Sanjay Kumar vs The Union Of India & Anr.
2009 Latest Caselaw 3854 Del

*                 IN THE HIGH COURT OF DELHI AT NEW DELHI

+                          W.P.(C.) No.10869/2009

%                        Date of Decision: 18.09.2009

Sanjay Kumar                                                 .... Petitioner
                        Through Mr.S.M. Dalal, Advocate.

                                 Versus

The Union of India & Anr.                            .... Respondents
                     Through Col. (Retd.) R. Balasubramanian,
                             Advocate.
CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR

1.     Whether reporters of Local papers may be                YES
       allowed to see the judgment?
2.     To be referred to the reporter or not?                  YES
3.     Whether the judgment should be reported in              YES
       the Digest?


ANIL KUMAR, J.

*

1. The petitioner seeks a direction to the respondents to treat the

disability certificate of his father Ex Gnr Chrianji Lal as a valid

certificate under priority IV for a seat for admission of the petitioner in

the medical college for MBBS course for the year 2009-2010.

2. The father of the petitioner applied to Kendriya Sainik Board,

West Block IV, R.K.Puram, New Delhi for a reserved seat in

medical/dental colleges for the petitioner for the year 2009-2010. The

general instructions for applying under the said scheme categorically

contemplated that insufficient application forms and applications

received after the specified date will not be considered and a wrong and

misleading entry will also lead to rejection of the application.

3. For reserved seat in medical/dental colleges the different priority

were prescribed. A candidate seeking a reserved seat also had to fill an

appropriate form stated in respect of his priority. Para 1 (t) of the

general instruction is as under:-

"(t) The priority to which candidate belongs out of the ones listed below the filing the application form if the father/husband of the candidate is/was.

                                           PRIORITY FORM TO BE FILLED

                (i)     Killed in action            1      A-1
                (ii)    Disabled in action and      2      A-2
                        boarded out from service
                        with disability
                        attributable to mil service
                (iii)   Died while in service       3      A-3
                        and death attributable
                        to mil service
                (iv)    Disabled in service and 4          A-4
                        boarded out with disability
                        attributable to mil service
                (v)     Gallantry Award/other 5            A-5
                        Award Winners

4. The general instructions also contemplated that the applicants

seeking different priorities will also have to fill respective forms A1 to A5

which were required to be attested both by the Secretary Rajya/Zila

Sainik Board and concerned Record office of the individual

soldier/airmen/sailor/JCO/Officer.

5. The petitioner asserted that his father Ex Gnr Chiranji Lal was

enrolled in Army on 27th March, 1979 and he met with an accident

while on duty which resulted in fracture of Humerus (left). According to

him a Court of Inquiry was held which inferred that the injury of his

father was caused while he was on duty and, therefore, competent

authority while exercising powers under Para 520(d) of Defence Services

Regulations for Army recorded the decision that the injury "Gireater

Tuberusity Lt Humerus" caused during the accident was attributable to

military service and the father of the petitioner was placed in low

medical category, CEE Permanent and a medical board assessed the

disability as 20% for two years. The service career of the father of the

petitioner was cut short and he had boarded out of service on 31st

January, 1991 after rendering service only for 11 years and 9 months.

6. The petitioner also contended that M A (P) in the office of Principle

Controller of Defence Accounts (Pension) Allahabad, however, reduced

the degree of disability of the petitioner's father to less than 20%. The

petitioner also pleaded that the action of PPCDA (P) was illegal in terms

of the decision of the Supreme Court in Civil Appeal No.164/1993 titled

Ex Sapper Mohinder Singh v. UOI and Ors. as consequent to the

recommendation of the medical board father of the petitioner ought to

have been brought before a resurvey medical board after expiry of two

years by the respondents. The petitioner relied on pension payment

order No.D/DO11199/1991 of his father stipulating disability service

element admissible to him.

7. The petitioner also relied on Regulation 186(1) of pension

regulation for Army, 1960, Part I contemplating that if an individual is

invalidated out of service with a disability attributable to or aggravated

by service but assessed even at below 20%, shall be entitled to disability

service element only.

8. The plea of the petitioner is that after applying for a reserved seat

his father met Lt. Col.Mahender B.Patel, the officer dealing with the

applications claiming reservation in medical and dental colleges, who

communicated to his father that the petitioner is not entitled for

reserved seat on the ground that the father of the petitioner was not

receiving disability pension for life as was required in the relevant form

A-4 of the General Instruction. Consequently, a notice dated 31st July,

2009 was sent by the petitioner through his counsel and thereafter the

present petition has been filed contending inter-alia that though the

father of the petitioner is only getting service element and not the

disability element, however, since he has been boarded out on account

of disability which is attributable to the military service, he is entitled

for a reserved seat under priority 4. The petitioner also contended that

disability of his father was reduced to less than 20% in an arbitrary

manner and PCDA (P) had no authority to sit over the assessment and

opinion of a medical board.

