Himachal Pradesh High Court
Capt. H.C. Chandel vs Union Of India And Others on 21 September, 2016
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No. 3139 of 2015 Judgment Reserved on: 15.9.2016 Date of decision: 21.9.2016 .
Capt. H.C. Chandel. ...Petitioner
Versus
Union of India and others. ...Respondents
Coram
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
Whether approved for reporting?1 No.
of
For the Petitioner: In person.
For the Respondents: Mr. Ashok Sharma, Assistant Solicitor General
rt of India, for respondent No. 1.
Mr.K.D. Sood, Senior Advocate with
Mr.Sanjeev Sood, Advocate, for respondent No. 2.
Mr.Janesh Gupta, Advocate, for respondent No. 3.
Tarlok Singh Chauhan J.
The petitioner had earlier filed a writ petition being CWP No. 3745 of 2011, laying claim to his entitlement for allotment of petrol pump. This petition was allowed and respondent No. 1 was directed to reconsider the case of the petitioner keeping in view the instructions/guidelines/schemes, which were prevalent for the allotment of petrol pump under discretionary quota at the time when he submitted his application i.e. on 28.2.1997 and in the month of August, 2001, within a period of eight weeks as a special case, outside the 100 point roster.
2. In pursuance to the aforesaid directions, respondent No. 1 considered and rejected the claim of the petitioner, constraining him to file the instant petition for grant of the following substantive reliefs:-
Whether the reporters of the local papers may be allowed to see the Judgment? Yes ::: Downloaded on - 15/04/2017 21:16:22 :::HCHP 2 CWP No. 3139 of 2015 "a) quash the impugned order of rejection of applications for grant of petrol pump under Discretionary Quota Scheme at location Matiana as per Annexure-P/2 dated 12.11.201;.
b) petrol pump allotment made by respondent No. 2 in favour of .
Respondent No. 3 at location, Matiana under advertisement dt.
04.09.2009 (Annexure P/5) be set aside, against concealment of 100 point roster or fraud;
c) direct the Respondents No. 1 and 2 to make allotment of petrol pump dealership IOC Ltd. with all the facilities in location, Matiana at public expense, as mentioned by the petitioner in his of applications against rehabilitation scheme of the year 1997 or 2001 under discretionary quota."
3. It is averred that not only respondent No. 1 has illegally rt rejected the representation of the petitioner, but even respondent No. 2 has committed grave illegalities in allotting the petrol pump dealership at location Matiana to respondent No. 3, as the same was in fact required to be notified as per the 100 point roster in favour of "defense category"
and not for Open (W) Category. In addition to the aforesaid, it is averred that once the Central Government represented by the Ministries of Petroleum & Defence being respondents No. 1, 2, 6 and 7 in the previous litigation had not chosen to contest the said petition, then they could not now take into consideration additional facts or grounds and were estopped from questioning the eligibility and therefore could not have rejected the claim of the petitioner, that too, on the basis of documents which had not even been produced before this Court in the earlier litigation inter se the parties.
4. Respondent No. 1, Ministry of Petroleum and Natural Gas has filed short reply, wherein it is averred that though the petitioner is ex-serviceman, but he had only submitted an informal application, which was not in the prescribed format or otherwise providing any material detail to the Ministry of Defense, Directorate General Resettlement ::: Downloaded on - 15/04/2017 21:16:22 :::HCHP 3 CWP No. 3139 of 2015 (DGR), Ministry of Petroleum & Natural Gas (MOPNG) on 28.2.1997 for allotment of petrol pump and formal application for the first time came to be filed only on 30.8.2001, staking claim for allotment of petrol pump at .
location Matiana, Shimla. It is further averred that the respondents even in the earlier petition had filed its reply questioning the eligibility of the petitioner and had specifically stated that he did not meet the eligibility criteria under the discretionary quota scheme of the Government.
of However, in compliance to the directions passed by this Court, his case was again considered in light of the instructions prevailing at that time rt and after meticulous scrutiny of the documents on record and threadbare analysis of the representation, the same was rejected vide order dated 12.11.2014, by passing a self speaking order.
5. Respondent No. 2, Indian Oil Corporation has filed its separate reply, wherein it was submitted that the allotment of retail outlet dealership/LPG distributorship to the widows/next kin of the defense personnel killed in action in "Operation Vijay" (Kargil) was being done without advertisement and the allotment was made solely on the recommendation of the Director General Resettlement. The discretionary quota on compassionate grounds was to deserving persons of two categories:
a. Dependants of defense/paramilitary/police personnel, who are killed in action or persons permanently disabled while performing their duties and have not been suitable rehabilitated.
b. Dependants of Central/State Government employees, who are killed or permanently disabled while ::: Downloaded on - 15/04/2017 21:16:22 :::HCHP 4 CWP No. 3139 of 2015 performing their duties and have not been suitably rehabilitated.
