1. This petition under Article 226 to the Constitution of India has been filed by the petitioner for issuance of direction to the respondents to admit the petitioner in any of the Engineering College under the reserved category of Defence Killed or permanently disabled in action during hostilities/wars of during peace time and for quashing the decision of the respondents cancelling the candidature of the petitioner.
2. The facts as stated in the petition briefly are that the petitioner qualified All India Senior School Certificate Examination, 1995 from the Central Board of Secondary Education, and secured high grade. The respondent-University issued a Notification/ Information booklet in relation to Pre-Engineering Test (PET), 1995, a true copy of which has been filed as Annexure-1 to the writ petition. It is averred that the father of the petitioner is serving as Lt. Col. in Indian Army who has been categorised as permanent disabled. His disability is direct and proximate result of his posting in the State of Assam to meet out the insurgency operation where he was posted in between July, 1988 to December, 1990. Because of the tremendous anxiety and surrounding circumstances developed he became the patient of Non Insuline Dependant Diabetes Mellitus which, has been resulted into permanent disability. In pursuance of the notification/ advertis
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ement issued by the respondents, petitioner submitted application form for appearing, in PET Examination, 1995. It is alleged that in the application form the petitioner specifically mentioned that her father is serving in Indian Army. It is further averred that she had submitted that her candidature may be, considered against the quota reserved for the candidates belonging to the category of 'permanently disabled Defence Personnel.' The respondent-university declared the result of PET Examination, 1995 on 12-7-1995 which was published in Hindi daily newspaper known as Rajasthan Patrika and the Roll No. allotted to the petitioner in the, said examination was 3511 and she was declared as successful in the examination and the category mentioned in the newspaper against her name was D. K. (Defence Killed). In pursuance of the notice received from the University, petitioner appeared for interview before the Interview Board on 29-7-1995. It has been further stated that the total seats reserved in the category of D. K. are "26". It has been averred in the petition that though the petitioner had been declared qualified, but at the time of interview she was informed that she cannot be given admission in any of the Engineering Colleges for the reason that he does not belongs to the category of D. K. and her father is serving in Indian Army. Thereupon, petitioner's father submitted a representation to the Vice-Chancellor and Chairman, Selection Committee PET, 1995, a true copy of which has been filed as Annexure-3 to the writ petition. Since nothing was communicated to the petitioner reminder was sent on 30-7-1995. It is further alleged that the petitioner and her father approached to the Secretary, Technical Education, Government of Rajasthan on 31-7-1995 and on 1-8-1995, but no action was taken on her request. It is alleged that the respondents have cancelled the candidature of the petitioner on the ground that the father of the petitioner is still serving in Indian Army. Petitioner feeling aggrieved against the cancellation of her candidature for being admitted in any of the Engineering Colleges of the State of Rajasthan has approached this Court in the instant petition. In view of the urgency of the facts of the case', the case was directed to listed for final disposal at the admission stage itself. The counter affidavit has been filed on behalf of the respondent No. 1 and the petitioner has also filed rejoinder affidavit to the same. In the coupler affidavit filed on behalf of the respondent No. 1, the respondent-University has stated that the petitioner does not fail within the quota reserved for the category of dependents of Defence Killed/disabled for Defence Personnel/ para military forces killed or permanently disabled in action during Hostilities/wars or during peace time. It has. further been stated that in order to get the benefit under the reserved quota as stated above, the petitioner was required to have proved that the permanent disability was caused in action during hostilities/wars or during peace time and as per the Certificate itself the father of the petitioner had been suffering from 'diabetes mellitus' disability on 24-1-1991 while serving in Jaipur. It was has been further alleged that even in the certificate it has nowhere been stated that the alleged disability was caused in action during hostilities/war or during peace time. It has been urged in para 7 of the counter affidavit that since the petitioner had filled the columns provided for defence killed or permanently disabled category (05) along with the certificate dt. 8-3-1995, hence she was shown in that category, but at the time of interview her certificate was examined and scrutinised then it was found that she was not entitled to the benefit of reserved quota. In para 8 of the counter affidavit it has been admitted that it is true that there were total 26 seats in the category of D.K. (05) but as there were only 3 candidates who had secured 33% and above marks in each paper of the PET 1995 and the petitioner was the 3rd applicant who had secured 33% and above marks in the said examination, but petitioner could not entitle to have reservation for D.K. (05) in the absence of any documentary proof for getting the benefit under the reserved quota. It is emphatically denied by the respondents that the petitioner falls within the category of D.K. (05). The respondents have further denied that the candidature of the petitioned has not been cancelled on the ground that petitioner's father is serving in Indian Army, but it has been cancelled on the ground that petitioner does not fail within the category 'claimed by her in her admission form.
3. I have heard Mr. R. N. Mathur, learned counsellor the petitioner, Mr. U. N. Bhandari, Senior Counsel for the respondent No. 1 and Mrs. Naina Saraff, counsel for the respondent No. 2 Mr. R. N. Mathul, learned counsel for the petitioner vehemently urged that petitioner's father incurred permanent disability while he was posted at Assam during insurgency operation and as such, the petitioner's case was squarely covered under the reserved category reserved for Defence Personnel who have been permanently disabled during hostilities/wars or peace time. Mr. Mathur specifically invited the attention of the Court to the 'Instructions for the guidance of candidates intending to appear at the Pre-Engineering Test, 1995 issued by Mohan Lal Sukhadia University, Udaipur (Rajasthan) and specifically invited the attention of the Court to the Instruction No. 2 (c)(iii), the relevant portion of which reads as under :--
"In case of candidates belonging to the category of physically Handicapped/Children of Ex-Servicemen/ Children of Defence Personnel/Para Military Forces killed or permanently disabled in action during the hositilities/wars or during peace time, the certificate from the competent authority in proof of his/her being of that category."
