Dismissed

Shri Parvez Hussain v. Union of India Thru Secy. and 2 Others

Allahabad HC23 Jan 2019WRIC/53983/2013

Case brief

AI extract

What is this about?

The court dismissed a writ petition challenging the rejection of the petitioner's candidature for an LPG distributorship. The rejection was based on funds being in a current account instead of the required savings account, rendering the petitioner ineligible for the role.

What did the court decide?

Writ petition dismissed; no direction given to rectify application or reconsider candidature.

Shri Parvez Hussain Vs Union of… — Constitutional and Fundamental Rights | Allahabad HC (2019)

AFR

Court No. - 38

Case :- WRIT - C No. - 53983 of 2013

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Petitioner :- Shri Parvez Hussain Respondent :- Union Of India Thru Secy. And 2 Others Counsel for Petitioner :- Shadab Ali,Anil Kumar Bajpai,Anwar Hussain,Krishn Mohan Tripathi Counsel for Respondent :- A.S.G.I.,S.C.,Sudhir Misra,Vikas Budhwar

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Hon'ble Abhinava Upadhya,J. Hon'ble Dr. Yogendra Kumar Srivastava,J.

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(Per Hon'ble Dr. Yogendra Kumar Srivastava,J.)

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Heard Sri Anil Kumar Bajpai and Sri Anwar Hussain, learned counsel for the petitioner and Sri Vikas Budhwar, learned counsel appearing for the respondent nos.2 and 3.

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The present writ petition seeks to challenge the order dated 14.09.2013 passed by respondent no.3/Territory Manager (Loni LPG), Bharat Petroleum Corporation Ltd. in terms of which the petitioner was informed with regard to the rejection of his candidature for award of LPG Distributorship at Bhojpur, Dharampur, District Moradabad under open category advertised on 22.10.2011.

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The reason for rejection as stated in the order/communication dated 14.09.2013 is that upon verification of the information submitted by the petitioner in his application a variance had been observed to the effect that the funds shown by the petitioner in the application form were found to be in the current account and not in the savings bank accounts and in view of the same the petitioner did not have the minimum liquid funds of Rs.10,00,000/- as on date of application as per the Guidelines containing the eligibility criteria.

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The relevant guidelines which have been referred to in the order dated 14.09.2013, are being extracted below:-

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"Have minimum total amount of Rs.10 lakhs for Urban-Rural & Rural Markets respectively as on the date of application. This amount is to be

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arrived at by adding amount in Savings Bank Accounts in Scheduled Bank/Post Office, free and un-encumbered Fixed Deposits in Scheduled Banks, Post Office, Listed Companies / Government Organisation / Public Sector Undertaking of State and Central Government, Kisan Vikas Patra, NSC, Bonds, Shares of Listed Companies, Listed Mutual Funds, ULIP, PPF, Surrender Value of Life Insurance policies in the name of Applicant or family members of the 'Family Unit' of the Applicant as defined above."

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The petitioner has strongly disputed the stand taken by the respondents that he did not fulfill the requirement of liquid funds in the terms of the eligibility criteria as the documents filed by the petitioner showed that there was more than Rs.10,00,000/- in his individual bank accounts as on the date of application, which as per the petitioner was in accordance with clause 7.1.v of the Guidelines. Further, it is submitted that even if the same was taken to be a discrepancy the petitioner was entitled to rectify the same within a specified period of time as per clause 9.5 of the Guidelines. Further clause 11 of the Guidelines has been relied upon to contend that the petitioner was entitled to an opportunity of hearing and also grant of time for rectifying the variance and the same would not disentitle him for his selection.

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Sri Vikas Budhwar has placed reliance on the counter affidavit filed on behalf of respondent nos.2 and 3 wherein it has been submitted that the petitioner had shown an amount of Rs.10,84,049/- in his savings bank accounts in his application form whereas during the process of "Field Verification of Credentials" (in short 'FVC'), it was found that the amount in question was in the current acount and not in savings bank accounts, and in view of the variance so noticed, and also the fact that the petitioner did not fulfill the required eligibility criteria as per clause 7.1.v and clause 11 of the Guidelines under the Brochure the candidature of the petitioner has rightly been rejected and there was no illegality in the same.

