Chaubey K. Oil Depot vs Commissioner, Food and Supply and Another

S. Ravindra Bhat, J.—Issue Rule. Ms. Anju Bhattacharya, Advocate waives notice of Rule. With consent, the matter was heard finally, for disposal.

The petitioner had applied for issuance of Kerosene Oil Depot (KOD) License on 2.12.1996 in Nand Nagri area. Fourteen other applicants had sought the license. Two were ultimately short listed, i.e., the petitioner and one M/s Neeraj Kerosene Oil Depot, acting through its proprietor Neeraj Kumar. Both the shortlisted candidates were operating from tenanted premises. However, the petitioner''s application was preferred on the ground that his tenancy was better or superior. The rival applicant appealed unsuccessfully, after which he approached this Court under Article 226 of the Constitution.

By a judgment dated 3.12.2002 CWP-4129/1998 i.e. Neeraj KOD v. The Commissioner, this Court quashed the petitioner''s allotment reasoning that since both applicants were operating from tenanted premises, the agency could not have discriminated in favour of one on the ground of "superior" conditions of lease. The petitioner''s appeal by Letters Patent was rejected, since the matter was remitted for reconsideration.

The Assistant Commissioner, who reconsidered the matter on remand, on 4.2.2003 decided that having regard to the card position in the notified area, and the circumstance that two other outlets were functioning, there was no necessity for allotting another KOD. The petitioner as well as M/s Neeraj KOD appealed to the Commissioner, who by an order dated 28.10.2003 affirmed the determination of the Assistant Commissioner. The Commissioner reasoned as follows:

Careful perusal of the directions of the Hon''ble High Court clearly indicates that the cases have been remanded back to the department to consider the case in accordance with the existing rules. Without going into the merits of the case and suitability of the appellants, it is to be ascertained in the 1st place, whether or not, an additional KOD is required in the notified area. FSO (Vigilance) tells me that as on April, 2003, 1106 blue cards are there in the notified area. The departmental norms provide for 850 cards per KOD. As such, it can be seen that existing 2 KODs are adequate to take care of the demand of the notified area. I, therefore, agree with the recommendations of the Screening Committee dated 29.01.2003 and the orders passed by AC (NE) dated 4.2.2003 so far as the requirement of additional KOD is concerned.

The petitioner''s appeal to the Financial Commissioner was rejected. The petitioner contends that having determined that there was a need for a KOD and invited applications the authorities cannot now re-visit the issue and hold that he is dis-entitled to the license. It is contended that besides, guidelines and Circulars vis-�-vis the minimum eligibility in regard to existence of card position in one or the other outlet has remained unchanged; therefore, the respondents are now acting arbitrarily in holding that the petitioner is not entitled to the license.

The respondents submit that according to the fresh determination arrived at after considering the card position, the Assistant Commissioner discovered that only 1064 card holders existed in the notified area i.e. 3806. It is further submitted that two units were operating and that according to the freshly notified norms, the unit is considered viable if there are minimum 850 cards, attached to it. Ms. Anju Bhattacharya, learned Counsel for the respondents submitted that these criteria were reiterated in guidelines, formulated on 30.5.2008.

Evident from the above discussion is that initially the lis before this Court was due to the preference by the Department to one applicant over the other on the ground of so called "superior" tenancy. This Court dispelled said definition holding that when both applicants are tenants, there can be no further grounds for sub-classification. The matter was ultimately remitted to the authorities. By the present determination neither the petitioner nor the rival applicant has been awarded the outlet. The authorities have determined that a third outlet is not permissible since the existing card position is 1064. It is also a matter of record � borne out by the respondents'' counter affidavit that according to the fresh norms applicable deeming viability of each Unit, a minimum of 850 card holders have to exist. Concededly, that is not the position today. The respondents further state that guidelines in that regard were framed and published w.e.f. 30.5.2008.

While the petitioner may have had some expectations of allotment of KOD when he approached the respondents in response to their Notification, the same did not crystallize into clear rights in the absence of statutory interdict. The mere circumstance that he was shortlisted as a candidate qualifying for further consideration, did not result in any better status. His position at the highest could be akin to a selected candidate named in a panel. The Constitution Bench in H.L. Randev and Others Vs. High Court of Punjab and Haryana and Others, , has ruled that even a candidate included in the selection list does not have indefeasible right to be appointed or given the position. The petitioner''s claim is no better; he has no enforceable right. The respondents, while declining to grant allotment, in such instances have to show that there was a reason for their refusal, germane to the issue. The Court''s jurisdiction is confined to enquiring into that aspect.

Such being the position in law and also in view of the changed policy, the Court is of the opinion that the denial of allotment to the petitioner is neither arbitrary nor unreasonable.

The Writ Petition, therefore, cannot succeed. It is accordingly dismissed.