J. Thulasidasan vs The Government of India and Others

R. Mahadevan, J.—This writ petition has been filed seeking a Writ of Certiorarified Mandamus to call for the records pertaining to the impugned order in Ref. CHNLRO/RH/LPG-IMP-2013-14, dated 25.02.2014, on the file of the second respondent and quash the same as illegal and consequently, direct the second respondent to award Rajiv Gandhi Gramin LPG Vitrak (RGGLV), at Devadanapatti (TP), Theni District to the petitioner within the time stipulated by this Court.

Heard both sides.

Nutshell facts, are as follows:

3.1. The case of the petitioner is that he applied on 03.07.2013 for Rajiv Gandhi Gramin LPG Vitrak scheme at Devadanapatti, reserved for open category, vide advertisement dated 29.05.2013. Thereafter, the petitioner was declared as successful candidate by the second respondent by his communication dated 18.11.2013, besides he was also directed to remit 10% of the Security Deposit of Rs. 2,00,000/-. Accordingly, he also remitted the same. According to the petitioner, even during the field verification also, he was found eligible in all respects. However, the second respondent, by impugned order dated 25.02.2014, rejected the candidature of the petitioner, on two grounds, that,

(i) the agreement in terms of the affidavit for the usage of approach road to the proposed land for godown site is not registered; and

(ii) alternate land owned by the father of the petitioner has been issued patta in his name after the date of submission of the application.

3.2. Aggrieved by the same, the petitioner is before this Court.

Denying the claim of the petitioner, the respondents 2 and 3 filed their counter affidavit stating that since the petitioner failed to comply with the conditions in the notification, his candidature was rejected due to ineligibility and prayed for the dismissal of this writ petition.

In the counter affidavit filed by the fourth respondent, it is contended that since the petitioner was found ineligible as per the conditions imposed in the notification, his candidature was rightly rejected and thereafter, the fourth respondent being the remaining applicant, was awarded with the scheme and hence, prayed for the dismissal of this writ petition.

Mr. T. Lajapathi Roy, learned Counsel for the petitioner made the following submissions:

6.1. The impugned order would be vitiated for the reason that nowhere in the notification/advertisement dated 29.05.2013, the alleged ground of rejection has been stated as one of the conditions.

6.2. Then, the question of rejecting the candidature of the petitioner does not arise at all, stating that the agreement for the usage of approach road to the proposed land for godown site is not registered.

6.3. On that ground alone, the impugned order needs to be interfered with by this Court.

6.4. Further, the second respondent has passed the impugned order of rejection, in violation of principles of natural justice as no opportunity of hearing was given to the petitioner before passing the impugned order. Hence, the petitioner has to succeed in this writ petition.

6.5. Another ground of attack is that though at the time of Field Verification, the alternate land has been offered only at the instance of the Field Verification Officer and having done so, the second respondent is not justified in rejecting the candidature alleging that it was not registered prior to the date of submission of the application. It only points out non-application of mind on the part of the authority concerned.

6.6. Lastly, it is contended that as per Clause 22 of the Brochure, rejection would be possible, if any false information is given at the time of Field Verification. But, the case of the petitioner is otherwise.

6.7. Therefore, he prayed for quashing the impugned order and for a direction to the second respondent to award Rajiv Gandhi Gramin LPG Vitrak (RGGLV), at Devadanapatti (TP), Theni District to the petitioner.

In support of his submissions, the learned Counsel for the petitioner placed heavy reliance on the following decisions:

(i) K. Vinod Kumar Vs. S. Palanisamy and Others, .

(ii) R. Sathiyan v. Senior Area Manager, Indian Oil Corporation Ltd., [Writ Petition (MD) No. 7433 of 2009, decided on 12.08.2009, reported in judis.nic.in].

Though this Court ordered notice to the respondents as early as on 07.03.2014, there is no representation on behalf of the first respondent.

Mr. M. Sridher, learned Counsel for the respondents 2 and 3, placing reliance on the averments made in the counter affidavit, contended thus:

9.1. May be the petitioner declared as successful candidate, however, if he could not satisfy all eligibility criteria, then, his claim would not stand so long.

