Ashok Kumar Jain V. Union of India & Ors. and Respondent No.4

CW/1016/2002

AI Insights

The case revolves around a challenge to the award of an HP Gas-LPG distributorship in Jodhpur, which was reserved for physically handicapped persons. The petitioner, Ashok Kumar Jain, a born handicapped person, contested the selection of respondent No.4, who allegedly acquired her disability through a roadside accident, claiming that the selection was influenced improperly and was not based on genuine disability. The court examined the selection process, the qualifications of both candidates, and the relevant guidelines for awarding the distributorship. The court found that the selection was based on merit and adhered to the guidelines, dismissing the petitioner's claims.

• Counselvise Citation: [2009] 140 COUNSELVISE.COM (IT) 819161 (HC-RAJASTHAN)
• Appeal Type: Others
• Pronouncement Date: 23-03-2009
• Assessment Year: misc
• Result in Favour of: Revenue
• Court: HIGH COURT
• Department Lawyers: M R SINGHVI; JITENDRA CHOPRA
• Assessee Lawyers: D K GODARA; PAPPU SANGWA
• Keywords: Medical certificate; Permanent disability; Preferential Treatment; Selection process; HP Gas-LPG distributorship; Physically handicapped persons

Judgement Text

"1 S.B.CIVIL WRIT PETITION NO.1016/2002 (Ashok Kumar Jain Vs. Union of India & Ors.) Date of order :: 23rd March 2009 HON'BLE MR.JUSTICE DINESH MAHESHWARI Mr.D.K.Godara ) Mr.Pappu Sangwa), for the petitioner. Mr.M.R.Singhvi ) Mr.Jitendra Chopra), for the respondents. BY THE COURT: By way of this writ petition, the petitioner has challenged the award of HP Gas-LPG distributorship to the respondent No.4 for Jodhpur area that was reserved for physically handicapped persons. The petitioner has averred that in response to the advertisement (Annex.1) as issued by the respondent No.3 inviting applications for award of distributorship at various places, he was one of the applicants in relation to the area of Jodhpur and, having all the requisite qualifications, he applied along with the medical certificate showing himself to be the physically handicapped person; that after having made proper application with all the relevant documents and receiving the interview call, he appeared in the interview and fared well; and that he was hoping for preferential treatment for being a born 2 handicapped person. The petitioner has stated the grievance that his hopes were belied when a list of persons included in the panel was published wherein the name of the respondent No.4 was shown at serial number 1 and his name was shown at serial number 2. The petitioner asserts that upon making enquiry, he came to know that the respondent No.4 was not a born handicapped person but acquired the so-called permanent disability as a result of road-side accident; and points out that the respondent No.4 did file a claim petition before the Motor Accidents Claims Tribunal, Jodhpur and was awarded compensation in the sum of Rs.92,800/-. According to the petitioner, the respondent No.4 had already received benefit on account of her so-called disability and without disclosing these facts, tried to once again claim a preferential treatment on the same ground of alleged disability and was successful in exerting influence over the Selection Board. The petitioner contends that himself and his wife are born handicapped persons having no permanent source of livelihood nor are employed anywhere; that their lower limbs are permanently defunct whereas the respondent No.4 could have recovered from the alleged disability after treatment and, therefore, the certificate of disability as obtained by her was not correct and was obtained by foul means. The petitioner, thus, submits that 3 the selection of the respondent No.4 being not fair, deserves to be set aside. It is also suggested in the writ petition that the respondents Nos.1 to 3 may be directed to subject the respondent No.4 to a fresh examination by the Medical Board to be constituted by the competent authority and to verify the genuineness of the contents of the certificate produced by her and then to re-assess her candidature in comparison to that of the petitioner. The contesting respondent No.4 has filed a reply to the writ petition taking objections, inter alia, that the petitioner had the efficacious alternative forum for redressal of his grievance inasmuch as the Dealer Selection Guidelines provide in paragraph 3.15.1 that all the complaints against selection of dealership/distributorship are to be referred to the concerned Chairman of the Dealer Selection Board and as per paragraph 3.15.2, the Co-ordinator is required to place all such complaints/grievances before the Chairman of the Board for his direction and procedure for enquiry has also been provided. According to the contesting respondent, there being an inbuilt grievance redressal system, without exhausting such remedy, the petitioner is not entitled to maintain the writ petition. It is also stated that the assertion of the petitioner about himself having no permanent source of livelihood was not 4 correct and he has not disclosed the facts that he was having a taxable income, was being assessed under the Income-Tax Act, was maintaining a car, and was also having his own house. It is also asserted that the petitioner is engaged in photocopying business in the court premises, is having the fax machine and STD Booth, and is earning substantially. Apart from the aforesaid, it is contended by the respondent that in this matter, the petitioner, if eligible, had only a limited right of consideration that was definitely bestowed upon him; and in the final process, the selected candidates have been placed in the order of merit wherein the name of the answering respondent appeared at serial number 1 and that of the petitioner at serial number 2. Thus, according to the respondent, there was no denial of any of the petitioner's legal or fundamental rights and he is not entitled to maintain this writ petition. It is also submitted that the detailed procedure has been provided for awarding marks to candidates on different counts while preparing