Karnataka High Court
Ms Sunita Girish vs Government Of India on 16 July, 2019
Author: B.Veerappa
Bench: B.Veerappa
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16th DAY OF JULY, 2019
BEFORE
THE HON'BLE MR. JUSTICE B.VEERAPPA
WRIT PETITION NO.12238 OF 2014 (GM-RES)
BETWEEN:
MS. SUNITA GIRISH
W/O S.K. GIRISH,
SRI GURU GADDIGESWARA NILAYA,
NEAR RAM TEMPLE
K R PURAM EXTENSION
SHIMOGA - 577 201.
... PETITIONER
(BY MS. ANU BHANDARY, ADVOCATE FOR
SRI. HARIKRISHNA S. HOLLA , ADVOCATE)
AND:
1. GOVERNMENT OF INDIA,
MINISTRY OF PETROLEUM AND
NATURAL GAS,
SHAHSTRI BHAVAN,
NEW DELHI - 110 001.
REPRESENTED BY ITS SECRETARY.
2. THE INDIAN OIL CORPORATION LTD
BEING THE STATE LEVEL-
CO-ORDINATOR FOR PSU
OIL INDUSTRY,
INDIAN OIL BHAVAN,
P KALINGA RAO ROAD,
BANGALORE - 560 027.
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3. SMT. ASHA AROOD,
W/O PUTTA AROOD E S,
AGED ABOUT 51 YEARS
NO.43, ASHRAYA 4TH CROSS
I BLOCK, III STAGE,
BANASHANKARI
BANGALORE - 560 085.
4. SMT. SHYLA VASUDEV
W/O VASUDEV D S
AGED ABOUT 54 YEARS
NO.463, KUVEMPU ROAD
TILAK NAGAR,
NEAR SHIVAMURTHY CIRCLE
SHIVAMOGGA - 577 201.
5. THE COMMISSIONER
SHIMOGGA URBAN
DEVELOPMENT AUTHORITY
SHIMOGA - 577 204.
5. THE PANCHAYATH DEVELOPMENT OFFICER,
PURADAL GRAM PANCHAYAT,
SHIMOGGA DISTRICT - 577 202.
... RESPONDENTS
(BY SRI. DHANANJAY JOSHI, ADVOCATE FOR
SRI. PRASHANTH KUMAR, ADVOCATE FOR R-2;
SRI. M. SHIVAPRAKASH, ADVOCATE FOR R-3
SRI. Y.D.HARSHA, AGA FOR R-5,
R-4 & 6 SERVED BUT UNREPRESENTED;
R1 DELETED VIDE ORDER DATED 14.08.2014)
---
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 &
227 OF THE CONSTITUTION OF INDIA, PRAYING TO DECLARE
THAT THE APPOINTMENT OF RESPONDENT NO.3, AS
DISTRIBUTOR OF LPG FOR SHIMOGA TOWN IN PURSUANCE OF
REVISION OF MERIT PANEL VIDE LETTER DATED 13.05.2013,
VIDE ANNEXURE - E AS NULL & VOID AND ETC.
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THIS WRIT PETITION COMING ON FOR ORDERS ALONG
WITH I.A.1/2019 THIS DAY, THE COURT MADE THE
FOLLOWING:-
ORDER
Accepting the cause shown in the application filed by the petitioner and in order to decide the case on merits since the case is of the year 2014, I.A.1/2019 is allowed and order dated 15.04.2019 is recalled.
2. With consent of learned counsel appearing on both sides, matter is heard for final disposal.
3. The petitioner who failed to succeed in obtaining dealership for LPG (Liquid Petroleum Gas) distribution to Shivamogga Town in pursuance of the Notification issued by the 2nd respondent is before this Court for a declaration to declare that the appointment of 3rd respondent as distributor of LPG for Shivamogga Town in terms of revised merit list issued vide Annexure-E dated 13.05.2013 is null and void and further declare that 4 petitioner is eligible for being duly appointed as distributor for LPG having scored 87.40 marks in the empanelled list dated 03.07.2009 and that the 3rd respondent is not eligible for being appointed as distributor for LPG having scored 62.92 marks in the empanelled list dated 03.07.2009 as per Annexure-C.
