Siddharth, J—Heard Sri Bhagirathi Tiwari, learned Counsel for the petitioner and Sri Anoop Trivedi and Shri Ankush Tandon, learned Counsel for the respondents.
2. The petitioner has filed the above noted writ petition praying for quashing of the order dated 22.04.2016, passed by respondent no.3, Chief Human Resource Manager, Mathura Refinery, Mathura and a direction to the respondents to allow the petitioner to join the post of Junior Material Assistant, on the post reserved for physically handicapped and medically unfit, as per the condition of advertisement and norms of pre-medical examination for non technical post. Further direction has been sought directing the respondents to conduct proper pre-employment medical examination required for non technical post as per guidelines issued by Indian Oil Corporation Ltd.
3. The petitioner''''s case is that the respondent no.3, Chief Human Resource Manager, Mathura Refinery through advertisement No. MR/HR/Rectt.(PWD)/3/2015 under Special Recruitment Drive for Persons With Disabilities (PWD''''s) advertised seven posts (Group-C-Non-Gazetted) of Junior Engineer Assistant- IV (Electrical Maintenance), 02 posts, Mechanical Maintenance 02 posts (Instrumentation), 02 posts and Junior Material Assistant 01 post, all posts reserved for persons with disabilities (PWD''''s), as trainees for a period of 18 months on a consolidated stipend of Rs.15,250/- per month with other benefits regulated as per rules under Apprenticeship Act, 1961, Amendment Act 1973 in the relevant trade/discipline of the refinery, and the after training, the posts were to be absorbed in the regular scale of pay. The notification/ advertisement dated 30.09.2015, in condition no.2 selection methodology, stipulated in sub-para b that the candidates short listed on the basis of their performance in the Written Test and meeting the eligibility criteria shall be subjected to Personal Interview. Candidates will have to qualify at each stage of the selection process successfully and will have to meet the parameters of pre-employment medical fitness for being adjudged suitable for final selection. The petitioner submitted the application form in the prescribed format along with disability certificate as eligibility for the posts including other documents. The petitioner was found eligible and a list of candidates provisionally short listed for written test was notified for appearing to written test/ examination for the post of Junior Material Assistant and was issued admit card on 01.01.2016 for written test to be held on 24.01.2016. The petitioner was declared successful in the result of written test and the list of successful candidates against the seven posts advertised on 30.09.2015, including one post for Junior Material Assistant, selected for medical examination for trainee posts to appear for medical examination at Mathura Refinery on or before 3rd February, 2016 was notified by the respondents. The respondent no.4 through order dated 04.04.2016 intimated the petitioner that the petitioner was successful in the written test on 24.01.2016 and in the interview held on 25.01.2016 to the post of Junior Material Assistant Trainee but the Mathura Refinery Hospital in the subsequent medical examination found him partially colour blind, accordingly, the respondent no.4 declared the petitioner disqualified for the post and ordered for deposit of Rs.500/- for re-evaluation by medical board and decision to be binding. The respondents furnished under RTI the role and responsibility of Junior Material Assistant to be posted in two branches/sections, one purchase section and the second store section for receipt and custody and issue section. The job contents reveal that the post of Junior Material Assistant is non-technical post. The guidelines of pre employment medical examination stipulate in para 3.12, color vision shall be tested with ISHIHARA PLATES in good normal light for all candidates, 3.13 for Partial colour Blindness, the job description of the candidate shall be taken into consideration before final evaluation. Candidates should identify individual colours separately and pass Pink perception test. The medical rule of Indian Oil in para 6.20 about colour blindness is mandated only for Technical Discipline and Drivers. As the post of Junior Material Assistant does not come under Technical Discipline and Drivers, the same is not applicable. It is worth mentioning that the pre employment medical examination of the petitioner has neither been conducted as per guidelines, nor furnished the reports as per rules and details/ results of tests, resulting in the impugned order 22.04.2016 are arbitrary and irregular. The impugned order does not enclose the analysis result of medical examination for eye test. The test for colour blindness require recording for normal answer for sixteen and seventeen plates and the person reading 13 plates is regarded as normal. The applicant, for supporting the claim that his colour vision is normal, has obtained certificate dated 12.04.2016 by the competent eye specialist. The similar special recruitment drive for physically challenged candidates notified by Panipat Refinery advertised for the year 2009 for the post of Junior Material Assistant, clearly indicate that the post comes under non technical discipline. The post of the petitioner is of non technical discipline, as per job prescription, the impugned order is bad in law. Similar special recruitment drive for persons with disabilities for the post of Junior Material Assistant advertised in the year 2010 by Indian Oil Mathura Refinery clearly indicate that the post is non technical and the requirement of colour vision has not been made. Similarly is the post C-1 in railway department and visual standards indicate that the criteria for medical standards for the post of Chief Depo Material Superintendent, the requirement of colour vision has been dispensed with, as evident for the advertisement dated 26.07.2015 in similar posts. Accordingly the impugned order dated 22.04.2016 rejecting the petitioner and disqualifying him for the post of junior Material Assistant trainee in Mathura Refinery is discriminatory, against the advertisement, violating the norms and the post filled by the respondents in previous year and in other departments as the post is non technical. The respondent no.3 through impugned order has rejected the claim of the petitioner for being appointed to the post of Junior Material Assistant Trainee on the basis of decision of Board declaring him medically unfit on account of partial colour blindness without enclosing the result of medical Board and the analysis of tests if held as per norms. As such the impugned order is arbitrary, unreasonable and bad in law, when the petitioner is not suffering from any partial colour blindness as already admitted by the respondents on the basis of tests and certificate of eye specialist.