the panel; and, according to the contesting respondent, such a procedure having been provided and adhered to, there is no room for judicial review concerning the selection in question. The contesting respondent has asserted that the authorised doctor has certified about her disablement being more than 40% and when answering to the description of 5 physically handicapped person as per the requirements of the advertisement in question, she has rightly been considered and found eligible and suitable. It is submitted that the only requirement in the advertisement was about the person being physically handicapped and the petitioner has no additional right on the assertion of his being a born handicapped person. The respondent further asserts that despite having undergone various operations, she continues to carry her physical disability. In regard to her claim for compensation, the answering respondent has admitted having made a claim application before the Claims Tribunal and has further pointed out that being dissatisfied with the quantum of award, she has filed Misc. Appeal No.1016/2002 that remains pending in this Court. The respondent has further averred that on the date of accident, she was serving as a teacher but after the accident and on becoming disabled, she lost her job and was facing financial difficulties. The respondent has asserted having supplied all the relevant information to the Board and having rightly been selected. This writ petition was admitted for consideration by this Court on 17.05.2002 but the prayer for interim relief was refused. The petition has now come up for hearing after allowing an application for early hearing as moved by the 6 petitioner. During the course of submissions, the emphasis of the learned counsel for the petitioner has been that while the petitioner is a born handicapped person, such is not true for the respondent No.4 who allegedly sustained some injuries in a road-side accident; and in the given situation, the certificate as obtained by the respondent No.4 on her alleged disability could not have been treated as conclusive. The learned counsel suggested that the certificate having been issued to her on account of accident injuries, it shall be in the fitness of the things that a Medical Board be ordered to be constituted and the respondent No.4 be subjected to appropriate medical examination. Having heard the learned counsel for the petitioner and having examined the material placed on record, this Court is unable to find any cause to issue any writ, order or direction at the instance of the petitioner. The comparison as suggested by the petitioner, of himself being a born handicapped person whereas respondent No.4 having acquired the so-called disability due to road-side accident, is entirely misplaced. Neither the advertisement in question made any distinction between a constitutional handicap and a disability acquired due to some external force nor any such distinction could be co-related with 7 the purpose of reservation meant for physically handicapped persons. So far physical handicap is concerned, the only requirement in the advertisement in question had been as under:- \"व\u0002कल\u0005\u0006ग श ण - श\u0005र\u000fररक रप स व\u0002कल\u0005\u0006ग उम\u0016 द\u0002\u0005र ज\u0019नक\u001b ऊपर\u000f य\u0005 न चल अ\u0006ग क\u001b क\u0016 स क\u0016 40 पत#श# अ\u0006श क\u001b स%\u0005य /आ\u0006शशक अशक#\u0005 य\u0005 ऊपर\u000f य\u0005 न चल द न) अ\u0006ग) क\u001b क * ल श\u0016ल\u0005कर 50 पत#श# स%\u0005य /आ\u0006शशक अशक#\u0005 य*क ओ%,प-ड/क व\u0002कल\u0005\u0006ग य\u0005 \u0019 \u00160क, बध3र और न तह\u000fन वयडक ह ।\" In relation to orthopaedic disablement, it is the total percentage of disability that has got relevance and not the cause or source of disability. Moreover, it is noticed from the certificate dated 27.04.1995, placed on record by the petitioner as Annexure-5, that the respondent No.4 met with an accident on 17.01.1994 and suffered multiple bony injuries and underwent multiple operations and after examination, the Professor and Head of the Department of Orthopaedics at M.G. Hospital, Jodhpur found various deformities in both her legs, pelvic region, and right clevical and then, certified her permanent partial disability to be approximately 67% in relation to whole her body. For taking this certificate into account and accepting the respondent No.4 eligible for consideration, the respondent No.3 cannot be said to have committed any fundamental illegality so as to vitiate the selection. 8 The suggestion as made by the learned counsel that the respondent No.4 be subjected to re-examination by the Medical Board is nothing but asking for a wholly unwarranted fishing inquiry; and could least be countenanced in the writ jurisdiction of this Court. The suggestion as made in the writ petition that the respondent No.4 received benefit out of her claim for compensation before the Motor Accident Claims Tribunal remains incorrect in law apart from being entirely misplaced. It is not correct to suggest that by receiving damages for the loss suffered due to the tortious act of another, any person derives anything of so-called benefit. In any case, such receipt of compensation was not of any bar or even impediment for the respondent No.4 to be a candidate in the selection in question. This Court is unable to find any unfairness or illegality if the Selection Board has chosen to place the respondent No.4 higher in merit for the purpose of the selection in question. The petitioner, as an eligible candidate, had the right of consideration that does not appear to have been denied. For ultimate selection, the suitability and the comparative merits of the candidates were, obviously, the matters to be considered by the Selection Board. Merely because the petitioner was placed second to the respondent No.4, it cannot be assumed 9 that the Selection Board has not objectively considered each of the candidates. There appears no reason to consider any interference in this matter. The writ petition fails and is, therefore, dismissed; however, without any order as to costs. MK (DINESH MAHESHWARI),J. "