Patna High Court
Kaushal Kishore And Etc. vs Union Of India (Uoi) And Ors. on 13 March, 2000
Equivalent citations: AIR2000PAT229, AIR 2000 PATNA 229, (2000) 2 PAT LJR 475
Author: S.K. Katriar
Bench: S.K. Katriar
ORDER S.K. Katriar, J.
1. Both the writ petitions are directed against the same selection process whereby Navin Kumar (respondent No. 7 in both the writ petitions), has been appointed for retail outlet dealership of the Bharat Petroleum Corporation Ltd. (hereinafter referred to as 'the Corporation') (respondent No. 6) for village Hulasganj, district Jehanabad. The common feature in both the writ petitions is that Navin Kumar (respondent No. 7 in both the writ petitions), has been appointed to the exclusion of the petitioners of both the writ petitions. Hence the two writ petitions.
2. The entire facts in this judgment would be taken from the pleadings in C.W.J.C. No. 6819 of 1999, except paragraph 9 hereinbelow which alone deals with C.W.J.C. No. 2927 of 1999.
3. The Corporation had issued an advertisement which had appeared in the local dailies on 14-6-1998 (Annexure-1), inviting applications for appointment of retail outlet dealers for eight places in Bihar Including the place in question, namely, Hulasganj, in the district of Jehanabad. The condition of advertisement which has given rise to these writ petitions are set out hereinbelow for the facility of quick reference :
^^¼M½ ifjokj ¼ifjokj dh ifjHkk"kk vkosnu i= esa nh xbZ gS½ dh vk; finys foÙkh; o"kZ 1997&98 esa nks yk[k ls vf/kd ugha gksuh pkfg,** 3.1. The petitioners, respondent No. 7, and others submitted their applications. The entire selection process was conducted by the Dealers Selection Board (respondent No. 2) thereinafter referred to as 'the Board'). The interview took place on 5-2-1999 and it had recommended the names of three persons to the Corporation which included the petitioners, respondent No. 7 and a third person who has not been impleaded as a party respondent. I am Informed by the learned counsel for the Board as well as the Corporation that the Board publishes a list of three persons typed in alphabetical order, copies of which are pasted on the notice board and sent to the Corporation, whereafter the Corporation causes field investigation of all the three persons, After the field inspection is over, the Board discloses to the Corporation the order in which three persons have figured in its panel in order of merit. Thereafter the Corporation Issues the letter of intent to the first candidate who figures in order of merit in the panel. In the present case, respondent No. 7 had figured at serial No. 1 in order of merit in the panel and, therefore, the Corporation had issued the letter of Intent dated 20-6-1999 (Annex-ure-7/A to the counter affidavit of respondent No. 7), whereby he was asked to arrange a suitable piece of land of requisite measurement on lease to the Corporation for a period of 30 years on which, after the Corporation's approval, structures as per the Corporation's design and specification have to be constructed and certain other requirements mentioned in detail therein have to be fulfilled. Soon after the letter of intent was issued, the petitioner submitted an undated representation (Annexure'-4), to the Board as well as the Corporation alleging therein with reasonable detail that the income of respondent No. 7 during the financial year 1997-98 had exceeded two lakhs. The Board examined the petitioner's representation (Annexure-41, and rejected the same by the Impugned order dated 5-7-1999 (Annexure 5). Hence the writ petition.
4. While assailing the validity of the impugned order, learned counsel for the petitioner submitted that it is manifest from the statements made in the representation marked Annexure-4, and the pleadings of the parties, that the income of respondent No. 7 exceeded two lakhs during the financial year 1997-98. He invited my attention to paragraphs 11 to 16 of the writ petition giving details of the assets owned by the petitioner. Respondent No. 7 has countered the allegations in paragraphs 18 to31 of the counter affidavit. The following position emerges on a Joint reading of the assets of respondent No. 7.
