3 * IN THE HIGH COURT OF DELHI AT NEW DELHI % ludament Reserved on: 17^^ March. 2011 ludament Delivered on:22"^ March. 2011 + W.P.(C) 1681/2011 PUSHPENDER SINGH Petitioner Through: Mr.Ankur Chhibber, Advocate. Versus UOI & ORS. Respondents Through: Ms.Barkha Babbar, Advocate for UOI. CORAM: HON'BLE MR. JUSTICE PRADEEP NANDRAJOG HON'BLE MR. JUSTICE SURESH KAIT 1. Whether the Reporters of local papers may be allowed to see the judgment? 2. To be referred to Reporter or not? 3. Whether the judgment should be reported in the Digest? PRADEEP NANDRAIOG. I. For orders see WP(C) 5077/2008. (PRADEEP NANDRAJOG) JUDGE (SURESH KAIT) JUDGE MARCH 22, 2011 dk Digitally Signed By:AMULYA Signature Not Verified * IN THE HIGH COURT OF DELHI AT NEW DELHI % ludament Reserved on: IT'^ March. 2011 ludament Delivered on:22"'^ March. 2011 + W.P.(C) 5077/2008 SUDESH KUMAR Petitioner Through: Mr.Narender Datt Kaushik, Advocate. Versus UOI & ANR. Respondents Through: Dr.Ashwani Bhardwaj, Advocate. W.P.(C) 11554/2009 BABU LAL SAMATA Petitioner Through: Mr.S.R.Kalkal, Advocate. Versus UOI & ANR. Respondents Through: Mr.Sachin Datta, CGSC with Ms.Gayatri Verma, Advocate for UOI. W.P.(C) 589/2010 CONSTABLE MANISHJOSHI Petitioner Through: Mr.Ashish Mohan, Advocate. Versus UOI & ANR. Respondents Through: Mr.Ravinder Agarwal, CGSC with Mr.Nitish Gupta, Advocate for UOI. W.P.(C) 1668/2011 JAGVEER SINGH & ORS. Petitioners Through: Mr.A.K.Mishra, Advocate. Versus W.P.(C) No.5077/08 & other matters Page 1 of 35 UOI & ORS. Respondents Through: Mr.Sunil Kumar, CGSC with Mr.Alok Kumar Shukia, Advocate for UOI. W.P.(C) 1681/2011 PUSHPENDER SINGH Petitioner Through: Mr.Ankur Chhibber, Advocate. Versus UOI & ORS. Respondents Through: Ms.Barkha Babbar, Advocate for UOI. CORAM: HON'BLE MR. JUSTICE PRADEEP NANDRAJOG HON'BLE MR. JUSTICE SURESH KAIT 1. Whether the Reporters of local papers may be allowed to see the judgment? 2. To be referred to Reporter or not? 3. Whether the judgment should be reported in the Digest? PRADEEP NANDRAIOG. I. 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 W.P.(C) No.5077/08 & other matters Page 2 of 35 N 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 W.P.(C) No.5077/08 & other matters Page 3 of 35 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. Babu Lai Samata the writ petitioner of WP(C) No.11554/2009 was enrolled as a Constable (General Duty) with Border Security Force on 1.6.2002 and at the time of joining service he was subjected to a medical examination and was found fully fit. At each annual medical examination he was found fully fit. He discharged his duties, successfully he claims, attached with the 6'^ Bn. BSF and his grievance commences when during a routine medical examination he was detected as a case of; 'Partial Colour Blindness'. He submitted a representation against his being placed in low medical category as a result of being detected with partial colour blindness and on 30.8.2006 a Review Medical Board was constituted which gave an opinion that he was suffering from: 'Red-Green Colour Blindness'. On 31.10.2006 he was communicated that due to the medical infirmity he was unfit for further service in BSF and thus would be retired from the afternoon of 31.10.2006 with 50% disability as recommended W.P.(C) No.5077/08 & other matters Page 4 of 35 {f) by the Medical Board. He claims 50% extra-ordinary pension alleging that he had incurred the medical disability as a direct result of his service. As per the respondents the medical infirmity is not attributable to service and thus it is stated that he would not be entitled to any pension under the CCS(Extra- Ordinary Pension) Rules 1972. In the additional affidavit filed by the respondents, with reference to Annexure R-13 it is asserted that medical opinion is that the colour blindness from which he suffers is congenital and not attributable to military service. It is asserted in the additional affidavit that at the time of medical examination conducted when petitioner was inducted in service, the column pertaining to 'Colour Vision' was inadvertently left blank. It is asserted that on 1.12.2003, it got detected that he cannot read the numbers or trace the line in the ISHIHARA Colour Vision Test Chart except the first plate. It is further asserted that at the Review Medical Board, he was put through the 'Edridge/Martin Lantern' Test m' which it was detected that he could not identify all colours and was suffering from 'Red-Green' colour blindness, which was reconfirmed when he was further examined at All India Institute of Medical Sciences and subjected to 'Edridge/Martin Lantern' Test. On the issue whether or not the disability could be attributed to service, it is asserted that colour blindness could be acquired due to diseases like Alzheimer's disease. Diabetes, Mellitus, Leukaemia, Liver disease. Chronic Alcoholism, Parkinsonism, Retinis pigmentosa etc. It is asserted that it is not the case of the petitioner that he suffered from any such disease and thus it is concluded that the obvious conclusion has to be that the Red-Green Colour Blindness suffered by him is congenital. W.P.