Kerala High Court
M/S.Hindustran Petroleum Corporation ... vs Shri.Baby.P
Author: Mohan M. Shantanagoudar
Bench: Mohan M.Shantanagoudar, Sathish Ninan
'C.R'
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE THE CHIEF JUSTICE MR.MOHAN M.SHANTANAGOUDAR
&
THE HONOURABLE MR. JUSTICE SATHISH NINAN
TUESDAY, THE 10TH DAY OF JANUARY 2017/20TH POUSHA, 1938
WA. NO.2081 of 2016 () IN WP(C).29046/2013
--------------------
(AGAINST THE JUDGMENT DATED 30-05-2016 IN WP(C) NO.29046/2013.)
APPELLANT(S)/FIRST RESPONDENT:
-----------------------------
M/S.HINDUSTRAN PETROLEUM CORPORATION LTD.,
S-5, V MARG, BALLARD ESTATE,
MUMBAI 400001, MAHARASHTRA,
REPRESENTED BY THE CHAIRMAN AND
MANAGING DIRECTOR.
BY ADVS.SRI.M.GOPIKRISHNAN NAMBIAR
SRI.P.BENNY THOMAS
SRI.P.GOPINATH
SRI.K.JOHN MATHAI
RESPONDENT(S)/PETITIONER & 2ND RESPONDENT:
------------------------------------------
1. SHRI.BABY.P.,
'ANUGRAHA', SECRETARIAT COLONY,
KANJIRAMPARA P.O., THIRUVANANTHAPURAM-695030.
2. UNION OF INDIA,
REPRESENTED BY THE SECRETARY TO GOVERNMENT,
MINISTRY OF PETROLEUM AND NATURAL GAS,
GOVERNMENT OF INDIA, A-WING, SHASTRI BHAVAN,
RAJENDRA PRASAD ROAD, NEW DELHI-110001.
R2 BY ADV. SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL
R1 BY ADVS. SRI.T.M.SREEDHARAN (SR.)
SRI.V.P.NARAYANAN
SMT.DIVYA RAVINDRAN
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 05-12-2016, THE
COURT ON 10-01-2017 DELIVERED THE FOLLOWING:
'C.R'
MOHAN M. SHANTANAGOUDAR, C.J.
&
SATHISH NINAN, J
= = = = = = = = = = = = = = = = = = =
W.A. No.2081 of 2016
= = = = = = = = = = = = = = = = = =
Dated this the 10th day of January, 2017
JUDGMENT
Mohan M. Shantanagoudar, C.J.
"Kindness is the language, which the deaf can hear and the blind can see", said the 18th century American Writer, Mark Twain. The exclusion of totally blind persons from participating in the tender for distributorship of Liquefied Petroleum Gas (LPG) is under challenge in the writ proceeding. The learned single Judge as per judgment dated 30.05.2016 held the exclusion to be violative of Article 14 of the Constitution, which is under challenge in this writ appeal.
2. The brief facts of the case are as under:
The appellant invited applications for distributionship of LPG at several locations in Kerala, including the location "Kottiyam in Kollam district", which was reserved for Combined Category (CC) applicants belonging to Scheduled Caste (SC). Among other conditions, the selection criteria specifies that "totally blind persons" will not be eligible to apply under the WA.2081/16 -:2:- "combined category" and that the minimum dimensions of the godown plot offered by the applicant should be 31 x 36 metres.
The first respondent, the writ petitioner, is a totally blind person. He applied for LPG distributorship under SC(CC) category at Kottiyam, Kollam district. His application has been rejected on two grounds, viz., a) a "totally blind person" is not eligible, and b) the dimension of the godown plot does not satisfy the minimum dimension as prescribed in the notification. Hence, he approached this Court by filing W.P(C) No.29046 of 2013, not only challenging the stipulation specifying the eligibility but also the rejection of his application based on insufficiency of the dimension of the plot.