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Copies of the application form of the petitioner and bank statement and also the communication forwarded the Branch Manager of the concerned bank indicating that the account in question which the

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petitioner had shown in his application as having balance of Rs.10,84,049/- as on 24.11.2011 was a current account, have also been placed on record along with the counter affidavit.

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In order to appreciate the rival contentions of the parties we may refer to the Brochure containing guidelines for selection of Regular LPG Distributors which were made applicable to all locations advertised/re-advertised after 01.04.2011.

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The eligibility criteria for individual applicants has been provided for under clause 7 of the said Guidelines, and in terms of clause 7.1.v the following requirement is indicated:-

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"7.1.v. Have minimum total amount of Rs.15 lakhs for Urban Markets and Rs.10 lakhs for Urban-Rural Markets respectively as on the date of application. This amount is to be arrived at by adding amount in Savings Bank accounts in Scheduled Bank/ Post Office, free and unencumbered Fixed Deposits in Scheduled Banks, Post Office, Listed Companies / Government Organisation / Public Sector Undertaking of State and Central Government, Kisan Vikas Patra, NSC, Bonds, Shares of Listed Companies, Listed Mutual Funds, ULIP, PPF, Surrender Value of Life Insurance policies in the name of Applicant or family members of the 'Family Unit' of the Applicant as defined above. In case of locations reserved under 'SC/ST' category, minimum total amount as on the date of application should be Rs.5 lakhs for Urban Markets and Rs.2.5 lakhs for Urban-Rural & Rural Markets respectively."

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10. Clause 11 of the Guidelines provides for FVC, and for ease of reference the same is being reproduced below:-

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"11. FIELD VERIFICATION OF CREDENTIALS (FVC)

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11.1 Verification of the information given in the application by the applicant with the original documents and with the issuing authorities wherever required is called Filed Verification of Credentials (FVC).

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11.2 Field verification will be carried out for the selected candidate as per laid down procedure. If in the FVC, the information given in the application by the applicant is found to be correct. Letter of Intent (LOI) will be issued with the approval of competent authority.

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If in the FVC it is found that information given in the application is at variance with the original documents and that information affects the eligibility of the candidate, then a letter would b sent by Registered Post AD / Speed Post pointing out the discrepancy."

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As per the terms of the Guidelines referred to above amongst the common eligibility criteria specified for applying as an individual, the applicants were required to have a minimum total amount of Rs.15,00,000/- for urban markets and Rs.10,00,000/- for urban-rural

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and rural markets respectively as on the date of application, and the said amount was to be arrived at by adding the amount in savings bank account in Scheduled Bank/Post Office, free and unencumbered Fixed Deposits in Scheduled Banks, Post Office, Listed Companies/Government Organisation/Public Sector Undertaking of State and Central Government, Kisan Vikas Patra, NSC, Bonds, Shares of Listed Companies, Listed Mutual Funds, ULIP, PPF, Surrender Value of Life Insurance policies in the name of Applicant or family members of the 'Family Unit' of the applicant. In case of locations reserved under 'SC/ST' category, minimum total amount as on the date of application was to be Rs.5,00,000/- for Urban Markets and Rs.2,50,000/- for Urban-Rural & Rural Markets respectively.

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Further, under clause 11, Field Verification of Credentials (FVC) of the information furnished by the applicant in his application with the original document and with the issuing authorities was to be carried out for the selected candidates as per the procedure laid down, and only if in the FVC the information given by the applicant in his application form was found to be correct the Letter of Intent (in short 'LOI') was to be issued with the approval of the competent authority.

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The copy of the application form which is on record as Annexure-CA-1 shows that as per the application format, under item no.11 of the application form the amount held in savings bank account in a scheduled bank/post office as on the date of application in the name of the applicant and members of 'family unit' was required to be given. Under this column the petitioner had given his bank account no.30664290258 and had shown an amount of Rs.10,84,049/- as balance, and during the process of FVC, as per the information furnished by the concerned bank the said account number was found to be a current account and as such the information furnished by the applicant in his application form was found to be at variance with the actual position. This made the petitioner ineligible as per the requirement of having the requisite balance in his savings bank account under clause 7.1.v of the Guidelines.