9.2. First ground of rejection is, the approach road to the proposed land for godown was not owned by the petitioner or his family member as defined under clause h(iii) of the Advertisement.

9.3. Other ground is, alternate land owned by the petitioner''s father was registered in the name of the petitioner only subsequent to the date of closure of application forms.

9.4. The plea of the petitioner that there is violation of principles of natural justice, is refuted stating that proper verification has been conducted before passing the impugned order.

9.5. Claim of the petitioner that he is also the co-owner of the alternate land could not be accepted, for, it was furnished after the last date of submission of the application forms, that too, belatedly.

9.6. As the petitioner failed to comply with the terms and conditions imposed in the notification/advertisement, the second respondent rejected the claim of the petitioner and hence, no interference is warranted.

9.7. Therefore, he prayed for the dismissal of this writ petition.

In support of his contentions, the learned Counsel for the respondents 2 and 3, relied on the following decisions:

(i) K. Indira Vs. Union of India (UOI), Hindustan Petroleum Corporation Limited, Dealer Selection Board and M. Andal, .

(ii) M. Anbazhakan Vs. The Divisional Retail Sales Manager Indian Oil Corporation Limited No. 2, Race Course Road Chokkikulam, Madurai and Y. Sterlin Pachiathas--> .

(iii) G. Bibin Gnanakumar v. Hindustan Petroleum Corporation Ltd., reported in CDJ 2014 MHC 3147.

Mr. R. Subramanian, learned Counsel appearing for Mr. N.C. Ashok Kumar, learned Counsel for the fourth respondent, contended that the petitioner, having failed to comply with the mandatory requirements as per the brochure, could not maintain this writ petition as though his candidature was rejected on mala fides. He further contended that the respondent Corporation has originally declared the petitioner as successful bidder, however, on field verification, it turned otherwise, because the petitioner failed to satisfy the conditions imposed in the brochure. When that being the case of the petitioner, it is not for the petitioner to seek remedy under Article 226 of the Constitution of India and the respondent Corporation has rightly awarded the Gas Agency to the fourth respondent following Clause 12 of the brochure and hence, no interference is warranted by this Court, he concluded.

I have considered the rival submissions and perused the materials available on record.

At the outset itself, it is relevant to refer to the decision of the Division Bench of this Court in V. Chandran Vs. Oil Selection Board and Others, , wherein, it is observed as follows:

"The process of appreciating and weighing the various factors, materials and rival merits, is the function of the 1st respondent-Board, which is having the necessary expertise and experience to perform its duties properly. In our view, there cannot therefore be any re-appreciation or re-appraisal of relevant material factors, relative qualifications and evaluation of the comparative merits of the candidates in a writ proceeding under Art. 226 of the Constitution of India."

It is settled law that over proceedings and decisions taken in the administrative matters, the scope of judicial review is confined to the decision-making process and does not extend to the merits of the decision taken. Admittedly, in the case on hand, no infirmity has been pointed out in the selection process.

Now, this Court has to analyse the reasons for rejection of the candidature of the petitioner and they are:

"(i) On field verification the approach road to the proposed land for godown site shown by the candidate is owned by the candidate owned by third party and agreement in terms of affidavit made is not registered, hence cannot be considered.

(ii) Alternate land owned by the petitioner''s father effective Feb. 2014, i.e. after the date of submission of application and hence cannot be considered."

A careful analysis of the materials available on record would make it clear that the candidature of the petitioner was rejected by the respondent Corporation only based on the above reasons, which, according to them, are mandatory, failing which, the applicant would lose his candidature at the relevant point of time.

At no point of time, the petitioner has not alleged mala fides on the part of the respondent Corporation in awarding the Gas Agency to the fourth respondent. Therefore, it is, no doubt, clear that the impugned order is being challenged by the petitioner only on those two reasons set out for rejection and nothing else.