3. It is not in dispute that the location at Kottiyam in Kollam district was reserved for combined category belonging to Scheduled Caste i.e., SC (CC) category. It is also not in dispute that the first respondent is from the said category and is the only person, who applied from that category. It is also not in dispute that the guidelines for selection of regular LPG distributorship specify that totally blind persons will not be eligible.
The question is "as to whether the specification prescribed under Ext.P3 guidelines for selection of regular LPG distributorship prohibiting the totally blind persons to apply, is a WA.2081/16 -:3:- valid one". Clause 6.2.2(b)(I) of Ext.P3 deals with Physically Handicapped (PH) Category, the relevant portion of which reads thus:
"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)
4. The aforementioned clause amply makes clear that the deaf, dumb and blind persons with a minimum of 40% degree of disability are eligible to apply for LPG distributorship under PH category. However, totally blind persons are not eligible (We are, in this case concerned with totally blind persons). Whether such exclusion of totally blind persons will fall within the mischief of The persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 and Articles 14, 16 and 21 of the Constitution of India is the issue for consideration.
5. In this context, it is relevant to note the objects and reasons for enacting "The persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995" (hereinafter referred to as, the 'Act' for short). The meeting to launch the Asian and Pacific Decade of the Disabled Persons 1993-2002 convened by the Economic and Social Commission for Asian and Pacific Region, WA.2081/16 -:4:- held at Beijing on 1st to 5th December, 1992 adopted the proclamation on the full participation and equality of people with disabilities in the Asian and the Pacific region. India is a signatory to the said proclamation. The proclamation is as under:
1. Proclaims the Asian and Pacific Decade of Disabled Persons, 1993-2002, with a view to giving fresh impetus to the implementation of the World Programme of Action concerning Disabled Persons in the ESCAP region beyond 1992 and strengthening regional cooperation to resolve issues affecting the achievement of the goals of the World Programme of Action, especially those concerning the full participation and equality of persons with disabilities;
2. Requests the Economic and Social Council and the General Assembly to endorse the present resolution and to encourage, at the global level, support for its implementation;
3. Urges all member and associate member Governments to review the situation of disabled persons in their countries and areas, with a view to developing measures that enhance the equality and full participation of disabled persons, including the following;
(a) Formulation and implementation of national policies and programmes to promote the participation of persons with disabilities in economic and social development;
(b) Establishment and strengthening of national coordinating committees on disability matters, with WA.2081/16 -:5:- emphasis on, inter lia, the adequate and effective representation of disabled persons and their organizations, and their roles therein;
(c) Provision of assistance, in collaboration with
international development agencies and non-
governmental organizations, in enhancing community- based support services for disabled persons and the extension of services to their families;
(d) Promotion of special efforts to foster positive attitudes towards children and adults with disabilities, and the undertaking of measures to improve their access to rehabilitation, education, employment, cultural and sports activities and the physical environment;
4. Urges all concerned specialized agencies and bodies of the United Nations system to undertake an examination of their ongoing programmes and projects in the ESCAP region, with a view to integrating disability concerns into their work programmes systematically and supporting national implementation of the present resolution;
5. Calls upon non-governmental organizations in the field of social development to utilize their experience and expertise in strengthening the capabilities and activities of organizations of disabled persons;
6. Urges organizations of disabled persons to cooperate with government agencies in strengthening means by which citizens with disabilities may realize their full WA.2081/16 -:6:- potential, and to strengthen linkages among disabled persons in developed and developing countries to enhance their self-help capacity;
6. Pursuant to the above proclamation, the Act came to be enacted in India to provide for the following:
(i) to spell out the responsibility of the State towards the prevention of disabilities, protection of rights, provision of medical care, education, training, employment and rehabilitation of persons with disabilities;
(ii) to create barrier free environment for persons with disabilities;
(iii) to remove any discrimination against persons with disabilities in the sharing of development benefits, vis-
a-vis non-disabled persons;
(iv)to counteract any situation of the abuse and the exploitation of persons with disabilities;
(v) to lay down a strategy for comprehensive development of programmes and services and equalisation of opportunities for persons with disabilities; and
(vi)to make special provision of the integration of persons with disabilities into the social mainstream.
