Andhra HC (Pre-Telangana)
K.R. Bhaskara Babu vs Capt. Satish Sharma, Minister For ... on 17 July, 1997
Equivalent citations: 1998(1)ALD798
ORDER
1. The petitioner, the sixth respondent and other 44 persons applied for the distributorship of Indane Products, LPG etc., for Kuppam area in response to the notification issued by the fifth respondent, the Indian Oil Corporation in newspapers including 'The Hindu' dated 6-2-94 and 'Eenadu' dated 7-2-1994. The first respondent is the former Minister for Petroleum and Natural Gas, Government of India, the second respondent is the Oil Selection Board Committee of Indian Oil Corporation (OSB), the third respondent is the Chief Regional Manager of Hindustan Petroleum Corporation Limited, the fourth respondent is the District Collector, Chiltoor and one Mr. Sudeep Gosh is the Non-Member Secretary. But, at the relevant time one Mr. Akhileswaran was the Non-Member Secretary. Interviews were held for selection of the candidates for distributorship at Hotel Bhimas, Tirupalhi on 11-1-1996. The petitioner alleges that he was not informed of the result of the selection but from notice-board of the third respondent on 31-1-1996 he learnt that the sixth respondent had been allotted the distributorship. It appears that his wife Smt Krishnavenamma had also applied for distributorship alongwith her husband. Even she did not receive any intimation. He has pleaded that he and his wife were better qualified and were eligible for the allotment of distributorship as against the sixth respondent but for certain extraneous considerations the distributorship was not given to them and it was allotted to the sixth respondent. It is also alleged in para 8 of the affidavit of the petitioner that it was on account of the influence exerted by the sixth respondent with the help of the then local MLA of Kuppam constituency who is the present Hon'ble Chief Minister the first respondent informed respondents 2,3 and 5 to see that the sixth respondent is appointed for the distributorship overlooking the petitioner and his wife. It is contended on behalf of the petitioner that the appointment of the sixth respondent as distributor for Kuppam area is arbitrary, violative of Article 14 of the Constitution and also in violation of the guidelines issued in paper publication made by the fifth respondent- It is also contended that the petitioner having not been informed of such decision creates any amount of suspicion on the conduct of the respondents. The basis for such a contention is that the petitioner is better qualified as compared to the sixth respondent by virtue of clause 3(b)(ii) of the notification for inviting applications for distributorship as he is an unemployed Engineering graduate whereas the sixth respondent is not. Therefore, aggrieved by such a result, the petitioner has filed the present writ petition for the relief of declaration that the appointment of the sixlh respondent by ignoring the claims of the petitioner and his wife is illegal and void being violative of Articles 14 and 21 of The Constitution of India and that the inaction of the respondents 1,2, 3 and 5 in not communicating the order of rejection to the petitioner is also bad in law and violative of Article 14 of the Constitution and further to prohibit the respondents 2, 3 and 5 from proceeding in any manner in pursuance of the said notification in favour of the sixlh respondent.
2. The first respondent is not actually served with the notice. However, Mr. A. T.M. Rangammanujam, the learned senior Counsel has pointed out that on 12-3-1997 this Court directed to print the name of Smt. Chaya Devi, Additional Standing Counsel for the Central Government, according to him, as per the submissions made by the Standing Counsel at that time. But there is nothing on record to show that either the said Counsel appeared for the first respondent at any stage or that the first respondent entered appearance through any advocate muchless the Standing Counsel. On behalf of the respondents 1 and 2 appearance is entered through Mr. Sanjay Kumar. Mr. Sudip Ghosh, the Chief Regional Manager and Non-Member Secretary has filed number of affidavits dated 6-5-1996, 28-6-1997, 26-5-1997 and 14-7-1997. In the affidavit filed on 6-5-1996 Mr. Sudip Ghosh denied all the material allegations and the contentions of the petitioner in the affidavit filed in support of the writ petition. However, in the subsequent affidavits, the latest dated 14-7-1997, he has pleaded his helplessness in regard to certain matters as being beyond his control since they were within the realm of OSB. On behalf of the respondents 3 and 5 while denying the allegations of the petitioner it is pleaded that they have only acted in accordance with the decision of the OSB and have only communicated the decision of appointment of the sixth respondent as the distributor for the area in addition to following the procedure in collecting the applications and placing before the appropriate authority. They have also specifically denied the allegations that the; acted under the influence of either the first respondent or the MLA of Kuppam, the present Hon'ble Chief Minister in regard to such matters. On behalf of the sixth respondent it is contended that her selection and appointment as the distributor for Kuppani area has been solely on merits and not in the manner alleged by the petitioner and on the other hand she possessed all the requisite qualifications and eligibility in addition to the merit to get selected. As a whole, the contesting respondents have sought for the dismissal of the writ petition.
