Dismissed

Rajesh Kumar Tiwary v. the Union of India and Ors.

Patna HC6 Aug 2012CWJC/18809/2008

Case brief

AI extract

What is this about?

The Court dismissed the petitioner's writ petition seeking an LPG distributorship. It held that a Ministry affidavit effectively stayed the issuance of Letters of Intent to any candidate on the 2001 merit list, and the earlier public sector process had already been vitiated, making a 2012 directive infeasible.

What did the court decide?

Writ application dismissed; no direction issued to award the distributorship to the petitioner.

Rajesh Kumar Tiwary Vs the Union of India and Ors. — Specific Performance | Patna HC (2012)

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IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.18809 of 2008

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====================================================== Rajesh Kumar Tiwary, son of Sri Suryadeo Tiwary, resident of village Bagahi, P.O. Banahi, P.S. Behea, District Bhojpur (Bihar) .... .... Petitioner Versus 1. The Union of India through its secretary, Ministry of Petroleum and Natural Gas , Government of India, Shastri Bhawan, New Delhi-110001. 2. M/s Indian Oil Corporation Ltd., Indian Oil Bhawan, G-9, Ali Yawar Jang Marg, Bandra (East), Mumbai-400051 through its Managing Director. 3. The Senior Regional Manager, M/s Indian Oil Corporation Ltd. , Lok Nayak Jai Prakash Bhawan, Dakbunglow Road, Patna-800001. 5. Dealer Selection Board, Patna-1, 2^nd Floor, Bihar Industries, Association Building, Sinha Library Road, Patna-800002. 5. Shri Rangi Lal Rai, Resident of Village Baikunthpur, Prakhand Rajapakar, Ward House No.74, P.S. Baikunthpur District Vaishali

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.... .... Petitioner

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.... .... Respondents

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=================	=====================================
Appearance :
For the Petitioner	: Mr. Y.V. Giri, Sr. Advocate Mr. Raju Giri Mr. Ashish Giri, Advocates
For the Corporation	: Mr. K.D.Chatterjee, Sr. Advocate with Mr. Anil Kumar Sinha, Advocate
For Union of India	: Mr. P.L.Jaiswal (CGC)
For Respondent NO.5	: Mr. Vinay Ranjan, Advocate

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====================================================== CORAM: HONOURABLE MR. JUSTICE JAYANANDAN SINGH ORAL ORDER

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6 06 -08-2012 In the year 2000, respondent-Indian Oil Corporation Limited (in short, „the Corporation‟) and other public sector oil companies (Corporations) issued advertisement for allotment of LPG distributorship/dealership all over the Country to eligible citizens, qualifying under the terms and conditions laid down in the Brochure applicable in the matter issued under the guidelines of the Ministry of Petroleum and Natural Gas, Government of India. Such advertisement was issued in the State of Bihar also on

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28.08.2000 for different places, including one distributorship at Bihiya in the district of Bhojpur, vide Annexure-1. Petitioner applied for being allotted the distributorship. Accordingly, letter was issued on 26.07.2001 inviting him to appear in the interview on 21.08.2001, vide Annexure-2. Merit list was prepared and published of short-listed candidates for Bihiya on 22.08.2001, vide Annexure-3, in which petitioner ranked third.

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However, it appears that mass scale irregularities were detected in awarding distributorship all over the Country by the Corporations. Questions in that respect were also raised in the Parliament. Hence, in view of the wide-spread complaints, Prime Minister directed the Ministry of Petroleum and Natural Gas on 05.08.2002 to initiate steps for cancellation of allotment of distributorship made since January 2000 and onwards. Accordingly, the Ministry, through order dated 09.08.2002, cancelled all such allotments made by the Corporations all over the Country. This gave rise to various writ applications in different High Courts. In view of the widespread litigation, under the orders of the Apex Court, all the matters were transferred to the Apex Court. Thereafter matters were heard and, by judgment dated 20.12.2002 in the case of Onkar Lal Bajaj Vs. Union of India [(2003) 2 Supreme Court Cases 673], the Apex Court

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quashed the order of the Ministry dated 09.08.2002, except in respect of 413 cases, which were found to be doubtful. For closer scrutiny of the allotments made in those 413 cases, the Apex Court constituted a Committee of a retired Hon‟ble Judge of the Apex Court and a retired Hon‟ble Judge of Delhi High Court. The said Committee issued notices to all the empanelled as well as successful candidates in respect of the said 413 cases by name, including petitioner by Annexures 4 and 4/A, inviting them to submit their affidavits and indicate if they desired personal hearing. Petitioner, accordingly, submitted his affidavit with desire to appear before the Committee, which was granted. The said Committee heard the parties, considered the materials and submitted its report to the Apex Court. In respect of allotment of distributorship at Bihiya, the Committee found that allotment in favour of the first candidate, namely, Kameshwar Prasad Singh was not on merits, for reasons disclosed in the report. This report was finally placed before the Apex Court and the Apex Court, by its order dated 07.11.2008 in the case of Mukund Swarup Mishra Vs. Union of India and others [(2008) 15 Supreme Court Cases 243], accepted the same.

