Delhi High CourtRanjeet Kumar vs Union Of India & Ors. on 25 August, 2022*        IN THE HIGH COURT OF DELHI AT NEW DELHI\n     %                                    Reserved on:   July 21, 2022\n                                     Pronounced on:    August 25, 2022\n\n+        W.P.(C) 2425/2021 & CM APPL.7064/2021 & 28324/2021\n         RANJEET KUMAR                                     ..... Petitioner\n                     Through:           Mr. Siddharth Mittal, Ms. Shilpa\n                                        G. Mittal, Mr. Prabhat Kumar &\n                                        Mr. Kshitiz Chauhan, Advocates\n                            Versus\n\n         UNION OF INDIA & ORS.                          .... Respondents\n                       Through:         Ms. Leena Tuteja, Advocate\n\n         CORAM:\n\n         HON'BLE MR. JUSTICE SURESH KUMAR KAIT\n         HON'BLE MR. JUSTICE SAURABH BANERJEE\n\n                            JUDGMENTSURESH KUMAR KAIT, J1.       The present petition has been preferred by the petitioner seeking\nquashing of orders dated 24.07.2020 and 16.12.2020; vide which he has\nbeen terminated from service.2.       The case of the petitioner is that pursuant to respondents inviting\napplications, he applied for the post of Constable in Central Armed\nPolice Force (CAPF) and after being successful in the written\nexamination; he appeared for medical examination before the Medical\nBoard at FTR, HQR, SSB, Patna, wherein he was found unfit on theW.P.(C) 2425/2021                                              Page 1 of 19ground of "Hydrosol Rt Testis".       However, the petitioner was re-\nexamined by the Appellate Medical Board and was found fit for service\nand was accordingly selected in the recruitment process and\nprovisionally appointed to the post of Constable/GD vide letter No.E-\n32023/ES/Appoint letter/ Joint Recruit/ Constable-2011/ 2017-5963\ndated 30.05.2014.3.    Further averred by the petitioner that he received a Show Cause\nNotice dated 03.12.2016 alleging that he had suppressed the fact of\nhaving „Defective Colour Vision‟ when he appeared for medical\nexamination in Jaipur and got Shape-1 certificate. In his reply to the\naforesaid Show Cause Notice, petitioner stated that according his medical\nexamination of the year 2015-16, he was in Shape-I category; that the\nreport of Annual Medical Examination of the year 2015 was never\nsupplied to him; and only by virtue of this Notice, he has been informed\nthat he is suffering from „Defective Colour Vision‟. Thereafter,\nrespondents vide order dated 24.10.2016 cancelled the confirmation of\nhis probation period. In furtherance to Show Cause Notice dated\n03.12.2016, respondents vide order dated 02.02.2017 imposed penalty of\ndeducing 03 days‟ salary and he was sent for medical examination on\n29.09.2018, wherein the Medical Board placed him in Shape-2 category\nfor a period of two years. Thereafter, petitioner appeared before the Eye\nBoard (RME) IG, Medical, Composite Hospital, CRPF, Jharoda Kala and\nhe was put under Shape-5 category.4.    Respondents thereafter issued another Show Cause Notice dated\n09.03.2020 asking petitioner as to why his services be not terminatedW.P.(C) 2425/2021                                           Page 2 of 19under Rule 25 sub rule (2) and Rule 26 sub rule (4) of the CISF Rules,\n2001 for not furnishing correct information. Petitioner was also informed\nthat his service condition is hit by Circular dated 27.02.2013 issued by\nMinistry of Home Affairs vide F.No.1-45024/1/2008-Pers.II, which\nstipulates that any person suffering from defective colour vision or\ncolour blindness will not be recruited. In reply to the aforesaid Show\nCause Notice, the petitioner vide reply dated 25.04.2020 stated he has\nnever violated any CISF Rules and the above said Circular dated\n27.02.2013 issued by the Ministry of Home Affairs is not applicable to\nhim, as he was recruited prior to coming of the aforesaid Rule in force.\nHowever, the respondents vide order dated 24.07.2020 terminated\nservices of petitioner in terms of provision of Sub Rule (2) of Rule 25 of\nthe Central Industrial Security Force Rule, 2001.5.     