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J&K High Court · body

2018 DIGILAW 207 (JK)

Ikhlaq Ahmed Wani v. Union of India

2018-04-06

SANJEEV KUMAR

body2018
JUDGMENT : 1. Impugned in this petition is communication of respondent No. 2 issued vide his No. Ref : JLRO/Sudhmahadev, dated 29.01.2018, whereby the candidature of the petitioner for award of LPG Distributorship at location Sudhmahadev, District Udhampur has been rejected. 2. Facts leading to the filing of this petition, briefly stated, are; the Indian Oil Corporation Limited (IOCL), Bharat Petroleum Corporation Limited (BPCL) and Hindustan Petroleum Corporation Limited (HPCL) invited applications for appointment of LPG distributors under various categories for different locations. The applications were invited from amongst the candidates belonging to the different categories mentioned in the notification in the state of Jammu and Kashmir. The aforesaid advertisement notification appeared in daily newspaper “Daily Excelsior” on 14th August, 2017. At S.No. 25 of the advertisement notification, Hindustan Petroleum Corporation Limited (HPCL) proposed to appoint LPG distributor at Sudhmahadev, Chenani in District Udhampur. This location was advertised under the “Durgam Kshetriya Vitrak” (DKV) area in the open category for the year 2017-2018. The petitioner alongwith others submitted his application form for the aforesaid LPG Distributorship. The petitioner claims that he fulfilled the eligibility criteria laid down in the brochure and was therefore considered in the draw of lots conducted by the respondents on 15.11.2017. 3. It is submitted by the petitioner that only such candidates who had the requisite eligibility in terms of brochure alone were considered in the draw of lots. Apart from the petitioner one Vinod Bhagat, Rameshwar Verma, Babli Devi and Ishtiaq Raja were also considered for selection in the draw of lots. The petitioner was, however, declared successful and was selected for appointment as LPG distributor of the aforesaid location. In this regard, the petitioner was informed by the respondent No. 3 vide his communication dated 16.11.2017. The petitioner was also called upon to deposit sum of Rs. 40,000/- as provided under unified guidelines for selection of LPG distributor. The petitioner claims that he deposited the aforesaid amount, but the respondents instead of issuing a letter of intent / formal order of appointment of distributorship, served upon the petitioner impugned communication intimating him that his candidature has been rejected on the ground that he was not found to be the resident of Gram Panchayat where LPG distributorship was to be commissioned. It is this notification of the respondent, the petitioner is aggrieved of. 4. It is this notification of the respondent, the petitioner is aggrieved of. 4. Having heard the learned counsel for the parties and after going through the record produced before this Court, the following factual position has emerged: As per the advertisement notification dated 14.08.2017 a candidate applying for selection of LPG distributor was, inter alia, required to fulfill certain eligibility criteria. The eligibility criteria for appointment of LPG distributor under the category of “Durgam Kshetriya Vitrak” (DKV) is laid down in the brochure which the candidates applying were supposed to download from the website www.lpgvitarakchayan.in”. From the perusal of the brochure containing unified guidelines of selection of LPG distributor, it is clear that a person seeking to be appointed as LPG distributor under different categories including “Durgam Kshetriya Vitrak” (DKV) category must fulfill the eligibility criteria laid down in paragraph 8 of the guidelines. Applicant besides possessing the minimum qualification of 10th standard and falling within the age of 21 years and 60 years is required to be an Indian citizen and resident of India. There are certain other eligibility conditions which may not be relevant for the purpose. Suffice it to say that the applicant applying for appointment as LPG distributor is not required to be necessarily a resident of the concerned Gram Panchayat. The only requirement, however, is that he should be an Indian citizen and a resident of India. 5. I have seen the application submitted by the petitioner, perusal whereof would reveal that the petitioner has himself claimed to be a resident of Village Mangota Marmat, Tehsil Doda. He has also claimed to be resident of Sudhmahadev. The claim of the petitioner with regard to his residence is apparently contradictory. This, however, has been sought to be explained by the petitioner by submitting an affidavit before the respondents, indicating therein that though he is permanent resident of village Mangota Marmat, Tehsil Doda, but was residing in Sudhmahadev at the time of submission of application. 6. It appears that having regard to the eligibility of the petitioner, he was considered alongwith other eligible candidates, including those belonging to Gram Panchayat Sudhmahadev in the draw of lots conducted by the respondents on 15.11.2017. As a matter of fact, apart from the petitioner four other eligible candidates, names whereof have already been given above, were considered in the aforesaid draw of lots. As a matter of fact, apart from the petitioner four other eligible candidates, names whereof have already been given above, were considered in the aforesaid draw of lots. There is no dispute that the petitioner was declared successful in the draw of lots which fact was indicated to him by the respondents vide their communication dated 16.11.2017. Before a letter of intent / formal order of appointment of the petitioner as LPG distributor for Sudhmahadev could be issued by the respondent, upon field verification carried out by the nominated officials of the respondent company it revealed that the petitioner was not the resident of Gram Panchayat Sudhmahadev and therefore, could not have been considered in the first round of draw of lots in view of the procedure laid down in paragraph 15 of the unified guidelines for selection, contained in the brochure. It is because of this reason the respondents issued the impugned communication informing the petitioner about the cancellation of his candidature. 