3. Mr. Ratnchander Rao, the learned senior Counsel has contended that the whole manner and method in which the selection for distributorship is adopted is suspicious, illegal and beyond all fundamental norms of such authority or the committee expected to act in such a situation and as such resulted in illegal consequences of arbitrary exercise of power vested in the Corporation and also the OSB in dealing with the matter. He has also contended that there is something fishy in regard to the whole matter since inception and till now and even the relevant documents are suppressed to know as to how the priority and selection among the applicants was considered. Mr. Sanjay Kumar, learned advocate for respondents 2 and 3 submits that since the OSB has been abolished, the present Officer Mr. Sudip Ghosh incharge of the OSB and the said committee is deprived of the relevant materials to demonstrate the basis of such selection as the file relating to such selection does not contain the marks-sheet or the comparative-sheet in the prescribed manner in N and Nl under the guidelines as it was beyond his reach to question the Members of the OSB about it. He also contended that the petitioner has made unnecessary allegations against the respondents 2 and 3 who have placed all the materials before the Court through the present Officer Sudip Ghosh like the applications, the decision to empanel the wife of the petitioner, Krishnavenemma and the sixth respondent and that there is no material to hold that the selection is arbitrary or without applying the mind of expert committee. Mr. K. Raghava Rao, the learned advocate for the third respondent and fifth respondent has maintained that respondents 3 and 5 were totally out of picture in regard to the method and mode of selection and communication as they acted as per the decision of the OSB. The learned Advocate-General Sri Venkataramaiah has placed relevant guidelines issued by the Government of India in the form of a booklet in Manual for Selection of Dealers and Distributors vide letter NO.27015/18674-IOC, dated 23-9-1977, (for short the Manual of Guidelines) and has called upon the Court to draw necessary inference based on the materials on record as he was not able to take a definite stand in regard to the questions in issue in this case and about the consequences that would follow. However, the learned Advocate-General has pointed out that even assuming that there might be some irregularity in such selections, the petitioner has no right to get automatically selected by getting any relief in this writ petition.
4. At the outset, it must be mentioned that barring the petitioner for any relief in this petition, the claim of his wife cannot be considered to any extent nor any relief can be given to her as she is admittedly a major and an independent applicant for distributorship alongwith the petitioner although independently she may be referred to as an applicant for distributorship. It is also clear that this is not a public interest litigation as such to treat the matter merely one of public importance. It was also emphasised that in this writ petition no relief can be granted as against the first respondent as he is not served with notice or that he is suitably represented to meet the allegations of the petitioner in this petition, however, subject to final orders to be passed ultimately after examining the merits of the case in accordance with law.
5. The simple questions for determination in this petition are-
1. Whether the petitioner had a superior claim over the sixth respondent in regard to the appointment for distributorship for Kuppam area.
2. Whether there was specific or definite basis for OSB to select the sixth respondent as against other applicants including the petitioner.
3. Whether any or whole procedure of selection for such distributorship was in accordance with law, known method, procedure and law relating to such selection including the guidelines under the manual of guidelines.
4. Whether the selection of the sixth respondent for such distributorship is arbitrary, illegal and opposed to the known norms and principles of natural justice.
5. Whether the OSB or the officers of respondents 2 and 3 have acted in an honest, bona fide manner in dealing with the matter.
6. Whether the selection of the sixth respondent deserves to be quashed.
7. Whether any relief can be granted to the petitioner in the manner claimed in the petition or in any other manner depending upon the facts and depending upon the circumstances of the case.