According to the petitioner, owned by Respondent No. 7 The correct position according to Respdt. No. 7
i) BR-25A 0057 G
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Truck Owned by respondent No. 7, but purchased on loan
ii) Br-ID 5857
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Truck Not owned by respondent No. 7 iii) BR-1B 8957 -- Truck Sold by respondent No. 7 during 1994-95 iv) HR-38A-1957 -- Truck Owned bybrother of respondent No, 7 v) BR-lG-5857 -- Truck Not owned by respondent No. 7 vi) BR-25G-0057 -- Truck Not owned by respondent No. 7 vii) BR-25G-9657 -- Truck Not owned by respondent No. 7 viii) BR-lG-8957 -- Truck Not owned by respondent No. 7 ix) HR-38-8957 -- Oil Tanker (Truck) Sold by respondent No. 7 on 4-1-98 to set up the petrol station in question x) HR-38-0461 -- Oil Tanker
Not owned by respondent No. 7 The correct position is that respondent No. 7 owns a second hand oil tanker bearing Regd, No. 38C-4582 purchased in 1999.
xi) BR-25A-0957
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Truck Owned by brother of respondent No. 7
xii) BR- 1E-0957
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Ambassador Respondent No. 7 sold on 5-12-96 to purchase Tata Sumo
xiii) BR-25A-0057
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Tata Sumo Owned by respondent No. 7, as stated above.
xiv) HR-38A-4557
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Truck Owned by respondent No. 7 4.1 Learned counsel for the petitioner has invited my attention to paragraph 17 of the writ petition which states that the son of respondent No. 7 is studying in a wellknown public school at Dehradoon where the annual school fee is Rs. 60,000/-. Respondent No. 7 has countered the same in his counter affidavit by stating that the boy's maternal uncle, who is posted as a Doctor in Uttar Pradesh, is meeting the entire expenses of his eduction at Dehradoon.
4.2 Learned counsel for the petitioner has also submitted that the impugned order dated 5-7-1999 (Annexure-5), suffers from non application of the mind and is also unsupported by reasons. He relies on the judgment of the Supreme Court reported in AIR 1979 SC 429 (Government Branch Press v. D. B. Bellalappa).
4.3. Learned founsel for the petitioner also relies on the judgment reported in AIR 1996 Him. Pra. 79 (Ravinder Kumarv. Union of India) which in his submission lays down to the effect that if a candidate withholds material information, then the selection in his favour should be cancelled.
5. Learned counsel for respondent No. 7 submits that he has furnished correct informations in his application which is the position reflected in the order of assessment of Income tax. A copy of the certificate dated 31-3-1999 issued by the Income Tax Officer, Gaya, is marked Annexure-7/D to the counter affidavit of respondent No. 7. Therefore, in the submission of the learned counsel for respondent No. 7, there is no question of suppression of material facts.
6. Having considered the rival submissions, I am of the view that the impugned order does suffer from non application of the mind and is unsupported by reasons, in that view of the matter, learned counsel for the petitioner is right in his submission that it is covered by the discussion in paragraph 24 of the Judgment in Government Branch Press v. D.B. Belliappa's case (AIR 1979 SC 429) (supra), paragraph 24 of which is set out hereinbelow for the facility of quick reference :
"24. Conversely, if the services of a temporary Government servant are terminated, arbitrarily, and not on the ground of his unsuitability, unsatisfactory conduct or the like which would put him in a class apart from his juniors in the same service, a question of unfair discrimination may arise, notwithstanding the fact that in terminating his service, the appointing authority was purporting to act in accordance with the terms of the employment. Where a charge of unfair discrimination is levelled with specificity, or improper motives are imputed to the authority making the impugned order of termination of the service, it is the duty of the authority to dispel that charge by disclosing to the Court the reason or motive which impelled it to take the impugned action. Excepting, perhaps, in cases analogous to those covered by Article 311 (2), Proviso (c), the authority cannot withhold such Information from the Court on the lame excuse, that the Impugned order is purely administrative and not judicial, having been passed in exercise of its administrative discretion under the rules governing the conditions of the service. "The giving of reasons", as Lord Denning put it in Breen v. Amalgamated Engineering Union, (1971)1 All. ER 1148 "is one of the fundamentals of good administration" and, to recall the words of this Court in Khudi Ram v. State of West Bengali 1975)2 SCR 832 at p. 845 : AIR, 1975 SC 550 at p. 558 in a Government of laws "there is nothing like unfettered discretion immune from judicial reviewability". The executive, no less than the judiciary, is under a general duty to act fairly. Indeed, fairness founded on reason is the essence of the guarantee epitomised in Articles 14 and 16(1)."