4. The respondents nos. 2,3 and 4 have filed their Counter Affidavit stating that in the instant case, the petitioner pursuant to the pre-employment medical examination, was found "partially colour blind" and was accordingly declared "unfit" for the post of Junior Materials Assistant. The stipulated qualification for the post of Junior Materials Assistant was full time Diploma in Mechanical/ Electrical/Instrumentation Engineering and it is, therefore, a Technical Post. The petitioner was informed about the same and he was given an opportunity to appeal before the medical board for reconsideration of medical report as per the policy of the Corporation. Upon re-examination the board found the petitioner to be "partially colour blind" and accordingly declared him unfit for the said post. Once the medical board, which also consisted of independent doctors, has declared the petitioner unfit for the post, this Hon''''ble Court cannot supplement the process of recruitment by a judicial order. Hence the petition is liable to be dismissed on this short point itself. The mere perusal of the post qualification experience as stipulated in advertisement, reproduced below, for the post of Junior Materials Assistant makes abundantly clear that the post is technical.
" Minimum one year post qualification experience in operation and maintenance of an industry or of handling various types of materials used in chemical/petroleum/petro chemical/ fertilizers/power plants/gas processing/oil and natural gas exploration industries/large Industrial units".
5. A Junior Materials Assistant is required to handle hazardous materials, their preservation and handling which can be done only by technically qualified person. The nature of materials to be handled by Material Assistant is of high technology and extremely expensive. They are also required to read signage and labels of the high technology materials and their storage in scientific manner. The job of Materials Assistant is therefore strictly technical. The employment advertisement further stipulated under Clause 2(c) that "Candidates will have to qualify at each stage of the selection process successfully and will have to meet the parameters of pre-employment medical fitness for being adjudged suitable for final selection. Since the petitioner did not meet with described medical fitness standard, his candidature was not considered.
6. The petitioner has filed his Rejoinder Affidavit stating that in the advertisement there is no condition that the post is technical. The educational qualification for the post of junior material assistant is full time diploma in engineering disciplines as per the advertisement dated 30.09.2015. It can not be termed/construed that the post is technical in any way. It is worth mentioning that candidates with engineering diploma/science students can not be debarred from applying to non technical posts with clerical job contents, unless there is specific description that the post is technical as per job contents. In the instant case the post is non technical but for applying to the post of Junior Material Assistant in the matter of educational eligibility only, otherwise as per job contents, the post of Junior Material Assistant at all refineries in IOCL is definitely non technical and in advertisement for other refineries such as Panipat refinery, as advertised, post of Junior Material Assistant is of non technical discipline and in the advertisement of Haldia Refinery, visually handicapped, partially blind were eligible and even in the application form the post of Junior Material Assistant, as evident, for Indian Oil Mathura Refinery from the advertisement of the year 2010 the description of duty is purely non technical and graduate engineer were not to be considered for the post. In the advertisement for the year, 2015 for Mathura Refinery also there is no mention that the post is non technical or technical, but such non-mention for the post which is non technical, the partial colour blindness is no bar for appointment for the selected candidate as evident from condition no.3.13 and 6.20 in the criteria for physical fitness in pre employment medical examination of IOCL. The pre employment medical examination was to be held as per the parameter of Indian Oil. The parameters of pre medical examination in condition no.3.13, provides for partial colour blindness the job description of the candidate shall be taken into consideration before final evaluation, prescribed in the advertisement, which has not been taken into consideration. Similarly vide the condition no.6.20 colour blindness, for technical disciplines and Drivers, has been prescribed as disqualification as per the advertisement. In the instant case the post of Junior Material Assistant, is non technical in the Refineries. As such the impugned order dated 22.04.2016 is bad in law and the petitioner is being discriminated even after being duly selected for the post of Junior Material Assistant. It is worth mentioning that the medical report has not been prepared and evaluated as per parameters and guidelines prescribed. The job description for the post of Junior Material Assistant has neither been evaluated by the doctors appointed by