Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.17681 of 2011 ====================================================== Manoj Mani Tiwari S/O Late Lal Saheb Mani Tiwari Resident Of Village- Purani Gudari,Gas Lal Chowk,Ward No.10,Town & PS-Bettiah, District- West Champaran,845438. .... .... Petitioner/s Versus 1. The Union Of India, through Secretary, Ministry Of Defence, South Block, New Delhi-110011. 2. The Director General (Resettlement),Directorate General Resettlement, Ministry Of Defence, Government Of India, West Block-IV, R.K.Puram, New Delhi-110066. 3. Indian Oil Corporation Ltd. Through Its Chairman-Cum-Managing Director,G-9,Ali Yavar Jung Marg, Bandra (East) Mumbai-400051. 4. General Manager. Indian Oil Corporation Ltd.(MD),Bihar State Office,5th Floor, Lok Nayak Jai Prakash Bhawan, Dak Bunglow Chowk, Patna. 5. Senior Divisional Retail Sales Manager, Divisional Office Muzaffarpur, Indian Oil Corporation Ltd. Krishna Complex, Akharaghat Road, Muzaffarpur. 6. Smt.Phulwanti Devi W/O Late Upendra Giri (L/Nk-4262370) Resident Of Village- Kundwa Mathiya, PO-Kumar Bagh, PS-Chanpatiya, District- West Champaran. .... .... Respondent/s ====================================================== CORAM: HONOURABLE MR. JUSTICE KISHORE KUMAR MANDAL ORAL ORDER 10 24-09-2013 In this writ petition under Article 226 of the Constitution of India the petitioner has challenged the selection and empanelment of respondent no.6 as the first empanelled candidate for appointment of Kisan Seva Kendra ( for short „KSK‟) (Retail outlet) Dealership of Indian Oil Corporation Limited ( for short „IOCL‟) at Kumarbagh Chowk in the District of West Champaran reserved for defence personnel (DC). Other consequential reliefs have also been prayed. Factual controversy raised in the present application is as follows:- The IOCL published an advertisement on 14.7.2010 Patna High Court CWJC No.17681 of 2011 (10) dt.24-09-2013 2 (Annexure-1) inviting applications for appointment of KSK Retail Outlet dealership for several locations. Kumarbagh Chowk in Chanpatia (West Champaran) figured as one of the locations for grant of KSK ( figuring at Sl No. 95) which was reserved for DC. The petitioner became an applicant. He was called in for interview on 25.5.2011. The petitioner appeared before the selection committee on the said date when all the eligible candidates were interviewed and soon thereafter a merit panel (Annexure-3) was published on the same day in which the petitioner was placed at Sl. No. 2 whereas respondent no.6 was empanelled at Sl. No. 1.Respondnet no. 6 was awarded 101.05 marks whereas the petitioner was awarded 85.18 marks. The Selection committee awarded 32 marks to respondent no.6 under the inter se priority for DC which is applicable in case of War Widows under Priority II as per the brochure of IOCL whereas the petitioner was categorized by the committee under Priority V ( Disabled in peace due to attributable causes) and was awarded 8 marks. No issue with regard to the categorization of the petitioner in Priority V has been raised by the petitioner. The petitioner has raised an objection against categorization of the respondent no.6 under Priority No. II ( War widows/ dependants of those who died in war) and thus award of 32 marks thereunder. According to the petitioner the respondent no.6 ought to have been categorized in inter se priority IV and awarded only 16 marks.
