{"id":258883,"date":"2011-03-22T00:00:00","date_gmt":"2011-03-21T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/sudesh-kumar-vs-uoi-anr-on-22-march-2011"},"modified":"2016-04-19T12:22:25","modified_gmt":"2016-04-19T06:52:25","slug":"sudesh-kumar-vs-uoi-anr-on-22-march-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/sudesh-kumar-vs-uoi-anr-on-22-march-2011","title":{"rendered":"Sudesh Kumar vs Uoi & Anr. on 22 March, 2011"},"content":{"rendered":"
Delhi High Court<\/div>\n
Sudesh Kumar vs Uoi & Anr. on 22 March, 2011<\/div>\n
Author: Pradeep Nandrajog<\/div>\n
*     IN THE HIGH COURT OF DELHI AT NEW DELHI\n\n%                          Judgment Reserved on: 17th March, 2011\n                           Judgment Delivered on:22nd March, 2011\n\n+                          W.P.(C) 5077\/2008\n\n      SUDESH KUMAR                                       ..... Petitioner\n               Through:              Mr.Narender Datt Kaushik, Advocate.\n\n                                     Versus\n\n      UOI & ANR.                                    .....Respondents\n                Through:             Dr.Ashwani Bhardwaj, Advocate.\n\n                           W.P.(C) 11554\/2009\n\n      BABU LAL SAMATA                                     ..... Petitioner\n                Through:             Mr.S.R.Kalkal, Advocate.\n\n                                     Versus\n\n      UOI & ANR.                                      .....Respondents\n                Through:             Mr.Sachin Datta, CGSC with\n                                     Ms.Gayatri Verma, Advocate for\n                                     UOI.\n\n                           W.P.(C) 589\/2010\n\n      CONSTABLE MANISH JOSHI               ..... Petitioner\n              Through: Mr.Ashish Mohan, Advocate.\n\n                                     Versus\n\n      UOI & ANR.                                      .....Respondents\n                Through:             Mr.Ravinder Agarwal, CGSC with\n                                     Mr.Nitish Gupta, Advocate for UOI.\n\n                           W.P.(C) 1668\/2011\n\n      JAGVEER SINGH & ORS.               ..... Petitioners\n                Through: Mr.A.K.Mishra, Advocate.\n\n                                     Versus\n\nW.P.(C) No.5077\/08 & other matters                           Page 1 of 35\n         UOI & ORS.                                   .....Respondents\n                  Through:           Mr.Sunil Kumar, CGSC with\n                                     Mr.Alok Kumar Shukla, Advocate\n                                     for UOI.\n\n                           W.P.(C) 1681\/2011\n\n        PUSHPENDER SINGH                     ..... Petitioner\n                Through: Mr.Ankur Chhibber, Advocate.\n\n                                     Versus\n\n        UOI & ORS.                                 .....Respondents\n                  Through:           Ms.Barkha Babbar, Advocate for\n                                     UOI.\n\n        CORAM:\n        HON'BLE MR. JUSTICE PRADEEP NANDRAJOG\n        HON'BLE MR. JUSTICE SURESH KAIT\n\n     1. Whether the Reporters of local papers may be allowed\n        to see the judgment?\n     2. To be referred to Reporter or not?\n     3. Whether the judgment should be reported in the Digest?\nPRADEEP NANDRAJOG, J.\n<\/pre>\n
1.           The above captioned petitions pertain to a common
\nissue relating to colour blindness and this is the reason they
\nare being disposed of by a common judgment. The petitioners
\nhave served or are serving in different Central Para-Military
\nForces and each one of them suffer from colour blindness, a
\nstated medical infirmity which is threatening their career.\n<\/p>\n
2.           Sudesh      Kumar,        the    writ   petitioner    of   WP(C)
\n5077\/2008 joined service as a Constable (General Duty) with
\nthe     Central    Industrial        Security    Force     on      19.4.2003.
\nIndisputably, he was medically examined at the time of his
\ninitial entry in the service and was found fit.                   He was not
\ndetected with any colour blindness.              At each annual medical
\nW.P.(C) No.5077\/08 & other matters                              Page 2 of 35<\/span>
\n examination he was found fully fit.             Responding to an
\nadvertisement dated 19.3.2007 he sought career progression
\nwhen he offered his candidature for being appointed as a Sub-
\nInspector     (Executive)      through   a   Limited   Departmental
\nCompetitive Examination proposed to be conducted by the
\nDepartment. He successfully cleared the written examination
\nheld on 27.5.2007 as also the physical examination conducted
\non 2.6.2007 as also the interview held on 29.6.2007. Required
\nto undergo another medical examination, he was medically
\nexamined at the CISF Hospital, Saket, New Delhi on 5.7.2007
\nand on 6.7.2007 was communicated a rejection on ground of
\nbeing \u201eunfit\u201f. The medical unfitness detected was: \u201eDefective
\nColour Vision\u201f. He had a right to seek a Review Medical Board
\nand for which he was supposed to file an Appeal annexing
\ntherewith an opinion of a competent doctor to the contrary.
\nSince by July 2007, the Unit to which the petitioner was
\nattached was transferred Thalchar (Orissa), he got himself
\nmedically examined from an Eye-Specialist at Angul (Orissa)
\nand obtained a certificate as per which it was certified that the
\nhe had normal colour vision.         He also got himself examined
\nfrom the District Hospital, Moradabad where it was certified
\nthat his colour vision was normal.             Armed with the 2
\ncertificates he preferred an appeal to the Inspector General
\nCISF and grievance raised in the writ petition is that his Appeal
\nwas not being disposed of.           During arguments of the writ
\npetition filed by him, counsel stated that directions may be
\nissued to CISF to convene a Review Medical Board with a panel
\nof 3 doctors; all of whom should be Ophthalmologist with
\nfurther direction that latest techniques available to detect
\ncolour blindness should be considered by the Board and<\/p>\n
W.P.(C) No.5077\/08 & other matters                      Page 3 of 35<\/span>
\n applied at the medical examination. The response of CISF, as
\nper counter affidavit filed, is that the Appeal filed has been
\nrejected inasmuch as Sudesh Kumar has not complied with the
\nrequirements of filing the Appeal.        Though not stated with
\nclarity in the counter affidavit filed as to what was not
\ncomplied      with    by     Sudesh   Kumar,   during    arguments,
\nDr.Ashwani Bhardwaj Advocate, stated that the requirement to
\nbe complied with was to have it recorded in the certificates
\nobtained by Sudesh Kumar from the Civil Hospitals that he had
\ninformed the doctors concerned of being detected with colour
\nblindness by the doctors of CISF, and since the certificates did
\nnot so record, the Appeal was rejected. It is asserted that this
\nfact was communicated to Sudesh Kumar on 7.9.2007.\n<\/p>\n
3.           Babu Lal Samata the writ petitioner of WP(C)
\nNo.11554\/2009 was enrolled as a Constable (General Duty)
\nwith Border Security Force on 1.6.2002 and at the time of
\njoining service he was subjected to a medical examination and
\nwas found fully fit.       At each annual medical examination he
\nwas found fully fit. He discharged his duties, successfully he
\nclaims, attached with the 6th Bn. BSF and his grievance
\ncommences when during a routine medical examination he
\nwas detected as a case of: \u201ePartial Colour Blindness\u201f.                 He
\nsubmitted a representation against his being placed in low
\nmedical category as a result of being detected with partial
\ncolour blindness and on 30.8.2006 a Review Medical Board
\nwas constituted which gave an opinion that he was suffering
\nfrom: \u201eRed-Green Colour Blindness\u201f.        On 31.10.2006 he was
\ncommunicated that due to the medical infirmity he was unfit
\nfor further service in BSF and thus would be retired from the
\nafternoon of 31.10.2006 with 50% disability as recommended<\/p>\n
W.P.(C) No.5077\/08 & other matters                      Page 4 of 35<\/span>
\n by the Medical Board. He claims 50% extra-ordinary pension
\nalleging that he had incurred the medical disability as a direct
\nresult of his service.        As per the respondents the medical
\ninfirmity is not attributable to service and thus it is stated that
\nhe would not be entitled to any pension under the CCS(Extra-
\nOrdinary Pension) Rules 1972. In the additional affidavit filed
\nby the respondents, with reference to Annexure R-13 it is
\nasserted that medical opinion is that the colour blindness from
\nwhich he suffers is congenital and not attributable to military
\nservice.    It is asserted in the additional affidavit that at the
\ntime of medical examination conducted when petitioner was
\ninducted in service, the column pertaining to \u201eColour Vision\u201f
\nwas inadvertently left blank. It is asserted that on 1.12.2003,
\nit got detected that he cannot read the numbers or trace the
\nline in the ISHIHARA Colour Vision Test Chart except the first
\nplate. It is further asserted that at the Review Medical Board,
\nhe was put through the \u201eEdridge\/Martin Lantern\u201f Test in which
\nit was detected that he could not identify all colours and was
\nsuffering    from    \u201eRed-Green\u201f colour blindness, which was
\nreconfirmed when he was further examined at All India
\nInstitute of Medical Sciences and subjected to \u201eEdridge\/Martin