4. It is the case of the petitioner that in pursuance of the Notification issued by the 2nd respondent inviting applications for selection and appointment of LPG distributors for Shivamogga Town, petitioner filed application. Accepting the application filed by the petitioner, 2nd respondent, by letter dated 09.06.2009, called for interview on 03.07.2009, petitioner having attended interview was declared successful and accordingly her name empanelled in the list at Serial No.34 in the order of merit, as per Annexure-C. Though the names of respondent Nos.3 and 4 find a place at Sl. Nos.8 and 9, their case was never considered as the marks obtained by them was below the marks obtained by the 5 petitioner and other short-listed candidates. It is the specific case of the petitioner that petitioner has obtained 87.40 marks and respondent No.3 has obtained only 62.92 marks. Petitioner was eagerly waiting for her appointment as distributor of LPG for Shivamogga Town as the two candidates above her were disqualified and not eligible for distributorship.
5. It is further case of the petitioner that on the complaint dated 10.11.2009 alleged to have been made by 3rd respondent, stating that proper rankings are not given, 2nd respondent without giving any notice to petitioner modified the empanelled list by including respondent Nos.3 and 4 above the petitioner by the communication issued as per Annexure-E dated 13.05.2013. Petitioner made enquiry with the respondent and ultimately came to know that without any proper verification, in a high-handed manner, 2nd respondent included the names of 3rd respondent Smt.Asha Arood and 4th respondent Smt.Shyla Vasudev placing them above the petitioner in the 6 empanelled list. It is further case of the petitioner that 2nd respondent has committed a grave error in revising marks given to respondent Nos.3 and 4 on extraneous considerations even though the respondents are under obligation to take into account only the marks given during the interview. Since the respondents have revised the empanelled list by placing respondent Nos.3 and 4 above the petitioner on the basis of marks illegally given subsequently, the petitioner's marks which otherwise stood at No.1 has been relegated to No.3. Therefore the petitioner is before this Court for the reliefs as prayed for.
6. The 2nd respondent filed objections to the main petition and contended that in response to the invitation made by 2nd respondent, petitioner made application and as per the merit list displayed, petitioner's name was at Sl. No.34 after Smt. H.M. Sandhya Aras whose name was at Sl.No.28. It is contended that, the 3rd respondent herein who was one of the short-listed candidates being aggrieved by her non-selection, filed complaint before the 7 2nd respondent alleging that the marks allotted to her by L- 1 Committee was incorrect. The 2nd respondent appointed an Investigation Officer for investigating the complaint in respect of allotment of marks by L-1 Committee (Level-1, 3 member Committee nominated by the Oil Company State head for the scrutiny and evaluation of the applications received, based on the information furnished by the applicant in the application. The marks awarded are kept in a sealed cover and opened after the Distributor Selection Committee (another 3 member Committee) awards the interview marks. The marks awarded by both the Committees are then added to get the final marks obtained by the candidate, based on which the merit list is prepared). After investigation, it was found that there was some error in the evaluation done by the L-1 Committee. It is further stated that hence, re-evaluation of all the applications received was carried out and a fresh merit list was prepared. During re-evaluation, the Screening Committee prepared the revised final marks list of all eligible candidates.
87. As per the new list, respondent Nos. 3 and 4 were listed at Sl. Nos. 1 and 2 and petitioner was listed at Sl. No.3. 3rd respondent Smt.Asha Arood scored 89.32 marks and 4th respondent Smt.Shyla Vasudev scored 88 marks, whereas the petitioner Smt.Sunita Girish scored 87.50 marks. 2nd respondent issued Letter of Intent appointing 3rd respondent as LPG distributor to Shivamogga Town. It is further stated in the statement of objections filed by 2nd respondent as to how the 3rd respondent got 89.32 marks, at para 10. At para 11 it is specifically stated that after the selection of the candidate, field verification of Credentials (FVC) of selected candidate will be undertaken by respondent No.2 to verify whether the selected candidate is conforming to the eligibility conditions as given in application and the brochure and in this case, after FVC, Letter of Intent was issued to 3rd respondent appointing her as LPG Distributor.