7. The Act states that within the limits of the economic capacity and development, the appropriate Governments and the local authorities will have to undertake various measures for prevention and early detection of disabilities, creation of barrier- free environment, provision for rehabilitation services etc. The Act WA.2081/16 -:7:- also provides for education, employment and vocational training, reservation in identified posts, research and manpower development, establishment of homes for persons with severe disabilities, etc. The Act came into force with effect from 07.02.1996.
Section 2(b) of the Act defines blindness, and the same refers to a condition where a person suffers from:-
(i)total absence of sight; or
(ii)visual acuity not exceeding 6/60 or 20/200 (snellen) in the better eye with correcting lenses; or
(iii)limitation of the field of vision subtending an angle of 20 degree or worse;
Under Section 2(i) of the Act disability means blindness, which means total blindness. Thus it is clear that total absence of sight, i.e. total blindness, is also covered under the enactment.
Section 29 mandates that appropriate Governments shall set up adequate number of teachers' training institutions and assist the national institutes and other voluntary organisations to develop teachers' training programmes specialising in disabilities so that requisite trained manpower is available for special schools and integrated schools for children with disabilities.
Chapter IV of the Act deals with Prevention and Early Detection of Disabilities. Chapter V of the Act deals with Education. WA.2081/16 -:8:- Therein, it is clarified that appropriate Governments need to prepare a comprehensive education scheme providing for transport facilities, supply of books, etc. Chapter VI refers to Employment and Reservation in Employment. Section 33 of the Act specifies that every appropriate Government shall appoint in every establishment such percentage of vacancies not less than three per cent for persons or class of persons with disability of which one per cent each shall be reserved for persons suffering from blindness or low vision, hearing impairment, and locomotor disability or cerebral palsy in the posts identified for each disability. Thus, it is clear that persons with total blindness or low vision will get atleast 1% of the total vacancies relating to the posts identified for each disability. Section 36 further clarifies that the vacancies not filled up are to be carried forward.
Chapter VII deals with Affirmative Action. The appropriate Governments shall, by notification, make schemes to provide aids and appliances for persons with disabilities. The appropriate Governments shall by notification, frame schemes for the preferential allotment of land at concessional rates in favour of persons with disabilities.
WA.2081/16 -:9:-
Chapter VIII refers to Non-discrimination. Chapter IX refers to Research and Manpower Development. Chapter XIII refers to social security measures to be provided to disabled people. Appropriate Governments and local authorities shall, within the limits of their economic capacity and development, undertake or cause to be undertaken rehabilitation of all persons with disabilities.
Under Section 58(c) of the Act, the Chief Commissioner shall take steps to safeguard the rights and facilities made available to persons with disabilities. The Commissioner is empowered under Section 62 of the Act to look into the complaints with respect to matters relating to deprivation of rights of persons with disabilities. The provisions of Sections 47 and 62 of the Act together empower the Commissioner to look into the complaints in respect of the matters relating to deprivation of persons with disabilities and non- implementation of laws, rules, bye-laws, regulations, executive orders, guidelines or instructions made or issued by the appropriate Governments and the local authorities and to take up the matter with the appropriate authorities for welfare and protection of the rights of persons with disabilities, including the matter relating to dispensation with service.
WA.2081/16 -:10:-
Section 68 mandates that appropriate Governments shall, within the limits of their economic capacity and development, by notification, frame a scheme for payment of an employment allowance to persons with disabilities who had been registered with Special Employment Exchange for more than two years and who could not be placed in any gainful occupation.
