* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Reserved on: 17th March, 2011
Judgment Delivered on:22nd 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 MANISH JOSHI ..... 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 Shukla, 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 NANDRAJOG, J.
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
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 Lal 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 6th 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
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 in 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-Tibetan 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‟ Colour
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-Military 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
violative 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 6½ 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.O.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: „All the
personnel GD/Trade/Tech. recruited till issue of this Directorate
General Letter No.R.II-31/94-Esstt.II dated 2/12/94 and found
suffering from colour blindness may be retained in service till
superannuation. They will 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 cells: (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) Anomalous 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 Central 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-II. 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-II, 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
ChandigarhThe Inspector General of Police
Southern/Eastern/Northern & NW Sector,
Central Reserve Police Force,
Hyderabad, Calcutta, New Delhi & Shilong.
W.P.(C) No.5077/08 & other matters Page 12 of 35
Subject- Disqualification for entitlement in CRPF
due to colour blindnessSir,
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.
iii) 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.II”
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 (i) Should not be less
driver (First line troops) than 6/6 in one eye and
visual acquity not less 6/9 in other for all ranks
than: Each eye 6/12 9 1.0.6/6 for fit eye in Rt
on) Right eye 6/6 Reads handed individual and
0.6 Reads 0.8 on left eye 6/6 for left eye in left
6/36 read I or J.6 handed individual
without glasses.
Existing para in Recruitment Manual Amended
(ii) See for-ordinary purposes in (ii) Should be
fighting are (Sub shooting free from Colour
standard) but may be called blindness
upon to fight under exceptions
circumstances.
Right eye 6/12 Left eye 6/36
W.P.(C) No.5077/08 & other matters Page 14 of 35
Reads 0.6 or J.2 Reads I or J.6
Existing para in Recruitment Manual Amended
(iii) See for ordinary purposes (iii) Near vision
(includes Clerks, non- should be JI
combatants and Followers) equivalent if some
other charts used)
unladed both eyes.
Right eye 6/36 Left eye
6/12 or
each eye
Reads 0.6 or J.6 Reads 0.6,
6/24 reads
0.8
Second para of page-7of
Recruitment Manual
2. Recruits other than clerk (a) Recruits (GD)
recruits required for /Tech/Trade/Enrolled
educational duties and non Followers and ASI
combatants (enrolled) may (M) may not be
not wear spectacles during permitted to wear
the visual test. Unaided spectacles during
vision of recruits of clerical the visual test.
and educational duties will Unaided vision of
not be below 6/6 in each eye recruits (GD)/Tech/
and on correction will be the Trademan /Enrolled
same as for (i) and (ii) above Followers and ASI
conforming to the visual (M) will not below
standard of personnel of that 6/6 in one eye and
category except that near 6/9 in other for all
vision in one eye must be 0.5 ranks 1.0.6/6 for
or J.1. Each eye must have right eye is right
full field of vision as tested by handed individual
hand movements. Any and 6/6 for left eye
morbid conditions of the eyes in left handed
or lids liable to the risk of individual without
aggravation of recurrence, glasses. Each eye
will cause rejection of the must have full field
recruit. of vision as tested
by hand
W.P.(C) No.5077/08 & other matters Page 15 of 35
movements. Any
morbid conditions of
the eyes or lids
liable to the risk of
aggravation f
recurrence will
cause rejection of
the recruits. They
should be free from
Colour Blindness
except ABI (M) and
followers.
(b)The adjustment/
disposal of affected
serving persons
should be made as
under:
(i) All the personnel
BD/ Trade/ Tech
recruited till issue of
this Directorate
General letter
No.R.II-31/94, Estt-II
Dated 2/12/94 may
be retained in
service till
superannuation.
They will continue
to do their normal
duties except
driving of vehicles.
