IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.11413 of 2009 RAMESHWAR PRASAD CHAUDHARY, SON OF LATE BIYOG LAL CHAUDHARY, RESIDENT OF VILLAGE – MANSHIPUR, BHIJRAULI TOLE, SHAHPUR, P.O. SHAHPUR, P.S. TISIAUTA, DISTRICT-VAISHALI. _____________ Petitioner Versus 1. THE HINDUSTAN PETROLEUM CORPORATION LTD. THROUGH THE CHAIRMAN CUM MANAGING DIRECTOR, LPG DIVISION, 17 JAMSHEDJEE TATA ROAD, MUMBAI. 2. THE DIRECTOR (MARKETING), LPG DIVISION, HINDUSTAN PETROLEUM CORPORTION LTD. 17 JAMSHEDJEE TATA ROAD, MUMBAI. 3. THE DEPUTY GENERAL MANAGER (LPG), HINDUSTAN PETROLEUM CORPORATION LTD., KOLKATA. 4. THE SENIOR REGIONAL MANAGER (PATNA LPG REGION), HINDUSTAN PETROLEUM CORPORATION LTD, LOK NAYAK JAIPRAKASH BHAWAN, 5TH FLOOR, NEAR DAK BUNGALOW ROAD, PATNA. 5. M/S MARUTI CONSTRUCTION PRIVATE LTD, THROUGH ITS MANAGING DIRECTOR, ASHOK KUMAR, SON OF SHRI RAJENDRA PRASAD YADAV, RESIDENT OF MOHALLA, SDO ROAD, P.O. HAJIPUR, PS – TOWN, DISTRICT – VAISHALI. 6. ABHISHEK KUMAR, SON OF LATE (DR), H N GUPTA, RESIDENT OF MOHALLA – HAKSARGANJ, P O – HAJIPUR, P S – TOWN, DISTRICT – VAISHALI (HAJIPUR). _____________ Respondents With CWJC No.15113 of 2009 ABHISHEK KUMAR, SON OF LATE DR. H N GUPTA, RESIDENT OF HATHSARGANJ, P S – HAJIPUR, DISTRICT – VAISHALI AT HAJIPUR. ___________ Petitioner Versus 1. THE HINDUSTAN PETROLEUM CORPORATION LTD. THROUGH ITS CHAIRMAN CUM MANAGING DIRECTOR, LPG DIVISION, 17 JAMSHEDJEE TATA ROAD, MUMBAI. 2 2. THE DIRECTOR (MARKETING), LPG DIVISION, HINDUSTAN PETROLEUM CORPORTION LTD. 17 JAMSHEDJEE TATA ROAD, MUMBAI. 3. THE DEPUTY GENERAL MANAGER (LPG), HINDUSTAN PETROLEUM CORPORATION LTD., KOLKATA. 4. THE SENIOR REGIONAL MANAGER (PATNA LPG REGION), HINDUSTAN PETROLEUM CORPORATION LTD, LOK NAYAK JAIPRAKASH BHAWAN, 5TH FLOOR, NEAR DAK BUNGALOW ROAD, PATNA. 5. M/S MARUTI CONSTRUCTION PRIVATE LTD, THROUGH ITS MANAGING DIRECTOR, ASHOK KUMAR, SON OF SHRI RAJENDRA PRASAD YADAV, RESIDENT OF MOHALLA, SDO ROAD, P.O. HAJIPUR, PS – TOWN, DISTRICT – VAISHALI. 6. AREA MANAGER (LPG) HPCL, LOK NAYAK JAI PRAKASH BHAWAN, 5TH FLOOR, NEAR DAK BUNGLOW ROAD, PATNA. 7. PLANT MANAGER, GIDHA BOTTLING PLANT, PATNA. __________________ Respondents ----------- For the petitioners : M/S. Y V Giri, Sr. Advocate and Hansraj (In CWJC No.11413/09) & Basant Kumar Chaudhary, Sr. Advocate and Shailendra Kumar Singh(In CWJC No. 15113/09). For the H P C L : Mr. Ratnesh Kumar Singh. For the respondents : M/S. Abhay Kumar Singh, Sr. Advocate, Anil Kumar and Madanjeet Kumar. For respondent No.6 : M/s. Basant Kumar Chauhdary, Sr. Advocate and Shailendra Kumar Singh (In CWJC No. 11413/09). For respondent No.5 : M/s. Abhay Kumar Singh, Sr. Advocate, Anil Kumar and Madanjeet Kumar (In CWJC No. 15113/09). ------- 06. 25/02/2010 Since in both these writ applications there are common questions of law and fact, therefore, they have been heard together and are also being disposed of together by a common order. Vide letter dated 3rd September, 2009 contained in Annexure-5 petitioner Abhishek Kumar (of CWJC No. 15113 3 of 2009) was informed by the respondent Hindustan Petroleum Corporation Ltd. that he has lost his merit position in the selection panel on the ground that on field verification certain information provided by him were found to be incorrect or false. This led to award of LPG distributorship to private respondent No.5 namely, M/S. Maruti Construction Private Ltd. This is being termed by the petitioner to be an arbitrary or motivated exercise of power. He also wants quashing of the letter of intent issued by the Corporation in favour of respondent No.5. An advertisement dated 17.10.2007 was issued by the respondent Corporation for award of LPG gas distributorship at Hajipur in the district of Vaishali. The advertisement was under open category. Many a candidates responded including the present petitioner. Interview for selection was conducted between 25th March to 29th March, 2008. The Board consisting of 3 members after conducting interview placed Abhishek Kumar (of CWJC No.15113 of 2009) at merit list No.1. Respondent No.5 was placed 2nd on the merit list and petitioner Rameshwar Prasad Chaudhary (of CWJC No. 11413 of 2009) was placed 3rd. Field verification with regard to various declarations and inputs provided by the selected candidates was carried out by the Area Manager as well