\nLantern\u201f Test. On the issue whether or not the disability could
\nbe attributed to service, it is asserted that colour blindness
\ncould be acquired due to diseases like Alzheimer\u201fs disease,
\nDiabetes,      Mellitus,    Leukaemia,   Liver   disease,   Chronic
\nAlcoholism, Parkinsonism, Retinis pigmentosa etc.               It is
\nasserted that it is not the case of the petitioner that he
\nsuffered from any such disease and thus it is concluded that
\nthe obvious conclusion has to be that the Red-Green Colour
\nBlindness suffered by him is congenital.\n<\/p>\n
W.P.(C) No.5077\/08 & other matters                    Page 5 of 35<\/span><\/p>\n
 4.           Constable Manish Joshi, the writ petitioner of WP(C)
\nNo.589\/2010 was appointed as a Constable (General Duty)
\nunder Indo-Tibetan Border Police on 24.12.2005 and at the
\ntime of appointment was subjected to a medical examination
\nwhere no medical disability was detected.        At each annual
\nmedical examination he was found fully fit.         At a routine
\nmedical examination conducted on 16.1.2007 he was statedly
\ndetected with partial colour blindness i.e. \u201eRed-Green\u201f Colour
\nSpectrum Blindness. He accepts his medical infirmity and had
\nno problem, if consistent with the same, he could be
\naccommodated on such duties where the partial colour
\nblindness suffered by him was immaterial but raises a
\ngrievance pertaining to the policy notified on 29.10.2008 by
\nthe Ministry of Home Affairs in which, with reference to an
\nearlier policy dated 17.5.2002, it was decided that those
\nmembers of the Central Para-Military Force who were inducted
\nin service prior to 17.5.2002 and for whatever reasons the
\ndisability could not be detected then, would be retained in
\nservice and would also earn promotions, if otherwise fit, but
\nthose who were recruited after 17.5.2002 would be required to
\nbe invalidated in service after 4 years.       He challenges the
\npolicy as discriminatory alleging that there is no rationale to
\nstipulate a cut-off date being 17.5.2002 as done under the
\npolicy decision.       He also states that the policy decision is
\nviolative of Section 47<\/a> of the Persons with Disabilities (Equal
\nOpportunities, Protection of Rights and Full Participation) Act
\n1995.     As per the response filed it has been decided to
\ninvalidate from service all persons who suffer from colour
\nblindness, irrespective of the fact whether they joined service
\nbefore or after 17.5.2002 i.e. the response strikes at the very<\/p>\n
W.P.(C) No.5077\/08 & other matters                   Page 6 of 35<\/span>
\n foundation      of    the   action     predicated      on    the    plea      of
\ndiscrimination, but we note that on 11.3.2011, another policy
\ndecision has been notified by the Ministry of Home Affairs
\nreintroducing the cut-off date 17.5.2002 with a direction that
\nsuch Force Personnel who were recruited with colour blindness
\nprior to 17.5.2002 will continue to receive the benefit of a
\npolicy circular dated 17.5.2002 as per which it was notified
\nthat such Force Personnel who were inducted in spite of being
\ncolour blind would be retained in service but assigned duties
\nnot requiring use of firearms, identification of various types of
\ncolour signals, identification of criminals in mobs and use of
\nspecialized equipment. In other words, the justification given
\nby the respondents for the cut-off date 17.5.2002 is that by
\nsaid date a decision was taken by way of one-time relaxation
\nfor the benefit of all those who were appointed prior to
\n17.5.2002 and needless to state, the argument advanced was
\nthat there has to be a prescribed cut-off date on an issue of
\nthe kind and unless it was shown to be patently arbitrary, it
\nwould be a matter of policy as to what should the cut-off date
\nbe.\n<\/p>\n
5.            Ct.Jagveer Singh, Ct.Charan Singh and Ct.Sunil
\nKumar, the 3 writ petitioner of WP(C) 1668\/20011 were
\nrecruited     as     Constables      (General    Duty)      with   CRPF       on
\n20.8.2004, 15.5.2004 and 7.7.2004 respectively.                    They were
\nsubjected to a medical examination before appointment and
\nwere declared \u201eFit\u201f. At each annual medical examination they
\nwere found fully fit. Having served for about 6\u00bd years, at a
\nroutine medical examination, all of them were detected as
\ncases    of   partial    colour      blindness   and     were      given      an
\nopportunity to represent against the disability detected. They<\/p>\n
W.P.(C) No.5077\/08 & other matters                             Page 7 of 35<\/span>
\n admit suffering from colour blindness but state that they
\ncannot be invalidated from service, an action threatened
\nagainst them, and rely upon the fact that on 16.5.1991 the
\nDirector General CRPF had notified a policy decision that
\ncolour blindness would be a disqualification for entry into
\nservice under CRPF except for hospital staff and ministerial
\nstaff.   They rely upon a decision of the Calcutta High Court
\ndated 2.11.2000 deciding C.O.15173-74 (W) of 1992 wherein a
\nlearned Single Judge held that in view of a clarificatory circular
\ndated 7.11.1997 that all personnel including Constables
\n(General Duty) were entitled to remain in service till they
\nreach the age of superannuation, except for drivers. Though
\ncounter affidavit has not been filed in said writ petition,
\nargument advanced during hearing of the writ petition by the
\nrespondents was the same as was advanced to defeat the
\nclaim of the writ petitioner of WP(C) No.589\/2010.\n<\/p>\n
6.           Pushpender Singh the writ petitioner of WP(C)
\nNo.1681\/2011 was appointed as a Constable (General Duty) on
\n20.11.2004 and at the time of entry was found to be medically
\nfit. He sought conversion from the General Duty Cadre to the
\nDriver Cadre and also successfully underwent a D&M Course at
\nNeemuch.       Vide order dated 18.3.2010 cadre change was
\nintimated to him and thus he became a Constable (Driver). At
\neach annual medical examination from the year 2004 till 2009
\nnothing abnormal was detected and only in the medical
\nexamination conducted in April 2010 he was detected as a
\ncase of Partial Colour Blindness. On 22.2.2011 a show-cause
\nnotice was served upon him requiring him to respond as to
\nwhy he should not be invalidated from service. He relies upon
\na policy circular dated 12.6.1997 as per which Constable<\/p>\n
W.P.(C) No.5077\/08 & other matters                   Page 8 of 35<\/span>
\n (Drivers) detected with colour blindness would be transferred
\nin the General Duty cadre till they superannuated.        He also
\nrelies upon the policy circular dated 7.11.1997 i.e. the one
\nrelied upon by the Calcutta High Court as per which: \u201eAll the
\npersonnel GD\/Trade\/Tech. recruited till issue of this Directorate
\nGeneral Letter No.R.II-31\/94-Esstt.II dated 2\/12\/94 and found
\nsuffering from colour blindness may be retained in service till
\nsuperannuation. They will continue to do their normal duties
\nexcept driving of vehicles.\u201f Counter affidavit has not been filed
\nin the said writ petition but the defence taken is the same as in
\nthe preceding two writ petitions noted herein above.\n<\/p>\n
7.            Before we deal with the various policy circulars
\npertaining to colour blindness issued from time to time and
\nfrom there-from discern the policy of the Executive framed
\nfrom time to time, we think we ought to pen a few words on
\nwhat colour blindness is about.\n<\/p>\n
8.            The English Chemist John Dalton published the first
\nscientific paper on this subject in the year 1798, titled:
\n\u201eExtraordinary Facts Relating to the Vision of Colours\u201f .          He
\nwrote the article after the realization of his own colour
\nblindness and because of Dalton\u201fs work, colour blindness
\ncondition is often called Daltonism; but as of now this term is
\nused for only a type of colour blindness called \u201eDeuteranopia\u201f.\n<\/p>\n
9.            The subject experts are in agreement that colour
\nblindness is a very mild disability, but in certain situations,
\ndepending upon a job and especially where the identification
\nof the colours red and green are important, may be a serious
\ndisability.\n<\/p>\n
10.           To understand the phenomenon of colour blindness,
\nthe human eye and especially the human retina needs to be<\/p>\n
W.P.(C) No.5077\/08 & other matters                  Page 9 of 35<\/span>
\n understood.        The average human retina contains 2 kinds of
\nlight cells: (i) the rod cells, which are active in low light; and (ii)
\nthe cone cells, which are active in normal day light. There are
\n3 kinds of cone cells, each containing a different pigment
\nwhich gets activated depending upon the light absorbed by a
\npigment.       The spectral sensitivity of the cones differ to
\ndifferent     wavelengths        i.e.   short     wavelength,     medium
\nwavelength and long wavelength. The peak sensitivity of the
\ncone cells is to be found in the blue, yellowish-green and
\nyellow region of the spectrum.                These receptors are often
\ncalled \u201eS\u201f cones, \u201eM\u201f cones and \u201eL\u201f cones, representing short,
\nmedium and long wavelength. They are also often referred to
\nas blue cones, green cones and red cones.                        But, this
\nterminology is not very accurate and especially for the reason
\nred receptors have their peak sensitivity in the yellow region.