(ii) Drivers recruited
before 2/12/1994
and found suffering
from Colour
blindness be
transferred to the
GD Cadre. They will
perform all duties
pertaining to the
rank in the GD
cadre. However, for
further promotions,
W.P.(C) No.5077/08 & other matters Page 16 of 35
they will have to
acquire the requisite
rank qualifications.
(iii) Personnel
enlisted after issue
of this Directorate
General letter
No.R.II-31/94, Estt.II,
dated 2/12/94 either
in MT or GD cadre
be discharged from
service.
(iv) Cases already
decided otherwise
on the basis of
rules, instructions
existing/existed
need not be re-
opened.
2. Three instructions are issued in suppression of
this Directorate General letter No.R.II-31/94-Estt.-II,
dated 2/12/94 and will be effective from the date of
issue of this letter.
3. This has the approval of DG.”
18. The third is the policy circular dated 17.5.2002
issued by Ministry of Home Affairs which reads as under:-
“Subject:- Introduction of Medical Category Shape-I
for the purpose of promotion in CPMFs – RegardingReference DG, CRPF, U.O. No.P-VII/I-Pers-I dated the
14th May, 20002 on the subject mentioned above.
This question of promotion of force personnel
recruited with colour blindness has been examined
in this Ministry and it has been decided that this
disability, ignored at the time of their recruitment,
W.P.(C) No.5077/08 & other matters Page 17 of 35
cannot be held against them now. All such force
personnel, recruited with colour blindness are
therefore eligible for promotion, despite their being
in medical category SHAPE 2 (Permanent) on their
turn, if they are otherwise fit for promotion.
Sd/-
(S.C.Saksena)
Desk Officer”
19. The fourth is the policy circular dated 31.7.2002
issued by Ministry of Home Affairs which reads as under:-
“Subject:- Prescribed medical category SHAPE-I for
combatized personnel of CRPFs.
Reference DG, CRPF, U.O. No.P-VII/I-Pers-I
dated the 19th July, 2002 on the subject mentioned
above, wherein they have sought clarification with
regard to the promotion of force personnel with
colour blindness for the following category:-
i) In whose cases colour blindness was not a
disqualification;
ii) In whose cases though colour blindness was a
disqualification but the same could not be detected
at the time of their recruitment.
iii) In case force personnel with colour blindness
could not be promoted, whether they are to be
medically invalidated out of service.
2. This has been examined in this Ministry.
Attention is invited to this Ministry‟s U.O. of even
number dated the 17th May, 2002 which does not
distinguish between force personnel, in whose
cases, colour blindness was a disqualification or
otherwise. It simply states that whosoever has
been selected with colour blindness, whether by
ignorance or otherwise, cannot be treated
differently after putting so many years of service.
The illness cannot be held against them and
therefore they will be eligible for promotion despite
their colour blindness, if they are, otherwise fit for
promotion.
W.P.(C) No.5077/08 & other matters Page 18 of 35
3. This clarifies position regarding categories (ii)
and (iii) inn para-1 above. Such question regarding
the category (iii) does not arise at all.
Sd/-
(D.S.Mishra)
Director (Pers.)”
20. The fifth policy circular dated 29.10.2008 issued by
Ministry of Home Affairs which reads as under:-
“Subject: Colour Blindness:
Reference this Minisry‟s UO
No.145020/52/2001-Pers-II dated 17.05.2002
wherein following has been mentioned.
“the question of promotion of Force personnel
recruited with colour blindness has been examined
in this Ministry and it has been decided that his
disability, ignored at the time of their recruitment,
cannot be held against them now. All such force
personnel, recruited with colour blindness are
therefore eligible for promotion, despite their being
in medical category SHAPE 2 (Permanent) on their
turn, if they are otherwise fit for promotion.”
2. The above order provides immunity to those
force personnel who were recruited till dated i.e.
17.05.2002. However, this order also placed such
personnel in Shape 2 (Permanent) meaning thereby
that they would be boarded out after 4 years as per
provision of SHAPE order and also as per provisions
in the present health care system, as there is no
chance of improvement in colour blindness patients
being a congenial disorder.
