Through this single order we intend to decide this Intra Court Appeal as well as connected Intra Court Appeals, bearing Nos.163/2015, 23/2017, 27/2017, 28/2017, 29/2017, 38/2017, 54/2017 and W.P. No.3617/2015 having commonality of law and facts inasmuch as in these Intra Court Appeals the appellants have assailed the orders passed by the learned Judge-in-Chamber whereby the Writ Petitions filed by the respondents challenging their ineligibility for appointment against the post of Constable in the Police Department on account of colour blindness, were accepted whereas in W.P. No.3617/2015 the petitioner has prayed for same relief granted to the similarly placed persons through order, dated 03.09.2015, passed in W.P.No.1945 of 2015.
2. Learned Law Officer, representing the appellants, contends that since the respondents sought their appointment against the post of Constable in Police Department they were bound to fulfill the eligibility criteria; that the respondents, while admitting in their writ petitions that they suffered from colour blindness, prayed for their appointment on humanitarian grounds; that when the Medical Board declared the respondents medically unfit for appointment in the Police Department, they were not entitled for any relief from this court; that as per Rule 12.16 of the Police Rules, 1934 a person who is physically or visually disabled cannot be inducted in Police Department; that the learned Judge-in-Chamber, while passing the impugned orders, ignored the revised conditions enshrined in Circular No.SO(H&D)1-7/65, dated 14.09.1965, issued by the Government of Pakistan as well as the report of the Civil Surgeon; that the objections taken by the appellants in their report and para-wise comments were not been attended to by the learned Judge-in-Chamber while passing the impugned orders; that the Medical Superintendent, DHQ Hospital, Rawalpindi vide letter bearing No.13536/DHQ Hospital, Rawalpindi, dated 13.07.2015, opined that the respondents were not eligible for appointment against the post of Constable as they did not fulfill the eligibility criteria set out in Circular No.SO(H&D)1-7/65, dated 14.09.1965; that bonafide on the part of the authorities in the Health Department is manifest from the fact that the Medical Superintendent, District Headquarters Hospital, Rawalpindi through letter bearing No.11871/DHQ Hospital Rawalpindi, dated 25.06.2015, constituted a Board comprising of Assistant Professor of Eye, RMC/Benazir Bhutto Hospital Rawalpindi, Senior Registrar Eye, Holy Family Hospital Rawalpindi, Eye Specialist DHQ, Hospital Rawalpindi and District Surgeon, DHQ Hospital, Rawalpindi for second opinion which examined 44 candidates out of which 9 were declared fit whereas the rest were declared unfit and that since the new entrants in the Police Department are the first line of defence in the prevalent law and order situation in the country, the induction of persons with colour blindness would not only affect the overall output of the Police Department but would also render them handicapped to respond promptly in the event of any untoward incident.
3. On the other hand, learned counsel for the respondents, while defending the impugned orders, state that eligibility for induction in Police Department as Constable is governed under Rule 12.16 of Police Rules, 1934, thus, no independent certificate was required, hence, the findings of the Civil Surgeon declaring the present respondents as medically unfit were rightly brushed aside by the learned Judge-in-Chamber . Further submits that in compliance with the orders of the learned Judge-in Chamber , some of the respondents after joining their duties have already served the department for more than three years without any complaint from any quarter . Lastly submits that since the Police Rules 1934 are silent on the point of colour blindness the respondents could not be declared ineligible on account of said deficiency .
4. While exercising his right of rebuttal, learned Law Officer submits that ineligibility of respondents is crystal clear from the contents of report of Medical Board, dated 25.06.2015, coupled with their request contained in their representations for appointment on humanitarian grounds.
5. We have heard learned counsel for the parties at considerable length and have also gone through the documents, appended with these appeals as well as those forming part of the writ petition(s) in addition to the decisions referred at the bar .
6. It is admitted position that the standard of physical health for new entrants in the government service is governed under Notification bearing No.SO (H&D) 1-7/65, dated 14.09.1965, issued by the Health Department, Government of erstwhile West Pakistan, addressed to all the Directors Health Services of Regions and Administrators/Medical Superintendents of Special Institutions/Hospitals in erstwhile West Pakistan. Clause 6 of said Notification relates to visual standards for new entrants in government service which for convenience of reference is reproduced herein below:- "6. VISUAL STANDARD.
(i) Civil Service.
The distant vision is not less than 6/9 in one and 6/18 in the other eye without glasses. Near vision not less than J- I.
(ii) Police Department "Distant V ision 6/9 in each eye without glasses. Near vision as in Civil Service.
They should have good muscle-balance, visual fields and colour vision , night vision and binocular vision."
(emphasis provided)
(iii)........."