8. What orders are to be passed in relation to the conduct of the persons involved in the selection for the appointment of distributor for Kuppam area if their conduct is found to be unbecoming or opposed to propriety and the legal expectations ultimately.
6. Undisputabhy, all the parties to the petition are to depend upon the Manual of Guidelines issued by the Central Government in relation to the selection and appointment of distributor for the area notwithstanding the general and known procedure for selection of such persons to the distributorship including the principles of natural justice. Mr. Ramana Reddy at the threshold contended that the guidelines have no statutory force as they are administrative instructions as per settled law and therefore they cannot be made use of either to test the correctness or otherwise of the selection of the sixth respondent or to base the claim of the petitioner for such an appointment or the relief He has relied upon the pronouncement of the Supreme Court in J.R. Raghupathy v. State of A.P., in this regard. He has drawn the attention of this Court to para 18 of the pronouncement to fortify his contention the relevant portion of which reads thus:
"That precisely is the position here. The guidelines are merely in the nature of instructions issued by the State Government to the Collectors regulating The manner in which they should formulate their proposals for formation of a Revenue Mandal or for location of its Headquarters keeping in view the broad guidelines laid down in Appendix I to the White Paper, It must be stated that the guidelines had no statutory force and they had also not been published in the Official Gazette.'' There is no doubt that the Manual of Guidelines is based upon the guidelines under the order of the Central Government, detailed supra, without mentioning any source or the statute to issue the said notification. Prima facie, they are the guidelines having the structure of administrative instructions. It is true that such guidelines in the nature of administrative instructions have no statutory force. It is nobody's case that they were also published in Official Gazette to assume the official presumptive piece of document. While dealing with the administrative instructions issued by the Collector for the purpose of selection under Section 3(5) of the A.P. Districts (Formation) (Act 7 of 1974), the Supreme Court pointed out as follows:
"The guidelines are merely in the nature of instructions issued by the State Government to the Collectors regulating the manner in which they should formulate their proposals for formation of a Revenue Mandal or for location of its headquarters keeping in view the broad guidelines. The guidelines had no statutory force and they had also not been published in the Official Gazette. The guidelines were mere departmental instructions meant for the Collectors. The ultimate decision as to formation of a Revenue Mandal or location of its Headquarters was with the Government It was for that reason that the Government issued the preliminary notification under sub-section (5) of Section 3 of the Act inviting objections and suggestions. The objections and suggestions were duly processed in the Secretariate and submitted to the Cabinet Sub-Committee alongwith its comments. The note of the Collector appended to the proposal gave reasons for deviating from the guidelines in some of the aspects. Such deviation was usually for reasons of administrative convenience keeping in view the purpose and object of the Act i.e., to bring the administration nearer to the people. The Cabinet Sub-Committee after consideration of the objections and suggestions received from the Gram Panchayats and members of the public and other organisations as well as the comments of the Secretariate and the note of the Collector came to a decision applying the standards of reasonableness, relevance and purpose while keeping in view the object and purpose of the legislation, published a final notification under sub-section (5) of Sections. In a matter like this, conferment of discretion upon the Government in the matter of formation of a Revenue Mandal or location of its Headquarters in the nature of things necessarily leaves the Goverment with a choice in the use of the discretion conferred upon it"
If that is the only expression adopted in the dictum of the Supreme Court order possibly Mr. Ramana Reddy, the learned senior advocate may be right in postulating the non-maintainability of the petition in this behalf While holding that such guidelines are administrative instructions not to be pressed for the relief under Article 226 of the Constitution of India for the purpose of enforcing the administrative rules, the Supreme Court referred to the expressions of learned author Sri Durga Das Basu on Administrative Law which reads thus:
"Administrative instructions, rules or manuals, which have no statutory force, are not enforceable in a Court of law. Though for breach of such instructions, the public servant may be held liable by the State and disciplinary action may be taken against him, a member of the public who is aggrieved by the breach of such instructions cannot seek any remedy in the Courts. The reason is, that not having the force of law, they cannot confer any legal right upon anybody, and cannot, therefore, be enforced even by writs under Article 226."
