IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN TUESDAY, THE 24TH MAY 2011 / 3RD JYAISHTA 1933 WP(C).No. 27099 of 2009(F) -------------------------- PETITIONER: ------------------- SAJEER.K., KARATTIL HOUSE, NORTH KOZHAKOTTUR, ARCODE-673639, MALAPPURAM KERALA. BY ADVS. SRI.S.GOPAKUMARAN NAIR, SENIOR ADVOCATE SRI.M.CHANDRA BOSE DR.ABRAHAM P.MEACHINKARA SRI.A.RAJASIMHAN RESPONDENT(S): ------------------------ 1. THE HINDUSTAN PETROLEUM CORPORATION LTD. REGD. OFFICE 17, JAMSHEDJI TATA ROAD, MUMBAI-400020 REP. BY ITS GENERAL MANAGER. 2. THE DEPUTY GENERAL MANAGER LPG (SZ) HINDUSTAN PETROLEUM CORPORATION LTD., THALAMUTHU NATARAJA BUILDING-1, GANDHI IRWIN ROAD EGMORE, CHENNAI-600008. 3. THE SENIOR REGIONAL MANAGER, HINDUSTAN PETROLEUM CORPORATION LTD., MANGALORE LPG REGIONAL OFFICE, VILLAGE BALA, KUTIPALLA, MANGALORE-575030. 4. AREACODE CO-OPERATIVE BANK LTD., AREACODE.P.O. MALAPPURAM DIST. REP. BY ITS SECRETARY. 5. VINOD KUMAR, KUTTICKATTU HOUSE PANDIKKAD.P.O., MALAPPURAM DIST. 6. ABDUSSALAM PERINGAMAPURATH, KODAVANGATTIL HOUSE, VALILLAPPUZHA P.O., KEEZHPARAMBU, MALAPPURAM DISTRICT. WP(C).No. 27099 of 2009(F) ------------------------------------- R1 TO R3 BY ADVS. SRI.E.K.NANDAKUMAR (SC) SRI.A.K.JAYASANKAR NAMBIAR SRI.K.JOHN MATHAI SRI.P.BENNY THOMAS SRI.P.GOPINATH MENON R4 BY ADVS. SRI.P.K.VIJAYAMOHANAN R5 BY ADV. SRI. JOSEPH GEORGE R6 BY ADV. SRI.T.A.SHAJI BY GOVERNMENT PLEADER SRI.BASANTH BALAJI THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24/05/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 27099 of 2009(F) ---------------------------------------- APPENDIX --------------- PETITIONER'S EXHIBITS ----------------------------------- EXT.P1. COPY OF THE NOTIFICATION DTD. 27.12.07 IN HINDU. EXT.P2. COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER EXT.P3. COPY OF THE ACKNOWLEDGEMENT DTD. 31.1.08. EXT.P4. COPY OF THE EMPANELLED LIST. EXT.P5. COPY OF THE LETTER DATED 2.4.2009 EXT.P6. COPY OF THE COMPLAINT DTD. 6.5.08 ET.P7. COPY OF THE LETTER DATED 10.10.2008. EXT.P8. COPY OF THE REPRESENTATION DATED 25.8.2009 EXT.P9. COPY OF THE STAY ORDER IN W.P. NO.1309/09 DTD. 12.5.09. EXT.P10. COPY OF THE APPLICATION DATED 28.1.08 EXT.P11. COPY OF THE RELEVANT PAGES OF THE BROCHURE EXT.P12. COPY OF THE BROCHURE EXT.P13. COPY OF THE BANK ACCOUNT STATEMNT RESPONDENT'S EXHIBITS --------------------------------------- EXHIBIT R6(A) . COPY OF THE COMMUNICATION DATED 30.9.08. EXHIBIT R6(B). COPY OF THE LETTER DATED 10.04.2008 ISSUED BY THE BRANCH MANAGER, SBI EXHIBIT R6(C). COPY OF THE RELEVANT PAGES OF THE RATION CARD / TRUE COPY / P.A. TO JUDGE VK P.N. RAVINDRAN, J. ------------------------------- W.P.(C) No. 27099 of 2009 ------------------------------- Dated this the 24th day of May, 2011 J U D G M E N T The petitioner, a post graduate degree holder in Engineering, has filed this writ petition aggrieved by the empanelled list prepared by respondents 1 to 3 pursuant to Ext.P1 notification for appointment as Liquified Petroleum Gas Distributor ('LPG distributor' for short) at Areecode in Malappuram District, in the open category. The brief facts of the case are as follows. 2. By Ext.P1 notification published in the Hindu daily dated 27.12.2007, the Hindustan Petroleum Corporation Ltd. and two other public sector oil companies invited applications from various categories of persons for appointment as LPG distributor at various locations including Areecode in Malappuram District. The LPG distributorship at Areecode was of the Hindustan Petroleum Corporation Ltd. Pursuant to the said notification, the petitioner, respondents 4 to 6 and others submitted applications for appointment as LPG distributor in the open category at Areecode. After interview, Ext.P4 list of empanelled candidates dated 11.4.2008 was published. As per the said list, the fourth respondent with 96 marks was the first rank holder, the fifth respondent with 93.5 marks was the second rank holder and the sixth W.P.(C) No.27099 of 2009 2 respondent with 92.5 marks was the third rank holder. The petitioner was the next candidate in the order of merit with 92.33 marks. On a complaint filed by the sixth respondent before the Grievance Redressal Committee of the Hindustan Petroleum Corporation Ltd., he was awarded one more mark raising the marks awarded to him from 92.5 to 93.5 out of 100. As a result thereof, respondents 5 and 6 got the same marks. By virtue of the stipulation in paragraph 11 of Ext.P1 notification, the sixth respondent who was younger in age thereby became entitled to be ranked above the fifth respondent. 3. Ext.P4 empanelled list was published on 11.4.2008. Within a month thereafter, the petitioner submitted Ext.P6 representation dated 6.5.2008 before the third respondent, wherein he contended that the fourth respondent does not satisfy the stipulation in paragraph 13 of the application regarding the minimum extent of land required for locating the godown, and therefore, the application submitted by the fourth respondent was liable to be rejected. The petitioner further contended that as the fifth respondent was a former employee of the Hindustan Petroleum Corporation, the interview board has biased in his favour and he was awarded more marks than the petitioner without any justification. In W.P.