Punjab-Haryana High Court
Vinod Kumar vs Indian Oil Corporation And Others on 7 February, 2013
Author: Rajiv Narain Raina
Bench: Rajiv Narain Raina
Civil Writ Petition No.542 of 2013 (O&M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Civil Writ Petition No.542 of 2013 (O&M)
Vinod Kumar ...... Petitioner
Versus
Indian Oil Corporation and others ...... Respondents
And
Civil Writ Petition No.1335 of 2013 (O&M)
Shika Trehan ...... Petitioner
Versus
Indian Oil Corporation and others ...... Respondents
Date of Decision: 07.02.2013
CORAM:- HON'BLE MR. JUSTICE RAJIV NARAIN RAINA
Present: Mr. B.S. Bhalla, Advocate for the petitioner.
Mr. Ashish Kapoor, Advocate for the respondents.
1. To be referred to the Reporters or not?
2. Whether the judgment should be reported in the Digest?
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RAJIV NARAIN RAINA, J.
C.M. Nos.999-1000 of 2013 Prayer in the application is not opposed. Documents and judgments are taken on record.
Civil miscellaneous applications stand disposed of. Main cases This order will dispose of CWP No.542 of 2013 and CWP No.1335 of 2013 as the controversy is the same in both these cases. For convenience, the facts are being referred from CWP No.542 of 2013.
The respondent-Indian Oil Corporation (for short "IOC") issued an advertisement dated 24.12.1997 inviting applications for appointment of distributorship of LPG in Civil Lines Area, Ludhiana-B. About 50 persons applied for distributorship. The selection did not Civil Writ Petition No.542 of 2013 (O&M) 2 materialize and a fresh advertisement was issued after two and a half years inviting fresh applications. However, there was a stipulation in the fresh advertisement that the applications already received in pursuance to the advertisement dated 24.12.1997 would be kept alive but the candidates would have to submit the application forms afresh. The petitioner and others applied afresh. The petitioner received a call letter dated 30.3.2001 to appear in an interview fixed for 17.4.2001 before the Dealer Selection Board. He appeared. The result was declared on 17.4.2001 and the petitioner was placed at serial No.1 in the select list. The unsuccessful candidates at serial No.2 challenged the selection through CWP No.6133 of 2001; Nardeep Kumar Maheshwari v. Indian Oil Corporation and others. The petitioner was arrayed as the fourth respondent in the writ petition. During the pendency of the petition letter of intent was issued in favour of the petitioner when IOC conveyed its intention to offer distributorship at Civil Lines, Ludhiana-B to him on certain terms and conditions. After completion of formalities, respondent-IOC issued appointment letter on 30.7.2001 in favour of the petitioner appointing him as the distributor of Indane Gas at Civil Lines, Ludhiana-B. This Court by its judgment dated 1.3.2002 allowed the writ petition filed by Nardeep Kumar Maheshwari. The appointment of the petitioner as distributor was quashed and a direction was issued that IOC would award distributorship to Nardeep Kumar Maheshwari at serial No.2 of the select list. Aggrieved, both the petitioner and the IOC filed separate SLPs against the orders of this Court being SLP (Civil) No.9266 of 2002 and SLP No.9511 of 2002 respectively. On 9.5.2002, the Supreme Court issued interim orders staying the operation of the impugned judgment Civil Writ Petition No.542 of 2013 (O&M) 3 passed by this Court. The Supreme Court decided both the SLPs vide common order dated 18.11.2002 directing IOC to consider the claim of all the applicants afresh within three months in accordance with law. However, the petitioner was allowed to operate the dealership till conclusion of the fresh exercise. The operative part of the directions of the Supreme Court in its order dated 18.11.2002 are reproduced:
"In our view, once the High Court has come to the conclusion that the assessment as well as the approach adopted by the Chairman of the Selection Board stood vitiated, it should be necessary to quash the selection and allow the Indian Oil Corporation and the concerned authorities to undertake the process of selection afresh, of all the applicants and the same cannot be confined to the writ petitioner before the High Court. Accordingly, the High Court in exercise of its jurisdiction under Article 226 of the Constitution of India ought not to have directed the allotment of distributorship to the writ petition.
As a consequence, we are of the view that the respondent- Indian Oil Corporation shall consider the claim of all the applicants afresh within three months in accordance with law on a proper assessment of the merits of the respective candidates, before allotting the distributorship.
