Gujarat High Court
Jimi Hiral Modi vs Bharat Petroleum Corporation Limited on 1 April, 2021
Author: Sonia Gokani
Bench: Sonia Gokani, Gita Gopi
C/LPA/389/2021 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 389 of 2021
In R/SPECIAL CIVIL APPLICATION NO. 2018 of 2021
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2021
In R/LETTERS PATENT APPEAL NO. 389 of 2021
With
CIVIL APPLICATION (FOR JOINING PARTY) NO. 2 of 2021
In R/LETTERS PATENT APPEAL NO. 389 of 2021
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JIMI HIRAL MODI
Versus
BHARAT PETROLEUM CORPORATION LIMITED
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Appearance:
ARJUN R SHETH(7589) for the Appellant(s) No. 1
MR AJAY MEHTA, for the Respondent(s) No. 1,2
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CORAM: HONOURABLE MS. JUSTICE SONIA GOKANI
and
HONOURABLE MS. JUSTICE GITA GOPI
Date : 01/04/2021
ORAL ORDER
(PER : HONOURABLE MS. JUSTICE SONIA GOKANI)
1. This Letters Patent Appeal under Clause 15 of the Letters Patent is directed against the order dated 30.03.2021 passed by the learned Single Judge dismissing the Special Civil Application No. 2018 of 2021 filed by the appellant seeking redressal of violation of fundamental rights of the appellant guaranteed under Articles 14 and 19(1)(g) of the Constitution Page 1 of 13 Downloaded on : Thu Oct 07 01:23:17 IST 2021 C/LPA/389/2021 ORDER of India.
2. The appellant is engaged in the business of maintaining and operating petrol and gas pumps since last 20 years. The respondent No.1 was awarded the contract for service provider for company owned and company operated petrol pump of respondent No.1 at Shastrinagar, Ahmedabad. The respondent entered into service provider agreement on 29.12.2017 with the appellant for operating the said petrol pump for the duration of three years from 29.12.2017 to 28.12.2020. Thereafter, the respondent No.1 had published a notice in the newspaper namely Gujarat Samachar at Ahmedabad for engagement of service provider for its Company Owned and Company Operated petrol pumps including the petrol pump at Shastrinagar, Ahmedabad and Kanera at Kheda. 2.1 Pursuant to such advertisement, the appellant had filed an application on 17.10.2020 with Bharat Petroleum Corporation Limited - respondent No.1 herein for getting the contract as also for providing service of operating the petrol pump at Shastrinagar, Ahmedabad. It has been stated that the appellant had fulfilled all other requirements for being qualified for obtaining the said contract for providing service of Page 2 of 13 Downloaded on : Thu Oct 07 01:23:17 IST 2021 C/LPA/389/2021 ORDER operating the petrol pump at Shastrinagar, Ahmedabad. Thereafter, on 10.12.2020 the appellant was called for an interview by the respondent No.1 as per the process set out in the said brochure vide letter dated 10.12.2020. 2.2 That on 21.12.2020 upon some independent enquiry at the behest of the appellant, it was learnt by the appellant that person being Mr.Pragnesh Pravinbhai Patel, had also applied for providing service of operating another petrol pump of respondent No.1 at Kanera, Kheda District, and in the provisional mark sheet dated 21.12.2020 issued by the respondent No.1, such Pragnesh Pravin Patel had scored zero mark under the criteria `capability to provide suitable manpower'. That the respondent No.1 - BPCL chose to place reliance upon one letter dated 22.12.2020 purportedly issued by Pragnesh Patel to BPCL, in which Pragnesh Patel chooses to place reliance upon one purported letter from one M/s. Urja, for the purpose of substantiating his marks under the head capability to supply manpower.
2.3 It has been stated that the copy of such purported letter from M/s. Urja is not placed on record by BPCL and further the date of such purported letter from M/s. Urja is also not set out. Page 3 of 13 Downloaded on : Thu Oct 07 01:23:17 IST 2021 C/LPA/389/2021 ORDER It has also been stated that no details have been furnished as to how the respondent No.1 - BPCL had received such letter dated 22.12.2020 i.e. by speed post or hand delivery etc. It has also been pointed that the postal address of Pragnesh Patel is not set out in such letter and further the BPCL is a Central Government Organisation and therefore each letter that comes to be received by BPCL would have an inward stamp, setting out the date of such receipt letter and the signature of the person/officer receiving such letter and therefore, it is not believable that BPCL has come to receive such letter dated 22.12.2020 from Pragnesh Patel.