(C) No.27099 of 2009 3 Ext.P6 representation, the petitioner requested the third respondent to cancel the empanelled list and to conduct a fresh interview. By Ext.P7 letter dated 10.10.2008, the second respondent informed the petitioner that marks were properly awarded to the fifth respondent by the interview board and denied the allegation that the interview board was biased in favour of the fifth respondent. As regards the fourth respondent, it was stated that the details of the land offered by the fourth respondent for locating the godown will be verified during field verification and prior to the issue of the Letter of Intent. The petitioner was also informed that if upon verification, it is found that the land offered by the fourth respondent is not suitable, the fourth respondent's candidature will be cancelled. 4. Dissatisfied with the reply given to him, the petitioner submitted Ext.P8 representation before the second respondent. In that representation, besides reiterating his contention that the fifth respondent, a former employee of the Hindustan Petroleum Corporation Ltd., was unduly favoured, the petitioner also raised the contention that the sixth respondent who was then a non-resident Indian and an employee of Quatar Petroleum, was ineligible to apply for appointment as LPG distributor. In Ext.P8 representation, the W.P.(C) No.27099 of 2009 4 petitioner contended that as respondents 4 and 6 are ineligible, he will become the second rank holder in the list. The petitioner also pointed out that the fifth respondent who has been empaneled as the first ranked candidate for Valancherry has decided to opt out of the list for Areecode and such being the situation, as he is the candidate having the highest marks in Ext.P4 empanelled list, he is entitled to be selected and appointed as LPG distributor at Areecode. 5. In the meanwhile, by Ext.P5 letter dated 2.4.2009, the third respondent informed the fourth respondent that the land offered by the fourth respondent for locating the godown does not have the prescribed dimensions, and therefore, the fourth respondent is ineligible for appointment as LPG distributor. The fourth respondent thereupon filed W.P.(C) No.13092 of 2009 in this Court. Though initially an interim order of stay was granted by this Court on 12.5.2009 (Ext.P9), the said writ petition was dismissed as not pressed by judgment delivered on 9.9.2010. In the meanwhile, the instant writ petition was filed on 24.9.2009 contending that as the fourth respondent has been disqualified and the fifth respondent has opted for Valancherry instead of Areecode and the sixth respondent is ineligible, the petitioner, the eligible candidate having the highest W.P.(C) No.27099 of 2009 5 marks is entitled to be selected and appointed as LPG distributor at Areecode. The main contention raised by the petitioner is that the sixth respondent who alone remains in the fray is a non-resident Indian and is therefore ineligible to apply for appointment as LPG distributor. The petitioner contends that as a result thereof, as the candidate having the highest marks, he is entitled to be selected and appointed. In this writ petition, the petitioner seeks the following reliefs:- 1. Issue a writ of mandamus, or any other writ, order of direction, directing the respondents 1 to 3 to recast Ext.P4 empanelled list by including the petitioner in the 2nd place in the list next to Sri.Vinod Kumar. 2. Issue a writ of mandamus or any other writ, order or direction, directing the respondents 1 to 3 to appoint the petitioner as LPG distributor for the Areecode Area when Sri.Vinod Kumar opts out of the list. 3. Issue a writ of certiorari, or any other writ, order or direction, quashing Ext.P7 proceedings as arbitrary and illegal. 4. Issue a declaration that the petitioner is entitled to be included as the 2nd candidate in the empanelled list next to Sri.Vinod Kumar being in the 1st place. 6. Respondents 1 to 3 have filed a counter affidavit wherein in paragraph 4 it is stated that the name of the fourth W.P.