\nThe sensitivity of normal colour vision actually depends on the
\noverlap between the absorption spectra of the 3 systems, red
\nlight for example, stimulates the long wavelength cones much
\nmore than either of the others and reducing the wavelength
\ncauses the other 2 cone systems to be increasingly stimulated,
\ncausing a gradual change in hue.\n<\/p>\n
11.           It is recognized that colour vision deficiencies are
\neither acquired or inherited. Pertaining to inherited, there are
\n3     types   of    congenital       colour     vision   deficiencies:       (i)
\nmonochromacy also known as total colour blindness caused by
\ncone defect or absence and in this case there is a complete
\nlack of ability to distinguish colours. It occurs due to two or all
\nthree cone pigments missing.                  (ii) Dichromacy which is
\nmoderately severe colour vision defect and is the result of one
\nof the three basic cones missing. (iii) Anomalous Trichomacy<\/p>\n
W.P.(C) No.5077\/08 & other matters                           Page 10 of 35<\/span>
\n which is less severe colour vision defect and is the result of
\none of the three cone pigments being altered in its spectral
\nsensitivity. The result is not a total loss, but an impairment of
\nthe normal 3-dimensional colour vision.\n<\/p>\n
12.          Thus, colour blindness or colour vision loss which is
\ncongenital i.e. hereditary may be broadly stated to be, total,
\nmoderate or partial.\n<\/p>\n
13.          Colour Blindness or Colour Vision Loss can also be
\nacquired as noted herein above. These may be due to brain or
\nretinal damage caused by Shaken Baby Syndrome, accidents
\nand trauma which produce swelling of the brain in the occipital
\nlobe or damage to the retina caused by exposure to ultra-
\nviolet light.     Degenerative diseases of the eye, such as age
\nrelated macular degeneration or retinal damage caused by
\ndiabetes are also the causes of acquired colour vision loss.
\nExposure to certain kinds of chemicals such as carbon
\nmonoxide,       carbon     disulphide,        styrene   and        lead    based
\nchemicals also may result in colour blindness. Consequence of
\nside effects of some medicines such as anti-inflammatory
\nmedicines, medicines for rheumatoid arthritis and even
\nchloroquine may cause colour blindness.\n<\/p>\n
14.          An    interesting       facet    of   colour   blindness,        has
\nunfortunately escaped the attention of the Central Para-
\nMilitary Forces and also the Central Government, evidenced by
\nthe fact that during arguments Ophthalmologist had assisted
\nlearned counsel for the respondents and indeed Dr.Padma
\nChaudhary, an Ophthalmologist had explained the various
\nnuances      pertaining      to      colour    blindness      in      Court        as
\nacknowledged by the respondents in the additional affidavit
\nfiled, enclosing therewith the opinion of Dr.Padma Chaudhary,<\/p>\n
W.P.(C) No.5077\/08 & other matters                                 Page 11 of 35<\/span>
\n in WP(C) No.11554\/2009.              The facet which has escaped the
\nattention of all is a distinctive ability of colour blind people
\nwhich was first detected during World War-II.            This was the
\nability of these individuals to be better placed than normal
\nindividuals, at penetrating certain colour camouflages and
\nespecially the colour \u201ekhaki\u201f. Reference may be made to an
\narticle published under the title \u201eDichromats detect colour-
\ncamouflaged objects that are not detected by trichromats\u201f
\npublished by M.J.Morgan, A.Adam and J.D.Mollons who are
\nsenior    professors     in   the     Department   of   Pharmacology,
\nUniversity of Edinburgh and the Department of Experimental
\nPsychology, University of Cambridge. In World War-II, colour
\nblind soldiers were used in spy planes to spot camouflage
\nGerman camps.\n<\/p>\n
15.          Neither the respondents nor their doctors and thus
\nnor their counsel was aware of the utility of colour blind
\npersons in respect of colour blindness being used as an asset
\nand not being labelled as a liability.\n<\/p>\n
16.          Let us proceed to note the policy circulars issued
\nfrom time to time and as relied upon in the pleadings of the
\nparties. The first is a policy circular dated 16.5.1991 issued by
\nDirector General CRPF which reads as under:-\n<\/p>\n
      “To,
\n      The Addl. DG
\n      NW Zone, CRPF
\n      Chandigarh<\/p>\n
      The Inspector General of Police
\n      Southern\/Eastern\/Northern & NW Sector,
\n      Central Reserve Police Force,
\n      Hyderabad, Calcutta, New Delhi & Shilong.\n<\/p><\/blockquote>\n
W.P.(C) No.5077\/08 & other matters                       Page 12 of 35<\/span><\/p>\n
       Subject- Disqualification for entitlement in CRPF
\n      due to colour blindness<\/p>\n
      Sir,<\/p>\n
          Kindly refer to this directorate letter of even
\n      number dated 04.10.90.\n<\/p><\/blockquote>\n
      2.   The matter regarding retention of force
\n      personnel in service, who are suffering from colour
\n      blindness as well as making colour blindness as
\n      disqualification for entry in to CRPF, has been
\n      examined in depth while doing so the view
\n      expressed by Addl.DG NW Zone and sector IsCP on
\n      the subject have also been considered.\n<\/p><\/blockquote>\n
      3.   I am directed to convey the following decision
\n      on the subject cited above:-\n<\/p><\/blockquote>\n
      i)   Colour blindness will be a disqualification for
\n      entry in CRPF in respect of the executive, Technical
\n      and trade cadres including MT. However, colour
\n      blindness will not be a disqualification for the
\n      Hospital staff, Ministerial staff and followers.\n<\/p><\/blockquote>\n
      ii)   All Drivers upto the rank of HC (Dvr.) who are
\n      reported to be having colour blindness may be
\n      transferred to GD line as already communicated
\n      vide this Directorate letter of even number dated
\n      04.10.1990.\n<\/p><\/blockquote>\n
      iii)  Those serving GD personnel who are having
\n      colour blindness may be allowed to continue in
\n      services till they superannuate.\n<\/p><\/blockquote>\n
                                           Yours faithfully,
\n                                               Sd\/-16\/5\/91
\n                                             (M.M.Sharma)
\n                                     Asstt.Director, Estt.II”\n<\/p><\/blockquote>\n
17.          The second is a policy circular dated 12.6.1997
\nissued by Director General CRPF which reads as under:-\n<\/p>\n
      “To,
\n             The Special Director General,
\n             Southern Sector, CRPF, Hyderabad,
\nW.P.(C) No.5077\/08 & other matters                   Page 13 of 35<\/span>
\n              The Addl.Director, General,
\n             NWZ, CRPF, Chandigarh
\n             The Inspector General of Police,
\n             BS, CS, ES, NS, WS, RAF, NES, SPL, SEC, M&N,
\n             J&K & Director ISA CRPF Mt.Abu.\n<\/p><\/blockquote>\n
      Subject:      CRITERIA  OF    EYE    SIHGT\/VISUAL\n                    STANDARD OF SERVICE PERSONNEL\n\n      Sir,\n<\/pre>\n
            Owing to certain ambiguities in the criteria of
\n      eyesight\/visual standard of serving personnel, the
\n      matter was examined in detail and following
\n      instruction are hereby issued supersession of all
\n      previous orders on the subject:-\n<\/p><\/blockquote>\n
      (a)    Para 1.15(b) Visual Standard:\n\n      Existing para in Recruitment Manual             Amended\n\n      Para 1.15\n\n      (b)    Visual Standard. The visual standard will be;\n\n      (1) See to shoot on               (i) Should not be less\n      driver (First line troops)        than 6\/6 in one eye and\n      visual acquity not less           6\/9 in other for all ranks\n      than: Each eye 6\/12 9             1.0.6\/6 for fit eye in Rt\n      on) Right eye 6\/6 Reads           handed individual and\n      0.6 Reads 0.8 on left eye         6\/6 for left eye in left\n      6\/36 read I or J.6                handed          individual\n                                        without glasses.\n\n\n      Existing para in Recruitment Manual             Amended\n\n      (ii) See for-ordinary purposes in        (ii) Should be\n      fighting are (Sub shooting               free from Colour\n      standard) but may be called              blindness\n      upon to fight under exceptions\n      circumstances.\n\n\n      Right eye 6\/12          Left eye 6\/36\nW.P.(C) No.5077\/08 & other matters                     Page 14 of 35<\/span>\n       Reads 0.6 or J.2        Reads I or J.6\n\n\n      Existing para in Recruitment Manual                Amended\n\n      (iii) See for ordinary purposes          (iii)  Near    vision\n      (includes       Clerks,    non-          should      be      JI\n      combatants and Followers)                equivalent if some\n                                               other charts used)\n                                               unladed both eyes.