IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP-T No. 4520/2008 & 4521/2008 Decided on:5.3.2010 _____________________________________________ 1. CWP (T) No. 4520/2008 Hoshiar Singh. …Petitioner. Versus State of Himachal Pradesh and others. …Respondents. 2. CWP (T) No. 4521/2008 Satish Kumar. …Petitioner Versus State of Himachal Pradesh and others. …Respondents. ________________________________________________________ Coram: Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1.yes For the petitioner(s) : Mr. Onkar Jairath, Advocate. (in both the petitions) For the Respondents: Mr. R.K. Sharma, Sr. Addl. A.G. with (in both the petitions) Mr. Rajinder Dogra, Addl. A.G. _____________________________________________________ Rajiv Sharma, Judge (oral). Since common questions of law and facts are involved in both these petitions, the same were taken up together for hearing and are being disposed of by a common judgment. 1 Whether reporters of the local papers may be allowed to see the judgment? yes 2 Respondent-State initiated the process for filling up the posts of constables in various districts. Petitioners were called for ground test, physical test, written test and personal interview in the month of April, 1996. They were sent for medical examination at District Hospital. They were medically examined by the Medical Board headed by Chief Medical Officer. This medical examination was conducted in the month of May, 1996. Petitioners were allocated constabulary number. They submitted their formal joining report at Police Lines. They were sent for recruit training at Police Training College, Droh. They were medically examined by the doctor. Petitioners were declared suffering from colour blindness. They were further examined by the Medical Board constituted by Chief Medical Officer. They were found suffering from colour blindness. They were served with a memo dated 11.11.1996. They approached the learned Himachal Pradesh Administrative Tribunal by filing original application(s). Learned Tribunal directed respondent No.1 to consider the case of the petitioners for relaxation within one month in accordance with rule 12.15 of the Punjab Police Rules. Respondent No.1 rejected the case of petitioners on 18.6.1997 and they were discharged vide office order dated 9.7.1997. Case of petitioners, in nutshell, is that they were thoroughly examined at the time of their initial recruitment and similarly situate persons have been given relaxation by the respondents. Petitioners have strongly relied upon a judgment rendered by the learned Tribunal in OA No. 17/1986 decided on 1.9.1988 whereby similarly 3 situate persons were granted relief. Case of respondents, in nutshell, is that ingredients of the colour vision have been made mandatory vide Annexure R-1. Mr. Onkar Jairath has vehemently argued that his clients were found medically fit at the time of initial recruitment and similarly situate persons have been granted relaxation by respondents. In other words, his case is that his clients cannot be treated differently. Mr. R.K. Sharma, learned Senior Additional advocate General has supported the discharge orders of petitioners. I have heard the learned counsel for the parties and have perused the pleadings carefully. The fact of the matter is that petitioners have qualified ground test, physical test, written test and personal interview. They were medically examined at the time of initial recruitment. It is only at the time of recruit training that they were found suffering from colour blindness. They were examined by the Medical Board headed by the Chief Medical Officer. They approached the learned Himachal Pradesh Administrative Tribunal and on the basis of the directions issued by the learned Tribunal, their cases were considered by respondent-State. However, representations were rejected on 18.6.1997 and they were discharged on 9.7.1997. I have gone through judgment annexed with the petition i.e. Annexure A-4 by the petitioner. The facts of this case are entirely different. Here the recruits were not possessing the requisite height, but in the case of ex-servicemen, relaxation was given. It is 4 in these circumstances, learned Himachal Pradesh Administrative Tribunal has directed to consider the case of petitioner for relaxation in height. Mr. Onkar Jairath has strongly relied upon the judgment of this Court in CWP No. 471/2000 decided on 5.9.2001. The facts of this case are slightly different. In this case, petitioners were discharged on the ground of not possessing requisite height. However, the rigours of rules were relaxed qua ex-servicemen and this Court held this action of respondents was discriminatory. It was in these circumstances that this Court had directed respondents to treat the petitioners at par with the ex-servicemen in whose favour relaxation was considered. Petitioners were medically examined, as noticed above, at the initial stage. It was incumbent upon respondents to ensure that at the initial stage, petitioners were properly examined. They were allotted constabulary number and were undergoing recruit training when they were examined again by the Medical Officer. Mr. R.K. Sharma has drawn the attention of the Court to Annexure R-1 whereby the ingredients of colour blindness have been made mandatory. However, the fact remains that despite that petitioners were found fit at the initial stage. It is, thus, evident that at the time when the learned Himachal Pradesh Administrative Tribunal had pronounced the judgment in OA No. 17/1986 decided on 1.8.1988, rule was not mandatory. The Court is fully aware that the constable to be recruited in the police force must be physically fit. It is true that his colour blindness may impair discharge of his 5 routine duties. However, it is equally true that persons suffering colour blindness may not be totally unfit to discharge other routine duties whereby the colour blindness may not impair discharge of his duties. The Court has also gone through the order dated 18.6.1997 passed by Commissioner-cum-Secretary (Home). The order is well reasoned and speaking. However, the Court is of the considered view that the matter should have been viewed sympathetically since petitioners had already been selected after passing the rigours of selection process and they could be deployed in other wing where colour blindness will not be hindrance in the discharge of duties. Accordingly, the petitions are allowed. Respondents are directed to reconsider the case of petitioners in view of the observations made hereinabove within a period of 8 weeks from today. In case the matter is decided in favour of petitioners on reconsideration, they can be deployed on some suitable job where colour blindness will not cause any hindrance in the discharge of their duties. No costs. (Rajiv Sharma), Judge 5.3.2010 *awasthi*