To contend that the conditions imposed by the respondent Corporation are only directory at the time of making the application and not mandatory, the learned Counsel for the petitioner relied on the following decisions:

(i) In K. Vinod Kumar Vs. S. Palanisamy and Others, , the notification was also for appointment of LPG distributorship by the Bharat Petroleum Corporation at several locations. The clause which came up for consideration before the Supreme Court is clause(g) of the said notification which pertains to the details of godown facilities, location of the land, applicant''s willingness to transfer the land/facilities on ownership/long lease to the company. In the said clause (g), it was further stated that if an applicant, after selection, is unable to provide the land indicated by him/her earlier, within a period of two months, the allotment of the distributorship would be cancelled. The question which was considered by the Supreme Court in the said case was as to whether the said condition clause (g) is mandatory or directory. In paragraph 8 of the said judgment, it is held thus:

"8. So far as the requirement of instruction (g) as stated above is concerned, it does not appear to be mandatory. The purpose of furnishing particulars of land in the application is to enable a determination as to whether the specific place would accommodate the godown facilities and distributorship arrangements from a commercial angle. This requirement is mandatory but satisfying the requirement at the stage of making the application is only directory. The particulars of such land can be made available even subsequent to the filing of the application, and may even be subsequent to the selection. The consequence of failure to make the suitable land available within a period of two months from the date of selection is that the selection of such candidate would be liable to be cancelled."

(ii) R. Sathiyan v. Senior Area Manager, Indian Oil Corporation Ltd., [Writ Petition (MD) No. 7433 of 2009, decided on 12.08.2009, reported in judis.nic.in], wherein it is laid down thus:

"26. A perusal of the above clearly indicates that in case it is found that the details regarding source of funds required for the purpose of setting up and operation of the distributorship is not made available, as and when required, the offer of distributorship can be cancelled and can be withdrawn at any stage. Assuming that a declaration is made in item No. 14 of the application and based on which the selection is done and agreement signed, it is well open to the respondent Corporation to cancel the distributorship if the applicant is unable to act in accordance with the information furnished in clause No. 14. It is precisely the effect of such clause in respect of providing infrastructural facilities came up for consideration before the Supreme Court in the case of K. Vinod Kumar referred to supra. As already noted that as per the norms of evaluation the marks assigned for infrastructural and capability to provide finance are equal, with 35 marks for each. This condition was held to be mandatory and to be complied with by the distributor, but was held to be directory at the stage of making the application. It is not the case of the respondent that the applicant has not filled up the relevant condition in Sl. No. 14 of the application. In paragraphs 21 and 22 of the typed set of papers filed in support of this writ petition, which is the Application, the applicant/petitioner has furnished all the details regarding his capability to provide finance and furnished the names of the bank accounts and other assets, properties of the families and such other details as required to be filled in clause 14.1 to 14.5 of the application. The only omission is that the declaration in the affidavit that in case, it is found that the petitioner is not able to make available, his distributorship is liable for cancellation and he cannot claim damages against the oil company. In my opinion, this condition is already incorporated in clause 14 of the application and the applicant has agreed to the said condition and signed the application format and submitted the same before the authorities."

However, this Court is of the view that in the present case on hand, the respondent Corporation, at the time of Field Verification found that the petitioner did not comply with the mandatory requirements as contemplated under the notification/brochure and therefore, denied the claim of the petitioner. Hence, the contention of the petitioner could not be countenanced and that too, belatedly.

It is a settled position of law that a judicial review of selection by an independent Tribunal (a Selection Board) for Distribution ship, would be permissible only on the established grounds like mala fide, arbitrariness or unreasonableness. It is also fortified in the decision of this Court in K. Indira Vs. Union of India (UOI), Hindustan Petroleum Corporation Limited, Dealer Selection Board and M. Andal, , wherein it is held as follows:

"14. In this case, the third respondent, after considering the materials on record, personal assessment on merits, business ability, capacity etc., of the applicant has prepared a panel according to their merits, hence, judicial review would be permissible only on the established grounds like mala fide, arbitrariness or unreasonableness. In this case, I do not find any such grounds. In the absence of such grounds and the fact that the Board, which is vested with the functions of selection, is an independent entity consisting of retired Judges and retired Civil Servants possessing necessary expertise and experience to perform their duty properly, there is only minimal scope for alleging mala fide against such a body. As mentioned above, such elements like mala fide, arbitrariness and unreasonableness were not effectively canvassed and proved by the petitioner. In this context, it would be useful to refer the decision of a Division Bench of this Court reported in (V. Chandran vs. Oil Selection Board, Tamil Nadu, Pondicherry and Andaman and Nicobar Islands, Madras and others) AIR 1996 Madras 87 wherein in para-14, it was held thus:-