A cursory glance over the afore-quoted clause shows that in addition to the standar ds laid down for new entrants in civil service special criteria has been set down for selectees in Police Department. According to the afore-quoted sub clause (ii) beside other requirements it has been mandated that colour vision of the selectee should be upto the mark.
7. Admittedly , the respondents are suffering from colour blindness which according to Oxford Advanced Learner 's Dictionary , (NEW 9 Edition) means "Unable to see the difference between some colours, especially red and green ". Further , the said term as per Chambers English Dictionary (7 Edition) means "Unable to distinguish some colours from others, or to see them at all." In view of the said definitions, colour blindness connotes to a discrepancy of a person to differentiate between different colours. There would be nobody denying the fact that the Police has a very important role in the society , hence, the Law enforcement is the group of people tasked with the prevention of crime and apprehension of offenders. As part of their duties, the Police Officers have four majorth th responsibilities viz. enforcing laws; preventing crimes; responding to emergencies and providing support services.
The crime prevention has been one of the primary mandates of police organization since the establishment of the Police agency . The Police agencies relied on three core operational strategies for preventing and controlling crime viz. random preventive patrol, rapid response to call-for-service from citizens and investigation of criminal offenses.
In our humble view, in view of the important role of the Police in the society , the issue of colour blindness would definitely be an impediment in the way of performance of their duties by the persons suf fering from said condition.
8. A bird's eye view of the impugned orders shows that the learned Judge-in-Chamber while deciding the matter mainly relied upon the fact that since there was no mention of colour blindness in the relevant rules, the said deficiency could not be used against the respondents. Perhaps, while holding so, the learned Judge-in-Chamber did not consider that if the intention of the legislator was to yoke new entrants in the Police Department with new selectees in general cadre in respect of physical and visual standards perhaps there was no necessity to fix additional standards of vision beside those applicable to the new entrants in civil service. At the cost of repetition, it is reiterated that colour blindness being an off-shoot of colour vision cannot be taken lightly as it would hinder an individual to perform his duties as Constable in Police department.
9. During the course of arguments, learned counsel appearing on behalf of the respondents has defended the findings of learned Judge-in-Chamber that when colour blindness/squint eye is not considered as short fall in respect of the new entrants in civil service, the respondents could not be declared ineligible mere on account of colour blindness or squint eye. Perhaps, learned counsel for the respondents has argued so in oblivion of clause 4 of the Notification, dated 14.09.1965, which for convenience of reference is reproduced herein below:- "4. Cases with squint will not be rejected if they satisfy the prescribed visual standard except in services where binocular use of eye is essential and which has been made clear below, but the candidates should get squint corrected if necessary by surgery before they can be declared fit for service."
According to the afore-quoted clause even a person with squint eye cannot enter the service until and unless he manages to remove the same by undergoing the requisite surgery .
10. In view of the importance of the issue, the Medical Superintendent, DHQ Hospital, Rawalpindi constituted a high powered Medical Board comprising of following doctors:- 1.Dr. Qamar Farooq, Assistant Professor of Eye, RMC/Benazir Bhutto Hospital Rawalpindi.Chairman 2.Dr. Rizwan SR Eye, Holy Family Hospital RawalpindiMember 3.Dr. Ali Abas Eye Specialist, DHQ Hospital RawalpindiMember 4.Dr. Ikram Ullah, District Surgeon, DHQ Hospital, RawalpindiMember After examining the respondents the Board came to the conclusion that they were not fit for appointment against the post of Constable. Such unequivocal findings of the Board, comprising of experts in the relevant field, could not either be substituted by the departmental authorities or by this Court while declaring the respondents as medically fit for appointment against the post of Constable.
11. It is imperative to note that the learned Judge- in-Chamber accepted the Writ Petitions mainly for the reason that during proceedings most of them crossed the upper age limit, thus, their cases required sympathetic consideration. In our view, the said fact could hardly be made a ground for acceptance of the Writ Petitions inasmuch as if a person does not fulfill the eligibility criteria he cannot be accommodated merely in view of sympathetic aspect of the matter . Reliance in this regard is placed on the case reported as Abdul Wahab and others. v . HBL and others (2013 SCMR 1383 ).
12. A cursory glance over the report and parawise comments, submitted in the Writ Petitions, brings it to the limelight that they specifically referred to order, dated 11.12.2014, passed by this Court in W.P. No.2345/2014 whereby the petition, filed by similarly placed persons challenging their ineligibility on account of colour blindness, was dismissed by this Court. Further, the said order also remained intact in ICA No.4/2015 as the same was disposed of 22.06.2015. While deciding the matter the learned Judge-in-Chamber has not uttered even a word about the said decision. It is well entrenched by now that when similar question has been decided by the High Court in some earlier matter, in case the Bench seized of the subsequent proceedings, comprising of same number of Hon'ble Judges, has contrary view the proper course is to refer the matter for hearing by a Larger Bench. Reliance in this regard is placed on the cases reported as Messrs Wak Limited Multan Road, Lahore v.