Till such time, the new selection arid allotment is made, the appellant, who has already commenced and operating the dealership, will continue to do so." (underlined for emphasis) In implementation of the orders of the Supreme Court, respondent-IOC started the selection process afresh for grant of distributorship. The petitioner and other candidates were called for an interview on 21/22.11.2003. The result of the interview was declared on 22.11.2003 itself in which Shri Ashok Kumar Bajaj was placed at serial No.1, Shri Avininder Pal Singh Sandhu at serial No.2 and the petitioner at serial No.3 in the list of successful candidates.Civil Writ Petition No.542 of 2013 (O&M) 4
Aggrieved by the change in result, the petitioner made a complaint against the selection of Ashok Kumar Bajaj which was considered at the highest quarters. The report on the complaint of the petitioner went in his favour and he was informed by letter dated 13.5.2004 that the interview held on 21.3.2003 had been scrapped and fresh selection would be undertaken.
Aggrieved by the scrapping of the select list, Shri Ashok Kumar Bajaj approached this Court by filing CWP No.8959 of 2004. This Court by an interim order upon issuing notice of motion directed that the interviews of the said site- Civil Lines, Ludhiana-B would continue but the result would be withheld till final decision of the writ petition.
Consequently, the petitioner and others were called for a third interview on 16/17.6.2004.
Before the interview could be conducted on 16/17.6.2004, one Navdeep Kumar acting on behalf of the residents of Civil Lines, Ludhiana, filed a representation before the Chairman, Selection Committee, IOC, Chandigarh stating that Nardeep Kumar Maheshwari did not have the required infrastructure facilities to set up the showroom and godown and had produced false and fabricated documents before the committee in order to obtain the allotment. The interviews were held but the result was not declared in terms of the orders of this Court. It is pleaded that one Shri R.S. Setia who was the Chairman of the previous Selection Committee had been charge-sheeted on the basis of the inquiry held at the highest quarters in pursuance to the complaint made by the petitioner and was the Deputy General Manager, IOC, Chandigarh at the time the third interview was held.
It is alleged that Mr. Setia nourished a grudge against the petitioner.Civil Writ Petition No.542 of 2013 (O&M) 5
Civil Writ Petition No.8955 of 2004 filed by Ashok Kumar Bajaj was finally decided by the Division Bench of this Court vide order dated 28.2.2006 (Annexure P-11). The following order was passed:
"We have perused order Annexure R-1/1 wherein cogent reasons have been given for ordering a fresh selection. We have also been informed that fresh selection has already been made and the petitioner has participated therein.
The writ petition is accordingly disposed of. Moreover, we make it clear that in case the petitioner is not found to have been selected for the LPG distributorship in the fresh selection, he will be at liberty to challenge the same. The respondents are at liberty to unseal the result of the selection including the mark sheet."
The sealed cover of the withheld result was opened on 16.3.2006. Shri Nardeep Kumar Maheshwari was placed at serial No.1 while Smt. Veena Aggarwal and Shri Vijay Jindal were placed at serial Nos.2 and 3 respectively.
Aggrieved by the result of the selection, the petitioner filed CWP No.5841 of 2006 which was disposed of by the Division Bench of this Court vide order dated 2.5.2006. This Court passed the following order:
"The petitioner is aggrieved against the placing of respondent No.3 at Serial No.1 in the Selection List prepared by the Selection Committee.
After hearing the learned counsel for the petitioner at some length, we find that the grievance made by the petitioner is wholly premature.
On his own showing certain complaints had already been addressed to the authorities by various persons, including the local authorities. In this view of the matter, the petitioner would be at liberty approach the competent authority making a grievance and bringing to its notice the grievance made by him in the present petition.
We have no hesitation that if any such representation is made to Civil Writ Petition No.542 of 2013 (O&M) 6 the competent authority, the same shall be taken into consideration by the competent authority before proceeding any further. Consequently, the present petition is disposed of as premature."
The petitioner thereafter made a spate of representations. In this background, the respondent-IOC placed a fresh advertisement dated 10.9.2011 in the print media/newspaper The Tribune inviting applications for distributorship consequential to the order of the Supreme Court passed in 2002 in the two SLPs. Several locations were advertised in the State of Punjab including disputed distributorship for Civil Lines, Ludhiana-B in the open category. This advertisement was issued against terminated distributorships and earlier locations for which no suitable candidates have been found and the merit lists finally stood exhausted/cancelled. Applications were invited from all and sundry who answered the eligibility criteria laid down.