The limitations for such utility of the guidelinas as elucidated above are not total bar to make use of the guidelines by the Court in a petition under Article 226 of the Constitution. The true implication of such a situation has been further elucidated by taking recourse to the further expression of the learned author which is as follows:
"Even though a non-statutory rule, bye-law or instructions may be changed by the authority who made it, without any formality and it cannot ordinarily be enforced through a Court of law, the party aggrieved by its non-enforcement may, nevertheless, get relief under Article 226 of the Constitution where the non-observance of the non-statutory rule or practice would result in arbitrariness or absence offairplay or discrimination, particularly where the authority making such non-statutory rule or the like comes within the definition of 'State' under Article 12.)"
Therefore, the postulation of the learned senior advocate added with such a pronouncement has itself made the rule unsustainable. The Court will grant any relief under Article 226 of the Constitution of India under the circumstances stipulated as above. Apart from that, the facts and circumstances of J.R. Raghupathy's case (supra) and this case are totally different There is specific statutory discipline under the AP. Districts (Formation) Act (7 of 1974) whereby certain guidelines were issued for implementation of the Act or the rules but by themselves could not take the status of a statute to seek any relief and in that context the rule was discharged, however, with limitations stated above. The answer to the above contention lies with the three pronouncements of the Supreme Court in Common Cause a Registered Society v. Union of India, ; and Common Cause a Registered Society v. Union of India, ; and Common Cause a Registered Society v. Union of India, , which directly involve the question of allotment of Petrol pumps from the discretionary quota by Minister and was found to be arbitrary, discriminatory, mala fide and wholly illegal. The facts in the said cases almost impress the facts and circumstances of this case subject to examination on merits. In the cases cited supra, the Supreme Court granted reliefs under Article 32 of the Constitution of India (this is known to be similar to Article 226 of the Constitution for the High Court).
7. The whole question would be whether the facts and circumstances of a particular case can be drawn with such results like arbitrariness, discriminatory conduct, mala fide in treatment and illegal and whether this case is one.
8. The next contention raised by Mr. Ramana Reddy, the learned senior Counsel is that the OSB being an expert committee or the body to select the persons for distributorship based on so many considerations has come to same view, and the decision which this Court will be unable to examine on the merits and therefore even if the petitioner makes so many allegations in regard to the preferential claim, no relief can be granted in this petition. The learned Counsel fortified his contentions with two pronouncements in Tata Cellular v. Union of India, (1994) 6 SCC 651 and Dr. N. Nagabhushanam v. Dr. M. Vasudeva Reddy, . In Tata Cellular case the Court was examining the scope and powers of the Court under Articles 226,32, 136,14, 298 and 299 of the Constitution of India relating to Government contracts to be finalised based on tenders. The Supreme Court pointed out that 'the principles of judicial review would apply to the exercise of contractual powers by Government bodies in order to prevent arbitrariness or favouritism. However, there are inherent limitations in exercise of that power of judicial review. Government is the guardian of the finances of the State. It is expected to protect the financial interest of the State. The right to refuse the lowest or any other tender is always available to the Government. But, the principles laid down in Article 14 of the Constitution have to be kept in view while accepting or refusing a tender. There can be no question of infringement of Article 14 if the Government tries to get the best person or the best quotation. The right to choose cannot be considered to be an arbitrary power. Of course, if the said power is exercised for any collateral purpose the exercise of that power will be struck down'. It is further observed that 'the judicial quest in administrative matters has been to find the right balance between the administrative discretion to decide matters whether contractual or political in nature or issues of social policy; thus they are not essentially justiciable and the need to remedy any unfairness. Such an unfairness is set right by judicial review'. The very expressions supra the contentions, on hand normally, the Court will not interfere with such a decision but where there is unfairness or when there is no just and fair play in dealing with such matter, the Court will review and strike it down. Further, if the said power is exercised for any collateral purpose the exercise of that power will be struck down. In Dr. N. Nagabhushanam's case (supra) this Court was dealing with the constitution of Selection Committee of a University. It was held in that case that the principle applicable to quasi-judicial functions is not applicable to administrative functions and reasons for orders be given particularly such a thing cannot be entertained by the High Court which is not an appellate authority to scrutinise such decisions wherein the appreciation of facts may become necessary. However, it was clarified that the High Court will only examine whether the selection is in violation of statutory provisions, arbitrary and also is in violation of Articles 14 and 16 of the Constitution of India It was concluded that ordinarily the High Court will not interfere in such selection. The facts and circumstances of the said case are totally distinguishable. The rule is also capable of extensibility depending upon the law laid down by the Supreme Court in the decision supra This Court is not able to be persuaded with any of the decisions relied upon by the learned Counsel appearing for the sixth respondent that the present case totally takes out the discretion of the Court to examine the facts and circumstances of the case to find out whether justifiable grounds are made out to interfere with such selection of R6 as against the petitioner and other applicants. To repeat again, the facts and circumstances of this case are totally covered by the latest pronouncement of the Supreme Court in Common Cause a Registered Society's case more than once.