3. The Central Para Military Forces perform a
critical role in maintaining internal security and
guarding of National Border. By very nature the job
requirements are technical in nature requiring a
high level of physical fitness and abilities. The
selection process is also rigorous in nature and
every candidate must pass through medical
examinations and physical efficiency test. The
colour blindness is one of the disqualification for
W.P.(C) No.5077/08 & other matters Page 19 of 35
selection in service for the CPFs. If any person
considering the requirement of the CPFs and in the
interest of the person he or she should be boarded
out on account of physical disability. At the same
time, if the person has served for a number of years
in a force, it may not be fair to remove him
summarily. It has therefore, been decided that in
all such cases which came to light where a person
was appointed prior to 17.05.2002 with colour
blindness, the concerned Force will try to adjust
such a person in non technical security force where
colour blindness may not be a disqualification.
However, if the CPFs is not able to find out a
suitable position for the person in the force he/she
may be removed from service after giving due
opportunity to defend his/her case. The cases of
colour blindness if detected in the appointees in the
period after 17.05.2002 such person shall be placed
in SHAPE-V and be boarded out as per the laid down
procedure for disability.
4. CPFs and ADG (Medical) shall also take all
measures to see that at the time of the medical
examination/PET, the candidates are thoroughly
screened for disabilities like colour blindness and in
case of detection of such defects at a later date
there should be in built mechanism to fix
responsibility and take exemplary disciplinary
action against those found guilty.
Sd/-
(Baraun Kumar Sahu)
Director (Pers.)”
21. The sixth and the last is the policy circular dated
11.3.2011 issued by Ministry of Home Affairs which reads as
under:-
“Subject : Colour blindness:
In continuation to this Ministry‟s UO of even
number dated 29.10.2008 and in supersession of
this Ministry‟s UO of even number dated
08.3.2011, on the subject cited above, the matterW.P.(C) No.5077/08 & other matters Page 20 of 35
has been reconsidered in this Ministry and after
taking into consideration comments of ADG(Med)
CPFs, the competent authority has approved the
following:-
a) All duties where use of fire arms/identification
of various types of coloured signals/identification of
criminals in mob/use of specialized equipments are
not regularly required and public safety is not
involved, may be defined as non-technical duties.
b) In MHA UO of even number dated
29.10.2008, word „Non-technical Security Force‟
implies for „Non-technical Security Duties‟ within
the Force and does not mean creation of any
separate Non-technical Security Force.
2. It is further clarified that promotion of all such
force personnel recruited with colour blindness
prior to 17.5.20002 will continue to be governed by
this Ministry‟s UO No.I-45020/52/2001-Pers-II dated
17.5.2002.
3. This issues with the approval of Secretary
(IS).
Sd/-
(Ajay K.Singh)
Director (Pers.)”
22. Relevant would it be to note that the policy circular
dated 16.5.1991 and 12.6.1997 have been issued by CRPF and
the policy circulars dated 17.5.2002, 31.7.2002, 29.10.2008
and 11.3.2011 have been issued by the Ministry of Home
Affairs and are applicable to all Central Para-Military Forces.
23. An analysis of the policy decisions taken from time
to time would reveal that as regards CRPF, on 16.5.1991 it was
decided that henceforth colour blindness would be a
disqualification for entry in CRPF in respect of Executive,
Technical and Trade cadres including MT except Hospital and
Ministerial works. Those who were appointed as drivers and
were detected with colour blindness were to be transferred to
General Duty Lines and those serving as General Duty
W.P.(C) No.5077/08 & other matters Page 21 of 35
Personnel were allowed to continue in service in the cadre. It
is apparent that the policy would be a one-time measure not to
relieve those who were in service and for whatever be the
reason, were detected as colour blind, by adjusting them on
such work which could be performed with the handicap. But,
for the future, a person with colour blindness could not be
inducted in CRPF except for hospital and ministerial duties.