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Thereafter petitioner filed a representation before the respondent-Corporation. In his representation he took the stand

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that the allotment of first candidate had already been held illegal by the Apex Court and that the second candidate, namely respondent no.5, was not a resident of Bhojpur District. Hence he had been illegally placed at serial no.2. Petitioner claimed that since allotment of candidate at serial no.1 had already been held illegal and candidate at serial no.2 not being eligible, he, being at serial no.3, should be allotted the distributorship. His representation was not considered. Hence, he has filed this writ application with a prayer to direct the respondent-Corporation to award the distributorship to him, in terms of the advertisement dated 28.08.2000.

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Learned Senior Counsel for the petitioner submitted that, as per clause 16 of the Brochure, if the first candidate was not found suitable, or failed to fulfil the terms and conditions for award of the distributorship, the same had to be offered to the second candidate. In case of failure of the second candidate also, in fulfilling the terms and conditions or being found unsuitable for any reasons, it had to be offered to the third candidate in the merit list. It was only if the third candidate also failed or was found unsuitable, then location could be re-advertised. He submitted that, thus, under this clause petitioner had become eligible for award of the distributorship. He also submitted that the second

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candidate had not chosen to appear before the Committee, nor did he contest the matter at any stage, nor has he taken any step for consideration of his case for award of the distributorship after the judgment of the Apex Court in 2008. Hence, clearly he has abdicated his claim for consideration of his case. Moreover, documents placed by the petitioner on the record of this case clearly establish that he was not a resident of Bhojpur District, rather he was a resident of Vaishali District. Hence, on that score also he did not come under the consideration zone for award of distributorship at Bihiya, which is in the district of Bhojpur.

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The Corporation has filed its counter affidavit in this case and the second candidate, after being added as party-respondent, has also appeared and has filed his counter affidavit. The stand of the Corporation is that, after Two-Judges Committee submitted its report before the Apex Court, finding 296 allotments not on merit, the Ministry of Petroleum and Natural Gas, Government of India, which is the controlling Ministry of the respondent-Corporation, filed an affidavit before the Apex Court, taking a stand that, so far as 201 Retail Outlets were concerned, they had been commissioned and so far as 95 retail outlets dealerships were concerned, they were yet to be commissioned. It took the stand that in cases in which dealership had not been commissioned,

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their Letters of Intent would be cancelled and in cases in which letters of intent had not yet been issued, the same shall not be issued to any of the empanelled candidates. It was submitted that distributorship at Bihiya had not been commissioned till then and the Letter of Intent had also not been issued to the first candidate. Hence, he submitted that, in view of this stand of the Ministry before the Apex Court, respondent-Corporation could not act upon the merit list prepared earlier. It was submitted that subsequently in 2009, three sites, out of the sites whose selections were not approved, have been advertised. It was submitted that now, after clearance from the Ministry, fresh advertisement has been issued on 18.05.2012 of sites of the State of Bihar in which site of Bihiya has also been included. Learned Counsel for the Corporation placed reliance on an order of this Court dated 13.08.2009 passed in CWJC No.9362 of 2009 and submitted that this Court has already held that once the selection of the first candidate was found by the Apex Court as vitiated, the entire process stood vitiated and therefore the second candidate in the merit panel (petitioner before the Court) could not lay any claim for any order in his/her favour.

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Learned Senior Counsel for the petitioner, in reply, submitted that petitioner‟s selection was on merit and petitioner

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was placed at serial no.3. The Apex Court, while approving the report of the Two-Judges Committee, did not issue any direction to the Corporation to issue any fresh advertisement and hold a fresh selection process. It only approved findings of the Committee that selection of first candidate was not on merits. Hence, natural corollary was that, excluding the first candidate, the Corporation was obliged to proceed with award of distributorship on the basis of the same merit list. The second candidate, i.e. respondent no.5, apparently not being eligible as not being the resident of the district, had to be excluded, making the petitioner eligible for award of the same. He submitted that it has already been laid down by this Court in the case of Rajeev Kumar Vs. Abhay Kumar [2011 (3) PLJR 443] that an applicant for being eligible for award of distributorship had to be a resident of the district. He also submitted that this Court, vide its judgment in the case of Chairman-cum-Managing Director Vs. Sunita Kumar [2011 (3) PLJR 467], has held that in the matter of award of distributorship, procedure laid down in the Brochure has to be followed and candidates in the merit list have to be considered for award of distributorship as per the merit position and in the manner indicated in the Brochure. He submitted that after the judgment of the Apex Court, and the second candidate having

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abdicated his claim, legitimate expectation arose to the petitioner for award of distributorship to him on the basis of his merit position. Hence this Court should direct the Corporation to act upon the said merit list and award distributorship to the petitioner.