7. Learned counsel for the petitioner submits that the petitioner was issued the communication dated 16.11.2014, informing him that the petitioner had been declared as a successful candidate in the draw of lots and was only required to deposit Rs. 40,000/-. The petitioner deposited Rs. 40,000/- and therefore, was entitled to have the formal letter of appointment issued in his favour. In view of his solution in the draw of lots issuance of communication by the respondents affirming this fact, a vested right to appointment as LPG distributor accrued in his favour and such accrued right could not have been taken away in violation of principles of natural justice. The learned counsel, therefore, urges that the impugned communication cannot sustain being violative of principles of natural justice inasmuch as no opportunity of being heard was ever given to him before taking the decision as was conveyed to the petitioner vide impugned communication. Learned counsel for the petitioner claims that, no doubt, the petitioner was a person hailing from village Mangota Marmat, Tehsil Doda, but he had taken up his residence in Gram Panchayat Sudhmahadev also and had purchased landed property for the purpose of commissioning the LPG distributorship. 8. Learned counsel for the petitioner claims that, no doubt, the petitioner was a person hailing from village Mangota Marmat, Tehsil Doda, but he had taken up his residence in Gram Panchayat Sudhmahadev also and had purchased landed property for the purpose of commissioning the LPG distributorship. 8. Before the submissions made by learned counsel for the petitioner are appreciated, it would be necessary to refer to paragraph 15 of the unified guidelines, which for facilitating of reference is reproduced as under:- “15.a. All applicants registered on the website www.lpgvitarakchayan.in can see the status of their application on the portal www.lpgvitarakchayan.in. The list of eligible applicants & applicants eligible for draw of lots will be made available on the notice board of the concerned office of the PSU Oil Marketing Company and on the website of the concerned PSU Oil Marketing Company as well as on the website www.lpgvitrakchayan.in. b. In case, complaints are received about any applicant with regard to their eligibility before the draw, the complaint would be dealt as mentioned below in “Grievance /Complaint Redressal System”. a. In case for a location there is only one eligible applicant, no draw is required. The lone eligible applicant would be declared as selected. b. In case of more than one eligible applicant, selection of LPG Distributor for an advertised location will be done through draw of lots from the eligible applicants for that location. Inter se” priority in draw of lots for Durgam Kshetriya Vitrak c. Inter se” priority is given in the draw of lots to the eligible applicants for the Durgam Kshetriya Vitrak locations only as per the following order: i. Eligible applicants, residing in the concerned Gram Panchayat of the advertised location. ii. Eligible applicants, residing in the concerned Revenue sub division of the advertised location. iii. Eligible applicants, not residing in the concerned Gram Panchayat or in the concerned Revenue sub division of the advertised location. For Sheheri Vitrak, Rurban Vitrak, Gramin Vitrak the inter se” priority based on residence of candidate in the concerned Gram Panchayat or concerned Revenue sub division will not be applicable. iii. Eligible applicants, not residing in the concerned Gram Panchayat or in the concerned Revenue sub division of the advertised location. For Sheheri Vitrak, Rurban Vitrak, Gramin Vitrak the inter se” priority based on residence of candidate in the concerned Gram Panchayat or concerned Revenue sub division will not be applicable. Inter se” priority in draw of lots for locations under Government Personnel (GP) categories viz., “GP-SC, GP-ST, GP-OBC and GP-Gen” d. Inter se priority are given in the draw of lots to the applicants in case of Sheheri Vitrak, Rurban Vitrak, Gramin Vitrak and Durgam Kshetriya Vitrak locations reserved under Government Personnel (GP) categories viz., “GP-SC, GP-ST, GP-OBC and GP-Gen” as per the following order: i. List 1: Widows / Dependents of Armed Forces (viz., Army, Navy, Air force) or Central Para Military Forces / Central or State Special Forces, those in died while performing their duties. ii. List 2: Disabled personnel of Armed Forces (viz., Army, Navy, Air force) or Central Para Military Forces / Central or State Special Forces while performing their duties. iii. List 3: Ex-service man who has served for the Armed Forces. iv. List 4: Widows/Dependents of personnel of Central/State Governments and Public Sector undertakings who died while performing their duties and such disabled personnel of Central/State Governments and Public Sector undertakings causes attributable to performing of duties. e. In case there is only one eligible candidate in the Inter se priority list of the higher order as listed above, then that candidate will be considered as single eligible candidate for conducting the FVC. In such cases no Draw among the remaining candidates of the other lists would be required. f. In case there are two or more eligible candidates in List 1 Draw of Lots will be conducted first from amongst the eligible candidates of advertised location in List 1, if any. g. If there is no eligible candidate in List 1, then draw of lots will be conducted from eligible candidates who fall under List 2, and so on till all four Lists are exhausted for the advertised location.” 