Calcutta High Court (Appellete Side)
Suma Ghosh vs Hindustan Petroleum Corporation ... on 25 January, 2019
Author: Arindam Sinha
Bench: Arindam Sinha
1
25.01.2019
Item no. 69
Dd/Sd
Ct. 04 WP 9808 (W) of 2016
Suma Ghosh
Vs.
Hindustan Petroleum Corporation Limited & Ors.
Mr. Naba Kumar Das
Mr. Pathik Bandhu Banerjee
Mr. Victor Chatterjee
... ... For petitioner
Mr. Prasun Mukherjee
Mr. Deepak Agarwal
... ...For the HPCL
Mr. Anubhav Sinha
Mrs. Reshmi Ghosh
... ...For respondent no. 6
This writ petition is up for final hearing and disposal. Parties
have been heard.
Petitioner applied for award of LPG Distributorship. By this writ
petition memo dated 24th May, 2016 has been challenged. Text of said
memo is reproduced below :-
"1. Applicants who have qualified were informed about
the 'draw' vide letter dated April 22nd, 2016 Information about
the draw was advertised in the newspaper Anandabazar Patrika
& The Telegraph on May 22nd, 2016.
2. List of applicants qualified for draw is attached.
(Attach list as per Appendix-K3R)
2
3. 4 (Four) number of applicants who have qualified for
the draw were present at the time of draw. List is attached.
(Attach Attendance record as per Appendix-N2)
4. The two company officials nominated for conducting
the draw are Shri Grindra Mohan, Ch. Regional Manager, KLRO
& Shri Akhilesh Kumar, Plant Manager, Paharpur LPG Plant.
5. The paper token was picked by the invited guest Shri.
Angshuman Adhikari, ADM-LR, Howrah, as our Chief Guest.
6. A total of 3 (Three) people were present for the draw.
7. Eskromato Private Limited (Authorised
Representative: Shri Saibal Gangopadhyay) with
application Serial No.KOL/CHA/003 was declared as
selected candidate.
8. Video recording carried out by Shri Rabindranath
Mandal, Kolkata.
9. Any other points NIL
We confirm that the draw was held as per the guidelines
and the details stated above are correct."
Facts as would appear from disclosures in writ petition are that notice
for appointment of LPG Distributorship was published in The Telegraph dated 10th September, 2013. Petitioner and private respondents had responded pursuant to said notice in respect of serial no. 14 inviting tenders for appointment of LPG Distributorship in advertised location Chanditala, District Hooghly in unreserved category. By communication dated 8th January, 2015 petitioner was informed, two candidates had been found eligible for draw on selection of LPG distributorship, herself and one other. By another communication also dated 8th January, 2015 nine candidates were found ineligible of whom two are private respondents in this writ petition. Subsequently there was yet another communication dated 19th April, 2016 by which the Oil Company found two of earlier declared 3 ineligible candidates, private respondents herein, to be eligible. It is after this that impugned memo stood issued.
In paragraphs 5 onwards of the writ petition petitioner has alleged, inter alia, that on 19th April, 2016 further list of eligible candidates was uploaded in official website. She had inquired about her application and also where names of four candidates were mentioned, at office of Hindustan Petroleum Corporation Limited in Kolkata. She also inquired about the procedure and methods for insertion of two further ineligible candidates in list dated 19th April, 2016. No information was given to her. The Oil Company in paragraph 7 of its affidavit dealing with paragraphs 5 to 8 of the writ petition introduced e-mail dated 30th April, 2015 issued by Ministry of Petroleum and Natural Gas, Government of India and letter dated 28th April, 2015 addressed to the Oil Marketing Companies. The directives in e-mail dated 1st June, 2016 are reproduced below :-
"1. Draws/Re-draw for selection of Regular Distributorships locations advertised prior to March 2015 should be kept in abeyance till further advise.
2. Cancellation of Candidature of selected candidate (successful in draw of lots / single eligible candidate) on the grounds of Ownership of Land, Approach Road and Funds in non-schedule bank should be kept in abeyance."
By letter dated 25th April, 2015 observations of Minister of State, Petroleum and Natural Gas were enclosed for compliance and submission of action taken report to the Ministry.
