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2011 DIGILAW 281 (ORI)

Hemanta Sahu v. Indian Oil Corporation Ltd.

2011-05-10

B.N.MAHAPATRA, V.GOPALA GOWDA

body2011
JUDGMENT B.N. MAHAPATRA, J. — This writ application has been filed with a prayer to cancel the purported interview dated 12.03.2010 and direct the officers of the Indian Oil Corporation Ltd. (for short, ‘Corporation’) to appoint the petitioner as a dealer of the Corporation on the basis of the interview/merit panel dated 12.02.2009 in the Kissan Seva Kendra at Polasara NH/SH. 2.Bereft of unnecessary details the facts and circumstances giving rise to this writ petition are that an advertisement was published in the Oriya daily Newspaper ‘Dharitri’ on 10.01.2008 by the Corporation for installation of Petrol Pump outlet in the name and style “Kisan Seva Kendra” (for short, ‘K.S.K.’) in different places through out the State of Orissa. In pursuance of the said advertisement, petitioner made an application in the prescribed format before opposite party No.2-Senior Divisional Retail Sales Manager, Bhubaneswar. According to the petitioner, he has submitted all the relevant and necessary documents as mentioned in the advertisement along with the application. On scrutiny of the application, opposite parties issued a letter dated 10.4.2008 (Annexure-3) to the petitioner intimating him that the Selection Committee would visit the spot on 15.04.2008. In the said letter the petitioner was also directed to produce originals of the documents before the Committee on that date. Accordingly, the Selection Committee visited the spot on the date fixed and verified the original documents and submitted their report. Thereafter, vide letter dated 20/21.01.2009 (Annexure-4), the petitioner was directed to appear before the Selection Committee for interview on 12.02.2009 and produce all the original documents on that date at the time of interview. In pursuance of the said letter, the petitioner appeared before the Selection Committee on the date and time fixed and faced the interview. On the date of interview i.e., 12.02.2009, the result was declared and the result sheet/merit list was affixed on the notice board. As per the result sheet/merit list, the petitioner was placed at serial No.1. Thereafter, opposite parties deputed a Committee for spot verification and to submit the final investigation report. Accordingly, the final investigation report was submitted in the month of February, 2009. While the matter stood thus, the petitioner received letter dated 23.2.2010 (Annexure-5) issued by opposite party No.2 wherein he was intimated that the interview/merit list dated 12.2.2009 was cancelled and the petitioner was directed to again appear for the interview on 12.3.2010. Hence, the present writ petition. Accordingly, the final investigation report was submitted in the month of February, 2009. While the matter stood thus, the petitioner received letter dated 23.2.2010 (Annexure-5) issued by opposite party No.2 wherein he was intimated that the interview/merit list dated 12.2.2009 was cancelled and the petitioner was directed to again appear for the interview on 12.3.2010. Hence, the present writ petition. 3.Learned counsel appearing for the petitioner submitted that the interview/merit list dated 12.2.2009 was cancelled by opposite parties with a mala fide intention to show favour to their own candidate and appoint him as a dealer in the proposed K.S.K. at Polsara. Cancellation of merit list dated 12.2.2009 after lapse of more than one year is unjust and illegal. No reason has been assigned for cancellation of the merit list dated 12.2.2009. Concluding his argument learned counsel for the petitioner submitted that direction may be given to opposite party-Corporation to appoint the petitioner as the dealer in K.S.K., Polasara on the basis of the merit list dated 12.2.2009. 4.Mr. D. Mohanty, learned counsel appearing for the Corporation submitted that opposite party-Corporation being a Government of India Undertaking is under the administrative control of the Ministry of Petroleum & Natural Gas. The Corporation is engaged in business of refining, distributing and selling of petroleum products in India and abroad. There is neither any arbitrariness, illegality nor mala fide intention as alleged by the petitioner, in cancelling the merit list dated 12.2.2009 and going for fresh interview on 12.3.2010 for selection of dealer against the same advertisement dated 10.01.2008 at Polasara in accordance with the guidelines for selection of dealers. Brochure for selection of petrol/diesel retail outlet dealers (for short, “brochure”) contains the procedure for investigation of complaints, cancellation of merit list and re-interview for