Supreme Court - Daily Orders
Abhishek Kumar vs Hindustan Petroleum Corp.Ltd.. on 29 March, 2016
Bench: V. Gopala Gowda, Arun Mishra
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IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 3230-3231 OF 2016
(Arising out of SLP(C)Nos. 27522-27523/2011)
Abhishek Kumar Appellant (s)
VERSUS
The Hindustan Petroleum Corpn.
Ltd. & Ors. Respondent(s)
WITH
CIVIL APPEAL NOS. 3234-3235 OF 2016
(Arising out of SLP(C)Nos. 19648-19649/2012)
O R D E R
Heard learned senior counsel for the parties. Leave granted.
The correctness of the common judgment and order dated 6.4.2011 passed in LPA No.672 of 2010 and LPA No. 634 of 2010 by the Division Bench of the High Court of Judicature at Patna is under challenge in these civil appeals by the appellant.
Questioning the correctness and legality of the said common judgment and prayed to set aside the same by allowing the appeals and restore the judgment and order Signature Not Verified Digitally signed by Suman Wadhwa Date: 2016.04.08 passed in CWJC Nos. 15113 and 11413 of 2009. 16:05:18 IST Reason:
The relevant brief facts are as under: 2
The appellant pursuant to the advertisement made by the Hindustan Petroleum Corporation Ltd. (in short “HPCL”) invited applications for awarding LPG distributorship of 13 locations including one, namely, Hajipur. The appellant herein submitted the application along with other applicants including respondent No.7 and the appellant Rameshwar Prasad Choudhary in the connected civil appeals arising out of special leave petition nos. 19648-19649/2012. Interviews were held on 28.3.2008 and results were declared on 29.3.2008 and the appellant has been empaneled at serial no.1 in the merit panel on the basis of evaluation of all aspects which were required to be considered and the appellant was selected as a successful candidate for awarding LPG distributorship by the HPCL. After the main panel list was published, field verification was made by the HPCL Officers on 27.1.2009. Though the appellant's name was found place at serial no.1 in the merit list, the Letter of Intent was not issued. Hence, the appellant filed a writ petition bearing CWJC No. 12405/2009 seeking for issuance of a writ of mandamus to the HPCL. During the pendency of the said writ petition Letter of Intent was issued to respondent No.7 that was followed by another order dated 3.9.2009 issued to the appellant herein intimating him pursuant to the application in response to the HPCL's advertisement (referred supra) for awarding new LPG distributorship at Hajipur District of Vaishali that while the HPCL's Officers proceeding further 3 for selection for LPG distributorship observed some major discrepancies during the field verification with regard to the information provided by him viz.-a-viz. application for the distributorship which is in gross violation of terms and conditions of the selection undertaking given by him in his application form. As a result, he was informed that he had lost the merit position in the merit panel which was feasible subsequent to the interview and they expressed their inability to proceed further. Therefore, he was informed that his application is rejected as statement made in his application and documents enclosed therewith are subject to verification of the information provided by him are held to be incorrect or false. By saying so it has not been specifically spelt out what are the major discrepancies and what are the incorrect informations furnished by the appellant in his application. The correctness of the same was questioned by filing another writ petition before the High Court of judicature at Patna urging various legal contentions contending that the said order is not legal and valid and the same has been passed without any basis and requested for quashing the same.
