Calcutta High Court (Appellete Side)
Prashanta Kumar Saha vs The Union Of India & Ors on 22 August, 2019
Author: Debangsu Basak
Bench: Debangsu Basak
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In The High Court At Calcutta
Constitutional Writ Jurisdiction
Appellate Side
Present : The Hon'ble Mr. Justice Debangsu Basak
W.P. No.19210 (W) of 2018
Prashanta Kumar Saha
-vs-
The Union of India & Ors.
Mr. Kumarjyoti Tewari
Ms. Rajlakshmi Ghatak ... for the petitioner.
Mr. Puspendu Chakraborty ... for BPCL.
Mr. Ayan Kumar Boral
Mr. Narayan Debnath ... for the respondent no.4.
Heard on : August 22, 2019 Judgment on : August 22, 2019 The Court:- Affidavits filed in Court be taken on record. An order dated August 21, 2018 of the respondent no.3 relating to appointment of distributorship of Liquefied Petroleum Gas (in short 'LPG') is under challenge in the present writ petition.
Learned Advocate appearing for the petitioner submits that, the petitioner and the private respondent participated in the process for selection of LPG distributorship undertaken by the Oil Company. The private respondent does not fulfill the eligibility condition. The Oil Company nonetheless accepted the candidature of the private respondent.
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Learned Advocate appearing for the petitioner submits that, the Oil Company ought to have undertaken a draw of lots after looking into the eligibility certificate issued. In the present case, the Oil Company did not do so. Therefore, the selection of the private respondent stands vitiated.
The Oil Company and the private respondent are represented. The selection process of distributorship for LPG distributorship is guided by Unified Guidelines for Selection of LPG Distributors. The relevant potion of such brochure is as follows:-
"C. Specific Eligibility Criteria for different Sub-categories:
a. Government Personnel (GP) Applicants eligible under 'SC/ST', 'OBC' and 'Open' category as specified above can apply for 'Sheheri Vitrak, Rurban Vitrak, and Gramin Vitrak under respective "GP' Sub-category on fulfilling the following conditions:
i. Defence Personnel 'Defence Personnel' means personnel of armed forces (viz. Army, Navy and Air Force) and covers widows / dependents of those who died in war, war disabled, disabled during performance of official duty, widows / dependent of those members of Armed Forces who died in harness due to attributable causes and disabled in peace due to attributable causes and ex-servicemen.
In case of widows / dependents of those who died in war, only one member (either widow or dependent) of the deceased Defence Personnel can claim reservation.3
Candidates applying under the category belonging to Defence (Army, Navy and Air Force) should submit the DGR certificate in original, at the concerned officer / before the commencement of draw of lots, the Eligibility Certificate issued from the Directorate General of Resettlement (DGR), Ministry of Defence and Govt. of India sponsoring the candidate for the LPG Distributorship for which he/she has applied. Certificate of eligibility issued by DGR for one LPG Distributorship location is not valid for another LPG Distributorship location and, therefore, a candidate can be considered to be eligible only if he/she has been sponsored for the particular location with reference to the current advertisement."
Such brochure also lays down a procedure for draw of lots. Such procedure of draw of lots is at Clause 16, which is as follows: -
"16. PROCEDURE FOR DRAW OF LOTS:
I. Information will be sent to the eligible candidates through email / SMS to report for draw of lots for selection of LPG Distributor at a specified venue, date and time. II. The notice with regard to the draw would be published before the date of draw in the same newspapers in which the advertisement for appointment of LPG Distributor was initially published.
III. Attendance of all the applicants who have reported for draw, shall be recorded, after verifying their identity through a POI (Proof Of Identity - any one of the documents Passport, Driving License, Voters' Identity Card, PAN Card, Aadhaar Card issued by UIDAI or NREGA Job Card). Applicants should sign the attendance sheet. Draw of lots will be conducted in the presence of only available eligible candidates. However, there 4 is no minimum quorum specified for conducting the draw of lots.
IV. Two officials of the concerned OMC will coordinate the computerized draw. NIC / MSTC Ltd. Officials will conduct the computerized draw, available candidates and the invited guest. V. The invited guest will be requested to initiate the process of computerized draw of lots for a particular location. VI. List of eligible applicants of the location selected for the draw, from whom the draw of lots shall be conducted will be displayed on the screen along with the serial number and the name of applicant.
