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2003 DIGILAW 1237 (PAT)

Laxmi Prasad, Ajay Kumar v. Union Of India

2003-12-01

R.M.PRASAD

body2003
Judgment R.M.Prasad, J. 1. In all these three writ petitions the dispute is common with respect to retail outlet Dealership of Indian Oil Corporation Ltd. at Daudnagar in the District of Aurangabad, Bihar, pursuant to the advertisement dated 1-9-2000, contained in Annexure-1. Pursuant to the aforementioned advertisement, petitioners of all the three writ petitions filed their application and participated in the interview on 10/11-1-2002. It is alleged that the date of said interview was extended to 28-1 -2002 for interview of Bijay Kumar Sharma and Upendra Sharma. On 15-1-2002 Jayant Kumar Thakur (Respondent No. 6 in first writ petition i.e., C.W.J.C. No. 1613 of 2003) made a complaint to Minister, Petroleum and Natural Gas regarding extension of date. However, Dealer Selection Board, hereinafter referred to as the Selection Board, published the names of shortlisted candidate in which the name of petitioner of 3rd writ petition (C.W.J.C. No. 7161 of 2003) was included at serial No. 1 and names of Respondent No. 6 and petitioner of first writ petition were included at serial Nos. 2 and 3 respectively. Respondent No. 6 made another complaint to the Minister, Petroleum and Natural Gas on 29-1-2002. Thereafter, three writ petitions were filed; one by the petitioner of first writ case being C.W.J.C. No. 2514 of 2002 and another by the petitioner of second writ case being C.W.J.C. No. 2208 of 2002 and third one by Respondent No. 6 being C.W.J.C. No. 2163 of 2002. The Court vide order contained in Annexure-7 stayed the issuance of letter of intent in favour of the petitioner of the third case, if not already issued, and gave liberty to the Union of India to carry out inquiry into the selection. On 20th July, 2002 the Secretary of the Ministry informed that D.G. AAC had conducted the enquiry and has recommended cancellation. This Court vide order dated 22-7-2002, contained in Annexure-9 directed the Secretary, Ministry of Petroleum and Natural Gas to take final decision on the enquiry report within a fixed time. Later vide order dated 13-8-2002 disposed of all the writ petitions as being infructuous considering the fact that the grievance of the petitioners were being redressed due to the declaration made by the Prime Minister of which this Court took judicial notice. Later vide order dated 13-8-2002 disposed of all the writ petitions as being infructuous considering the fact that the grievance of the petitioners were being redressed due to the declaration made by the Prime Minister of which this Court took judicial notice. However, it appears that when no final decision was taken with respect to the retail outlet in question pursuant to the report, first two writ petitions were filed for setting aside the selection of shortlisted candidate by the Board. 2. Earlier on three occasions the matter was adjourned on the submission of Mr. Ajay Kumar Tripathi, learned Additional Standing Counsel that the competent authority in the Ministry of Petroleum and Natural Gas will take final decision on the enquiry report of the Director General, Anti Adulteration Cell and finally on 25-7-2003 learned Additional Standing Counsel produced a copy of the order dated 9th July, 2003 passed by the Director in the Ministry of Petroleum and Natural Gas by which the selection of Respondent No. 5 (petitioner in the third case) for the retail outlet dealership has been cancelled and a direction has been issued for issuance of a letter of intent for the dealership in the name of the next candidate in the panel, namely, Respondent No. 6 of the first writ case. Petitioner of the first two writ petition filed amendment petitions challenging the said order dated 9th July, 2003 of the Director of the Ministry and third writ petition has been filed by the person, whose selection for dealership has been cancelled by the impugned order. 3. Counsel for the petitioners in the first two writ petitions have ventured to submit that the entire selection process and cancellation of dealership of Respondent No. 5 and grant of dealership to Respondent No. 6 is bad and Mr. Tara Kant Jha, learned Senior Counsel appearing in third writ case has assailed the validity of the order of cancellation on the ground that the rejection simply because the petitioner is matriculate is bad besides being in violation of principles of natural justice as the petitioner was not given any notice of the so-called enquiry conducted at Ministry level. Tara Kant Jha, learned Senior Counsel appearing in third writ case has assailed the validity of the order of cancellation on the ground that the rejection simply