Being aggrieved by his termination, petitioner filed an appeal\nbefore the competent authority, which was disposed of by respondent\nNo.3 vide order dated 16.12.2020 by treating it as a representation. The\nafore-noted orders dated 24.07.2020 and 16.12.2020 are challenged in\nthe present petition.6.    During the course of hearing, learned counsel appearing on behalf\nof petitioner submitted that by virtue of Circular No. I-45024/2/2013-\nPers-II dated 28.05.2013, Ministry of Home Affairs has issued the\nguidelines for recruitment of CAPF which stipulated that the services of\nperson recruited after 27.02.2013 and suffering from defective colour\nvision or colour blindness would be terminated. However, these\nguidelines would come into effect in prospective manner and since theW.P.(C) 2425/2021                                            Page 3 of 19petitioner was recruited in the year 2011; and the respondents first\narbitrarily increased his probation period and thereafter, cancelled the\nconfirmation of the probation period of petitioner and clandestinely\nremoved him from service. Therefore, the impugned orders deserve to be\nquashed. Learned counsel placed reliance upon decision of this Court in\nAbhilash Kumar Vs. Union of India 2018 SCC OnLine Del 11923 to\nsubmit that the recruitments made prior to aforesaid circular dated\n28.05.2013 would remain valid and such person shall be shifted/ posted\nto such a position where the public safety is not involved. It was urged\nthat the respondents have terminated the petitioner from service by\ntreating the date of appointment as the date of recruitment, whereas the\nterm „recruitment‟ and „appointment‟ are not similar. In support of above\nsubmission, reliance was placed upon decision in Basant Lal Malhotra\nVs. State of Punjab and Ors. AIR 1969 PH 178.7.    Learned    counsel   for   petitioner   next   submitted   that   the\ndepartmental appeal preferred by the petitioner under the provisions of\nCISF Rule, 2001 against his termination has been treated as\nrepresentation and arbitrarily decided by respondent No.3, without even\naffording an opportunity of hearing. It was also submitted that petitioner\nnever suffered from any medical condition or disease and he was given\noffer for appointment by respondent No.3 after he was declared\nmedically fit by the Medical Board after thorough examination. Learned\ncounsel submitted that the medical standards prescribed in the\nrecruitment brochure requires the candidate to possess high colour vision,\nwhich was duly tested during the medical examination and petitioner wasW.P.(C) 2425/2021                                            Page 4 of 19found fit. It is claimed that in the year 2015-16, petitioner was in Shape-I\ncategory and respondent No.3 has failed to appreciate that the medical\nreports and annual confidential report suggest incongruity in the reports\nof the doctor. Also, that respondent No.3 has committed an error in\ntreating the petitioner to be under probation, though he has been working\nfor the last more than 6 years, especially when his probation period was\nnever formally extended and even as per recruitment rules the period\ncannot be extended more than twice the original probation period.8.    In support of above submissions, reliance was placed upon\ndecision of this Court in Sudesh Kumar Vs. Union of India & Anr. 2011\nSCC OnLine Del 1449 wherein after considering the long service, this\nCourt had directed the respondent therein to not invalidate petitioner\ntherein on account of colour blindness. Reliance was also placed upon\ndecision of Hon‟ble Supreme Court in Dharamvir Singh Vs. Union of\nIndia & Ors. (2013) 7 SCC 316; Veerpal Singh Vs. Secretary, Ministry\nof Defence (2013) 8 SCC 83 and Union of India & Ors. Vs. Manjeet\nSingh (2015 12 SCC 275 in support of petitioner‟s case to submit that\nthere exists a presumption in favour of the military personnel as\ndisability attributable to service, if at the time of acceptance of service,\nthe person was found medically fit.9.    The learned counsel appearing on behalf of respondents on the\nother hand submitted that the petitioner was issued provisional offer of\nAppointment for CISF Group Commandant, CISF Group HQRS Patna\n(Bihar) letter No. E- 32023/EZ/Appointment letter /joint recruitment/\nConstable- 2011/14/5963 dated 30.05.2014 for the post of Constable/GDW.P.