Against the advertisement, the petitioner made a representation to the Chairman IOC. In the complaint, it was represented that the advertisement qua the distributorship in dispute was in violation of the orders of the Supreme Court dated 18.11.2002. A request was made for withdrawal of the advertisement qua LPG distributorship at Civil Lines, Ludhiana-B. A request under the Right to Information Act, 2005 was made by a separate application asking for information and copying of the note prepared by the Competent Authority of IOC together with the approval note on the basis of which the advertisement was issued, and all other relevant documents, legal opinion and any decision from any Court etc on the basis of which advertisement was issued duly approved by the management.
Be that as it may, the petitioner applied under the fresh Civil Writ Petition No.542 of 2013 (O&M) 7 advertisement. Aggrieved by the impugned advertisement dated 10.9.2011, the petitioner again approached this Court through CWP No.4535 of 2012 praying for quashing of the advertisement qua the disputed site of LPG distributorship. This Court by order dated 15.3.2012 passed the following order:
"After arguing the matter at some length, learned counsel for the petitioner seeks and is permitted to withdraw this petition with liberty to pursue his representation already made to the authorities."
In response to the application under the impugned advertisement, the petitioner received a letter dated 12.10.2012 from respondent-IOC in which the following warning was issued:
"You have modified clauses 3, 4, 6 and 8 in appendix-I affidavit. Kindly re-submit it as per advertised format. 2) You have mentioned lease holder/owner of godown land at column-9 in the application in the name of Sh. Shavinder Kumar and Ms. Vijay Rani and also mentioned relationship as "Parents", who are not a family member. You have mentioned as per lease deed attached at field Khasra no/Survey at column-9 but not mentioned khasra number. Kindly clarify it. 3) You have mentioned lease holder/owner of showroom at column-10 in application in the name of Sh. Prem Kumar and also mentioned relation as "N.A"
which does not clarify the relationship with applicant. You have mentioned as per lease deed attached at field Khasra no/Survey at column-10 but not mentioned khasra number. Kindly clarify it. 4) You have not mentioned FDR date at column-12 in application. Kindly clarify it. You can also visit at our office along with your photo ID proof issued by Central/State Government for any clarification on the above stated discrepancies in the application. In case you do not comply with the above by:5.11.2012 your application will be treated as ineligible."
The letter contained a list of things to do. Clause 4 of the affidavit required to be filled contained the following relevant proforma: Civil Writ Petition No.542 of 2013 (O&M) 8
"That I am married and name of my spouse is ______. That neither I nor my spouse, unmarried son(s)/unmarried daughter(s) have dealership/distributorship or hold letter of Intent for Retail outlet or SKO-LDO dealership or LPG distributorship or RGGLV of any Oil Company."
The petitioner made a request letter for clarification in response to the letter of warning which was responded to by the respondent- corporation demanding fresh affidavit in Appendix-I in correction of the earlier affidavit filed. It would be necessary to advert to the material clause of the affidavit of Shikha Trehan wife of the petitioner dated 7.10.2011 in the connected case. It may be mentioned that the original LOI issued in favour of the petitioner was in twin names, the petitioner and a third party. Since the third party had walked out of the partnership, the petitioner sought to include his wife's name at an earlier stage in substitution of the name of the third party. To return to the affidavit in para 4, the following was sworn:
"That I am married and the name of my spouse is Mr. Vinod Kumar Trehan. That my husband was earlier declared selected by the Indian Oil Corporation Ltd for the LPG Distributorship of the area Ludhiana-B (Civil Lines) Ludhiana but later on the litigation went up to the Hon'ble Supreme Court where the Hon'ble Supreme Court had passed the following direction in SLP No.9266 of 2002. "As a consequence, we are of the view that the respondent- Indian Oil Corporation shall consider the claim of all the applicants afresh within three months in accordance with law and on a proper assessment of the merits of the respective candidates, before allotting the distributorship. Till such time, the new selection and allotment is made, the appellant, who has already commenced and operating the dealership, will continue to do so. The appeals are disposed of in the above terms."
That thereafter Indian Oil Corporation held interview twice, but, Civil Writ Petition No.542 of 2013 (O&M) 9 the selection of candidates was cancelled for one reason or the other. That as per the Orders of the Hon'ble Supreme Court my husband Mr. Vinod Kumar Trehan is continuing and operating the distributorship till the new selection and allotment is made." Clause 4 of the proforma affidavit of Shikha Trehan is identical to that of in the case of the petitioner and reads as follows:
"That I am unmarried. That neither I, nor my Father, Mother, unmarried brother(s), unmarried sister(s) have dealership/distributorship or hold Letter of Intent for Retail Outlet or SKO-LDO dealership or LPG distributorship or RGGLV of any Oil Company.