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The petitioner has not placed on record any other material to demonstrate as to how he fulfilled the requisite eligibility criteria as mentioned in clause 7.1.v, as on the date of filing of the application.

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As regards the contention raised by the counsel for the petitioner that as per clause 9.5 of the Guidelines the petitioner was entitled to an opportunity of hearing and rectifying the deficiencies, it may be noted that clause 9.5 provides a procedure for rectification of deficiencies found in the application and the same would not be attracted in the present case where the applicant was admittedly ineligible in terms of the eligibility criteria under clause 7.1.v in view of the fact that he did not have the requisite balance in his savings bank account as on the date of application.

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In the instant case it was not a case of deficiency or a curable defect which could be rectified as per the procedure under clause 9.5. The selection for LPG distributorship being as per the Guidelines for selection which had been notified under the Brochure made available to the applicants, the eligibility criteria for individual applicants provided for under clause 7 were clearly known to the petitioner and as per the particulars furnished by the petitioner in his application form the petitioner did not have the requisite balance in his savings bank account as per the eligibility criteria which fact was found out during the course of FVC as per clause 11 of the Guidelines.

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Moreover, the contention of the petitioner that he was entitled to a notice and opportunity of being heard before communicating to him to the order of rejection of his candidature is also liable to be rejected for the reason that even as per his own case the petitioner did not have the requisite balance in the savings bank account as per the eligibility criteria mentioned under clause 7.1.v, and in view of the same issuance of a notice or grant of an opportunity to the petitioner, in the present case would have made no difference to the conclusion drawn by respondents with regard to the ineligibility of the petitioner as on the date of filing of his application.

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We may reiterate the legal position that the principles of natural justice cannot be applied in straitjacket formula and in a case where opportunity of hearing would have made no difference to the outcome, it may not be necessary to strike down the decision. The law in this regard has been summarized by the Supreme Court in Dharampal Satyapal Limited Vs. Deputy Commissioner of Central Excise, Gauhati & Ors.¹ in the following terms:-

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"39. We are not concerned with these aspects in the present case as the issue relates to giving of notice before taking action. While emphasising that the principles of natural justice cannot be applied in straitjacket formula, the aforesaid instances are given. We have highlighted the jurisprudential basis of adhering to the principles of natural justice which are grounded on the doctrine of procedural fairness, accuracy of outcome leading to general social goals, etc. Nevertheless, there may be situations wherein for some reason— perhaps because the evidence against the individual is thought to be utterly compelling—it is felt that a fair hearing “would make no difference”—meaning that a hearing would not change the ultimate conclusion reached by the decision-maker—then no legal duty to supply a hearing arises. Such an approach was endorsed by Lord Wilberforce in Malloch v. Aberdeen Corpn. (1971) 1 WLR 1578 : (1971) 2 All ER 1278 (HL), who said that: (WLR p. 1595 : All ER p. 1294)

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“… A breach of procedure … cannot give [rise to] a remedy in the courts, unless behind it there is something of substance which has been lost by the failure. The court does not act in vain.”

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Relying on these comments, Brandon L.J. opined in Cinnamond v. British Airports Authority (1980) 1 WLR 582 : (1980) 2 All ER 368 (CA)] that: (WLR p. 593 : All ER p. 377)

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“… no one can complain of not being given an opportunity to make representations if such an opportunity would have availed him nothing.”

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In such situations, fair procedures appear to serve no purpose since the “right” result can be secured without according such treatment to the individual.

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40. In this behalf, we need to notice one other exception which has been carved out to the aforesaid principle by the courts. Even if it is found by the court that there is a violation of principles of natural justice, the courts have held that it may not be necessary to strike down the action and refer the matter back to the authorities to take fresh decision after complying with the procedural requirement in those cases where non-grant of hearing has not caused any prejudice to the person against whom the action is taken. Therefore, every violation of a facet of natural justice may not lead to the conclusion that the order passed is always null and void. The validity of the order has to be decided on the touchstone of “prejudice”. The ultimate test is always the same viz. the test of prejudice or the test of fair hearing.