(C) 2425/2021                                              Page 5 of 19wherein at SI.No.02 (iv & v) it was clearly mentioned that the appointing\nauthority may discharge him from service at any time during the period\nof probation. The petitioner unconditionally accepted his term of\nselection and after completion of his basic training, he was transferred to\nCISF 8th Batallion Jaipur (Raj) on 14.06.2015, wherein in the year 2015\nduring his medical examination, the medical officer declared the\npetitioner   as   (SHAPE-2S1H1A1P1E2          T-12)    for   "DEFECTIVE\nCOLOUR VISION".10.   According to respondents, the petitioner suppressed the fact that he\nwas already placed under Low Medical Category i.e. "Defective Colour\nVision" in Annual Medical Examination (AME) -2015, however, at the\ntime of his examination in the year 2016 before the Medical officer,\nCommunity Health Centre, Amer, Jaipur, Rajasthan, managed SHAPE-I\ncertificate. Accordingly, on the basis of Shape-I certificate, the probation\nperiod of petitioner was considered to have been completed and he was\nconfirmed in the rank of Const./GD w.e.f. 12.07.2016.11.   The respondents have averred that the Community Health Centre\nAmer, Jaipur (Rajasthan) was unaware with the AME Certificate of the\npetitioner as SHAPE-2 category i.e. S1H1A1P1E2 for "DEFECTIVE\nCOLOUR VISION" for the year 2015, so the AME report issued as\nSHAPE-I by the Community Health Centre Amer, Jaipur (Rajasthan)\nwas cancelled by the Medical Authority of Primary Health Center, Jaipur\nvide their letter No. 2016-17/613 dated 07.10.2016. Accordingly, vide\nletter dated 24.10.2016, petitioner‟s completion of probation and\nconfirmation was cancelled. Vide Show Cause Notice dated 03.12.2016,W.P.(C) 2425/2021                                              Page 6 of 19petitioner was called upon to submit his reply, which was considered and\nfound to be unsatisfactory and thereby rejected vide order dated\n02.02.2017 with the punishment to "pay fine equivalent to 03 days pay".12.   Learned counsel for respondents next submitted that thereafter the\nStanding Medical Board conducted petitioner‟s medical examination on\n29.09.2018 at CISF Hospital, Mahipalpur wherein he has been\ncategorized as Low Medical Category i.e. S1H1A1P1E2 for a period of\ntwo years. Thereafter, petitioner‟s case was again taken up by the\nDirector, Medical Board, CISF HQrs New Delhi and his medical\nexamination was held on 06.02.2020 at Eye Board IG, Medical\nComposite Hospital, CRPF, Jharoda Kalan, New Delhi and he was\ndeclared as SHAPE-V.13.   The petitioner was accordingly issued a Show Cause Notice dated\n09.03.2020 by the competent authority to show cause as to why his\nservices be not terminated/ dismissed and stated that if the petitioner\nwishes to make any written representation against the Show Cause\nNotice, he may do so. It is averred that petitioner submitted his reply\ndated 23.06.2020, which was found unsatisfactory and respondent vide\norder dated 24.07.2020, terminated his services. Against the order of\ntermination, petitioner preferred an appeal dated 31.08.2020, which was\nconsidered and rejected by the competent authority vide order dated\n16.12.2020. Learned counsel appearing on behalf of respondent\nempathically submitted that there is no merit in the present petition and it\ndeserves to be dismissed.14.   In rebuttal, learned counsel for petitioner submitted thatW.P.(C) 2425/2021                                              Page 7 of 19respondents No.3 & 4 in purported exercise of power under sub rule (2)\nof Rule 25 of CISF Rule, 2001 has arbitrarily issued orders dated\n16.12.2020 and 24.07.2020 and dismissed the petitioner from service by\nwrongly relying upon the Circular issued by Ministry of Home Affairs\nvide F No.1-45024/1/2008-Pers.II dated 27.02.2013.15.   Upon hearing learned counsel for the parties and on perusal of\nmaterial placed before this Court, we find that petitioner was\nprovisionally appointed to the post of Constable in CAPF on 30.05.2014\nand after undergoing basic training at KRTC, Mundli, he was transferred\nto CISF 8th Reserve Battalion, Jaipur, Rajasthan. Vide order bearing No.