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2008 DIGILAW 198 (PNJ)

Naveen Mehra v. Union Of India

2008-01-24

M.M.KUMAR, T.P.S.MANN

body2008
Judgment M.M.Kumar, J. 1. This petition filed under Article 226 of the Constitution prays for declaring Shri Suresh Kumar-respondent No. 3 as ineligible for consideration for grant of LPG distributorship at Elenabad, reserved for members of the Scheduled Castes. It has further been prayed that after declaring Shri Suresh Kumar-respondent No. 3 as ineligible, consequential direction be issued to the Department of Petroleum and Natural Gas and the Hindustan Petroleum Corporation, respondent Nos. 1 and 2, to award LPG distributorship at Elenabad, in favour of the petitioner as the petitioner claims to be at Sr. No. 2 in order of merit after Shri Suresh Kumar-respondent No. 3. The petitioner further prayed that decision of respondent No. 2 to re-advertise LPG distributorship at Elenabad upon nullification of the selection process in respect of Shri Suresh Kumar-respondent No. 3 be set aside. 2. Brief facts of the case are that on 26.12.1997, respondent No. 2 advertised the LPG distributorship at Elenabad under the reserved category meant for Scheduled Castes. On account of in-adequate response, the advertisement was once again repeated on 23.8.2000. The petitioner accordingly applied on 19.12.2000. On the basis of higher marks awarded by the Dealers Selection Board, Shri Suresh Kumar-respondent No. 3 was allotted the LPG distributorship as a Schedule Caste candidate on 27.3.2002, whereas the petitioner was placed at Sr. No. 2. There were heavy reports in the newspapers alleging widespread irregularity, arbitrariness and favouritism in the matter of allotment of LPG distributorship throughout India. Respondent No. 1 took a decision to cancel all allotments, which include allotment made to Shri Suresh Kumar-respondent No. 3. The matter was raised before Honble the Supreme Court in the case of Onkar Lal Bajaj v. Union of India, wherein the validity of the order passed by respondent No. 1 on 9.8.2002, whereby all allotments made in respect of retail outlets, LPG distributorships and SKO-LDO dealerships on the recommendation of the Dealers Selection Board were cancelled. Honble the Supreme Court after detailed discussion issued following directions: 57. In view of the aforesaid: I. We appoint a committee comprising Mr. Justice S.C. Agrawal, a retired Judge of this Court and Mr. Justice P.K. Bahri, a retired Judge of the Delhi High Court, to examine the aforesaid 413 cases. We request the committee to submit the report to this Court within a period of three months. II. In view of the aforesaid: I. We appoint a committee comprising Mr. Justice S.C. Agrawal, a retired Judge of this Court and Mr. Justice P.K. Bahri, a retired Judge of the Delhi High Court, to examine the aforesaid 413 cases. We request the committee to submit the report to this Court within a period of three months. II. The Committee would devise its own procedure for undertaking the examination of these cases. If considered necessary, the Committee may appoint any person to assist it. III. We direct the ministry of Petroleum and Natural Gas, Government of India and the four oil companies to render full, complete and meaningful assistance and cooperation to the Committee. The relevant records are directed to be produced before the Committee within five days. IV. We direct the Ministry to appoint a nodal officer not below the rank of a Joint Secretary for effective working of the Committee. V. The Central Government, State Government/Union Territories and all others are directed to render such assistance to the Committee as may be directed by it. VI. The oil companies are directed to provide as per the Committees directions, the requisite infrastructure, staff, transport and make necessary arrangements, whenever so directed, for travel, stay, payments and other facilities etc. VII. In respect of any case if the Committee, on preliminary examination of the facts, and records, forms an opinion that the allotment was made on merits and not as a result of political connections or patronage or other extraneous considerations, it would be open to the Committee not to proceed with the probe in detail. 3. The Committee of two Honble Judges constituted by Honble the Supreme Court issued notice to the petitioner calling upon him to submit his affidavit as he was placed at Sr. No. 2 in order of merit by the Dealers Selection Board. Accordingly, he filed affidavit and documents in support of his claim that Shri Suresh Kumar-respondent No. 3 did not belong to Schedule Caste category and was, thus, ineligible. He also alleged that the allotment in favour of Shri Suresh Kumar respondent No. 3 was even otherwise vitiated due to favouritism. The Committee in respect of Shri Suresh Kumar respondent No. 3 has held that the Chairman and Members had awarded higher marks to him then other two applicants i.e. the petitioner and one Shri Vishal, on merits. He also alleged that the allotment in favour of Shri Suresh Kumar respondent No. 3 was even otherwise vitiated due to favouritism. The Committee in respect of Shri Suresh Kumar respondent No. 3 has held that the Chairman and Members had awarded higher marks to him then other two applicants i.e. the petitioner and one Shri Vishal, on merits. It has concluded that keeping into consideration the experience of the petitioner, the difference of 23 marks between the marks awarded to Shri Suresh Kumar-respondent No. 3 and the petitioner did not appear to be justified. In paras 34 and 35 of the report, the Committee has concluded as under: 34. The Chairman and other two members have awarded higher number of marks to the allottee than the other two applicants on the merit panel but there is a difference of 9 marks between the marks awarded by the Chairman to the allottee and the applicant at No. 2 and 10 marks difference between the marks awarded by the Chairman to the allottee and the applicant at No. 3. The difference between the marks by the other two members to the three applicants is only marginal. The difference of 11 marks between the marks awarded by the Chairman and other members to the allottee and the applicant at No. 2 does not appear to be justified. 