(C) No.5077/08 & other matters Page 5 of 35 4. Constable Manish Joshi, the writ petitioner of WP(C) No.589/2010 was appointed as a Constable (General Duty) under Indo-Tlbetan Border Police on 24.12.2005 and at the time of appointment was subjected to a medical examination where no medical disability was detected. At each annual medical examination he was found fully fit. At a routine medical examination conducted on 16.1.2007 he was statedly detected with partial colour blindness I.e. 'Red-Green' Co\o\iT Spectrum Blindness. He accepts his medical Infirmity and had no problem, If consistent with the same, he could be accommodated on such duties where the partial colour blindness suffered by him was Immaterial but raises a grievance pertaining to the policy notified on 29.10.2008 by the Ministry of Home Affairs In which, with reference to an earlier policy dated 17.5.2002, It was decided that those members of the Central Para-Mllltary Force who were Inducted In service prior to 17.5.2002 and for whatever reasons the disability could not be detected then, would be retained In service and would also earn promotions. If otherwise fit, but those who were recruited after 17.5.2002 would be required to be Invalidated In service after 4 years. He challenges the policy as discriminatory alleging that there Is no rationale to stipulate a cut-off date being 17.5.2002 as done under the policy decision. He also states that the policy decision Is violatlve of Section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act 1995. As per the response filed It has been decided to Invalidate from service all persons who suffer from colour blindness. Irrespective of the fact whether they joined service before or after 17.5.2002 I.e. the response strikes at the very W.P.(C) No.5077/08 & other matters Page 6 of 35 foundation of the action predicated on the plea of discrimination, but we note that on 11.3.2011, another policy decision has been notified by the Ministry of Home Affairs reintroducing the cut-off date 17.5.2002 with a direction that such Force Personnel who were recruited with colour blindness prior to 17.5.2002 will continue to receive the benefit of a policy circular dated 17.5.2002 as per which it was notified that such Force Personnel who were inducted in spite of being colour blind would be retained in service but assigned duties not requiring use of firearms, identification of various types of colour signals, identification of criminals in mobs and use of specialized equipment. In other words, the justification given by the respondents for the cut-off date 17.5.2002 is that by said date a decision was taken by way of one-time relaxation for the benefit of all those who were appointed prior to 17.5.2002 and needless to state, the argument advanced was that there has to be a prescribed cut-off date on an issue of the kind and unless it was shown to be patently arbitrary, it would be a matter of policy as to what should the cut-off date be. 5. 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 6V2 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 W.P.(C) No.5077/08 & other matters Page 7 of 35 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.0.15173-74 (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. 6. Pushpender Singh the writ petitioner of WP(C) No.1681/2011 was appointed as a Constable (General Duty) on 20.11.2004 and at the time of entry was found to be medically fit. He sought conversion from the General Duty Cadre to the Driver Cadre and also successfully underwent a D&M Course at Neemuch. Vide order dated 18.3.2010 cadre change was intimated to him and thus he became a Constable (Driver). At each annual medical examination from the year 2004 till 2009 nothing abnormal was detected and only in the medical examination conducted in April 2010 he was detected as a case of Partial Colour Blindness. On 22.2.2011 a show-cause notice was served upon him requiring him to respond as to why he should not be invalidated from service. He relies upon a policy circular dated 12.6.1997 as per which Constable W.P.(C) No.5077/08 & other matters Page 8 of 35 (Drivers) detected with colour blindness would be transferred in the General Duty cadre till they superannuated. He also relies upon the policy circular dated 7.11.1997 i.e. the one relied upon by the Calcutta High Court as per which: 'AH the personnel GD/Trade/Tech. recruited till issue of this Directorate General Letter No.R.ii-31/94-Essttii dated 2/12/94 and found suffering from colour blindness may be retained in service tiii superannuation. They wiii continue to do their normal duties except driving of vehicles.' Counter affidavit has not been filed in the said writ petition but the defence taken is the same as in the preceding two writ petitions noted herein above. 7. Before we deal with the various policy circulars pertaining to colour blindness issued from time to time and from there-from discern the policy of the Executive framed from time to time, we think we ought to pen a few words on what colour blindness is about. 