Kerala High Court
Shri. Baby.P vs M/S.Hindustan Petroleum Corporation ... on 28 November, 2013
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
MONDAY,THE 30TH DAY OF MAY 2016/9TH JYAISHTA, 1938
WP(C).No. 29046 of 2013 (E)
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PETITIONER :
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SHRI. BABY.P.,
"ANUGRAHA", SECRETARIAT COLONY,
KANJIRAMPARA P.O., THIRUVANANTHAPURAM-695 030.
BY SRI.T.M.SREEDHARAN,SENIOR ADVOCATE
ADVS. SRI.V.P.NARAYANAN
SMT.BOBY M.SEKHAR
SMT.DIVYA RAVINDRAN
RESPONDENT(S):
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1. M/S.HINDUSTAN PETROLEUM CORPORATION LIMITED.,
S-5, V MARG, BALLARD ESTATE, MUMBAI-400 001,
MAHARASTRA STATE - REPRESENTED BY THE
CHAIRMAN AND MANAGING DIRECTOR.
2. UNION OF INDIA,
REPRESENTED BY SECRETARY TO GOVERNMENT,
MINISTRY OF PETROLEUM AND NATURALS GAS,
GOVERNMENT OF INDIA, A-WING, SHASTRI BHAVAN,
RAJENDRA PRASAD ROAD, NEW DELHI-110 001.
R1 BY ADVS. SRI.M.GOPIKRISHNAN NAMBIAR
SRI.P.GOPINATH
SRI.P.BENNY THOMAS
SRI.K.JOHN MATHAI
R2 BY ADV. SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 27-05-2016, THE COURT ON 30-05-2016 DELIVERED THE
FOLLOWING:
sts
WP(C).No. 29046 of 2013 (E)
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APPENDIX
PETITIONER(S)' EXHIBITS
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P1 : COPY OF THE NOTIFICATION APPEARED IN THE MALAYALA MANORAMA
DAILY DTD. 25.9.2013 INVITING APPLICATIONS FOR THE SELECTION OF LPG
DISTRIBUTORS.
P2 : COPY OF THE APPLICATION DTD. 21.10.2013 IN FORMAT SUBMITTED BY THE
PETITIONER BEFORE THE 2ND RESPONDENT.
P3 : COPY OF THE BROCHURE ON GUIDELINES FOR SELECTION OF REGULAR
LPG DISTRIBUTION OF 2ND RESPONDENT COMPANY.
P4 : COPY OF THE REPRESENTATION DTD. 29.10.2013 SUBMITTED BY THE
PETITIONER BEFORE THE 2ND RESPONDENT.
P5: COPY OF THE COMMUNICATION DATED 28/11/2013, WHICH WAS RECEIVED
ON 5/12/2013 FROM THE SR. REGIONAL MANAGER, KOCHI LPG REGIONAL
OFFICE.
P6: COPY OF THE COMMUNICATION DATED 16/1/2013 RECEIVED FROM THE
FIRST RESPONDENT
P7: COPY OF THE REPLY DATED 29/1/2014 ALONG WITH ENCLOSURES THERETO
SUBMITTED BY THE PETITIONER TO THE SENIOR REGIONAL MANAGER OF
THE FIRST RESPONDENT
P8: COPY OF THE LETTER DATED 22/6/2015 AND RECEIPT ALONG WITH
LOCATION MAP OF THE NEWLY PROPOSED SITE.
P9: COPY OF THE LETTER DATED 21/7/2015 ALONG WITH COPY OF THE
AGREEMENT
P10: COPY OF THE LETTER DATED 3RD AUGUST 2015 ISSUED BY THE 1ST
RESPONDENT
RESPONDENT(S)' EXHIBITS: NIL
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/TRUE COPY/
P.S.TO JUDGE
sts
"C.R"
A.MUHAMED MUSTAQUE, J.
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W.P.(C).No.29046/2013
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Dated this the 30th Day of May, 2016
J U D G M E N T
The petitioner, a totally blind person, applied for LPG Distributorship under S.C.(C.C) category at Kottiyam in Kollam District. The petitioner's application has been rejected on two grounds, which are as follows:
i. a "totally blind person" is not eligible; and ii. the dimension of the godown plot does not satisfy the minimum dimension as prescribed in the notification.
