Dibyendu Mohan Vs. Hindustan Petroleum Corporation Limited and ors. - Court Judgment

Excerpt:
dealership - retail outlet of hindustan petroleum--petitioner failed to show that selection for retail outlet was arbitrary or whimsical or dsb did not act fairly--inclusion of name of petitioner in the name of selected candidates indicating proper consideration of his case--he has been treated fairly--no reason to interfere with decision of dsb--writ application dismissed. - - 4. thereafter, the petitioner filed objection/petition (annexure 9) before the dsb as well as h. it is further stated that the petitioner was well aware of the fact that in accordance with the conditions as mentioned in the application form, a candidate was required to make available the proposed lands within a period of two months after his selection under the revised guidelines regulating the selection. the petitioner was duly heard on 21.2.2003 by the chairman of the enquiry committee, eastern zone at the general manager's office of the corporation, but the petitioner failed to substantiate his allegation that respondent no. 11. thus, in substance, the contention of the petitioner is that he is better suited for grant of said dealership in comparison to the selected candidate i. tripathi learned counsel for the petitioner was that the petitioner is more qualified and is a much better candidate, still the dsb has acted mala fide in placing him below respondent no. 4 better than the petitioner. palanisamy, reported in 2003 (4) pljr (sc) 175, the apex court, while dealing with the appointment of lpg distributors in which also dealer selection board is entrusted with the task of finding out the best suitable candidate, held that so long as the power is exercised bona fide, the board is free to devise and adopt its own procedure subject to satisfying the test of reasonableness and fairness. 16. learned counsel for the petitioner has failed to show that the selection was arbitrary or whimsical or the dsb did not act fairly. radha mohan prasad, j. 1. in the present writ application, the petitioner has prayed for quashing of the selection list dated 12.3.2001, contained in annexure 4, prepared by the dealer selection board, patna iii (hereinafter referred to as 'the dsb), for the dealership of retail outlet of hindustan petroleum at lakhisarai as also for quashing of the letter dated 30.4.2002, contained in annexure 10, by which the chairman of the dsb has rejected the objection petition filed by the petitioner on 14.8.2001. now by an amendment petition the petitioner has also prayed for quashing of the letter of intent dated 22.4.2003 issued by the company in favour of respondent no. 4, contained in annexure a to the counter affidavit filed on behalf of the respondent no. 4.2. in short, the facts of the case are that in pursuance of advertisement (annexure 1) published in the daily newspaper 'aaj' dated 31st december, 1997, the petitioner applied for the dealership of retail outlet, at lakhisarai in duly prescribed pro forma as per the norms laid down in the said advertisement. it is stated that a re-advertisement (annexure 2) was also published on 26.9.2000 in the daily newspaper 'hindustan' with regard to the same site with certain modifications. the said re-advertisement included an additional clause that the applicant will have to give full details of the land which he would make available to the company for the retail outlet, along with the application. such applicant will be given preference, who would offer and are eager to offer full title/long term lease on the acceptable rate to the company. if the applicant fails to provide land of which description has been given within two months after selection, then their allotment shall be cancelled. pursuant to the re-advertisement (annexure 2), the petitioner applied for the same afresh. thereafter in due course of time on 16.2.2001 dsb issued interview letter (annexure 3) to the petitioner in which the date of interview was fixed on 12.3.2001 and, accordingly, the petitioner appeared before the dsb. according to the petitioner, the result of the said interview was declared by the dsb on 12.3.2001 (annexure 4) in which the name of the petitioner was placed at serial no. 2 and the dealership was awarded to respondent no. 4, who was placed at serial no. 1. it is claimed that the petitioner also filed brief synopsis regarding his aforesaid claim before the dsb at the time of interview, which has been annexed as annexure 5.3. it is also claimed that the petitioner had given details regarding his land measuring total area of 23222 sq. ft. along with his application. this area included the adjoining leased land which the petitioner had already taken from one kailash prasad singh on 30.10.2000 for a period of 30 years, vide registered deed of lease dated 30.10.2000 (annexure 6).4. it has been alleged that respondent no. 4 has been favoured by the dsb and he has been selected for the retail outlet contrary to the terms of the advertisement. in the advertisement one of the mandatory conditions that the applicant shall give the details of the land for retail outlet and those giving the same will be given preference has been ignored/violated. according to the petitioner, he had given details of the land along with the documents supported by the affidavit (annexure 7) whereas respondent