The learned single Judge vide his judgment and order dated 25.2.2010 passed in CWJC No.15113/2009 allowed the writ petition. The learned single Judge of the High Court after examining the rival legal contentions examined the correctness of the removal of the appellant's name from the merit list along with claim made by the appellant in 4 the connected appeals. The learned single Judge has held that the claim of the appellant has been defeated on a hyper technical ground which would not found to be sustainable by this Court, then the learned single Judge has observed that he failed to understand as to how the officials of the HPCL could be so large hearted and blind to some other statements and facts when it came down to declarations and documentation made by the 7th respondent and further rightly made observation that obviously the HPCL was either under pressure or obligation to accommodate respondent no.7 therefore it has been held that the order of the HPCL against the appellant in ousting him and denying the benefit of appointment and selection as LPG dealership is bad in law. The learned single Judge further has rightly noticed that hardly an explanation coming from the HPCL for disqualification of the appellant i.e. contained in the annexure 5 to the writ petitioners and did not say the ground as to how the appointment of the 7th respondent came to be made earlier and disqualification and removal of the name of the appellant from the merit panel at a subsequent stage. Therefore, learned single Judge has rightly made observation that the said aspect required to be investigated by the Chairman of the HPCL and make an enquiry by its Vigilance Department.
Having ordered so the writ petition filed by the appellant was allowed and the writ petition filed by the Rameshwar Prasad Choudhary, appellant in the connected 5 civil appeals, was dismissed for the reasons recorded in the aforesaid impugned common judgment.
The correctness of the same was questioned by the respondent No.7 by urging various legal contentions. The High Court after examining the correctness of the findings and the legality of the cancellation order dated 3.9.2009, granted the relief as prayed for in the writ petition filed by the appellant herein i.e. LPA No.672/2010 arises out of CWJC No. 15113/2009 and dismissed the LPA No.634/2010 arises out of CWJC No.11413/2009. After hearing the rival legal contentions urged by the parties, at paragraph 3 the Division Bench of the High Court, after adverting to the relevant factual aspects under the order impugned communication issued to the appellant herein by the respondent HPCL stating that in view of the re-evaluation he had lost his position in the merit list and the same is awarded in favour of the 7th respondent herein.
The Division Bench of the High Court after examining the definition of the 'family unit', incorporated in the advertisement after extracting the `family unit' from the advertisement which is in English version is reproduced hereinbelow:
“Family Unit in case of married
person/application shall consist of
individual concerned, his/her Spouse and their unmarried son(s)/daughter(s). In case of unmarried person/applicant, `Family Unit' shall consist of individual 6 concerned, his/her parents and his/her unmarried bother(s) and unmarried sister(s).” It was held that in view of the condition incorporated in the advertisement the said condition in the advertisement was to the knowledge of all concerned and required strict compliance. It was not confined to the guidelines of the Brochure and the applicant was even not aware of it. Thereafter examining the five fixed deposit receipts with regard to the impugned judgment found that the two FDRs' of Sahara furnished by the appellant herein were in the name of mother (Meena Gupta). The learned counsel for the respondent has not placed any emphasis and further it is highlighted that out of 10 FDRs furnished by the appellant, six were in the joint name of mother and the unmarried sister. Therefore, the same was examined by the Division Bench with reference to the advertisement published on 17.10.2007, and 14.11.2007 was the last date for submission of the application. Further it was noticed that the sister got married on 30.7.2005. Photocopies of the fixed deposit receipts are on record, and the name of Neetu Kumari was expunged from the fixed deposit receipts after the last date for submission of the application and the declaration made by respondent 7 No.1 in his application, a photocopy of which is on record, that the aforesaid fixed deposit receipts which were really in the joint names of the mother and the unmarried sister, have been declared to be in the exclusive name of the mother of the appellant erroneously. The declaration given by the appellant to the fact is incorrect and false information and misrepresentation shall incur disqualification from consideration and placed reliance upon the judgment of this Court in A.P. Public Service Commission V. Koneti Venkateswarulu {(2005) 7 SCC 177} in support of the contention that the furnished information in the application is bona fide mistake or in support of the contention that there has been suppression of material fact is incontrovertible. The explanation that it was irrelevant and inadvertence, he further placed reliance upon the judgment of this Court in B S N Joshi & Sons Ltd. v. Nair Coal Services Ltd.
