Research › Search › Judgment

Orissa High Court · body

2020 DIGILAW 97 (ORI)

Anindita Mohanty v. Senior Regional Manager, Hindustan Petroleum Co. Ltd. , Bhubaneswar

2020-04-29

S.K.SAHOO, SANJU PANDA

body2020
JUDGMENT S. K. Sahoo, J. - In this writ appeal, the appellant Smt. Anindita Mohanty seeks to set aside the impugned order dated 19.06.2019 passed by the learned Single Judge in W.P.(C) No.569 of 2017 in rejecting the prayer made by the appellant (petitioner) in the writ petition to quash the fresh merit list dated 14.10.2016 vide Annexure-9 and to declare the decision of the respondent no.1 Senior Regional Manager, Hindustan Petroleum Corporation Ltd., Bhubaneswar Regional Office under Annexure-13 as illegal and improper. 2. The case of the appellant is that on 14.07.2009 Hindustan Petroleum Corporation Ltd. (hereafter 'the HPCL') published an advertisement in the Odia Daily 'Sambad' for appointment of dealers for retail outlets, wherein at serial no.64, location for setting up Petrol/Diesel retail outlet was indicated to be within two kilometers of Harichandanpur on Naranapur- Brahmanipal Road in the district of Keonjhar. The appellant, the respondent no.3 Smt. Babita Prusty and three others participated by making appropriate applications. An interview was conducted on 19.09.2009 and the result was published. The respondent no.3 was declared selected in the selection process. The appellant challenged the award of marks by the Selection Committee before this Court by filing W.P.(C) No.14367 of 2009 which was disposed of on 12.08.2010 with a direction to the Selection Committee to reconsider the claim of the appellant as well as the other claimants and award the marks in conformity with the guidelines and to take a decision within a period of three weeks. In compliance of the direction of this Court, on 24.05.2011 the marks were reassessed and published and again the respondent no.3 came out successful as she secured highest marks and accordingly, she was issued with a letter of intent of the proposed retail outlet dealership on 16.07.2011. The appellant again filed another writ petition bearing W.P.(C) No.18768 of 2011 on 13.07.2011 challenging the revised marks awarded which was dismissed by the learned Single Judge by order dated 14.12.2015. The appellant preferred writ appeal bearing W.A. No.18 of 2016 challenging the order dated 14.12.2015 passed in W.P.(C) No.18768 of 2011. The appellant again filed another writ petition bearing W.P.(C) No.18768 of 2011 on 13.07.2011 challenging the revised marks awarded which was dismissed by the learned Single Judge by order dated 14.12.2015. The appellant preferred writ appeal bearing W.A. No.18 of 2016 challenging the order dated 14.12.2015 passed in W.P.(C) No.18768 of 2011. The writ appeal was allowed on 22.06.2016 and the order dated 14.12.2015 passed by the learned Single Judge was quashed and HPCL was directed to prepare a fresh merit list in accordance with the order dated 12.08.2010 passed in W.P.(C) No.14367 of 2009 as well as directions/observations made in the writ appeal preferably within a period of three months. In compliance of the order dated 22.06.2016 passed in the aforesaid writ appeal, a fresh merit list was prepared on 14.10.2016 vide Annexure-9 wherein the respondent no.3 again came out successful securing highest marks. The appellant approached the Senior Regional Manager, HPCL on 23.10.2016 challenging the fresh merit list. The Senior Regional Manager, HPCL disposed of the representation of the appellant on 10.11.2016 justifying the merit list as valid. Thereafter, the appellant approached the Executive Engineer, Ghatagaon (R & B) Division on 15.11.2016 and sought clarification of the proposed site offered by the respondent no.3. On that day itself, the Executive Engineer (R & B) Division issued a letter declaring therein that the proposed site is more than two kilometers away from Harichandanpur and again he justified the stone installed nearby the proposed location indicating Harichandanpur at four kilometers is correct. On 13.01.2017 the appellant relying upon the letter of the Executive Engineer and challenging the distance factor so also challenging the fresh merit list approached this Court in W.P.(C) No.569 of 2017 which was disposed of by the impugned order dated 19.06.2019. 3. The case of the respondent no.3 Smt. Babita Prusty is that the HPCL published an advertisement on 14.07.2009 for opening of dealer owned retail outlet (open category) within location of two kilometers from Harichandanpur on Naranpur- Bramhanipal Road in the district of Keonjhar. An interview was conducted on 19.09.2009 where she herself, the appellant along with three others participated and she was declared successful as per the result published on the same day. An interview was conducted on 19.09.2009 where she herself, the appellant along with three others participated and she was declared successful as per the result published on the same day. She narrated in her counter affidavit as to how the appellant approached this Court on a number of occasions and how this Court as well as HPCL authorities dealt with such matter time to time. 4. The learned Single Judge in the impugned