It appears from the pleadings of the parties that the petitioner had presented before the Board, the Corporation as well as before this Court an exaggerated picture of the assets of the petitioner as is manifest from the chart indicated hereinabove. After the petitioner had submitted its representation (Annexure-4) before the Board and the Corporation, it was their duty to examine the matter seriously in the light of the relevant condition in the advertisement and pass a reasoned order. Therefore, the Impugned order does suffer from the infirmity of non-application of the mind and unsupported by reasons.
7. But then the question which still survives for consideration is as to its effect on the totality of circumstances of the case at the present stage. Learned counsel for respondent No. 7 is right in his submission that the position at the present stage has become Irreversible. After the letter of intent was issued to him, he has taken all steps required therein to set up petrol station and he has made heavy Investments. He submits that he has already arranged on lease in the name of the Corporation a plot of land covering more than 20 Kathas where earth filling was needed, the building has been constructed, a pucca boundary wall has been constructed round the plot, petrol pump has been installed which will soon become functional. He has also placed before this Court certain photographs to establish that position. He has rightly relied on the judgment passed by me in Smt. Phuljhari Devi v. Union of India, reported in 2000 (1) Pat LJR 973, paragraph 8 of which is relevant in the present context, and is set out hereinbelow for the facility of quick reference.:
"8. Learned counsel for respondent No. 4 has next submitted that the dealership has become functional with effect from 31- 3-1997, and he has already made heavy investments, He further submits that he should not be made to suffer for various reasons. He ranked higher than the petitioner before as well as after the interpolation. Secondly the blame for interpolations would go to both the petitioner and respondent No. 4. Learned counsel for the petitioner has not countered the submission at all. In any case, this Court agrees with the contention of the learned counsel for respondent No. 4, that they have made investments, the dealership has become functional since 31-3-1997, and also in view of my finding hereinabove that respondent No. 4 ranked higher in the select list before as well as after the interpolation."
7.1. He has rightly relied on the well known judgment of the Supreme Court reported in (1979)3 SCC 489 : (AIR 1979 SC 1628) (R.D. Shetty v. International Airport Authority) where the Supreme Court was unable to grant any relief to the petitioner for similar reasons. The relevant portion of paragraph 35 of the report is relevant in the present context and is set out hereinbelow for the facility of quick reference :
"35. Now, on this view we should have ordinarily set aside the decision of respondent 1 accepting the tender of respondent 4 and the contract resulting from such acceptance but in view of the peculiar facts and circumstances of the present case, we do not think it would be a sound exercise of discretion on our part to upset that decision and void the contract. .....Moreover, the writ petition was filed by the appellant more than five months after the acceptance of the tender of respondent 4 and during this period, respondent 4 incurred considerable expenditure aggregating to about Rs. 1,25,000/- in making arrangements for putting up the restaurant and the snack bars and in fact set up the snack bars and started running the same. It would now be most inequitous to set aside the contracts of respondent 4 at the instance of the appellant. The position would have been different if the appellant had filed the writ petition immediately after the acceptance of the tender of respondent 4 but the appellant allowed a period of over five months to elapse during which respondent 4 altered their position. We are, therefore, of the view that this is not a fit case in which we should Interfere and grant relief to the appellant in the exercise of our discretion under Article 226 of the Constitution".