\n      Right eye 6\/36             Left eye\n                              6\/12     or\n                              each eye\n      Reads 0.6 or J.6        Reads 0.6,\n                              6\/24 reads\n                              0.8\n      Second para of page-7of\n      Recruitment Manual\n      2. Recruits other than clerk             (a) Recruits (GD)\n      recruits        required       for       \/Tech\/Trade\/Enrolled\n      educational duties and non               Followers and ASI\n      combatants (enrolled) may                (M) may not be\n      not wear spectacles during               permitted to wear\n      the visual test.         Unaided         spectacles     during\n      vision of recruits of clerical           the    visual    test.\n      and educational duties will              Unaided vision of\n      not be below 6\/6 in each eye             recruits (GD)\/Tech\/\n      and on correction will be the            Trademan \/Enrolled\n      same as for (i) and (ii) above           Followers and ASI\n      conforming to the visual                 (M) will not below\n      standard of personnel of that            6\/6 in one eye and\n      category except that near                6\/9 in other for all\n      vision in one eye must be 0.5            ranks 1.0.6\/6 for\n      or J.1. Each eye must have               right eye is right\n      full field of vision as tested by        handed     individual\n      hand movements.              Any         and 6\/6 for left eye\n      morbid conditions of the eyes            in    left    handed\n      or lids liable to the risk of            individual    without\n      aggravation of recurrence,               glasses. Each eye\n      will cause rejection of the              must have full field\n      recruit.                                 of vision as tested\n                                               by              hand\nW.P.(C) No.5077\/08 & other matters                        Page 15 of 35<\/span>\n                                      movements.        Any\n                                     morbid conditions of\n                                     the eyes or lids\n                                     liable to the risk of\n                                     aggravation          f\n                                     recurrence        will\n                                     cause rejection of\n                                     the recruits. They\n                                     should be free from\n                                     Colour      Blindness\n                                     except ABI (M) and\n                                     followers.\n                                     (b)The adjustment\/\n                                     disposal of affected\n                                     serving     persons\n                                     should be made as\n                                     under:\n                                     (i) All the personnel\n                                     BD\/ Trade\/ Tech\n                                     recruited till issue of\n                                     this       Directorate\n                                     General           letter\n                                     No.R.II-31\/94, Estt-II\n                                     Dated 2\/12\/94 may\n                                     be      retained       in\n                                     service               till\n                                     superannuation.\n                                     They will continue\n                                     to do their normal\n                                     duties          except\n                                     driving of vehicles.\n                                     (ii) Drivers recruited\n                                     before      2\/12\/1994\n                                     and found suffering\n                                     from           Colour\n                                     blindness           be\n                                     transferred to the\n                                     GD Cadre. They will\n                                     perform all duties\n                                     pertaining to the\n                                     rank in the GD\n                                     cadre. However, for\n                                     further promotions,\nW.P.(C) No.5077\/08 & other matters                Page 16 of 35<\/span>\n                                           they will have to\n                                          acquire the requisite\n                                          rank qualifications.\n\n\n                                          (iii)      Personnel\n                                          enlisted after issue\n                                          of this Directorate\n                                          General         letter\n                                          No.R.II-31\/94, Estt.II,\n                                          dated 2\/12\/94 either\n                                          in MT or GD cadre\n                                          be discharged from\n                                          service.\n\n\n                                          (iv) Cases already\n                                          decided    otherwise\n                                          on the basis of\n                                          rules,   instructions\n                                          existing\/existed\n                                          need not be re-\n                                          opened.\n\n\n<\/pre>\n
      2.    Three instructions are issued in suppression of
\n      this Directorate General letter No.R.II-31\/94-Estt.-II,
\n      dated 2\/12\/94 and will be effective from the date of
\n      issue of this letter.\n<\/p><\/blockquote>\n
      3.     This has the approval of DG.”\n<\/p><\/blockquote>\n
18.          The third is the policy circular dated 17.5.2002
\nissued by Ministry of Home Affairs which reads as under:-\n<\/p>\n
      “Subject:- Introduction of Medical Category Shape-I
\n      for the purpose of promotion in CPMFs – Regarding<\/p>\n
      Reference DG, CRPF, U.O. No.P-VII\/I-Pers-I dated the
\n      14th May, 20002 on the subject mentioned above.\n<\/p><\/blockquote>\n
      This question of promotion of force personnel
\n      recruited with colour blindness has been examined
\n      in this Ministry and it has been decided that this
\n      disability, ignored at the time of their recruitment,
\nW.P.(C) No.5077\/08 & other matters                    Page 17 of 35<\/span>
\n       cannot be held against them now. All such force
\n      personnel, recruited with colour blindness are
\n      therefore eligible for promotion, despite their being
\n      in medical category SHAPE 2 (Permanent) on their
\n      turn, if they are otherwise fit for promotion.\n<\/p><\/blockquote>\n
                                                         Sd\/-\n<\/p><\/blockquote>\n
                                               (S.C.Saksena)
\n                                                Desk Officer”\n<\/p><\/blockquote>\n
19.          The fourth is the policy circular dated 31.7.2002
\nissued by Ministry of Home Affairs which reads as under:-\n<\/p>\n
      “Subject:- Prescribed medical category SHAPE-I for
\n      combatized personnel of CRPFs.\n<\/p><\/blockquote>\n
           Reference DG, CRPF, U.O. No.P-VII\/I-Pers-I
\n      dated the 19th July, 2002 on the subject mentioned
\n      above, wherein they have sought clarification with
\n      regard to the promotion of force personnel with
\n      colour blindness for the following category:-\n<\/p><\/blockquote>\n
      i)    In whose cases colour blindness was not a
\n      disqualification;\n<\/p><\/blockquote>\n
      ii)   In whose cases though colour blindness was a
\n      disqualification but the same could not be detected
\n      at the time of their recruitment.\n<\/p><\/blockquote>\n
      iii)  In case force personnel with colour blindness
\n      could not be promoted, whether they are to be
\n      medically invalidated out of service.\n<\/p><\/blockquote>\n
      2.    This has been examined in this Ministry.
\n      Attention is invited to this Ministry\u201fs U.O. of even
\n      number dated the 17th May, 2002 which does not
\n      distinguish between force personnel, in whose
\n      cases, colour blindness was a disqualification or
\n      otherwise. It simply states that whosoever has
\n      been selected with colour blindness, whether by
\n      ignorance or otherwise, cannot be treated
\n      differently after putting so many years of service.