9. Both the petitioner and the sixth respondent have produced certain materials to show that they were not only eligible to be considered for appointment as distributor but also they have preferential claim over each other. It is nobody's case that they were not eligible to be considered for appointment as distributor. In fact, the check-list produced on behalf of the third respondent shows that they have satisfied the eligibility criteria for consideration. Even the factual situations like the petitioner being unemployed engineering graduate and the respondent No.6 a graduate etc. are not in serious dispute for the purpose of this case. The learned advocate for the petitioner has strongly relied upon clause 3(b)(ii) of the notification inviting applications. It may be better to extract the entire clause 3 to appreciate the contentions of both the parties, which reads thus:
"3(a) Corporation owned or controlled by State Government and Consumer Cooperative Societies are also eligible. However, restrictions relating to annual income, residence and multiple dealerships would not be applicable to Corporations owned or controlled by the State Government.
(b) Other things being equal
(i) Preference may be given to Consumer Cooperative Societies compared to unemployed graduates.
(ii) Amongst the unemployed graduates, unemployed engineering graduates would be given preference.'' The learned advocates appearing for the respondents in particular Mr. Ratwna Reddy is right in pointing out that sub-clause (b) is optional including sub-clause (ii) when other things being equal. It is nobody's case that the petitioner and R6 were unequal in regard to other things stipulated in the notification. Particularly, the affidavit of Mr. Sudip Ghosh does not speak that the second respondent has not pointed out that they stand unequal regarding other things. In that situation, the petitioner being unemployed graduate definitely stands on adifferent status then the sixth respondent who is a graduate in Home Science. Moreover, the petitioner had definitely satisfied the preference criteria among other applicants and particularly as against the sixth respondent being unemployed engineering graduate, regarding which there is no material to hold that the sixth respondent or any other applicant had such an additional qualification. Even the wife of the petitioner Smt. Krishnavenamma, from the materials produced, does not possess such a special qualification as the petitioner. However, she is in the second position in the selected list regarding which no objection is raised in this petition. Further, it is established with materials and in the absence of materials that the petitioner had preferential claim over the sixth respondent. Apart from that, such criteria in clause (3) of the notification has a basis in the guidelines in clause 2.5 which reads thus:
"Within this Open category, Consumer Cooperative Societies will be given preference over unemployed Graduates/ unemployed Engineering Graduates.
Unemployed Graduates/unemployed Engineering Graduates will, however, be given preference over other applicants.'' Therefore, it is clear that the contents in clause 2.5 of the guidelines is expressed in clause 3 of the notification. It is nobody's case that OSB was not obliged to follow the guidelines, on the other hand, the whole thing has been done only within the guidelines of the Government of India Therefore, when the OSB did not consider the case of the petitioner as a superior claim-holder as against the sixth respondent, it had definitely violated clause 2.5 of the guidelines inasmuch as clause 3(b)(ii) of the notification.