Mr. Das, learned advocate appeared on behalf of petitioner and submitted, a co-ordinate Bench had passed interim order dated 2nd June, 2016. Relevant text of said order is reproduced below :-
"In my view, the petitioner has come up with a strong prima facie case for which I am inclined to pass an interim order. Since the changed guidelines issued by the Ministry of Petroleum were not disclosed in the advertisement on the basis 4 of which the petitioner submitted application for distributorship and since the ineligible candidates were allowed to participate in the draw for selection of the distributorship as eligible candidates, the HPCL authorities - the respondents no.1 to 5 - are restrained from giving effect to the list of the applicants as appears in Annexure P6 and proceeding of the draw for selection of LPG distributorship as appears in Annexure P8 to the writ petition for a period of three months or until further orders, whichever is earlier."
There was no appeal preferred against this limited order extended thereafter from time to time and subsisting as on date. He relied on judgment of Supreme Court in Monarch Infrastructure (P) Ltd. vs. Commissioner, Ulhasnagar Municipal Corporation and Ors. reported in (2000) 5 SCC 287, in particular to paragraph 12 which is reproduced below :-
"12. If we bear these principles in mind, the High Court is justified in setting aside the award of contract in favour of Monarch Infrastructure (P) Ltd. because it had not fulfilled the conditions relating to clause 6 (a) of the Tender Notice but the same was deleted subsequent to the last date of acceptance of the tenders. If that is so, the arguments advanced on behalf of Konark Infrastructure (P) Ltd. in regard to the allegation of mala fides of the Commissioner of the Municipal Corporation in showing special favour to Monarch Infrastructure (P) Ltd. or the other contentions raised in the High Court and reiterated before us are insignificant because the High Court had set aside the award made in favour of Monarch Infrastructure (P) Ltd. The only question therefore remaining is whether any contract should have been awarded in favour of Konark Infrastructure 5 (P) Ltd. The High Court had taken the view that if a term of the tender having been deleted after the players entered into the arena it is like changing the rules of the game after it had begun and, therefore, if the Government or the Municipal Corporation was free to alter the conditions fresh process of tender was the only alternative permissible. Therefore, we find that the course adopted by the High Court in the circumstances is justified because by reason of deletion of a particular condition a wider net will be permissible and a larger participation or more attractive bids could be offered."
He also relied on my judgment in Sri Rajib Lochan Das vs. Indian Oil Corporation Ltd. reported in (2018) 2 WPLR (Cal) 698, appeal wherefrom was dismissed by judgment dated 25th June, 2018 in Smt. Tandra Das vs. Sri Rajib Lochan Das & Ors. reported in 2018 Vol. 2 CLJ (Cal) 569.
Mr. Mukherjee, learned advocate appeared on behalf of the Oil Company. He submitted, selection process was pended pursuant to said e- mail. Guidelines were changed thereafter. On query from Court he submitted, observations of Minister of State as enclosed by letter dated 25th April, 2015 are changed guidelines. On further query from Court Mr. Mukherjee was unable to substantiate his submission that observations made by Minister of State are guidelines to be followed by Oil Marketing Companies as under Petroleum and Natural Gas Regulatory Board Act, 2006 (PNGRB).
He relied on letter dated 25th February, 2016 issued by Government of India, Ministry of Petroleum and Natural Gas to Oil Marketing Companies. Substance of said letter is reproduced below:-
"I am directed to convey the approval of the Competent Authority, in supersession of this Ministry's letter of even number dated 18.12.2015, to the following modalities for resumption of pending Regular LPG distributorships:6
Existing Status Proposed
1. Locations where Proceed with FVC with the
draw has been held Guidelines of March 2015
pertaining to (i) ownership
of land, (b) approach road
and (c) Funds in bank and
(d) lease period reckoning
2 Locations which are Conduct scrutiny of
due for draw/redraw application forms with the Guidelines of March 2015 pertaining to (i) ownership of land (b) approach road (c) Funds in bank and (d) lease period reckoning 3 Locations where Withdraw the cancellation draw was declared order: approach court cancelled on the citing the changed action issue of reckoning of plan, by which the 15 years lease grievances of the period petitioners are being addressed 4 Locations due for re- Advertisement will be advertisement issued after the new selection policy comes into being
2. I am also directed to convey the approval for following Action plan also:
7a) There will be no requirement for issuing corrigendum/addendum to the advertisement already published.
b) Outcome of draw and Lol, whatever has happened, will be considered as settled.
c) Period of lease will be reckoned from the date of the advertisement.
d) Land Ownership will include all inheritances.
e) Funds arrangement by candidate will take into account funds as on relevant date in all banks.
f) Locations where draw has not been held will be scrutinized following the above conditions (c to e).
g) Approach road at the time of FVC will consider the possibility of making provision for approach road within time given to Lol."