no. 4 had not given details of any land in his application, rather he has said that after getting dealership he would make available the land within two months.5. the petitioner being aggrieved by the decision of the dsb filed writ petition, bearing c.w.j.c. no. 4208 of 2001, which was dismissed by this court vide order dated 13.8.2001 (annexure 8) as being premature since the letter of intent had not been issued. however, the court granted liberty to the petitioner to approach the authority concerned and raise objection, if any, against the selection of respondent no. 4. thereafter, the petitioner filed objection/petition (annexure 9) before the dsb as well as h.p.c.l reminders were also sent. however, after a lapse of eight months; the petitioner has received a letter dated 30.4.2002 (annexure 10) from the chairman of the dsb stating therein that his objection petition was considered but no cogent reason was found to interferes with the decision of the board. it is stated that after passing of the order, contained in annexure 10, the dsb was dissolved. petitioner finding no way out filed a fresh objection dated (annexure 11) before the senior regional manager (respondent no. 2) of the company, who in response to that issued a letter dated 10.2.2003 (annexure 12) directing the petitioner to report to kolkata office of the company to represent his claim before the enquiry committee set up by the company. it is alleged that the petitioner appeared before the enquiry committee, but no decision whatsoever has been communicated to him so far.6. in the counter affidavit filed on behalf of respondents no. 1 and 2 it is stated that it is not the case of the petitioner that respondent no. 4 did not fulfill the conditions of eligibility to be considered for grant of subject dealership. it is further stated that the petitioner was well aware of the fact that in accordance with the conditions as mentioned in the application form, a candidate was required to make available the proposed lands within a period of two months after his selection under the revised guidelines regulating the selection. the application form, which was filled in hand by all the applicants, including the petitioner, explicitly states that a candidate was required to make available the lands for the proposed dealership within two months of the selection, failing which his selection was likely to be set aside, which act has intentionally been suppressed by the petitioner. according to the respondents, the writ application does not allege much less disclose any ineligibility of the selected candidate i.e., respondent no. 4 and, in fact, the petitioner in paragraphs 11 and 12 of the writ application has himself stated that he had also offered to make the proposed land available in case he was selected for the dealership. thus, according to the respondents, natural inference is that the petitioner also did not have lands available readily. the selected candidate had also likewise offered to make available the land within the prescribed time.7. in the supplementary counter affidavit filed on behalf of respondents no. 1 and 2, it is stated that respondent no. 4 was selected for the present dealership by the dsb, vide its recommendation dated 16.3.2001. on 27.3.2001 the respondent- corporation instructed its concerned executive sales officer to carry out the field investigation report (fir) in respect of respondent no. 4. the fir was then conducted by the concerned sales officer on 10.4.2001 when respondent no. 4 had shown a piece of land at lakhisarai situated on the lakhisarai- jamui/ sheikhpura road, the approximate dimension of which was 150 ft. x 100 ft. the sales officer advised that the land was suitable for a retail outlet but required land filling of approximately 4 ft. on account of certain clarifications required with regard to the bank accounts of respondent no. 4, the concerned sales officer made fresh enquiries from him on 18.4.2001 when he offered to give the lands on long term, lease and confirmed that the land owner was willing to give the site on lease. further, it is stated that the objection filed by the petitioner was examined and the dsb informed the corporation in writing that respondent no. 4 had submitted details of the land available with him for the said dealership. the petitioner was duly heard on 21.2.2003 by the chairman of the enquiry committee, eastern zone at the general manager's office of the corporation, but the petitioner failed to substantiate his allegation that respondent no. 4 did not have any lands to offer for the proposed dealership. it is stated that only after the recommendation of the enquiry committee that the respondent corporation issued the letter of intent to respondent no. 4 on 22.4.2003. in the meanwhile, the sales officer reported that the old land site which was initially shown was no more available, but respondent no. 4 had shown another plot on nh 80a across the bridge at lakhisarai and that this land site met the requirements of the corporation for a retail outlet on a national highway. however, in view of the said being contrary to the indian road congress norms, the corporation did not find the land site suitable and instructed respondent no. 4 to immediately provide another land site. respondent no. 4 then on 21.6.2003 proposed a fresh land site which was inspected by the