as the Plant Manager, respondents No.6 and 7. Petitioner participated in the said interview. No infirmity was pointed out to him. Petitioner in 4 anticipation of letter of intent to be issued in his favour did the preparatory work for setting up of LPG distributorship but to his shock and horror the communication dated 3rd September, 2009 was issued by the Corporation informing the petitioner that he has lost his merit position in the merit panel because of certain incorrect or false facts found and reported in the field investigation or inquiry. Petitioner naturally is aggrieved by such unilateral and arbitrary decision of the respondents contained in Annexure-5 and has decided to challenge it. Petitioner submits that the respondent Corporation has acted in a pre-concerted manner, did not give any opportunity to show cause to the petitioner, no clarification of any kind was ever asked from him and only a final decision in this regard came to be communicated. Petitioner did some fact finding and from the same it has emerged that the company had already issued a letter of intent in favour of private respondent No.5 on 30.7.2009 and the decision to down-grade the petitioner from the merit position was conveyed on 3rd September, 2009. In other words, the Company had already appointed private respondent before downgrading him from the merit panel. From the averments and pleadings further made, it is stated that there are circumstances to indicate that private respondent No.5 had the necessary clout to elbow out the petitioner and if some infirmity has been stated to be the ground for downgrading the petitioner from merit panel then there are many an infirmities 5 even in the appointment of respondent No.5 and the Company has been more than indulgent to accommodate him so he could acquire the dealership. It is the categorical stand of the petitioner that absolutely no incorrect or false statement has been provided by the petitioner. There is neither any suppression of any fact or any misstatement but in a strange kind of interpretation which has been given by the Company officials, which is more of a begotten kind to defeat the claim of the petitioner even though he was number one in the merit list. The Court directed both the official respondents as well the private respondents to file their counter affidavits. The fact that letter of intent had been issued in favour of private respondent No.5 emerged from Annexure-I brought on record by the respondent Corporation. So, the fact that letter of intent was issued much earlier to the letter of cancellation of the petitioner’s candidature is obvious from the records. From the pleadings and the materials brought on record with the counter affidavit it has now emerged that the primary reason for ouster of the petitioner was the interpretation given to the meaning of ‘family unit’ as defined in the brochure and fixed deposit certificate which was furnished by the petitioner showing his financial capability. The Company while carrying out the field investigation came to a considered opinion that some of the fixed deposits which were annexed with the application of 6 the petitioner Abhishek Kumar was in the joint name of the mother of the petitioner and married sisters. The genealogical table of the family of Abhishek Kumar was supplied to the Corporation. It showed that mother of Abhishek Kumar was one Smt. Mina Gupta. He had also unmarried brother Kumar Kunal and two married sisters Manisha Kumari and Nitu Kumari who got married in July, 2001 and July 2005 respectively. From the above fact the fixed deposit receipts specially item Nos. 1, 2, 3, 6 and 7 were found to be jointly owned by mother and married sister, who were out side the family and did not fall within the definition of ‘family unit’. The financial capability of petitioner Abhishek Kumar therefore got judged by wrong parameters. The respondent Corporation has annexed the details of the fixed deposits at Flag F to the counter affidavit. The details of this affidavit show that some of them relate to as far back as of 18.10.1996, some are of the year 2001. Some are in the name of the mother and a few issued on 21.7.2005 in the name of Mina Gupta and Nitu Kumari. So far the status of these fixed deposits are concerned they have been shown to be as E