(C) No.27099 of 2009 6 respondent, the candidate ranked first in Ext.P4 list was removed as fourth respondent did not have adequate extent of land for locating the godown. In paragraph 6 thereof, it is stated that as the sixth respondent is an Indian National, he can apply for the distributorship. However, the counter affidavit proceeds to state that the person selected should pay full attention to the day-to-day working of the distributorship by personally managing the affairs of the distributorship and if he is already employed, he will have to resign from his employment before the issuance of the Letter of Intent. It is further contended that if for any reason, the first three empanelled candidates fail to fulfill the conditions and are found unsuitable, the petitioner will not automatically become eligible for the reason that in such contingencies, the location has to be re-advertised. The petitioner has filed a reply affidavit wherein he has contended that the difference in marks between the petitioner and the sixth respondent is negligible and had he been awarded 04 marks for experience, he would have been ranked above the sixth respondent and would have become the third candidate in the order of merit. 7. The fourth respondent has filed a counter affidavit wherein it is contended that the rejection of the application of the W.P.(C) No.27099 of 2009 7 fourth respondent is illegal. However, in view of the fact that W.P.(C) No.13092 of 2009 filed by the fourth respondent stands dismissed as not pressed, it may not be necessary to refer to the case set out by the fourth respondent in the counter affidavit. The sixth respondent has filed a counter affidavit wherein after admitting the fact that he is employed abroad and is a non-resident Indian, he has contended that his residence abroad is only temporary for the purpose of his employment and that he applied for the distributorship with a view to leave his job abroad and to settle down in his native place. 8. The petitioner has filed I.A.No.1772 of 2011 for an order staying further steps to award the dealership to the sixth respondent pending disposal of the writ petition contending that the sixth respondent has within three months from the date of submission of the application withdrawn the money which was lying in deposit on the date of the application, and therefore, the application submitted by the fourth respondent is liable to be rejected. The petitioner has categorically stated in paragraph 2 of the affidavit filed in support of I.A.No.1772 of 2011 that as per coloumn 14.2 of the application form, the amount mentioned in the application should remain in the bank for a minimum period of three months from the date of application or the W.P.(C) No.27099 of 2009 8 interview whichever is earlier, that the sixth respondent did not maintain the amount mentioned in column 14.2 of the application for the said period of three months and therefore he is ineligible for the award of the distributorship. The petitioner has further stated with reference to paragraph 14.2 of Ext.P12 brochure that the fourth respondent was awarded 18 marks based on his claim that he had Rs.18 lakhs in deposit in the bank as on the date of his application, viz., 31.1.2008, that though the fourth respondent had the sum of Rs.18 lakhs in deposit in State Bank of Travancore, Areecode Branch, as on 31.1.2008 (date of the application), he had withdrawn the sum of Rs.8,25,000/- on 23.2.2008, Rs.2 lakhs on 28.2.2008, Rs.2 lakhs on 19.3.2008 and Rs.3 lakhs on 27.3.2008 and did not maintain the deposit of Rs.18 lakhs for a minimum period of three months as stipulated and therefore, respondents 1 to 3 should have rejected the application of the sixth respondent after field verification. The petitioner has also stated that instead of taking such an action, the first respondent has issued the Letter of Intent to the sixth respondent overlooking his ineligibility. The petitioner has also produced along with I.A.No.1772 of 2011 as Ext.P13, the statement of accounts issued by the State Bank of Travancore, Areecode Branch in support W.P.(C) No.27099 of 2009 9 of the said contention. 9. Though the sixth respondent has filed a counter affidavit dated 7.2.2011 to I.A.No.1772 of 2011, he has not denied the assertion made by the petitioner that the sixth respondent did not maintain the sum of Rs.18 lakhs in the bank deposit for a period of three months from the date of application or interview whichever is earlier. Instead, the sixth respondent has stated that he had maintained a closing balance of Rs.18 lakhs as on 30.1.2008 as well as on 11.4.2008 (date of interview) and that no period has been prescribed during which the amount is required to be retained in the bank. He has also reiterated his contention that he is an Indian National and a permanent resident of India and has also produced the ration card issued to him on 24.12.2008 in support of the said contention. 10. I heard Sri.S.Gopakumaran Nair, learned Senior Advocate and Sri.A.Rajasimhan, learned counsel appearing for the petitioner, Sri.E.K.Nandakumar, learned standing counsel appearing for the Hindustan Petroleum Corporation Ltd., and Sri.R.Surendran, learned counsel appearing for the sixth respondent. The learned counsel appearing for the petitioner submitted that respondents 4 and W.P.