7.2 I am equally reminded of the judgment of Queen's Bench Division in England, reported in (1986) 1 All ER 164 (R. v. Secretary of State for Social Services). The facts of the case were that the Secretary of State for Social Services was empowered by Section 28(1) of the Social Security and Housing Benefits Act 1982 to make regulations setting up a housing benefits scheme under which eligible persons were entitled to receive certain benefits. Under Section 36(1) of the 1982 Act the Secretary of State was required to consult with organisation appearing to him to be representative of the authorities concerned, before making regulations under that Act. The applicant organisation, an association of local authorities, was an organisation which was entitled to expect to be consulted by the Secretary of State under Section 36(1). In 1982, the Secretary of State promulgated the Housing Benefits Regulations 1982, setting up the housing benefits scheme. On 16 November 1984 the department wrote to organisations, including the applicant, whom the Secretary of State thought ought to be consulted pursuant to Section 36(1), requesting their views on the proposed amendment of Reg 23 by 30 November. The applicant wrote to the department on 22 November complaining that it had been given insufficient time to reply by that date and seeking more time. On 7 December, the applicant wrote to the department expressing objections to the proposed amendment. In the meantime, the department had decided to make further amendments to Reg 23 and also to amend Reg II. On 4 December the department wrote to the applicant advising that it was proposed to amend Reg 23 further and giving an indication of the purpose of the amendment, but the actual amendment was not enclosed and no mention was made of the proposal to amend reg II. The applicant was asked for its views by 12 December. On 13 December the applicant made various comments on the further amendment to reg 23 but stated that of necessity its comments were hasty and ill considered because of the short time it had been given. The applicant sought judicial review of the Secretary of State's actions and the regulations, by way of an order of certiorari to quash the Secretary of State's decisions to require consultations to take place by the specified dates and to make the 1984 regulations and declarations (i) that the Secretary of State had failed to comply with his duty under Section 36(I) to consult the applicants and (ii) that the regulations were null and void and/or ultra vires. The Secretary of State contended (i) that the obligation to consult contained in Section 36(I) was directory and not mandatory, (ii) that he had in fact carried out sufficient consultation with the applicant and (iii) that he, rather than the Court, was the judge of how much consultation was necessary and how long was to be given.
7.3. It was held by the Queen's Bench Division that in the context of Section 36 (I) of the 1982 Act and the making of the 1984 Act and the making of the 1984 regulations, the question whether the Secretary of State had engaged in sufficient consultation with the applicant was to be determined by looking at the facts as they appeared to the Secretary of State, since the form or substance of the regulations and the time to be allowed for consultation could well depend on matters of a political nature, of which the best judge was the Secretary of State rather than the Court. Accordingly, the urgency of the need for amending regulations was, from the point of view of Secretary of State, such that the department was entitled to require that the applicant and other interested organisations should respond quickly to the invitation to comment but they were not such as to absolve the department from the obligation to consult at all or to require the applicant and others to express their views within such a short period that those views would or might be insufficiently informed or considered to be helpful. On the facts, it was held that the Secretary of State had failed to fulfil his obligation to carry out sufficient consultation before making the 1984 regulations and a declaration was granted to that effect. However, as a matter of discretion, the regulations were not quashed, because they were already in force and were being administered by local authorities.
8. I am, therefore, convinced that in the peculiar facts and circumstances of the present case it would not be a sound exercise of discretion to allow this writ petition, even though I have held hereinabove that the impugned order suffers from the infirmity of non-application of the mind and being unsupported by reasons. The interview had taken place way back on 5-2-1999, and the petitioner had submitted his representation quite a few months thereafter. Furthermore, as has been found hereinabove, respondent No. 7 has by now made heavy Investments. The entire project is complete and is about to become operational. In that view of the matter, in exercise of the powers conferred on this Court in the prerogative writ Jurisdiction under Article 226 of the Constitution of India, I refuse to exercise my discretion in favour of the petitioner. The delay has mainly been caused by the petitioner. In that view of the matter. C.W.J.C. No. 6819 of 1999 is hereby dismissed.
9. Before I pass on to the next writ petition, I would like to note the objection raised by the learned counsel for the Board that C.W.J.C. No. 6819 of 1999 is not maintainable because the third person in the panel has not been impleaded as a party respondent. He was a necessary party, inter alia, for the reason that the petitioner has also prayed for setting aside the appointment of respondent No. 7, and for a further direction that petitioner should be appointed as a retail outlet dealer for Hulasganj. At this stage, learned counsel for the petitioner submits that he confines his writ petition to the prayer that the appointment of respondent No. 7 may be set aside, and he gives up his prayer for the relief that the petitioner may be appointed in his place. In that view of the matter, I am of the view that it was not essential to implead the third person in the panel as a party respondent. Furthermore, he has been impleaded as a party respondent in the analogous C.W.J.C. No. 2927 of 1999, wherein the same selection process has been challenged and is discussed herebelow.
10. In so far as C.W.J.C. No. 2927 of 1999 is concerned the same has been preferred by an applicant in response to the same advertisement but his appointment was rejected at the inception and naturally, therefore, he was not Included in the panel of three persons. In that view of the matter, I am convinced that this C.W.J.C. No. 2927 of 1999 is not maintainable at the Instance of such a person, and is accordingly dismissed.
11. In the result, both the writ petitions are dismissed.