Sandeep Sheoran vs Vice Chancellor Delhi University ...
2008 Latest Caselaw 1645 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI


+                     W.P.(C) 5987/2008

%             Date of Decision      : 12.09.2008


       SANDEEP SHEORAN                         ..... Petitioner
                   Through:         Mr. S.M. Dalal, Advocate

                      versus


       VICE CHANCELLOR DELHI UNIVERSITY
       & ORS.                          ..... Respondents
                    Through: Mr. Anurag Mathur and Mr. Atulesh
                             Kumar, Advocates for University of Delhi

       CORAM:
       HON'BLE MR. JUSTICE VIPIN SANGHI

1. Whether the Reporters of local papers
   may be allowed to see the judgment?

2. To be referred to Reporter or not?                                 Yes

3. Whether the judgment should be reported in the Digest?             Yes

VIPIN SANGHI, J. (Oral)

1. The petitioner applied for seeking admission to the Bachelor of

Engineering (B.E.) Course in Delhi College of Engineering, which is

affiliated to the University of Delhi. The petitioner qualified in the Joint

Entrance Examination 2008 conducted by the Delhi University. He had

made his application as a ward of a defence personnel disabled in action.

This category enjoyed reservation to the extent of 5% of the total seats.

Within the said reserved category,        four different priorities were stated,

WP(C) No. 5987/2008                                               page 1 of 7
 which are as follows: -

"Priority I - Widows/ward of Defense Personnel killed in action. Priority II- Wards of serving personnel and ex-servicemen disabled in action.

Priority III- Widows/wards of Defense Personnel who died in peace time with death attributable to Military Service. Priority IV- Wards of Defence Personnel disabled in peace time with disability attributable to Military Service."(emphasis supplied).

2. The submission of the petitioner is that the father of the petitioner

was an army personnel who had been invalidated out of service on account

of disability. His father was also in receipt of disability pension. He was

issued a disability certificate dated 02.06.1986, by the Assistant CGO,

Record Officer for the Commanding Officer, from Artillery Records, Nasik

Raod Camp. The said certificate certified that the father of the petitioner

"Ex-Gnr. Name Mahtab Singh was invalidated out of service w.e.f. 31 Mar

84 on account of BRONCHIAL ASTMA". It further stated that "His

disability has been accepted as attributable to/aggravated by military

service at 20% w.e.f. 31.03.1984 to 22.01.1986."

3. The respondents did not accept the aforesaid disability certificate on

the ground that the certificate did not state that the disability was

attributable to military service as it also contained the statement that

the disability was aggravated by military service. It appears that the

respondent obtained an opinion with regard to the disability certificate of

the petitioner's father on 21.07.2008. In respect of the said certificate it

was opined that:-

WP(C) No. 5987/2008                                             page 2 of 7
               "The    certificate having "aggravated to military

service" statement has been interpreted by Lt. Col. M.B. Patel from Kendriya Sainik Board as invalid in accordance to the Bulletin of Information for CEE-2008. The certificate in question has both the words "attributed to/aggravated". Accordingly Lt. Col. M.B. Patel suggested to get the certificate be verified for "attributable to military service". The candidate was appraised of the finding of Lt. Col. M.B. Patel then the candidate requested the chairman BE admission committee-2008 for giving additional time for getting the certificate verified (copy of the letter enclosed)."

4. The petitioner was required to obtain a fresh certificate which clearly

stated that the disability was attributable to military service. He returned

and stated his inability to do so. On this ground the petitioner was declined

admission as a reserved category candidate. Consequently, he has

preferred this petition under Article 226 of the Constitution of India.

5. In response to the writ petition the respondent, University of Delhi

has filed its counter affidavit. The respondent has primarily reiterated the

same stand as is to be found in the note dated 21.07.2008 of the Chairman

B.E. Admission 2008.

6. Learned counsel for the petitioner submits that the grant of

reservation to the wards of military personal is a beneficial provision and

has to be construed in a realistic and generous manner. The same cannot

be given a narrow and strict meaning with a view to oust eligible

candidates. The petitioner submits that his case is covered by Priority IV

above extracted and should have been granted admission to the B.E Course

in Delhi College of Engineering.

