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PETITIONER: UNION OF INDIA

       Vs.

RESPONDENT: SATYA PRAKASH VASISHT

DATE OF JUDGMENT27/10/1993

BENCH: VERMA, JAGDISH SARAN (J) BENCH: VERMA, JAGDISH SARAN (J) SAHAI, R.M. (J) SINGH N.P. (J)

CITATION:  1994 SCC  Supl.  (2)  52

ACT:

HEADNOTE:

JUDGMENT:      ORDER 1.In response to an advertisement issued in January  1978 inviting  applications from candidates for the post of  Sub- Inspector   (Executive)   in  the  Delhi   Police   Service, respondent  Satya  Prakash Vasisht also applied  along  with others.   In  all  98 candidates  were  found  suitable  for appointment  by the Selection Committee and  the  respondent was  placed at Serial No. 54 in the order of  merit  amongst the  suitable  candidates.   The  selected  candidates  were called  for  medical  examination  and  the  respondent  was medically  examined  on June 2, 1978.   During  the  medical examination,  the respondent was found medically fit in  all respects  except that he was found to be colour blind.   The respondent was not given the appointment on the ground  that he  was  colour blind.  The respondent then  challenged  his non-appointment before the Central Administrative  Tribunal. The Tribunal by the impugned order dated January 7, 1987 has allowed the respondent’s application.  It has been held that colour  blindness was not a prescribed disqualification  for the  post of Sub-Inspector (Executive) and,  therefore,  the non-appointment of the respondent after he was duly selected was  illegal.  Accordingly, the Tribunal has  directed  that the  respondent  be appointed as  Sub-Inspector  (Executive) with all consequential benefits including seniority and pay, etc.  in accordance with law with reference to the  date  on which  he  would  ordinarily have  been  appointed  on  such selection.   This  appeal by the Union of India  by  special leave is against that judgment of the Tribunal. 2.The  only  question  for  decision  is  whether  colour blindness was a disqualification prescribed for the post  of Sub-Inspector (Executive) according to the rules  applicable at the relevant time.  Admittedly, the relevant provision in the  rules  introduced by amendment dated May  8,  1978  was applicable in the present case and the same reads as under "(a) that the vision is up to the following standard:

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(i)  For  Constables,  Head  Constables  and  Sub-Inspectors (Executive) Visual acuity (both eyes). 6/12 without glasses (ii)For Drivers and traffic staff. Visual acuity (both eyes). 6/12 without glasses           Shall be free from colour blindness. (iii)For clerical staff and technical hands. Distant vision. Better eye  Near vision. Worse eye." 54 3.The contention of learned counsel for the appellants is that the expression shall be free from colour blindness"  is applicable  both to sub-clauses (i) and (ii) of  clause  (a) and not merely to sub-clause (ii).  It is on this basis that the  learned counsel for the appellants supported  the  non- appointment  of  the respondent on the ground  that  he  was colour  blind.   We are unable to  accept  this  contention. Reading  the above extract as a whole, it is clear that  the requirement  that the candidate should be free  from  colour blindness is only for the post of Drivers and traffic  staff in sub-clause (ii) and that does not apply to sub-clause (i) relating  to Constables, Head Constables and  Sub-Inspectors (Executive).   It  is obvious that the  disqualification  of colour  blindness has no application to subclause (iii)  and this  was  rightly not disputed by learned counsel  for  the appellants.   In  such a situation, the  applicability  (sic inapplicability) of the disqualification of colour blindness to sub-clause (i) is further supported by the fact that  the other  expression  "visual acuity (both eyes)  6/12  without glasses" is repeated identically in sub-clause (i) also even though  it  finds  place in subclause (ii).   If  the  words "shall be free from colour blindness" appearing in subclause (ii)  were  applicable  also to sub-clause  (i),  the  other expression "visual acuity (both eyes) 6/12 without  glasses" would not have been repeated in subclause (i) when it  finds place  in  sub-clause (ii).  That apart,  there  is  clearly discernible   basis  for  the  disqualification  of   colour blindness  for  persons  appointed as  Drivers  and  traffic staff, the nature of whose duties are different from that of a  Sub-Inspector (Executive).  The only contention  advanced in support of the appellants cannot, therefore, be accepted. 4.The  question  now  is of the nature  of  relief  which should be granted to the respondent in view of the fact that he was actually appointed in February 1988 after refusal  of stay in this matter by this Court.  The selections were made in  1978  and the other selected candidates  had  been  duly appointed  and were working for several years prior  to  the date  of actual appointment of the respondent in  1988.   In such a situation, the grant of back wages to the  respondent does not appear to be just and proper.  Learned counsel  for the  respondent in all fairness accepted this position.   We are  also of the opinion that even though the respondent  is entitled  to  the benefit of service for  the  earlier  part commencing from the date on which he should ordinarily  have been  appointed on being duly selected yet it would  not  be appropriate to treat the earlier period prior to the date of his actual appointment as a period to be reckoned as ’actual service’  if a period of actual service is prescribed  as  a necessary  qualification  for promotion.  We  also  make  it clear that the promotions already made of persons junior  to the  respondent  in the merit list on account  of  the  late

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appointment  of the respondent shall not be disturbed  as  a result of this relief granted to the respondent.  Subject to these  limitations, the entire earlier period commencing  on the date on which the respondent should have been ordinarily appointed  would  be  treated as a part  of  his  continuous service  for  all  other  purposes  including  the   retiral benefits and fixation of his seniority. 5.The appeal is dismissed subject to the modification  so made.   The respondent shall get costs from  the  appellants quantified at Rs 10,000.