Tarun Agarwala, J. - (1.) AN advertisement was issued in the year 2004 inviting applications for appointment on the post of Constable. The petitioner applied and was selected and thereafter was sent for training. Upon completion of his training, the petitioner was posted as a Constable in the 4th Battalion P.A.C. at Allahabad and rendered two years of service. It transpires that the respondents took a decision to re- examine all the records, on the basis of which, the petitioner was medically re-examined in which it was found that he was colour blind and was unable to distinguish between red and green colour. On the basis of this medical report, the authorities passed the impugned order dated 27.7.2007 dispensing his services by invoking the provisions of U.P. Temporary Government Servant (Termination of Service) Rules, 1975. The petitioner, being aggrieved by the said order, has filed the present writ petition.
(2.) HEARD Sri C.B.Yadav, the learned counsel for the petitioner, Sri Ghanshyam Dwivedi and Sri Piyush Shukla, the learned Standing Counsels for the respondents. The learned counsel for the petitioner submitted that at the time of his recruitment after selection, the petitioner was medically examined twice by a Medical Board constituted by the respondents, in which no defect of any kind was detected or was found. Consequently, the defect of colour blindness which was detected in the third round of the medical examination during his service period could have occurred during the service period. The learned counsel submitted that if the petitioner incurs a disability during his service, he cannot be relieved from the service in view of the provisions of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, (hereinafter referred to as the Disabilities Act). The learned counsel submitted that, in view of the provisions of the Disabilities Act, the services of the petitioner could not be dispensed with and that the authorities were obliged to give the petitioner a sedentary job in the Police department. The learned counsel for the petitioner further submitted that the Rules of 1975 are not applicable nor can be applied to the petitioner since he was not a temporary employee and that Para 541 of the Police Regulations would apply in the case of the petitioner which prescribed that a show cause notice and an opportunity of hearing was required to be given by the petitioner before he could be discharged. The learned counsel for the petitioner submitted that in the present case no show cause notice was given nor the procedure prescribed under paragraph 541 of the Police Regulations was followed and consequently, the impugned order was wholly illegal. The learned counsel for the petitioner submitted that colour blindness was not a disqualification for an appointment on the post of Constable under the Police Act as well as under the Government Order of 1959. In support of his submission, the learned counsel placed reliance upon a decision of the Supreme Court in Union of India and others v. Satya Prakash Vasisht, 1994 Supp (2) SCC 52. On the other hand the learned Standing Counsel submitted that the petitioner was not appointed as a probationer on a substantive vacancy but was appointed on an adhoc basis on a non-existing vacancy with a condition that he could be absorbed as and when a vacancy came into existence. The respondents submitted that large scale selections were made in the police force by the previous Government and when these large scale infirmities in the selection process came into existence, the present State Government took a policy decision to review the selections and, on this basis, every individual case was examined and the appointments of those persons were cancelled who were found disqualified and those candidates who had no shortcomings were protected. The learned counsel submitted that the petitioner was appointed on an adhoc basis and that he was not found medically fit, consequently, his services was dispensed with by invoking the provisions of the Rules of 1975 by giving him one month's pay in lieu of notice. The learned counsel submitted that colour blindness is a disability which is not permissible in the police force and a defective colour vision as tested on Ishihara's plate constitute a disqualification. The learned Standing Counsel submitted that as per the Government Order dated 24.12.1959 a defective colour vision as tested on Ishihara's plate would constitute a disqualification in the police service. Consequently, in terms of paragraph 411,412 and 415 of the Police Regulations, the petitioner was not found medically fit and therefore, could not be recruited in the police force and accordingly his services was dispensed with in accordance with the provisions of law.
(3.) HAVING heard the learned counsel for the petitioner at some length, this Court is of the opinion, that the petitioner is not entitled for any relief. At the outset, lengthy arguments were raised on the question of colour blindness and whether it would constitute a disqualification under the Police Act and its Regulations. The learned counsel has also relied upon certain decisions. In my opinion, it is not necessary to dwell on this aspect of the matter at length, in view of the fact that identical arguments were raised which was dealt at length and rejected by a decision of this Court in Prempal Singh v. State of U.P. and others and connected writ petitions decided on 4.10.2007, 2008(1) ESC 14 and Raw Kumar Kaushal v. State of U.P. and others, and connected writ petitions decided on 4.10.2007, 2007(9) ADJ 626. In the aforesaid decisions the Court has categorically held that in view of the provisions of paragraph Nos. 411,412 and 415 of the Police Regulations read with the Government Order of 1959, colour blindness constitutes a disqualification in the police force and, such persons therefore cannot be selected or recruited in the Police force. The Court found that a person who was not medically fit, could not be recruited in the police force. In my opinion, the aforesaid judgments are squarely applicable to the issue raised in the present writ petition and it is not necessary for this Court to elaborate the same point all over again. Consequently, this Court holds that since the petitioner was found to be medically unfit on account of the colour blindness he could not be recruited in the police force. This leads to the second question as to whether the services of the petitioner could be dispensed with by invoking the Rules of 1975 and whether the provision; of paragraph 541 of the Police Regulations are required to be followed.;