He submitted, his client in acting pursuant to observations made by Minister of State and said letter dated 25th February, 2016 regarding selection guidelines, found private respondents to be eligible thereby. On query from Court no statement in his client's affidavit-in-opposition could be pointed out to establish that petitioner was told basis of making private respondents eligible on her approaching the office as alleged in paragraphs 5 to 8 of the writ petition. Since petitioner participated in the draw and on being unsuccessful has approached Court, he submitted, there is no case for interference.
Mr. Mukherjee relied on judgment of Supreme Court in D. Sarojakumari vs. R. Helen Thilakon and others reported in (2017) 9 SCC 478, to paragraph 11 which is reproduced below:
"11. As far as the present case is concerned, an advertisement was issued by Respondent 6 inviting applications for the post of Music Teacher in Samuel LMS High School. Respondent 1 did not raise any objection at that stage that the post could not be filled in by direct recruitment and she should be considered for promotion. Not only 8 that, she in fact, applied for the post and took part in the selection process. After having taken part in the selection process and being found lower in merit to the appellant, she cannot at this stage be permitted to turn around and claim that the post could not be filled in by direct recruitment. The reasoning of the learned Single Judge in rejecting the objection is not in consonance with the law laid down by this Court. In view of this, we need not go into the other issues raised."
Mr. Sinha, learned advocate appeared on behalf of private respondent no. 6, the successful candidate, and relied upon sections 12 and 42 of PNGRB Act, 2006. Said sections are reproduced below :-
"12. Powers regarding complaints and resolutions of disputes by the Board:-
(1) The Board shall have jurisdiction to -
(a) adjudicate upon and decide any dispute or matter arising
amongst entities or between an entity and any other person on issues relating to refining, processing, storage, transportation, distribution, marketing and sale of petroleum, petroleum products and natural gas according to the provisions of Chapter V, unless the parties have agreed for arbitration;
(b) receive any complaint from any person and conduct any inquiry and investigation connected with the activities relating to petroleum, petroleum products and natural gas on contravention of -
(i) retail service obligations;
(ii) marketing service obligations;
(iii) display of retail price at retail outlets;
(iv) terms and conditions subject to which a pipeline has
been declared as common carrier or contract carrier 9 or access for other entities was allowed to a city or local natural gas distribution network, or authorization has been granted to an entity for laying, building, expanding or operating a pipeline as common carrier or contract carrier or authorisation has been granted to an entity for laying, building, expanding or operating a city or local natural gas distribution network;
(v) any other provision of this Act or the rules or the regulations or orders made there under.
(2). While deciding a complaint under sub-section (1), the Board may pass such orders and issue such directions as it deems fit or refer the matter for investigation according to the provisions of Chapter V."
"42. Power of Central Government to issue directions :-
(1) The Central Government may, from time to time, by writing issue to the Board such directions as it may think necessary in the interest of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States or public order.
(2) Without prejudice to the foregoing provision, the Central Government may, if it finds necessary or expedient so to do in public interest or for maintaining or increasing supplies of petroleum, petroleum products or natural gas or all or any of them or for securing their equitable distribution and ensuring adequate availability, issue policy directives to the Board in writing and such policy directives shall be binding upon the Board: Provided that no such directive shall relate to any day-to-day affairs of the Board: Provided further that the Board shall, as far 10 as practicable, be given an opportunity of expressing its views before any directive is issued under this sub- section.
(3)The decision of the Central Government whether a question is one of policy or not shall be final."
He submitted, dispute between entities and any other person must be adjudicated according to provisions of Chapter 5 which provides for Board to settle disputes. On query from Court he submitted, here 'entity' is the Oil Company and 'other person', writ petitioner. He relied on Division Bench judgment of Delhi High Court in M/s. Saumya DSM Infratech Limited vs. Union of India & Ors. reported in (2014) SCC OnLine Del, 3612, paragraph 10 for submission that efficacious alternative remedy is available to petitioner.
Without prejudice on merits he submitted, by revised guidelines of March, 2015 regarding eligibility criteria for non-individual applicants, same allowed for non-individual applicants to own, as on last date of submission of application or corrigendum, plot of land of minimum dimensions within 15 kilometers from municipal/town/village limits of the location offered in the same State for construction of LPG Godown, a ready LPG cylinder storage godown within 15 kilometers from municipal/town/village limits of the location offered in the same State. This revised guideline, according to him, is actually a clarification. In applying this clarification there was rectification of earlier mistaken declaration of his client being ineligible. His client, thus, was found eligible and invited for draw. In the draw his client stood selected after which petitioner has come before this Court in seeking to challenge such appointment.