35. Keeping in view the objective factors mentioned by all the three applicants in their applications and the documents filed alongwith the applications, it has been found that the award of higher number of marks by the Chairman to the allottee as compared to other two applicants on the merit panel was not justified and has to be regarded as arbitrary. The higher number of marks awarded to the allottee exceed the margin of difference between the marks awarded to the allottee and the applicant No. 2. 4. It is appropriate to mention that the question with regard to the caste of Shri Suresh Kumar-respondent No. 3 was also raised before the Committee. However, the Committee did not prefer to express any opinion on the aforementioned disputed question. In para 24, the Committee had dealt with the issue by concluding as under: 24. 4. It is appropriate to mention that the question with regard to the caste of Shri Suresh Kumar-respondent No. 3 was also raised before the Committee. However, the Committee did not prefer to express any opinion on the aforementioned disputed question. In para 24, the Committee had dealt with the issue by concluding as under: 24. In view of the claim made by the allottee that he is "Dhanak" by caste and the assertion by applicant at No. 2 that the allottee is "Dhanaka" by caste and documents that have been submitted by both of them, it can be said that there is a seriou_s controversy on the question as to whether the allottee belongs to a Scheduled Caste and was eligible for consideration for the location reserved for SC category. The matter requires detailed examination on the basis of evidence. The Committee has, therefore, refrained from expressing any view on this disputed question. 5. It is admitted position that the report of the Committee was then submitted to Honble the Supreme Court, which has been accepted by their Lordships. In other words, whatever has been opined and recommended by the Committee of Honble Judges, has been approved by their Lordships. Mr. Govind Goel, learned Counsel for the petitioner has submitted that a perusal of the afore-mentioned paras of the report of the Committee would show that the petitioner has been prejudiced by giving him lower marks and Shri Suresh Kumar-respondent No. 3 was favoured, who was awarded higher marks by the Dealers Selection Board. He has further submitted that the petitioner is bound to succeed, if a declaration is issued that Shri Suresh Kumar respondent No. 3 is not entitled to the dealership in question, as he belongs to Dhanka caste, which is not recognized as Scheduled Caste in the State of Haryana. Once the eligibility of Shri Suresh Kumar respondent No. 3 is successfully questioned, then the petitioner being at Serial No. 2 in the select-list, is entitled to the LPG Distributorship in view of the judgment of this Court in the case of Rekha Kumari v. Union of India (2006-2)143 P.L.R. 518. 6. We have thoughtfully considered the submissions made by the learned Counsel and regret our inability to accept the same. 6. We have thoughtfully considered the submissions made by the learned Counsel and regret our inability to accept the same. The opinion expressed by the Judges Committee appointed by Honble the Supreme Court in the case of Onkar Lal Bajaj (supra) has been accepted by their Lordship, therefore, it has to be concluded that the report has attained finality, inasmuch, as, the view of the Committee in regard to the caste of Shri Suresh Kumar-respondent No. 3 is concerned. The Committee refused to express any opinion on the caste of Shri Suresh Kumar-respondent No. 3 on the ground that it might have required detailed examination. It has, however, found Shri Suresh Kumar-respondent No. 3 the beneficiary of favourtism. It has further found the petitioner to be victim of prejudice, which he suffered on account of favouritism shown to Shri Suresh Kumar-respondent No. 3. If such is the factual position, it is not possible to opine as to how much favouritism was done to Shri Suresh Kumar-respondent No. 3 and how much prejudice was caused to the petitioner. It is not possible for us to ascertain the comparative merit of Shri Suresh Kumar-respondent No. 3 vis-a-vis the petitioner. As far as the question of caste is concerned, that has not been gone into by the Committee although the petitioner has pleaded all those facts as per the admitted case of the petitioner. Once on the basis of pleaded facts before the Committee with regard to caste of Shri Suresh Kumar-respondent No. 3, the Committee has refused to express any opinion and the report has been accepted by Honble the Supreme Court, it would be improper for this Court to reopen the issue and declare Shri Suresh Kumar respondent No. 3 as ineligible. Moreover, the cause of action, if any, arose to the petitioner on 27.3.2002 when the allotment of LPG distributorship was made to Shri Suresh Kumar-respondent No. 3. The petitioner could have agitated the matter either before Honble the Supreme Court or before this Court. Therefore, even on the ground of delay and laches the case of the petitioner is hopelessly time barred. It is well settled that the period of limitation for filing the suit as per the Limitation Act, 1963, would also apply to the writ petitions, which is three years. Accordingly, the writ petition is liable to be dismissed on that ground also. It is well settled that the period of limitation for filing the suit as per the Limitation Act, 1963, would also apply to the writ petitions, which is three years. Accordingly, the writ petition is liable to be dismissed on that ground also. We further feel that after submission of the report by the Judges Committee, the petitioner could have filed an application before Honble the Supreme Court for adjudication of his claim concerning caste of Shri Suresh Kumar-respondent No. 3. In the absence of any timely action, it is not possible for us to go into that issue at this belated stage and declare Shri Suresh Kumar-respondent No. 3 as ineligible. The advertisement has now been issued and the petitioner alongwith all eligible candidates is entitled to compete and if found suitable on comparative merit then he may succeed in obtaining the LPG distributorship. 7. The judgment of this Court in Rekha Kumaris case (supra) does not advance the case of the petitioner because neither any Committee in Rekha Kumaris case was appointed by Honble the Supreme Court nor there was any question of delay involved in that case. Hence, the writ petition lacks merit and we have no (sic) to reject this argument. For the reasons aforementioned, this petition fails and the same is dismissed.