24. The second policy circular dated 12.6.1997 lay
down visual standards to be achieved as the minimum
benchmark for induction in CRPF and pertaining to colour
blindness clearly specify that colour blindness would be
treated as a disability. It is apparent that the policy circular
dated 12.6.1997 was to make necessary amendments in the
visual standards prescribed to bring the same in harmony with
the circular dated 16.5.1991.
25. But we find that in spite thereof, evidenced from
WP(C) No.1668/2011 and WP(C) No.1681/2011, CRPF has been
negligent in inducting persons as Constable (General Duty) in
CRPF who were colour blind. It is but apparent that CRPF has
been negligent. We shall deal with the issue in full detail a
little later while analyzing the problem and finding a solution
thereto.
26. The policy circular dated 17.5.2002 pertaining to all
Central Para-Military Forces is the obvious fallout of CRPF
continuing to induct persons with colour blindness, which
negligence is also to be found in what CISF, BSF and ITBP were
doing. Even these organizations were not careful while
effecting the selection and as a result of a negligent medical
examination did not detect colour blindness evidenced from
the fact that the writ petitioner of WP(C) No.11554/2009 got
W.P.(C) No.5077/08 & other matters Page 22 of 35
employment in BSF in the year 2002, writ petitioner of WP(C)
No.589/2010 got employment in ITBP in the year 2005 and the
writ petitioner of WP(C) No.5077/2008 got employment in CISF
in the year 2003, none of them was detected with colour
blindness. None of them suffered any illness or took any
medicine which could induce colour blindness; we may hasten
to add that all of them were given chloroquine, which we are
informed is orally administered in routine to members of the
Central Para-Military Forces as they work in hostile
environment in tropical and such other climatic conditions
when mosquitoes breed in abundance and malaria is at large.
But we have no empirical data of how much chloroquine was
taken by each one of them, but surely the dosage was
minimal, we say so for the reason none of them claims to have
suffered from malaria and thus it can safely be inferred that
the minimum preventive dosage was administered to them.
None of them claimed any kind of exposure to such chemicals
which induce colour blindness and thus it can safely be
assumed that the colour blindness detected qua them is
congenital. But, to be fair to them, we must also note that the
Ophthalmologists concerned have thrown no light whether the
colour blindness suffered by them was monochromacy or
dichromacy or anomalous trichromacy. There is nothing in
their medical record to guide whether the impairment was
total, severe or partial.
27. The policy circular dated 17.5.2002 is again by way
of relaxation inasmuch as it contains the decision that Central
Para-Military Force Personnel whose colour blindness was
ignored at the time of recruitment would not be treated
ineligible for promotion and thus obviously required them to be
W.P.(C) No.5077/08 & other matters Page 23 of 35
retained in service and the reason for the policy is to be found
in the policy itself through the medium of the words „cannot be
held against them now‟, meaning thereby, it was accepted
that the fault was that of the Department. The policy circular
recognizes either the principle of the legitimate expectation of
these force personnel to serve till they attained the age of
superannuation or an estoppel against the Central Para-
Military Forces who, by permitting employment to the force
personnel concerned, made him alter his position in not
seeking employment elsewhere and having become overage
for public employment, estoppel would prohibit the Central
Para-Military Force to allege or act to the contrary. It would be
important to highlight that all such persons were liable to be
placed in the medical category Shape-2, which as per the
medical policy would mean that if within 4 years, Shape-1 was
not regained required the person concerned to be boarded
out. But, the policy recognized the fact that congenital colour
blindness is incurable and the question of these persons
regaining Shape-1 would never arise and thus it was clarified
that despite being in medical category Shape-2 (permanently)
they would be promoted.
28. The policy circular dated 17.5.2002 does not
indicate that it is a one-time measure. Of course, it was
expected from the Central Para-Military Forces to be careful
and not go about being repeatedly negligent, but
unfortunately, evidenced from the fact that in the year 2003,
2004 and 2005 persons with colour blindness continued to be
inducted in service is proof of the continued callousness and
negligence; breeding litigation.