selection of dealers. Moreover, the brochure contains the procedure for selection of Petrol/Diesel Retail Outlet Dealers. It has nothing to do with K.S.K. for which separate specific Policy Circular bearing No.108-02/2007 dated 28.02.2007 is there. The merit list was cancelled as per the guidelines prescribed in the brochure. After publication of merit list on 12.02.2009, the Corporation on 6.3.2009 received a complaint from one Durga Prasad Patra wherein it was alleged that the Bank assurance letter issued in his favour by Andhra Bank, Polasara had not been taken into consideration at the time of evaluation of documents for selection of K.S.K. dealer. After publication of merit list on 12.02.2009, the Corporation on 6.3.2009 received a complaint from one Durga Prasad Patra wherein it was alleged that the Bank assurance letter issued in his favour by Andhra Bank, Polasara had not been taken into consideration at the time of evaluation of documents for selection of K.S.K. dealer. It was further complained that his experience certificate, capital and land be reviewed. On receipt of the aforesaid complaint dated 6.3.2009, the Screening Committee of the Corporation’s Orissa State Office vide letter dated 7.5.2009 recommended for investigation into the allegation made in the said complaint. The Manager (Retail sales)/ OSO was directed to investigate into the matter. From the investigation report submitted by the Manager (Retail Sales)/OSO, it was found that there was illegality in evaluation of the complainant’s Bank assurance and experience certificate, but there was no irregularity in evaluation of land and accordingly, it was concluded that the complainant, i.e., Sri Durga Prasad Patra is entitled to get additional mark. Thereafter, in terms of clause 18(b)(ii)(a) of the brochure, which provides that in the event of a finding of investigation that selection process for a location is not in accordance with the guidelines, the merit list would be cancelled and all the eligible candidates will be called for interview afresh basing on the documents available on record. Accordingly, the Corporation cancelled the merit list prepared on 12.2.2009 and constituted a three member committee for re-interview. Consequently, on 23.2.2010 opposite party No.2 informed the petitioner about cancellation of the merit list dated 12.2.2009 and requested him to appear before the Selection Committee for re-interview on 12.03.2010. On 12.03.2010 the petitioner attended the interview and produced relevant documents before the Selection Committee for selection as a dealer of K.S.K.. Opposite parties have supplied the desired information to the petitioner on 19.03.2010. Since the petitioner has already appeared in the interview on 12.03.2010 before the Selection Committee and produced all relevant documents, the prayer for cancellation of the said interview dated 12.3.2010 has become infructuous. 5.On the rival contentions of the parties, the only question that falls for consideration by this Court is as to whether opposite party-Corporation is justified in cancelling the merit list dated 12.09.2009 and holding a fresh interview on 12.3.2010. 5.On the rival contentions of the parties, the only question that falls for consideration by this Court is as to whether opposite party-Corporation is justified in cancelling the merit list dated 12.09.2009 and holding a fresh interview on 12.3.2010. 6.The undisputed facts are that pursuant to the advertisement dated 10.01.2008 (Annexure-1), the petitioner submitted an application and on scrutiny he was selected and his name found place at Sl. No.1 in the merit list dated 12.2.2009. Thereafter, the said selection list was cancelled and the petitioner was asked to appear before an interview again scheduled to be held on 12.3.2010 for selection of the dealer in question against the earlier advertisement dated 10.01.2008. 7.In course of hearing, a copy of the Policy Circular No.108-02/2007 dated 28.02.2007 containing revised guidelines for K.S.K. has been submitted. Paragraph 19 of the said Circular provides procedure for handling of grievance/complaint. Paragraph 19 of the said circular is reproduced below : “19. Procedure for handling of Grievances/complaints The following steps are recommended for handling of grievances/complaints with regard to selection of dealer in case of KSK * Screening of complaints by a Committee consisting of 2 officers (of ‘D’ grade and above) one each from Retail & LPG Discipline from with in the State Office to be nominated by State Retails Head and State LPG Head. * Screening committee will submits its report to State Retail Head who will forward it to State Head with his recommendation. * State Head will take further decision and in