8. It is further stated in the objections filed by 2nd respondent that there are laid down policies of the 2nd 9 respondent for handling complaints of different nature. On the complaint made by 3rd respondent with regard to award of marks, laid down policies and principles of natural justice were followed by 2nd respondent in dealing with the complaint and the said process is totally transparent. The scrutiny of applications by L-1 Committee was an internal process and the outcome would be known only after completion of process. Hence, said re-evaluation was not communicated to applicants. Investigation was limited to ascertaining whether there was any error in awarding marks to 3rd respondent herein and therefore sought to dismiss the writ petition.
9. The 3rd respondent filed objections on her behalf denying the averments made in the writ petition and contended that the petitioner has not come to Court with clean hands and has suppressed material facts of the case. As per the Brochure issued by the 2nd respondent on 01.07.2007 with regard to selection process for H.P. Gas distributors, a specific condition at Clause 4.4. is laid 10 stating that a family unit cannot have multiple distributorships. The distributorship is restricted to any one member of the family. Petitioner's husband Sri S.K. Girish is already a holder of LPG distributorship and in view of this fact, husband being a dealer for HP Gas at Shivamogga, another family member is disentitled to apply or hold any further dealership in view of the bar imposed in the Brochure. It is further contended that the 3rd respondent, as on the date when Notification inviting applications was issued, was holding 17 guntas of land in Sy. No.43/1 situated at Tyavarekoppa Village, Kasaba Hobli, Shivamogga District and she was fully qualified. Therefore the contention of the petitioner that 3rd respondent had no godown / land when she applied is totally without any basis and hence, sought to dismiss the writ petition.
10. I have heard learned counsel appearing for the parties to the lis.
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11. Ms. Anu Bharadwaj, learned counsel for the petitioner, firstly, contended with vehemence that the marks obtained by the petitioner is 87.40 and she was placed at Sl. No.34 in the empanelled list at Annexure-C dated 03.07.2009 whereas 3rd respondent had obtained only 62.92 marks and therefore the dealership granted to 3rd respondent cannot be sustained. Secondly, Annexure-E the impugned order passed by 2nd respondent appointing 3rd respondent as distributor for LPG to Shivamogga Town is on the basis of revised marks given without notice to the petitioner and hence, cannot be sustained. Thirdly she contended that the 3rd respondent was not holding godown or land as on the date of field verification and therefore appointment of 3rd respondent is contrary to the conditions of the brochure of distributorship issued by the 2nd respondent. Fourthly, 2nd respondent has not conducted the selection process in a transparent manner and further the land shown in the application of the 3rd respondent was 12 not existing as on the date of field verification and therefore she sought to allow the writ petition.
12. Sri Dhananjay Joshi, learned counsel appearing on behalf of Sri Prashanth Kumar, learned counsel on record for 2nd respondent, reiterating the averments made in the objections filed by 2nd respondent, contended that what is challenged in the impugned order Annexure-E is only a communication sent to the petitioner indicating the revised merit list. A detailed speaking order came to be passed on 19.04.2013 as to how 3rd respondent has become eligible and how she got 89.32 marks. Admittedly the said speaking order is not challenged by the petitioner. Therefore the writ petition is liable to be rejected. He would further contend that so far as the contention of the petitioner with regard to non issuance of notice to her before revising the merit list is concerned, the 2nd respondent pursuant to the complaint filed by the 3rd respondent, appointed an Investigating Officer for investigating the case of the 3rd respondent with respect to 13 allotment of marks by L-1 Committee. Awarding of marks by the two Committees and assessing eligibility of candidates is an internal process of the 2nd respondent - Authority. Based on the report of the Investigating Officer, the marks awarded by L-1 Committee was revised and the final list arrived at by adding the revised L-1 Committee marks and the marks awarded by the Distributor Selection Committee, after following due procedure was made known to the petitioner. He would further contend that the 2nd respondent has conducted the proceedings in a transparent manner in accordance with the guidelines and conditions for selection process laid down in terms of the brochure issued by Hindustan petroleum Corporation Ltd. He would further contend that as on the date of field verification, the 3rd respondent has satisfied the conditions of said brochure and the Notification inviting applications. On these grounds, learned counsel sought to dismiss the writ petition.