It is made clear in Section 72 that, the Act and the Rules framed thereunder shall be in addition to and not in derogation of any other law for the time being in force or any rules, order or any instructions issued thereunder, enacted or issued for the benefits of persons with disabilities.
8. The intention of the legislature, while enacting the aforementioned Act, is to provide opportunity to integrate the persons with disabilities into social mainstream and to lay down a strategy for comprehensive development, programmes, services and equalisation of opportunities for persons with disabilities, and for their education, training, employment and rehabilitation amongst other responsibilities. We have considered the matter from the said perspective to ensure that the object of the Act, which is to give full effect to the proclamation on the full participation WA.2081/16 -:11:- and equality of people with disabilities in the Asian and Pacific region, is fulfilled.
9. The preamble of the Act states thus, "An Act to give effect to the Proclamation on the Full Participation of Equality of the People with Disabilities in the Asian and Pacific Region". The proclamation, in paragraphs (2) and (3) states thus:
"2. We note that in Asian and Pacific societies, minimum care and service are, to a large extent, provided for people with disabilities in the traditional family and community context. However, much more must be done to enable persons with disabilities to develop their full potential so that they may live as agents of their own destiny in the rapidly changing economic and social conditions of the region.
3. Throughout the region, the opportunities for full participation and equality for people with disabilities, especially in the fields of rehabilitation, education and employment, continue to be far less than those of their non-disable persons. This is largely because negative social attitudes exclude persons with disabilities from an equal share in their entitlements as citizens. Such attitudes also curtain the opportunities of people with disabilities for social contact and close personal relationships with others. The social stigma associated all too often with disabilities must be eradicated."
WA.2081/16 -:12:-
Therefore, in our opinion, the principles and the avowed object behind promulgation of the Act are to be imbibed. Legislative and societal changes have reduced discrimination towards visually impaired workers. With the enactment of the Act, the differently abled have a wider array of career possibilities.
10. One of the intentions of the legislature, while enacting the Act, was to lay down a strategy for comprehensive development of programmes, services and equalisation of opportunities for persons with disabilities, so also, to make special provision for the integration of persons with disabilities into social mainstream. Thus, merely because a person is totally blind, he cannot be denied an opportunity to integrate into social mainstream. Even a blind person is entitled to the usufructs of comprehensive developmental programmes. Equal opportunities should be given to such persons to come up in life. The persons with total blindness cannot be equated with offenders and sinners. Blindness is not a sin or stigma. India being a signatory to the proclamation, is bound to fulfil the "proclamation" mentioned supra.
11. Having regard to the objects of the enactment, we may safely state that the Union of India has enacted the said law to create barrier-free environment for persons with disabilities, to WA.2081/16 -:13:- remove any discrimination against any persons with disabilities in sharing of developmental benefits vis-a-vis non-disabled persons, to counteract any situation of abuse and exploitation of persons with disabilities, to lay down a strategy for comprehensive development of programmes and services and equalisation of opportunities for persons with disabilities, and to make special provision of the integration of persons with disabilities into the social mainstream. These are the objects, which the legislature intended to achieve by enactment of the Act.
Even assuming that the Act is not applicable strictly for providing of employment in the form of LPG dealership etc, it cannot be said that it is open for the oil companies or other semi- Governmental institutions to impose any condition to debar certain disabled category of people arbitrarily. For the purposes of formulating guidelines, in choosing the eligible candidates, the object of the Act, needs to be kept in mind, in order to avoid arbitrariness in selection. It is not open for the oil companies to contend that, in the absence of any law governing the field, they may debar the totally blind persons from getting dealership, ignoring the constitutional mandate.