10. This Court endeavoured to give maximum opportunity to all the parties in this writ petition particularly to respondents 2 and 3 to produce all the materials to demonstrate as to how the method of selection was adopted and as to how the claim of the sixth respondent was treated to be superior to the petitioner. On a reading of the affidavits of Mr. Sudip GHOSH, the Non-Member Secretary, anybody can make out that he has not only failed in his responsibility in placing all the materials before the Court but also betrayed his fundamental responsibility to confer to the duties expected of such a Non-Member Secretary. In para 3 of the affidavit dated 6-5-1996 Mr. Sudip Ghosh was certain that the selection of the candidates is always to be made on comparative merits and the selection of the candidates has been made taking an overall assessment of the merits but not just the educational qualifications. In Para 5 of the affidavit supra it is clear that he is aware that there are guidelines in regard to such selections. He has made an unequivocal statement in Para 6 of the affidavit that the OSB has selected the sixth respondent on the basis of the merits. He has also vociferously stated in the affidavit that from among 46 applicants found eligible, only 38 appeared for interview among whom the wife of the petitioner and the sixth respondent were placed in the selection panel and the sixth respondent has been appointed based on merits. There is no whisper in the affidavit as to the absence of any such material with him or elsewhere about the basis to fix such merits but he tried to wriggle out of the situation by filing an affidavit on 28-6-1997 saying that he is not a necessary parry to the writ petition as he has no role to play in the writ petition and he does not know as to why he was impleaded in the writ petition. In his affidavit dated 14-7-1997 he totally disowned his responsibility as a Non-Member Secretary except to act in a particular manner which is purely administrative. While narrating the events ever since he appeared in the case he pointed out that on 30-4-1997 the file relating to such selections was produced before the Court when the Court called upon the Officer who is present in the Court (Jayasekhar), that the Court wanted the production of the mark sheets and the comparative merit list pertaining to the selections for the said dealership and as the same were not produced the Court directed the Manager of Oil Selection Board Mr. J. Jayashekhar to file an affidavit, that he filed an affidavit on 30-6-97 who took charge as the Manager only in November 1996 and therefore he has no personal knowledge of the events and thus he was advised to file that affidavit. In para 5 of the said affidavit he has sworn that his functions as Non-Member Secretary of OSB are strictly limited which are purely administrative as are enumerated at page 18 of the Manual for Selection of Dealers and Distributors which lays guidelines as promulgated by the Oil Industry, that the OSB is seized with the duty of interviewing and selecting the candidates for appointment as dealers, that the Non-Member Secretary has no function or role to play in the said selections as he was not present when the interviews took place and that the Chairman and Members Mr. G. Krishna Murthy and Member Mr. Shri Ram Pher Gaulam of the OSB were concerned with the selection. He has also enumerated the procedure of placing the papers before the Selection Board by the Manager and according to him they were complied with. One Mr. Akhileswaran was the Manager at the relevant time who retired on 30-8-1996. It is stated that Mr. Akhileswaran placed all the applications for dealership before the Board and after finalising the selection of the candidates acted as per the directions of the Board and the entire file which included blank forms as contained in Appendix N and N(i) were also produced before the Board. In para 7 of the affidavit he had made it emphatic that it is now observed that Appendices N and N(i) are not present in the file and the OSB had given a sealed cover with a letter dated 12-1-1996 empaneling two persons for consideration for being appointed and he had concluded as follows:
"Thus, it is indisputable fact that the blank mark sheet forms (Statement of Performance in Appendix N and blank comparative merit statement in Appendix N(l) do not form part of the file of OSB."
