Research › Search › Judgment

Calcutta High Court · body

2002 DIGILAW 469 (CAL)

Kalyan Kumar Goswami v. Union of India

2002-07-18

PINAKI CHANDRA GHOSE

body2002
JUDGMENT This application has been filed by the petitioner inter alia for appointment of the private respondent as a dealership in respect of Kerosene L.D.O. dealership. 2. Respondent No.5 published an advertisement on 8th July, 2000 inter alia. for appointment of a dealership for kerosene/LDO on open category, for Bally in the District of Howrah. The petitioner duly applied for the same and he was directed to appear on 3rd August, 2001 before the Dealer Selection Board for interview. The petitioner did appear before the Board Selection, Board (hereinafter referred to as the said Board) for such appointment and furnished all the documents. The petitioner also did produce the residential certificate, ration card, voter identity card, documents relating to land situate on the Delhi Road, for the proposed dealership. 3. On September 20, 2001 a list was displayed in the office of the said Board wherefrom it appeared that the respondent No.6 has been empanelled as No. 1 and the name of the petitioner has been empanelled as No.2. According to the petitioner, the respondent No.6 is not a permanent resident of Bally, Howrah and did not fulfil the eligibility criteria. The petitioner has also been able to ascertain from the voter list that the respondent No.6 is not a voter of the said Constituency, and furthermore, she had no ration card when she applied for such dealership. According to the petitioner, the respondent No.6 made false representation with regard to the eligibility criteria before the said Board and as such she has no right to have such dealership. It is further alleged in the petition that the respondent No. 6 have produced false and fabricated documents relating to her educational qualification which misled the said Board and as such her such selection is bound to be set aside by this Hon'ble Court. 4. Affidavits have been filed in this matter before this Court by the respective parties. 5. Learned Advocate appearing on behalf on the petitioner contended that the dealership has to be given to an eligible candidate. The criteria as has been stated in the advertisement is - must be a resident of the District of Howrah. Admittedly, respondent No.6 is not a resident of the District of Howrah. She procured a residential certificate from S.D.O., Howrah Sadar. She did not have her ration card in respect of the particulars shown by her on the date of interview. Admittedly, respondent No.6 is not a resident of the District of Howrah. She procured a residential certificate from S.D.O., Howrah Sadar. She did not have her ration card in respect of the particulars shown by her on the date of interview. She is not a voter. The petitioner duly lodged complaint and an enquiry was made, report has been filed. Affidavit filed on behalf of the respondent authorities, who supported the investigation report where it has been stated that a general diary was a lodged by the respondent No.6. A new ration card was produced. On enquiry it also revealed that the residential certificate of residents are being issued on the basis of the certificate given by M.L.A. or Councilor. New ration card issued on 13th December, 2001. The address given by the respondent No.6, on enquiry it revealed that she normally resides at' the said address. It is also stated that her present ration card has been issued on the complaint lodged by her. 6. He further submitted that the Enquiry officer due to non-availability of the/original ration card could not ascertain the duration of her stay at Howrah. Further it has been stated that she does not normally reside at the address mentioned in the residential certificate. Accordingly, he submitted that she is not a resident of Howrah and in fact she was not a resident of Howrah on the date of interview. Subsequent acquisition of qualification will not cure the defect. It is also contended that considering the report of the Enquiry Officer, the Chairman, Dealer Selection Board came to the finding that the residential certificate issued by the S.D.O. (Sadar), Howrah is a genuine, nothing but totally non-application of mind. The chairman had no option but to accept the report of the Enquiry Officer and should have been cancelled is selection. He also stated before me that the lost of ration card and the complaint lodged therefor is nothing, but for the purpose of getting her duplicate ration card and nothing else. 7. He further contended that this Court has jurisdiction to entertain the application within the parameter of judicial review in respect of the decision taken by Board. In support of such contention he relied upon judgments reported in AIR 1995 Calcutta 327 (Siben Kumar Mondal v. Hindusthan Petroleum Corporation Ltd. and Another), AIR 1997 SC 1390 (State of Bihar & Ors. He further contended that this Court has jurisdiction to entertain the application within the parameter of judicial review in respect of the decision taken by Board. In support of such contention he relied upon judgments reported in AIR 1995 Calcutta 327 (Siben Kumar Mondal v. Hindusthan Petroleum Corporation Ltd. and Another), AIR 1997 SC 1390 (State of Bihar & Ors. v. Subhash Singh) and 2001 (5) SCC 664 (Tandon Brothers v. State of W.B. & Ors.). 