HIGH COURT OF ORISSA: CUTTACK W.P.(C) No.18570 of 2011 In the matter of an application under Articles 226 & 227 of the Constitution of India. -------Rudra Narayan Bahinipati, aged about 34 years, S/o. Baidhar Bahinipati, Vill/P.O. Pichukuli, P.S. Begunia, Dist: Khurda … Petitioner -VersusBharat Petroleum Corporation Ltd., represented by General Manager, Marketing Corporate, Bharat Bhawan, 4th and 6th Floor, Baldad, Estate, Mumbai and others … Opp. Parties For Petitioner : M/s. Prasanta K. Sahu, D.K. Sahoo, U.C. Dora & P.B. Senapati, For Opp. Parties : M/s. R.C. Rath, P.K. Rath & Miss Rashmita Rath [For O.P. No.3]. M/s. Gitmay Mishra & S.N. Mishra [For O.P.No.1 & 2]. ---------P R E S E N T: THE HONOURABLE THE CHIEF JUSTICE SHRI.V.GOPALA GOWDA AND THE HONOURABLE SHRI JUSTICE B.N.MAHAPATRA Date of Judgment:
16. 11.2012 2 B.N.Mahapatra, J.The present writ petition has been filed with a prayer to quash the selection of opposite party no.3-Smt. Rashmita Sahoo as LPG Gas Distributor in respect of Pichukuli RGGLV Point in Khurda District on the ground that she has not fulfilled the conditions stipulated in the advertisement inasmuch as she does not belong to the residential area of the advertised location.
2. Petitioner’s case in a nut-shell is that three oil companies, namely Indian Oil Corporation, Bharat Petroleum Corporation and Hindustan Petroleum Corporation Ltd., have jointly issued an advertisement in daily, “the Sambad”. dated 31.10.2010 with regard to selection of village Youth LPG (Gas) Distributor under RGGLV Yojana in respect of Pichukuli RGGLV place under Khurda District under Bharat Petroleum Corporation Ltd. The said place is considered for Open Category which is apparently clear from the advertisement. Clause 4(b) of the Brochure on selection of RGG LPG (Vitrak) stipulates that the applicant should be a resident of the town/village of the advertised RGGLV location. It is further stipulated that the applicant has to submit the application form along with documents and in the event, he/she will not be able to produce such documents, then his/her application will be cancelled. As per the general instructions attached 3 with the application format, every applicant should furnish a resident certificate in the standard format from the competent authority, registered sale deed/land document and other documents. Further condition is that all the documents should be in existence on the date of advertisement. The petitioner has submitted his application pursuant to the advertisement along with all required documents. The petitioner was intimated that he was qualified for draw for selection of RGGLV and he has been called upon to present along with the photo identity card for the draw on 28.06.2011 at 11.00 A.M. in the office of BPCL, Alok Bharti Building, Bhubaneswar. The petitioner came to knot that he was placed at Sl.No.1 having scored 91 marks and opposite party No.3 was placed at Sl.No.2 having scored 95 marks in the final qualified list. But as it transpires, opposite party No.3 is not eligible to participate in such draw in view of the fact that she has not complied with the eligible conditions stipulated in the advertisement and general conditions of selection inasmuch as she is resident of Kalapathar, Baideswar, Dist: Cuttack and she is not resident of the advertised place, District i.e. at Pichikuli, Bolgarh, District: Khurda. The petitioner submitted a representation through his lawyer before opposite party No.2 vide letter dated 23.06.2011 ventilating his grievances on the illegalities and irregularities committed in the selection process inter alia disputing the eligibility and selection of opposite party No.3 as LPG Gas distributor 4 for Pichukuli location under RGGLV Yojana. On 28.06.2011 the petitioner along with opposite party no.3 was present at the time, date and place fixed by the authorities and found that having not fulfilled the eligibility criteria and not complied with the conditions as fixed by the authority, opposite party no.3 could not have been considered for any draw conducted on 28.06.2011. The petitioner further raised objection before draw process and submitted to opposite party No.2 that he has already submitted his objection dated 23.06.2011, but it has not been enquired into not has been disposed of. The officials of opposite party No.2 stated to the petitioner that officers from Mumbai came to conduct the draw. The objection would be enquired into subsequently and the authority has power to cancel the selection even after draw, if opposite party No.3 misrepresented and furnished wrong information to the office. Accordingly they persuaded the petitioner to participate in the lottery draw. However, objection raised by the petitioner has not been considered into not enquired into by the authority even after draw and not they are bent upon to settle the selection in favour of opposite party no.3. Hence, the present writ petition.