VII. Successful candidate will be selected from amongst the eligible candidates on random basis.
VIII. The application serial number and name of the successful candidate would be declared for the LPG distributorship for the location.
IX. The entire proceedings of the draw will be video graphed and the following information will be captured:
1. List of eligible candidates with application numbers
2. The details of the successful candidate displayed on the screen and captured by the video camera with the serial number and name of the applicant.
X. The result of the draw will be available on the website www.lpgvitarakchayan.in after the draw of lots. It would also be hosted on the website of the respective Company."
According to the Oil Company, BPCL conducted the draw of lots on an erroneous understanding of the terms and conditions of the brochure. The Oil Company proceeded to undertake the draw of lots without verifying the eligibility certificate.
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It appears from the records made available to Court that, the Oil Company prepared a panel of selected candidates where the private respondent was placed as serial no.1 and the petitioner as the serial no.2. The panel was prepared on a draw of lots. However, admittedly, the eligibility certificate of the persons amongst whom the draw of lots were conducted were not considered prior to the draw of lots.
Clause (C) of the brochure requires that, a candidate to submit the eligibility certificate before the commencement of the draw of lots. In my view, the eligibility certificate should be considered before the draw of lots. Consideration of the eligibility certificate before the draw of lots is imperative so as to ensure that the draw of lots is limited to the person exclusive to the class of persons for which the distributorship is reserved. The draw of lots will prepare a panel. In a given case, if the eligibility certificate is not considered before the draw of lots then, persons who are ineligible to participate in the draw of lots will be allowed to participate. Participation of persons in the draw of lots who are ineligible will affect the chance of an eligible candidate to succeed in a proportionate manner. Therefore, it is imperative, that the eligibility of the participants in the draw of lots must be scrutinized before the draw of lots takes place. In the present case, since the Oil Company did not consider the eligibility certificate of the candidate participating in the draw of lots prior to the commencement thereof, the panel prepared by the Oil Company stands vitiated. The entirety of the panel, therefore, has to be quashed. 6
Learned Advocate appearing for the petitioner relies upon (2014) 16 SCC 790 (Chairman cum Managing Director Indian Oil Corporation Limited & Ors. v. Sunita Kumari & Another) in support of the contention that, in every case, the panel prepared need not be cancelled. The second empanelled candidate can be granted the distributorship. In the present case, since the petitioner is the second empanelled candidate and is the only other candidate available, the distributorship granted to the petitioner.
Sunita Kumari and Another (supra) relies upon a previous decision of the Supreme Court reported at (2014) 16 SCC 538 (Rajesh Kumar Tiwary v. Union of India & Ors.) and notes the view of such judgment. Essentially, it is of the view that, when a merit list prepared by the selection board stands vitiated due to influence of extraneous consideration, the second empanelled candidate cannot seek a mandamus for allotment. In the present case, as the preparation of the panel stands vitiated a mandamus directing grant of LPG distributorship to the petitioner would tantamount to accepting the panel in the same breath while quashing the same. Such a direction by the Court would amount to perpetuation of the illegality committed by the Selection Board. In the present case, since the draw of lots stands vitiated for the reasons, as noted above, the panel on the basis of such draw of lots would also consequently stands vitiated. In the present case, it would be appropriate to cancel the entire panel prepared through the process of a draw of lots which stands vitiated. The Oil Company will proceed to hold a draw of lots amongst the candidates who are eligible after 7 considering the eligibility certificate. In the event, the petitioner is the only person found eligible, needless to say that, the Oil Company will act in accordance with law with regard thereto.
In such circumstances the impugned decision of the respondent no.3 is quashed. The allotment in favour of the private respondent stands quashed. The Oil Company will take appropriate steps with regard to the selection process within a period of four weeks from the date of communication of this order.
W.P. No.19210 (W) of 2018 is disposed of without any order as to costs. Urgent website certified copies of this order, if applied for, be made available to the parties upon compliance of the requisite formalities. SR (Debangsu Basak, J.)