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The private respondent i.e. second candidate has disputed the claim of the petitioner by producing documents along with his counter affidavit. He has claimed that in fact, he is resident of the district of Bhojpur. Hence he was rightly placed at serial no.2 in the merit list.

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Having heard learned counsels for the parties and having considered the materials available on record, this Court is of the view that stand of the petitioner and submissions of learned Senior Counsel appearing on his behalf cannot be accepted for the following reasons :-

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(i) Extract of report of the Two-Judges Committee, in respect of Bihiya in the district of Bhojpur, annexed as Annexure6 with the supplementary affidavit of the petitioner, shows that it was only the eligibility and merit in respect of award of distributorship to the candidate at serial no.1 which was considered. Applicant nos.2 and 3, i.e. private respondent no.5 and petitioner, had filed their affidavits before the Committee and had staked their claims and had challenged placement of the first

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candidate at serial no.1. The report shows that the Committee considered the merit of the claim of the allottee i.e. first candidate in detail and found that the allotment made in his favour could not be sustained. However, in very clear terms, the Committee recorded that it had “not considered it necessary to examine evaluation of merit inter se of three applicants on the merit panel”. Thus, there was no approval of the Committee to the candidature of the petitioner or, for that matter, of respondent no.5 as the second candidate.

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(ii) Though the second candidate may not have expressed desire to appear before the Committee in person but he, indeed, had filed his affidavit before the Committee challenging the allotment to first candidate and staking his claim on the ground that he was a local person and a resident of the place. It may be that he did not stake his claim later on in view of the judgment of the Apex Court under legitimate belief that procedure of selection stood cancelled and the site will be re-advertised. Hence he cannot be held as out of picture in the matter only because he did not file representation before the Corporation or did not move this Court.

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(iii) Affidavit on behalf of the Ministry was filed before the Apex Court after the report was submitted. This affidavit was

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filed pursuant to the order dated 13.12.2004 passed by the Apex Court calling upon the Ministry to place on record its suggestions regarding steps to be taken in the event of stay being vacated as interim measure and/or the cancellation of allotment on acceptance of recommendations made in the report. In the affidavit filed, Ministry took a specific stand that Letters of Intent already issued shall be cancelled in cases in which outlet had not been commissioned and in cases in which Letters of Intent had not been issued, “fresh Letters of Intent would not be issued to any of the empanelled candidates”. After stand of the Ministry was placed on record, the Apex Court disposed of the matter accepting the report of the Two-Judges Committee. RespondentCorporation, being public sector undertaking, has to abide by the Rules, Regulations and policy decisions of the Ministry and, therefore, it cannot go against the decision of the Ministry of not issuing Letter of Intent to any of the empanelled candidates.

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(iv) The stand placed on record through an affidavit by the Ministry before the Apex Court, in response to the Court‟s order to place its stand, has to be taken as impliedly approved and accepted by the Apex Court, unless the same was challenged by any party and/or questioned or rejected by the Apex Court. Thus, the stand of the Ministry that “fresh Letters of Intent would not be

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issued to any empanelled candidates” stands impliedly approved by the Apex Court.

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(v) This Court has no reasons to differ with the findings of the Co-ordinate Bench in the said CWJC No.9362 of 2009 that “once the Hon‟ble Apex Court has found the allotment of distributorship of IOCL to be tainted with political consideration the entire process of allotment of distributorship of the block concerned in question also stands vitiated”.

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(vi) In the facts and circumstances of this case, the judgments relied upon by learned Senior Counsel for the petitioner are of no benefit to the petitioner.

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(vii) The advertisement being of 2000 and the merit panel being of 2001, in the fitness of things, this Court does not consider it appropriate to issue any direction to the Corporation in the year 2012 to act upon it.

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In the circumstances, this Court does not find that it will be proper for this Court to issue any mandamus, as called for by the petitioner in the case. The writ application is, accordingly, dismissed.

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(Jayanandan Singh, J)

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B.T/-

Rajesh Kumar Tiwary v. the Union of India and Ors.

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Rajesh Kumar Tiwary v. the Union of India and Ors.

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