THE GAUHATI HIGH COURT (The High Court of Assam, Nagaland, Mizoram & Arunachal Pradesh) WP(C) No. 4497 of 2011 Mr. Shamsul Hoque Hazari, S/O Hazi Safiqur Rahman Hazari, Vill & PO-Krishnapur, PS-Silchar, Dist.-Cachar, Assam. -Versus- 1. The Union of India, Represented by the Secretary to the Ministry of Petroleum, Govt. of India, Secretariat, New Delhi. 2. General Manager IOC Limited, (A company registered under the Companies Act, 1956 and a Govt. of India undertaking), represented by its Chairman, North East Integrated State Office, East Point Tower, Bamunimaidam, Guwahati-20. 3. The DGM (LPG) I.O.C. Ltd., North East Integrated State Office, East Point Tower, Bamunimaidam, Guwahati.-20. 4. Territory Manager (Retail), Bharat Petroleum Corporation Limited, C/O Numaligarh Rifinery Marketing Terminal, PO-Numaligarh-785699, Dist.-Golaghat, Assam. 5. Lipi Rani Paul, D/O Lt. Amar Ch. Paul, Forest Road, Behind Thana Lane, PO-Dholai, Dist.-Cachar, Assam. Petitioner. Respondents. Advocate(s) for the Petitioner : Advocate(s) for the Respondents : Mr. D. Mazumdar (Sr. Adv.), Mr. A. Roshid, Mr. A. Mobaraque. Ms. P. Baruah, CGC (Resp-1) Mr. M.K. Choudhury (Sr. Adv.), Mr. N. Baruah, (Resp-2, 3, 4) Mr. A.M. Buzarbaruah (Sr. Adv.) (Resp-5). WP(C) 4497/2011 Page 1 of 8
BEFORE THE HON BLE MR. JUSTICE HRISHIKESH ROY Date of Hearing and Judgment : 31 st March, 2016 JUDGMENT AND ORDER (ORAL) Heard Mr. D. Mazumdar, the learned Sr. counsel appearing for the petitioner. The Indian Oil Corporation Ltd. (IOCL) and their officers (respondent Nos.2, 3 and 4) are represented by the learned counsel Mr. N. Baruah. The selected LPG distributor Lipi Rani Paul (respondent No.5) is represented by Mr. A.M. Buzarbaruah, the learned Sr. counsel. The first respondent is represented by Ms. P. Baruah, the learned Central Govt. counsel. 2. The matter pertains to the LPG distributorship at Silchar in Cachar district under the IOCL. Only the defence category applicants were eligible to this dealership and therefore applications were invited by the IOCL from those eligible, through the advertisement dated 26.02.2008 published in the Assam Tribune. The infrastructure requirement as well as the financial capability for the dealership was specified in the advertisement and the guideline for selection was notified in the June, 2007 brochure published by the IOCL. 3. Three amongst the applicants were shortlisted and eventually on the basis of the specified criteria, the petitioner was shown to have secured the 98.22 marks, whereas the 5 th respondent secured the 2 nd position with 83.53 marks. The next candidate P. Sinha with 58.66 marks was placed in the 3 rd position. However, the candidature of the writ petitioner was cancelled and finally the letter of intent was issued to respondent Lipi Rani Paul and then she commissioned the LPG dealership at Silchar. 4.1 Assailing the decision making process leading to appointment of the 5 th respondent as the LPG dealer, Mr. D. Mazumdar, the learned Sr. counsel submits that the rejection of the petitioner s candidature on the two cited grounds is legally unsustainable. 4.2 In Clause 8.2 of the IOCL brochure, the required dimension for the LPG showroom was prescribed as 4.5 m X 3 m and the petitioner claims that the showroom area provided by him is of equivalent space and this satisfies the WP(C) 4497/2011 Page 2 of 8
requirement of the LPG dealership. But considering the offered showroom dimension to be unacceptable, the candidature of the writ petitioner according to him was unjustly rejected by the IOCL. 4.3 Referring to the financial capability requirement stipulated in Clause 14.1 of the IOCL brochure, the petitioner contends that he could demonstrate his financial capability on the basis of the money shown to be available in his savings accounts and also his fixed deposit accounts and therefore the rejection of the petitioner s candidature on the ground cited by the authority, is contended to be unjustified. 4.4 The petitioner submits that it is the 5 th respondent who should have been considered ineligible for the LPG outlet under defence category, as she is not a dependent of a defence personnel as is stipulated under Clause 5(b) of the IOCL brochure and therefore her selection for the defence category LPG, is said to be undeserved. 4.5 According to the petitioner, the 5 th respondent was aged 30+ years on the date of evaluation and therefore she was wrongly considered eligible for the LPG distributorship. The marital and employment status of the 5 th respondent is also cited as an additional ground for rejection of her candidature. 5.1 On the other hand, Mr. N. Baruah, the learned counsel for the IOCL submits that the petitioner was disqualified as he failed to provide the showroom of the prescribed dimension and furthermore, discrepancies were found in the dimension mentioned in the application (3 m X 4.5 m), whereas in the field verification, the dimension of the showroom was found to be smaller as it measured only 2.7 m X 4.5 m. 5.2 Moreover the information furnished by the writ petitioner in his application on the amount available in his savings bank accounts to demonstrate his financial capability was found to be incorrect. Mr. Baruah submits that in fact, the writ petitioner reflected that Rs.5,99,424/- was available in his 3 saving bank accounts, but during the field verification, much lesser figure (Rs.1,85,950/-) was found in those savings bank accounts. Moreover although the writ petitioner tried to establish his financial capability by referring to some fixed deposit accounts, his application for the dealership didn t reflect any such FDs. But after his WP(C) 4497/2011 Page 3 of 8