Facts
Patna High Court CWJC No.17681 of 2011 (10) dt.24-09-2013 3
Legal Reasoning
this Court in LPA No. 704 of 2010. Learned counsel for the Central Government, on the other hand, supported the issuance of eligibility certificate categorizing respondent no.6 in priority II and rejection of the representation of the petitioner by the respondent no.2. He submitted that husband of respondent no.6 had sacrificed his life while serving the nation. He was killed in action against infiltrator terrorists during an anti infiltration operation in counter insurgency operation (Operation Rakshak) carried out by the Govt. of India in the State of Jammu & Kashmir. As per Army Order 1/2003 (Annexure R/3) death of deceased is categorized in category „D‟ (Battle Casualties) and as such she was rightly treated as a War Widow. As per para 6.1 of Govt. of India, Ministry of Defence letter dated 31.1.2001 (Annexure R/4) the widow of the soldier who died in such military operation was entitled for grant of Liberalized Family Pension which is granted in the case of War Widow(s) only. The respondent no.6 is in receipt of the liberalized family pension since 1994-95. As per the said Army order Battle Casualty is the only term used for all those casualties (killed/died of wound /injuries) sustained in action against enemy force in conventional war/war like situations/Counter Insurgency / Counter Terrorist Operations/ any Notified Operation(s) as declared by the Government of India Patna High Court CWJC No.17681 of 2011 (10) dt.24-09-2013 7 from time to time. Respondent no.6 was, therefore, rightly treated as war widow and issued the eligibility certificate. The husband of respondent no.6 admittedly had died in 1994 in action against the terrorists during anti infiltration operation in Counter Insurgency Operation. Operation Rakshak was an operation against militants in Jammu & Kashmir . Referring to the certificate issued by Zila Sainik Kalyan Karyalay on which much reliance has been placed by the petitioner to groom his case it has been contended that the said certificate would hold no water as Zila Sainik Kalyan samiti is not authorized to classify the status of War Widow. The Kalyan Samiti is only responsible for welfare of Ex-Servicemen and next of Kin of the deceased soldiers. The said certificate , therefore, merits to be ignored. The respondents have already sent a letter dated 11.1.12 (Annexure R/13) to the Zila Sainik Kalyan Karyalay, Motihari seeking clarification. There is no legal infirmity in issuing the eligibility certificate in favour of respondent no.6 classifying her as War Widow ( priority no.II). Mr. Jha, learned counsel for the IOCL, referring to the relevant provisions of the brochure contended that the Director General ( Resettlement) Ministry of Defence is the notified competent authority to issue eligibility certificate for consideration of claims of the applicant(s) under the category defence personnel (DC). So long as the said certificate is not Patna High Court CWJC No.17681 of 2011 (10) dt.24-09-2013 8 altered/modified, the respondent- IOCL is bound to treat the respondent no.6 under priority II ( War Widows) and no fault therewith can be found. Mr. Y.V.Giri, learned counsel for the respondent no.6 combating the submissions of the petitioner contended that battle and war is one and the same. The traditional concept of war cannot be imported as suggested by counsel for the petitioner. The husband of the respondent no.6 had made supreme sacrifice while participating in military action/operation against the infiltrators/terrorists in the State of Jammu & Kashmir. Treating her to be the War Widow she was sanctioned and is in receipt of liberalized family pension since 1995. Operation „Rakshak‟ in which her husband was killed has been notified by the Government as anti terrorists activities against the sovereignty of the nation. The competent authority i.e. the Director General (Resettlement) (respondent No.2) after due consideration issued the eligibility certificate under priority –II ( War Widow). The Battle Casualty is the term used for those casualties ( killed/died in action against enemy force in conventional war/war like situations/counter Insurgency/Counter Terrorist Operations as declared by the Government. On 12.11.1994 ( Annexure R 6/5) a letter was issued to the respondent no.6 by the Major General, 19th Battalion, Infantry Division acknowledging therein that her husband was a martyr who laid his life for the nation. He also Patna High Court CWJC No.17681 of 2011 (10) dt.24-09-2013 9 referred in this regard to the certificate issued by the Bihar Regiment , Danapur ( Annexure R 6/6). Supporting the stand of the respondent Union of India he submitted that the certificate issued by the Jila Sainik Kalyan Samiti cannot be referred to and relied upon to hold that respondent no.6 is not the War Widow. In this connection he also referred to the Army Order 1/2003 to support his contention. Mr. Giri further submitted that the order of this Court in LPA No. 704 of 2010 was passed in entirely different factual background. Reliance placed thereon by the petitioner is completely misplaced. On a consideration of the rival submissions of the parties, it appears the moot question falls for consideration is whether the respondent no.6 has rightly been categorized as war widow and issued the eligibility certificate by the competent authority. Related question is whether war and battle belonged to the same genus. It has been argued by the petitioner that the respondent no.6 may be treated as the widow of battle casualty but she cannot be treated as war widow. The word „war‟ in common parlance signifies organized, large scale / armed conflict between countries