The High Court
Case Details
Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Designation: AR-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 30-Aug-2024 11:34:28 IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.16233 of 2013 (An application under Articles 226 and 227 of the Constitution of India) ***** Basanti Mohapatra .... Petitioner -versus- The Chairman-cum-Managing Director, Hindustan Petroleum Corporation Ltd. and others …. Opp. Parties Advocate for the Parties: For Petitioner : Mr. Sukunta Kumar Dalai, Advocate For Opposite Parties : Mr. M.Balakrishna Rao, Advocate CORAM: JUSTICE K.R. MOHAPATRA -------------------------------------------------------------------------- Date of Judgment : 28.08.2024 -------------------------------------------------------------------------- J U D G M E N T 1. This matter is taken up through hybrid mode. 2. The Petitioner calls in question the appointment of Opposite Party No.6, namely, Sri Narayan Behera as LPG Distributor at Niali, Cuttack. 3. Short narration of facts necessary for proper adjudication of facts are as follows:- 3.a Hindustan Petroleum Corporation Limited (for brevity ‘HPCL’) came up with an advertisement on 25th March, 2012 (Annexure-1) in Odia Daily ‘Dharitri’ for appointment of LPG W.P.(C) No.16233 of 2013 Page 1 of 10
Facts
Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Designation: AR-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 30-Aug-2024 11:34:28 // 2 // Distributors in different areas in the State of Odisha. The present writ petition relates to Sl. No.70 of said advertisement relating to appointment of LPG Distributor at Niali under category of Government and Public Sector Personnel. Along with others Petitioner and Opposite Party No.6 applied for being appointed as LPG Distributor for Niali. From amongst the Applicants, Petitioner and Opposite Party No.6 were found eligible to be considered to take part in the selection process. As per the procedure laid down, drawal of lots was conducted on 19th October, 2012 in their presence, wherein the Opposite Party No.6 was selected. During Field Verification of Credentials (FVC), the land offered by Opposite Party No.6 was found not to be in consonance with the requirement. Accordingly, he was asked to provide an alternative site. On scrutiny, the same was found to be suitable. 3.b Petitioner raised objection and filed complaint against the selection of Opposite Party No.6, which was turned down vide letter dated 25.09.2013 (Annexure-A/3). Thus, assailing the selection of Opposite Party No.6, as LPG Distributor for Niali this Writ Petition has been filed. 3.c The matter was taken up on 10th September, 2013. While
Legal Reasoning
issuing notice in the matter, this Court in Misc. Case No.15172 of 2013, as an interim measure, directed that status quo as on date with regard to allotment of LPG Distributorship in question in favour of Opposite Party No.6 to be maintained till the next date. The said order is continuing till date. W.P.(C) No. 16233 of 2013 Page 2 of 10 Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Designation: AR-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 30-Aug-2024 11:34:28 // 3 // 4. Mr. Dalai, learned counsel for the Petitioner accepting the aforesaid factual position submitted that the GP certificate (Government and Public Sector Personnel certificate) submitted by Opposite Party No.6 was defective one. Thus, vide letter dated 3rd September, 2012 (Annexure-A/8) the Opposite Party No.6 was requested to resubmit the GP category certificate in proper format within seven days of receipt of such letter. The Opposite Party No.6 re-submitted the GP category certificate from the competent authority on 7th September, 2012 (Annexure-A/1 to the counter affidavit filed by HPCL), which was much after the cut-off date for receiving the application as per advertisement under Annexure-1. However, the same was accepted and the application of Opposite Party No.6 was processed. Further, the Petitioner had filed her objection against the candidature of Opposite Party No.6 stating that the GP category certificate was not in order and the land offered was not feasible for setting up of the Distributorship in question in terms of the advertisement. The said objection was filed on 7th November, 2012 (Annexure-4). 5. Upon receipt of such objection, the Chief Regional Manager, HPCL, Bhubaneswar, vide its letter dated 4th December, 2012, directed the Tahasildar, Niali for demarcation of the land offered by Opposite Party No.6. Accepting the report of the Tahasildar, Niali, the Opposite Party No.6 was asked to offer an alternate site, which was also accepted after the cutoff date, i.e., 20th April, 2012. Thus, gross illegality has been committed in selecting Opposite Party No.6 to be the LPG W.P.(C) No. 16233 of 2013 Page 3 of 10 Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Designation: AR-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 30-Aug-2024 11:34:28 // 4 // Distributor for Niali. Mr. Dalai, learned counsel for the Petitioner, therefore, prayed for quashing of the selection of Opposite Party No.6 as LPG Distributor of HPCL for Niali. 