8. In these circumstances he submitted that the petitioner has given sufficient prove in support of his claim which cannot be denied by filing such affidavit. Accordingly, he submitted that the letter of intent to be issued in favour of the respondent No.6 should be cancelled and/or quashed by this Court. 9. Learned Counsel appearing on behalf of the respondent Nos. 2 and 3 contended before me that the petition is not maintainable. There is no concrete allegations have been made. The petitioner has failed to prove the allegation in respect of the residential certificate against the private respondent. It is submitted that the respondents' residential certificates were genuine and valid which was issued by the competent authority and the same was also admitted and decided to be genuine by the field investigating committee by their report on 29th January, 2002. It is further submitted that the respondent Nos. 2 and 3 have duly considered the complaint of the petitioner and the said complaint was also sent to the concern oil company and the respondent No. 3 had receipt of the necessary field investigation report sent by the concern oil company decided the matter finally in favour of the private respondent. It is also submitted that the disputed question of facts as sought to be taken in this application as stated by the petitioner that the petitioner obtained the residential certificate and/or procured the same cannot be gone into in this writ jurisdiction as it is a disputed question of facts. It is further submitted that the same is not within the scope of this application unless there is a question of judicial review of failure and decision making process which is not a fact in this matter. In support of such contention he relied upon the judgments reported in AIR 1990 Cal. 412 (Chinmoy Sarkar and etc. v. Md. Shaniat Hossain and etc.) and AIR 1995 Cal. 327 (supra). In support of such contention he relied upon the judgments reported in AIR 1990 Cal. 412 (Chinmoy Sarkar and etc. v. Md. Shaniat Hossain and etc.) and AIR 1995 Cal. 327 (supra). According to Learned Counsel, the High Court in writ jurisdiction cannot sit in appeal over the decision of the Selection Board. He also relied on the decision of “Siben Kumar Mondal v. Hindusthan Petroleum Corporation Ltd.” and submitted that if the petitioner took part in the interview with full knowledge he has no right to challenge the same. Accordingly, he submitted that this Hon'ble Court should be pleased to dismiss this application. 10. Learned Counsel appearing on behalf of the respondent No. 6 drew my attention to the eligibility criteria and submitted that the respondent No. 6 is an applicant for open category for appointment of such dealer in respect of this instant case. According to him, the respondent No.6 is a graduate from the Calcutta University. All these certificates issued by the Calcutta University and by other authorities standing in her maiden name. 11. He further contended that under the policy guidelines for deminstrating the residence from the date of advertisement by the Revenue Officer not below the rank of Tehsildar is required to be produced in the specific form. Respondent No.6 obtained such certificate from S.D.O. (Sadar), Howrah. The Oil Company made enquiry in respect of the said certificate and found to be a genuine one which is specifically admitted by the respondent Nos. 2 and 3 in their supplementary affidavit affirmed on March 11, 2002, and the order dated 14th February, 2002 passed by the Chairman, Dealer Selection Board dated March 5, 2002. 12. He further contended that there is no particulars in respect of the alleged violation of the policy guidelines. Accordingly to him an allegation has been made that the respondent No.6 made false representation with regard to the eligibility criteria. Respondent No.6 was very much eligible to be considered for the said dealership. Admittedly, the respondent No. 6 is not a resident of Bally, nor she requires to be either under the policy guidelines or in the advertisement. In fact, respondent No. 6 is a resident of Howrah and is a permanent resident of 509, G.T. Road (South), under the jurisdiction of Howrah Police Station. 13. Admittedly, the respondent No. 6 is not a resident of Bally, nor she requires to be either under the policy guidelines or in the advertisement. In fact, respondent No. 6 is a resident of Howrah and is a permanent resident of 509, G.T. Road (South), under the jurisdiction of Howrah Police Station. 13. He also contended that after her marriage, she is residing with her in-laws at the said address. The husband and other in-laws of the respondent No.6 are voters from the said address. Rent receipt, issued by the Landlord of the premises in question, also stands in the name of father-in-law of the respondent No.6. Respondent No.6 had already applied for registration in the said Constituency. Respondent No.6 is also having a bank account from the said address. Her permanent residence has been certified by the local M.L.A. and other public representatives. The only other allegation is that the respondent No.6 has no ration card. Fact is otherwise. A new ration card against loss of the old ration card is prayed for the same has been obtained from the competent authority by the respondent No.6 at the said address. 