He had only tried to exonerate himself and other staff viz., Akhileswaran, Jayasekhar and one lady Ms. Daver from such consequences. Similar is the stand taken by Mr. Jayasekhar when he filed the affidavit before the Court. This Court is surprised about the conduct of the officers as above in dealing with the said matter of importance and serious consequences when the Court has to examine the proprieties - legal or otherwise - of such a conduct. In the first place, they are disowning their responsibility just because the OSB is abolished. Secondly, they are disowning their responsibility in not checking the file either when entrusted by the Board to the concerned officer or at any subsequent event till the affidavit was filed to know whether such papers were really there or not, if so, to intimate the Board in writing or otherwise or to intimate the Government in this regard about the absence of mark sheets in Appendices N and N(l). There is not even a whisper either in the affidavit of Sudip Ghosh or Jayasekhar whether they did any such diligent act of noting the absence or presence of such papers or intimating the concerned officers about such absence. As rightly pointed out by the learned Advocate-General the forms in Appendices N and N( 1) are to be maintained by the OSB. Form N deals with the performance of each candidate for such selection to be judged by the members by putting marks for each category in addition to their remarks ultimately. Appendix N(1) is in the form of an enumeration list of all the candidates as a comparative statement of performance noted by the Chairman and the Members. Admittedly, and correctly too, that is the basis on which the preferential claims of the applications can be determined. If what Mr. Sudip Ghosh says is correct, not only such forms were supplied to the OSB by the concerned officers but also they must have been made use of by the Selection Board. If they had been made use of, they were to be returned to the office alongwith other papers and the file, however, may be kept in the sealed cover if it was confidential. If that was not done, it raises several suspicions of questions whether such forms were used at all for assessing the performance merit or those forms filled up and produced to show the basis for such selection to allot distributorship to the sixth respondent as against the others including the petitioner. Not only such inferences are open but lot of suspicion is also created about the method of selection for such distributorship. This Court is even doubting whether Mr. Sudip Ghosh or any other officer including Jayasekhar and Akhileswaran had a role to play either before supplying the forms or thereafter. Just because they have thrown entire responsibility on the OSB and the Members or the Chairman they cannot be totally given a clean chit unless they are put to test by means of a proper enquiry or investigation by an appropriate authority. Since the respondents 1 and 2 and the Chairman and the Members of the Board did not take any interest to come before the Court and file affidavits, such doubts or suspicions are mulcting them in the consequences and the liability. As a whole, this is a case of suppression of materials.
11. Mr. Sudip Ghosh., Jayasekhar and Akhileswaran should make themselves available for enquiry or investigation in addition to the Chairman and the Members who dealt with the mailer ultimately to clear such a doubt. As it is, there is no material placed before the Court deliberately, as the matter appears, to test whether the claim of the sixth respondent is superior to the petitioner or any other claimant. Under such circumstances, as was held in Common Cause a Registered Society's case (supra) by the Supreme Court there is an indication of arbitrariness, discrimination, mala fide and illegality in addition to suppression of material facts before this Court and also conduct of contempt as against the Court in dealing with the matter. Particularly, the conduct of Sri Sudip Ghosh from stage to stage raises lot of suspicion whether at all he has got respect-to Court or seriousness or fear of serious consequences which he has to face ultimately. Instead of explaining or placing material before the Court, in the affidavit, he had narrated events that took place in the Court as if he had maintained proceedings sheet in this case. The learned Advocate-General, however, depended upon the guideline 5 from clauses 4 to 11 to show as to how such applications are to be treated in appointment of the distributorship, particularly, he points out clauses 4 to 10 to show the administrative duties and the responsibilities of the officers of the OSB which may be relevant to know the conduct of Sri Sudip Ghosh and other officers stated above but that does not throw any light as to their responsibility in dealing with the matter in the natural manner and the official method of conducting oneself in dealing with such matter. Clause 5(a) of the Manual for Selection of Dealers and Distributors reads as follows:
"(a) OSBs will retain only the Application Forms and other connected papers of the empanelled candidates and destroy the rest after a period of 3 months from the date of commissioning of the dealership/ distributorship."
Possibly, it is being pointed out, the application forms and the Selection Panel's decision has been produced before the Court and the other papers including the forms in Schedule N(l) and N could have been destroyed by virtue of the aforementioned guideline. This Court totally disagrees with such an implication. What the guideline 5.11 contemplates is that the application forms and other connected papers of the empanelled candidates should be retained and destroy other papers to mean that any papers produced by the candidates in connection with their claim but not forms like N and N(l) as they are the basis to know the selection of the candidates on merits. Moreover, on a reading of the guidelines issued by the Government in the form of administrative instructions which are very exhaustive, it is apparent that they are very clear and unambiguous and impose lot of obligations and responsibilities not only on OSB but also on the officers concerned with the Board inasmuch as the Oil Corporation. There are as many as five guidelines with sub-clauses and prescribed norms meant for OSB, the Oil Corporations and also the dealers. They have to be meticulously regulated and followed. The absence always speaks converse and that has happened in this case. The matter has been on record for quite some time, has been adjourned from day-to-day, opportunity was given to the parties to produce all the materials particularly to respondents 1 and 2 but not made use of in the manner expected of. Therefore this Court is of the considered opinion that the manner and the method in which the case is dealt with by the concerned authority including Mr. Sudip Ghosh, the Chairman and the Members of the Board, is arbitrary, illegal, improper and travesty of truth and respect for rule of law to the Courts. It cannot be forgotten that incidentally the first respondent Mr. Sathish Sharma, tie former Minister has been the target of the consequences of the decision in Common Cause A Registered Society's case (supra) wherein for such a conduct he was imposed with exemplary costs of Rs.50.00 lakhs and a direction was also issued to investigate against such persons. This Court finds no reason as to why such an action should not be taken in this case. There remains no doubt that the selection of the sixth respondent as distributor for Kuppam area deserves to be quashed as arbitrary, illegal and improper, the selection being without following the guidelines.