WA.2081/16 -:14:-
Assuming that the Act is restricted to salaried employment only, it cannot be denied that the legislature has lend its helping hand to the persons with disabilities by enabling law, i.e. the 'Act'. Judiciary cannot keep quiet ignoring the 'spirit' behind the 'Act'. It is not open for the authorities to hold the rule book to show its letter forgetting the underlying object of the Act. The State has a positive duty to protect the constitutional right of a blind person. to compete with others, if the concerned avocation is not proved to be unsuitable for blind persons and if the person is otherwise suitable. The State is not showing any gesture of charity by providing the blind person to have dealership. On the other hand, it is an act of justice. Justice will not only flow from rule book, but it may flow from equity, human touch, warmth of human spirit, human right etc also. Right to life means Right to Dignified life. By denying an opportunity to the blind person to have LPG dealership only on the ground of blindness, if he is otherwise qualified, the authorities will be marginalising the blind, which will lead to violation of Right to Dignified life. If any provision/clause is made which offends right to live with human dignity, the same would lead to deprivation of right to live. Hence, such clause is unconstitutional. WA.2081/16 -:15:-
12. If the visually impaired candidate can confidently sit and write the examination for selection to the post of Probationary Officer in a Bank, it cannot be said that he is disabled to discharge the duties attached to LPG distributorship. Article 14 of the Constitution guarantees to every citizen of India, the right to equality before the law or the equal protection of law. The first expression "equality before the law" which is taken from the English common law, is a declaration of equality of all persons within the territory of India, implying thereby the absence of any special privilege in favour of any individual. It also means that amongst the equals, the law should be equal and should be equally administered and that likes should be treated alike. Thus, what forbids is discrimination between persons who are substantially in similar circumstances or conditions. It does not forbid different treatment of unequals. Article 14 is both a negative and positive right. Negative in the sense that no one can be discriminated against: anybody and everyone should be treated as equals. The latter is the core and essence of the right to equality and the State has the obligation to take necessary steps so that every individual is given equal respect and concern which he is entitled to as a human being. WA.2081/16 -:16:-
13. The selection must not be arbitrary. In this case, in our view, there is violation of right of the first respondent contained under Article 16(1), which provides that there should be equal opportunity for citizens in the matters relating to employment or appointment to any office. Here, the first respondent is denied equal opportunity, as given to other applicants, to participate in the selection process on the ground of disability. As mentioned supra, Clause 6.2.2 (b)(I) of Ext.P3 guidelines states that the persons with minimum of 40% blindness are entitled to apply. Though minimum percentage of disability is prescribed, there is no prescription of maximum percentage. However, it is stated that totally blind persons cannot apply which means the persons with 40% to about 95% disability can apply. We are at a loss to understand as to how a person with 95% blindness differs from a person with 100% blindness. At this stage, it is most important to note clause 11.5 of Ext.P3 guidelines, which reads thus:
"5. SPOUSE AS CO-OWNER In each case where an individual gets selected, his/her spouse (i.e. wife/husband) would be made co- owner, in case, the applicant is unmarried/ divorcee/ widow/ widower, an undertaking will be required to be given that after marriage/re-marriage, spouse will be WA.2081/16 -:17:- made co-owner. Co-owner means spouse will be 50% partner irrespective of age, qualification and employment. Individual applicants are not permitted to enter into partnership with anyone other than their spouse."
14. The aforementioned clause discloses that in case, an individual gets selected, his or her spouse, i.e., wife or husband, would be the co-owner automatically. If the applicant is unmarried/ divorcee/widow/widower etc., he/she will have to undertake that after marriage/re-marriage, the spouse will be made the co-owner. Co-owner means, spouse will be 50% partner irrespective of age, qualification, physical impairment and employment. Individual applicants are not permitted to enter into partnership with anyone other than their spouse. (a) If the applicant having total blindness, marries a person with full vision, the spouse with full vision becomes 50% partner in the business of distributorship. (b) So also, if an applicant with full vision marries another person with total blindness after getting distributorship, then also, one of the spouses will have 50% partnership. From the aforementioned, it is evident that, in both such cases, one of the spouses will have full vision and another total blindness. So also, in both such cases, 50% of the distributorship would be held by totally blind person. WA.2081/16 -:18:-
In the matter like the one on hand, the person having total blindness is completely debarred from getting distributorship, even if he/she wants to marry a person with full vision after getting the distributorship. Whereas, the applicant having full vision can marry a totally blind person after getting the distributorship. This would show that no bar or restriction is imposed on the blind spouse becoming a share holder, after marriage, whereas the blind applicant, as per the clause in question, is disqualified from making application for LPG distributorship, even though his spouse would have normal vision or sight. If an individual is selected, even if he is fully blind, his or her spouse automatically will become co-owner with 50% share in the distributorship. Even though the first respondent is blind, he can run the business with the help of qualified employees or his wife (having full vision), after marriage. Therefore, the blindness would not, in any way, affect running of the business, if the distributorship is awarded to the first respondent.