or sizable groups usually involving engagement of military force. Similarly, battle in its ordinary terms refers to a general action , fight or encounter in which army of the nation is involved/engaged. Operation „Rakshak‟ was organized or constituted by the Govt. of India to fight against the terrorists Patna High Court CWJC No.17681 of 2011 (10) dt.24-09-2013 10 belonging to foreign nation who had infiltrated into the bordering State of Jammu & Kashmir with the sole purpose of destructing the sovereignty and unity of India. The war as it is understood in traditional term that is open conflict between the two nations, of late, has changed its complexion. It is now fought overtly or covertly. Terrorists forming a sizable group operating from trans-border operate covertly. The object or purpose is, however, the same i.e. to shatter the sovereignty of the nation. The nation has to counter such attempts by military action/operation. They are widely termed as battle by the Government of India. It is, therefore, a war in which fighting is against the sizable and hostile groups in order to keep the sovereignty and unity of the nation intact. This aspect has already been clarified by the Army Order relied upon by the counsel for the Union of India. In this context this Court would recall the statement of the then President of United States of America when he described the attack by the terrorists on USA as war against the nation. The purpose of the terrorists who had infiltrated into Indian territory was the same as in the case of war. Having said so this Court would advert to the next submission of Mr. Malhotra counsel for the petitioner that if war casualty and battle casualty are treated one and the same then the whole categorization made in the brochure ( ref. clause 13.1.3) shall become meaningless. In order to appreciate the said submission this Court would first notice relevant part/portion of Patna High Court CWJC No.17681 of 2011 (10) dt.24-09-2013 11 the said clause (13.1.3: inter se priority for DC). They read thus: Priority I Widows/dependants of 40 Marks posthumous Gallantry Award Winners Priority II War 32 Marks Widows/dependants of those who died in war Priority III Priority IV War disabled 24 Marks Widows/dependants of 16 Marks those who died harness due in to attributable causes Priority V Disable in peace due to 8 Marks attributable causes. Broad differentiation has been made therein. Widow/dependants who died in war the disabled in war or due to attributable causes and the disabled in war or in peace due to attributable causes. The categorization has still some relevant/meaning purpose. The respondent no.6 has been categorized in priority II whereas petitioner has been categorized in Priority V. The respondent no.6 in the light of my conclusion noted above cannot be categorized in priority IV. The respondent Union of India while rejecting the objection of the petitioner has set out reason which definitely differentiate between the claimant falling under priority II and the claimant falling under priority IV. This Court is, therefore, unable to find any substance in the said submission of the petitioner. This takes me to consider another submission of Mr. Patna High Court CWJC No.17681 of 2011 (10) dt.24-09-2013 12 Malhotra. He has relied on the order dated 20-5-2010 passed in LPA No. 704 of 2010 to submit that the case of the petitioner is covered by the said order. This Court observed as under:- “…The appellant on 10.12.2008 raised an objection that the respondent No.6 had wrongly represented herself as a widow of a defence personnel who died in course of war and obtained consideration for dealership and selection on that basis in a category having priority over the appellant though both were factually falling in one category itself. Only then the D.G.R. on 9.8.2005 wrote to the respondent corporation that after the filing of the writ petition and matters brought to its attention the D.G.R. realized that it had issued a wrong certificate and that the respondent No.6 was the widow of a defence personnel who only died in harness for attributable causes.” Be it noted that the selected candidate in the said case was erroneously issued the eligibility certificate on a mis- representation which was subsequently changed by the competent authority. Having noticed the fact that the eligibility certificate issued by the competent authority had already been cancelled the selection of respondent no.6 was set aside. In the case at hand the petitioner had represented before the competent authority of the respondent Union of India ( respondent no.2) who after due consideration rejected the same setting out reasons therefor. The eligibility certificate of respondent no.6 has not been altered/modified/cancelled by the competent authority of the Union of India. This Court, therefore, is in agreement with the Patna High Court CWJC No.17681 of 2011 (10) dt.24-09-2013 13 submission of counsel for the respondents that reliance placed by the petitioner on the said order passed in LPA No. 704 of 2010 is misplaced. Another aspect of the matter which assumes significance is that the husband of the respondent no.6 was killed in action in 1994. She was treated as war widow or battle casualty and sanctioned liberalized family pension which was allowed only in case of war widows. She continued in receipt thereof when grant of privilege by awarding inter se priority under defence personnel category was not even remotely an issue .Respondent no.6 having continued in that capacity/status for all these years could not have been treated otherwise resulting in withdrawing the said facility/privilege. The competent authority of the Union of India having considered all relevant