the refinery, nor did the competent authority consider the fact while arbitrarily and irregularly issuing impugned order dated 22.04.2016 discriminating the petitioner while similarly placed employees are already working as Junior Material Assistant. It is submitted that as per job contents including roles and responsibilities of Material Assistant received from RTI and annexed as page 64 to 65 of the writ petition, admittedly, relate to non technical and clerical work. It is worth mentioning that the respondents have wrongly attempted in para 6, 7 and 9 of the C.A. for reply to contents paragraph 3 of the writ petition to interpret in different ways for justifying arbitrary impugned order, especially contrary to the plain and bare reading/ meaning of advertisement which do not describe the post in question as technical and also to impress that the medical examination has been held correctly whereas as per the facts of the case the post is non technical and the medical examination has not been held as per parameters because the details of medical examination were not brought on record even before Hon''''ble High Court. The impugned order dated 22.04.2016 does not indicate about the post being technical in any way and the order has not included/ recorded that the applicant has been evaluated in the light of job contents which are non technical. The post of Junior Material Assistant-IV is non technical and not included in the operation and maintenance of machineries as evident from the RTI information received on 08.06.2016 from the office of General Manager (Human Resources) to be applicable in all Refineries under IOCL.
7. The respondents nos. 2, 3 and 4 filed a Short Counter Affidavit denying the averments made in paragraph no.25 of the Rejoinder Affidavit, that the post of Junior Material Assistant-IV is non technical on the basis of RTI document dated 08.06.2016. It was stated that after the Rejoinder Affidavit was served the matter was referred to the Head Quarters, New Delhi by the concerned officers of Mathura Refinery and it was stated that the Indian OilCorporation has taken a policy decision that the post of Junior Material Assistant-IV is a technical post and can not be allowed to be occupied by an incumbent suffering from colour blindness and another RTI document issued by Panipat Refinery dated 26.08.2016 was annexed stating that the earlier information dated 06.08.2016 was wrongly given and has been withdrawn.
8. A Supplementary Rejoinder Affidavit was filed by the petitioner rebutting the averments made in the Supplementary Counter Affidavit and stating that the respondents have not filed any document/ order/ resolution / policy decision arrived at the Head Quarter, New Delhi in the matter to prove that the post of Junior Material Assistant-IV was a technical post. The advertisement dated 30.09.2015 in the instant case for the post of Junior Material Assistant-IV, does not specify the nature of post. The condition of pre medical test in para 6.20 (page 52 of writ petition) clearly indicate that colour blindness is disqualification only for technical discipline and drivers. The condition no.3.13 (page 50 of the writ petition) reflects fact for partial color blindness the job description of the candidate shall be taken into consideration before final evaluation. It is worth mentioning that the job contents stated at page 63 to 65 of writ petition, relating to post of Junior Material Assistant are non technical work. As such the petitioner is entitled to be appointed to the post as the impugned order has not considered condition no.3.13 of medical parameters and the medical board has overlooked condition no.6.20. It is submitted that partial colour blindness is curable and cannot be hindrance to appointment to the post of Junior Material Assistant with non technical job descriptions/incumbency. The petitioner has received RTI documents dated 04.08.2016 and 09.08.2016 from two other refineries which clearly indicate that the post and job contents of Junior Material Assistant is non technical. A bare perusal of letter dated 26.08.2016 (SCA-1) reflects that the second RTI documents has not been given in the form of first RTI dated 08.06.2016 and seven reasons have been explained without enclosing the documents in support of the reasons. The reason no.6 about settlement dated 05.10.2004 and any order/resolution from New Delhi head quarter regarding creation of post of Junior Material Assistant with nature of post has also not been enclosed with the order dated 26.08.2016. The function and job contents of Junior Material Assistant is purely non technical as evident from the job contents described at page 63 to 65 of writ petition and further received from RTI dated 09.08.2016. It is further submitted that no advertisement can be supplemented by subsequent explanation and the post of Junior Material Assistant is non technical as per advertisement of Panipat Refinery and other refineries and if Mathura Refinery is silent in advertisement dated 30.09.2015, it can not be interpreted otherwise after the results are declared and without any order in any affidavit filed without relevant supporting orders documents before the date of advertisement.