\nS.E.-30013/12/CISF/8th      Battalian/Dasta/Par./2016-11348           24.10.2016,\npetitioner‟s probation was cancelled holding as under:-"             OFFICE OF HEAD COMMANDANT\n                    Central Industrial Security Force\n                           (Ministry of Home Affairs)\n                                        CISF 8th Reserved Battalian\n                                        Post-Amer, Jaipur RajasthanS.E.-30013/12/CISF/ 8th Battalian/Dasta/Par./2016-\n             11348\n                                                     Date:24/10/2016\n                                  ORDER\n\n             Subject: Cancellation of completed probation period.It has been ordered that medical certificate of Shape-I\n      category issued by the Doctor of General Hospital, Amer,\n      Jaipur, Rajasthan to CISF No. 140501317 Constable/GD/\n      Ranjeet Kumar posted in this Battalian that Senior Medical\n      Officer Community Health Centre, Amer, Jaipur, has been\n      cancelled by the Head Medical Officer, Community Health\n      Centre, Amer, Jaipur vide letter No. ORG./2016-17/613 dated\n      07.10.2016.W.P.(C) 2425/2021                                                     Page 8 of 1902. Therefore, on the basis of Sr. No. 8 of Battalian service\n          order part-l Sr. 48/2016 dated 17.08.2016 certifying\n          completion of probation period to CISF No. 140501317\n          Constable GD Ranjeet Kumar is cancelled due to\n          abovementioned medical certificate of Shape-I category of the\n          year 2016.XXXX                                                             "16.       Thereafter, on 03.12.2016, petitioner was served with Show Cause\nNotice, relevant portion of which reads as under:-"                 OFFICE OF HEAD COMMANDANT\n                          Central Industrial Security Force\n                            (Ministry of Home Affairs)\n\n                                            CISF 8th Reserved Battalian\n                                            Post-Amer, Jaipur RajasthanB-15014/CISF/8th BattalianjA.B.(J)/Part/N-37/ Ranjeet\n                 2016 -12491\n                                             Date: 03/12/2016\n\n                        SHOW CAUSE NOTICE\n\n                 Disciplinary action against CISF No. 140501317\n                 Constable /GD Ranjeet Kumar, 8th Battalian Reserved\n                 Force Jaipur (Rajasthan) has been proposed. The detail\n                 of\n                 proposed charges for the action is mentioned herein.CHARGE\n\n                 CISF No. 140501317 Constable/GD\n                 Ranjeet Kumar was declared Shape-2\n                 [SlHIA1P1E2 (T-12) for defective colour\n                 vision by the Medical Officers in the annual\n                 medical examination conducted in the year\n                 2015. Defence Personnel has got himself\n                 medical examined and got a Shape-l\n                 certificate in the annual medical\n                 examination 2016 without disclosing the\n                 report of year 2015. Due to the above said\n                 act of the defence personnel he is liable forW.P.(C) 2425/2021                                                         Page 9 of 19negligence, indiscipline and willful\n             disobedience of the order passed by the\n             Senior Officers. Therefore, the charge.02. By this CISF No. 140501317\n             Constable/GD Ranjeet Kumar is granted 10\n             days time to present his defence by written\n             mode.XXXX                                    "17.   The respondents in Final Order bearing No. B-15014/ CISF/8th\nBattalion/ A.B.