facts issued the eligibility certificate in favour of the respondent no.6 which has not been altered/modified/cancelled. This Court finds no reason to sit in appeal over the judgment of the competent authority of the Union of India. Even otherwise if the Court accepts the contention of the petitioner, he gains marginally in terms of marks awarded to him if the respondent no.6 is held to be falling in category IV. This Court would not shut its eyes to the facts glaring from the record that the sacrifice made by the respondent no.6 was superior to the sacrifice made by the petitioner. If that be so, then the extraordinary writ jurisdiction Patna High Court CWJC No.17681 of 2011 (10) dt.24-09-2013 14 would not be invoked which would necessarily result in substantial injustice to the respondent No.6. For all these reasons, this Court finds no merit in this writ petition. It is, accordingly, dismissed. Parties are left to bear their own cost(s). Shyam/- (Kishore Kumar Mandal, J)
Arguments
Heard Mr. N.K. Malhotra for the petitioner, Mr. Y.V. Giri for the respondent no.6 and Mr. Dinbandhu Mishra for the Union of India. Parties have exchanged pleadings. Mr. Malhotra contended that the location in question is reserved for defence personnel. Para 13.1.3 of the brochure guiding the selection (Annexure-4) provides inter se priority. Evaluation is made as per the norms spelt out therein and marks are awarded accordingly. Inter se priority in the said category is decided by the competent authority i.e. the Director General ( Resettlement), Ministry of Defence, Govt. of India. Based on the inter se priority marks are awarded to the applicant(s). The brochure contemplates five priorities. The respondent no.6 was placed in priority II ( War Widows/dependants of those who died in war ) and was awarded 32 marks as per the brochure. The petitioner is raising an issue with regard to the said categorization of the respondent no.6 and thereby award of 32 marks to the respondent no.6. Aggrieved by such categorization and award of full 32 marks thereunder to the respondent no.6 (selected candidate) the petitioner submitted a complaint (Annexure-6) dated 21.6.2011 to the respondent- IOCL contending therein that the respondent no.6 is not a war widow and, therefore, has wrongly been classified in priority II and awarded 32 marks. It is submitted relying on the death certificate (Annexure-8) issued to the deceased husband of the respondent no.6 from the office of 9th Patna High Court CWJC No.17681 of 2011 (10) dt.24-09-2013 4 Battalion, Bihar Regiment that he was killed in action on 2.11.1994. It was further brought to the notice of the respondent IOCL that Zila Sainik Kalyan Padadhikari, Motihari issued a certificate on 04.6.2011 ( Annexure-7) certifying therein that husband of the respondent no.6 had died in action which was not declared as war. She would, therefore not fall in War Widows category. The petitioner had also filed a representation before the respondent Director General (Resettlement) respondent no.2 for change in the certificate of eligibility issued to the respondent no.6 whereby she was categorized in priority- II as War Widows. According to the petitioner, the respondent no.6, at best, could be categorized under priority IV ( Widows/dependants of those who died in harness due to attributable causes) and was therefore entitled to be awarded only 16 marks. If the stand of the petitioner is upheld then the petitioner shall gain precedence over the respondent no.6 in the defence personnel category and would be entitled to selection for KSK in question. It is submitted that the respondent no.2 by a communication dated 1.7.2011 (Annexure- 10) informed the petitioner confirming the eligibility certificate issued in favour of respondent no.6 and stating reasons therefor namely the husband of the respondent no.6 was „Killed in Action‟ in Operation Rakshak. The widow ( respondent no.6) is in receipt of liberalized family pension treating her to be the „Battle Casualty‟ which is applicable for all those casualties sustained in Patna High Court CWJC No.17681 of 2011 (10) dt.24-09-2013 5 action against enemy force in conventional war/war like situations/CI/CT Ops/any Notified operation(s) as declared by the Govt. from time to time. The petitioner has thereafter obtained diverse details/papers under Right to Information Act which demonstrate that India since independence has fought only six wars. Operation Rakshak is not listed therein. Even if the respondent no.6 is treated as widow of the soldier who was „Battle Casualty‟ she could not have been categorized in priority II as the term „Battle Casualty‟ is not referred or mentioned in the advertisement or the brochure. If the „Battle Casualty‟ is accepted as a term for grant of inter se priority to the petitioner then the entire categorization made in the brochure would become meaningless as candidates falling in priority II to IV would come within the parameter „Battle Casualty‟. Mr. Malhotra has strenuously impressed upon the Court that the word „War‟ should be treated in its conventional term distinguishable from other military operations. The brochure has made such distinction. Summing up his argument, it has been contended that the respondents have not considered the objection of the petitioner in right perspective in the light of the different provisions contained in the brochure and, therefore, not yielded to the request of the petitioner for award of „KSK‟ to the petitioner after treating the respondent no.6 in priority- IV and entitled to award of 16 marks only. Mr. Malhotra in support of Patna High Court CWJC No.17681 of 2011 (10) dt.24-09-2013 6 his contention has relied on an order passed by a division bench of