In the scheme Annexure A-4 filed with the petition dated 14.5.1997 .
reservation was claimed under discretionary quota as per para 2 of Annexure A-4 for the following categories:
"2. Reservation for Defense Personnel.
With effect from 1st April, 1985, 7 and ½% quota of these of oil product agencies have been reserved for the following a. Defense personnel who are permanently and severely rt disabled either in war or on military duty during peace time.
b. Widows and motherless dependents of defense personnel whose husbands/guardians are killed while on military duty either in war or peace.
c. Extremely deserving cases of ex-servicemen who have no means of livelihood."
It was also averred that the locations are finalized for setting up regular retail outlets under different categories of reservation as per 100 point roster for each site oil company-wise so as to ensure the percentage of reservation as envisaged by respondent No. 1 for each category is achieved. It was also averred that the location Matiana was rostered in 100 point roster after taking approval from the competent authority and accordingly it was advertised under Open (W) category and the petitioner cannot claim as right for a particular location, as this function totally vests with respondent No. 2 and the allotment made in favour of respondent No. 3 was so made after completing all codal formalities.
::: Downloaded on - 15/04/2017 21:16:22 :::HCHP 5 CWP No. 3139 of 20156. As regards respondent No. 3, she though not filed any separate reply, but has vehemently contested the petition.
I have heard learned counsel for the parties and have also .
gone through the records of the case.
7. At the outset, it may be observed that though earlier petition being CWP No. 3745 of 2011 was decided in favour of the petitioner, whereby respondent No. 1 was directed to consider afresh of the representation of the petitioner, as per prevalent instructions/guidelines/schemes on 29.9.1997 and August, 2001.
rt However, two adverse findings therein have clearly been recorded by this Court, which virtually seal the fate of the petitioner. Firstly, this Court has upheld the allotment of petrol pump in favour of respondent No. 3 herein (who was respondent No. 9) and secondly the claim of petitioner to insist for allotment of petrol pump at a particular place i.e. Matiana has also been negated. This is clearly evident from para 8 of the judgment, which reads thus:-
"8. Now, the Court will advert to the challenge laid by the petitioner to the allotment of petrol pump at Matiana in favour of respondent No. 9. The allotment of petrol pump in favour of respondent No. 9 has been made in conformity with law and the prescribed procedure. All the petroleum Companies are preparing 100 point roster whereby special quota is prescribed for defence personnel. It was always open for the petitioner also to apply for the allotment of petrol pump falling in defence category. The petitioner could not insist for the allotment of a petrol pump at a particular place i.e. Matiana. It is a policy decision taken by the Oil Companies and the scope of judicial review in these matters is very limited. Respondent No. 9 has participated in the selection process pursuant to an advertisement dated 4.9.2009 i.e. open (women) category."
8. Importantly, as regards, the petitioner, the aforesaid findings have attained finality, since it was only respondent No. 2 who ::: Downloaded on - 15/04/2017 21:16:22 :::HCHP 6 CWP No. 3139 of 2015 aggrieved by the judgment had questioned the same by filing LPA No. 180 of 2014. However, in the integrum, respondent No. 1 took a decision on the representation of the petitioner (as was directed in the CWP No. .
3745 of 2011) and rejected the same on 12.11.2014.
9. Since this decision had already been assailed by the petitioner herein by filing the instant petition, the LPA was ordered to be dismissed, as having been rendered infructuous.
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10. Evidently the petitioner is though desirous of having a petrol pump allotted in his favour, but wants the same only at Matiana, rt which contention as observed earlier has already been rejected by this Court while adjudicating CWP No. 3745 of 2011. Similarly, the question regarding allotment of petrol pump at Matiana in favour of respondent No. 3 is also not open to challenge in this petition for the reasons stated above.
11. Now as regards the order passed by respondent No. 1 on the representation made by the petitioner in pursuance to the directions passed by this Court on 12.8.2014 in CWP No. 3745 of 2011, as observed, earlier, that respondent No. 1 has passed a detailed speaking order running into six pages, whereby it rejected the representation by dealing with all contentions raised therein, as would be evident from the perusal of the order, the relevant portion whereof reads thus:-
"a) The application annexed in your Writ Petition no. 3745/2011 (Annexure A-5) is dated 28.02.1997. It does not refer to any scheme of the Ministry under which you have sought allotment of a petrol pump. The application does refer to an application dated 31.10.1996 but is not found in your Writ Petition Annexures.