concerned officer of the corporation along with land documents in support thereof and the same was finally approved. it is further stated that respondent no. 4 had duly submitted land documents dated 14.6.2003 which specifically stated that he was duly entitled to sublet the lands to the respondent-corporation also.8. a counter affidavit has been filed on behalf of respondent no. 4 also in which it is stated that he in terms of the letter of intent arranged suitable land covering an area of 28581 sq. ft. on lease with effect from 14.7.2003 vide registered deed of lease bearing registration no. 5369 dated 14.7.2003. he has also annexed photo copy of deed of lease as annexure b, besides the letter of intent dated 22.4.2003 issued in his favour as annexure a. according to the said respondent, prayer for quashing of the list of qualifying candidates is untenable in the eye of law as the petitioner had participated in the selection process and his name was included in the panel but as he could not satisfy the authority with regard to arranging suitable land, his offer was accepted by respondent no. 1. it is stated that the claim of the petitioner was again considered but the same has been rejected vide order dated 30.4.2002, contained in annexure 10, which is being challenged after more than a year. meanwhile, he claims to have invested a huge amount in arranging land etc. and if at this stage he would be debarred from starting petrol pump on the proposed site he will suffer irreparable loss, which cannot be compensated in terms of money.9. an amendment petition has been filed on behalf of the petitioner in which prayer is for quashing of letter of intent issued to respondent no. 4 filed by him along with the counter affidavit.10. the petitioner has filed reply to the supplementary counter affidavit in which he has raised certain objections regarding awarding of marks.11. thus, in substance, the contention of the petitioner is that he is better suited for grant of said dealership in comparison to the selected candidate i.e. respondent no. 4 and desires a comparative review by this court of the relative merits of the petitioner and respondent no. 4.12. the whole emphasis of mr. tripathi learned counsel for the petitioner was that the petitioner is more qualified and is a much better candidate, still the dsb has acted mala fide in placing him below respondent no. 4 in the list of selected candidates by awarding erroneous marks.13. mr. navin sinha, learned counsel appearing for the respondent-corporation has contended that there being no illegality in the selection process even alleged, this court should not interfere with the decision of the dsb consisting of experts holding high status he contended that the fact of the case would show that the dsb has observed the procedure with all fairness and found respondent no. 4 better than the petitioner.14. i find substance in the submission of mr. sinha. recently in the case of k. vinod kumar v. s. palanisamy, reported in 2003 (4) pljr (sc) 175, the apex court, while dealing with the appointment of lpg distributors in which also dealer selection board is entrusted with the task of finding out the best suitable candidate, held that so long as the power is exercised bona fide, the board is free to devise and adopt its own procedure subject to satisfying the test of reasonableness and fairness. the apex court also held that the requirement of furnishing particulars of land in the application is mandatory but satisfying the requirement at the stage of making the application is only directory. the particulars of such land can be made available even subsequent to the filing of the application and may even be subsequent to the selection.15. the supreme court in the case of national institute of mental health & neuro sciences v. k.k. raman, reported in air 1992 s.c. 1806, while considering the case of selection for recruitment, held that the procedural fairness is the main requirement in the administrative action. the 'fairness' or 'fair procedure' in the administrative action ought to be observed and the selection committee cannot be an exception to this principle. it must take a decision reasonably without being guided by extraneous or irrelevant consideration. but there is nothing on the record of this court to suggest that the dsb did anything to the contrary.16. learned counsel for the petitioner has failed to show that the selection was arbitrary or whimsical or the dsb did not act fairly. in fact, inclusion of the name of the petitioner in the name of selected candidates itself indicates that there was proper consideration of his case and he has been treated fairly. the supreme court in the aforesaid case has cautioned that it should not be lost sight of that the selection committee consisted of experts in the subject for selection and were men of high status and also of unquestionable impartiality and thus the court should be slow to interfere with their opinion.17. under such circumstances, this court finds no reason to interfere with the decision of the, dsb selecting respondent no. 4 for the dealership and consequently issuing the letter of intent in his favour after complying with the requirement; more so after lapse of long time during which respondent no. 4 has made investments.18. the writ application is, thus, dismissed, but without costs.