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1 (2015 (8) SCC 519)

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41. In ECIL (1993) 4 SCC 727 : 1993 SCC (L&S) 1184 : (1993) 25 ATC 704, the majority opinion, penned down by Sawant, J., while summing up the discussion and answering the various questions posed, had to say as under qua the prejudice principle: (SCC pp. 756-58, para 30)

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“30. Hence the incidental questions raised above may be answered as follows:

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(v) The next question to be answered is what is the effect on the order of punishment when the report of the enquiry officer is not furnished to the employee and what relief should be granted to him in such cases. The answer to this question has to be relative to the punishment awarded. When the employee is dismissed or removed from service and the inquiry is set aside because the report is not furnished to him, in some cases the non-furnishing of the report may have prejudiced him gravely while in other cases it may have made no difference to the ultimate punishment awarded to him. Hence to direct reinstatement of the employee with back wages in all cases is to reduce the rules of justice to a mechanical ritual. The theory of reasonable opportunity and the principles of natural justice have been evolved to uphold the rule of law and to assist the individual to vindicate his just rights. They are not incantations to be invoked nor rites to be performed on all and sundry occasions. Whether in fact, prejudice has been caused to the employee or not on account of the denial to him of the report, has to be considered on the facts and circumstances of each case. Where, therefore, even after the furnishing of the report, no different consequence would have followed, it would be a perversion of justice to permit the employee to resume duty and to get all the consequential benefits. It amounts to rewarding the dishonest and the guilty and thus to stretching the concept of justice to illogical and exasperating limits. It amounts to an ‘unnatural expansion of natural justice’ which in itself is antithetical to justice.”

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In the facts of the case, it is more than apparent that in view of the admitted facts leading to the inescapable conclusion of the ineligibility of the petitioner as per the prescribed eligibility criteria under the Guidelines of the Brochure for selection of LPG Distributorship, the order/communication rejecting the candidature of the petitioner cannot be faulted with.

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In a similar set of facts, a Coordinate Bench of this Court in Yogesh Kumar Pandey Vs. Union of India & Ors.² had repelled a challenge raised to an order rejecting the candidature of the petitioner therein for LPG Dealership where also the cancellation order had been passed for the reason that the account disclosed in the application form related to a current account and not a savings bank accounts which was required as per the prescribed eligibility criteria.

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2 Writ-C No.64849 of 2014/decided on 02.12.2014

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The claim of the petitioner seeking a direction to rectify the mistake was turned down in the following terms:-

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"Admittedly the terms and conditions of the advertisement for allotment of L.P.G. Vitrak Dealership at Dodamafi, Kihuniya, Itwa, Dulaila, district Chitrakoot mentioned in the advertisement shows that the applicant is to provide his Saving Bank account details. Mentioning of bank details other than Saving Bank details cannot be said to be complete in all respect.

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Petitioner was ineligible as he has not given the desired information in the application form, as required in the advertisement and in the present scenario the time is the essence of business.There are large number of applicants and if the petitioner is permitted to keep on making the correction in the form then there will be no end to it. There may be other persons, who may have done such mistakes, like the petitioner and if the petitioner is allowed to correct his bank details then they may also approach this Court for making rectification/correction and in that event Corporation will not be able to award the contract to anybody.

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In view of the foregoing reasons, this Court is not inclined to entertain the present writ petition."

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This Court is not inclined to take different view from what has been held by an earlier Coordinate Division Bench.

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The petitioner has not been able to point out any error or illegality in the order under challenge or any fundamental procedural defect leading to manifest injustice calling for interference by this Court in exercise of its extraordinary jurisdiction under Article 226 of the Constitution of India.

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The writ petition is devoid of merits and is, accordingly, dismissed.

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Order Date :- 23.1.2019 Shahroz

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(Dr. Y.K. Srivastava,J.) (Abhinava Upadhya,J.)

Shri Parvez Hussain v. Union of India Thru Secy. and 2 Others

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Shri Parvez Hussain v. Union of India Thru Secy. and 2 Others

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