Calcutta High Court (Appellete Side)
Smt. Lina Ghosh & Anr vs Indian Oil Corporation Ltd. & Ors on 9 September, 2011
Author: Ashoke Kumar Dasadhikari
Bench: Ashoke Kumar Dasadhikari
1
09.09.2011 W.P. 18078(W) of 2009
ss With
C.A.N. 928 of 2011
Smt. Lina Ghosh & anr.
Vs.
Indian Oil Corporation Ltd. & ors.
With
W.P. 18498(W) of 2009
With
C.A.N. 187 of 2011
Smt. Tania Parveen
Vs.
Indian Oil Corporation Ltd. & ors.
Mr. Surojit Mitra
Mr. Prasun Datta
Mr. Subhasis Bandopadhyay
... For the petitioner in
W.P. 18078(W) of 2009
Mr. B. L. Sahoo
Mr. A, Rahamani
Mr. Imran Karim
... For the petitioner in
W.P. 18498(W) of 2009
Mr. Biswaroop Bhattacharya
Ms. Ashmita Ghosh
... For the applicant
Mr. Manwendra Singh Yadav
... For I.O.L.
Both these writ applications are heard analogously
and disposed of by this common judgement.
The writ petitioners of W.P. 18078(W) of 2009 are
aggrieved by and dissatisfied with the impugned
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communication dated September, 16, 2009 issued to the
writ petitioners thereby cancelling the L.P.G.
distributorship as well as order of issuance of letter of
intent of the said dealership at Malda.
The facts of the writ applications are that the writ
petitioners have applied for L.P.G. distributorship on the
basis of an advertisement published in the daily
newspaper 'Ananda Bazar Patrika' dated 16th September,
2007. According to the petitioners, applications were
made in compliance with the requirement of the aforesaid
advertisement on 30th October, 2007 for the L.P.G.
distributorship at Kaliachak, Dist. Malda against Serial
No.47 which has been described as O.P.(W) i.e. open for
women.
In the aforesaid advertisement the selection process
and criterion for assessment by awarding marks,
were also published. The detailed terms and conditions
have been communicated in a booklet/brochure, which
were sold by the respondent authorities upon payment of
Rs.50/-. The petitioners purchased the brochure from the office of the respondent no.4 since the writ petitioners fulfilled all required and/or essential requirements. The 3 respondent authorities after scrutiny of the application forms as well as the annexures have invited the writ petitioners to appear before the interview board. The interview board, at the time of taking interview, asked to produce all the original documents which were produced. Those documents were scrutinised and marks were awarded. On the basis of such awarding of marks the writ petitioners, Smt. Lina Ghosh and another obtained highest marks 82.78. Accordingly, their Firm's name was placed as 1st empanelled firm in the panel prepared by the respondent authorities.
It also appears that after the selection field enquiry was conducted by Sri B. Mohanta, Manager and Sri J.K. Roy, Deputy Manager of the respondent no.1 company on 28th and 29th July, 2009 at Kaliachak in respect of the lands in question for the petitioners' show-room and godown with the assistance of Amin entrusted by the applicant and Land and Land Reforms Officer of Kaliachak block and found the documents submitted by the petitioners are correct and authenticated.
Suddenly and surprisingly the petitioners, Lina Ghosh & anr. received the impugned letter bearing reference no.W.B/LPG/Kaliachak dated September 16, 4 2009 issued by the Deputy General Manager (LPG) being the respondent no.3 who informed the petitioners that their application for awarded L.P.G. distributorship at Kaliachak is not considered by the competent authority in issuance of letter of intent in absence of registered lease deed of show-room.
Mr. Surojit Mitra, learned Senior Counsel representing the writ petitioners in W.P. No.18078(W) of 2009 submitted that the grounds for rejection in the aforesaid impugned letter are all flimsy and the impugned letter was issued with a malafide intention which is not tenable in the eye of law.
It was submitted by him that there is no stipulation either in the aforesaid advertisement or in the brochure or in the instruction card regarding the lease deed which, according to the respondents, should be registered.