(J)/Part/N-37/Ranjeet/2017-922 dated 02.02.2017 refuted\nthe claims made by the petitioner in his reply and held as under:-"03. Therefore I the undersigned, after perusing the show\n       cause notice and the defence presented by the defence\n       personnel vide written application dated 27,12.2016, finds\n       that the defence personnel was declared Shape-2\n       (S1H1A1P1E2 (T-12) for defective colour vision while he\n       was posted in 8th Batallion Jaipur by the CISF Hospital\n       arid since the test of colour vision is done in front of\n       Doctor and the defence personnel therefore, both the\n       persons are aware of the test result. Defence personnel\n       has on its own Shape-1 certificate by getting himself tested\n       in the year 2016 without disclosing the result of\n       "S1H1A1P1E2 (T12) for defective colour vision" of the\n       year 2015 to the relevant doctor in the year 2016 and\n       further presented that certificate to the department.\n       Therefore the defence personnel is found guilty for the\n       letter No. (1249) dated: 03.122016. Defence personnel is\n       liable for the appropriate punishment for the above act but\n       on seeing the service and the future of the accused defence\n       personnel, I the undersigned after adopting humble attitude\n       exercise power under Rule 32 sub-rule 1 and Rule 34 of\n       Part-X of CISF Rule-2001 ordered that C1SF No.\n       140501317 Constable/ GD Ranjeet Kumar should be\n       penalized by detecting the salary of 3 days."W.P.(C) 2425/2021                                                Page 10 of 1918.   Pertinently, the basis for issuance of aforesaid termination order\ndated 24.10.2016; show cause notice dated 03.12.2016 and final order\ndated 02.02.2017 is the AME -2015 report dated 01.07.2015 (Annexure\nR-2), wherein petitioner has been declared Shape-II S1H1A1P1E2 for\nDefective Colour Vision. Also, the Review Medical Board on 29.09.2018\nhas opined as under:-"In view of the above specialist opinion,\n          investigation, medical examination and instruction\n          issued vide directorate medical/CISF message\n          No.M-20015 (SMB-2)/CISF/Med. Dir/Saket/2016-\n          810 dated 16.08.2016, the board recommends him\n          to place in LMC S1HlA1PlE2 (P) wef 29..09.2018\n          for two years."19.   Thereafter, pursuant to respondent‟s letter dated 24.12.2019,\npetitioner appeared before the Eye Board (RMED) IG, Medical,\nComposite Hospital, CRPF, Jhaorda Kalan on 06.02.2020, who opined as\nunder:-"A case of Defective colour vision\n            O/E Defective Colur Vision CP -IV (Four)"20.   The respondents thereafter vide Show Cause Notice dated\n09.03.2020 called upon the petitioner to make a representation within 30\ndays as to why in terms of Circular baring No. I- 45024/ 1/2013-Pers-I,\ndated 28.05.2013 issued by Ministry of Home Affairs, his services may\nnot be terminated.21.   Against the aforesaid Show Cause Notice, the petitioner is\nclaiming to have filed an appeal dated 23.06.2020, which according toW.P.(C) 2425/2021                                          Page 11 of 19him was wrongly treated as a Representation. A perusal thereof reveals\nthat it holds the subject as "Submissions of representation against the\nshow cause notice" and was in reply to Show Cause Notice dated\n09.03.2020. According to respondents, the petitioner had preferred an\nappeal under CISF Rules, 2001 which could not have been treated as a\nrepresentation. So, the contention of petitioner that it was not treated as\nan appeal, cannot be accepted. The said representation of petitioner was\nfound unsatisfactory by the respondents and same was rejected and\npetitioner was terminated from service by Termination Order bearing No.\nE-42099/CISF/DMRC(D)/ Dasta /2020-13669 dated 24.07.2020.22.   Relevantly, respondents have heavily relied upon Circular baring\nNo. I- 45024/ 1/2013-Pers-I, dated 28.05.2013 issued by Ministry of\nHome Affairs for termination of petitioner. The aforesaid circular reads\nas under:-"                           Government of India\n                            Ministry of Home Affairs\n                                Per-II Desk\n                                    ****\n\n             Subject:       New Policy Guidelines on recruitment/\n                            retention in respect of Central Armed\n                            Police Forces (CAPFs) and Assam rifles\n                            (ARs) personnel having defective colour\n                            vision including colour blindness -\n                            regardingReference BSFs UO No.29/40 (WO)/2013-stt/10399 dated\n             18.04.2013 on the above mentioned subject seeking clarification\n             whether the personnel recruited between the date 18.05.2012 to\n             27.02.2013 and at later stage detected to be suffering from colour\n             blindness are also be boarded out or will be retained in\n             service.W.P.