(C) No.27099 of 2009 10 5 are no longer in the picture and the dispute has narrowed down to the eligibility of the sixth respondent to apply for the award of the distributorship. The learned Senior Advocate appearing for the petitioner contended that as the sixth respondent was admittedly a non-resident Indian and was employed abroad at the time when he applied for appointment as LPG distributor pursuant to Ext.P1 notification, he was not eligible to apply and therefore his application is liable to be rejected. The learned Senior Advocate also contended that even assuming that the sixth respondent was eligible to apply as claimed by respondents 1 to 3, in view of the fact that the sixth respondent did not maintain the money lying in deposit in the bank on the date of the application for a period of three months as stipulated in column 14.2 of the application, he became ineligible and should have been disqualified after field verification. The learned Senior Advocate also contended that such being the situation, the petitioner being the next eligible candidate in the empanelled list with the highest marks, should have been awarded the distributorship. 11. Per contra, Sri.E.K.Nandakumar, the learned standing counsel appearing for the Hindustan Petroleum Corporation Ltd. submitted that it is not necessary that the person seeking W.P.(C) No.27099 of 2009 11 appointment should be a resident of India on the date of application and that it is enough if he or she is available to supervise the day-to- day functioning of the distributorship, if he/she is selected and the Letter of Intent is issued. The learned counsel further contended relying on the decision of the Apex Court in Smt.Moumita Poddar v. Indian Oil Corporation Ltd. & Anr. (JT 2010 (8) SC 173) that as there is no allegation that the sixth respondent has manipulated the selection or that any undue favour has been shown to him by the selection committee, as the Letter of Intent has already been issued to the sixth respondent and he has commenced operating the distributorship, having regard to larger public interest, this Court may not interfere with the selection and appointment of the sixth respondent. The learned counsel further contended that even going by Ext.P12 brochure, it is not necessary that the applicant should be a permanent resident and it is enough if the applicant resigns from his employment abroad and is personally available to over see the day- to-day functioning of the distributorship. 12. Sri.R.Surendran, the learned counsel appearing for the sixth respondent reiterated the contentions raised by the learned standing counsel for the Hindustan Petroleum Corporation Ltd. The W.P.(C) No.27099 of 2009 12 learned counsel also referred to and relied on the decision of the Apex Court in Bhagwan Dass and Another v. Kamal Abrol and Others (2005 (11) SCC 66) in support of his contention that sixth respondent is a permanent resident of Areecode and the mere fact that he is temporarily residing abroad in connection with his employment will not ipso facto result in his disqualification. 13. I have considered the submissions made at the Bar by the learned counsel appearing on either side. In paragraph 2 of Ext.P1 notification, wherein the eligibility for all categories of applicants is prescribed, it is stipulated that the applicant should (a) be an Indian by Nationality (b) not be less than 21 years of age on the date of application (c) be a Matriculate or recognised equivalent (not applicable to FF/OSP category) (d) be a resident of India (e) fulfil Multiple dealership/distributorship norms and (f) be having sound physical and mental health. In column 7.4 of the application form, it is stipulated that 'persons other than Indian Nationals are not eligible'. In the application the applicant has to state his nationality and also name the town in which he is a resident. In paragraph 4.1 of Ext.P12 brochure, it is stated that 'the applicant should be an Indian citizen and resident of India'. There is no dispute between the parties as W.P.(C) No.27099 of 2009 13 regards the fact that Indian Nationals alone are eligible to apply. The short question is whether a non-resident Indian can be said to be a resident of the locality where the distributorship has been sanctioned. The fact that sixth respondent was on the date of application a non- resident Indian and was employed abroad is not in dispute. The stand taken by respondents 1 to 3 is that even a non-resident Indian is eligible to apply. Respondents 1 to 3 have also taken the stand that if a non-resident Indian is selected and appointed as a LPG distributor, he should pay full attention to the day-to-day working of the distributorship by personally managing the affairs of the distributorship and he/she will not be eligible for taking up any other employment. Respondents 1 to 3 have also taken the stand that if the selected person is already employed, he/she will have to resign from the employment. 