Mr. Mitra submitted that after finalization and completion of all formalities the respondent authorities cannot refuse to issue letter of intent and cancel the awarded of L.P.G. distributorship to the petitioners according to their own whim although the writ petitioners secured highest marks i.e. 82.78 out of 100 in the selection process and therefore, the impugned letter dated 5 16th Septembner, 2009 should be struck down.
Mr. Mitra further submitted that after receipt of the impugned letter the writ petitioners made representation to the respondent no.3 on 5th October, 2009 requesting them to reconsider their decision and also requested to issue letter of intent and not to cancel the awarded L.P.G. distributorship in favour of the petitioners. In the said letter it was sated that the petitioners have correctly shown in their application that the said show-room is under their possession for which they are the lessees and they have also enclosed rent receipt for the current month when they have applied for.
Mr. Mitra submits that the show-room was under his clients' possession since April, 2007 and on rental basis for 10 years followed by another 10 years on mutual basis and thereafter it was converted to lease for 20 years in September, 2007 prior to the date of application which was duly notarized.
It was submitted by Mr. Mitra that in the instant case prior to selection the respondent authorities have scrutinized and verified the application and all other documents of the petitioners and awarded marks on that basis, as per instruction under Serial no.14.1 of the 6 brochure of the respondents.
It was submitted that the high-handed action of the respondent authorities are all illegal, unfair and malafide and this was done for the interest of some other candidate who has got lesser marks.
Mr. Mitra further submitted that another representation on 5th October, 2009 was made before the respondent authorities for reconsidering the decision dated 16th September, 2009 but nothing was done in that regard.
It was submitted that the petitioners' constitutional right has been infringed. It was submitted by Mr. Mitra that as per clause 13(2) of the advertisement it appears that for running L.P.G. distributorship at the scheduled place construction of show-room could be made as per the standard lay out on the plot to which proper passage for egress and ingress of the common people should be there and the measurement of the show-room was given as 3 mtrs. X 4.5 mtrs.
Mr. Mitra also pointed out that as per Item 8.2 of the brochure the following requirements were indicated :-
"8.2 SHOWROOM 7 Showroom as per the standard layout can be made in a shop/land located in the area of operation (trading area) of the advertised location for LPG distributorship and should be easily accessible to general public through a suitable approach road.
Minimum dimension of the showroom: 3 m X 4.5 m." Mr. Mitra also referred clause 13 of the aforesaid brochure to indicate that at the time of interview the original documents are required to be produced and the eligible candidates will be informed by a selection committee comprising of three Oil Company Officials and a merit panel of three applicants will be made from the applicants who will appear in the interview.
Clause 13 of the aforesaid brochure reads as follow :-
"13 INTERVIEWS :
Applicants will be called for interview with the original documents and only eligible candidate will be interviewed by a Selection Committee comprising of 3 oil company officials. A merit panel of 3 applicants will be made from the applicants who will appear for the interview."
Mr. Mitra further drew my attention as regards the norms for evaluating the candidates as prescribed under clause 14. Clause 14 reads as follows :-
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"14. NORMS FOPR EVALUATING THE CANDIDATES:
The LPG distributor will be selected on the basis of evaluation of al eligible applicants on folowing parameters.
a. Capability to provide infrastructure 35 marks
b. Capability to provide finance 35 marks
c. Educational qualifications 15 marks
d. Age 4 marks
e. Experience 4 marks
f. Business ability/acumen 5 marks
g. Personality 2 marks
________________
Total marks 100 marks
The evaluation on the parameters a 100 above will be done on the basis of documents submitted with the application. The evaluation on the parameter f & g will be done based on the interview."
It was submitted by Mr. Mitra that nowhere in the said brochure nor in the advertisement there was any requirement for submission of a registered lease deed against the show-room.
Mr. Mitra drew my attention to annexure P6 being the impugned letter dated 16th September, 2009 wherein two allegations were made. Firstly it was observed that the show-room which was claimed to be owned by Smt. Lina Ghosh, one of the partners, is under tenancy agreement 9 for a period of 10 years. Subsequently Smt. Ghosh along with her letter dated 31st July, 2009 forwarded with annexed copy of lease deed of 20 years duration with the same show-room premises. Secondly in absence of registered lease deed, this show-room was shown as owned by Smt. Lina Ghosh which was stated in the application form.