OR That I am married and name of my spouse is _________. That neither I nor my spouse, unmarried son(s)/unmarried daughter(s) have dealership/distributorship or hold letter of Intent for Retail Outlet or SKO-LDO dealership or LPG distributorship or RGGLV of any Oil Company."
The entire matter culminated in passing of the impugned order dated 2.1.2013 declaring the petitioner ineligible for grant of LPG distributorship on the ground that contents of Clause 4 of the affidavit Appendix-I have not been complied with. The petitioner was stated to have not disclosed complete information as per the advertised format despite ample opportunity provided to submit a revised affidavit. The impugned letter reads as follows:
"Please refer to our letter reference NI/CAO/017 dated 12.10.2012 and clarification submitted by you vide your letter dated 5.11.2012 on the subject.
We regret to inform you that your candidature has been found to be eligible for LPG Distributorship as:
In the appendix-I affidavit, where in you have omitted the contents of Clause-4 i.e. you are silent/not mentioned regarding any LOI held by your spouse, unmarried Son(s) and unmarried Daughter(s). This implies that you have not disclosed complete information in Civil Writ Petition No.542 of 2013 (O&M) 10 appendix-I affidavit as per advertised format even after providing you ample opportunity to do so.
Thanking you Yours faithfully For Indian Oil Corporation Ltd.
Sd/-Rajeev Sharma, Senior Area Manager."
Against the impugned order dated 2.1.2013, the present petition has been preferred.
On notice of motion having been issued on 14.1.2013, Mr. Ashish Kapoor, Advocate, has entered appearance for the respondent- corporation. A written statement has been filed. A preliminary objection has been taken that there is non disclosure of the order passed by the learned Single Judge of this Court dated 15.3.2012 in CWP No.4535 of 2012. A reading of the writ petition discloses that there is a mention of that writ petition in formal paragraph 25 and the order passed by this Court has also been reproduced. However, there is no narration of that fact in the substantive body of the writ petition. Nor has that fact been adverted to in the list of dates and events. Therefore, it can be said that the order of this Court has not been highlighted articulately.
Mr. Kapoor Submits that the relationship affidavit was not as per Appendix-I of the advertisement. The Appendix-I pertains to multiple dealership norms i.e. a candidate cannot be considered for award of retail outlet dealership/distributorship if he/she or any of his/her family family member in the family unit as defined in the Clause 7.1(iv) is already beneficiary of dealership/SKO agency/LPG distributorship of any oil company. Declaration is issued in the form of an affidavit. The format of which is printed and made part of the advertisement/brochure. The same cannot be departed from. The family units consists of spouse, unmarried Civil Writ Petition No.542 of 2013 (O&M) 11 son(s)/daughter(s). There is no mention in the affidavit that neither the petitioner nor his spouse etc have any dealership/distributorship or possess a Letter of Intent.
Mr. Kapoor submits that in the process of scrutiny of applications, it was found that the petitioner had not only modified Clause 3,4,6 and 8 of Appendix-I (Affidavit) but had also not divulged the full information in line with the policy of IOC. Accordingly, a letter dated 12.10.2012 was sent to the petitioner with a request to re-submit the affidavit after due correction and disclosure of full information as per proforma of Appendix-I affidavit given in the Brochure on Guidelines for Selection of LPG Distributors-April, 2011. The petitioner resubmitted an affidavit dated 31.10.2012. On further scrutiny, it was found that the resubmitted affidavit also did not contain the clause regarding any LOI held by his family as defined in "Family Unit" in the result, clause 4 of the affidavit remained the same as submitted earlier without correction. It is non conformity to Clause 4 of Appendix-I that has led to the passing of the rejection letter. Besides, under the impugned advertisement, the wife of the petitioner had also separately applied for the same correction which also contained similar defects. Clause-4 of her affidavit is in the same terms as that submitted by the petitioner which has led to rejection of her candidature as well. The affidavit submitted by the petitioner's wife has been placed on record as Annexure R-1/1. Mr. Kapoor would also refer to Clause 22 of the terms and conditions which deal with false information. The same reads as follows:
"22. False Information If any statement made in the application or in the documents enclosed therewith or subsequently submitted in pursuance of the Civil Writ Petition No.542 of 2013 (O&M) 12 application by the candidate at any stage is found to have been suppressed/misrepresented/incorrect or false affecting eligibility, then the application is liable to be rejected without assigning any reason and in case the applicant has been appointed as a distributor, the distributorship is liable to be terminated. In such cases the candidate/distributor shall have no claim whatsoever against the respective Oil Company."
False information is inferred if it is found that any statement made and any information has been suppressed/misrepresented/incorrect or false affecting eligibility then such an application is liable to be rejected without assigning any reason.