However, under para 9 of your Writ Petition, you have claimed that your case (presumably, the claim is w.r.t. your application dated 28.02.1997 as no later application has been cited by you in Writ Petition except one of 2001 which is dealt below) falls in the ::: Downloaded on - 15/04/2017 21:16:22 :::HCHP 7 CWP No. 3139 of 2015 "Reserved Category" and that you are eligible for the dealership of the petrol pump against resettlement/rehabilitation scheme as referred to in the Govt. of India, Ministry of Defense, Directorate General Resettlement (DGR) New Delhi letter dated 05.12.1994 .
issued vide Govt. of Himachal Pradesh, Sainik Welfare Department, letter dated 14.05.1997 whereunder para 2, the following are claimed to have been stated:
"2. Reservation for Defense Personnel.
With effect from 1st April, 1985, 7 and ½% quota of these oil product agencies have been reserved for the following of categories of defense personnel vide Ministry of Petroleum letter No. D.O. No. P-19011/19/82-IOC/193-F dated Feb. 1985:
a.rt Defense personnel who are permanently and severely disabled either in war or on military duty during peace time. b. Widows and motherless dependents of defense personnel whose husbands/guardians are killed while on military duty either in war or peace.
c. Extremely deserving cases of ex-servicemen who have no means of livelihood."
There is no traceable record of the application dated 28.02.1997 in this Ministry. It may be appreciated that the policy regime prior to date of application dated 28.02.1997 was issued in 1986 bearing ref:
P-19011/5/86-IOC dated 04.02.1986. A copy of Policy ref: P- 19011/5/86-IOC dated 04.06.1986 is enclosed herewith as Annexure 1. The policy of 1986 remained in force till 01.04.1997 while w.e.f. 01.04.1997, another policy came into force bearing ref:
P-19011/56/95-IOC dated 01.04.1997. A copy of Policy ref: P- 19011/56/95-IOC dated 01.04.1997 is enclosed herewith as Annexure 2. It is not known, in absence of any records, as to when your application was received by this Ministry, i.e. before 01.04.1007 or after 01.04.1997 w.r.t. date of your application dated 28.02.1997. However, applicability of both policies is discussed below. Prior to 01.04.1997, the policy in vogue was notified in 1986, wherein Defense category (DC) was allocated 7.5% to the Defense personnel;
i. Who were permanently and severally disabled either in war or in Military duty during peace time;
ii. Widows and motherless dependant of Defense Personnel whose husbands/guardians are killed while in Military duty either in war or peace;::: Downloaded on - 15/04/2017 21:16:22 :::HCHP 8 CWP No. 3139 of 2015
iii. Extremely deserving cases of Ex-Servicemen who have no means of livelihood (only such cases will be considered under this category as are recommended by the Directorate General of Resettlement/Defense Ministry).
.
On careful perusal of Writ Petition no. 3745 of 2011, it has been observed that you have nowhere in Writ Petition referred or annexed any certificate recommending your case issued by the directorate General of Resettlement/Defense Ministry as would have been required by the policy. No such record is available in the Ministry too. Therefore, assuming but not admitting that your application was of received prior to 01.04.1997, the same was liable to be rejected on this sole count itself.
In case however, if it is to be assumed that your application was rt received after 01.04.1997, still you were expected to enclose a certificate from Director General of Resettlement, Ministry of Defense, Government of India. Under para 4.4 of the policy of 1997, wherein it was stipulated that candidates sponsored by DGR (Director General of Resettlement) will only be called for interview.
It may be appreciated that even under the policy of 1997, you were not eligible on account of not producing any recommendation from DGR/Defense.
Further, allotment under both 1986/1997 Policy was not discretionary, but only a quota under which you were supposed to apply against advertised vacancies earmarked for this category. It is not known, whether you did so.
Furthermore, any special dispensation made for Defense Personnel are made for those who have rendered outstanding service to the country and not for those who have been punished/compulsorily retired for not fulfilling mandatory requirements of the armed forces. It has been stated in your writ petition no. 3745/2011, itself that you were compulsory retired on technical grounds, as you failed to undertake a course while in service. Further, as your claim of being deserving candidate having no means of livelihood is concerned, it is stated that material on record produced by yourself under Annexure A-22 to your Writ Petition no. 3745/2011, it is established that your wife was a JBT Teacher in the Education Department drawing Rs.94,945/- per annum pay. You had a gratuity amounting to Rs.85,059/-, AFP Fund Rs. 17,887/-, DSOP Fund Rs.38,616/- and other retirement benefits amounting to Rs.1,75,116/- apart from income from other landed property measuring 11.2 bighas which ::: Downloaded on - 15/04/2017 21:16:22 :::HCHP 9 CWP No. 3139 of 2015 you were earning and thus the claim of not having livelihood seems to be incorrect.