Mr. Mitra submitted that his client never claimed the ownership of the aforesaid show-room. At the time of filing application his clients have annexed the rent receipt of the aforesaid show-room which was under lease and in that regard a notarized lease deed was there since April, 2007.
Mr. Mitra drew my attention to the application made by his clients and referred clause 13B(1) and submitted that under clause 13B(1) the petitioner answered the following query :-
"do you have a suitable land at or within 15 k.m.
from the advertised location for the L.P.G. godown or L.P.G. godown readily available owned/leased (15 years minimum) in your own name or in the name of any member of the family unit"10
Against this question two boxes are there in one box 'yes' and another box 'no' was written and instruction was to strike off what is not applicable. The petitioners put the tick mark on 'yes' and strike off 'no'. In that clause the petitioners also disclosed rent receipt upto September, 2007.
Mr. Mitra submitted that nowhere his clients have claimed that they are the owners of the plot. Therefore, the impugned allegation of ownership is incorrect and without any basis.
So far registered lease deed is concerned, Mr. Mitra submitted that under the aforesaid clause there was no such indication that the lease deed should be a registered one. The requirement of registered lease deed was not there in the advertisement, nor in the brochure not even in the application form. Therefore, under no circumstances there was any requirement for giving a registered lease deed for making such application.
Mr. Mitra further submitted had there been such requirement, the Authorities immediately after filing of the application and after scrutiny the application filed by the petitioners would have been rejected and they would not have been selected as eligible candidates for appearing 11 before the interview board.
It was submitted by Mr. Mitra that at least at three stages i.e. at the time of scrutiny of the application, at the time of taking interview and at the time of holding field inspection the authorities were satisfied about the unregistered lease deed and awarded marks on that basis and the writ petitioners secured highest marks as indicated hereinbefore and accordingly their names were placed on the top of the panel.
Mr. Mitra submitted that the action of the respondent authorities are all illegal, unfair and not tenable in the eye of law. Therefore, the impugned cancellation and/or rejection as was communicated in the impugned letter dated 10th September, 2009 should be quashed and/or set aside.
Learned Counsel appearing for the added respondent i.e. Ayesha Hossain submitted that she moved a writ application before this Hon'ble Court alleging that the respondent authorities while assessing her merit committed serious mistake and accordingly the learned Judge of this Court directed the respondent authorities to assess her marks afresh and on that basis her marks were reassessed and after such re-assessment the said 12 added respondent was awarded 81.5 marks and she was placed in the third place in the second panel prepared by the respondent authorities.
The other applicant Sm. Tania Parveen who was the second empanelled candidate in the first panel prepared by the respondent also filed another writ application bearing W.P. No.18498(W) of 2009 which was heard analogously with the writ application filed by the writ petitioners being W.P. 18078(W) of 2009.
Mr. Sahoo, learned Counsel appearing for Sm. Tania Paeveen being the second empanelled candidate of the first panel submits that his client was informed by impugned letter dated 15th October, 2009 that complaint lodged by his client was duly investigated at the respondent's end based on finding as per decision of the competent authority a fresh merit panel has been prepared and the detailed merit panel has been displayed in the office notice board. Upon receipt of such letter the writ petitioner Tania Parveen on enquiry came to know that her name has been removed from the second panel prepared by them.
Mr. Sahoo submits that the action of the respondent authorities are all illegal, unfair and there is no question 13 of re-assessment of marks as against her application because her assessment was duly made as per the norms and procedure as was disclosed in the advertisement as also in the brochure. Therefore, the action of the respondent authorities are all illegal.
Mr. Sahoo also submitted that the alleged action on the part of the respondent authorities are to accommodate someone. He further submitted that no reason or finding was disclosed in the letter, no communication was made, no hearing was given to his client. Therefore, the action as well as the conclusion and/or the decision as regards his client's application is illegal, arbitrary and malafide and this should be struck down.
Learned Counsel for the Indian Oil Corporation appears and submits that the action of the respondent authorities are lawful and valid and according to the learned Counsel there is requirement of registered lease deed which the writ petitioners did not have and therefore, the cancellation of distributorship as well as issuance of letter of intent is right and lawful.