2.4 It has been further stated that pursuant to the interview, the respondent No.1 was pleased to issue provisional marksheet of applicants/candidates dated 29.12.2020 having posted the same at its office. That on perusal of such marksheet, it could be seen that the appellant had scored 96.76 marks and one Pragnesh Pravinbhai had scored 97.25 marks. It is also pertinent to note that under the category of `capability to provide suitable manpower', both the appellant and said Pragnesh Pravinbhai had scored 25 marks each and Mr.Pragnesh Pravin Patel had secured first rank and the appellant secured second rank, where the difference of marks Page 4 of 13 Downloaded on : Thu Oct 07 01:23:17 IST 2021 C/LPA/389/2021 ORDER between both of them is only 0.50. It was learnt by the appellant through an independent inquiry that Mr.Pragnesh Patel had secured zero marks under the criteria of capability to provide suitable manpower on 21.12.2020, in the marksheets placed by BPCL on its notice board for its petrol pump of Kanera at Kheda District.
2.5 It has been further submitted that the appellant was shocked when it was noticed by him that only in a span of 8 days i.e. from 21.12.2020 to 29.12.2020, the said Pragnesh Patel has managed to secure full marks under the criteria capability to supply manpower. The appellant had also filed a complaint and RTI application with BPCL and Ministry of Petroleum and Natural Gas between the duration 08.01.21 to 11.01.2021 seeking explanations and documents as to how it is and on what basis 25 marks has been given to Mr.Pragnesh Patel under the head capability to supply manpower. 2.6 That vide letter dated 09.01.2021 issued by the appellant to the Ministry of Petroleum and Natural Gas with a copy to BPCL, at para 4 and 5 of the said letter, it is particularly set out that it was learnt by the appellant that Pragnesh Patel in order to show his experience under the head of capability to supply Page 5 of 13 Downloaded on : Thu Oct 07 01:23:17 IST 2021 C/LPA/389/2021 ORDER suitable manpower, may have supplied the documents to BPCL in relation to one Urja Indane Gramin LPG Vitrak and it was learnt by the appellant that Urja Indane Gramin LPG Vitrak did not have any registration with the Employees' Provident Fund Organisation under the EPF and MP Act, 1952.
3. The grievance on the part of the appellant is that the four lined letter dated 22.12.2020 purportedly issued by Mr.Patel to BPCL gives no rational and furthermore, as per clause 19 of the BPCL guidelines, the complaint is required to be filed with DD of Rs.1000/- but no such details are set out in the complaint dated 22.12.2020 of Mr.Patel. Thus, according to the appellant, there is an act of arbitrariness on the part of the BPCL and also the act of collusion of fraudulently and illegally awarding the contract of Shastrinagar Petrol Pump to Pragnesh Patel by BPCL - respondent No.1 herein.
4. The another grievance on the part of the appellant is that on the aspect of joining Mr.Pragnesh Patel as party respondent in the present petition, it is already stated at the time of filing petition on oath that the appellant was not aware of the postal address of Mr.Pragnesh Patel and due to such reason, he has not been able to join him as party respondent which also is the Page 6 of 13 Downloaded on : Thu Oct 07 01:23:17 IST 2021 C/LPA/389/2021 ORDER factor for rejection of his petition. Therefore the appellant has requested this court to allow the appeal by quashing and setting aside the impugned order dated 30.03.2021 passed by the learned Single Judge in Special Civil Application No. 2018 of 2021 and also prayed for to continue the interim relief granted by this Court vide order dated 01.02.2021 in SCA No. 2018 of 2021.
5. It appears that the affidavit-in-reply has been filed by the respondent where the essential issue of change of marks from `0' to `25' marks has been explained and stated that it was common misconception that `zero marks' has been given but on investigation it was realised that the list for Kanera, Kheda District was revised and fresh merit list was prepared immediately and even on preparing the revised merit list of all the applicants of Kanera, Kheda District, there was no change in the merit panel and hence Mr.Pragnesh Patel was not short- listed but the fact remains that Mr.Pragnesh Patel got 25 marks so far as Kanera, Kheda District is concerned under the head of `capability to provide suitable manpower' and therefore, during interview for the petrol pump in the present matter in question, 25 marks were allotted to him. Thus, the contention raised by the appellant that when Mr.Pragnesh Page 7 of 13 Downloaded on : Thu Oct 07 01:23:17 IST 2021 C/LPA/389/2021 ORDER Patel got `0' marks on 21.12.2020 under the aforesaid head, it is not possible to secure 25 marks on 29.12.2020 under the very same head is misconceived. Therefore, there is no arbitrariness, as alleged, on the part of the respondent No.1.
6. The learned Single Judge, after examining the material on record and pleadings of the parties, has chosen not to entertain the petition essentially on the ground that the scope of judicial review is very limited in these type of matters. It is also noted by the learned Single Judge that the conduct of the petitioner is also required to be considered by this court while exercising the powers under Article 226 of the Constitution of India. It is also noted by the learned Single Judge that the conduct of the petitioner in not serving the notice to Mr.Pragnesh and after joining him as party respondent in the present proceedings speaks louder than his action.