Thus, the application of 1997 could not have passed the eligibility test under the relevant policies at that time.
.
b) It is on record that you had that you had formally again applied against the advertisement dated 03.08.2001 vide your application dated 30.08.2001 which has already been annexed as Annexure A-
14 to the Writ Petition no. 3745/2011. As confirmed by Indian Oil Corporation Ltd., as per their records, this application was submitted under a scheme for discretionary quota of the government in the of allotment of retail outlet dealerships/LPG Distributorships/ SKO dealership vide letter ref: P-19011/4/99-IOC dated 31.05.2001 along with policy for dependants of Defence personnel. A copy of the rt relevant letter ref: P-19011/4/99-IOC dated 31.05.2001 along with the policy is enclosed herewith as Annexure 3. This Ministry vide the said letter directed to Indian Oil Corporation Ltd. to advertise in all national and major regional daily newspapers. Accordingly, the advertisement dated 03.08.2001 was published in newspaper against which it seems you had also applied vide your application dated 30.08.2001. As per the advertisement, the eligibility conditions under the policy are as under:
1. Dependants of Defence/paramilitary/police personnel who are killed in action or persons permanently disabled while performing their duties and have not been suitably rehabilitated.
2. Dependants of central/State government employees who are killed or permanently disabled while performing their duties and have not been suitably rehabilitated.
It may be seen that the scheme was applicable only for dependants and not for ex-serviceman themselves and thus you were ineligible, which explains and provides the rationale for the entry in the impugned letter dated 28.01.2002 (Annexure A-10 to the Writ Petition.)
3) It may be further noted here that vide Policy No. P-19015/2/2004- IOC dated 26.12.2006 the Ministry of Petroleum and Natural Gas disbanded the Discretionary quota scheme (DQS) of the Government in the allotment of Retail Outlet (RO) dealers/LPG distributors/SKO-LDO dealers with immediate effect wherein a reservation of 8% was kept for Defence Quota (DC) category. A copy of policy ref: P-19015/2/2004-IOC dated 26.12.2006 is enclosed herewith as Annexure 4.
::: Downloaded on - 15/04/2017 21:16:22 :::HCHP 10 CWP No. 3139 of 2015In view of the facts submitted above and the policy guidelines in vogue, it is concluded that you were neither eligible at the time of making first application on 28.02.1997, under the policy dated 04.06.1986 or 01.04.1997 as elaborated above nor were you eligible .
at the time of making formal application for allotment of dealership on 30.08.2001 under the policy in vogue dated 31.05.2001. Hence, the claimed applications dated 28.02.1997 and 30.08.2001 are liable to be rejected."
12. It would be noticed that there are no allegations of of malafides, violation or infringement of rules and that being the case, this Court cannot sit as a appellate Authority to examine the consideration rt order like the Court of appeal. This Court while exercising its powers of judicial review will interfere only if the decision is perverse or is not based on record or proper record has not been considered by the respondents, which is not the fact situation obtaining in the instant case.
Rather, a bare perusal of the aforesaid order leaves no manner of doubt that the respondents have given clear, cogent and convincing reasons for rejecting the claim of the petitioner. There is complete fairness on their part, to which no exception can be taken, that too only because the decision is not palatable to the petitioner.
13. Lastly the petitioner would vehemently argue that the findings recorded by respondent No. 1 that his case was required to be sponsored by the Director General of Resettlement, is palpably wrong and erroneous. However, I find this contention to be equally without any force as the petitioner himself has placed on record the office memorandum dated 1.4.1997, whereby the policy guidelines for selection of dealers and distributorship have been formulated and para 4.4 thereof clearly provides for same and reads as under:-
"4.4. Defense Category ::: Downloaded on - 15/04/2017 21:16:22 :::HCHP 11 CWP No. 3139 of 2015 Certificate to be produced from Director General of Resettlement, Ministry of Defense, Government of India. Candidates sponsored by DGR (Director General of Resettlement) will only be called for the interview."
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14. No other point urged.
15. The cumulative effect of the discussion above is that there is no merit in this petition and the same is accordingly dismissed, leaving the parties to bear their costs.
of As the petitioner has appeared in person, let a copy of this judgment be sent to him by post.
rt (Tarlok Singh Chauhan),
Judge.
21st September, 2016
(KRS)
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