6. Mr. Rao, learned counsel for HPCL vehemently objected to the submission made above. It was his submission that there was no illegality or irregularity in selecting Opposite Party No.6 as LPG Distributor for Niali. The selection of Opposite Party No.6 was made in conformity with the guidelines, procedure and practice of HPCL. It was submitted that Opposite Party No.6 belongs to GP category, but the certificate furnished by him was not in proper format. As such, he was asked to furnish the GP category certificate in proper format, which was duly accepted by HPCL. Acceptance of alternative site for Opposite Party No.6 is in tune with the evaluation criteria finalized by Ministry of Petroleum and Natural Gas and Oil Industry. Further, the objection raised by the Petitioner with regard to the eligibility of Opposite Party No.6 was duly replied on 25th September, 2013 (Annexure-A/3 to the counter affidavit). Said reply has never been challenged and attained its finality. It is further submitted that several factual aspects have been raised by learned counsel for the Petitioner for the first time in this writ petition, which was never raised in the objection and those should not be taken into consideration as it requires factual adjudication. He, therefore,
Decision
prays for dismissal of the writ petition. W.P.(C) No. 16233 of 2013 Page 4 of 10 Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Designation: AR-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 30-Aug-2024 11:34:28 // 5 // 7. Although Opposite Party no.6 is represented by learned counsel, but none appeared on his behalf at the time of final hearing of the writ petition. Opposite Party No.6, however, had filed Misc. Case No.19229 of 2014 for modification of the interim order dated 10th September, 2013. But the petition was allowed to be withdrawn vide order dated 7th May, 2015 on the prayer of learned counsel for Opposite Party No.6. 8. Heard learned counsel for the parties. Perused the materials on record in detail. From the averments made by learned counsel for the parties, it is apparent that the Petitioner does not challenge the result of drawal of lot in which Opposite Party No.6 was found eligible to be considered for appointment of LPG Distributorship in question. The Petitioner also does not challenge the communication dated 25th September, 2013 (Annexure-A/3 to the counter affidavit) by which his complaint was turned down. Candidatures of the Petitioner and Opposite Party No.6 were taken into consideration for appointment of LPG Distributorship in question. Since there were two candidates found eligible to be considered, the selection was made as per Clause 10.3 of the ‘Guidelines for Selection of Regular LPG Distributorship’ (for brevity ‘the Guidelines’), which reads thus:- “10.3. In case of two or more eligible applicants, draw for selection of LPG Distributor would be conducted. All the eligible applicants would be sent a written communication by Registered Post AD / Speed Post to report for a draw for selection of LPG Distributor at a W.P.(C) No. 16233 of 2013 Page 5 of 10 Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Designation: AR-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 30-Aug-2024 11:34:28 // 6 // specified place on specified date and time. 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.” As per the procedure provided, drawal of lots was conducted on 19th October, 2012 in presence of both the eligible candidates, namely, the Petitioner and Opposite Party No.6 along with officials of HPCL. In the said drawal of lot, the Opposite Party No.6 was selected. Petitioner has never challenged the result of drawal of lot. Thus, the question of her appointment as LPG Distributor for Niali pursuant to advertisement under Annexure-1 does not arise at all. As such, the prayer to that extent made in the writ petition cannot be granted and accordingly refused. 9. The next question that arises for consideration is whether selection of Opposite Party No.6 for appointment as LPG Distributor in question is sustainable or not. 10. In the Objection under Annexure-4 raised by the Petitioner to the selection of Opposite Party No.6 for being appointed as LPG Distributor in question, it is stated that Opposite Party No.6 did not belong to GP category and the land offered by him was not suitable for opening of LPG Distributorship. It is categorically stated in the Objection at Annexure-4 that father of Opposite Party No.6, namely, late Madhabananda Behera died in his residence. He was ill before his death and was on leave till his death. Suppressing such W.P.(C) No. 16233 of 2013 Page 6 of 10 Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Designation: AR-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 30-Aug-2024 11:34:28 // 7 // material fact, Opposite Party No.6 obtained the GP category certificate from the authorities. The said certificate was not in the format provided in Appendix-3-C of the Application Form. 10.1 Clause 7.2 of the Guidelines deals with Specific Eligibility Criteria for Different Categories applying as Individual. It provides that “the personnel serving in different Departments of Central/State governments and Public Sector Undertakings of Central/State Government who are incapacitated or disabled while performing their duties will be eligible under this category. In case of death, while performing duties, their widows/dependants will be eligible to apply under this category.” As revealed from the death certificate as at Annexure-7, said Madhabananda Behera died on 12th June, 2009. It is also not disputed that Opposite Party No.6 was a dependant of said Madhabananda Behera. Mr. Dalai, learned counsel for the Petitioner submitted that on the date of death of said Madhabananda Behera, he was on leave and was not performing his duties. It is thus submitted that Opposite Party No.6 is not eligible to be considered for appointment as the LPG Distributor for Niali. It is very difficult to accept such contention of Mr. Dalai, learned counsel for the Petitioner. Only because said Madhabananda Behera was on leave on the date of his death it cannot be said that he was not in government service. He was in the pay roll of the Government. There is no material on record to show that father of Opposite Party No.6, namely, Madhabananda W.P.