(C) 2425/2021                                                     Page 12 of 192.      The matter has been considered in this Ministry, it is\n            clarified that, personnel recruited earlier to 27.02.2013 would not\n            be boarded out. But any person recruited thereafter (i.e after\n            27.2.2013) if found colour blind even after recruitment, shall\n             promptly be boarded out of service.Sd/\n                                                           (R.P Sati)\n                                Under Secretary to the Govt. of India\n                                                       Tel-23092343\n            DG, BSF : (Shri Dharmendra Pareek, DIG (Estt)\n            ________________________________________\n            MHA UO No.I-45024/1/2013-Pers-II dated 28th May\n            2013"23.   Petitioner has pleaded that the aforesaid Circular dated 28.05.2013\nissued by the Ministry of Home Affairs is not applicable to his case, as\nthe said circular came into force in 2013 whereas he was recruited in the\nyear 2011. On the other hand, respondents have pleaded that the said\ncircular stipulates that those who have been recruited in CISF after\n27.02.2013, if found colour blind, even after recruitment, shall be\nboarded out of service.24.   Petitioner has placed reliance upon decision of this Court in\nAbhilash Kumar (Supra) to submit that the recruitments made prior to\naforesaid circular dated 28.05.2013 would remain valid and such person\nshall be shifted/ posted to such a position where the public safety is not\ninvolved. In the said decision, a Division Bench of this Court in a writ\npreferred by 16 petitioners, who pursuant to an advertisement in 2015\nand after going through selection process in the year 2016, were offered\nthe appointment in the year 2017, had assailed their termination, had\nobserved upon the Circular dated 28.05.2013 issued by the Ministry ofW.P.(C) 2425/2021                                                    Page 13 of 19Home Affairs as under:-"12. The aforesaid Guidelines leave no manner of doubt\n       that any person who has a defective vision or is colour\n       blind, is ineligible for recruitment in the CAPF or Assam\n       Rifles. In fact, if any person is wrongly recruited despite\n       having the aforesaid defects, he is to be promptly removed\n       from service as soon as the defect is noticed and\n       appropriate disciplinary action for major penalty is\n       required to be initiated against the Doctor who had\n       declared him „fit‟.13. The aforesaid Guidelines are not under challenge\n       before us and therefore, on this ground alone, the\n       challenge of the petitioners is liable to fail as it has neither\n       been urged before us that the petitioners are not suffering\n       from Colour Blindness, nor it has been contended that the\n       aforesaid Guidelines are inapplicable to them.\n       XXXXXX15. Per contra, the facts of the present case clearly show\n       that the petitioners were recruited after a condition had\n       been introduced in the Policy Guidelines dated 27.02.2013\n       specifically prohibiting the recruitment of persons\n       suffering from Colour Blindness or defective vision. Even\n       otherwise, we are of the view that once the respondents\n       have specifically prescribed a set of medical standards for\n       recruitment, it is not open to the Court to tinker with the\n       said standards or to hold that the action of the\n       respondents in terminating the services of the petitioners,\n       who admittedly did not meet the criteria prescribed in the\n       Guidelines, is in any manner illegal."25.   