{(2006) 11 SCC 548} at para 66 in support of the proposition of law that the Court could not shut the eyes, the Division Bench also observed that we are also not shutting our eyes towards the new principles of judicial review which are being developed, but the law as it stands now having regard to the principles laid down in the aforementioned decisions may be summarized as 8 under:
“(i) If there are essential conditions, the same must be adhered to;
(ii) if there is no power of general relaxation, ordinary the same shall not be exercised and the principle of strict compliance would be applied where it is possible for all the parties to comply with all such conditions fully.” The aforesaid judgment has been rightly applied to the fact situation and set aside the impugned common judgment and order in allowing the writ petition of the appellant in LPA No. 672/2010 which arises out of CWJC No.15113/09 and LPA No.634/2010 arises out CWJC No. 11413/09 was dismissed and upheld the impugned judgment dated 3.9.2009.
The correctness of the same is questioned in these appeals contending that the order of canceling the distributorship of the appellant is on vague ground. The same cannot be subsequently substantiated by supplementing the reasons in the counter statement that is filed by the HPCL in the writ petition proceedings and the same is totally impermissible in law and placed reliance upon the judgment of this Court reported in 1952 AIR SC 16 in Gordhandas Bhanji'S case, in paragraphs 8 and 9 which are extracted below:
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(8) It will be necessary at this stage to determine whether this was a cancellation by the Commissioner on his own authority acting in the exercise of some power which was either vested in him or of which he bona fide believed himself to be possessed, or whether he merely acted as a post-office in forwarding orders issued by some other authority. We have no hesitation in reaching the conclusion that this is not an order of cancellation by the Commissioner but merely intimation by him of an order passed and made by another authority, namely, the Government of Bombay.
(9) An attempt was made by referring to the Commissioner's affidavit to show that this was really an order of cancellation made by him and that the order was his order and not that of Government. We are clear that public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind; or what he intended to do. Public orders made by public authorities are meant to have pubic effect and are intended to affect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself.
This Court has fairly laid down the principle that the order which is based must sustain or justified on the ground on which it is passed subsequently it does not open by the HPCL to substantiate the same by supplementing its reasons with regard to sustaining the incorrect information regarding fixed deposit amount as required as per the guideline the particular which is furnished in 10 the name of the appellant and the mother originally as on the date of filing application. It was in the name of the appellant and the mother and sister who was married by that time. Some of the FDRs were in the name of mother and the married daughter. Therefore, married daughter is not a family member, and subsequently rectification in the FDRs, in the name of mother, totally impermissible in law. The information furnished in the application form is incorrect information and false declaration, therefore, rejection of the name of the appellant from the merit list dated 3.9.2009 is not correct.
We have considered the counter statement filed between the proceedings before the High Court and also before this Court. It has sought to justify the reasons and grounds on which the appellant's name was cancelled from the merit list on evaluation.
The learned single Judge has rightly referred to the grounds on which they sought to justify the cancellation order and it is held that is totally not traceable in the order. Therefore, the learned single Judge rightly rejected the said contention by recording the reasons and found fault with the action of the 4th respondent in cancelling the name of the appellant from the merit list and selecting 7th respondent without examining the 11 merits and demerits of his candidature though his name was found at serial No.2. The learned single Judge had rightly made certain observations and directed the Chairman to investigate into the matter.