candidature was cancelled, the candidate tried to demonstrate his financial capacity by referring to the fixed deposits in the schedule bank but then it was found that those FD certificates were reinvestment certificates pledged in lien and they were not unencumbered, as is the requirement to demonstrate the financial capacity of an applicant. 5.3 Justifying the selection of the 5 th respondent, Mr. Baruah submits that her candidature as a dependent of a defence personnel was certified by the Directorate General of Resettlement (DGR) of the Ministry of Defence and since she was sponsored specifically for the Silchar LPG outlet earmarked for defence category, she was rightly selected on the basis of her high evaluation score, under the specified parameters. 5.4 The IOCL lawyer further submits that since employment is not disqualification and the requirement is that employed applicant must resign in the event of selection, the engagement of the 5 th respondent in a private concern at the relevant time will not affect the validity of her candidature as a dependent of a defence personnel. 6.1 The selected LPG deader is represented by Mr. A.M. Buzarbaruah and the learned Sr. counsel submits that when the petitioner s candidature was found to be invalid on account of the inadequate showroom space and his failure to demonstrate the financial capacity, the disqualified candidate cannot maintain a valid challenge to selection of the LPG dealer, made on merit. 6.2 The learned lawyer for the 5 th respondent submits that she produced a dependency certificate from the DGR of the Defence Ministry, categorizing her candidature as Priority II and therefore it is argued that validity of her candidature for the defence category cannot be questioned either on age or matrimonial status of the applicant, as long as her sponsorship by the competent authority remain undisturbed. Since the candidates were evaluated on 05.10.2009 and the 5 th respondent got married subsequently on 28.07.2011, being an unmarried dependent on the date of selection, her candidature for the LPG dealership is contended to be valid on the relevant date. 6.3 Since outer age requirement was not specified as a factor for consideration of the candidature, the selected candidate argues that there is no WP(C) 4497/2011 Page 4 of 8
necessity for any candidate to be below 30 years. But in any case, the 5 th respondent has produced a birth certificate showing her date of birth as 30.11.1978 and since this age certificate issued by the competent authority has not been challenged by the writ petitioner, the validity of her candidature on age ground can t be questioned. 6.4 The learned counsel for the 5 th respondent refers to the certificate dated 05.07.2014 of the Chief Manager Administration of the United Bank of India to project that the writ petitioner s fixed deposits on the basis of which he claims his financial capability for the LPG dealership, was discharged by the borrower on 18.11.2008 itself and therefore concerned 4 reinvestment certificates could not have been the basis for considering the validity of the candidature of the writ petitioner through his subsequent explanation, in respect of the selection made on 05.10.2009. 6.5 The unsuitability of the showroom offered by the writ petitioner is projected by the selected candidate on the basis of the certificate dated 18.05.1985 issued by the Chairman of the Silchar Municipal Board. The offered stall at Itkhala Market was the property of the Silchar Municipal Board and was settled with one Bidhan Dutta but transfer of the stall without written permission of the Board is prohibited under Clause 4 of the settlement terms. Moreover, dealing in inflammable goods in that stall was prohibited under Clause 9 of the settlement. Therefore, it is argued by Mr. Buzarbaruah that not only the dimension of the showroom offered by the writ petitioner was unacceptable, the said space could not have been legitimately offered by the writ petitioner as the stall cannot be utilized for dealing with inflammable gas cylinders. Moreover subletting of the stall by the original settlement holder was not permitted without written permission of the Silchar Municipal Board, who are the de-facto owner of the offered stall. 7 In the brochure circulated by the IOCL in June, 2007, the eligibility criteria and the mode of selection are specified for the LPG distributorship. Under Clause 4.2, an applicant has to be 21 years of age to apply for the LPG dealership, but no upper age limit is prescribed by the IOCL. For defence category LPG distributorship, the eligibility criteria is specified under Clause 5(b) and dependents of those defence personnel who died in war, are eligible to apply WP(C) 4497/2011 Page 5 of 8