W.P.(C) No.5077/08 & other matters Page 24 of 35
29. The policy circular dated 31.7.2007 is the next in
order and pertains only to CRPF, where we find negligence to
be most rampant. It gave a clarification with respect to the
policy circular dated 17.5.2002 and highlighted that the
mandate of the circular dated 17.5.2002 was to ignore the
requirement of the rules to treat colour blindness as a
disqualification by not subjecting the said persons who were
wrongly inducted to being invalidated from service.
30. The policy circular dated 29.10.2008 is again
related to all Central Para-Military Forces and refers once again
to the circular dated 17.5.2002. The policy circular dated
29.10.2008, vide para 2 thereof, clarified that the benefit of
the circular dated 17.5.2002 was restricted to the force
personnel recruited till said date and further required such
personnel to be placed in Shape-2 and highlighted that a
person in Shape-2 was to be boarded out after 4 years, being
the requirement of the rules which required a person in Shape-
2 to be boarded out if within 4 years he could not regain
Shape-1.
31. What surprises us is the fact that in para 2 of the
policy circular dated 29.10.2008 it was mentioned that persons
who got the benefit of the policy circular dated 17.5.2002
would be required to be boarded out after 4 years,
notwithstanding the fact that the policy circular dated
17.5.2002, clearly notes that notwithstanding these persons
being in Shape-2, would not be visited with the consequences
thereof and not only would not be boarded out but additionally
would earn a promotion.
32. Para 3 of the circular, certainly highlights the
critical role of the Central Para-Military Forces and though not
W.P.(C) No.5077/08 & other matters Page 25 of 35
expressly stated, we do understand that in a situation of crowd
control or where smoke signals are to be read, a colour blind
person may commit a terrible mistake which may prove
extremely costly, and since members of these forces carry
arms, there would be utmost need to be extra vigilant. But,
the paragraph tampers the requirement of the organization
and the standard to be attained with the right, equitable or
vested, of the members of the force. The use of the
expression: „It may not be fair to remove him‟ highlights the
beneficial purport of the policy, but unexplainably picks up the
cut-off date 17.5.2002 and mandates that persons appointed
prior to 17.5.2002 ignoring their colour blindness would be
retained and adjusted in non-technical duties and only in
extreme cases where the Central Para-Military Force was
unable to find any suitable position for a person in the Force,
only then should the extreme action of invalidation from
service be resorted to. It expressly states that appointees
after 17.5.2002 should be invalidated from service as per
procedure prescribed for disability.
33. Surprisingly enough, notwithstanding the express
mandate of the policy circular dated 29.10.2008 that
personnel recruited prior to 17.5.2002 would be retained in
service and adjusted against suitable jobs and only if none was
available would they be invalidated from service, the Central
Para-Military Forces started threatening invalidation from
service to even such Force Personnel who were recruited prior
to 17.5.2002 and this necessitated the clarificatory policy
circular dated 11.3.2011 to be issued which made it plain clear
that Force Personnel recruited prior to 17.5.2002 would be
treated strictly as per the policy circular dated 17.5.2002.
W.P.(C) No.5077/08 & other matters Page 26 of 35
34. Now, we have highlighted herein above that there
are 3 varieties of colour blindness and that a person may be
colour blind in the third category of anomalous trichromacy
where only one of the three cone pigments is altered in its
spectral sensitivity and the result of the impairment is loss of
normal 3-dimensional colour vision i.e. the person would see
an object as also its colour but only in 2 dimensions and not
the third. We have also highlighted herein above that
congenital defect in the rod cells which are active in low light
would create colour blindness when the light is low and the
cone cells which are active in normal day light would result in
colour blindness during normal day light. In other words, a
colour blind person, depending upon the nature of colour
blindness, may be able to see a coloured object, not in its 3-
dimensional contours but in a 2-dimensional contour and
further one may not be able to spot a colour in broad daylight
but spot the same in low light and vice-versa.