3. Mr. P.K. Sahu, leaned counsel appearing for the petitioner submitted that the petitioner having complied with all the requirements by furnishing all the documents as per the advertisement, he is the only suitable candidate available in whose favour the RGGLV point for 5 Pichhukuli centre should have been settled. Instead of doing so, the opposite parties called upon the petitioner and opposite party no.3 for draw for selection and though opposite party no.3 was ineligible to apply and her application was not in conformity with the advertisement, she was selected arbitrarily in exercise of powers by the authorities. Opposite party No.3 is not eligible to apply for the LPG Gas distributorship because of the fact that she is not the resident of Pichukuli Centre area in the District of Khurda. She is the permanent resident of village – Kalapathar, Block – Banki, Dist: Cuttack. The voters’ list of Banki Constituency No.46 published in the year 2011 in respect of village Kalapathar, Block Banki in the District of Cuttack indicates that opposite party No.3 is placed at Sl.No.441 and her husband is placed at Sl.No.440. Further, the voters’ list of Banki Panchayat Samiti, Kalapathar Grama Panchayat of District Cuttack published in the year 2006 clearly indicates that opposite party No.3 is placed at Sl.No.26 and her husband at Sl.No.25. The petitioner has obtained information from the Office of the Tahasildar, Bolgarh under the R.T.I. Act regarding the genuineness of the residence certificate furnished by opposite party No.3 in respect of Pichhukuli area. On being informed by the Tahasildar, Bolgarh vide letter No.911 dated 02.07.2011, Mr. Sahoo submitted that the Tahasildar on verification of Misc. Case record bearing No.25588 of 2010 and the relevant case 6 register, clearly mentioned that the residential certificate as applied for by Smt. Rashmita Sahoo, W/o. Pradipta Kumar Sahoo mentioning the village Pichhikuli in the district of Khurda has not been issued by the Tahasildar, Bolgarh. It is submitted that the application submitted by opposite party No.3 being defective one and she being not resident of the advertised centre area, the authorities could have rejected the same at the threshold and allotted the said RGGLV point in favour of the petitioner. Instead of doing so, opposite party No.3 was allowed to participate in the selection process which clearly indicates the malafide exercise of power by the authorities. It is further submitted that between two contestants, if one application is defective and the applicant is ineligible to qualify and other is in conformity with the advertisement issued in Annexure-1, then the latter is to be selected without conducting any draw of lottery. Concluding his argument, Mr. Sahoo submitted that selection of opposite party No.3-Smt. Rashmita Sahoo is liable to be set aside as the authorities have acted arbitrarily and unreasonably, which violates Article 14 of the Constitution of India.
4. Mr. G. Mishra, learned counsel appearing for opposite party Nos. 1 and 2 reiterating the grounds taken in the counter affidavit submitted that as per the directives from the Ministry of Petroleum and Natural Gas the aforesaid scheme has been floated wherein Gramin Areas are to be identified broadly based on potential of average monthly 7 sale of 600 LPG (cylinders of 14.2 kg and 1800 customers with monthly per capita consumption of about 5 kg.) The process of selection has been formulated by the Public Sector Oil Marketing Companies and it is basically a three tier process i.e. Eligibility criteria, Evaluation process and the eligible candidates will be allowed to participate in the draw for the proposed LPG Distributorship under RGGLV Scheme. The basis of RGGLV scheme is to help and increase LPG penetration to cover low potential/Rural areas. Further to create employment and entrepreneur from the local people of the aforesaid advertised location. Pursuant to the advertisement for engagement of LPG Distributorship under RGGLV Scheme in Pichukuli Centre, seven applications were received out of which only two applicants were found eligible and had qualified for draw. Accordingly, vide letter ref. not BBS/RGGLV/PCK dated 03.06.2011 (Annexure-4), eligible candidates who have qualified for draw for RGGLV location Pichukuli (Revenue village) were requested to be present along with photo identity card on 28.06.2011 at 11 A.M. On the said appointed date of draw i.e. on 28.06.2011 in presence of President, Zilla Parishad who was the invited guest selected Smt. Rashmita Sahoo by draw of lotteries. The approval for conducting FVC was obtained from the competent authority on 07.07.2011. Accordingly, FVC in respect of selected candidate Smt. Rashmita Sahoo was conducted by the Committee members and it was found that the land of 8 Rashmita Sahoo was situated at the advertised RGGLV location. The Tahasildar, Bolgarh vide Misc. Case No.2054 of 2011 dated 14.07.2011 had certified that Smt. Rashmita Sahoo, W/o. Pradeepta Kumar Sahoo is the native of District Khurda and her family ordinarily resides in village Pichukuli, P.S. Begunia, Tahasil- Bolgarh. The confirmation of genuineness of the residential certificate issued to Smt. Rashmita Sahoo wife of Sri Pradeepta Kumar Sahoo was sought for by opposite party No.2 from the Tahasildar, Bolgarh wherein the Tahasildar has confirmed that the residential certificate of opposite party No.3 is genuine as per letter dated 18.07.2011 (Annexure-H/2). The allegation that the name of Rashmita Sahoo is appearing in the voters’ list of another location and hence she is a resident of Kalapathar cannot be taken as conclusive proof of residence. After receiving the letters from the Tahasildar, Bolgarh regarding the genuineness of the resident certificate the letter of intent was issued to opposite party No.3 on 23.07.2011 (Annexure-I/2).