9. The learned Counsel for the petitioner has argued that the impugned order is totally untenable and discriminatory as there is no requirement of such tests/ fitness of eye colour vision as per the terms and conditions of advertisement and the job/role/ responsibilities of Material Assistant clearly indicate that the post is non- technical involving no such tests of colour vision fitness. As such the pre-employment medical examination relating to colour vision fitness is against the requirement of post and violating the recruitment rules. The respondents with predetermined mind disqualified the petitioner on 04.04.2016 without proper medical examination and forced him for arbitrary medical board but the respondents did not furnish the medical reports conducted against the norms at any time to the petitioner, rendering the order dated 04.04.2016 bad in law. The respondents have overlooked the fact that the medical examination and physical fitness has not been conducted by the medical officers of Refinery as per the guidelines and criteria of Indian Oil Limited as even partial colour blindness is to be evaluated with reference to job description as envisaged in para 3.13 of the guidelines of Indian Oil. Pre medical test/examination has not followed para 6.20 of the guidelines and criteria for medical examination issued by Indian Oil and the details of medical examination by the Doctors and prescribed forms have also not been intimated to the petitioner and the impugned order has been issued arbitrarily without considering the facts of the case, the rules and the guidelines and without considering the medical result dated 12.04.2016 furnished by eye specialist of Mathura District Hospital in the same matter. The respondents have overlooked the fact that the petitioner is entitled for being considered as the job of the post of Material Assistant is non-technical and in similar circumstances the appointments have been given to physically handicapped, even to persons with colour blindness and as such the petitioner has been discriminated.
10. The learned Counsel for the respondent nos. 2, 3 and 4 has relied upon the Judgment and Order dated 03.02.2016 passed by the Division Bench of this Court in Special Appeal Defective No.70 of 2016, State of U.P. and 2 others Vs. Rahul and has argued that the Judicial directions can not supplement the recruitment process. He has further argued that after the issuance of the R.T.I. document dated 26.08.2016 (Annexure No.SCA-1) it has become clear that the post of Junior Material Assistant is a technical post and therefore, the petitioner who is partially colour blind can not be permitted to work on the aforesaid post. As per Clause-6.20 of the guidelines colour blindness bars appointment on technical in disciplines and drivers. He has further argued that the requirements of the posts are mentioned in paragraph no.15 of the Counter Affidavit and he can not be permitted to work on the post since the duties of the post can not be fulfilled by a colour blind person in the material department. He has further argued that initially the petitioner disputed that he is not colour blind and now he is estopped from claiming a different relief that even if he is partially colour blind, he should be permitted to perform the duties of the post of Junior Material Assistant. It has lastly been argued that once the petitioners claimed that he is not partially colour blind and it is found to be incorrect by the Medical Board, he can not be permitted to make any further claim since initially he disputed that the reports regarding his partial colour blindness are wrong.
11. After considering the rival contentions, it is found that in the advertisement dated 30.09.2015 (Annexure No.2 to the writ petition), there is no mention of the post of Junior Material Assistant as technical in nature. In the guidelines and criteria of physical fitness for pre employment medical examination issued by the Indian Oil Corporation ( Annexure No.7 to the writ petition) in Clause-3.13, it is clearly mentioned that if a candidate is found to be suffering from partial colour blindness, the job description of the candidate shall be taken into consideration before final evaluation. Candidates should identify individual colours separately and pass pink perception test. There is no material on record to prove that any consideration of the candidature in reference to job description of the petitioner, after discovery of the fact that he is partially colour blind, was ever made, further there is no material on record that the petitioner was made to undergo pink perception test. The pink perception test as per "Wikipedia", is the test consisting of number of colour plates, called Ishihara plates, each of which contains a circle of dots appearing randomized in colour and size. Within the pattern or dots which form a number of shape clearly visible to those with normal colour vision, and invisible, or difficult to see, to those with a red-green colour vision defect. Other plates are intentionally designed to reveal numbers only to those with a read/ green colour vision deficiency, and be invisible to those with normal red/green colour vision. The full test consist of 38 plates, but the existence of a severe deficiency is usually apparent after only a few plates. There is also an Ishihara test consisting 10, 14 or 24 test plates.