"14. As already seen, the first respondent Board is a high level body consisting of a retired Judge of this Court, one retired Deputy Accountant General and former member and acting Chairman of Tamil Nadu Public Service Commission and another respectable person. The first respondent, after considering the materials on record and the personal assessment on merits, business ability, capacity etc., of the applicants, has prepared a panel according to their merits and granted the distributorship to the 4th respondent by the Letter of Indent dated 29.03.1994. The process or appreciating and weighing the various factors, materials and rival merits, is the function of the 1st respondent Board, which is having the necessary expertise and experience to perform its duties properly. In our view, there cannot therefore be any re-appreciation or re-appraisal of relevant material factors, relative qualifications and evaluation of the comparative merits of the candidates in a writ proceeding under Art. 226 of the Constitution of India."

It is to be remembered that when two parties are challenging the award of distributorship, the Court must be satisfied that there is some element of public interest involved in entertaining such petition, as mentioned in the decision of the Honourable Supreme Court reported in Raunaq International Limited Vs. I.V.R. Construction Ltd. and Others, In this case, I do not find any such public interest involved."

In G. Bibin Gnanakumar v. Hindustan Petroleum Corporation Ltd., reported in CDJ 2014 MHC 3147, this Court has elaborately dealt with the legal position regarding the jurisdiction of this Court to go into the selection process and it is observed at paragraph 10 thus:

"10. At the first instance, this Court has to consider the aspect regarding the jurisdiction of this Court to go into the selection process. In the instant case, there is no specific allegation of mala fide against the respondent Corporation or its officials. In such circumstances, the legal position which has been decided in series of decisions of the Hon''ble Supreme Court are referred to here.

"The Hon''ble Supreme Court in the case of Sanjeesh Babu, referred supra, while considering the correctness of a decision of the High Court of Kerala pertaining to application of candidate for selection to Bharat Gas Distributorship by placing reliance on an earlier decision in the case of Dr. Basavaiah Vs. Dr. H.L. Ramesh and Others, , pointed out that it is a settled legal position that Courts have to show deference and considerations to the recommendations of an expert committee consisting of distinguished experts in the field, when there is no allegation of mala fides, it would normally be wise and safe for the Courts to leave the decision of selection of this nature to the experts, who are more familiar with the technicalities/nature of the work. The Expert Committee having evaluated the experience certificate produced by the candidate, interviewed him by putting specific questions as to direct sale, home delivered products, hospitality/service industry etc., and awarded marks, the High Court ought not to have sat as an appellate Court on the recommendations made by the Expert Committee. It was further held that the High Court was not justified in upsetting the decision of the Selection Committee, particularly in the absence of any mala fides against the Selection Committee and there is no warrant for direction to reassess the marks of the appellant therein afresh. In the light of the detailed explanation offered by the corporation about the mode of selection.""

Here, the petitioner applied on 03.07.2013 for Rajiv Gandhi Gramin LPG Vitrak scheme at Devadanapatti, which is a open category, by advertisement dated 29.05.2013. After the selection process, he was declared as successful candidate by the second respondent by his communication dated 18.11.2013. However, the second respondent, by impugned order dated 25.02.2014, rejected the candidature of the petitioner, on the above said two grounds. Unfortunately, the petitioner failed to prove his claim as though the respondent Corporation rejected his candidature on mala fides and there is arbitrariness or unreasonableness in the selection process made by the respondent Corporation.

This Court, therefore, keeping in mind all the legal principles enunciated in the above decisions and also considering the facts and circumstances of the present case, is able to come to the conclusion that the petitioner did not make out a case for interference with the selection process adopted by the respondent Corporation, more particularly, on the grounds of mala fides, arbitrariness or unreasonableness. In the absence of the same, this Court could not simply interfere with the said process and ultimately, the case of the petitioner fails.

In the result, this writ petition is dismissed. Consequently, the connected miscellaneous petitions are also dismissed. No costs.