because the petitioner is matriculate is bad besides being in violation of principles of natural justice as the petitioner was not given any notice of the so-called enquiry conducted at Ministry level. In the first two writ petitions learned Counsel submitted that the whole process of selection was vitiated on account of non-adherence to the mandatory provisions of the guidelines and even the report dated 9-7-2003 was bad not for any factual aspects but on account of legal aspects raised by the petitioner, and as such, the whole list, which includes the names of the petitioner and Respondent Nos. 5 and 6 ought to be set aside, being in contravention of law. The main emphasis in first writ petition is on account of extension of time/adjournment for interview by the Board and in the second writ petition it is contended that the Ministry cannot sit in appeal as an appellate authority over the decision of the Dealer Selection Board as the Chairman is a retired Judicial Officer and his decision cannot be made a subject of review by the Government. 4. I failed to appreciate as to how the entire selection process can be assailed by the petitioners of first two writ cases only after they have either been given lower rank or not included in the select list. Moreover, it is not their case that interview of Respondent No. 6 was conducted at a later date. Thus, the question regarding extension of the date of interview, in my opinion, in the present matter is wholly redundant and of no consequence. 5. As regards the power of Ministry, Mr. Tripathi, learned Additional Standing Counsel appearing for Union of India has contended that the Respondent-Ministry is carrying out the executive power of the Union as an extended arm of the President as per Art. 53 of the Constitution of India. The Union of India has been vested with the power to frame policies, rules and regulations so as to carry out the authority in order to administer the oil industry. The Union of India has been vested with the power to frame policies, rules and regulations so as to carry out the authority in order to administer the oil industry. The Petroleum products come under Entry 53 of List I of VIIth Schedule of the Constitution of India, and, as such, it is imperative that taking administrative decisions for better distribution of national resources so as to sub-serve the common good as outlined in the Directive Principles of the State Policy under Art. 39 (b) falls under the power and authority of the Ministry. 6. Mr. Narendra Prasad, learned Senior Counsel appearing for Respondent No. 6, who is Respondent No. 7 in third writ case with reference to supplementary counter-affidavit filed by Respondent No. 7 contended that in addition to the guidelines framed for selection of retail outlet dealership/LPG distributors/SKD LDO dealers by Ministry of Petroleum letter dated 9-10-2000 read with letter dated 13-10-2000 appended as Annexure-4 to the first writ petition, by instructions dated 2-5-2001 office of the Director General, Anti Adulteration Cell has been constituted. The Government of India in exercise of the Constitutional power issued instructions for Constitution of the Director General, Anti Adulteration Cell, whose job is investigate into the complaints against the Chairman and Members of the Board. This Cell was created subsequent to the issue of revised guidelines issued in October, 2000. He referred to the recommendations/observations of the 22nd report of the Standing Committee of the Parliament on Petroleum and Chemicals, which was presented to both House of Parliament in February and March, 2002, the relevant extract of which has been annexed as Annexure-B/7, and submitted that the Committee while considering the functioning of Anti Adulteration Cell (AAC) whose job is to investigate into the complaints against the Chairman and Members of the Board as very important recommended that the organisational structure of the Cell should be fully strengthened. Mr. Prasad further submitted that the Director General of Anti Adulteration Cell in the order dated 9th July, 2003 after giving due opportunity to all concerned and considering the facts in detail has cancelled the selection of the petitioner of third writ case for valid reasons. Mr. Prasad further submitted that the Director General of Anti Adulteration Cell in the order dated 9th July, 2003 after giving due opportunity to all concerned and considering the facts in detail has cancelled the selection of the petitioner of third writ case for valid reasons. Moreover, this has been done pursuant to the order of this Court passed in the earlier writ case to look into the matter, and thus, there is no illegality or arbitrariness on his part in passing the said order cancelling the selection of the petitioner of third ca and directing for issuance of letter of intent to the next candidate, namely, Respondent No. 6 in the light of Clause 17 of the guidelines contained in Annexure-B/7, which provides ".........In order to bring in greater transparency, as per the new guidelines, the names in the merit panel are to be shown in the order of merit so that there is no confusion." Obviously Respondent No. 6 was the next name in the merit panel shown in the order of merit, and thus, the Director is fully justified in directing for issuance of letter of intent for the dealership to Respondent No. 6. 