\n      The illness cannot be held against them and
\n      therefore they will be eligible for promotion despite
\n      their colour blindness, if they are, otherwise fit for
\n      promotion.\n<\/p><\/blockquote>\n
W.P.(C) No.5077\/08 & other matters                   Page 18 of 35<\/span><\/p>\n
       3.    This clarifies position regarding categories (ii)
\n      and (iii) inn para-1 above. Such question regarding
\n      the category (iii) does not arise at all.\n<\/p><\/blockquote>\n
                                                         Sd\/-\n<\/p><\/blockquote>\n
                                                 (D.S.Mishra)
\n                                             Director (Pers.)”\n<\/p><\/blockquote>\n
20.          The fifth policy circular dated 29.10.2008 issued by
\nMinistry of Home Affairs which reads as under:-\n<\/p>\n
      “Subject: Colour Blindness:\n<\/p><\/blockquote>\n
           Reference        this      Minisry\u201fs       UO\n      No.145020\/52\/2001-Pers-II    dated      17.05.2002\n      wherein following has been mentioned.\n\n<\/pre>\n
            “the question of promotion of Force personnel
\n      recruited with colour blindness has been examined
\n      in this Ministry and it has been decided that his
\n      disability, ignored at the time of their recruitment,
\n      cannot be held against them now. All such force
\n      personnel, recruited with colour blindness are
\n      therefore eligible for promotion, despite their being
\n      in medical category SHAPE 2 (Permanent) on their
\n      turn, if they are otherwise fit for promotion.”\n<\/p><\/blockquote>\n
      2.    The above order provides immunity to those
\n      force personnel who were recruited till dated i.e.
\n      17.05.2002. However, this order also placed such
\n      personnel in Shape 2 (Permanent) meaning thereby
\n      that they would be boarded out after 4 years as per
\n      provision of SHAPE order and also as per provisions
\n      in the present health care system, as there is no
\n      chance of improvement in colour blindness patients
\n      being a congenial disorder.\n<\/p><\/blockquote>\n
      3.     The Central Para Military Forces perform a
\n      critical role in maintaining internal security and
\n      guarding of National Border. By very nature the job
\n      requirements are technical in nature requiring a
\n      high level of physical fitness and abilities. The
\n      selection process is also rigorous in nature and
\n      every candidate must pass through medical
\n      examinations and physical efficiency test.     The
\n      colour blindness is one of the disqualification for
\nW.P.(C) No.5077\/08 & other matters                    Page 19 of 35<\/span>
\n       selection in service for the CPFs. If any person
\n      considering the requirement of the CPFs and in the
\n      interest of the person he or she should be boarded
\n      out on account of physical disability. At the same
\n      time, if the person has served for a number of years
\n      in a force, it may not be fair to remove him
\n      summarily. It has therefore, been decided that in
\n      all such cases which came to light where a person
\n      was appointed prior to 17.05.2002 with colour
\n      blindness, the concerned Force will try to adjust
\n      such a person in non technical security force where
\n      colour blindness may not be a disqualification.
\n      However, if the CPFs is not able to find out a
\n      suitable position for the person in the force he\/she
\n      may be removed from service after giving due
\n      opportunity to defend his\/her case. The cases of
\n      colour blindness if detected in the appointees in the
\n      period after 17.05.2002 such person shall be placed
\n      in SHAPE-V and be boarded out as per the laid down
\n      procedure for disability.\n<\/p><\/blockquote>\n
      4.    CPFs and ADG (Medical) shall also take all
\n      measures to see that at the time of the medical
\n      examination\/PET, the candidates are thoroughly
\n      screened for disabilities like colour blindness and in
\n      case of detection of such defects at a later date
\n      there should be in built mechanism to fix
\n      responsibility and take exemplary disciplinary
\n      action against those found guilty.\n<\/p><\/blockquote>\n
                                                        Sd\/-\n<\/p><\/blockquote>\n
                                       (Baraun Kumar Sahu)
\n                                            Director (Pers.)”\n<\/p><\/blockquote>\n
21.          The sixth and the last is the policy circular dated
\n11.3.2011 issued by Ministry of Home Affairs which reads as
\nunder:-\n<\/p>\n
      “Subject : Colour blindness:\n<\/p><\/blockquote>\n
           In continuation to this Ministry\u201fs UO of even
\n      number dated 29.10.2008 and in supersession of
\n      this Ministry\u201fs UO of even number dated
\n      08.3.2011, on the subject cited above, the matter<\/p>\n
W.P.(C) No.5077\/08 & other matters                   Page 20 of 35<\/span>
\n       has been reconsidered in this Ministry and after
\n      taking into consideration comments of ADG(Med)
\n      CPFs, the competent authority has approved the
\n      following:-\n<\/p><\/blockquote>\n
      a)    All duties where use of fire arms\/identification
\n      of various types of coloured signals\/identification of
\n      criminals in mob\/use of specialized equipments are
\n      not regularly required and public safety is not
\n      involved, may be defined as non-technical duties.\n<\/p><\/blockquote>\n
      b)    In MHA UO of even number dated
\n      29.10.2008, word \u201eNon-technical Security Force\u201f
\n      implies for \u201eNon-technical Security Duties\u201f within
\n      the Force and does not mean creation of any
\n      separate Non-technical Security Force.\n<\/p><\/blockquote>\n
      2.    It is further clarified that promotion of all such
\n      force personnel recruited with colour blindness
\n      prior to 17.5.20002 will continue to be governed by
\n      this Ministry\u201fs UO No.I-45020\/52\/2001-Pers-II dated
\n      17.5.2002.\n<\/p><\/blockquote>\n
      3.    This issues with the approval of Secretary
\n      (IS).\n<\/p><\/blockquote>\n
                                                           Sd\/-\n<\/p><\/blockquote>\n
                                               (Ajay K.Singh)
\n                                             Director (Pers.)”\n<\/p><\/blockquote>\n
22.          Relevant would it be to note that the policy circular
\ndated 16.5.1991 and 12.6.1997 have been issued by CRPF and
\nthe policy circulars dated 17.5.2002, 31.7.2002, 29.10.2008
\nand 11.3.2011 have been issued by the Ministry of Home
\nAffairs and are applicable to all Central Para-Military Forces.\n<\/p>\n
23.          An analysis of the policy decisions taken from time
\nto time would reveal that as regards CRPF, on 16.5.1991 it was
\ndecided     that    henceforth       colour   blindness   would    be      a
\ndisqualification for entry in CRPF in respect of Executive,
\nTechnical and Trade cadres including MT except Hospital and
\nMinisterial works. Those who were appointed as drivers and
\nwere detected with colour blindness were to be transferred to
\nGeneral Duty Lines and those serving as General Duty
\nW.P.(C) No.5077\/08 & other matters                         Page 21 of 35<\/span>
\n Personnel were allowed to continue in service in the cadre. It
\nis apparent that the policy would be a one-time measure not to
\nrelieve those who were in service and for whatever be the
\nreason, were detected as colour blind, by adjusting them on
\nsuch work which could be performed with the handicap. But,
\nfor the future, a person with colour blindness could not be
\ninducted in CRPF except for hospital and ministerial duties.\n<\/p>\n
24.          The second policy circular dated 12.6.1997 lay
\ndown visual standards to be achieved as the minimum
\nbenchmark for induction in CRPF and pertaining to colour
\nblindness clearly specify that colour blindness would be
\ntreated as a disability. It is apparent that the policy circular
\ndated 12.6.1997 was to make necessary amendments in the
\nvisual standards prescribed to bring the same in harmony with
\nthe circular dated 16.5.1991.\n<\/p>\n
25.          But we find that in spite thereof, evidenced from
\nWP(C) No.1668\/2011 and WP(C) No.1681\/2011, CRPF has been
\nnegligent in inducting persons as Constable (General Duty) in
\nCRPF who were colour blind. It is but apparent that CRPF has
\nbeen negligent.       We shall deal with the issue in full detail a
\nlittle later while analyzing the problem and finding a solution
\nthereto.\n<\/p>\n
26.          The policy circular dated 17.5.2002 pertaining to all
\nCentral Para-Military Forces is the obvious fallout of CRPF
\ncontinuing to induct persons with colour blindness, which
\nnegligence is also to be found in what CISF, BSF and ITBP were
\ndoing.     Even these organizations were not careful while
\neffecting the selection and as a result of a negligent medical
\nexamination did not detect colour blindness evidenced from
\nthe fact that the writ petitioner of WP(C) No.11554\/2009 got<\/p>\n
W.P.(C) No.5077\/08 & other matters                    Page 22 of 35<\/span>
\n employment in BSF in the year 2002, writ petitioner of WP(C)
\nNo.589\/2010 got employment in ITBP in the year 2005 and the
\nwrit petitioner of WP(C) No.5077\/2008 got employment in CISF
\nin the year 2003, none of them was detected with colour
\nblindness.     None of them suffered any illness or took any
\nmedicine which could induce colour blindness; we may hasten
\nto add that all of them were given chloroquine, which we are
\ninformed is orally administered in routine to members of the
\nCentral     Para-Military     Forces   as   they     work     in   hostile
\nenvironment in tropical and such other climatic conditions
\nwhen mosquitoes breed in abundance and malaria is at large.