Judgment:

Radha Mohan Prasad, J.

1. In the present writ application, the petitioner has prayed for quashing of the selection list dated 12.3.2001, contained in Annexure 4, prepared by the Dealer Selection Board, Patna III (hereinafter referred to as 'the DSB), for the dealership of retail outlet of Hindustan Petroleum at Lakhisarai as also for quashing of the letter dated 30.4.2002, contained in Annexure 10, by which the Chairman of the DSB has rejected the objection petition filed by the petitioner on 14.8.2001. Now by an amendment petition the petitioner has also prayed for quashing of the letter of intent dated 22.4.2003 issued by the Company in favour of respondent No. 4, contained in Annexure A to the counter affidavit filed on behalf of the respondent No. 4.

2. In short, the facts of the case are that in pursuance of advertisement (Annexure 1) published in the daily newspaper 'Aaj' dated 31st December, 1997, the petitioner applied for the dealership of retail outlet, at Lakhisarai in duly prescribed pro forma as per the norms laid down in the said advertisement. It is stated that a re-advertisement (Annexure 2) was also published on 26.9.2000 in the daily newspaper 'Hindustan' with regard to the same site with certain modifications. The said re-advertisement included an additional clause that the applicant will have to give full details of the land which he would make available to the Company for the retail outlet, along with the application. Such applicant will be given preference, who would offer and are eager to offer full title/long term lease on the acceptable rate to the Company. If the applicant fails to provide land of which description has been given within two months after selection, then their allotment shall be cancelled. Pursuant to the re-advertisement (Annexure 2), the petitioner applied for the same afresh. Thereafter in due course of time on 16.2.2001 DSB issued interview letter (Annexure 3) to the petitioner in which the date of interview was fixed on 12.3.2001 and, accordingly, the petitioner appeared before the DSB. According to the petitioner, the result of the said interview was declared by the DSB on 12.3.2001 (Annexure 4) in which the name of the petitioner was placed at serial No. 2 and the dealership was awarded to respondent No. 4, who was placed at serial No. 1. It is claimed that the petitioner also filed brief synopsis regarding his aforesaid claim before the DSB at the time of interview, which has been annexed as Annexure 5.

3. It is also claimed that the petitioner had given details regarding his land measuring total area of 23222 sq. ft. along with his application. This area included the adjoining leased land which the petitioner had already taken from one Kailash Prasad Singh on 30.10.2000 for a period of 30 years, vide registered deed of lease dated 30.10.2000 (Annexure 6).

4. It has been alleged that respondent No. 4 has been favoured by the DSB and he has been selected for the retail outlet contrary to the terms of the advertisement. In the advertisement one of the mandatory conditions that the applicant shall give the details of the land for retail outlet and those giving the same will be given preference has been ignored/violated. According to the petitioner, he had given details of the land along with the documents supported by the affidavit (Annexure 7) whereas respondent No. 4 had not given details of any land in his application, rather he has said that after getting dealership he would make available the land within two months.