15. It is not in dispute that if a LPG distributor without any disability, becomes totally blind after getting distributorship for different reasons, the distributorship already granted cannot be withdrawn on the sole ground that he/she has become totally blind. In such eventuality, his/her spouse can carry on the business of WA.2081/16 -:19:- distributorship. Clause 11.5 mentioned supra is embedded in Ext.P3 guidelines only with a view to protect the fundamental right to live, guaranteed under Article 21 of the Constitution of India in favour of the totally blind persons also. The said clause creates a barrier free environment for persons with disabilities and it removes any discrimination against any person with disability in sharing of developmental benefits. The said clause equalises the opportunities for persons with disabilities and the same enables integration of persons with disabilities into mainstream. Thus, the object with which clause 11.5 in Ext.P3 guidelines is inserted, cannot be defeated by debarring a totally blind person to apply for distributorship. Since clause 6.2.2(b), insofar as it debars a blind person to apply for LPG distributorship, runs contrary to clause 11.5 of Ext.P3 guidelines as well as Articles 14, 16 and 21 of the Constitution of India, the said clause cannot be enforced by the appellant debarring totally blind persons.
16. The Hon'ble Supreme Court and different High Courts have pronounced judgments directing the authorities concerned to have a socially progressive approach in recognising the rights of disabled persons in respect of equal opportunities, protection of rights and full participation.
WA.2081/16 -:20:-
17. In the case of Amita v. Union of India and another [2006 SCC (L&S) 1507], the Apex Court held that the only restriction on the rights of disabled persons is that the nature of duties attached to the office/post should be suitable for such person. In the said matter, a visually impaired person had applied for the post of Probationary Officer in a Bank, in general category. She met with other eligibility requirements. However, she was denied the opportunity to write the examination due to her visual impairment. In the said matter, the Union of India admitted that the nature of duties of a Probationary Officer could be performed by a visually impaired candidate and some percentage of such candidates were entitled to be selected. Hence, directions were issued to allow her to write the examination and to relax the age limit for the delay occasioned due to the proceedings.
The Apex Court, in the said decision, relied on the judgment delivered in National Federation of Blind v. Union Public Service Commission [(1993) 2 SCC 411] in which, permission was granted to the visually impaired persons to compete and write the civil services examination and also for being given preferential treatment in respect of identified post. WA.2081/16 -:21:-
18. In the case of Government of India through Secretary v. Ravi Prakash Gupta [(2010) 7 SCC 626], the Apex Court was pleased to direct the authority to allow service of IAS to a person, who was declared visually handicapped to the tune of 100%. The law laid down by the Delhi High Court was affirmed by the Apex Court after noticing that the candidate therein obviously did not possess both physical requirement and functional classification in as much as 100% blindness would be a disability under functional classification. The Apex Court, in the said case, directed allotment of IAS to a person, who is 100% blind, by observing that the statutory reservation in pursuance to the enabling provisions in the Act cannot be deferred indefinitely for bureaucratic action.