We have carefully examined the reasoning of the Division Bench in the impugned judgment. Having regard to the reasons mentioned in the cancellation order dated 3.9.2009, it is very clear that there is no specific ground urged for cancellation of the candidature of the appellant from the merit list after issuing Letter of Intent in favour of the 7th respondent on 30th July, 2009 when the appellant had earlier filed writ petition seeking writ of mandamus for issuing the Letter of Intent in favour of the appellant whose name was found place in the merit list at serial No.1, after scrutiny and evaluation of all aspects required to be considered for awarding LPG distributorship, in the absence of specific grounds to be mentioned for the cancellation of the name of the appellant from the merit list on the vague allegation that the statement made in the application and documents enclosed therewith, and on subsequent field verification and information provided by the appellant, are found to be incorrect or false. The Division Bench on the 12 basis of the submission made by the respondent HPCL found that the reasons subsequently invented regarding the FDR in the name of mother and the sister who is married on the date of submission of the application is not correct information and with regard to the FDR amount required to be processed by the appellant on the date of application. The said reason is a new ground which is invented for the purpose of justifying the cancellation order intimating the cancellation of the candidature of the appellant from the merit list is totally impermissible in law. This statement of law is found by this Court in the case of Gordhandas Bhanji's (Supra). The principle has been reiterated in catena of cases by this Court. On this ground alone the appeal of the appellant must be allowed and we order accordingly and set aside the impugned judgment and order by allowing the LPA No. 672/2010 and affirming the impugned order dated 3.9.2009 for cancellation of candidature of the appellant is not legally correct. We restore the order of the learned single Judge dated 25.2.2010 and further issue a writ of mandamus to the HPCL & its office directing the respondent to issue a Letter of Intent in favour of the appellant by awarding the LPG distributorship to him within the reasonable time of six weeks from the date of receipt of this 13 order.
Since we have allowed the civil appeals filed by the appellant connected civil appeals filed by the another appellant - Rameshwar Prasad Choudhary, whose name was found in the merit list at serial No.3, for the same reasons his appeals are liable to be dismissed accordingly.
In the result, we have set aside the judgment and order of the Division Bench in LPA Nos. 672 and 634 of 2010 and restore the judgment and order passed in CWJC Nos. 15113 and 11413 of 2009 by the learned single Judge, implement the same within six weeks from the receipt of the copy of this judgment and order.
........................J. (V. GOPALA GOWDA) ........................J. (ARUN MISHRA) New Delhi;
Date: 29.03.2016.
ITEM NO.15 COURT NO.9 SECTION XVI
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Petition(s) for Special Leave to Appeal (C) No(s).
27522-27523/2011
(Arising out of impugned final judgment and order dated 06/04/2011 in LPA No. 672/2010 06/04/2011 in LPA No. 634/2010 passed by the High Court Of Patna) ABHISHEK KUMAR Petitioner(s) VERSUS HINDUSTAN PETROLEUM CORP.LTD.& ORS. Respondent(s) (with interim relief and office report)(for final disposal) WITH SLP(C) No. 19648-19649/2012 (With appln.(s) for exemption from filing O.T. and appln.(s) for bringing on record additional documents and Office Report) Date : 29/03/2016 These petitions were called on for hearing today. CORAM :
HON'BLE MR. JUSTICE V. GOPALA GOWDA HON'BLE MR. JUSTICE ARUN MISHRA For Petitioner(s) Mr. R.P.Bhatt,Sr.Adv. In SLP 27522-23/11 Mr. Mohit Kumar Shah,Adv. In SLP 19648-49/12 Mr. Sunil Kumar,Sr.Adv.
Mr. Narendra Kumar,Adv.
Mr. Vinod Mehta,Adv.
Mr. C.Kannan,Adv.
Mr. H.K.Naik,Adv.
For Respondent(s) Mr. A.Sharan,Sr.Adv.
Mr. Irshad Ahmad,Adv.
Mr. Anurag Rawat,Adv.
Mr. Sudhir Kumar,Adv.
Mr. Sanjay Kapur,Adv.
Mr. Anmol Chandan,adv.
Ms. Priyanka Das,Adv.
Mr. Sameer Rohtagi,Adv.-2-
UPON hearing the counsel the Court made the following O R D E R In SLP(C)Nos. 27522-23/2011 Leave granted.
The appeals are allowed in terms of the signed order.
In SLP(C)Nos. 19648-49/2012 Leave granted.
The Appeals are dismissed in terms of the signed order.
(SUMAN WADHWA) (CHANDER BALA)
AR-cum-PS COURT MASTER
Signed order is placed on the file.