under this category. But all applicants applying for defence category dealership, are required to produce the eligibility certificate from the DGR of the Defence Ministry and the certification by the competent authority must be specific to the particular location and the current advertisement. In the present case, both litigants produced the eligibility certificate from the competent authority i.e. the DGR of Defence Ministry and therefore on this count both must be declared to be eligible to apply for the LPG dealership under the defence category. 8 The next issue to be considered is whether the rejection of the candidature of the writ petitioner was justified on inadequacy of showroom of the required dimension and also whether he failed to meet the financial capability requirement expected from applicants. 9.1 As earlier noted, the writ petitioner claimed in his application that Rs.5,99,424/- was available in his savings bank accounts, but when the account entries were verified on 14.04.2008, only Rs.1,85,950/- was found in those savings bank accounts of the writ petitioner. Thus to this extent, incorrect information was furnished in support of his candidature, by the writ petitioner. 9.2 However, it is argued by Mr. D. Mazumdar, the learned Sr. counsel that when the writ petitioner submitted his application, he had converted his money in the savings bank accounts into 4 fixed deposits accounts in the same bank in order to earn higher interest and this was nothing but a careless mistake of the applicant, for which he should not face such harsh consequences. But what is important to notice here is that the writ petitioner in his application never mentioned about any fixed deposit accounts and in fact these facts were brought to light only after cancellation of his candidature. Therefore when financial capability of a candidate is to be assessed on the basis of the disclosed bank accounts on the date of application, subsequent clarification will not help his cause. Hence when the writ petitioner filed his application on 14.04.2008, he cannot claim the benefit of any fixed deposit account as these information were not disclosed in the application. Moreover the fixed deposit accounts, subsequently relied upon by the writ petitioner, were reinvestment certificates and they were pledged as lien and were not unencumbered, on the date of consideration. That apart the concerned bank i.e. United Bank of India has clearly indicated that the fixed deposits of the writ petitioner were discharged on WP(C) 4497/2011 Page 6 of 8
18.11.2008 itself against his loan account No.0743210030067. Therefore the writ petitioner failed to demonstrate his financial capability for the LPG dealership as per requirement and on this count I feel that, his candidature was rightly rejected by the IOCL. 10 The dimension of the stall offered by the writ petitioner was found to be smaller during the field verification than what was reflected in the application. Moreover the dimension did not satisfy the frontage requirement specified for the LPG dealership. The offered stall can t be utilized to deal in inflammable goods on account of the prohibitory Clause 9 for the Itkhala Market stall at Silchar. The absence of permission to sublet/transfer the stall from the owner i.e. Silchar Municipal Board is also relevant factor to be taken into consideration. Therefore, the unsuitability decision for the offered showroom cannot be said to be based on extraneous reasons and therefore the decision making authority can t be faulted, who held that invalid candidature was offered by the writ petitioner. 11 When distributorship is allotted on the basis of wrong information furnished by an applicant, the IOCL has the option to cancel the distributorship under sub-clause (d) of Clause 4.5 of the brochure and in case it is established that a candidate is selected on the basis of false information, the dealership of an appointed person can be cancelled. But in the present matter, the candidature of the 5 th respondent in the priority II defence category was certified by the DGR and the eligibility of a candidate under the defence category is to be assessed on the basis of the certificate issued by the competent authority i.e. the DGR. Therefore when the selected candidate has produced a valid eligibility certificate certifying her as a dependent of the deceased patrolman Shyamapada Paul, who died in the Sri Lanka operation, it would not be correct to hold that her candidature gets invalidated on account of her subsequent marriage. 12 The candidature of the 5 th respondent was sponsored by the DGR specifically for the LPG distributorship under the defence category and age and other norms stipulated for other purposes, cannot be the basis to question the validity of the dependency certificate issued by the DGR. In this context, the Court cannot be unmindful of the fact that the candidature of the writ petitioner too for the defence category, was sponsored by the same authority i.e. the DGR. WP(C) 4497/2011 Page 7 of 8
13 It is also seen that the selected candidate was unmarried at the time of selection and her subsequent marriage would therefore can t invalidate her selection. The appointed LPG dealer is not expected to shun marriage and hence she can t be penalized for getting married later. 14 Having regard to the above discussion, when the candidature of the writ petitioner was found to be invalid on account of inadequate financial capability and the offered showroom being unsuitable, the challenge to selection of the 5 th respondent at the instance of a disqualified candidate, would not normally be justified. Even then, the grounds on which the selection of the 5 th respondent are challenged, have been examined and it is noticed that she produced a valid dependency certificate from the competent authority and secured the most marks amongst the eligible candidates. In such circumstances, I find no justification to interfere with the decision making process and the appointment of the 5 th respondent as the LPG distributor in defence category, at Silchar. 15 For the foregoing reasons, this writ petition is found devoid of merit and the same is accordingly dismissed without any order on cost. Roy JUDGE WP(C) 4497/2011 Page 8 of 8