7. Mr. Rajendra Prasad Singh, learned Senior Counsel appearing for Respondent No. 6 in first writ case, while reiterating the contentions advanced by the Additional Standing Counsel and Mr. Prasad, contained that the writ petitioner had, in fact, been set up by powerful persons, which fact is evident from the fact that he was working as a salesman in Om Service Station, Bypass Road, Aurangabad. It was pointed out by Respondent No. 6 in his complaint that registration number of the writ petitioner in the Labour Department, Government of India vide service card issued to employees of Om Service Station, Bypass Road, Aurangabad is AB-1422. In the said service card the petitioner was shown to be drawing wages, as salesman @ Rs. 2212.00 per month with effect from 1-4-1999. In the said service card the petitioner was shown to be drawing wages, as salesman @ Rs. 2212.00 per month with effect from 1-4-1999. He submitted that there is a powerful family of late Onkar Mall Khemka in Aurangabad, who captures all the retail outlets and other High Court contracts in Aurangabad with the help of powerful politicians, He further contended that while the writ petitioner of third writ case is a salesman, the petitioner of first writ case is a partner of grandson of Sri Khemka and running the business in the name and style of Gupta Mini Theatre, Obra in the District of Aurangabad. Thus, according to him, the Director, Anti Adulteration Cell in. consideration of the record and giving opportunity has taken the decision vide order dated 9th July, 2003 in which there is neither any legal infirmity nor the same can be said to be unjustified. 8. Mr. Jha, learned Counsel appearing, for the Selection Board has tried to defend the action of the Board by submitting that the Selection Board has acted purely as per the guidelines of the Ministry. 9. After considering the submission advanced by the learned Counsel for the parties. I find substance in the submission of teamed Additional Standing Counsel and other Counsel for the private respondents. Learned Counsel for the petitioners have failed to show any illegality in the decision taken by the Director vide order dated 9th July, 2003, contained in Annexure-10, wherein he has observed from the D.S.B. records that the selected candidate (petitioner of third case) is matriculate with no business experience at all and his financial position is also not very sound. In the facts and circumstances aforementioned, I do not find any error in coming to the said conclusion by the Director. Moreover, he has also noted that the second empanelled candidate is academically more qualified and some of them also possess business experience, and, thus, rightly held that that the Chairman of the Board showed undue bias in favour of the selected candidate, namely, the petitioner of third writ case for no justifiable reasons. As per the guidelines of Government of India, contained in Annexure-B/7 to the supplementary counter-affidavit filed on behalf of Respondent No. 7 in the third writ case, the names in the merit panel are to be shown in order of merit so that there is no confusion. As per the guidelines of Government of India, contained in Annexure-B/7 to the supplementary counter-affidavit filed on behalf of Respondent No. 7 in the third writ case, the names in the merit panel are to be shown in order of merit so that there is no confusion. The Director keeping in view the said instruction has rightly directed for issuance of letter of intent to the next candidate in the panel i.e., Respondent No. 6 of the first writ case and Respondent No. 7 of third writ case. Learned Counsel for the petitioners have not been able to show any infirmity in the matter of preparation of panel except raising certain objections regarding extending/adjourning the date and time of interview about which I have already held that there is no merit in the said contention, more so, when it is not their case that the interview of the second empanelled candidate was conducted on the extended date. 10. Accordingly, I do not find any merit in either of the writ petition and the same are, thus, dismissed in limine.