\nBut we have no empirical data of how much chloroquine was
\ntaken by each one of them, but surely the dosage was
\nminimal, we say so for the reason none of them claims to have
\nsuffered from malaria and thus it can safely be inferred that
\nthe minimum preventive dosage was administered to them.
\nNone of them claimed any kind of exposure to such chemicals
\nwhich induce colour blindness and thus it can safely be
\nassumed that the colour blindness detected qua them is
\ncongenital. But, to be fair to them, we must also note that the
\nOphthalmologists concerned have thrown no light whether the
\ncolour blindness suffered by them was monochromacy or
\ndichromacy or anomalous trichromacy.               There is nothing in
\ntheir medical record to guide whether the impairment was
\ntotal, severe or partial.\n<\/p>\n
27.          The policy circular dated 17.5.2002 is again by way
\nof relaxation inasmuch as it contains the decision that Central
\nPara-Military Force Personnel whose colour blindness was
\nignored at the time of recruitment would not be treated
\nineligible for promotion and thus obviously required them to be<\/p>\n
W.P.(C) No.5077\/08 & other matters                          Page 23 of 35<\/span>
\n retained in service and the reason for the policy is to be found
\nin the policy itself through the medium of the words \u201ecannot be
\nheld against them now\u201f, meaning thereby, it was accepted
\nthat the fault was that of the Department. The policy circular
\nrecognizes either the principle of the legitimate expectation of
\nthese force personnel to serve till they attained the age of
\nsuperannuation or an estoppel against the Central Para-
\nMilitary Forces who, by permitting employment to the force
\npersonnel concerned, made him alter his position in not
\nseeking employment elsewhere and having become overage
\nfor public employment, estoppel would prohibit the Central
\nPara-Military Force to allege or act to the contrary. It would be
\nimportant to highlight that all such persons were liable to be
\nplaced in the medical category Shape-2, which as per the
\nmedical policy would mean that if within 4 years, Shape-1 was
\nnot regained required the person concerned to be boarded
\nout. But, the policy recognized the fact that congenital colour
\nblindness is incurable and the question of these persons
\nregaining Shape-1 would never arise and thus it was clarified
\nthat despite being in medical category Shape-2 (permanently)
\nthey would be promoted.\n<\/p>\n
28.          The policy circular dated 17.5.2002 does not
\nindicate that it is a one-time measure.              Of course, it was
\nexpected from the Central Para-Military Forces to be careful
\nand    not     go    about      being   repeatedly     negligent,    but
\nunfortunately, evidenced from the fact that in the year 2003,
\n2004 and 2005 persons with colour blindness continued to be
\ninducted in service is proof of the continued callousness and
\nnegligence; breeding litigation.\n<\/p>\n
W.P.(C) No.5077\/08 & other matters                        Page 24 of 35<\/span><\/p>\n
 29.           The policy circular dated 31.7.2007 is the next in
\norder and pertains only to CRPF, where we find negligence to
\nbe most rampant. It gave a clarification with respect to the
\npolicy circular dated 17.5.2002 and highlighted that the
\nmandate of the circular dated 17.5.2002 was to ignore the
\nrequirement of the rules to treat colour blindness as a
\ndisqualification by not subjecting the said persons who were
\nwrongly inducted to being invalidated from service.\n<\/p>\n
30.           The policy circular dated 29.10.2008 is again
\nrelated to all Central Para-Military Forces and refers once again
\nto the circular dated 17.5.2002.           The policy circular dated
\n29.10.2008, vide para 2 thereof, clarified that the benefit of
\nthe circular dated 17.5.2002 was restricted to the force
\npersonnel recruited till said date and further required such
\npersonnel to be placed in Shape-2 and highlighted that a
\nperson in Shape-2 was to be boarded out after 4 years, being
\nthe requirement of the rules which required a person in Shape-
\n2 to be boarded out if within 4 years he could not regain
\nShape-1.\n<\/p>\n
31.           What surprises us is the fact that in para 2 of the
\npolicy circular dated 29.10.2008 it was mentioned that persons
\nwho got the benefit of the policy circular dated 17.5.2002
\nwould    be    required     to   be    boarded   out   after   4   years,
\nnotwithstanding       the fact       that the policy    circular dated
\n17.5.2002, clearly notes that notwithstanding these persons
\nbeing in Shape-2, would not be visited with the consequences
\nthereof and not only would not be boarded out but additionally
\nwould earn a promotion.\n<\/p>\n
32.           Para 3 of the circular, certainly highlights the
\ncritical role of the Central Para-Military Forces and though not<\/p>\n
W.P.(C) No.5077\/08 & other matters                        Page 25 of 35<\/span>
\n expressly stated, we do understand that in a situation of crowd
\ncontrol or where smoke signals are to be read, a colour blind
\nperson may commit a terrible mistake which may prove
\nextremely costly, and since members of these forces carry
\narms, there would be utmost need to be extra vigilant. But,
\nthe paragraph tampers the requirement of the organization
\nand the standard to be attained with the right, equitable or
\nvested, of the members of the force.                    The use of the
\nexpression: \u201eIt may not be fair to remove him\u201f highlights the
\nbeneficial purport of the policy, but unexplainably picks up the
\ncut-off date 17.5.2002 and mandates that persons appointed
\nprior to 17.5.2002 ignoring their colour blindness would be
\nretained and adjusted in non-technical duties and only in
\nextreme cases where the Central Para-Military Force was
\nunable to find any suitable position for a person in the Force,
\nonly then should the extreme action of invalidation from
\nservice be resorted to.           It expressly states that appointees
\nafter 17.5.2002 should be invalidated from service as per
\nprocedure prescribed for disability.\n<\/p>\n
33.          Surprisingly enough, notwithstanding the express
\nmandate      of   the    policy      circular   dated   29.10.2008    that
\npersonnel recruited prior to 17.5.2002 would be retained in
\nservice and adjusted against suitable jobs and only if none was
\navailable would they be invalidated from service, the Central
\nPara-Military Forces started threatening invalidation from