19. We are conscious of the well established law that, to ascertain unreasonableness or arbitrariness in the context of Article 14 of the Constitution, it is not necessary to enter upon any exercise for finding out the wisdom in the policy decision of the Government. It is immaterial, if a better or more comprehensive decision could have been taken. It is equally immaterial, if it can be demonstrated that the policy decision is unwise and is likely to defeat the purpose for which the decision had been taken, as has been held by the Apex Court in the case of Krishnan Kakkanth v. Government of WA.2081/16 -:22:- Kerala and Others [(1997) 9 SCC 495]. Unless the policy decision is demonstrably capricious or arbitrary and not informed by any reason whatsoever or it suffers from the vice of discrimination or infringes any statute or provisions of the Constitution, the policy decision cannot be struck down. We are also conscious of the fact that the Court should avoid embarking on uncharted ocean of public policy. However, in the matter on hand, for the reasons assigned and having regard to the object of the Act, we are of the opinion that the exclusion of totally blind persons from applying to get distributorship suffers from vice of discrimination and infringes the provisions of the Act and Articles 14 and 16 of the Constitution of India.
20. Non-arbitrariness, being a necessary concomitant of the rule of law, it is imperative that all actions of every public functionary, in whatever sphere, must be guided by the reason and not humour, whim, caprice or personal predilections of the persons entrust with the task on behalf of the State and exercise of all power must be for public good instead of being an abuse of the power. It is well settled that the Courts may not normally interfere with the matters of policy, it may do so, if it is shown that the policy is WA.2081/16 -:23:- arbitrary or capricious of not informed by any reason whatsoever or where it suffers from vice of discrimination.
21. Coming to the case on hand, it is the case of the appellant and the Union of India that operating LPG distributorship involves day-to-day physical involvement and if a person is totally blind, he/she will not be able to perform the duties properly. This is purely a policy matter of the Central Government. The distributorship operation involves managing a workforce, personal attention to customer services and complaints, physical self verification of the inventory of cylinders/regulators in the LPG godown on a daily basis etc. According to the appellant, since the work involves personal involvement in all the aspects, it 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 and that the safety issue cannot be addressed, if the person is totally blind.
22. Having regard to the aforementioned contentions of the Union of India, we have considered the question as to whether the functional duties attached with LPG distributorship would render a totally blind candidate ineligible.
23. The sum and substance of the case of the appellant is that since the first respondent is totally blind, he may not be able to WA.2081/16 -:24:- handle the day-to-day activities of the distributorship and to discharge the functional duties attached with the LPG distributorship, having regard to the nature of duties and the fact that the gas cylinders contain hazardous substance. Such contentions cannot be accepted. Under the guidelines,as mentioned supra, blind persons with a minimum degree of 40% disability also are eligible to apply for LPG distributorship. The prescription of 40% is only a minimum percentage of disability and not a maximum percentage of disability. Thus, it is clear that blind persons having 40% disability and more can apply, which means that persons having 90 to 95% blindness can also apply.
24. In our considered opinion, a physical defect or deformity, which, in no way, interferes with the normal or efficient functioning, should not be considered as an absolute bar to public employment, in regard to posts not associated with physical activity. There cannot be any doubt that a person's candidature can be rejected, if on medical examination, he is found unfit to discharge the functions normally associated with a supervisory personnel or managerial personnel. Similarly the candidature of such a person may also be rejected for the post of a Driver of a vehicle. But, where interference with normal or efficient functioning is not likely, on account of such defect, and WA.2081/16 -:25:- medical examination and opinion does not say so, existence of a mere physical defect or deformity by itself cannot be termed as unfitness for a job.
25. The appellant is not a private employer. It is an instrumentality of the State. It cannot act arbitrarily, unreasonably and high-handedly or practice discrimination. It owes a public duty to act fairly and reasonably and all its actions must be informed with reason. Therefore, either to formulate or enforce a policy not to consider any person, who is totally blind, for employment, irrespective of whether he is otherwise fit or capable of doing the work through his partner or spouse as well as through the supervision of the spouse, is nothing short of arbitrariness and shows a baseless prejudice against such persons.
