Madhya Pradesh High Court
Deepak Singh Dangi vs Indian Oil Coporation Limited on 9 September, 2015
WP.2397/2014 1
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
JUSTICE SUJOY PAUL.
Writ Petition No. 2397/2014
Deepak Singh Dangi
Vs.
Indian Oil Corporation Ltd. and Ors.
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Shri Vivek Jain, Advocate for the petitioner.
Shri A.K. Jain, Panel Lawyer for the respondents.
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ORDER
( 09 / 09 /2015 ) The petitioner has filed this petition under Article 226 of the Constitution to challenge the order dated 27.02.2014 (Annexure P/1) whereby his candidature for LPG distributorship under Rajiv Gandhi Gramin LPG Vitrak Scheme ("RGGLV" for short) was rejected. The petitioner has also called in question the legality and validity of clause 9.2 of the brochure.
2. The facts briefly stated are that pursuant to an advertisement for LPG distributorship, the petitioner submitted his candidature. Advertisement was issued for certain locations including Bahadurpur Village. Pursuant to advertisement (Annexure P/3), the petitioner submitted his application and disclosed that he is not resident of Gram Panchayat Bahadurpur. However, he fulfills the other conditions. Petitioner participated in the selection process. By letter dated 10.01.2014 (Annexure P/6), the petitioner was declared as selected candidate. Thereafter, petitioner was expecting that letter of intent ( LOI) will be issued in his favour. Shri Vivek Jain, learned counsel for the petitioner, submits that impugned order dated 27.02.2014 came as bolt from blue to the petitioner WP.2397/2014 2 whereby draw held on 10.01.2014 was cancelled. It was observed in the impugned order that petitioner declared himself as resident of village Kukaoli and his name was erroneously included in the list of eligible candidates, who are resident of village Panchayat Bahadurpur instead of mentioning his name in the list of eligible candidates, who are residents of Tehsil.
3. Criticizing this order, Shri Vivek Jain submits that order is based on clause 9.2 of the brochure. The said clause is arbitrary, capricious, discriminatory and unconstitutional in nature. By taking this Court to the relevant clause, it is urged that petitioner and candidates of same village are similarly situated. However, a preferential right / treatment is given to the candidates of the local Gram Panchayat. There is no rationale behind it. This cannot be done unless the classification is reasonable and such classification is made in order to achieve any valid object. By taking this Court to relevant paragraphs of the scheme, it is urged that scheme is a business proposition and issued by Corporation which is a "State" within the meaning of Article 12 of the Constitution. Being "State", it was obligatory on the part of Corporation to introduce the scheme which is in consonance with Article 14 & 15 of the Constitution.
4. Shri Vivek Jain relied on (2013) 8 SCC 519 (State of Maharashtra and Anr. Vs. Indian Hotel and Restaurants Association and Ors.) to contend that preferential treatment given to local candidates is unconstitutional and it cannot pass the litmus test laid down by the Supreme Court. He also relied on three Judge Bench Judgment of Kerala High Court in WA.No. 1399/2010 (Dr. Saurabh Jain Vs. State of Kerala). He submits that petitioner's fundamental rights are infringed and therefore, clause 9.2 and impugned order (Annexure P/1) based on it be set aside.
WP.2397/2014 35. Prayer is opposed by Shri A.K. Jain, learned counsel for the Corporation. He submits that as per advertisement and brochure , it was clear that selection will be done as per the method prescribed in various clauses of the brochure including clause 9.2. Petitioner was fully aware about the condition of advertisement and brochure. He without any protest or demur participated in the selection process. He did not challenge clause 9.2 before issuance of Annexure P/1. A candidate cannot be permitted to turn around after becoming unsuccessful to say that relevant selection procedure / clause was illegal.
6. In nutshell, Shri A.K. Jain submits that petitioner is bound by the principle of estoppel. By taking this Court to the scheme RGGLV, it is urged that scheme is introduced in order to provide source of livelihood to villagers. Thus, preferential right was given to local residents. This object, by no stretch of imagination, can be said to be in violation of Article 14 of the Constitution. He relied on the judgment of Chhattisgarh High Court in WP(C). No. 3223/2010 (Ku. Nain Ajgalle Vs. Indian Oil Corporation) which is affirmed in WA. No. 14/2011. He submits that no interference is warranted in this contractual matter.
7. No other point is pressed by learned counsel for the parties .
8. I have heard the parties and perused the record.
9. Clause 9.2 of the brochure, which is called in question in the present case, reads as under:-
"9.2 Selection will be done by draw of lot first out of all eligible applicants who are residents of the Gram Panchayat (or corresponding administrative/revenue structure as applicable in the respective State/UT) of the advertised RGGLV location. In case if no eligible candidate from the Gram Panchayat is found or the list of eligible candidates from the Gram Panchayat is exhausted, then only the draw would be conducted from the list of eligible candidates residing in the WP.2397/2014 4 Taluka/Tehsil (or the corresponding administrative/ revenue structure as applicable in the respective State/UT) of the advertised location."
A simple reading of this provision shows that preferential right is admittedly given to the resident of Gram Panchayat for which advertisement was issued. If no eligible candidate from the concerned Gram Panchayat is found or eligible candidate from said Gram Panchayat is exhausted, the other eligible candidate residing elsewhere (Taluka/Tehsil) will be considered.