WP(C) No. 5987/2008 page 3 of 7

7. On the other hand, learned counsel for the respondent submits that

the respondent had acted bonafide by roping in Lt. Col. M.B. Patel from

Kendriya Sainik Board, Delhi to opine whether the case of the petitioner

should be treated as covered under Priority IV, as aforesaid. He submits

that the disability certificate produced by the petitioner was not clear, and

it was left to doubt whether the petitioner's father's disability was

attributable to his military service or whether it was merely aggravated by

military service. Mr. Mathur has, at the time of argument, raised another

aspect. He submits that the certificate produced by the petitioner is not

from one of the specified authorities contained in Clause 3.6(c) of the

prospectus.

8. Having considered the rival contentions, I am inclined to allow this

petition. So far as the objection with regard to the disability certificate not

having been issued by the competent officer, is concerned, that does not

appear to be the reason for the rejection of the disability certificate of the

petitioners father and the consequential denial of admission to the

petitioner. No such reason is to be found in Annexure P-3 dated 21.07.2008

issued by the Chairman B.E. Admission Committee. This is not even a

ground taken in the counter affidavit. Apart from that, in my view, the

disability certificate has been issued by a competent authority. The same

has been issued on behalf of the Commanding Officer by the Record Officer.

As per Clause 3.6(c) the certificate could be issued either by the Secretary,

Kendriya Sainik Board, Delhi or the Secretary, Rajya/Zila Sainik Board or

WP(C) No. 5987/2008 page 4 of 7 the Ofifcer-in-Charge, Record Office. The certificate in question has been

issued by the Record Officer and is signed on behalf of Commanding

Officer. Therefore, in my view, it satisfies the said requirement.

9. The certificate in question states that the disability has been accepted

as attributable to/aggravated by military service. The disability in respect

of petitioner's father was Bronchial Asthma. Merely because the certificate

uses the expression "attributable to/aggravated by military service", it

cannot be presumed that the certificate pertains only to aggravation of the

disability during military service. A case of aggravation of disability by

military service would be a case, where the person at the time of his entry

into military service is known to be suffering with a particular disability,

which gets aggravated on account of military service. It is not the

respondents' case that the disability of the petitioner's father was existing

when he had joined the military service. It is well-known that military

service is often rendered in arduous climatic and other conditions, and

Bronchial Asthama is a disease, which adverse or extreme climatic and

other conditions can give rise to. This disease can also develop at a later

stage in life and one need not be born with it. It cannot, therefore, be said

with certainty that the Bronchial Asthma suffered by the petitioner' father

was suffered by him even when he entered military service and that it was

not attributable to military service. It cannot be said with certainty that the

petitioner's father merely suffered aggravation of his pre existing Asthma

during military service. It is well-known that entry into military service is

WP(C) No. 5987/2008 page 5 of 7 preceded by a rigorous medical examination to screen out such candidates

who may be suffering from disabilities. Therefore, it seems unlikely that

the petitioner's father would have been suffering from Bronchial Asthama

when he joined military service. Another possible interpretation of the said

disability certificate canvassed by learned counsel for the petitioner is that

the disease Bronchial Asthama suffered by the petitioners father was

attributable to "and" aggravated by military service. In practice "/" is

some times used for `or' and at times for "and". In my view this submission

of the petitioner has some merit. In any event, if there is a doubt about this

fact, the benefit of this doubt has to go to the petitioner, and not against

him. The respondents have no valid basis to conclude that the disability of

the petitioner's father was merely aggravated by military service. They

cannot choose to ignore that part of the certificate which renders the

petitioner eligible for reservation and cling on to that part that may

disentitle him from grant of reservation. I am also of the view that the

grant of reservation to the wards of military personal is a beneficial

provision and it has to be construed liberally so as to extend the benefit to

all those who are found deserving. The purpose of creation of priorities

within this reserved class also appears to be to take within the ambit of

reservation, in accordance with priority, more and more wards of military

personal within the limited reserved seats.

10. For the aforesaid reasons, I allow this petition and direct the

respondent to grant admission to the petitioner according to merit by

WP(C) No. 5987/2008 page 6 of 7 treating him as falling within priority IV of the 5% reservation provided to

children/wards of defence personnel disabled in action.

Petition stands disposed of.

Dasti.

                                                    VIPIN SANGHI
                                                         JUDGE
SEPTEMBER 12, 2008
rsk




WP(C) No. 5987/2008                                          page 7 of 7