order first discussed the question whether a plea which was not taken in the earlier writ petition or in other words, the relief was not claimed, on the basis of certain factual aspects, can be taken in the subsequent writ petition. Referring to Rule 2 of Order II of the Code of Civil Procedure, 1908, the learned Single Judge has been pleased to hold that since the petitioner (appellant herein) has not raised the question of distance to be more than two kilometers of the site offered by the opposite party no.3 (respondent no.3 herein), she cannot agitate this new factual aspect in the subsequent litigation. The learned Single Judge then held that the matter is between two private individuals and there is no substantial amount of public interest involved in the litigation between the appellant and the respondent no.3 and accordingly held that there is no justification for the writ Court to enter into factual aspects of the litigation and accordingly dismissed the writ petition. 5. The respondents nos.1 and 2 filed their counter affidavit in the writ appeal wherein it is stated that the appellant filed W.P.(C) No.14367 of 2009 which was disposed of on 12.08.2010 with a direction to reconsider the claim of the appellant as well as the other claimants and award the marks in conformity with the guidelines and to take a decision within a period of three weeks which was complied with. The appellant again filed W.P.(C) No.18768 of 2011 challenging the revised marks awarded which was dismissed on 14.12.2015 by the learned Single Judge, against which the appellant preferred a writ appeal vide W.A. No.18 of 2016 which was allowed on 22.06.2016 and the order passed by the learned Single Judge was quashed and the respondent Corporation was directed to prepare merit list afresh in accordance with the directions issued in the order dated 12.08.2010 passed in W.P.(C) No.14367 of 2006, as well as directions/observations made in the writ appeal. Pursuant to the order passed in the aforesaid writ appeal, after the site inspection was carried out in respect of the applicants who have agreed/responded to the site inspection, marks were awarded afresh by the site inspection committee and after re- verification of records of all the candidates, a fresh merit list dated 08.09.2016 was prepared wherein the respondent no.3 was the first empanelled candidate and appellant was at serial no.4 which was communicated to the appellant vide letter dated 14.10.2016 (Annexure-9). The appellant vide letter dated 23.10.2016 raised a grievance against the fresh merit list prepared by the Evaluation Committee and a Senior officer in the rank of Deputy General Manager was appointed to investigate the points raised by the appellant and basing on the investigation report, the General Manager passed a speaking order dated 08.12.2016 stating that the complaint has not been substantiated. In the counter affidavit, it is further stated in detail as to how the marks have been awarded to different candidates under different headings. Justifying the impugned order of the learned Single Judge, it is stated that the respondent no.3 has been issued with the letter of intent and the retail outlet at advertised location Harichandanpur is being operated by her since 24.10.2019. 6. The respondent no.3 filed her counter affidavit to the writ appeal wherein it is stated that the appellant for the first time has challenged the candidature of the respondent no.3 on the ground of distance factor relying on a document issued by the Executive Engineer (R & B), Ghatogoan and also to quash the merit list which has been dealt with properly in the impugned order passed by the learned Single Judge. Several other new factual aspects have been highlighted which are not necessary to be considered in view of the limited scope of the writ appeal. The document issued by the Executive Engineer (R & B), Ghatagaon is stated to have been issued with a malafide intention for the purpose of creating a fresh cause of action in favour of the appellant and it is highlighted as to how the contents of the document relating to the distance factor of the proposed location of the retail outlet from Harichandanpur as mentioned therein is defective. 7. 7. Reply affidavit has been filed by the appellant to the counter affidavits of the respondents wherein it is stated that the appellant has been wrongly placed at 4th position in the merit list vide Annexure-9 and that the marks awarded to her is totally a wrong evaluation. In detail, it is mentioned as to how marks awarded by the Selection Committee were wrong. It is stated that valid and material points were raised by the appellant in her grievance petition (Annexure-10) while challenging the fresh merit list under Annexure-9 and also the marks awarded therein to the respective parties. However, none of those points were considered either by HPCL Company or by the learned Single Judge even though raised and pressed at every point of time. The learned Single Judge in the impugned judgment has not at all taken into account the valid grounds raised by the appellant challenging the fresh merit list and the marks awarded in Annexure-9. It is stated that the marks awarded to the