Lastly Mr. Sinha submitted, when communication dated 19th April, 2016 declaring his client eligible had not been challenged, there could not be challenge to the draw, it being consequential. He relied on judgment of Supreme Court in Amarjeet Singh and others vs. Deviratan and 11 others reported in (2010) 1 SCC 417, paragraph 28, which is reproduced below:
"28. In the instant case, promotions had been made by two different DPCs held on 19-12-1998 and 22-1-1999. Both DPCs had made promotions under different Rules on different criterion and their promotions had been made with retrospective effect with different dates notionally. In the writ petition before the High Court, the promotion of the appellants had not been under challenge. The seniority which is consequential to the promotions could not be challenged without challenging the promotions. Challenging the consequential order without challenging the basic order is not permissible."
Case of the Oil Company is, they acted pursuant to e-mail and letter issued to Oil Marketing Companies. Above extract from e-mail dated 1st June, 2016, as applicable to facts and circumstances, would mean that draw not held was required to be pended. Point 2 in the e-mail regarding cancellation of candidature does not apply. Appearing private respondent already stood declared ineligible at the time e-mail was issued, pending the draw.
The Oil Company has not been able to demonstrate observations of Minister of State are guidelines to be followed by the Oil Companies, as revised guidelines issued after tenders had been submitted on prior advertisement made. Letter dated 25th February, 2016 regarding selection guidelines directs approval of competent authority on modalities given therein for resumption of pending regular LPG distributorships. In the table given, entry 2 is applicable to facts and circumstances. Proposal is to conduct scrutiny of application forms with the guidelines of March, 2015 pertaining, inter alia, to ownership of land. It is here that private respondent has urged applicable revised guidelines as recorded above. There is no material on record, as produced either by the Oil Company or 12 answering private respondent, to show that by reason of demonstration of ownership of plot of land within 15 kilometers from municipal/town/village limits of the location, said respondent was declared eligible.
There has been no comment made by the Oil Company or answering private respondent on judgments cited by petitioner, particularly, Monarch Infrastructure (P) Ltd. (supra). So far as PNGRB, 2006 Act is concerned, clause (p) in definitions section 2 gives meaning of 'entity' to be a person or firm or company or whatever, inter alia, intending to be engaged in, inter alia, distribution of, inter alia, natural gas. Petitioner as well as private respondent no.6 can be described as an 'entity'. 'Any other person' is not defined. 'Any other person' here could also be said private respondent, as it cannot be the oil company. This Court is unable to appreciate that challenge by writ petition under article 226 of the Constitution of India against an authority would amount to a dispute between tenderers or a tenderer and a private person for it to be covered by section 12 of PNGRB, 2006 Act. So far as section 42 of said Act is concerned, there is no dispute regarding power of Central Government to issue directions. The question unanswered is whether observations of Minister of State are guidelines to be followed by Oil Marketing Company. That need not detain this Court any further because both the Oil Company and said private respondent have referred to revised guidelines of March, 2015.
Court finds petitioner is entitled to relief. Supreme Court in Amarjeet Singh & Ors. vs. Devi Ratan (supra) was dealing with controversy regarding seniority consequential to promotion which promotion was not challenged. Supreme Court said challenging consequential order without challenging basic order is not permissible. Petitioner's case here is, she was declared eligible candidate with one other for determining her fate on draw. Thereafter, other candidates, declared ineligible earlier, were made eligible to be included in the draw. It is this act of the Oil Company which has been challenged. So far as petitioner's knowledge, regarding draw would include 13 earlier declared ineligible candidates is concerned, and her participation, facts recorded above including those as appearing from pleadings are there for Court to act in giving relief to petitioner. The Oil Company has been unable to demonstrate petitioner was made known how or why there would be more than two candidates up for draw regarding appointment. Inference, in the facts and circumstances is that petitioner when presented herself at time of draw found earlier ineligible candidates were also made part of the draw. A draw by a person picking out a name amongst many is a momentary affair. Those facts and circumstances make inapplicable D. Sarojakumari (supra) to this case.
Writ petition succeeds. Impugned memo dated 24th May, 2016 is set aside and quashed. The Oil Company is directed to proceed with draw on eligible candidates declared by communication dated 8th January, 2015. The draw is to be held within a period of four weeks from date of communication of this order.
Writ petition is disposed of.
(Arindam Sinha, J.)