Delhi High Court
Srikrishan Gupta vs Govt. Of Nct Of Delhi And Ors. on 23 August, 2005
Equivalent citations: 123(2005)DLT227, 2005(84)DRJ301
Author: Vikramajit Sen
Bench: Vikramajit Sen
JUDGMENT
Vikramajit Sen, J.
1. This writ petition relates to the grant of a license of a Kerosene Oil Depot (KOD) in the year 1994 for which the Petitioner as well as Respondent No. 2 were applicants and aspirants. The Petitioner was not successful and the KOD was granted to Respondent No. 2. This decision has been assailed on the ground that Respondent No. 2 was illegally treated as a physically disabled person despite the fact that the medical certification on which he had relied specifically stated that his disability was less than 40%. Secondly, it has been contended that the decision which had to be taken by the Assistant Commissioner was in fact taken by the Minister/MLA and, therefore, there has been a dereliction of the statutory duty in the Office of the Commissioner.
2. Learned counsel for the Respondent No. 2 has raised a preliminary objection to the effect that the Petitioner has not availed of the remedy of filing an Appeal against the Order rejecting his application for grant of a license. In this context reliance has been placed by learned counsel for Respondent No. 2 on Rule 8 of the Delhi Kerosene (Export and Price Control) Order, 1982 brought into effect in exercise of the powers conferred by Section 3 of the Essential Commodities Act, 1955. This provision stipulates that any person aggrieved by an Order of an officer below the rank of Commissioner (Food & Supply), Delhi refusing to grant or renew a license, or suspending or cancelling the license, or forfeiting the security deposited by him, may prefer an Appeal before the Commissioner (Food & Supply) within a period of thirty days of receipt of such an order. In my view this provision does not apply to the facts of the present case. A writ petition may contain a prayer for the grant of a license; additionally it may contain a prayer seeking cancellation of the grant of a license to a third party, for the reason that that decision was illegal. The second prayer would not come within the ambit of Rule 8 of the Delhi Kerosene (Export and Price Control) Order, 1982. In an enquiry covering the second event, if the Respondents can show that there is no infraction of the law in the grant of license to the concerned party, the enquiry under Article 226 ought not to go any further. An Order granting the license to Respondent No. 2 can be assailed in a writ filed by a totally disinterested person on the grounds that it is mala fide or otherwise illegal. A writ petition filed by a person who was a candidate would also be maintainable. Furthermore, the impugned decision appears to have been taken by the District Commissioner who is not below the rank of Commissioner (Food and Supplies).
3. So far as the disability is concerned, it has not been controverter that Respondent No. 2 has a disability which is less than 40%. The Persons with Disabilities (Equal Opportunities, Protection of Rights and full participation) Act, 1995 (hereinafter referred to as `the Disability Act’) came into force only on 7.2.1996 and, therefore, would not directly have a bearing on the controversy in question. However, it is noteworthy that Section 2(t) of the Disability Act defines person with disability to mean a person suffering from not less than 40% of any disability as certified by a Medical Authority. It is, however, evident that this was the prevailing thinking so far as relevant criteria is concerned even at the time when the license was granted. The Uniform Definition of Physically Handicapped, promulgated by the Government of India, Ministry of Welfare, Shastri Bhawan, New Delhi, dated 6.8.1986, bears evidence of this fact. The relevant portion reads as follows:-
“Subject: Uniform Definitions of the Physically Handicapped.
At present, different definitions for various categories of handicapped are adopted in various schemes/programmes of the Central and State Governments. In order to have a standard set of definitions, authorised certification authorities and standard tests for purpose of objective certification. Government of India in Ministry of Welfare set up three committees under the Chairmanship of Director General of Health Services ‘ one each in the area of visual handicaps, speech and hearing disorders and locomotor disabilities and a separate Committee for mental handicaps.
2. After having considered the reports of these committees and with the concurrence of the State Governments/UTs and the concerned Ministries/Departments the undersigned is directed to convey the approval of the President to notify the definitions of the following categories of physically handicapped:-
1. Visually handicaps.
2. Locomotor handicaps.
3. Speech & hearing handicaps.
4. Mental handicaps.
Report of the Committee as indicated in the Annexure I.
3. Each category of handicapped persons has been divided into four groups viz. Mild, moderate, severe and profound/total. It has been decided that various concessions/benefits would in future be available only to the moderate, severe and profound/total groups; and not to the mild groups. The minimum degree of disability should be 40% in order to be eligible for any concession/benefits.
4. Attention has also been drawn to the Manual for Functionaries of Institutions and Services promulgated by the Directorate of Social Welfare in March, 1989 which stipulates that in respect of applications for allotment for kiosks/shops certification was necessary from a Government Hospital showing that the percentage of Orthopedic disability is 40% and above. The Uniform Definition of the Physically Handicapped and the Manual for Functionaries of Institutions and Services has been mentioned for the reason that the Government of NCT has in paragraph 6 of the Additional Affidavit sworn by the Assistant Commissioner (F&S) adopted the fallacious and indefensible position to the effect that the ‘Respondent does not adopt the Government of India booklet for Uniform Definition of ‘Physically Handicapped’ which determines handicapped according to the degree of incapability. There is no specific degree of handicapped which is adopted to determine the preferential category of the deptt. other than this there is no preferential policy adopted by the Respondent department.’ This stance flies in the face of the decision of the State Government and Union Territories which has received the approval of the President of the Republic of India. Stern action and stricture are called for against the Deponent.