10. The petitioner indisputably participated in the selection procedure and was erroneously selected by treating him to be resident of village Kukaoli. However, lateron it was noticed that he is resident of a different Tehsil. Hence, his selection was cancelled. This fact shows that the petitioner participated in the selection without any objection and demur against clause 9.1 and 9.2. Thus, the question is whether petitioner is "estopped" to challenge the selection. Other question deals with validity of clause 9.2?
11. Shri Vivek Jain, relied on a Three-Judge Bench of Kerala High Court in Dr. Saurabh Jain (supra). It is seen that the High Court after considering certain judgments of Supreme Court passed the judgment in favour of the petitioners therein. However, the Apex Court in (2010) 12 SCC 576 (Manish Kumar Shahi vs. State of Bihar) opined that the petitioner is not entitled to challenge the criteria or process of selection because he without raising any objection participated in the selection. Interestingly, the Apex Court held that if the petitioner's name had appeared in the merit list, he would not have even dreamed to challenge the selection or criteria. The petitioner invoked jurisdiction of High Court under Article 226 of Constitution only after he found that his name does not figure in merit list prepared by the WP.2397/2014 5 Commission. The Supreme Court opined that this conduct of petitioner clearly disentitles him from questioning the selection and the High Court did not commit any error by refusing to entertain the writ petition.
12. In the present case also, the petitioner did not challenge the said clause or selection procedure till impugned order is passed. He felt satisfied with the selection criteria. Lateron, he decided to challenge the same. This is clearly impermissible in the light of principle laid down in Manish Kumar Shahi (supra). The same view is taken by Chhattisgarh High Court in Ku. Nain Ajgalle (supra). In the light of the judgment of Supreme Court in Manish Kumar Shahi (supra), the judgment of Kerala High Court is of no assistance to the petitioner.
13. The matter before Kerala High Court was pertaining to filling up of seats in super specialty medical courses in the State of Kerala whereas in the present case LOI / allotment is contractual in nature. No doubt, Article 14 does not permit only reasonable classification. However, reasonable classification is permissible only if is shown that such classification has some relation with the object sought to be achieved. In the present case, the scheme is contractual in nature and infact it is a business transaction.
14. The Apex Court in (2007) 11 SCC 681 ( State of Karnataka and Ors. Vs. Ameerbi and others.) has opined as under :-
"13. The posts of Aanganwadi workers are not statutory posts. They have been created in terms of the scheme. It is one thing to say that there exists a relationship of employer and employee by and between the State and Aanganwadi worker but it is, another thing to say that they are holders of civil post.
20. Aanganadi workers, however, do not carry on any function of the State. They do not hold post under a statute. Their posts are not created. Recruitment rules ordinarily WP.2397/2014 6 applicable to the employees of the State are not applicable in their case. The State is not required to comply with the constitutional scheme of equality as adumbrated under Articles 14 & 16 of the Constitution of India. No process of selection for the purpose of their appointment within the constitutional schemes exists. We do not think that the said decisions has any application in the instant case."
(Emphasis Supplied)
15. The aforesaid judgment is followed by Division Bench of this court in 2015 (1) MPLJ 297 (Neelam Singh Sikarwar Vs. State of M.P. And Ors.). In the said cases, the challenge was made to appointment procedure on the ground that preferential right is given to local person. The Courts opined that post of Aanganwadi worker is created in terms of scheme. It is only a contractual appointment and not made on a statutory post. Hence, the action was upheld. It is seen that the present scheme is also introduced in order to strengthen business and give employment opportunity to local persons. Thus, it has a rationale object behind introducing the scheme.
16. The Apex Court in (2014) 3 SCC 493 ( Sanjay Kumar Shukla Vs. Bharat Petroleum Corporation Limited and others.) opined as under :-
"7. The law relating to award of a contract by the State, its corporations and bodies acting as instrumentalities and agencies of the Government has been settled by the decision of this Court in Ramana Dayaram Shetty Vs. International Airport Authority of India reported in (1979) 3 SCC 489, Fertilizer Corpn. Kamgar Union V. Union of Inda reported in (1981) 1 SCC 568, CCE v. Dunlop India Ltd, reported in (1985) 1 SCC 260, Tata Cellular v.
Union of India (1995) 6 SCC 651, Ramniklal N. Bhutta Vs. State of Maharashtra ( (1997) 1 SCC 134 and Raunaq International Ltd. Vs. I.V.R. Construction Ltd.(1999) 1 SCC 492. The Award of a contract, whether it is by a private party to by a public body or the State, is essentially a commercial transaction. In arriving at a WP.2397/2014 7 commercial decision considerations which are paramount are commercial considerations. The State can choose its own method to arrive at a decision. It can fix its own terms of invitation to tender and that is not open to judicial scrutiny. It can enter into negotiations before finally deciding to accept one of the offers made to it."
17. This principle is followed by this Court in WP No. 10938/2014 ( Rajesh Kumar Rathore and Ors. Vs. Indian Oil Corporation Limited and others.). A plain reading of these judgments makes it clear that in contractual matters more leniency is required to be given to the Corporation. The primary object and purpose of the scheme is to expand business amongst residents of Gram Panchayat. In this view of the matter, I am unable to hold that impugned clause violates Article 14 & 15 of the Constitution. Thus, on this ground also petitioner has no case.
18. Petition fails and is hereby dismissed. No costs.
(Sujoy Paul) Judge (yog) sarathe