\nservice to even such Force Personnel who were recruited prior
\nto 17.5.2002 and this necessitated the clarificatory policy
\ncircular dated 11.3.2011 to be issued which made it plain clear
\nthat Force Personnel recruited prior to 17.5.2002 would be
\ntreated strictly as per the policy circular dated 17.5.2002.\n<\/p>\n
W.P.(C) No.5077\/08 & other matters                          Page 26 of 35<\/span><\/p>\n
 34.          Now, we have highlighted herein above that there
\nare 3 varieties of colour blindness and that a person may be
\ncolour blind in the third category of anomalous trichromacy
\nwhere only one of the three cone pigments is altered in its
\nspectral sensitivity and the result of the impairment is loss of
\nnormal 3-dimensional colour vision i.e. the person would see
\nan object as also its colour but only in 2 dimensions and not
\nthe third.      We have also highlighted herein above that
\ncongenital defect in the rod cells which are active in low light
\nwould create colour blindness when the light is low and the
\ncone cells which are active in normal day light would result in
\ncolour blindness during normal day light.    In other words, a
\ncolour blind person, depending upon the nature of colour
\nblindness, may be able to see a coloured object, not in its 3-
\ndimensional contours but in a 2-dimensional contour and
\nfurther one may not be able to spot a colour in broad daylight
\nbut spot the same in low light and vice-versa.\n<\/p>\n
35.          Let us take the case of a Force Personnel having
\ncongenital defects in the cone cells, with the rod cells being
\nperfectly normal. This force personnel, would ex-facie, be fit
\nfor active duty from dusk to dawn.         Vice-versa, a force
\npersonnel having congenital defects in the rod cells would be
\nfit for active duty from dawn to dusk.\n<\/p>\n
36.          We wish to highlight that the respondents have not
\nbeen careful enough and indeed have been negligent not only
\nat stage one when they inducted the petitioners in service by
\nnot subjecting them to a proper medical screening and had the
\nrespondents been careful, petitioners would have been told of
\ntheir medical disability and this would have been at an age
\nwhen all of them could have applied for public employment in<\/p>\n
W.P.(C) No.5077\/08 & other matters                 Page 27 of 35<\/span>
\n such organizations where colour blindness is not a medical
\ndisability.     Even at the second stage, by not correctly
\nidentifying the nature of the colour blindness suffered by
\nthem, the respondents have deprived them of a chance to
\nserve in active duty, to wit, if anyone of them had congenital
\ndefects of the cone cells, he could volunteer active service
\nfrom dusk to dawn. Further, if anyone of them suffered from
\nanomalous trichromacy he could certainly claim a right to
\nactively serve for the reason the impairment would not render
\nhim insensitive to colour detection, the minor impairment
\nbeing the loss of the normal 3-dimensional colour vision.\n<\/p>\n
37.           We wish to emphasize that there are 7 S\u201fs which
\nhelp in identification of an object. They are as under:-\n<\/p>\n
                    (i)     S        -   Shape\n                    (ii)    S        -   Shine\n                    (iii)   S        -   Silhouette\n                    (iv)    S        -   Shadow\n                    (v)     S        -   Shade\n                    (vi)    S        -   Size\n                    (vii)   S        -   Sound\n\n<\/pre>\n
38.           It is no doubt true that while prescribing the
\nrecruitment rules and standards of proficiency to be achieved,
\nphysical and medical standards can be prescribed and thus a
\nfeeble attempt made to urge that the respondents could not
\nprescribe the requisite medical standards, is noted and
\nrejected; with the clarification that the feeble argument was
\nadvanced just for the sake of advancing an argument.\n<\/p>\n
39.           It is true that a policy decision is in the exclusive
\ndomain of the State and can be struck down only when the
\nsame is ultra vires or unconstitutional i.e. is in violation of
\nArticle 14<\/a> or 16 of the Constitution of India, pertaining to a<\/p>\n
W.P.(C) No.5077\/08 & other matters                    Page 28 of 35<\/span>
\n matter of service, no policy decision can be done away with
\nunless so found.       We need not list various authorities which
\nhold so as we do not intend to prepare any catalogue and for
\nthe additional reason we have written enough in the present
\nopinion. But where a policy is demonstrably not informed by a
\nreason or is ex-facie discriminatory or founded on the mere
\nipsit-dixit of the Executive thereby offending Article 14<\/a> of the
\nConstitution, as opined in the decision reported as 1977 (7)
\nSCC 592 M.P.Oil Extraction vs. State of M.P<\/a>., a Writ Court
\nwould be under an obligation to direct remedial measures to
\nbe taken.\n<\/p>\n
40.          Now, the policy circular dated 17.5.2002 recognizes
\nthe principle of either legitimate expectation or estoppel, as
\nobserved by us in para 27 above. It recognizes a wrong done
\nto the members of the force by inducting them in service
\nignoring the medical disability; the wrong being that had they
\nbeen told at the time when they sought employment that they
\nwere ineligible for appointment in a Central Para-Military
\nForce,    these    young     men     could   have   found     alternative
\nemployment on jobs where colour blindness was not an issue
\nand not doing so and further throwing them out of jobs at an
\nage when these young men became overage to seek public
\nemployment was to deprive them of a fair opportunity to seek
\npublic employment.           The same principle on which policy
\ncircular dated 17.5.2002 was issued would equally apply
\nwhere the Central Para-Military Forces would continue to be in
\nthe wrong due to negligence post 17.5.2002. In this context
\nwe find the policy decision dated 29.10.2008 being arbitrary
\nand discriminatory in prescribing 17.5.2002 as the cut-off date
\nas also the clarificatory policy circular dated 11.3.2011.\n<\/p>\n
W.P.(C) No.5077\/08 & other matters                          Page 29 of 35<\/span><\/p>\n
 41.           The    policy    circular     dated   29.10.2008,         while
\nrestricting the benefit thereof to those who were engaged prior
\nto 17.5.2002, a cut-off date which we have opined to be
\narbitrary, contains a beneficial policy of adjusting the members
\nof the force who suffer from colour blindness, to be made to
\nperform such duties where colour blindness is not a handicap.