5. The petitioner being aggrieved by the decision of the DSB filed writ petition, bearing C.W.J.C. No. 4208 of 2001, which was dismissed by this Court vide order dated 13.8.2001 (Annexure 8) as being premature since the letter of intent had not been issued. However, the Court granted liberty to the petitioner to approach the authority concerned and raise objection, if any, against the selection of respondent No. 4. Thereafter, the petitioner filed objection/petition (Annexure 9) before the DSB as well as H.P.C.L Reminders were also sent. However, after a lapse of eight months; the petitioner has received a letter dated 30.4.2002 (Annexure 10) from the Chairman of the DSB stating therein that his objection petition was considered but no cogent reason was found to interferes with the decision of the Board. It is stated that after passing of the order, contained in Annexure 10, the DSB was dissolved. Petitioner finding no way out filed a fresh objection dated (Annexure 11) before the Senior Regional Manager (respondent No. 2) of the Company, who in response to that issued a letter dated 10.2.2003 (Annexure 12) directing the petitioner to report to Kolkata Office of the Company to represent his claim before the enquiry committee set up by the Company. It is alleged that the petitioner appeared before the enquiry committee, but no decision whatsoever has been communicated to him so far.

6. In the counter affidavit filed on behalf of respondents No. 1 and 2 it is stated that it is not the case of the petitioner that respondent No. 4 did not fulfill the conditions of eligibility to be considered for grant of subject dealership. It is further stated that the petitioner was well aware of the fact that in accordance with the conditions as mentioned in the application form, a candidate was required to make available the proposed lands within a period of two months after his selection under the revised guidelines regulating the selection. The application form, which was filled in hand by all the applicants, including the petitioner, explicitly states that a candidate was required to make available the lands for the proposed dealership within two months of the selection, failing which his selection was likely to be set aside, which act has intentionally been suppressed by the petitioner. According to the respondents, the writ application does not allege much less disclose any ineligibility of the selected candidate i.e., respondent No. 4 and, in fact, the petitioner in paragraphs 11 and 12 of the writ application has himself stated that he had also offered to make the proposed land available in case he was selected for the dealership. Thus, according to the respondents, natural inference is that the petitioner also did not have lands available readily. The selected candidate had also likewise offered to make available the land within the prescribed time.

7. In the supplementary counter affidavit filed on behalf of respondents No. 1 and 2, it is stated that respondent No. 4 was selected for the present dealership by the DSB, vide its recommendation dated 16.3.2001. On 27.3.2001 the respondent- Corporation instructed its concerned Executive Sales Officer to carry out the field investigation report (FIR) in respect of respondent No. 4. The FIR was then conducted by the concerned Sales Officer on 10.4.2001 when respondent No. 4 had shown a piece of land at Lakhisarai situated on the Lakhisarai- Jamui/ Sheikhpura road, the approximate dimension of which was 150 ft. x 100 ft. The Sales Officer advised that the land was suitable for a retail outlet but required land filling of approximately 4 ft. On account of certain clarifications required with regard to the Bank Accounts of respondent No. 4, the concerned Sales Officer made fresh enquiries from him on 18.4.2001 when he offered to give the lands on long term, lease and confirmed that the land owner was willing to give the site on lease. Further, it is stated that the objection filed by the petitioner was examined and the DSB informed the Corporation in writing that respondent No. 4 had submitted details of the land available with him for the said dealership. The petitioner was duly heard on 21.2.2003 by the Chairman of the Enquiry Committee, Eastern Zone at the General Manager's Office of the Corporation, but the petitioner failed to substantiate his allegation that respondent No. 4 did not have any lands to offer for the proposed dealership. It is stated that only after the recommendation of the enquiry committee that the respondent Corporation issued the letter of intent to respondent No. 4 on 22.4.2003. In the meanwhile, the Sales Officer reported that the old land site which was initially shown was no more available, but respondent No. 4 had shown another plot on NH 80A across the bridge at Lakhisarai and that this land site met the requirements of the Corporation for a retail outlet on a National Highway. However, in view of the said being contrary to the Indian Road Congress Norms, the Corporation did not find the land site suitable and instructed respondent No. 4 to immediately provide another land site. Respondent No. 4 then on 21.6.2003 proposed a fresh land site which was inspected by the concerned officer of the Corporation along with land documents in support thereof and the same was finally approved. It is further stated that respondent No. 4 had duly submitted land documents dated 14.6.2003 which specifically stated that he was duly entitled to sublet the lands to the respondent-Corporation also.