9. From the bare reading of para 15 it is clear that though the requirement of being resident of concerned Gram Panchayat is not a condition of eligibility yet the same would assume relevance in the matter of conducting of draw of lots. From the bare reading of para 15 it is clear that though the requirement of being resident of concerned Gram Panchayat is not a condition of eligibility yet the same would assume relevance in the matter of conducting of draw of lots. As is provided in paragraph 15, if there is only one eligible candidate for a location, then no draw is required and the lone candidate is entitled to be declared as selected. However, if there are more than one eligible candidates, the selection of the LPG distributor for the location would be through draw of lots. It is further provided that there would be inter se priority in the draw of lots in the following order:- i. Eligible applicants, residing in the concerned Gram Panchayat of the advertised location. ii. Eligible applicants, residing in the concerned Revenue sub division of the advertised location. iii. Eligible applicants, not residing in the concerned Gram Panchayat or in the concerned Revenue sub division of the advertised location. 10. This inter se priority in the draw of lots is only to be resorted to in the category of “Durgam Kshetriya Vitrak” (DKV) locations. Having regard to the aforesaid prescription contained in paragraph 15, in the first round of draw of lots only the eligible applicants residing in the Gram Panchayat are required to be considered and if there is none available from the Gram Panchayat concerned, then all eligible applicants residing in the revenue sub division would be considered in the draw of lots. It is only in case where no applicant from Gram Panchayat concerned or revenue sub division concerned is available, then draw of lots would be open to all eligible applicants fulfilling eligibility contained in the advertisement notification. If the contention of the respondents is believed to be correct that the petitioner was not the resident of the concerned Gram Panchayat whereas there were other eligible candidates belonging to the Gram Panchayat of the advertised location, then admittedly, the petitioner could not have been considered in the draw of lots and the successful person amongst the eligible applicants belonging to the Gram Panchayat alone was entitled to be declared selected. 11. I have gone through the record produced by Mr. 11. I have gone through the record produced by Mr. R.P.Sharma, counsel for the respondents and find that there were other candidates belonging to the Gram Panchayat, Sudhmahadev available for draw of lots, but their candidature was considered alongwith the petitioner in the draw of lots. The respondents have tried to explain as to how this happened. It is submitted that in view of the affidavit submitted by the petitioner and certificate from Tehsildar in which the petitioner had claimed to be a resident of Gram Panchayat, Sudhmahadev, his candidature alongwith other local candidates was considered, but later on when field verification by the nominated officers of the company was conducted it revealed that the petitioner was actually the resident of village Mangota Marmat, Tehsil Doda and not the resident of Gram Panchayat Sudhmahadev. There is substance in the stand taken by the respondents. As a matter of fact, the petitioner in his application form has himself claimed to be a resident of village Mangota Marmat, Tehsil Doda and therefore, was not entitled to the priority treatment as has been given to him in the draw of lots. In the presence of eligible candidates belonging to Gram Panchayat Sudhmahadev the candidature of the petitioner could not have been considered. That being so, there is nothing wrong with the impugned communication whereby the candidature of the petitioner has been rejected. 12. The plea of the learned counsel for the petitioner that the impugned communication has been issued in violation of principles of natural justice is also not sustainable for the reason that in the communication dated 16.11.2017 whereby the petitioner was informed that he had been declared successful in the draw of lots, it is specifically provided that the candidature is liable to be rejected if the field verification committee finds information submitted by the candidate to be false/incorrect, misrepresented, effecting his eligibility. The selection as intimated to the petitioner, therefore, did not confer any absolute right on him to claim his appointment as LPG distributor, but the same was subject to the verification of his claim made in the application and the documents submitted by him. 13. The selection as intimated to the petitioner, therefore, did not confer any absolute right on him to claim his appointment as LPG distributor, but the same was subject to the verification of his claim made in the application and the documents submitted by him. 13. In these circumstances, when the respondents, upon field verification, found that the petitioner was not the resident of Gram Panchayat, Sudhmahadev and therefore, could not have been considered in the draw of lots in the presence of other eligible candidates belonging to the aforesaid Panchayat, they issued the impugned communication. That being so, there was no requirement to comply with the principles of natural justice. From his own showings, the petitioner is a resident of village Mangota Marmat, Tehsil Doda and merely because he was present or had taken temporary residence in Gram Panchayat, Sudhmahadev for the purposes of completing requisite formalities for applying for the distributorship would not make him the resident of Gram Panchayat, Sudhmahadev. The resident in the concerned Gram Panchayat would be a person who is permanently residing there and has a residential house situated therein. All documents provided by the petitioner himself viz. Permanent Residence Certificate, Aadhaar Card, qualification certificates etc. clearly show that the petitioner is and continues to be a resident of village Mangota Marmat, Tehsil Doda. That being the position, even if the petitioner is served with a show cause notice and afforded an opportunity of being heard, the position would not change and compliance with the principles of natural justice would be a futile and useless exercise. 14. For the aforementioned reasons I do not find any force in this petition, same is, therefore, dismissed alongwith connected MP. The record be returned to the learned counsel for the respondents.