9. Regarding Form A4 which was to be filed by a person claiming a

reserved seat under priority 4, it was contended that the priority 4 as

defined in the general instructions had no ambiguity and, therefore,

anything stated in the form A4 was superfluous and consequently copy

of latest PPO stating percentage of disability and disability element

awarded for life, was not required under priority 4 to be eligible for a

reserved seat. The form A4 which was filed by the petitioner along with

his application for a reserved seat in the medical/dental college is as

under:-

Form A-4

To be filled in by sons/daughters of personnel disabled in service and who has been boarded out with disability attributable to military service.

Priority 4

This is to certify that Mr.Sanjay Kumar is son of No.14460040 P Rank GNR DMT Chiranji Lal of Unit/Corps/Service Regiment of Artillery who was disabled in service on 24th July, 1987 and boarded out from service on 31 January 1991 and the disability was Gireater Tuberusity (Lt) Humerus 20% which was accepted as attributable to Military service by CDA (P) Allahabad. An attested photocopy of supporting documents relating to the disability attributable to Military Service along with the release order issued by concerned record office/CDA (P) Allahabad, Govt. of India letter/copy of latest PPO stating % age of disability granted and disability element awarded for life is attached.

Sd/-

                Office Seal                    Zila Sainik Kalyan Adhikari
                                               Behror Distt. Alwar (Raj.)
                                               Secretary RSB/ZSB

                                  Verified

                Office Seal                                Sd/-

                                                            Major
                                                     Senior Record officer
                                                     Artillery Records.

10. The petitioner contended that the scheme for reserving seat for

the wards of Army personnel is a beneficial scheme and it has to be

construed liberally as per the laws laid down by the Supreme Court.

According to the petitioner form A4 does not in any manner lays down

any condition nor modifies and can modify the conditions stipulated in

the priority A4. According to the petitioner the respondent could not

import something which is not part of general instructions and such an

act is unlawful. The learned counsel for the petitioner also relied on a

DO No.3547/AS(R)/94, stipulating that the prioritization recommended

is for seven categories out of which priority IV is for wards of defence

personnel disabled in peace time with disability attributable to military

service.

11. The learned counsel for the petitioner also relied on (2003) 2 SCC

577, Nasiruddin and Ors v. Sita Ram Agarwal to contend that the Court

jurisdiction to interpret a statute can be invoked when the same is

ambiguous. It was contended that the Court should not enlarge the

scope of legislation or intention when the language of the provision is

plain and unambiguous. The Court cannot add or subtract words to a

statute or read something into it which is not there nor can rewrite or

recast legislation. The learned counsel also relied on a decision of a

Single Judge in W.P(C) No.5987/2008 Sandeep Sheoran v. Vice

Chancellor, Delhi University and Ors decided on 12th September, 2008

in which it was held that in a certificate where it was stated that the

disability was attributable to military service and it also contained the

statement that disability was aggravated by military service, the

candidate had obtained a fresh certificate in which it was clearly stated

that the disability was attributable to military service. It was held that

merely because the certificate used the expression "attributable

to/aggravated by military service" it could not be presumed that the

certificate pertained only to aggravation of the disability of the father of

the petitioner which was existing when he had joined the military

service and, therefore, the certificate of the father of the candidate was

for disability attributable to the military service. Since the certificate

had both parts, therefore, the Court had held that the part attributing

disability to the military service could not be ignored and the candidate

could not be declined the benefit of a reserved seat. The reliance was

also placed on W.P(C) No.8855/2009 decided on 11th May, 2009 where

a candidate had sought issuance of disability certificate. A Division

Bench had directed the respondents to issue disability certificate to

such candidate on the basis of documents placed on record on account

of urgency of petitioner's daughter's admission.

12. The reliance was also placed by the learned counsel for the

petitioner Mr.Dalal on AIR 1999 SC 3378, Madan Singh Shekhawat v.

Union of India and Ors holding that it is the duty of the Court to

interpret a provision, especially a beneficial provision liberally so as to

give it a wider meaning rather than a restrictive meaning which would

negate the very object of the Rule.

13. The petition is contested by the respondents contending inter-alia

that while considering eligible candidates, according to the eligibility

criteria, a merit list is prepared for each priority separately on the basis

of academic performance and the allocation of seats is done on priority

basis and first the candidate in priority one are accommodated and if

the seats are left then candidates from other priorities are considered.

14. Regarding priority 4 it was contended that when a candidate seek

consideration under priority 4, he also has to submit form A4 in

addition to the main application along with the necessary supporting

documents. According to the respondents the form A4 clearly stipulates

submission of the latest pension payment order stating percentage of

disability granted and disability element awarded for life. It was

asserted that since the father of the petitioner is not in receipt of

disability element of disability pension for life, the petitioner is not

eligible for a reserved seat under priority 4. Emphasis was also laid on

the fact that the father of the petitioner is not getting the disability

element of disability pension and his disability was assessed at 20% by

the medical board for two years which was also reduced by CDA (P)

Allahabad to 19½ %. According to the respondent, merely having

service element of the disability pension by the father of the petitioner,

does not entitle him to be placed in priority 4. The respondent also

contended that since no pension payment order stating percentage of

disability with the disability element awarded for life was produced, the

application of the petitioner was also incomplete and, therefore, it was

rejected. The learned counsel for the respondent Col.R.