26. No authority can formulate a policy relating to appointment with such arbitrariness. The Courts will not normally interfere with the standards fixed by an employer (authority) to ascertain medical fitness of a person for employment. But, the Courts will interfere with an arbitrary prohibition to appointment in absolute terms, merely on a physical defect or deformity, which is not shown to have any effect on the normal and efficient functioning of the person in the post or employment. There can be no doubt WA.2081/16 -:26:- that different standards of fitness may be required for different types of post. For example, with regard to military service or police service, a minimum height and weight may be prescribed, and a minimum physical fitness may strictly be insisted upon. But, for the post of Law Officer, a minimum height has no relevance. In this case, the visually impaired person/first respondent can ably supervise the activities of distributorship through his spouse, who would not be having visual impairment. Since the notification prescribes that the spouse of the selected candidate would become partner automatically after the marriage to the extent of 50%, it is not open for the authorities to ignore such a clause, while imposing the clause excluding the totally blind persons. What requires is mental alertness, mental capability and physical fitness which will ensure efficient discharge of his functions. So long as the defect for deformity has no effect on the efficient and normal functioning of the person, the defect by itself cannot be a ground dis-entitling a the person for being considered for the post.
27. Nothing is forthcoming from the records, so also, we are not satisfied with the submissions made by the learned counsel for the appellant that the disability in question will have any effect on the normal and efficient functioning of the person, who is working WA.2081/16 -:27:- as LPG distributor. Moreover, the guidelines mandate that the spouse should be made co-owner, which is more favourable for the blind applicant, to discharge his functions effectively.
28. Having regard to the totality of the facts and circumstances, we are of the clear opinion that the first respondent can perform his duties as a distributor effectively as done by the other distributors having full vision and the public at large will not be affected. Since his spouse will be active in the affairs of distributorship and as the totally blind person has to merely discharge his managerial and supervisory duties, in our considered opinion, there will be no hurdle for the appellant to entrust the work of distributorship to totally blind person.
29. In our considered view and in view of the discussions made herein earlier, in the facts and circumstances of the case, Article 14 was being infringed for denial of permission to the applicant, the first respondent, to claim LPG distributorship on the ground that he was a visually impaired candidate. Likewise, the primary object, which is guaranteed by Article 16(1), is equality of opportunity and that was violated by the appellant by debarring the first respondent from applying, for getting the distributorship on the WA.2081/16 -:28:- mere fact of total blindness, which, according to the first respondent, is an impediment for the job.
30. As regards the rejection of 1st respondent's application on the ground of non-compliance of specifications regarding the godown plot is concerned, before the learned single Judge an offer was made, that alternative plot of the required specifications shall be provided. Learned single Judge taking note of the fact that the 1st respondent alone is the applicant and since there is no competing candidate, he can be permitted to offer alternative plot. However, the fact remains that Ext.P3 notification totally excluded the category of blind persons. That must have been the reason why no other blind candidate has offered tender. Since Ext.P3 totally excluded blind persons from applying, blind persons otherwise eligible, would not have applied for the distributorship in question.
Therefore, it is only just and proper that the appellant be directed to invite fresh applications for appointment of LPG distributorship for the location, "Kottiyam, in Kollam District" which was reserved for Combined Category (CC) applicants belonging to Scheduled Caste category after deleting the clause regarding non- eligibility of totally blind persons. However, at the cost of repetition, we clarify that, only the persons coming under Combined Category WA.2081/16 -:29:- (CC) belonging to Scheduled Caste should be entitled to apply. Ordered accordingly.
With the above observations, the writ appeal is allowed in part.
Sd/-
Mohan M. Shantanagoudar, Chief Justice Sd/-
Sathish Ninan, Judge krj.4/1 /true copy/ P.A to Judge