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Madhya Pradesh High Court · body

2002 DIGILAW 74 (MP)

Sushil Joshi v. Indian Oil Corporation

2002-01-21

N.K.JAIN, S.L.KOCHAR

body2002
JUDGMENT Jain, J. -- 1. This Letters Patent Appeal filed under Clause X of the Letters Patent of the High Court of Madhya Pradesh arises from the Order dated 13.1.2000 passed by learned Single Judge of this Court in Writ Petition No. 635/1995 dismissing appellant's petition filed under Article 226/227 of the Constitution of India, challenging rejection of his application for allotment of LPG Dealership by the Dealers' Selection Board - the respondent No.2 herein. 2. Appellant petitioner is the son of late Shri Anirudh Joshi who died while he was in service of the State Government on the post of Superintendent Jail. The appellant in response to an advertisement given by respondent No. 1 - The Indian oil Corporation Limited - and published in the Times of India on 10.7.1998, submitted a application for appointment of LPG Distributor/Dealer with respondent No.1 in Paramilitary/Police Personnel Category (for short, 'the PMP Category'). The selection was to be made by respondent No.2 - The Dealers' Selection Board Bhopal - 1. Respondent No. 3 Shri S.L Lodha was the Chairman while respondent No. 4 Shri M.L. Barunkar its Member Secretary at the relevant time. The appellant was called for interview twice firstly on 4.2.1999 and then on 5.3.1999 However, his candidature was rejected on the ground that he did not fall within the PMP Category, vide letter dated 5.3.199S Aggrieved by the decision of the Selection Board, the petitioner approached the Single Bench of this Court under Article 226/227 of the Constitution challenging rejection of his application inter-alia on the ground that he did fulfil the eligibility criteria. He also challenged his impugned rejection on the ground that respondent No.2 - Board was not a validly constituted Board inasmuch as respondent no.4 S.L Lodha was not competent to be appointed as its Chairman. The petition was opposed by the respondents. The learned Single Judge dismissed the petition holding that the petitioner did not fall within the PMP category firstly because his father did no die while on duty and secondly, the petitioner was not dependant on his father on the date when he submitted the application. The learned Single Judge also rejected petitioner's plea regarding validity of the constitution of the Selection Board. 3. The learned Single Judge also rejected petitioner's plea regarding validity of the constitution of the Selection Board. 3. We have heard Shri M.G. Upadhyay learned counsel for appellant - petitioner and Shri B.L. Pavecha, learned senior counsel appearing with Shri Yogesh Mitta for respondent No.1 and Shri N.S. Purohit learned counsel for respondents No.2 to 4 4. As regards the allegation that respondent No.2 - Board was not a validly constituted Board, at the outset it may be noted that the challenge to the validity of appointment of respondent No.3 as the Chairman of the Selection Board, is no made directly and no substantive proceeding in this regard is instituted or any relief claimed by the petitioner. The challenge is only collateral which, we an afraid, is not permissible in law. It is interesting to note that notwithstanding the said challenge, the petitioner seek direction to the same Board and the same officers (including S.L. Lodha - the Chairman) to reconsider his candidature That being so, he cannot be allowed to raise any objection as to the validity of the appointment of respondent No. 3 and impugn his action on that ground. See State of Harayana v. The Haryana Co-op Transport [ AIR 1977 SC 237 ] and Gokaraju [ AIR 1981 SC 1473 ]. 5. Coming to the merits of the order of rejection, the learned Single Judge has non-suited the petitioner on two grounds : one, that his candidature did not fall within the purview of PMP Category because his father did not die while on duty and secondly, that he was not dependant on his late father on the date of his making the application. Shri M.G. Upadhyay, learned counsel for the appellant has, however severely criticized these findings ant submitted that the same are based on total misreading of the eligibility clause as set out in the Government of India's Notification (Annexure P-l) issued in this behalf. Shri M.G. Upadhyay, learned counsel for the appellant has, however severely criticized these findings ant submitted that the same are based on total misreading of the eligibility clause as set out in the Government of India's Notification (Annexure P-l) issued in this behalf. Clause 2.9.14 of this Notification provides for the eligibility for PMP Category and reads as follows: "2.9.14 : Eligibility for PMP Category -- The following persons will be eligible -- the personnel of Paramilitary/Police Personnel including persons having served in BSF, CRPF, CISF, ITBP, Railway Protection Force, Special Reserved Police, Special Armed Police, Coast Guards, Assam Rifles etc., as designated by Central Government and Police Forces of the States, Customs and Central Excise Department, Narcotics Control Bureau, Enforcement Directorate, Economic Intelligence Bureau, Directorate General of Anti-Evasion and Directorate of Revenue Intelligence and those serving in different Departments of Central/State Governments who are incapacitated OR disabled while performing their duties. In case of death, while performing duties, their widows/dependents will also be eligible under this category: Inter-se Priority: (a).............. (b) Widows/dependents of persons having died on duty. (c)............... (d) Widows/dependents of persons who died while in service; and (e)..............." 