(1)Original Applicat... v. Union of India throu...

By Dr.G.C.Srivastava, VC.- These three Original Applications, having identical facts and claiming similar relief, are being disposed of by this common order.

2. All the three applicants had submitted their applications for appointment as Durwan in the Ordnance Factory Khamaria in response to an advertisement published in Employment News dated 10-16.1.2004. They appeared in the written test. Thereafter an offer of appointment was made to them (annexure A-3) and they were directed to appear before the Civil Surgeon for medical examination. The District Medical Board consisting of three doctors examined them and the medical certificates (annexure R-1) were issued by the Civil Surgeon, Jabalpur stating inter alia the following:

(i) in the case of Rishi Kant Soni (applicant in OA 922/2005)  He is partially colour blind. He is fit for Class 4th job other than technical job & driving job

(ii) in the case of Ram Lakhan Rajak (applicant in OA 931/2005)  He is partially colour blind. He is fit for Class 4th job other than technical job & drivers job

(iii) in the case of Jagdish Prasad Bangare (applicant in OA 1118/2005)  He is partially colour blind. He is fit for the job of class IV in which colour vision is not required, such as for labour & non-technical job. On the basis of these medical certificates the applicants were held as unfit to be appointed for the post of Durwan and orders to that effect were issued vide annexure A-1. These orders have been challenged by means of these OAs. These orders have been assailed by the applicants on the ground that as per the medical certificates issued by the Civil Surgeon, they are entitled to get the job of Durwan since it is not a technical job which requires colour vision. In support of their contention, the applicants have filed a copy of the recruitment rules (annexure A-4) in which only the following specifications have been laid down for the post of Durwan:- (a) height without shoes 165 cms (b) chest unexpanded 77 cms expanded 82 cms (c) weight 45 kg It has also been averred by the applicants that in a similar case of machinist (semi-skilled) despite the defect of colour vision, the person was appointed. It has also been contended that the impugned orders could not have been issued without giving the applicants opportunity of show cause.

3. In their replies, the respondents have stated that duties of the Durwan require normal colour vision and the decision to treat the applicants as unfit for the post of Durwan was taken after the medical certificates were referred to the higher authorities, who opined that any person confirmed to be a person having weak (below acceptable level) eyesight or night and colour blindness should not be recruited for security duties (annexure R-2). It has also been stated by the respondents in their reply, that the case of Machinist (semi-skilled) is not comparable because of the difference in nature of duties and the fact that, in their case, it has specifically been laid down in the rules (annexure R-3), that colour vision is not required. The respondents have also detailed the nature of duties of a Durwan in para 6 of their reply.

4. We have heard the arguments advanced by the counsel of the rival parties and have also gone through the material on record.

5. The learned counsel for the respondents submitted a copy of the Guidelines on pre-employment medical examination in Ordnance and Ordnance Equipment Factories, issued by the Ordnance Factory Board in which it has specifically been mentioned at page 47 that colour blindness is a disqualification for the job of Durwan. The learned counsel for the applicants has, however, challenged these guidelines on the ground that they were issued on 15.6.2006 i.e. much after the case of the applicants was decided. On perusal of these guidelines, it is seen that this was prepared by a committee of experts headed by the Chief Medical Officer of Ordnance Factory, Bolangir. The need for these guidelines has been stated in the following words:- Though there are Govt. orders/decisions on the subject, there are no comprehensive guidelines to assist the medical officers in conducting pre-employment medical examination. Consequently, there are wide differences in medical standards and pre-employment medical examination procedures followed by various Ordnance Factory hospitals and individual medical officers. The medical officers do not seem to adhere to any explicit or uniform criteria in performing this task. There is also lack of uniformity in the information collected through history, physical examination protocol, investigations carried out and the forms used. When a candidate is detected to suffer from any disease or disability there is often confusion and controversy in deciding whether the disease or disability renders the candidate unfit for the job.

6. It is clear from the above that before issue of these guidelines the suitability or otherwise of a candidate was based on the judgment of the medical officer as the specific criteria were not laid down. In the case of Durwan, we find that the recruitment rules specify height, chest and weight criteria only. In addition, the offer of appointment states that the appointment will be made subject to the candidates having found medically fit. No further guidelines were given to the medical officer examining the candidates. From the above quoted objective of the preparation of guidelines, it is clear that the appointments were to be made on the basis of the recommendations of the medical officer.

7. In the instant case, the medical certificates clearly mention that although the applicants are colour blind they are fit for a class-IV job in which colour vision is not required. Labour and non-technical job have been specified as jobs which do not require colour vision. It has also been mentioned in all the medical certificates that these applicants are not fit for technical and driving jobs. From the nature of duties elaborated by the respondents in their reply, it is amply clear that the job of a Durwan is not of a technical nature and they are not required to act as a security staff. In fact, they are supposed to be working under the security staff, as they have to report to security staff about any subversive or other suspicious activities of employees or unofficial persons. Even the advice that has been relied upon by the respondents for rejecting the case of the applicants for appointment as Durwan mentions that persons having colour blindness should not be recruited for security duty and that it is essential for Durwans that they possess good vision and eyesight in order to see and identify things clearly. It has also been stated in this advice that a person with night blindness will not be able to perform security duties. It is clear from this advice that it is only for security duty that colour blindness should be treated as disqualification. From the nature of duties assigned to a Durwan it is amply clear that Durwan is not required to perform security duty which as stated by the applicants in their OA are to be performed by the defence security grade. This averment of the applicants has not been controverted by the respondents. Moreover, the recruitment rules nowhere mention that colour blindness will be a disqualification for the post of Durwan.

8. The learned counsel for the applicants has cited the case of Union of India and others Vs. Satya Prakash Vasisht, 1994 Supp (2) SCC 52 where the apex court has held that since the colour blindness was not a prescribed disqualification for the post of Sub Inspector (Executive) according to the rules, appointment to this post could not be denied to a candidate having colour blindness. The ratio laid down in this pronouncement is equally applicable in the present case where recruitment rules do not provide colour blindness as a disqualification for the post of Durwan. Moreover, the medical certificates issued by the competent authority also say that the applicants are not fit for holding technical job or the job of a driver. By no stretch of imagination the job of a Durwan could be held as a technical job.

9. The compilation of guidelines produced by the learned counsel for the respondents were admittedly issued in June, 2006. These guidelines specifically club Durwan with security staff in respect of colour blindness but we are in agreement with the learned counsel for the applicants that since these guidelines were not in existence at the relevant time when the case of the applicants was considered, these are not applicable to them.

10. In view of the above discussions, we are of the considered view that the impugned orders are not in accordance with the relevant rules and are not legally sustainable.

11. In the results, all the three OAs are allowed. The impugned orders are quashed and set aside. The respondents are directed to give effect to the appointment order issued in favour of the applicants within a period of three months from the date of the receipt of a copy of this order. The appointment will be with prospective effect subject to fulfillment of the conditions laid down in the relevant appointment order. No costs. (A.K.Gaur) (Dr.G.C.Srivastava) Judicial Member Vice Chairman