

JUDGEMENT

(1.) THE above captioned petitions pertain to a common issue relating to colour blindness and this is the reason they are being disposed of by a common judgment. THE petitioners have served or are serving in different Central Para-Military Forces and each one of them suffer from colour blindness, a stated medical infirmity which is threatening their career.

(2.) SUDESH Kumar, the writ petitioner of WP(C) 5077/2008 joined service as a Constable (General Duty) with the Central Industrial Security Force on 19.4.2003. Indisputably, he was medically examined at the time of his initial entry in the service and was found fit. He was not detected with any colour blindness. At each annual medical examination he was found fully fit. Responding to an advertisement dated 19.3.2007 he sought career progression when he offered his candidature for being appointed as a Sub- Inspector (Executive) through a Limited Departmental Competitive Examination proposed to be conducted by the Department. He successfully cleared the written examination held on 27.5.2007 as also the physical examination conducted on 2.6.2007 as also the interview held on 29.6.2007. Required to undergo another medical examination, he was medically examined at the CISF Hospital, Saket, New Delhi on 5.7.2007 and on 6.7.2007 was communicated a rejection on ground of being ,,unfit. The medical unfitness detected was: ,,Defective Colour Vision. He had a right to seek a Review Medical Board and for which he was supposed to file an Appeal annexing therewith an opinion of a competent doctor to the contrary. Since by July 2007, the Unit to which the petitioner was attached was transferred Thalchar (Orissa), he got himself medically examined from an Eye-Specialist at Angul (Orissa) and obtained a certificate as per which it was certified that the he had normal colour vision. He also got himself examined from the District Hospital, Moradabad where it was certified that his colour vision was normal. Armed with the 2 certificates he preferred an appeal to the Inspector General CISF and grievance raised in the writ petition is that his Appeal was not being disposed of. During arguments of the writ petition filed by him, counsel stated that directions may be issued to CISF to convene a Review Medical Board with a panel of 3 doctors; all of whom should be Ophthalmologist with further direction that latest techniques available to detect colour blindness should be considered by the Board and applied at the medical examination. The response of CISF, as per counter affidavit filed, is that the Appeal filed has been rejected inasmuch as SUDESH Kumar has not complied with the requirements of filing the Appeal. Though not stated with clarity in the counter affidavit filed as to what was not complied with by SUDESH Kumar, during arguments, Dr.Ashwani Bhardwaj Advocate, stated that the requirement to be complied with was to have it recorded in the certificates obtained by SUDESH Kumar from the Civil Hospitals that he had informed the doctors concerned of being detected with colour blindness by the doctors of CISF, and since the certificates did not so record, the Appeal was rejected. It is asserted that this fact was communicated to SUDESH Kumar on 7.9.2007.

(3.) CT.Jagveer Singh, CT.Charan Singh and CT.Sunil Kumar, the 3 writ petitioner of WP(C) 1668/20011 were recruited as Constables (General Duty) with CRPF on 20.8.2004, 15.5.2004 and 7.7.2004 respectively. They were subjected to a medical examination before appointment and were declared ,,Fit. At each annual medical examination they were found fully fit. Having served for about 6? years, at a routine medical examination, all of them were detected as cases of partial colour blindness and were given an opportunity to represent against the disability detected. They admit suffering from colour blindness but state that they cannot be invalidated from service, an action threatened against them, and rely upon the fact that on 16.5.1991 the Director General CRPF had notified a policy decision that colour blindness would be a disqualification for entry into service under CRPF except for hospital staff and ministerial staff. They rely upon a decision of the Calcutta High Court dated 2.11.2000 deciding C.O.15173-74 (W) of 1992 wherein a learned Single Judge held that in view of a clarificatory circular dated 7.11.1997 that all personnel including Constables (General Duty) were entitled to remain in service till they reach the age of superannuation, except for drivers. Though counter affidavit has not been filed in said writ petition, argument advanced during hearing of the writ petition by the respondents was the same as was advanced to defeat the claim of the writ petitioner of WP(C) No.589/2010.