and S meaning Either or Survivor. No doubt from the perusal of the said statement it is apparent that the father of the present petitioner before his death had made certain fixed deposits in the name of his wife and eldest daughter much prior to her marriage. Since these names continued on the original fixed deposits, it has continued even after renewal. They have been 7 renewed on subsequent dates by endorsement made by the mother alone on the back of the fixed deposits. Further even though the name of the sister of the petitioner Abhishek Kumar figures along with the name of the mother, it is the contention of the petitioner that the same cannot be called to be encumbered in any manner so as to take it beyond the definition of ‘family unit’. The time when fixed deposits were obtained the sisters of the petitioner were not married and even otherwise the endorsement is of E and S. In other words, a matured value could be claimed by either or survivor. The sister has already indicated with due declaration that she has no interest or claim to the fixed deposits. Counsel for the petitioner therefore submits that it was an innovation of certain officials of the Corporation to oust the petitioner from the dealership on a totally extraneous consideration and material. All the declarations and fixed deposits had been annexed along with the application which had been verified and marks awarded. Merely because the fixed deposits carried out the name of the sister who was subsequently married, therefore, ineligibility on that score cannot be read. At the cost of reiteration and in reply to the stand taken by the respondents and the so-called reasons being furnished by them, petitioner Abhishek Kumar has annexed Xerox copies of the fixed deposit receipts at annexure 7 series. He has submitted on the basis of said receipts that all those fixed deposits were renewed for further period from time to time only 8 on the signature of the mother and there is no endorsement on the renewal by the sister and the bank has had no objection in extending the period of maturity. If only the respondent Corporation would have sought a clarification from the petitioner on this score, all these aspects would have been explained and the present situation would not have arisen. But then from the very conduct of the respondents, they wanted to favour respondent No.5 with award of dealership and therefore, a letter of intent was issued in his favour on 30th August, 2009 and the letter disqualifying the petitioner was communicated to him on 3rd September, 2009. Petitioner also submits that there are many an infirmities in the application made by the private respondent but still all that was ignored and he was given time to make necessary corrections and file documents at the subsequent stage. The respondent No.5 Maruti Constructions Pvt. Ltd. did not have any acquired title to the land which was shown to be within his possession and available for setting up of showroom and godown. The land was pledged and mortgaged with the bank. No objection certificate has been obtained from the bank by Maruti Constructions Private Ltd., at a much subsequent stage, which would be borne out from Annexure-G to the counter affidavit filed on behalf of respondent No.5 in CWJC No. 11413 of 2009. The so-called no objection certificate issued by the HUDCO is dated 24.3.2008. It is also indicated that the so-called land did not 9 exist in the name of Maruti Constructions Private Limited but in the name of one R P Cold Storage. The no objection obtained by Maruti Constructions Private Limited from Canara Bank and HUDCO was produced after letter of intent. When it came down to certificates annexed by Maruti Construction showing experience, none of them relate to the Company Maruti, may be R P Cold Storage is part of the family business but then R P Cold Storage was not the applicant before the Corporation but the Maruti Construction. The date of advertisement was 10.10.2007 and many a things have been done thereafter. It is also alleged that financial statement for the year 2006-07 was not given nor was the last three years profit but all this was ignored and in a rushed manner letter of intent was issued in favour of private respondent and petitioner Abhishek Kumar disqualified. In the writ application