8. The English Chemist John Dalton published the first scientific paper on this subject in the year 1798, titled: 'Extraordinary Facts Relating to the Vision of Colours'. He wrote the article after the realization of his own colour blindness and because of Dalton's work, colour blindness condition is often called Daltonism; but as of now this term is used for only a type of colour blindness called 'Deuteranopia'. 9. The subject experts are in agreement that colour blindness is a very mild disability, but in certain situations, depending upon a job and especially where the identification of the colours red and green are important, may be a serious disability. 10. To understand the phenomenon of colour blindness, the human eye and especially the human retina needs to be W.P.(C) No.5077/08 & other matters Page 9 of 35 understood. The average human retina contains 2 kinds of light ceils: (i) the rod cells, which are active in low light; and (ii) the cone cells, which are active in normal day light. There are 3 kinds of cone cells, each containing a different pigment which gets activated depending upon the light absorbed by a pigment. The spectral sensitivity of the cones differ to different wavelengths i.e. short wavelength, medium wavelength and long wavelength. The peak sensitivity of the cone cells is to be found in the blue, yellowish-green and yellow region of the spectrum. These receptors are often called 'S' cones, 'M' cones and 'L' cones, representing short, medium and long wavelength. They are also often referred to as blue cones, green cones and red cones. But, this terminology is not very accurate and especially for the reason red receptors have their peak sensitivity in the yellow region. The sensitivity of normal colour vision actually depends on the overlap between the absorption spectra of the 3 systems, red light for example, stimulates the long wavelength cones much more than either of the others and reducing the wavelength causes the other 2 cone systems to be increasingly stimulated, causing a gradual change in hue. 11. It is recognized that colour vision deficiencies are either acquired or inherited. Pertaining to inherited, there are 3 types of congenital colour vision deficiencies: (i) monochromacy also known as total colour blindness caused by cone defect or absence and in this case there is a complete lack of ability to distinguish colours. It occurs due to two or all three cone pigments missing. (ii) Dichromacy which is moderately severe colour vision defect and is the result of one of the three basic cones missing, (iii) Anomaious Trichomacy W.P.(C) No.5077/08 & other matters Page 10 of 35 which is less severe colour vision defect and is the result of one of the three cone pigments being altered in its spectral sensitivity. The result is not a total loss, but an impairment of the normal 3-dimensional colour vision. 12. Thus, colour blindness or colour vision loss which is congenital i.e. hereditary may be broadly stated to be, total, moderate or partial. 13. Colour Blindness or Colour Vision Loss can also be acquired as noted herein above. These may be due to brain or retinal damage caused by Shaken Baby Syndrome, accidents and trauma which produce swelling of the brain in the occipital lobe or damage to the retina caused by exposure to ultra violet light. Degenerative diseases of the eye, such as age related macular degeneration or retinal damage caused by diabetes are also the causes of acquired colour vision loss. Exposure to certain kinds of chemicals such as carbon monoxide, carbon disulphide, styrene and lead based chemicals also may result in colour blindness. Consequence of side effects of some medicines such as anti-inflammatory medicines, medicines for rheumatoid arthritis and even chloroquine may cause colour blindness. 14. An interesting facet of colour blindness, has unfortunately escaped the attention of the Centrai Para- Military Forces and also the Central Government, evidenced by the fact that during arguments Ophthalmologist had assisted learned counsel for the respondents and indeed Dr.Padma Chaudhary, an Ophthalmologist had explained the various nuances pertaining to colour blindness in Court as acknowledged by the respondents in the additional affidavit filed, enclosing therewith the opinion of Dr.Padma Chaudhary, W.P.(C) No.5077/08 & other matters Page 11 of 35 in WP(C) No.11554/2009. The facet which has escaped the attention of all is a distinctive ability of colour blind people which was first detected during World War-ll. This was the ability of these individuals to be better placed than normal individuals, at penetrating certain colour camouflages and especially the colour 'khaki'. Reference may be made to an article published under the title 'Dichromats detect colour- camouflaged objects that are not detected by trichromats' published by M.J.Morgan, A.Adam and J.D.Mollons who are senior professors in the Department of Pharmacology, University of Edinburgh and the Department of Experimental Psychology, University of Cambridge. In World War-ll, colour blind soldiers were used in spy planes to spot camouflage German camps. 