7. Noticing the fact that the impugned order was delivered on 31st March, 2021, and being aggrieved by the same the appellant has preferred the present appeal, however, this appeal has been taken up for hearing only for limited purpose for deciding the interim relief which has been granted earlier and to continue till the outcome of the main petition and it was Page 8 of 13 Downloaded on : Thu Oct 07 01:23:17 IST 2021 C/LPA/389/2021 ORDER then denied by the learned Single Judge to continue the interim relief. It is required to be noted that the action on the part of the respondent-BPCL in awarding the contract to the third party namely Mr.Pragnesh Patel was to be executed and handing over the site of Shastrinagar petrol pump, Ahmedabad today 2:00 o'clock in the morning session, but it was conveyed to the learned advocate Mr. Ajay Mehta that he may convey the same to the responsible officer of the respondent-BPCL not to complete the task till this court decides this aspect of interim relief and accordingly the same has been communicated by learned advocate Mr. Ajay Mehta to the concerned officer of the respondent.
7.1 Learned counsel for the appellant has taken us through the pleadings and the material on record where also assisted by learned advocate Mr. Ajay Mehta, who appeared on our request even without issuance of notice in this matter for the limited purpose of deciding the issue of continuing the interim relief.
7.2 So far as the issue with regard to deciding the scope of writ jurisdiction under Article 226 of the Constitution of India in the present matter is concerned, the same will be decided at Page 9 of 13 Downloaded on : Thu Oct 07 01:23:17 IST 2021 C/LPA/389/2021 ORDER the future date, but, so far as the issue of asking for interim relief at this stage is concerned, we could notice the question of matter of contract for operating and maintaining the petrol pump of BPCL at Shastrinagar, District Ahmedabad and Kanera at Kheda District. We could also notice that the entire procedure has been followed by the respondent-BPCL which invited the application, and in response to the same, for offering the services and for maintaining the contract for service provider for company owned and company operated petrol pump of respondent No.1 at Shastrinagar, District Ahmedabad, the contract has been awarded to the third party namely to Mr.Pragnesh Patel. However, what is significant to note that the difference of marks between both of them is 0.50 marks. On an independent inquiry, it was learnt by the appellant that Mr.Pragnesh Patel had secured zero (o) marks under the criteria of `capability to provide suitable manpower' on 21.12.2020 in the marksheet placed by the BPCL on its notice board for its petrol pump of Kanera, District Kheda. Although the dispute is raised by the appellant, allegation of arbitrariness and collusion on the part of the respondent No.1 is baseless prima facie. As is evident from the record the difference of 0.5 marks is because the revised marksheet of Kanera was not regarded. The publication of revised Page 10 of 13 Downloaded on : Thu Oct 07 01:23:17 IST 2021 C/LPA/389/2021 ORDER marksheet is much before the interview had taken place. Thus, non-providing of the marks earlier to Mr.Pragnesh Patel by the authority which he was otherwise entitled to, was only on the ground of misconception and it has been categorically explained in the affidavit-in-reply filed by the respondent. 7.3 For the purpose of considering the request of interim relief, this Court does not find any questionable conduct on the part of the respondent to interfere with the order of the learned Single Judge in not acceding to the request of continuing the interim relief. There appears to be a clear following of rules and procedures in inviting applications for the bid. On allowing parties to submit various documents, they were duly regarded, and once the parameters set out were fulfilled, after conducting interview and preparing marksheet, contract is awarded. Nothing seems fishy in awarding 25 marks for the heading of "capability to provide suitable manpower" as prior to the interview in this case, revised list of Kanera (Kheda) was published and if that aspect was missed out initially by authority, the party which is otherwise eligible and which participated and qualified legally, cannot suffer. What is vital is the date and timing of declaring revised marksheet of Kanera (Kheda) of which the appellant was Page 11 of 13 Downloaded on : Thu Oct 07 01:23:17 IST 2021 C/LPA/389/2021 ORDER unaware and the opponent company was inadvertent. In absence of any material indicating in the slighter manner proof of arbitrariness or nepotism or favouritism, the change in marks would need no suspicion nor any indulgence at this juncture.
So far as the conduct on the part of the appellant in not effecting the service to the affected party is concerned, there are various explanations tendered and offered by the appellant which we chose not to enter into at this stage. However, both the sides if choose to place anything on record, over and above the material which has been already adduced before the learned Single Judge, the same shall be done within a period of three weeks and the matter can be taken up for final hearing after three weeks. The request for interim relief deserves no entertainment.
8. In view of the aforesaid discussions, request of interim relief merits no acceptance.
9. Civil Application No.1 of 2021 in Letters Patent Appeal No. 389 of 2021 filed for stay, is rejected.
Page 12 of 13 Downloaded on : Thu Oct 07 01:23:17 IST 2021 C/LPA/389/2021 ORDER
10. In Civil Application No. 2 of 2021 in Letters Patent Appeal No. 389 of 2021 filed for joining party, Issue notice returnable on 03rd May, 2021.
(SONIA GOKANI, J) (GITA GOPI,J) A.M.A. SAIYED Page 13 of 13 Downloaded on : Thu Oct 07 01:23:17 IST 2021