filed by Rameshwar Prasad Chaudhary, he has also assailed the appointment of Maruti Constructions Pvt. Ltd.. He too wants quashing of the appointment of respondent No.5as a dealer of LPG gas distributorship; as well as quashing of letter of intent issued in favour of respondent No.5. He too has brought evidence and material to show that selection of Maruti Construction is in breach of the guidelines. From the supplementary affidavit filed on behalf of respondent No.5 and based on the statement made in para 4 thereof, he has pointed out that showroom and godown has been shown at two parcels of land. Part of the land belongs to 10 Maruti Construction and rest belongs to R P Cold Storage. Maruti Construction has been given 10 marks for showroom land etc. which is the maximum marks. When the land in entirety was not owned by it, the marks awarded should be 7 and not 10. There is no disclosure of the identity of the land etc. and all these facts have been glossed over to accommodate respondent No.5 who stated to be very well connected as his father was supposed to be a legislator and has enough political clout. From the above matrix of facts and submission the question which the Court now has to decide is whether the action of the respondent and its officials in ousting the petitioner namely, Abhishek Kumar despite his being placed at merit list No.1 is justifiable and sustainable. From what has been discussed above, the Court has no hesitation in recording that officers of the Corporation have acted in an infirm and unreasonable manner and they have twisted the facts in the field verification and there is deliberate effort to create an impediment in the way of the selection of Abhishek Kumar. The Court has first already taken into account the statement with regard to the status of fixed deposits and if that is the only ground on which the petitioner has been disqualified then in the eye of law it is extraneous, irrational and does not suffer from the so-called breach of definition of ‘family unit’. By taking into consideration the various pleadings and the materials which have been brought on record by 11 the petitioner of CWJC No. 11413 of 2009 namely, Rameshwar Prasad Chaudhary as well as statements made by private respondent No.5, the Court holds that the Company has been more than indulgent and accommodative towards respondent no.5. If the claim of Abhishek Kumar could be defeated on such a hyper technical ground, which is also not found to be sustainable by this Court, then the Court fails to understand as to how the officials of the Corporation could be so large hearted and blind to some other statements and facts when it came down to declarations and documentation made by the Maruti Constructions. Obviously the Corporation was either under pressure or obligation to accommodate respondent No.5 and all their energy therefore has been directed against Abhishek Kumar in ousting him and denying the benefit of appointment and selection as LPG dealership. The Court also notices that there is hardly an explanation coming form the Corporation as to why the reason for disqualification of the petitioner contained in Annexure-5 did not state the grounds or as to how the appointment of respondent No.5 came to be made earlier and disqualification of petitioner Abhishek Kumar at a subsequent stage. These are matters may be which requires investigation and in this regard the Chairman of the HPCL would be well advised to make an enquiry, may be by its Vigilance Department. In the factual matrix the Court quashes the 12 impugned order dated 3rd September, 2009 contained in Annexur- 5, as well as the letter of intent dated 30th July, 2009 as well as the appointment of respondent No.5 as a LPG gas distributorship for Hajipur. Respondents are directed to take all steps for appointment of petitioner Abhishek Kumar as a dealer for LPG gas since the reason stated by them in the counter affidavit does not stand scrutiny of law. In view of the above CWJC No. 11413 of 2009 filed by petitioner Rameshwar Prasad Chaudhary is fit to be dismissed since he happens to be third on the merit panel and has no legal right of appointment in above stated position. So far as CWJC No. 15113 of 2009 filed by Abhishek Kumar is concerned, it stands allowed. rkp ( Ajay Kumar Tripathi, J )