This according to Mr. Kapoor is subject to Clause 9.5 of the guidelines which lays down the procedure for receipt of applications and which provision gives ample chance to an applicant to remove deficiencies found in the application. Since the petitioner was duly informed of the deficiency and had been requested/reminded to rectify it within a specified period of time, the petitioner can have no valid grievance. The petitioner, therefore, does not deserve consideration by treating him eligible because there may be a large number of similarly situated persons who might have been declared ineligible on the basis of the requirements of the advertisement or capable of being rejected.
Mr. Kapoor has further placed reliance on a decision of this Court in CWP No.19396 of 2009; Jasbir Singh Gill v. M/s Indian Oil Corporation Ltd. decided on 2.5.2011 to contend that any sympathetic consideration shown to a candidate to hold him eligible would mean that large number of similarly situated persons would be differently treated whose cases may have been rejected on the ground that they had not submitted a complete application or information alongwith the application Civil Writ Petition No.542 of 2013 (O&M) 13 form. Incomplete applications according to him deserve to be rejected at the threshold after scrutiny and chance to remove discrepancies is given.
In M/s Indian Oil Corporation Limited v. Raj Kumar Jha, a division bench of the Patna High Court has held that once the standard is set out in the advertisement, the Corporation has to adhere to the said standard without any variation. In case, the Corporation allows any alteration the same will amount to subjective approach which is frowned upon by the Courts time and again.
Mr. Bhalla, learned counsel for the petitioner has not been able to specifically explain why a departure was made by the petitioner avoiding conformity with the printed format. It has not been explained as to why the petitioner was standing on ceremony and insisting that his affidavit Appendix-I should be accepted from the petitioner's point of view.
After hearing the learned counsel for the parties at considerable length this court is of opinion that the import of the order dated 15.3.2012 passed by this Court in the petitioner''s writ petition would work as a constraint on this Court in the challenge laid to the impugned advertisement. In any case, the petitioner has acquiesced in consideration of his candidature under the impugned advertisement by applying and therefore, by waiver he would be deemed to have given up challenge to the advertisement. In any case, the order dated 15.3.2012 if not suppressed has not been highlighted either in the list of date and events and in the substantive body of the writ petition and has been swept under the carpet of formal paragraph 25. The fact that the petitioner has continued to operate the LPG distributorship for 10 years in terms of the judgment of the Supreme Court will not settle any equitable rights on him for award of distributorship. Departure from Civil Writ Petition No.542 of 2013 (O&M) 14 prescribed format is a material circumstance against the petitioners in both cases. It is settled that when a thing is required to be done in a particular manner it should be done in that manner or not at all. It may not be an answer to departure from prescribed format to say that it would make no difference at all on merits. If this departure is allowed or permitted by Court it may have serious reprecussions affecting third party rights who may have adhered to the prescribed format and had an equal right to consideration for award of a benefit. It may also lead to devastation of all formats enjoined by law in myriad fact situations under different statutes, rules, covenants, advertisements, public notices calling for collective consideration of distribution of State largesse etc. The petitioners were given reasonable latitude under Clause 9.5 to correct the affidavit Appendix-I to bring it in sync with the printed format. The resubmitted affidavits alas suffered from the same defects pointed out earlier. The contention of Mr Bhalla that both the petitioners could not have a son or daughter old enough for grant of dealership or LOI given their age may sound attractive but deserves to be rejected in view of the finding supra that prescribed formats/ Appendix-I Affidavit cannot be departed from for any reason or explanation. If an explanation was found desirable for consideration it could have been added on a seperate sheet and appended to the application.
The last serious issue canvassed before this Court is to the interpretation of the Supreme Court's order dated 18.11.2002 and whether it can be construed as confining the competition to the original applicants or permits fresh entrants in the fray who may equally have a precious right of consideration for award of dealership in Civil Lines Area, Ludhiana-B. I do not find any specific word in the Supreme Court's order confining contest Civil Writ Petition No.542 of 2013 (O&M) 15 to those who were before the Court. In fact indication is to the contrary. Nor could the Court have imagined that the implementation of its orders would take ten years for any reason. I, therefore, reject the argument of Mr. Bhalla that the competition has to be restricted to the petitioner and his co- applicants under the old advertisement.
For the foregoing reasons, challenge to the advertisement is repelled. I do not find any merit in the present and connected petition warranting interference on facts and the same are dismissed leaving the parties to bear their own costs.
( RAJIV NARAIN RAINA ) JUDGE 07.02.2013 rajeev