In Abhilash Kumar (Supra), the petitioners were appointed after\ncoming into force the Circular dated 28.05.2013 issued by the Ministry\nof Home Affairs and had not challenged the said circular. However, the\nCourt had in unequivocal terms held that it is not open for the court to\ntinker with the medical standards for recruitment. Hence, reliance upon\ndecision in Abhilash Kumar (Supra) is of no assistance to the case ofW.P.(C) 2425/2021                                                    Page 14 of 19petitioner.26.   The petitioner has also relied upon decision in              Basant Lal\nMalhotra (Supra) to submit that the respondent has terminated the\npetitioner therein from service by treating the date of appointment as the\ndate of recruitment, whereas the term „recruitment‟ and „appointment‟\nare not similar. In Basant Lal Malhotra (Supra), the Division Bench of\nPunjab and Haryana decided the writ petition preferred by a retired\nDistrict and Sessions Judge for refixing his pension under Punjab Service\nCivil Rules, wherein the period of service rendered and date of\nrecruitment were under consideration. The Division Bench gave\ndissenting views. Justice P.D.Sharma referred the matter to the larger\nBench, whereas Justice P.C.Jain held as under:-"11. After giving my thoughtful consideration to all the\n         relevant provisions of the subject, I am led to an\n         irresistible conclusion that the terms recruitment and\n         „appointment are not synonymous and connote different\n         meanings. The term „recruitment‟ connotes and clearly\n         signifies enlistment, acceptance, selection or approval\n         for appointment and not actual appointment or posting in\n         service while appointment means an actual act of posting\n         a person to a particular office. In this view of the matter,\n         the word recruited existing in rule 4.2 of the Punjab Civil\n         Services Rules, Volume II, does not mean actual\n         appointment and the petitioner should be deemed to have\n         been recruited on the 26th of March, 1936."27.   In Basant Lal Malhotra (Supra), the said case was related to\nPunjab Service Civil Rules, whereas the present case relates to Circular\ndated 28.05.2013 issued by the Ministry of Home Affairs relates to\nCentral Armed Police Forces (CAPFs) and Assam rifles (ARs), where-W.P.(C) 2425/2021                                                  Page 15 of 19under, the petitioner was terminated from service during his probation\nperiod and his confirmation was recalled in view of his medical\ncondition. The observations made in Para-11 of Basant Lal Malhotra\n(Supra) make it abundantly clear that recruitment is a condition\nprecedent to appointment. In the present case, services of petitioner were\nterminated while he was under probation, which is a condition precedent\nto his appointment. Hence, this case is also of no help to the case of\npetitioner.28.   In Sudesh Kumar (Supra), the petitioner had joined the services in\nthe year 2003 on the post of Constables and the learned Single Judge of\nthis Court had elaboratively dealt the aspect of colour blindness.\nHowever, at the relevant time policy Circular dated 28.05.2013 issued by\nthe Ministry of Home Affairs was not in force and so, this case is of no\nhelp to the case of petitioner.29.   The petitioner has also placed reliance upon decisions in\nDharamvir Singh (Supra); Veerpal Singh (Supra) and Union of India\n(Supra).30.   In Dharamvir Singh (Supra), the petitioner, who was a Sepoy in\nArmy in the year 2005 and was discharged from service on account of\n20% disability, had sought pension. The Hon‟ble Apex Court in the facts\nand circumstances of the said case had allowed the petition while\nobserving that a member of armed forces is presumed to be of sound and\nmental condition upon entering in service if there is no entry or record to\nthe contrary. However, has also observed that in the event of his\ndischarge from service on medical grounds, the onus to proof is on theW.P.(C) 2425/2021                                             Page 16 of 19employer.31.     