respective parties by the Evaluation Committee have no consistency and the same are being changed every time to show undue favoritism to the respondent no.3 which would be evident on the face of the record. The marks awarded by the Selection Committee are not in consonance with the guidelines under Annexure-1. The Evaluation Committee has taken into account lis pendens developments and increased the marks awarded to the respondent no.3 substantially whereas the respondents are challenging the points raised by the appellant regarding distance factor on the ground that it was not earlier raised and is a lis pendens development. It is stated that the evidence on record establish that the offered site of the respondent no.3 is beyond 2 kms. and not in accordance with the advertisement which is proved by the letter of the Executive Engineer vide Anneuxre-13. It is stated that some extraneous things have been raised by the respondent no.3 at this stage in her counter affidavit to create confusion in the matter although it has got no relevance with the case. It is stated that the distance factor raised by the appellant in the writ petition is very important and ought to have been adjudicated which has not been done by the learned Single Judge and therefore, the impugned order is not sustainable in the eye of law. 8. Mr. It is stated that the distance factor raised by the appellant in the writ petition is very important and ought to have been adjudicated which has not been done by the learned Single Judge and therefore, the impugned order is not sustainable in the eye of law. 8. Mr. Ramakant Mohanty, learned Senior Advocate appearing for the appellant emphatically contended that the proposed site offered by respondent no.3 for opening of the retail outlet was not within the specified distance as per the advertisement vide Annexure-1. Earlier the Division Bench in the writ appeal by entering into the factual disputes and after due consideration of the case of the respective parties was pleased to set aside the merit list prepared by the HPCL company and consequently directed to prepare a fresh merit list as per the guidelines. In that view of the matter when the appellant raised the distance factor plea, it should not have been discarded on the ground that she cannot agitate a new factual aspect in the subsequent litigation and that such a plea is forbidden in view of Order II Rule 2 of the Code of Civil Procedure. Mr. Mohanty placed reliance on Annexure-12 which is the letter of the Executive Engineer to substantiate that the offered site of the respondent no.3 was not within 2 kms. distance from the zero based point of Harichandanpur and therefore, her application should not have been entertained at all by HPCL. He emphasised that it was the duty and responsibility of the HPCL Company to examine the eligibility of respondent no.3 and also the distance of her offered site from Harichandanpur which was a mandatory requirement as per the advertisement. The HPCL Company cannot just give these criteria a go-bye to show undue favour to the respondent no.3 by going against its own terms and conditions fixed in the advertisement. 9. Mr. Goutam Mukherjee, learned Senior Advocate appearing for the respondents nos.1 and 2 on the other hand contended that the selection of dealership was done as per the information brochure of HPCL guidelines relating to appointment of dealers for retail outlets and the candidates were evaluated on various parameters i.e. land, finance, education, capability for business generation, age, experience, business acumen and personality. The appellant was placed at 4th position whereas the respondent no.3 was placed at 1st position on evaluation of the aforementioned parameters and accordingly the respondent no.3 was issued with the Letter of Intent and the retail outlet at advertised location of Harichandanpur is being operated by her since dated 24.10.2019. 10. Mr. Sukanta Kumar Dalai, learned counsel appearing for the respondent no.3 also contended that though since 2009 the appellant is approaching this Court but for the first time in W.P.(C) No.569 of 2017, she raised the distance factor relying on a document stated to have been issued by the Executive Engineer (R & B), Ghatagaon in the district of Keonjhar. The zero based point of Harichandanpur at Gandhi Chhak has been arbitrarily fixed by the Executive Engineer and therefore, the document is nothing but a manufactured one for the present case only. According to Mr. Dalei, at the belated stage in the third round journey to this Court, the appellant cannot raise such a point which is an attempt to mislead this Court by giving such a fabricated document and rightly the learned Single Judge did not entertain such a point. While concluding, it is submitted that in the meantime, the petrol pump of the respondent no.3 has already become operational and serving the public cause and therefore, the writ appeal should be dismissed. 11. We have carefully considered the submissions advanced by the learned Counsel for the parties and perused the documents available on record. Let us first examine the power of the Division Bench while entertaining a Letters Patent appeal against the