\nBeing a beneficial policy, it needs to be construed liberally and
\nas long as the language thereof permits, in the widest
\namplitude. The same guiding beneficial principles, we see no
\nreason, should not apply to all the writ petitioners.                 In this
\ncontext we seek to highlight a very anomalous situation
\ncreated by the respondents evidenced by the case of Sudesh
\nKumar, the writ petitioner of WP(C) No.5077\/2008 who joined
\nservice as a Constable (General Duty) under CISF on 19.4.2003
\nand was not detected with colour blindness then nor at any
\nsubsequent medical examination, but is being denied the fruits
\nof promotion as a Sub-Inspector (Executive) notwithstanding
\nhe having successfully cleared the written and physical
\nexamination as also the interview on the ground that on
\n5.7.2007 he was detected with a defective colour vision. What
\nis the exact extent of the defective colour vision has not been
\nbrought out. But what is unexplainable is that as per CISF he
\ncan continue to work as a Constable (General Duty), but not
\nearn a promotion as a Sub-Inspector (Executive). We just do
\nnot see any rationale in the action taken.                 We also find
\nabsurdity in the stand taken by the CISF of not convening a
\nReview Medical Board on the ground of the deficiency in the
\nlanguage of the certificates obtained by him from civil
\nhospitals. Law is clear. Unless the language of a document is
\nstatutorily    prescribed,      as   long    as   there   is     substantial<\/p>\n
W.P.(C) No.5077\/08 & other matters                             Page 30 of 35<\/span>
\n compliance with the substance of an issue, the language of a
\ndocument is immaterial. We find no justification for CISF not
\nto subject him to a Review Medical Board, but in the final view
\nwhich we have taken, there may be no requirement of so
\ndoing.\n<\/p>\n
42.          Before bringing the curtains formally down, we
\nconclude on the issue by recording a finding that all the writ
\npetitioners would be entitled to the benefit of the policy
\ndecision dated 17.5.2002 and we strike down the cut-off date
\n17.5.2002 prescribed in the policy circular dated 29.10.2008
\nand as clarified by the policy circular dated 11.3.2011 by
\ndirecting in harmony with the decision of the Supreme Court in
\nthe decision reported as AIR 1983 SC 130 D.S.Nakara vs. UOI<\/a>
\nthat this would mean the benefit of the policy circular to be
\nextended to all force personnel of the Central Para-Military
\nForces who have been inducted in service at any point of time
\ndue to the negligence of the forces in not properly conducting
\nmedical examination and not detecting colour blindness in said
\npersons.\n<\/p>\n
43.          We express a hope that guided by the utility of
\ncolour blind persons in spotting camouflaged camps and
\nspotting khaki colour which is camouflaged in the woods and in
\nthe hills as also the medical literature available pertaining to
\ncolour blindness that a one-time policy would be framed for
\nfuturistic application. It would be, in our opinion, the duty of a
\nState, while framing policy decisions to enrich itself with
\nresearch in various disciplines of subject of expert knowledge,
\nscience and technology. We do not intend to say that policy
\ndecisions would be the subject matter of judicial debate on the
\nissue whether, while framing the policy, better options could<\/p>\n
W.P.(C) No.5077\/08 & other matters                  Page 31 of 35<\/span>
\n be exercised.       The reason is obvious.    Courts cannot sit as
\nexperts. But surely, it would be expected that the literature on
\nthe subject as it has grown with the passage of time and is
\nrecognized by the peers in the field of expert knowledge,
\nscience and technology and the known principles evolved from
\ntime to time are kept in view when policies are framed.\n<\/p>\n
44.          WP(C) No.5077\/2008 is allowed and a mandamus is
\nissued to the respondents to promote Sudesh Kumar as a Sub-
\nInspector (Executive) with effect from the date person
\nimmediately below in the select panel was promoted and we
\nhold that he would be entitled to all consequential benefits
\nsave and except actual pay for the post of Sub-Inspector
\n(Executive). Compliance be made within 4 weeks from today.\n<\/p>\n
45.          WP(C) Nos.589\/2010, 1668\/2011 and 1681\/2011
\nstand disposed of prohibiting the respective respondents in the
\nsaid writ petitions to invalidate the writ petitioners thereof
\nfrom service on account of colour blindness. They would be
\npermitted to serve till they attain the age of superannuation,
\nsubject of course to their being otherwise entitled to do so
\n(ignoring colour blindness). For the benefit of the respondents,
\nwe may only observe that qua some of them only partial
\ncolour blindness has been detected and the exact contour
\nthereof has not been ascertained.            We would expect the
\nrespondents to obtain better clinical evaluatory advice qua
\nthem and seek specific opinion from Ophthalmologist qua the
\nexact span of disability to ascertain jobs which can be
\nperformed by them and needless to state if the colour
\nblindness suffered by them does not impair night vision, why
\nnot assign them night duties. We may highlight that we have
\ncome across a large number of writ petitions where issues<\/p>\n
W.P.(C) No.5077\/08 & other matters                    Page 32 of 35<\/span>
\n raised by jawans is of continuously subjecting them to night
\nduties and they allege favouritism qua those who have been
\nassigned more frequent day duties. If we have a reservoir of
\njawans who have some colour blind disability during normal
\nday time, would it not be advisable to harness the disability as
\na pool of asset and use these jawans for night duties, for which
\nwe would expect these jawans to volunteer to do so; in any
\ncase commensurate with the disability of the jawan, there
\nwould be rationale in the policy decision taken to assign night
\nduties to these jawans. Similarly, such Force Personnel who
\nmay be disabled on account of colour blindness, but would
\nhave the added advantage of spotting camouflage, why not
\nutilize them as assets by attaching them with platoons on
\ncombing operations so that they would give the extra cutting
\nedge to the platoon by being able to spot camouflaged camps
\nset up by insurgents or terrorists.\n<\/p>\n
46.          We do have a little problem as regards Babu Lal
\nSamata,     who     claims     Disability   Pension   under    the    CCS
\n(Extraordinary Pension) Rules 1972 on the premise that since
\nno disability was detected when he was inducted as a
\nConstable (General Duty) on 1.6.2002 and none was detected
\nin the annual medical check-up till the one which was held in
\nthe year 2006, it would be obvious, so he claims, that he has
\nacquired partial colour blindness as an attribute of his service.\n<\/p>\n
47.          Of course, as it stands, the argument is based on
\nlogical reasoning, but ignores that the premise of the
\nargument could be faulty.            It ignores the possibility of there
\nbeing casualness in his medical examination and indeed we
\nfind good ground to hold that as in the case of other writ
\npetitioners, Babu Lal Samata was inducted into service due to<\/p>\n
W.P.(C) No.5077\/08 & other matters                         Page 33 of 35<\/span>
\n a callous and a negligent medical examination conducted by
\nthe doctors concerned and this callousness and negligence
\ncontinued when annual medical examination of Babu Lal
\nSamata was conducted in the year 2003, 2004 and 2005. He
\nhas pleaded nothing to show that while on duty he was
\nexposed to any kind of chemicals which induced colour
\nblindness.     It is not his case that he suffers from diabetes
\nwhich is attributable to service and that the diabetes has
\ncaused colour blindness. It is not his case that while on duty
\nhe was posted in an area infested with mosquitoes and due to
\nwhich he       suffered    from      malaria   and   was administered
\nchloroquine i.e. it is chloroquine which has triggered of his
\npartial colour blindness and hence the same would be
\nattributable to service. He has not asserted that he suffered
\nany disease, noted in para 3 herein above, while in service,
\nwhich diseases as noted herein above induce or result in
\ncolour blindness.         It is plain clear that his partial colour
\nblindness is congenital.             His claim for 50% Extraordinary
\nPension cannot be countenanced but for the reason, he was
\nnot the beneficiary of our opinion rendered today, we feel that
\njustice requires a direction to be issued qua him to be re-
\ninducted in service without any back-wages and requiring him
\nto return to BSF such dues which he has received on account
\nof being invalidated from service as a condition precedent for
\nhis being re-inducted in service and should he exercise said
\noption to direct that the period post his being invalidated from
\nservice till he is re-inducted would be without any pay or
\nallowances but would be treated as period in service for all
\nother purposes. Thus, WP(C) No.11554\/2009 stands disposed
\nof issuing a direction that if Babu Lal Samata, would within a<\/p>\n
W.P.(C) No.5077\/08 & other matters                        Page 34 of 35<\/span>
\n period of 4 weeks from today send a letter exercising option to
\nbe re-inducted in service he would enclose therewith a cheque
\nrepresenting      the    amount      which   he   received   on   being
\ninvalidated from service and within 2 weeks there-from the
\nrespondents would re-induct him in service treating the period
\npost invalidation from service till re-induction as period spent
\non duty, but with no wages.\n<\/p>\n
48.          No costs.\n<\/p>\n
                                         (PRADEEP NANDRAJOG)
\n                                                JUDGE<\/p>\n
                                             (SURESH KAIT)
\n                                                  JUDGE
\nMARCH 22, 2011
\ndk<\/p>\n
W.P.(C) No.5077\/08 & other matters                       Page 35 of 35<\/span>\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Delhi High Court Sudesh Kumar vs Uoi & Anr. on 22 March, 2011 Author: Pradeep Nandrajog * 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[14,8],"tags":[],"class_list":["post-258883","post","type-post","status-publish","format-standard","hentry","category-delhi-high-court","category-high-court"],"yoast_head":"\nSudesh Kumar vs Uoi & Anr. on 22 March, 2011 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/sudesh-kumar-vs-uoi-anr-on-22-march-2011\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Sudesh Kumar vs Uoi & Anr. on 22 March, 2011 - 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