He submitted by referring some clauses that ownership of the land is also necessary which the writ petitioners do not have and therefore, the cancellation 14 have justification. He also submitted that after making re-assessment it was found that the added respondent Ayesha Hossain has secured more marks and her status in the second panel is third.
So far Tania Parveen is concerned she has not qualified in the panel amongst the three candidates and accordingly, the second panel did not contain her name. According to him the actions of the respondent authorities are strictly in accordance with law and therefore this Court should not interfere with the decision taken by the respondent authorities. Learned Counsel for the Indian Oil Corporation submits that the brochure of 2007 is different and on that basis the assessment was made.
Heard the learned Counsel appearing for the three applicants and examined the documents produced by the parties before this Court and also considered the terms and conditions of the advertisement as well as the brochure published by the respondent as well as the method of marking as was disclosed in the brochure. After careful scrutiny of the aforesaid documents I find that the claim and contention of Sm. Lina Ghosh and another in writ petition no. W.P.18078(W) of 2009 have substance.
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It appears from the advertisement dated 16th September, 2007 that nowhere it was stated that for making an application for L.P.G. distributorship the ownership of the land is must. In the supplied application form by the respondent nowhere it appears that the ownership is also a requirement. Further it also did not appear in the application form prescribed by the respondent authorities that the lease deed is also required to be registered. I have already quoted clause 13B(1) hereinbefore wherefrom it appears that the alleged plea of ownership and also the plea of registered lease deed is nowhere prescribed and therefore, under no circumstances the petitioner was under any obligation to show ownership of the land or to produce a registered lease deed in support of her application and claim for getting the distributorship.
After consideration of the advertisement and the application form as well as the brochure I find that the writ petitioner Sm. Lina Ghosh and another having secured 82.78 marks being the first empanelled candidate is entitled to get the letter of intent as well as award of L.P.G. distributorship in their favour. The respondent authorities most illegally and arbitrarily in clear violation 16 of terms and condition, as they have disclosed in their advertisement as well as in their brochure, have cancelled the selection of the petitioners without any rhyme and reason.
It appears that the action on the part of the respondents are not bonafide and they have done this with a definite intention to accommodate some other candidate who is favoured to them and for this they have taken a wrong decision in that regard.
In my view on consideration of the entire matter the writ petition filed by Sm. Lina Ghosh and another bearing W.P. 18078(W) of 2009 should be allowed and a direction should be given upon the respondent authorities to issue letter of intent and award L.P.G. distributorship in their favour. Accordingly, I set aside the impugned order dated 16th September, 2009 issued by the respondent authorities and also direct the respondent authorities to award L.P.G. distributorship in favour of the petitioners in W.P. No.18078(W) of 2009 as well as to issue the letter of intent in their favour.
So far the case of the added respondent Ayesha Khatoon is concerned even if it is taken that she has 17 secured 81.50 marks she has not been able to secure the first position. Therefore, she is not entitled to get any benefit even after such re-assessment. Therefore, the contention of the added respondent is also rejected, since the same is of no merit.
So far the second writ petition moved by Tania Parveen is concerned the action of the respondent are all illegal and unfair. I do not find any justification for making re-assessment of her marks, specially when there is no dispute as regards marking of said Tania Parveen. The respondent authorities did not grant Tania Parveen any opportunity of hearing and everything was done behind her back violating the principle of natural justice. Therefore, the letter issued by the respondent authorities to Tania Parveen is struck down. Even in spite of quashing of the aforesaid letter issued to Tania Parveen, she could not get any benefit since the applicant Sm. Lina Ghosh and another have become the highest scorer and they are entitled to get the L.P.G. distributorship.
Therefore, the writ application filed by Tania Parveen is also disposed of without any positive direction in her favour.
The respondent authorities are directed to issue 18 letter of intent forthwith in favour of Lina Ghosh and another and to award L.P.G. distributorship also.
All the aforesaid two petitions are thus disposed of. There would be no order as to costs.
In view of disposal of the writ petitions the connected applications are not required to be considered.
Learned Counsel for the added respondent prayed for stay of the order passed by this court, I do not find any justification in staying the judgement and order. Therefore such prayer is refused.
Urgent photostat certified copy of this order, if applied for, be furnished to the appearing parties on priority basis.
(Ashoke Kumar Dasadhikari, J.) 19