14. Ext.P1 notification or Ext.P12 brochure do not stipulate in express terms that a non-resident Indian is not eligible to apply. However, it is stipulated that the person selected must pay full attention to the day-to-day working of the distributorship by personally managing the affairs of the distributorship. Paragraph 7 of Ext.P12 which contains the aforesaid stipulation reads as follows:- W.P.(C) No.27099 of 2009 14 7. PERSONAL SUPERVISION BY DISTRIBUTORS (FOR ALL CATEGORIES): A person selected for the distributorship shall be paying full attention towards day to day working of the distributorship by personally managing the affairs of the distributorship. He/she will not be eligible for taking up any other employment. If the selected person is already employed he/she will have to resign from the employment & produce the letter of acceptance of resignation by the employer before the issuance of letter of appointment by the Oil Company. Paragraph 7 does not according to me give an answer to the question whether a non-resident Indian is eligible to apply. 15. The sixth respondent has in his application dated 31.1.2008, a copy of which was made available to me by the learned standing counsel for the Hindustan Petroleum Corporation Ltd., stated in column 7.4 thereof that he is a resident of Areecode in Malappuram District in Kerala State. The fact that sixth respondent was employed abroad on the date of the application is not in dispute. Even on 20.7.2010, the date on which the counter affidavit was sworn to on behalf of the sixth respondent by his power of attorney, he was employed abroad. The Apex Court has in Bhagwan Dass and Another v. Kamal Abrol and Others, supra, held that the term W.P.(C) No.27099 of 2009 15 “resident” is generally understood as referring to a person in connection with the place where he lives, and may be defined as one who resides in a place or one who dwells in a place for a considerable period of time as distinguished from one who merely works in a certain locality or comes casually for a visit and the place of work or the place of casual visit are different from the place of “residence”. The relevant portion of the judgment is extracted below:- 6. The word 'resident” is in common usage and many definitions were attributed to it in different decisions. Nevertheless, it is difficult to give an exact definition for the term is flexible, elastic and somewhat ambiguous. The meaning of the word “resident” in itself creates certain doubts. It does not have any technical meaning and no fixed meaning would be applicable in all the facts and circumstances. It is used in various senses and has received various interpretations by the courts. Generally, the construction of the term is governed by the connection in which it is used and it is dependent on the context of the subject-matter, and the object, the purpose or result designed to be accompanied by its use, and the meaning has to be adduced from the facts and circumstances taken together in each particular case. The word “resident” as defined in Oxford Dictionary is “to dwell permanently or for considerable time, to have one's stay or usual abode, to live in or at a particular place”. Similarly, Webster's Dictionary has defined it as “to dwell permanently and for any length of time” and words like dwelling place or above are held to be synonymous. From the above it can be seen that the term “residence” makes it clear that the word W.P.(C) No.27099 of 2009 16 “residents” includes two types which are: (1) a permanent residence, and (2) a temporary residence. First type of residence forms all the permanent dwelling which means that the person has settled down at a particular place permanently and regularly for some purpose. The second type refers to a situation that the person is not residing at a place forever but residing at a place for a temporary period or not for a considerable length of time. This is also referred to as a temporary living in a place. Hence, in one place the word “residence” is interpreted in the strict sense to include only permanent living at a place which may be referred to as domicile and in the second place the word is interpreted in the flexible sense to show a temporary or tentative residence. 7. x x x x 8. x x x x 9. x x x x 10. x x x 11. From the aforesaid analysis it is apparent that the word “residence” is generally understood as referring to a person in connection with the place where he lives, and may be defined as one who resides in a place or one who dwells in a place for a considerable period of time as distinguished from one who merely works in a certain locality or comes casually for a visit and the place of work or the place of casual visit are different from the place of “residence”. There are two classifications of the meaning of the word “residence”. First is in the form of permanent and temporary residence and the second classification is based on de facto