12. There is no material on record that clause 3.12 aforesaid have been complied by the respondents in the case of petitioner and the petitioner was subjected to any pink perception test.
13. The petitioner has brought on record the roles and responsibilities of the Material Assistant by way of Annexure No.7 mentioned in paragraph no.11 of the writ petition and in the Counter Affidavit, the same has been denied in paragraph no.15 and different set of roles and responsibility has been mentioned without reference to any material on record in support of the averments. Being bland averments not based on any supporting documents, they can not be accepted to be true when in Annexure No.7, there is guideline of the Corporation on record, which expressly provides for the details of roles and responsibilities of the post of Material Assistant.
14. In the advertisement dated 30.09.2015, there is no reference to the post of Material Assistant as technical post and in paragraph no.13 of the writ petition, the petitioner brought on record the advertisement of the year 2009 for the post of Junior Material Assistant notified by Panipat Refinery, which indicates that the post is of non technical discipline. In paragraphno.14 of the writ petition, the petitioner brought on record, the advertisement of the year 2010 issued by Mathura Refinery of the Corporation, which clearly indicates that the post of Material Assistant is of non-technical discipline and the requirement of colour vision has not been mentioned. The respondents have stated in paragraph no.17 of their Counter Affidavit that the contents of paragraph no.13 relate to special recruitment drive for persons with disabilities and colour blindness has always been disqualification for a technical post. It has been further stated that it appears that the mention of the post as "non-technical" in the advertisement is an inadvertent error. Regarding paragraph no.14 of the writ petition, the reply submitted is in paragraph no.18 of the Counter Affidavit and it only states that since the requirement for the post is mentioned as Diploma in Electrical/ Mechanical Engineering, the post is purely technical.
15. The respondents submitted very casual reply to the averments made by the petitioner in paragraph nos.13 and 14 of the writ petition, but when along with the Rejoinder Affidavit, the petitioner brought on record a RTI document dated 08.06.2016 issued by the General Manager of the Indian Oil Corporation, Panipat, Haryana, whereby, a clear reply was given that the post of Junior Material Assistant-IV, is a non technical post, since it is not involved in the operation and maintenance of the Refinery, the respondent nos.2 to 4 filed a Supplementary Counter Affidavit annexing therewith, another RTI document issued by Central Public Information Officer and General Manager (HR), Panipat, Harayana, stating that the earlier information regarding the nature of the post of Junior Material Assistant-IV has been reviewed and it may be treated as cancelled and withdrawn. It was further informed that the aforesaid post is a technical post and certain reasons were given. No authentic policy/ resolution/direction of the Corporation was brought on record to prove as to what is the basis on which inconsistent information is given by the officers of the Corporation, as per the occasion and demand. This conduct of the officers of the corporation cannot be favourably viewed by the Court.
16. The petitioner took specific objection to this effect that the respondents should bring on record the basis of the information submitted but nothing was brought on record. Moreover, the post of Material Assistant has not been proved to be non-technical by way of any authentic document of the corporation.
17. The reliance of the Counsel for the respondent nos. 2 to 4 on the Division Bench Judgment of this Court is in Special Appeal Defective No. 70 of 2016, State of U.P. and others Vs. Rahul, wherein the order of learned Single Judge was set aside on the ground that report of a separately constituted Medical Board was called for and relied upon by the Court while granting relief to the petitioner. There is no such issue involved in this case.
18. Here the case set up by the petitioner could not be rebutted by the respondents and non-compliance of their own guidelines has been proved by the petitioner. The shifting stand on the question, whether the post of Material Assistant is technical or non-technical, by issuance of contradictory RTI informations creates doubt about the case of the respondents.
19. The impugned order dated 22.04.2016 passed by the respondent No.3 does not shows compliance of Clause 3.12, 3.13 and 6.20 of the guidelines and criteria for Physical Fitness for Pre-Employment Medical Examination. It is, therefore, illegal in view of the judgement of Apex Court in the case of M.S. Gill Vs. Chief Election Commissioner, (1978) 1 SCC 405 and is hereby quashed.
20. The respondent Nos. 2 to 4 are directed to pass fresh, reasoned and speaking order keeping view the observations made in this judgement within a period of one month from today.
21. The writ petition is allowed to this extent. No costs.