4. On the basis of the said Instruction Mr. Mathur, learned counsel for the petitioner contended that for getting the benefit under the reserved category as claimed by the petitioner, it is not necessary that permanent disability should be incurred during action/ hostilities/wars or even if it is during peace time the children of Defence Personnel are entitled to the said benefit. From the perusal of the aforesaid instruction, it appears that the word "permanent disability" has not been defined and as such, the question whether the father of the petitioner was suffering from 'Diabetes Mellitus' will amount to 'Permanent Disability' or not is a mute question which has to be decided. The other question which needs the determination by this Court is whether such permanent disability was incurred while father of the petitioner was posted at Assam during peace time then, the benefit will be available to the children of Defence Personnel ? The most glaring fact of the case is that the petitioner has not filed any Certificate or document to prove the permanent disability incurred by the petitioner's father except the averments made in the writ petition, whereas, the respondents have filed a copy of the Certificate dt. 8-3-1995 issued by Mr. Subodh Kumar, Colonel Director, AFMS (Ping), New Delhi, a copy of which has been filed as Annexure R-1/2 to the writ petition, for the proper appreciation of the controversy, I consider it proper to narrate the same in extenso:--
"CHILDREN OF DISABLED ARMY
SERVICE PERSONNEL AND ARMY
(By OC of the last unit served/Record Officer/DSS A & B Board)
It is certified that No. MR-3947A Rahk-Lt. Col Name--VM Mathur son of Shri ML Mathur resident village/City-Jaipur District-Jaipur State--RAJASTHAN is permanently disabled with DIABETES MELLITUS disability on 24 Jan., 1991 while serving in JAIPUR. The disability was aggravated due to Military service. The copy of Medical Board Proceedings (AFMSF-15) indicating the disability of the individual and attributability issued by ADMS HQ 61 (Indep) Sub Area on their AFMSF-15, dated 08 April, 1991 is attached.
Dated : 08-3-1995
Place : New Delhi Signature
Name (Subodh Kumar)
Office Seal Director
Min. of Def.
5. The said certificate clearly indicates that the same was issued on 8-3-1995 whereas, the petitioner is alleged to have been posted at Assam between July, 1988 and December, 1990. The disability is alleged to have incurred at the time of medical examination on 24th Jan., 1991 when the petitioner's father was serving in Jaipur.
6. A pointed question was posed by the Court to the learned counsel for the petitioner to refer any rule, instructions, directions or guidelines, of the Defence Department in order to determine as to what is the meaning of the words "permanent disability". Learned counsel for the petitioner expressed his inability to refer to any rule, instructions, directions or guidelines, wherein the words "permanent disability" have been defined. However, he has produced booklet/ Guide to the Medical Officers (Military Pensions) 1980. In the said booklet, in the definition Clause 7(a) the word 'disability' has been defined, but the words "Permanent disability" has not been defined. Clause 7(a) of the definition clause reads as under :
"7 (a) disability denotes solely the actual wound, injury or disease, the disablement caused by which gives rise to a claim for compensation. It is to be carefully distinguished from disablement which means physical or mental injury or damage, or loss of physical or mental capacity suffered by reason of a disability or disabilities."
7. Learned counsel for the respondents has strenuously urged that the petitioner has not produced any evidence in support of her contention that her father incurred permanent disability during peace time while he was posted at Assam. The Certificate dt. 8-5-1995 clearly indicates that the disability was detected in 195)1 while the petitioner's father was serving at Jaipur. Respondents' counsel further contended that the petitioner did not produce any certificate issued by the Commandant, Assam under whom the petitioner's father was : serving from 1988 to 1990. A perusal of copy of the report of the Medical Board shows that the disability incurred by the petitioner's father is such which is likely to improve if the disease from which the petitioner's father was suffering. Therefore, if the disability with which the petitioner's father was suffering was likely to improve, then by no stretch of imagination, it can be said that the petitioner's father has been suffering from permanent disability. If it was a case of permanent disability, in my opinion, the question of improvement does not arise. A perusal of the definition as mentioned in the Pension Rules shows that disability can be caused not only by wound or injury, but by disease as well. However, the question whether the disease with which the petitioner's father was suffering can be said to be the disease which can cause permanent disability? From the facts stated above, it is abundantly clear that since the petitioner was claiming the benefit of reserve category, she should have placed material on record, but she has utterly failed to produce any document to substantiate her claim. On the contrary, the respondents have falsified the claim of the petitioner by filing the documents mentioned above.
8. I have given my thoughtful consideration to the rival contentions raised by the learned counsel for the parties and have carefully perused the material on record. I am of the opinion that the petitioner has miserably failed to make out a case for interference by this Court under Article 226 of the Constitution of India and no case is made out for issuance of any mandamus directing the respondents to admit the petitioner against reserve quota.
9. In the result, the writ petition fails and is accordingly dismissed. However, in the facts and circumstances of the case, parties are left to bear their own costs.