case any investigation is required State head will nominate an investigating officer of minimum ‘D’ grade and above for the same.” 8.In the counter affidavit filed by opposite parties, there is no averment to the effect that the procedure for handling of grievances/complaints provided in paragraph 19 of the Policy Circular No.108-02/2007 has been followed. Perusal of the said Policy reveals that the circular contains guidelines for K.S.K. When a particular Policy containing guidelines for K.S.K. has been formulated and issued on 28.02.2007, there is no reason as to why such specific guidelines have not been followed by the Corporation on receipt of any complaint. The said circular further speaks that K.S.K. is constituted to develop the low cost retail outlets in rural/agricultural market in order to make available diesel and other petroleum products and non-fuel products at the doorstep of Kisans. The said circular further speaks that K.S.K. is constituted to develop the low cost retail outlets in rural/agricultural market in order to make available diesel and other petroleum products and non-fuel products at the doorstep of Kisans. K.S.Ks are different from regular retail outlets in terms of investment, infrastructure facilities, benchmarks for selection process, SSLF, subsidies etc. The present policy dated 28.2.2007 is considered as the latest policy in vogue and it is mentioned that this Policy will supersede all the earlier Policies. Therefore, opposite parties are required to follow the procedure prescribed in paragraph 19 of the Policy Circular for handling grievances/complaints. 9.Law is also well settled that when the statute provides for a particular procedure, the authority has to follow the same and is not permitted to act in contravention of the prescribed provisions. Other methods or mode of performance are impliedly and necessarily forbidden. The aforesaid settled legal proposition is based on a legal maxim “Expressio unius est exclusion alteris”, meaning thereby that if a statute provides for a thing to be done in a particular manner, then it has to be done in that manner and in no other manner and following other course is not permissible. (See Taylor v. Taylor, (1876) 1 Ch.D.426; Nazir Ahmed v. King Emperor, AIR 1036 PC 253; Ram Phal Kundu v. Kamal Sharma; and Indian Bank’s Association v. Devkala Consultancy Service, AIR 2004 SC 2615 ). 10.Since the Corporation has not followed the aforesaid guidelines of the Policy dated 28.02.2007, on this solitary ground, the decision of the Corporation in cancelling the merit list dated 12.2.2009 and further holding re-interview on 12.3.2010 is not sustainable. 11.It may be noted that no satisfactory reason has been assigned by the opposite parties to justify the delay, i.e., more than one year taken in cancelling the merit list. No explanation has also come forward from the Corporation as to why they have not taken into consideration the assurance letter issued in favour of the complainant by Andhra Bank, Polasara at the time of evaluation of documents of S.K.S.’s dealer if such documents were filed along with the application form. Merely because the petitioner participated in the re-interview proceeding that cannot legalise the action of opposite parties, who have illegally cancelled the merit list dated 12.02.2009. Merely because the petitioner participated in the re-interview proceeding that cannot legalise the action of opposite parties, who have illegally cancelled the merit list dated 12.02.2009. 12.Moreover, as there were only two candidates, so the merit list was required to be prepared in respect of two applicants for the K.S.K. in question. It is not understood as to how the Selection Committee consisting of 3 members failed to take into consideration the Bank assurance letter from Andhra Bank, Polasara if it was before them for evaluation on the date of interview. It is also not understood how they failed to make proper evaluation of experience certificate, capital and land as alleged by the complainant. 13.Therefore, in the absence of satisfactory explanation, we are not inclined to accept the contentions of opposite parties that the Selection Committee failed to take into consideration the Bank assurance and also fail to make proper evaluation of experience certificate, capital and land. 14.In view of the above, the order dated 23.02.2010 under Annexure-5 cancelling the merit panel dated 12.02.2009 is hereby quashed and the opposite party-Corporation is directed to appoint the writ petitioner, Sri Hemanta Sahu as dealer for K.S.K., Polasara on the basis of merit panel dated 12.2.2009. 15.In the result, the writ petition is allowed. No order as to costs. V. GOPALA GOWDA, C.J.I agree. Petition allowed.