15. Neither the respondents nor their doctors and thus nor their counsel was aware of the utility of colour blind persons in respect of colour blindness being used as an asset and not being labelled as a liability. 16. Let us proceed to note the policy circulars issued from time to time and as relied upon in the pleadings of the parties. The first is a policy circular dated 16.5.1991 issued by Director General CRPF which reads as under:- "To, The Addl. DG NW Zone, CRPF Chandioarh The Inspector General of Police Southern/Eastern/Northern & NW Sector, Central Reserve Police Force, Hvderabad. Calcutta. New Delhi & Shilono. W.P.(C) No.5077/08 & other matters Page 12 of 35 Subject- Disqualification for entitlement in CRPF due to colour blindness Sir, Kindly refer to this directorate letter of even number dated 04.10.90. 2. The matter regarding retention of force personnel in service, who are suffering from colour blindness as well as making colour blindness as disqualification for entry in to CRPF, has been examined in depth while doing so the view expressed by Addl.DG NW Zone and sector IsCP on the subject have also been considered. 3. I am directed to convey the following decision on the subject cited above:- i) Colour blindness will be a disqualification for entry in CRPF in respect of the executive. Technical and trade cadres including MT. However, colour blindness will not be a disqualification for the Hospital staff. Ministerial staff and followers. ii) All Drivers upto the rank of HC (Dvr.) who are reported to be having colour blindness may be transferred to GD line as already communicated vide this Directorate letter of even number dated 04.10.1990. ill) Those serving GD personnel who are having colour blindness may be allowed to continue in services till they superannuate. Yours faithfully, Sd/-16/5/91 (M.M.Sharma) Asstt.Director, Estt.M" 17. The second is a policy circular dated 12.6.1997 issued by Director General CRPF which reads as under:- "To, The Special Director General, Southern Sector, CRPF, Hyderabad, W.P.(C) No.5077/08 & other matters Page 13 of 35 The Addl.Director, General. NWZ, CRPF, Chandigarh The Inspector General of Police, BS, CS, ES, NS, WS, RAF, NES, SPL, SEC, M&N, J&K & Director ISA CRPF Mt.Abu. Subject: CRITERIA OF EYE SIHGT/VISUAL STANDARD OF SERVICE PERSONNEL Sir, Owing to certain ambiguities in the criteria of eyesight/visual standard of serving personnel, the matter was examined in detail and following instruction are hereby issued supersession of all previous orders on the subject:- (a) Para 1.15(b) Visual Standard: Existing para in Recruitment Manual Amended Para 1.15 (b) Visual Standard. The visual standard will be; (1) See to shoot on driver (First line troops) visual acquity not less than: Each eye 6/12 9 on) Right eye 6/6 Reads 0.6 Reads 0.8 on left eye 6/36 read I orj.6 (i) Should not be less than 6/6 in one eye and 6/9 in other for all ranks 1.0.6/6 for fit eye in Rt handed individual and 6/6 for left eye in left handed individual without glasses. Existing para in Recruitment Manual Amended (ii) See for-ordinary purposes in fighting are (Sub shooting standard) but may be called upon to fight under exceptions circumstances. (ii) Should be free from Colour blindness Right eye 6/12 Left eye 6/36 W.P.(C) No.5077/08 & other matters Page 14 of 35 19 Reads 0.6 or J.2 Reads I or J.6 Existing para in Recruitment Manuai Amended (iii) See for ordinary purposes (inciudes Clerks, non- combatants and Followers) Right eye 6/36 Reads 0.6 or J.6 Left eye 6/12 or each eye Reads 0.6, 6/24 reads 0.8 Second para of page-7of Recruitment Manuai 2. Recruits other than clerk recruits required for educational duties and non combatants (enrolled) may not wear spectacles during the visual test. Unaided vision of recruits of clerical and educational duties will not be below 6/6 in each eye and on correction will be the same as for (i) and (ii) above conforming to the visual standard of personnel of that category except that near vision in one eye must be 0.5 or J.l. Each eye must have full field of vision as tested by hand movements. Any morbid conditions of the eyes or lids liable to the risk of aggravation of recurrence, will cause rejection of the recruit. (iii) Near vision should be Ji equivalent if some other charts used) unladed both eyes. (a) Recruits (GD) /Tech/Trade/Enrolled Followers and ASI (M) may not be permitted to wear spectacles during the visual test. Unaided vision of recruits (GD)/Tech/ Trademan /Enrolled Followers and ASi (M) will not below 6/6 in one eye and 6/9 in other for all ranks 1.0.6/6 for right eye is right handed individual and 6/6 for left eye in left handed individual without glasses. Each eye must have full field of vision as tested by hand W.P.(C) No.5077/08 & other matters Page 15 of 35 nA movements. Any morbid conditions of the eyes or lids liable to the risk of aggravation f recurrence will