2. The petitioner in this writ petition challenges the stipulation specifying the eligibility as well as the rejection of his application based on dimension of the plot. W.P.(C).No.29046/2013 -:2:-
3. It is to be noted that the petitioner is a lone candidate in the SC category.
4. The first and foremost question that has to be decided by this Court is whether the eligibility, as stipulated in the Brochure on Guidelines for Selection of Regular LPG Distributors, has to be interfered with or not. The relevant clause in the brochure is as follows:
"I. Physically Handicapped Category (PH):
Candidates would be considered eligible under this category in case the candidates are orthopaedically handicapped to the extent of minimum of 40% permanent (partial) disability of either upper or lower limbs; or 50% permanent (partial) disability of both upper and lower limbs together. For this purpose, the standards contained in the `Manual for Orthopaedic Surgeon in evaluating Permanent Physically Impairment' brought out by the American Academy of Orthopaedic Surgeons, USA and published on its behalf by the Artificial Limbs Manufacturing Corporation of India, G.T. Road, Kanpur, shall apply.W.P.(C).No.29046/2013 -:3:-
Deaf, Dumb and Blind persons with minimum degree of 40% disability will also be eligible to apply for LPG Distributorship under this category.
However, totally blind persons will not be eligible." (emphasis supplied in bold)
5. The learned Senior Counsel appearing for the petitioner would argue that there is no impairment for a totally blind person to carryout day-to-day functions of the LPG distribution. It is submitted that the petitioner can very well be assisted by his spouse and others. It is further argued that the stipulation as above is violative of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (hereinafter referred to as, the "PWD Act). The main crux of the arguments is that treating a totally blind person as ineligible, is violative of Art.14 of the Constitution of India.
6. Per contra, the learned Standing Counsel for the first respondent, with reference to the W.P.(C).No.29046/2013 -:4:- counter affidavit filed in this matter would argue that the importance of functional duties to be discharged by a LPG Distributor cannot be ignored while determining his eligibility for LPG distributorship. The learned Standing Counsel particularly drew my attention to para.5 of the counter affidavit which reads as follows:
"5. It is submitted that Exhibit P3 Selection Guidelines are approved by the Central Government and are applicable uniformly to all the Oil Marketing Companies ("OMCs"), including the 1st respondent. Clause 6.2.2 b) I. Of Exhibit P3 prescribes that "totally blind persons"
will not be eligible to apply under the Combined Category. This is a purely policy matter, approved by the Central Government, and is not liable to be interfered with by this Hon'ble Court. Operating LPG distributorships involves day to day physical involvement and if a person is totally blind he/she will not be able to perform the duties properly. The distributorship operation involves managing a workforce, personal attention to customer services and complaints, W.P.(C).No.29046/2013 -:5:- physical self-verification of the inventory of cylinders/regulators in the LPG godown on a daily basis etc. It involves personal invovlement in all aspects which cannot be fulfilled if a person is totally blind. The problem is more serious as the product which the distributor is handling is hazardous in nature. The safety issue cannot be addressed if the person is totally blind."
7. Therefore, the question that has to be considered is whether the functional duties attached with LPG Distributorship would render a totally blind candidate as ineligible.
7.i. In Amita v. Union of India and Another [(2005) 13 SCC 721], the Hon'ble Supreme Court has held as follows:
"9. From the aforesaid decision of this Court, it would also be clear that the only restriction which can be spelt out from the ratio of that decision was whether the post in respect whereof the petitioner sought consideration was whether the post is liable to be considered as totally unsuitable for W.P.(C).No.29046/2013 -:6:- visually handicapped person having regard to the nature of duties attached to the office/post.
(emphasis supplied)
10. From the aforesaid observations of this Court, we are confident that a visually impaired candidate would be entitled to sit and write the examination for selection for the post of Probationary Officer in a bank but the only restriction that would be standing in the way of the writ petitioner for selection is that the nature of duties attached to the office/post would be unsuitable for the visually impaired candidate. Accordingly, we are of the view that the order passed by the authorities rejecting the application of the writ petitioner on the ground shown in the order was erroneous, illegal and invalid in law and therefore cannot be sustained." (emphasis supplied)
7.ii. The above dictum clearly indicates that a physical disability would become an embargo for consideration of a person having regard to the nature of duties attached to the office/post. W.P.(C).No.29046/2013 -:7:-
7.iii. In the light of the above judgment, this Court has to examine whether there is any disability attached with a totally blind person in fulfilling his obligation as a distributor.
7.iv. The reasons stated in the counter affidavit filed by the first respondent is that a personal attention is required for customer service, physical verification of cylinders etc.
7.v. It appears that, while stipulating as above, the policy makers were ignorant about the function that can be carried out by a totally blind person. A totally blind person will also be able to carry out verification of inventory of cylinders, hear the complaints of the customers etc. A mere loss of vision would not result in those functions not being discharged. Further, from the standpoint of the first respondent, these aspects are required to be carried out by a Distributor to ensure that no malpractices take place in the business of Distributorship and also to ensure proper handling W.P.(C).No.29046/2013 -:8:- of hazardous goods. These functions can also be very well discharged by any person, on whom the totally blind person is confident, such as spouse etc.