5. On the rival contentions advanced by the parties, the questions that fall for consideration by this Court are: (i) Whether opposite party No.3 has satisfied the residential criteria in order to be eligible to apply for LPG Distributorship for Pichukuli Centre ?. (ii) Whether in the facts and circumstances of the case, the voters’ list which shows that opposite party No.3 9 belongs to Kalapathar can be taken as true of her residence ?.
6. In the present case, undisputedly, the petitioner basically challenges the selection of opposite party No.3 as LPG Distributor under RGGLV Scheme for Pichikuli Revenue Village on the ground that she does not belong to the advertised area i.e. Pichikuli Revenue Village. Therefore, she is not eligible to apply for LPG distributorship for Pichikuli Centre. According to the petitioner, opposite party No.3 is the permanent resident of village Kalapathar in the District of Cuttack. Placing reliance on the voter list of Banki Constituency No.46 published in the year 2011 in respect of Village Kalapathar, BlockBanki, District Cuttack, it is contended that the name of opposite party No.3 finds place at Sl.No.441 and her husband at Sl.No.440. Further referring to voters’ list of Banki Panchayat Samiti, Kalapathar Grama Panchayat of Cuttack District published in the year 2006, it is contended that the name of opposite party No.3 finds place at Sl.No.26 and her husband at Sl.No.25. Perusal of the voters’ list under Annexures-6 and 7 reveals that as per the said voters’ list, the petitioner belongs to Cuttack District. Thus, she does not belong to the advertised area i.e. Pichikuli Centre which is one of the eligibility criteria”
7. Further case of the petitioner is that she obtained information from the Office of the Tahasildar, Bolgarh regarding genuineness of the residence certificate furnished by opposite party No.3 in respect of Pichukuli area under the R.T.I. Act. The Tahasildar, Bolgarh after verification of Misc. Certificate Case record bearing No.2588 of 2010 and the relevant case register informed that the residential certificate as applied for by opposite party No.3 has not been issued by the Tahasildar, Bolgarh. Letter No.911 dated 02.07.2011 issued by the Tahasildar, Bolgarh also clearly indicates that the said resident certificate as applied for by opposite party No.3 has not been issued by him.
8. In the counter affidavit, contention taken regarding Annexures-6, 7 and 8 has not been denied. On the other hand, opposite party Nos.2 and 3 have taken stand that the voters’ list cannot be taken as conclusive proof of residence. The letter dated 02.07.2011 issued by the Tahasildar, Bolgarh under Annexure-8 to the writ petition with reference to Misc. Certificate Case No.2588 of 2010 has not been enquired into by the opposite party-Corporation. The opposite partyCorporation has referred to Misc. Certificate Case No.2054 of 2011 dated 14.07.2011, wherein it is certified that opposite party No.3 is the native of District Khurda and her family ordinarily resides in village Pichukuli in Bolgarh Tahasil. Learned counsel for the opposite party 11 also has placed reliance on letter dated 18.07.2011 (Annexure-H/2) to the counter affidavit which has been issued by the Tahasildar, Bolgarh with reference to the resident certificate of opposite party No.3. Annexures-F/2 and H/2 to the counter affidavit on which opposite parties have placed reliance to ascertain the residential certificate of opposite party no.3 are dated 14.07.2011. But the advertisement dated 31.10.2010 stipulates a condition that the applicant must be in possession of all the documents on the date of application. In the instant case, since the date of resident certificate upon which reliance has been placed by opposite party to determine the residential status of the applicant is 14.07.2011, the said document was not in possession of the applicant on the date of application. Therefore, it cannot be taken into consideration for the purpose of selection of opposite party No.3 for appointment of Distributorship of RGGLV in Pichikuli Centre.
9. Further counter affidavit is totally silent with regard to the resident certificate which was filed along with the application by opposite party No.3 and the Tahasildar, Bolgarh vide order dated 02.07.2011 under Annexure-8 categorically stated that such certificate has not been issued by him after thorough verification of the Misc. Certificate Case No.2588 of 2010.
10. the In view of the above, we are of the considered opinion that entire selection process was completed pursuant to the 12 advertisement dated 31.10.2010 de hors the eligibility criteria stipulated in the said advertisement. The same being vitiated, the selection of opposite party No.3 as LPG Gas Distributor is set aside. If the petitioner is otherwise eligible, his application for selection as LPG Gas Distributor in Pichukuli Centre under the RGGLV Scheme be considered forthwith.
11. The writ petition is allowed to the extent indicted above. No order as to costs. …….…………………… B.N. Mahapatra,J.V. Gopala Gowda, C.J.I agree. ………………………… Chief Justice Orissa High Court, Cuttack The 16th November, 2012/ssd.