Oil Selection Board (Bihar) and Indian Oil Corporation Ltd. vs Shashi Bhushan Singh and Others

D.P Wadhwa, C.J. and Aftab Alam, J.—These two appeals, one by the Oil Selection Board and the other by the Indian Oil Corporation Limited arise from a common judgment dated November 3, 1995 [ Shashi Bhushan Singh and Another Vs. Oil Selection Board, Bihar and Others, ] whereby a learned Single Judge of this Court allowed the writ petition filed on behalf of Respondents 1 and 2 and directed the Appellants "to issue letter of intent in respect of distributorship of L.P.G. (Indane) Gas Cylinder in favour of the Petitioners either at Sonari or at Burma Mines as Jamshedpur."

The writ petition involved a dispute relating to the grant of distributorship of L.P.G. for Mango, Jamshedpur. The Corporation on the recommendation of the Selection Board had awarded the distributorship to Respondent No. 5. Aggrieved by this, Respondents 1 and 2 who had made a joint application as partners came to this Court, initially in C.W.J.C. No. 396/94 which was disposed of by order dated 9.2.1994 directing the Selection Board to consider and dispose of their representation against their non-selection for the distributorship. Following the Court''s direction the Selection Board disposed of the Respondents'' representation by its order dated 8.4.1994 stating that the Respondents were not recommended as they were placed third in the selection list prepared by the Board. This order was challenged successfully by the Respondents before this Court in C.W.J.C. No. 4127/94 [ Shashi Bhushan Singh and Another Vs. Oil Selection Board, Bihar and Others, ] from which these appeals arise.

The relevant facts can be stated in brief as follows:

An advertisement for the dealership of L.P.G. at Mango, Jamshedpur was issued by the Corporation on 28.2.1988. Respondents 1 and 2 made a joint application in response to the advertisement. There were a number of other applicants including Respondent No. 6. The applicants were interviewed on 13.9.1990 by the Oil Selection Board (East) which had been constituted on a zonal basis and was then in existence. Following the interview the Board prepared a panel of three names in which Respondents 1 and 2 were placed at serial No. 1. There is a controversy between the parties regarding the two partners being listed at serial No. 1 in this panel. According to Respondents 1 and 2 the panel was prepared in order of merit and their being at the first position indicated that they had secured the highest marks in the interview. According to the Appellants, on the ''other hand, the panel prepared by the Zonal Selection Board was not merit based. It simply contained the name of three candidates who were short listed on the basis of the interview and their names in the panel were arranged in alphabetical order.

At that time the selection process also included field investigations in respect of the candidates, short-listed and found eligible by the Selection Board. Accordingly, the names of the three candidates included in the panel were forwarded to the Corporation asking it to send the field investigation report in respect of the three candidates. The panel or the candidates'' respective position therein was not communicated either by the Board or by the Corporation to any of the three candidates.

Before the field investigation report could be considered by the Selection Board on the basis of which it would prepare the final select list, the Board was dissolved by an order of the Ministry of Petroleum as a result of Which the selection process commencing on the basis of the advertisement dated 28.2.1988 could not proceed any further.

Three years later in 1993 a new Selection Board was constituted, this time on a State wise basis instead of zonal basis. There was also some changes in the selection process and under the changed procedure, field investigation report was no longer a part of the selection process and candidates were not to be selected on the basis of the interview alone.

The newly constituted Board, in order to avoid any further delay in the appointment of dealers took a decision to proceed from the stage at which the selection process had stopped with the dissolution of the earlier Board. It accordingly decided not to issue any fresh advertisements etc. in respect of 17 dealerships including the one for Mango but to call the candidates who were short-listed by the earlier Board. It accordingly called for an interview on 19.8.1993 the three candidates for Mango including Respondents 1 and 2 and Respondent No. 6. According to the Appellants, in this interview held by the newly constituted Selection Board Respondent No. 6 secured the highest marks and was placed first in order of merit. He was accordingly recommended for the grant of distributorship by the Corporation. On the basis of the recommendation made by the Selection Board, the Corporation awarded the dealership for Mango to Respondent No. 6.

In the judgment and order coming under appeal the learned Single Judge found in favour of Respondent Nos. 1 and 2, that the names of the candidates in the 1990 panel were arranged on the basis of merit and the two Respondents were at serial No. 1 having secured the highest marks. It was also noted that the field investigation report submitted on the basis of that panel was in favour of the two Respondents. It was also noted that in some cases recommendations were made by the newly constituted Selection Board on the basis of the panel prepared by the erstwhile Board. On the basis of these findings the learned Single Judge reasoned that it was no longer open to the newly constituted Selection Board to undertake a fresh selection of candidates and to alter the respective position of the names in the 1990 panel by placing Respondent No. 6 at serial No. 1 and Respondents 1 and 2 at serial No. 3. The learned Judge, accordingly, held that irregularities were committed in making this selection and recommendation for the grant of dealership at Mango.