7.vi. The State in a constitutional scheme has a duty to take affirmative action and to provide a level playing field to those who are deprived on account of disability or by circumstances. Thus, equality of opportunity in constitutional terms bears two distinct concepts vis-a-vis non discrimination as well as affirmative action. Thus, any classification among citizens based on the physical disability must have a foundation and must be able to test the standards in Article 14 of the Constitution. The State having taken an affirmative action through PWD Act, cannot denounce such affirmative action devolved through the PWD Act by discriminating its citizen in the matter of opportunity to get appointed as a distributor of LPG without any sound parameters. W.P.(C).No.29046/2013 -:9:-
7.vii. In Harshendra Choubisa and others v. State of Rajasthan and others [(2002) 6 SCC 393], the Hon'ble Supreme Court held that geographical classification for the purpose of offering public employment must be based on scientific study and not on some broad generalisation, artificial differentiation on irrelevant assumptions. The classification in the case in hand appears to have been made based on the broad generalisation that the Distributorship can be run only by persons of certain abilities. Such a classifcation ex facie appears to be unreasonable and unsustainable. Though, the object of such prescription appears to be that in order to carry out day-to-day affairs, constant vision of the Distributors is required. The vision of eye sight, in fact, has nothing to do with the functions being discharged by the Distributors. A blind person is also endowed with a vision. Though, he cannot physically see an activity, with his insight vision he can run a Distributorship. Therefore, the object of W.P.(C).No.29046/2013 -:10:- classification must have a nexus with the purpose and intent to be achieved. The modern technological advantages and improvement of social conditions of the blind cannot be ignored while considering the functional duties attached with Distributorship. It is to be noted that the general presumption available for a statute on its validity cannot be invoked for an executive action. Thus, the onus is cast on the proponent of the classification to establish its constitutionality. The doctrine of strict scrutiny often applied in the Courts of the United States has been applied in various cases of the Hon'ble Supreme Court. The same has relevance in cases where ex facie the classification is unreasonable. The Hon'ble Supreme Court in Subash Chandra and another v. Delhi Subordinate Services Selection Board and Others [(2009) 15 SCC 458] took the view that the above doctrine can be applied where a statute or executive action causes reverse discrimination. The blind persons cannot be treated as a separate W.P.(C).No.29046/2013 -:11:- class except for affirmative action or for the purpose of functional duty attached with an office or post. They are equally competent and have all competitive and cognitive skills similar to the able bodied persons except lacking visionary functions. Therefore, they can be treated as a separate class for the purpose of affirmative actions or for any other purpose relating to the functional competence of the duties attached to the post/office. As has been noted above, the doctrine of scrutiny casts a duty on the policy makers to justify discrimination and not otherwise. In this case, absolutely no materials have been placed before this Court to justify classification.
7.viii. Art.14 of the Constitution, when couched in a positive dimension, would clearly spell that the State has to encourage and empower, blind person or persons with a low vision, who have physical disabilities to compete with an able bodied person. The equal opportunities for a blind person cannot be negated unless the functions that W.P.(C).No.29046/2013 -:12:- have to be discharged by him intrinsically, cannot be separated from his disability, such as persons like drivers or such other functionaries who may require vision for carrying out the function. A blind person would be also able to discharge the same functions as that of an able bodied person without any impediment as far as LPG Distributorship is concerned. Therefore, this Court is of the view that the stipulation in the Brochure that a "totally blind person is ineligible" is violative of Art.14 of the Constitution. Accordingly, the clause as above is set aside.
8. The next question is whether the rejection of the petitioner's application on account of non compliance of specification of godown plot is liable to be interfered with or not.
8.i. The petitioner offered an alternate plot for godown after the deadline for submitting application. It is the settled legal position that, if any documents are submitted after the W.P.(C).No.29046/2013 -:13:- deadline fixed for submission of the applications, the same cannot be entertained. It is to be noted that if any party is allowed to supplement any documents after the deadline, it would have an impact upon the right of other applicants. Therefore, if there involves a competing interest among applicants, no applicant can be allowed to supplement. However, there is an exception for this Rule. This Rule would not apply when right of others is not affected. In this case, the petitioner is the lone applicant. He belongs to SC category. In such a situation, there is no difficulty in accepting the alternate land for godown. In that view of the matter, there cannot be any difficulty in acceding to the request of the petitioner offering alternate plot for godown. Therefore, the rejection on this ground is also unsustainable.
9. In the above facts and circumstances, the writ petition is allowed and the following orders are issued:
W.P.(C).No.29046/2013 -:14:-
i. The stipulation in the guidelines that a totally blind person is ineligible for applying for LPG Distributorship is held as violative of Art.14 of the Constitution.
ii. The rejection of the petitioner's application for LPG Distributorship treating him as ineligible, is set aside.
iii. It is declared that the petitioner is eligible for LPG distributorship iv. The petitioner's offer for alternate plot for godown shall be considered by the respondents. v. Needful shall be done within a period of two months. No costs.
Sd/-
A.MUHAMED MUSTAQUE, JUDGE ms