6. It may be clarified here that the latter part of this para merely provides for inter-se priority amongst the candidates applying in PMP Category. This letter part does not deal with the eligibility of the candidates which has to be determined in terms of the former part of this para which alone provides as to who would be eligible for PMP Category. A careful analysis of this clause/para would show that a candidate must either himself be a Paramilitary/Police Personnel having served or serving in the various Departments of the Government of India or State Government as enumerated in the clause, who is incapacitated or disabled while performing his duty; or is a widow or dependant of such personnel who died while performing his duties. We are simply unable to agree with the contention of Shri Upadhyay that this PMP Category would include every employee of the Central or the State Government who is so disabled or incapacitated or who has died while performing his duty or while in service. We are simply unable to agree with the contention of Shri Upadhyay that this PMP Category would include every employee of the Central or the State Government who is so disabled or incapacitated or who has died while performing his duty or while in service. If such a meaning was to be attached to PMF Category then there was no need to call it Paramilitary Personnel Category or ever to provide for the personnels of Paramilitary/Police Forces because every such personnel would be either in the employment of the Central Government or the State Government. There can be no manner of doubt that the advertisement in question was meant only for the personnel of Paramilitary or Police Forces which would include such other forces as enumerated in the aforesaid clause. The words and those serving in different Departments of Central/State Government used in this para only referred to those personnel of the Paramilitary or Police Forces who are serving in different Departments of the Central or State Governments and who have been incapacitated or disabled or died while performing their duties. The earlier part of this clause refers to such personnels who were in such services and have now retired, while the latter part of this clause refers to such personnels who were still in service and have either been disabled or died while on duty. The petitioner herein is a son of a State Government employee who was working on the post of Superintendent Jail and died while on service. He was neither a personnel of Paramilitary Force nor of Police Force and did not die while performing his duty. The petitioner could not be, therefore, treated as dependant of a Paramilitary Personnel or a Police Personnel. He could not be also treated as dependant because as per his own showing he has been working with a Public. Limited Company with annual salary Rs. 78,000/-. 7. Shri Upadhyay, learned counsel for the petitioner has taken us through various Annexures required to be filed with the application for the appointment in question and pointed that every such candidate has to disclose his income and that the maximum of such income is also provided so as to enable him to seek appointment. He thus contended that the advertisement did not, therefore contemplate a candidate having no income and depending wholly on his/her deceased father/husband. He thus contended that the advertisement did not, therefore contemplate a candidate having no income and depending wholly on his/her deceased father/husband. We are, however, no persuaded by the argument. A careful reading of those clauses would show that the income contemplated in those clauses also included the income of the deceased father/husband. It also referred to the income of a Paramilitary/Police Personnel who is a candidate because of his being rendered disable while performing his duty. The word 'dependant' has, therefore to be understood in its proper prospective 8. The Apex Court in Haryana Public Service Commission's case [ (1998) 5 SCC 452 ] while interpreting the wordS 'dependant of ex-serviceman', while dealing with more or less a similar situation, has held: . 'The whole idea of reservation is that those who are dependant for their survival on men who have lost their lives or become disabled in the service of the nation should not suffer. The public purpose of such reservation would be totally lost if it were to be made available to those who are gainfully employed There is no justification for construing the words 'dependents of ex-servicemen' in any manner other than that in which the appellant Commission construed it, viz., one who was gainfully employed could not be termed as a dependant of an ex-serviceman. This is in accord with the reservation policy itself. " 9. In the instant case, therefore, the petitioner who is in gainful employment for last so many years cannot be treated a dependant for the purpose of the appointment in question. His candidature has been rightly rejected by the Selection Board and no fault can be found with the view taken by the learned Single Judge. 10. This Letters Patent Appeal thus fail and is dismissed but without any order a to costs.