Balasubramanium Advocate also relied on (2009) 2 SCC 90,

G.P.Ceramics Private Limited v. Commissioner Trade Tax, Uttar

Pradesh to contend that where the rule prescribes a form for the

application, in case of doubt or dispute, the form be taken into

consideration for interpretation of the provisions of the Rule and the

statutory enactment.

14. This is not disputed that the father of the petitioner was boarded

out on account of disability attributable to the military service.

Disability of the father of the petitioner was assessed at 20% by a

medical board for two years. Disability was reduced to 19.5% by the

office of the Principle Controller of Defence Accounts (Pension)

Allahabad. The order of the Principle Controller of Defence Accounts

was not challenged by the father of the petitioner and, therefore, on the

basis of the allegations of the petitioner that reassessment of disability

of his father was illegal, cannot be accepted nor on the basis of the

precedents relied on by the petitioner, it can be held that placing the

father of the petitioner in 19.5% disability without any disability

element of the disability pension but only the service element, is illegal

and void. Consequently, it has to be accepted that the father of the

petitioner was only entitled for service element of the disability pension

and not the disability element of the said pension. In order to infer

whether the petitioner is entitled for a reserved seat in category 4 in the

facts and circumstances, it is to be considered whether the requirement

of the form A4 has to be considered with the priority described in

general instructions.

15. The plea of the learned counsel for the petitioner is that the

eligibility of the priority 4 as given in the general instructions is

sufficient and does not have any ambiguity and, therefore, the

requirement stipulated in the form A4 is not to be considered. The plea

of the learned counsel is not correct because even in the general

instructions the priority 4 has been defined along with the form to be

filled which is A4. If in order to avail a priority 4 a candidate has to fill

the form then the requirement or the certificate required for filling the

form A4 will also qualify the requirement of priority 4. The form A4

which was filed by the candidate specifically contemplated filing of the

latest PPO stating percentage of disability granted with disability

element awarded for life. In the circumstances it will be not correct to

hold that the requirement under form A4 are meaningless and are not

relevant and required for eligibility of priority 4.

16. The precedents relied on by the petitioner are quite

distinguishable. In Nasiruddin and Ors (Supra) the Supreme Court had

held in respect of Rajasthan premises (Control of Rent and Eviction)Act,

1950 which contemplates a tenant to deposit the amount of rent

determined within 15 days of the date of determination or within such

further time not exceeding three months. It was held that the power of

the Court is limited and the time cannot be extended for such deposit

exceeding three months because if the statutory provision is plain and

unambiguous, the Court shall not interpret the same in a different

manner, only because of harsh consequences arising there from.

17. The Supreme Court in Nasiruddin (Supra) had rather held that

there exist a presumption that the legislation has not used any

superfluous words and the real intention of the legislation must be

interpreted from the language used and the use of expression shall or

may not be decisive for arriving at a finding as to whether the statute is

directory or mandatory. In the present case priority 4 has been

stipulated in the general instruction as "disability in service and

boarded out with disability attributable to military service". This priority

4 in general instruction is not limited to the words detailed there but

also have the form A4 which is a part of general instruction which is

also to be filed by the candidate. Requiring a candidate to fill form A4

and stipulating it in the general condition, therefore, cannot be a mere

formality. The condition stipulated in the form A4 cannot be termed

superfluous. No doubt when a beneficial provision has to be interpreted,

it has to be construed liberally so as to give it a wider meaning but at

the same time the words and the requirement stipulated is not to be

ignored. If the requirement contemplated under form A4 is that the

latest PPO stating percentage of disability and disability element

awarded for life is not necessary, then the respondents would not have

asked the candidates seeking a reserve seat to produce such a

certificate. If for allotting a seat in priority 4, only a certificate

stipulating that the person has been boarded out on account of

disability was sufficient, then other requirement as detailed in form A4

would not have been mentioned nor the requirement of a certificate by

CDA (P) Allahabad would have been indicated.

18. In G.P.Ceramics Pvt Ltd (Supra) the Supreme Court had held that

where the rule prescribes a form for the application, the requirement

laid down in the form shall also be necessary as otherwise the

requirement and the form shall be superfluous and it is not expected

that the superfluous information would be sought in a form.

19. In the facts and circumstances, therefore, it cannot be held that

merely on account of being boarded out on account of disability

attributable to military service, a ward of a person will be entitled for a

reserved seat. Unless the disability pension awarded to such a person

has an element of disability and which is also for life, such a person is

not eligible for a reserved seat for the ward. The inevitable inference in

the facts and circumstances is that the petitioner cannot be placed in

the priority 4 for a reserved seat and the decision of the respondent not

to grant a reserved seat to the petitioner under the reserved quota

cannot be faulted.

20 Therefore, for these reasons the petitioner is not entitled for any

relief. The writ petition is without any merit and is liable to be

dismissed. The writ petition is, therefore, dismissed. Parties are left to

bear their own costs.

September 18, 2009. ANIL KUMAR, J.

'k'