5. Even ignoring for the present the statutory provisions of the Disability Act, it appears to be absurd that the degree of disability should be considered an irrelevant factor in the mind of any Administrator. The Administration cannot be permitted to capriciously decide that a person suffering from a superficial injury can nevertheless be treated as a physically handicapped person and thereby circumvent the mandates of equality as articulated in Article 14 of the Constitution. The specious stance or argument put forward in the additional Affidavit of Shri S.K.V.Shinde, Assistant Commissioner (F & S) is also wholly devoid of merit and is indeed mala fide, calculated to endeavor to justify an unjust decision which attempts to introduce an arbitrary and unintelligible differentia. Once the Government of India decides the criteria which will uniformly determine and define which persons are to be treated as physically handicapped, such guidelines must be adhered to by all Authorities unless those Authorities have the power to arrive at a different conclusion, and in the exercise of that power a different conclusion is actually arrived at. It is in this regard that the Manual for Functionaries of Institutions and Services issued by the Directorate of Social Welfare, Delhi Administration assumes critical significance, in that so far as the Delhi Administration was concerned, for the grant of Kiosks/shops on a preferential basis to the physically disabled a minimum 40% disability must necessarily have been in existence. This consideration must pervade every decision taken by the Delhi Administration.
6. So far as the dereliction of the duty by the Assistant Commissioner is concerned, it is indeed note-worthy that a letter had been addressed to Shri Harish Rawat, ex-member of Parliament by Shri Raj Kumar Saxena, the then Dy. Commissioner (Policy) containing the following alarming and disturbing contents -“However in the matter of allotment, everything being equal, due weightage is given to the recommendations of area MLA, if any, while deciding the allotment in favor of any applicant. Such recommendations from the MLAs are given due weightage where necessary and possible, irrespective of the party affiliation and certainly not at the cost of the approved policy and merit.” This proposition is anathematic and abhorrent to canone of administrative law. Every citizen of India is constitutionally guaranteed equality of treatment.
7. A perusal of the records disclose that the then Minister of Food & Supply, namely, Shri Lal Bihari Tiwari, had recommended the case of the Respondent No. 2. This recommendation seems to have been blindly implemented by Shri S.C.Sareen, DC(E). The relevant noting of the files reads as under:-
“As far as the case of M/s. OM, KOD, applicant is concerned, belongs to the preferential category being physically handicapped and hence there is no problem.”
8. In this context learned counsel for the Respondent No. 2 has drawn attention to the condition/policy for allotment, which in clause 2(a) states – ‘physically handicapped (not totally incapable running the PDS outlet’. The argument is that persons with physical disability can be granted a license only if they are capable of running a PDS outlet and, therefore, the decision to grant the license to the Respondent No. 2 was perfectly in order since Respondent No. 2 suffered from less than 40% disability, and, therefore, presumably was not incapable of running the PDS outlet. The contention is devoid of merit. It does not vindicate the decision to grant a license to Respondent No. 2 who does not qualify to be legally treated as a physically disabled or handicapped person. What this condition envisages is that persons who are physically handicapped to the extent of 40% or above should nevertheless be capable of running the PDS outlet, if the preferential allotment is intended to be granted to them. Arguably, a blind person would be unsuitable for grant of such a license. This condition does not waive the basic stipulation to the effect that a person must suffer from at least 40% disability to enable him to be considered for preferential treatment under the physically handicapped category. Some percentage must be fixed; otherwise the bestowal of the preference would be perennially pregnant with the possibility of partisanship and caprice. Although the records have been produced, counsel for the Petitioner on instructions from the Assistant Commissioner (East) who is present in Court, is unable to show any Order or noting which takes into consideration the stipulation that even though Respondent No. 2 is not physically handicapped up to the extent of 40% and above he should be granted a license for the KOD or the PDS outlet, because an applicant with a disability extending to 40 per cent or above would not be capable of running it. If this interpretation is allowed, it is conceivable that persons with 5% disability would steal a preferential allotment and thereby completely annihilate the constitutional imperatives of Article 14 of the Constitution of India.
9. During the pendency of this writ petition for over one decade, the license issued to Respondent No. 2 has been renewed from time to time. The course that commends itself, therefore, is that this license shall not be renewed on the expiry of its present term. Fresh applications will be invited by the Respondent No. 1, Government of NCT of Delhi and the decision whom to grant the KOD license shall thereafter be taken in accordance with law.
10. Accordingly, the writ petition is allowed and a direction is hereby issued to Respondent No. 1 not to renew the license granted to Respondent No. 2 on the expiry of its current tenure. A grievous violation of law has occurred for which there would be no alternative but to conclude that the impugned decision was taken by the Commissioner instead of the Assistant Commissioner on the dictates of the Minister and the MLA concerned. Respondent No. 1 shall take immediate steps inviting fresh applications within thirty days from today for grant of a license of the subject KOD.
11. The Petitioner shall be entitled to costs adjudicated at Rs.10,000/- to be paid by the Respondents in equal proportion.