8. A counter affidavit has been filed on behalf of respondent No. 4 also in which it is stated that he in terms of the letter of intent arranged suitable land covering an area of 28581 Sq. ft. on lease with effect from 14.7.2003 vide registered deed of lease bearing registration No. 5369 dated 14.7.2003. He has also annexed photo copy of deed of lease as Annexure B, besides the letter of intent dated 22.4.2003 issued in his favour as Annexure A. According to the said respondent, prayer for quashing of the list of qualifying candidates is untenable in the eye of law as the petitioner had participated in the selection process and his name was included in the panel but as he could not satisfy the authority with regard to arranging suitable land, his offer was accepted by respondent No. 1. It is stated that the claim of the petitioner was again considered but the same has been rejected vide order dated 30.4.2002, contained in Annexure 10, which is being challenged after more than a year. Meanwhile, he claims to have invested a huge amount in arranging land etc. and if at this stage he would be debarred from starting petrol pump on the proposed site he will suffer irreparable loss, which cannot be compensated in terms of money.

9. An amendment petition has been filed on behalf of the petitioner in which prayer is for quashing of letter of intent issued to respondent No. 4 filed by him along with the counter affidavit.

10. The petitioner has filed reply to the supplementary counter affidavit in which he has raised certain objections regarding awarding of marks.

11. Thus, in substance, the contention of the petitioner is that he is better suited for grant of said dealership in comparison to the selected candidate i.e. respondent No. 4 and desires a comparative review by this Court of the relative merits of the petitioner and respondent No. 4.

12. The whole emphasis of Mr. Tripathi learned counsel for the petitioner was that the petitioner is more qualified and is a much better candidate, still the DSB has acted mala fide in placing him below respondent No. 4 in the list of selected candidates by awarding erroneous marks.

13. Mr. Navin Sinha, learned counsel appearing for the respondent-Corporation has contended that there being no illegality in the selection process even alleged, this Court should not interfere with the decision of the DSB consisting of experts holding high status He contended that the fact of the case would show that the DSB has observed the procedure with all fairness and found respondent No. 4 better than the petitioner.

14. I find substance in the submission of Mr. Sinha. Recently in the case of K. Vinod Kumar v. S. Palanisamy, reported in 2003 (4) PLJR (SC) 175, the Apex Court, while dealing with the appointment of LPG Distributors in which also Dealer Selection Board is entrusted with the task of finding out the best suitable candidate, held that so long as the power is exercised bona fide, the Board is free to devise and adopt its own procedure subject to satisfying the test of reasonableness and fairness. The Apex Court also held that the requirement of furnishing particulars of land in the application is mandatory but satisfying the requirement at the stage of making the application is only directory. The particulars of such land can be made available even subsequent to the filing of the application and may even be subsequent to the selection.

15. The Supreme Court in the case of National Institute of Mental Health & Neuro Sciences v. K.K. Raman, reported in AIR 1992 S.C. 1806, while considering the case of selection for recruitment, held that the procedural fairness is the main requirement in the administrative action. The 'fairness' or 'fair procedure' in the administrative action ought to be observed and the Selection committee cannot be an exception to this principle. It must take a decision reasonably without being guided by extraneous or irrelevant consideration. But there is nothing on the record of this Court to suggest that the DSB did anything to the contrary.

16. Learned counsel for the petitioner has failed to show that the selection was arbitrary or whimsical or the DSB did not act fairly. In fact, inclusion of the name of the petitioner in the name of selected candidates itself indicates that there was proper consideration of his case and he has been treated fairly. The Supreme Court in the aforesaid case has cautioned that it should not be lost sight of that the Selection Committee consisted of Experts in the subject for selection and were men of high status and also of unquestionable impartiality and thus the Court should be slow to interfere with their opinion.

17. Under such circumstances, this Court finds no reason to interfere with the decision of the, DSB selecting respondent No. 4 for the dealership and consequently issuing the letter of intent in his favour after complying with the requirement; more so after lapse of long time during which respondent No. 4 has made investments.

18. The writ application is, thus, dismissed, but without costs.