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13. Sri M. Shivaprakash, learned counsel appearing for the 3rd respondent - Smt. Asha Arood to whom the 2nd respondent has already granted distributorship would state that the Smt. Asha Arood has started LPG distribution on 22.06.2019 and writ petition has to be dismissed as the petitioner has suppressed material facts of the case. As per Annexure-R4 produced along with the statement of objections filed by respondent No.3, it is clear that husband of the petitioner Sri S.K. Girish is already a dealer for HP distribution at Shivamogga and on that ground alone the writ petition is liable to be dismissed. He invited the attention of the Court to condition No.4.4. with regard to eligibility criteria for applicants - Multiple Distributorship Norm (Relationship Clause) and contended that in a family unit, only one member is eligible to hold the dealership / distributorship and the petitioner has suppressed material facts. He would further contend that the 3rd respondent has fulfilled all the conditions. On the complaint made by 3rd respondent, to 15 rectify the error in awarding marks, the revised merit list was issued and thereafter 3rd respondent was granted distributorship and hence, interference by this Court under Article 226 of the Constitution of India is unwarranted.
14. Having heard learned counsel for the parties, it is undisputed fact that the 2nd respondent invited applications for distributorship of LPG at Shivamogga under open category. In response to the said Notification, petitioner, 3rd respondent and others filed applications. The 2nd respondent after considering the entire material on record short-listed the names of selected candidates in the order of merit on 03.07.2009. In the said empanelled list as per Annexure-C produced by the petitioner, name of the 3rd respondent herein - Smt. Asha Arood is shown at Sl. No.8 and the total marks obtained by her is 62.92. Whereas in the said list, under the "godown" column, no marks were assigned to 3rd respondent and petitioner's name is shown at Sl. No.34 and the marks obtained by her is 87.40 and petitioner has been awarded 25 marks under 16 the "godown" column. It is also not in dispute that the 3rd respondent being aggrieved by her non-selection as Distributor of LPG was compelled to approach this Court in W.P. No.32033/2009 on the ground that proper marks were not assigned to her and selection process was not in accordance with the norms prescribed in the Notification issued by the 2nd respondent.
15. This Court, by the Order dated 04.11.2009, held that the writ petition cannot be entertained on the ground that the petitioner has alternate efficacious remedy for redressal of her grievance, and disposed off the same reserving liberty to the 3rd respondent to lodge a complaint / grievance in terms of the Notification issued by the 2nd respondent. Accordingly, 3rd respondent addressing the 2nd respondent, filed "Memorandum of Grievance as per Clause 12 of the Notification for appointment of LPG Distributors", on 16.11.2009, pointing out mistakes committed and specifically stated that no marks were allotted to 3rd respondent with regard to her capability of 17 providing godown. Thereafter the 2nd respondent constituted L-1 Committee consisting of three Members and pursuant to re-evaluation of all the applications, a fresh merit-list of eligible candidates was prepared. Investigation Officer appointed by the 2nd respondent found that L-1 Committee ought to have given marks based on the claim of the complainant as declared in her application. Accordingly a speaking order was passed on 19.04.2013 accepting the new revised merit list. Pursuant to the speaking order, in terms of the revised merit-list, respondent Nos.3 and 4 herein were placed at Sl. Nos. 1 and 2 and petitioner's name was placed at Sl. No.3. Admittedly, the Speaking Order dated 19.04.2013 passed by the Authority under the 2nd respondent reached finality and not challenged by the petitioner.