12. At this slage, the learned advocate appearing for the petitioner submitted that when once the selection of the sixth respondent is quashed, the petitioner's claim becomes automatically accepted as he is having a preferential claim for having had the special qualification of being an unemployed Engineering Graduate as against the sixth respondent or his wife. This Court is not in a position to accept such a contention. Rightly or wrongly, even the wife of the petitioner was empanelled at rank No.2 alongwith the sixth respondent. The preferential claim between the wife of the petitioner and the sixth respondent cannot be considered or examined in this case for she being not a party and aggrieved by such selection. Further, there might have been several other similar applicants standing on a belter footing as against the sixth respondent in seeking selection of distributorship. Moreover, the whole matter and the result has proceeded due to suppression of feels and therefore it would not be wise or just to automatically declare that the petitioner is entitled for such distributorship. However, such selection has to be done afresh according to the guidelines stated above which would be more appropriate than the proposal made by the learned Counsel for the petitioner.
13. Now the question is as to what should be done in regard to Mr. Sudip Ghosh Sri Akhileswaran and Sri Jayasekhar or any other officer or authority including the Chairman and Members of OSB who are found, prima facie, to be responsible for such illegal consequences. The answer lies in Common Cause a Registered Society's case (supra) where after giving opportunity appropriate orders were passed. Therefore, they must be issued show cause notice as to why appropriate orders should not be passed against them as the Supreme Court did in Common Cause a Registered Society's case or to pass any other appropriate order.
14. In the result, the petition is allowed. The selection and appointment of the sixth respondent as the distributor for LPG for Kuppam area impugned in this writ petition, by the fifth respondent on the basis of the selection made by OSB is quashed. The fifth respondent shall initiate fresh action for such selection within one month from the date of communication of a copy of this order and select the appropriate candidate or the applicant in accordance with the guidelines and in the light of the observations made above. It is needless to mention that when fresh notification is made, the petitioner, sixth respondent and anybody interested in getting selected may apply.
15. The registry is directed to issue show cause notice to Mr. Sudip Ghosh, Non-Member Secretary; the Chairman and the Members of the OSB at the relevant time; and the concerned staff of OSB at the relevant time including Mr. Jayasekhar and Sri Akhileswaran as to why investigation should not be ordered against them by an appropriate investigating agency for misdemeanour, if any, committed in dealing with the selection of distributorship concerned in this case and for punishing them for contempt of Court for suppression of facts and disrespecting the Court in disgressing its functions in dealing with this writ petition and consequently as to why any such action including disciplinary action should not be ordered and also as to why exemplary compensation should not be imposed, according to law and as to why they should not be prosecuted for any offence in the context. Notice shall be returnable on or before 29-9-1997.
16. Before parting with the case, this Court is drawn to the propriety of the allegations made in para 7 of the affidavit of the petitioner against the MLA of Kuppam, the present Hon'ble Chief Minister of Andhra Pradesh Mr. N. Chandrababu Naidu. It is true that the petitioner is aggrieved by the manner and the method in which his claim was considered or rejected. But as rightly pointed out by SriK. Raghava Rao, such allegations are made without any material or basis. This Court totally disapproves such allegations to be made against anybody muchless such persons and the authorities, which are easy to be made and difficult to be established. The petitioner is guilty of such a conduct. However, noting that such expressions are made in desperation and disappointment for non-selection, this Court warns him and such persons not to indulge in such allegations and he is also impressed that the Courts are not the proper forums to make such allegations without basis of which Courts cannot taking things lightly. No costs.