35. Let us take the case of a Force Personnel having
congenital defects in the cone cells, with the rod cells being
perfectly normal. This force personnel, would ex-facie, be fit
for active duty from dusk to dawn. Vice-versa, a force
personnel having congenital defects in the rod cells would be
fit for active duty from dawn to dusk.
36. We wish to highlight that the respondents have not
been careful enough and indeed have been negligent not only
at stage one when they inducted the petitioners in service by
not subjecting them to a proper medical screening and had the
respondents been careful, petitioners would have been told of
their medical disability and this would have been at an age
when all of them could have applied for public employment in
W.P.(C) No.5077/08 & other matters Page 27 of 35
such organizations where colour blindness is not a medical
disability. Even at the second stage, by not correctly
identifying the nature of the colour blindness suffered by
them, the respondents have deprived them of a chance to
serve in active duty, to wit, if anyone of them had congenital
defects of the cone cells, he could volunteer active service
from dusk to dawn. Further, if anyone of them suffered from
anomalous trichromacy he could certainly claim a right to
actively serve for the reason the impairment would not render
him insensitive to colour detection, the minor impairment
being the loss of the normal 3-dimensional colour vision.
37. We wish to emphasize that there are 7 S‟s which
help in identification of an object. They are as under:-
(i) S - Shape
(ii) S - Shine
(iii) S - Silhouette
(iv) S - Shadow
(v) S - Shade
(vi) S - Size
(vii) S - Sound
38. It is no doubt true that while prescribing the
recruitment rules and standards of proficiency to be achieved,
physical and medical standards can be prescribed and thus a
feeble attempt made to urge that the respondents could not
prescribe the requisite medical standards, is noted and
rejected; with the clarification that the feeble argument was
advanced just for the sake of advancing an argument.
39. It is true that a policy decision is in the exclusive
domain of the State and can be struck down only when the
same is ultra vires or unconstitutional i.e. is in violation of
Article 14 or 16 of the Constitution of India, pertaining to a
W.P.(C) No.5077/08 & other matters Page 28 of 35
matter of service, no policy decision can be done away with
unless so found. We need not list various authorities which
hold so as we do not intend to prepare any catalogue and for
the additional reason we have written enough in the present
opinion. But where a policy is demonstrably not informed by a
reason or is ex-facie discriminatory or founded on the mere
ipsit-dixit of the Executive thereby offending Article 14 of the
Constitution, as opined in the decision reported as 1977 (7)
SCC 592 M.P.Oil Extraction vs. State of M.P., a Writ Court
would be under an obligation to direct remedial measures to
be taken.
40. Now, the policy circular dated 17.5.2002 recognizes
the principle of either legitimate expectation or estoppel, as
observed by us in para 27 above. It recognizes a wrong done
to the members of the force by inducting them in service
ignoring the medical disability; the wrong being that had they
been told at the time when they sought employment that they
were ineligible for appointment in a Central Para-Military
Force, these young men could have found alternative
employment on jobs where colour blindness was not an issue
and not doing so and further throwing them out of jobs at an
age when these young men became overage to seek public
employment was to deprive them of a fair opportunity to seek
public employment. The same principle on which policy
circular dated 17.5.2002 was issued would equally apply
where the Central Para-Military Forces would continue to be in
the wrong due to negligence post 17.5.2002. In this context
we find the policy decision dated 29.10.2008 being arbitrary
and discriminatory in prescribing 17.5.2002 as the cut-off date
as also the clarificatory policy circular dated 11.3.2011.
W.P.(C) No.5077/08 & other matters Page 29 of 35
41. The policy circular dated 29.10.2008, while
restricting the benefit thereof to those who were engaged prior
to 17.5.2002, a cut-off date which we have opined to be
arbitrary, contains a beneficial policy of adjusting the members
of the force who suffer from colour blindness, to be made to
perform such duties where colour blindness is not a handicap.