Collector Central Excise and Sales Tax, Lahore (Now Commissioner Inland Revenue, LTU, Lahore) and others (2018 SCMR 1474), Ardeshir Cawasjee v. Karachi Building Control Authority (1999 SCMR 2883) and Multilines Associates v. Ardeshir Cowasjee and 2 others (PLD 1995 SC 423). In the case of Multilines Associates (Supra) the Apex Court of the country while dealing with the preposition under discussion has inter-alia observed as under: - "18. In such circumstances, legal position which emerges is that the second Division Bench of the High Court should not have given finding contrary to the findings of the 1st Division Bench of the same Court on the same point and should have adopted the correct method by making a request for constitution of a larger Bench, if a contrary view had to be taken. In support reference can be made to the cases of the Provin ce of East Pakistan v Dr. Azizul Islam (PLD 1963 SC 296) and Sindheswar Ganguly v. State of West Bengal (PLD 1958 SC (Ind.) 337), which is a case of Indian jurisdiction. We therefore, hold that the earlier judgment of equal Bench in the High Court of the same point is binding upon the second Bench and if a contrary view had to be taken, then request for constitution of a larger Bench should have been made."
The said view was further reiterated in the case of Ardeshir Cawasjee (Supra) with the following observations: - "19. Before concluding the above judgment, we may refer to the conflict of views between the two judgments of this Court in the case of Abdul Razak v. Karachi Building Control Authority and others (PLD 1994 SC 512) (supra) and Multiline Associates v. Ardeshir Cowasjee and others (PLD 1995 SC 423) (also reported in 1995 SCMR 362)
(supra) noticed in the leave granting order which is to be resolved. The former case was decided on 31-3-1994 by a Bench comprising Ajaml Mian, Sajjad Ali Shah and Saleem Akhtar , JJ. (as then they were), whereas in the latter case judgment was rendered on 22-1-1995 by a Bench comprising Sajjad Ali Shah, C.J., Mir Hazar Khan Khoso and Muhammad Munir Khan, JJ. (as then they were). It appears that while deciding the latter case notice of the above earlier judgment of Abdul Razak was not taken though, according to Mr. Nairnur Rehman, the same was cited. It may be pointed out that a Bench of the same number of Judges of the same High Court, or of the Supreme Court, cannot deviate from the view of an earlier Bench ..."(emphasis provided)
If the validity of the impugned orders is adjudged on the touchstone of the afore-referred judgments of the Apex Court of the country there leaves no ambiguity that in case the learned Judge-in-Chamber was not convinced with the findings of another Bench, which earlier dismissed the Writ Petition filed by similar persons, the safer course was to refer the matter for constitution of Larger Bench.
13. While deciding the matter , the learned Judge-in-Chamber has referred to rule 10.64 of the Police Rules, 1934 to hold that a Medical Certificate regarding stout medical health of the selectee was required. We agree with the findings of learned Judge-in-Chamber to the extent that a Medical Certificate signed by the Civil Surgeon was the only requirement but the same was subject to his findings qua eyesight, speech and hearing of the selectee. While determining the fitness of a candidate in respect of eyesight a Civil Surgeon cannot bypass the standards set up in Notification, dated 14.09.1965, referred Supra. In this backdrop, the findings of learned Judge-in-Chamber cannot be upheld merely on the ground that when the respondents were found fit at the time of their medical test, they were eligible for appointment against the post of Constable despite having colour blindness.
14. Another important facet of the instant matter is that in the impugned orders the learned Judge-in Chamber has based his findings on the conditions mentioned in the advertisement. There is no denying the fact that under clause 5 of the advertisement it was mandatory for an applicant to be medically fit but the said fitness was to be adjudged in accordance with the Police Rules, 1934 coupled with the subsequent policies/notifications on the subject and when the respondents failed to qualify the test as determined under the Notification, dated 14.09.1965, they could not be held eligible on account of mere omission of the said Notifications/Rules from the advertisement.
15. As a necessary corollary to the discussion made in the fore-going paragraphs, we have no hesitation to hold that the respondents were not eligible for appointment against the post of Constable in Police Department on account of colour blindness/squint eye. Consequently , these appeals are accepted and the impugned orders passed by learned Judge-in-Chamber are set-aside with no order as to costs.
16. Insofar as connected Writ Petition (No.3617/2015) is concerned, suffice it to note that since the order on the basis of which the petitioner is claiming relief has been set aside, no relief can be granted. Consequently, the petition under discussion is dismissed with no order as to costs