14. He further contended that neither selection process was vitiated nor the policy guidelines was violated while selecting the respondent No.6 as No. 1 candidate in the panel. He also contended that when the selection process has been challenged, no ground could be made with regard thereto. The writ should not be entertained and should be dismissed. The petitioner participated in the interview and when became unsuccessful, in trying to challenge the process which cannot be permitted. He relied upon judgments reported, in 1995 (3) SCC 486 (Madan Lal & Ors. v. State of J. & K. & Ors.), AIR 1986 SC 1043 (Om Prakash Shukla v. Akhilesh Kumar Shukla & Ors.) and submitted that the Court cannot sit on appeal over the assessment made by an expert body. The writ petition is also not maintainable on the grounds of delay. The merit panel was prepared on September 20, 2002 and the writ petition was affirmed on 11th February, 2002. There is no explanation has been given therefor. It is further submitted that the petitioner has waived his right to the object to the selection process and acquiesced to the selection of the respondent No.6. The merit panel was prepared on September 20, 2002 and the writ petition was affirmed on 11th February, 2002. There is no explanation has been given therefor. It is further submitted that the petitioner has waived his right to the object to the selection process and acquiesced to the selection of the respondent No.6. A Writ Court can invalidate an order only if right remedy is sought by the right person in the right proceedings. The Writ Court will refuse to quash it because of lack of standing of the petitioner. In support of such submission he relied upon a judgment reported in 1996 (6) SCC 445 (State of Rajasthan & Ors. v. D.R. Laxmi and Others). 15. It is further pointed out that no challenge has been attained finality and is binding on all concerned. It is further submitted that an unreported judgment sought to be relied on by the petitioner being C.O. No.10015 (W) of 1999 (Amarendra Nath Bose v. IOC Limited and Others). The said decision has no application in the present case. 16. After hearing the parties and the submissions made before me by the respective Advocates appearing on behalf of the parties, I do not have any hesitation not to accept the contention of the petitioner inter alia on the ground that this Court will not decide the disputed question of fact. Apparently, the eligibility criteria has already been decided by the Selection Board. The petitioner has not challenge the said order of the Board. Admittedly the petitioner participated in the Selection Process and waited for a long time. After becoming unsuccessful in my opinion he cannot turn around and challenge the Selection Process at this stage. Apparently, the eligibility criteria has already been decided by the Selection Board. The petitioner has not challenge the said order of the Board. Admittedly the petitioner participated in the Selection Process and waited for a long time. After becoming unsuccessful in my opinion he cannot turn around and challenge the Selection Process at this stage. Incidentally, the facts pleaded before me by the private respondent in respect of her residence after change of her marital status and specifically submitted the residential address given in the application within the District of Howrah and the reasons as put forward before me by the Learned Counsel therefore, in my opinion, there cannot be any doubt to accept the contention of the said Learned Advocate appearing on behalf of the respondent No.6 and accordingly, in my opinion no grounds have been in fact made out in the petition in respect of challenging of eligibility criteria of the respondent No. 6 in respect of such selection and furthermore after analysing the judgments cited before me by the parties I do not find any reason to hold that the said authorities have violated the norms of selecting the dealer in accordance with their guidelines. It further appears that the enquiries have been made pursuant to the complaint lodged by the petitioner and thereafter the Chairman, Selection Board also decided the matter and accordingly, in my opinion the respondent authorities have decided the matter in accordance with law and there is no unreasonableness in granting such dealership in favour of the respondent No. 6. In the instant case as it appears that the Oil Selection Board has not only taken into consideration all the eligibility criteria of the candidates, but further enquired the complaint lodged by the petitioner and further the Chairman, Selection Board came to conclusion on the basis of such enquiry report that the respondent No. 6 has fulfilled the criteria and furthermore, no challenge has been thrown in respect of the order passed by the Chairman of the Board and I do not find any reason in the matter accordingly to interfere with the selection of a dealer as has been made in this matter. I do not find that a case has been made out by the petitioner by which the instant case can come within the parameters of judicial review as propounded by the Hon'ble Supreme Court and accordingly in my opinion this petition must fail and is hereby dismissed.