(C) No. 16233 of 2013 Page 7 of 10 Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Designation: AR-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 30-Aug-2024 11:34:28 // 8 // Behera was on unauthorized leave. Thus, the case of Opposite Party No.6 is squarely covered under the GP category. 11. Of course, the GP category certificate submitted by Opposite Party No.6 along with his application was not in proper format (Appendix-3-C). Clause 9.5 of the Guidelines deals with Procedure for Receipt of Application. It stipulates, in case deficiencies are found in the application, a letter would be sent to the applicant to rectify the deficiencies within a specified time. In terms of such provision, the Opposite Party No.6 was communicated vide letter dated 3rd September, 2012 (Annexure- A/8) to resubmit such certificate in proper format. On consideration the GP category certificate dated 7th September, 2012 (Annexure-A/1) issued by the competent authority, namely, Block Development Officer, Kakatpur, the candidature of Opposite Party No.6 was accepted. Petitioner has never challenged the correctness of the GP category certificate issued under Annexure-A/1. Further, in view of Clause 9.5 of the Guidelines, no exception can be taken to the resubmission of GP category certificate after the cut-off date. Thus, the objection of the Petitioner with regard to GP category certificate is overruled. 11.1 Further objection was raised by the Petitioner with regard to land offered for appointment of Opposite Party No.6 as LPG Distributor in question. In course of Field Verification of Credentials (FVC), as borne out from record, the land offered by Opposite Party No.6 was not found to be in consonance with W.P.(C) No. 16233 of 2013 Page 8 of 10 Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Designation: AR-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 30-Aug-2024 11:34:28 // 9 // the requirement. Thus, in terms of Clause 11.2 of the Guidelines, Opposite Party No.6 was requested to remove the discrepancy. Industry record note on modification/clarification with regard to selection process of RGGLV issued by the Ministry of Petroleum and Natural Gas on 15th June, 2010 (Annexure-A/2) advised not to reject the application on frivolous ground. In case, any deficiency is found, a liberty should be provided to the selected candidate. If he fails to rectify the deficiency even after providing such opportunity, he should be declared ineligible. Clause 8 of Annexure-A/2 clearly stipulates as under:- “8. During the FVC process, it has been observed in some cases that the land mentioned by the applicant for godown in his application is not suitable. However, the applicant has offered another plot of land (in the advertised RGGLV location) in his name as per ’family unit’ norms with date of registration on or before the date of application. In such cases it is clarified that since land is a requirement under eligibility criteria and not a criteria for evaluation, it would be in order to consider the alternate land if it is in the name of the applicant / member of applicant’s family unit and date of registration of the same is on or before the date of application. However, the same if considered has to be duly verified for its suitability during the FVC. xx xx xx” In the instant case, the land offered by Opposite Party No.6 in his application, was found not as per the requirement in the advertisement, as the land offered was under Purbakhanda mouza. Said mouza was not coming within the Niali revenue Circle under Niali tahasil. As such, the Opposite Party No.6 could not have opened the show room on the land offered. Thus, the Opposite W.P.(C) No. 16233 of 2013 Page 9 of 10 Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Designation: AR-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 30-Aug-2024 11:34:28 // 10 // Party No.6 in course of consideration of FVC provided an alternate site and on the date of consideration, alternate site suitable for opening of LPG Distributorship/ show room was available with the authority. This Court finds that no irregularity has been committed in accepting the alternate site, as the HPCL was competent to consider the alternate site for establishment of the distributorship in view of the clarification made by the Ministry of Petroleum and Natural Gas at Clause 8 of Annexure- A/2. Since HPCL found the land offered to be suitable for opening of the LPG Distributorship in question by Opposite Party No.6, the Petitioner could not have any say in the matter. 11.2 As such, this Court finds no infirmity in the procedure adopted in selecting Opposite Party No.6 for appointment of LPG Distributor for Niali in the district of Cuttack. 12. In view of the above, the writ petition fails and is accordingly dismissed. In the facts and circumstances of the case, there shall be no order as to costs. Issue urgent certified copy of the judgment on proper application. (K.R. Mohapatra) Judge The High Court of Orissa Dated the 28th day of August, 2024/ s.s.satapathy W.P.(C) No. 16233 of 2013 Page 10 of 10