16. It is also not in dispute that the 2nd respondent is the authority to consider the applications in terms of the conditions of the brochure and categorically stated on oath, that the 3rd respondent was eligible for consideration 18 as on the date of filing her application and so also, as on the date of Field Verification conducted by the Investigating Officer. The land shown by 3rd respondent as declared in her application was existing. Therefore the contention of the petitioner that no godown land of the 3rd respondent was existing as on the date of Field Verification cannot be accepted. In view of the revised evaluation made by the Committees specially constituted by the 2nd respondent, the 3rd respondent obtained 89.32 marks and the petitioner obtained 87.50 marks. Therefore the contention of the petitioner that 3rd respondent obtained lesser marks than the petitioner cannot be accepted. So also, the contention of the petitioner that the revised marks notified as per Annexure-E is without notice to the petitioner cannot be accepted in view of the detailed "Speaking Order" passed by the Authority under / on behalf of the 2nd respondent on 19.04.2013, which has attained finality. Admittedly the said "Speaking Order" has not been questioned before this Court.
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17. The "Hindustan Petroleum Corporation Ltd. Brochure for selection of HP Gas Distributors" contains terms and conditions to be followed in the selection process. The eligibility criteria for all categories at Clause 4.4. reads thus:
"4.4. MULTIPLE DISTRIBUTORSHIP NORM (RELATIONSHIP CLAUSE) Multiple Dealer / Distributorship norms means that none of the individuals would be entitled to a new dealership/distributorship if any other individual in a 'family unit' already holds a dealership/distributorship or LOI for a dealership/distributorship of a PSU oil company i.e. Only one Retail Outlet / SKO-LDO dealership / LPG distributorship of PSU oil company will be allowed to a 'family unit'.
Family Unit in case of married person / applicant shall consist of individual concerned, his/her Spouse and their unmarried son(s)/daughter(s). In case of unmarried person / applicant, 'Family Unit' shall consist of individual concerned, his/her parents and his/her unmarried brother(s) and unmarried sister(s)."
The aforesaid condition makes it clear that only one member of the family unit is eligible to apply / be allotted dealership / distributorship and other members are disentitled to hold dealership / distributorship of LPG and 'a 20 family unit' in case of married individuals, includes his / her spouse, unmarried son / daughter.
18. Admittedly, 3rd respondent has produced along with her statement of objections, Annexure-R4 dated 20.06.2014, in the present writ petition, to show that petitioner's husband Sri S.K. Girish is the proprietor of Century Gas Agency for LPG distribution in Shivamogga City. Admittedly, writ petition came to be filed on 10.03.2014. The 2nd respondent has filed the statement of objections on 02.08.2014 stating the re-evaluation conducted and the marks obtained by 3rd respondent and that the petitioner has not disclosed true facts. To the said counter of respondent No.2, no rejoinder is filed by the petitioner. The petitioner has not come to Court with clean hands. When her husband is already holding dealership, she is not eligible to apply or hold LPG dealership in terms of condition No.4.4. stated supra. Said fact has been suppressed before this Court and this writ petition is nothing but abuse of process of this Court.
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19. In all fairness, the petitioner should not have filed application and she having not succeeded before the 2nd respondent has filed this writ petition. Sri M. Shivaprakash, learned counsel submits that the 3rd respondent has already started dealership on 22.06.2019. The said submission is placed on record.
20. For the aforesaid reasons, petitioner has not made out any ground to interfere with the impugned orders as per Annexures - 'E' and 'C' in exercise of power under Articles 226 and 227 of the Constitution of India.
Accordingly, writ petition dismissed.
No costs.
Sd/-
JUDGE sac*