Being a beneficial policy, it needs to be construed liberally and
as long as the language thereof permits, in the widest
amplitude. The same guiding beneficial principles, we see no
reason, should not apply to all the writ petitioners. In this
context we seek to highlight a very anomalous situation
created by the respondents evidenced by the case of Sudesh
Kumar, the writ petitioner of WP(C) No.5077/2008 who joined
service as a Constable (General Duty) under CISF on 19.4.2003
and was not detected with colour blindness then nor at any
subsequent medical examination, but is being denied the fruits
of promotion as a Sub-Inspector (Executive) notwithstanding
he having successfully cleared the written and physical
examination as also the interview on the ground that on
5.7.2007 he was detected with a defective colour vision. What
is the exact extent of the defective colour vision has not been
brought out. But what is unexplainable is that as per CISF he
can continue to work as a Constable (General Duty), but not
earn a promotion as a Sub-Inspector (Executive). We just do
not see any rationale in the action taken. We also find
absurdity in the stand taken by the CISF of not convening a
Review Medical Board on the ground of the deficiency in the
language of the certificates obtained by him from civil
hospitals. Law is clear. Unless the language of a document is
statutorily prescribed, as long as there is substantial
W.P.(C) No.5077/08 & other matters Page 30 of 35
compliance with the substance of an issue, the language of a
document is immaterial. We find no justification for CISF not
to subject him to a Review Medical Board, but in the final view
which we have taken, there may be no requirement of so
doing.
42. Before bringing the curtains formally down, we
conclude on the issue by recording a finding that all the writ
petitioners would be entitled to the benefit of the policy
decision dated 17.5.2002 and we strike down the cut-off date
17.5.2002 prescribed in the policy circular dated 29.10.2008
and as clarified by the policy circular dated 11.3.2011 by
directing in harmony with the decision of the Supreme Court in
the decision reported as AIR 1983 SC 130 D.S.Nakara vs. UOI
that this would mean the benefit of the policy circular to be
extended to all force personnel of the Central Para-Military
Forces who have been inducted in service at any point of time
due to the negligence of the forces in not properly conducting
medical examination and not detecting colour blindness in said
persons.
43. We express a hope that guided by the utility of
colour blind persons in spotting camouflaged camps and
spotting khaki colour which is camouflaged in the woods and in
the hills as also the medical literature available pertaining to
colour blindness that a one-time policy would be framed for
futuristic application. It would be, in our opinion, the duty of a
State, while framing policy decisions to enrich itself with
research in various disciplines of subject of expert knowledge,
science and technology. We do not intend to say that policy
decisions would be the subject matter of judicial debate on the
issue whether, while framing the policy, better options could
W.P.(C) No.5077/08 & other matters Page 31 of 35
be exercised. The reason is obvious. Courts cannot sit as
experts. But surely, it would be expected that the literature on
the subject as it has grown with the passage of time and is
recognized by the peers in the field of expert knowledge,
science and technology and the known principles evolved from
time to time are kept in view when policies are framed.
44. WP(C) No.5077/2008 is allowed and a mandamus is
issued to the respondents to promote Sudesh Kumar as a Sub-
Inspector (Executive) with effect from the date person
immediately below in the select panel was promoted and we
hold that he would be entitled to all consequential benefits
save and except actual pay for the post of Sub-Inspector
(Executive). Compliance be made within 4 weeks from today.