Having arrived at this finding the learned Judge noticed that Respondent No. 6, following the award and commissioning of the dealership had made an investment of a considerable sum of Rs. 6 lakhs in the construction of godown(s) and in setting up show room etc. For an equitable consideration, therefore, he held that it would not be in the interest of justice to disturb the dealership at Mango in favour of Respondent No. 6. Instead, on the basis of a petition filed by Respondents 1 and 2, after the hearing of the writ petition had concluded and the judgment was reserved, stating that they were willing to accept the dealership at Sonari or at Burma Mines in place of Mango, gave a direction to the Appellants to issue letter of intent for the distributorship of L.P.G. (Indane) in favour of Respondents 1 and 2 either at Sonari or at Burma Mines.

We have heard Mr. Kali Das Chatterji on behalf of the Appellants, Mr. Shivajee Nath Roy for Respondent Nos. 1 and 2 (the writ Petitioners) and the learned Counsel for Respondent No. 6. We have also perused the judgment and order passed by learned Single Judge. Having given the matter our careful consideration we find that the order passed by learned Judge is quite untenable.

As regards the plea that in some cases the newly constituted Selection Board made its recommendations simply on the basis of the panel prepared by the erstwhile Board and without undertaking any fresh selection by itself, it is to be noted that those cases were quite different from the present case. In those cases, after considering the field investigation reports the erstwhile Board had finalised the panel. In other words, the selection process had already concluded and all that was left was the issuance of the necessary letters to the selected candidates. In this case as noted above, the selection process was yet to be completed inasmuch as the Selection Board had not had the occasion to consider the field investigation reports in respect of the candidates in the panel.

We are also of the view that the finding recorded by the learned Judge that the 1990 panel was prepared on the basis of merit and that Respondents 1 and 2 figured at serial No. 1 in that panel, having secured the highest marks is not wholly free from doubt. We find no reason to disbelieve the assertions made by the Selection Board and the Corporation that the names of the candidates in the 1990 panel were listed in alphabetical order and not on the basis of merit and it appears to us that the learned Single Judge in this regard has placed undue reliance on the language used in the order of the Selection Board rejecting the representation filed by Respondents 1 and 2.

Even assuming that the 1990 panel was prepared on the basis of merit there was nothing to prevent the newly constituted Selection Board to make a fresh selection on the basis of an interview held by it and to say that no interview was held by the newly constituted Board simply because the word interview was not mentioned in the call letter issued by it would be stretching things a little too far. In case the newly constituted Selection Board, in order to avoid any further delay decided to confine the selection from amongst the three candidates, shortlisted by the erstwhile Board we find no unreasonableness in the decision and at least Respondents 1 and 2 can make no grievance of it as all they were entitled to was a fair consideration of their claims. By calling them for interview alongwith the other two candidates their claim received full consideration by the Selection Board and in case Respondent No. 6 was selected in preference to them, this Court would not sit in appeal dver the selection.

The weakest part of the judgment and order coming under appeal appears to us where the learned Single Judge issued a direction for the grant of dealership to Respondents 1 and 2 either for Sonari or for Burma Mines. As noted above, notwithstanding the finding that the selection process suffered from some irregularities, the learned Single Judge, for equitable considerations had decided not to disturb Respondent No. 6. This is quite understandable and that being the position the learned Single Judge, in our opinion, ought to have held that in the facts and circumstances of the case no relief could be granted to the Petitioners and should have dismissed the writ petition. Instead of that, direction was issued to grant dealership to Respondents 1 and 2 at a different place than the one which was the subject matter of dispute in the writ petition. In issuing such a direction the learned Judge appropriated and assumed the functions and powers of the Oil Selection Board and Veritably shut out from any consideration a large number of prospective candidates who were otherwise-entitled to make application and to be afforded a consideration for the grant of dealership for the locations in question. In our considered opinion, therefore, the operative order is wholly unsustainable in the eye of law.

For the reasons stated, we are of the opinion that the two appeals are fit to be allowed. We, accordingly, allow the two appeals, set aside the judgment and order dated November 3, 1995 passed by the learned Single Judge in C.W.J.C. No. 4127/94 [ Shashi Bhushan Singh and Another Vs. Oil Selection Board, Bihar and Others, ] and dismiss the writ petition filed by Respondents 1 and 2. There will be, however, no order as to costs.