In Veerpal Singh (Supra), the Hon‟ble Supreme Court had dealt\nwith a case where the appellant, who was enrolled in Army, was\ndischarged from service and his claim for pension was turned down for\nthe reason he was found suffering from „schizophrenic reaction‟, which\nis not attributable to military service. The Supreme Court had after\nanalyzing of his medical reports held that the courts are extremely loath\nin interfering with the opinion of the medical experts but the Tribunal\nought to have referred the case to the Review Medical Board or\nreassessing the medical condition of petitioner therein and directed for\nsame.32.     In Union of India (Supra), the Supreme Court had subscribed the\n\nviews proclaimed in Dharambir Singh (Supra) and Rajbir Singh\n\n(Supra).33.     There is no dispute to the ratio of law laid down by the Supreme\nCourt in the afore-noted cases. There is no dispute a personnel of armed\nforces is presumed to be of sound and mental condition at the time of his\njoining the service and if he is discharged from service on account of\ndisability, the onus is upon the employer to prove it. In the present case,\nthere are different medical reports on record refuting the claims of\npetitioner.34.     It is not the case of petitioner that he was not given the opportunity\nto prove his ability. On the other hand, petitioner was examined by the\nReview Medical Board on 29.09.2018, which noted that "the boardW.P.(C) 2425/2021                                               Page 17 of 19recommends him to place in LMC S1H1A1P1E2 (P) wef 29.09.2018.\nEven thereafter, the petitioner appeared before the Eye Board on\n06.02.2020, which opined that it is "a case of Defective colour vision\nO/E Defective Colur Vision CP-IV".35.   The petitioner was recruited to the post of Constable/GD vide\nappointment letter dated 30.05.2014. It is pertinent to mention here that\nas per the material on record, the petitioner was in Shape-2 category i.e.\n"defective colour vision" as per the Annual Medial Examination of the\nyear 2015. Then he appeared before AME-2016 at Jaipur, Rajasthan and\ndid not disclose Shape-2 of AME-2015. Consequently, got Shape-I\ncategory. Thereafter, his probation was confirmed on 17.08.2016. But\nafter it came to the notice of respondents that the Shape-1 category was\nwrongly issued to the petitioner, vide order dated 07.10.2016, Shape-1\ncategory was cancelled and consequently, vide letter dated 24.10.2016,\npetitioner‟s completion of probation and confirmation was also\ncancelled. Thereafter, the Standing Medical Board conducted petitioner‟s\nmedical examination on 29.09.2018 at CISF Hospital, Mahipalpur,\nwherein he was categorized as Low Medical Category i.e. Shape-2 for a\nperiod of two years. The Director, Medical Board, CISF (HQs), New\nDelhi again took up the petitioner‟s case and examined him on\n06.02.2020 at Eye Board IG, Medical Composite Hospital, CRPF,\nJharoda Kalan, New Delhi and declared him in Shape-5. Thus, he\ncontinued on probation.36.   There is no dispute to the position that by Circular dated\n28.05.2013 issued by the Ministry of Home Affairs, it has been clarifiedW.P.(C) 2425/2021                                            Page 18 of 19that the "personnel recruited earlier to 27.02.2013, would not be\nboarded out. But any person recruited thereafter (i.e. after 27.2.2013) if\nfound colour blind even after recruitment, shall promptly be boarded out\nof service". It is also not disputed that in the year 2011, petitioner had\napplied for recruitment on post of Constable; the petitioner was fully\nexamined by Medical Officer on 22.07.2011; and provisionally appointed\nto the said post on 30.05.2014. That is to say, his appointment is pursuant\nto coming into force the Circular dated 28.05.2013 by the Ministry of\nHome Affairs and his appointment conditions shall be governed\nthereunder.37.   In view of the aforesaid factual position of this case, we find that\nthe orders dated 16.12.2020 and 24.07.2020 do not call for any\ninterference by this Court.38.   The     present   petition   is   accordingly   dismissed.   Pending\napplications are disposed of as infructuous.(SURESH KUMAR KAIT)\n                                                      JUDGE\n\n\n\n                                                (SAURABH BANERJEE)\n                                                      JUDGE\n\nAUGUST 25, 2022\nrW.P.(C) 2425/2021                                             Page 19 of 19