45. WP(C) Nos.589/2010, 1668/2011 and 1681/2011
stand disposed of prohibiting the respective respondents in the
said writ petitions to invalidate the writ petitioners thereof
from service on account of colour blindness. They would be
permitted to serve till they attain the age of superannuation,
subject of course to their being otherwise entitled to do so
(ignoring colour blindness). For the benefit of the respondents,
we may only observe that qua some of them only partial
colour blindness has been detected and the exact contour
thereof has not been ascertained. We would expect the
respondents to obtain better clinical evaluatory advice qua
them and seek specific opinion from Ophthalmologist qua the
exact span of disability to ascertain jobs which can be
performed by them and needless to state if the colour
blindness suffered by them does not impair night vision, why
not assign them night duties. We may highlight that we have
come across a large number of writ petitions where issues
W.P.(C) No.5077/08 & other matters Page 32 of 35
raised by jawans is of continuously subjecting them to night
duties and they allege favouritism qua those who have been
assigned more frequent day duties. If we have a reservoir of
jawans who have some colour blind disability during normal
day time, would it not be advisable to harness the disability as
a pool of asset and use these jawans for night duties, for which
we would expect these jawans to volunteer to do so; in any
case commensurate with the disability of the jawan, there
would be rationale in the policy decision taken to assign night
duties to these jawans. Similarly, such Force Personnel who
may be disabled on account of colour blindness, but would
have the added advantage of spotting camouflage, why not
utilize them as assets by attaching them with platoons on
combing operations so that they would give the extra cutting
edge to the platoon by being able to spot camouflaged camps
set up by insurgents or terrorists.
46. We do have a little problem as regards Babu Lal
Samata, who claims Disability Pension under the CCS
(Extraordinary Pension) Rules 1972 on the premise that since
no disability was detected when he was inducted as a
Constable (General Duty) on 1.6.2002 and none was detected
in the annual medical check-up till the one which was held in
the year 2006, it would be obvious, so he claims, that he has
acquired partial colour blindness as an attribute of his service.
47. Of course, as it stands, the argument is based on
logical reasoning, but ignores that the premise of the
argument could be faulty. It ignores the possibility of there
being casualness in his medical examination and indeed we
find good ground to hold that as in the case of other writ
petitioners, Babu Lal Samata was inducted into service due to
W.P.(C) No.5077/08 & other matters Page 33 of 35
a callous and a negligent medical examination conducted by
the doctors concerned and this callousness and negligence
continued when annual medical examination of Babu Lal
Samata was conducted in the year 2003, 2004 and 2005. He
has pleaded nothing to show that while on duty he was
exposed to any kind of chemicals which induced colour
blindness. It is not his case that he suffers from diabetes
which is attributable to service and that the diabetes has
caused colour blindness. It is not his case that while on duty
he was posted in an area infested with mosquitoes and due to
which he suffered from malaria and was administered
chloroquine i.e. it is chloroquine which has triggered of his
partial colour blindness and hence the same would be
attributable to service. He has not asserted that he suffered
any disease, noted in para 3 herein above, while in service,
which diseases as noted herein above induce or result in
colour blindness. It is plain clear that his partial colour
blindness is congenital. His claim for 50% Extraordinary
Pension cannot be countenanced but for the reason, he was
not the beneficiary of our opinion rendered today, we feel that
justice requires a direction to be issued qua him to be re-
inducted in service without any back-wages and requiring him
to return to BSF such dues which he has received on account
of being invalidated from service as a condition precedent for
his being re-inducted in service and should he exercise said
option to direct that the period post his being invalidated from
service till he is re-inducted would be without any pay or
allowances but would be treated as period in service for all
other purposes. Thus, WP(C) No.11554/2009 stands disposed
of issuing a direction that if Babu Lal Samata, would within a
W.P.(C) No.5077/08 & other matters Page 34 of 35
period of 4 weeks from today send a letter exercising option to
be re-inducted in service he would enclose therewith a cheque
representing the amount which he received on being
invalidated from service and within 2 weeks there-from the
respondents would re-induct him in service treating the period
post invalidation from service till re-induction as period spent
on duty, but with no wages.
48. No costs.
(PRADEEP NANDRAJOG)
JUDGE
(SURESH KAIT)
JUDGE
MARCH 22, 2011
dk
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