IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.704 of 2010 1. RANI DEVI, W/O LATE SOLDIER MANOJ KUMAR, R/O VILLAGE+P.O.&P.S-MAINATAND, DISTRICT-WEST CHAMPARAN. Appellant. Versus 1. THE UNION OF INDIA THROUGH THE SECRETARY, DEPARTMENT OF PETROLEUM AND NATURAL GAS, NEW DELHI. 2. THE DIRECTOR GENERAL (RESETTLEMENT), GOVT. OF INDIA, WEST BLOCK IV, R.K.PURAM, NEW DELHI 3. THE CHAIRMAN, INDIAN OIL CORPORATION LIMITED,MUMBAI. 4. THE GENERAL MANAGER, null INDIAN OIL CORPORATION LTD MARKETING DIVISION, BIHAR STATE OFFICER,LOKNAYAK JAI PRAKASH BHAWAN,5TH FLOOR,DAK BUNGLOW CHOUK,PATNA. 5. THE SENIOR AREA MANAGER, null INDIAN OIL CORPORATION LTD ,MARKETING DIVISION, EASTERN REGION, INDANE AREA OFFICE, PATNA,SHASHI BHAWAN, EXHIBITION ROAD, PATNA 6. ASHA DEVI, W/O LATE VINOD KUMAR SINGH, R/O VILLAGE- LAL PARSA, P.S.- SUGAULI, DISTRICT- WEST CHAMPARAN. Respondents. ----------- 6/ 20/05/2010 Heard learned counsel for the appellant, for the Indian Oil Corporation Limited and for the private respondent No.6. Since the judgement impugned does not incorporate the necessary facts of the case, we propose to narrate the same adequately as we are of the opinion that appreciation of the facts are vital for adjudication of the matter. An advertisement was published on 17.10.2007 by the respondent Corporation inviting applications under the reserved category for defence personnel Liquified Petroleum Gas (hereinafter referred to - 2 - as “L.P.G.”) Dealership at Raxaul in the district of East Champaran. The appellant and the respondent No.6 both appeared at the interview held on 6.12.2008. Respondent No.6 was placed at Serial No.1 of the merit panel, the appellant at Serial No.2 and another at Serial No.3. Clause 5(b) of the brochure for selection of L.P.G. distributors in the defence category classifies widows of defence personnel in separate categories and grants inter se priority to them as follows:- “(a) Widows/dependents of Posthumous gallantry award winners. (b) War widows/dependents of those who died in war. (c) War disabled/disabled on duty. (d) Widows/dependents of those who died in harness due to attributable causes. (e) Disabled in peace due to attributable causes.” Factually the husband of both the appellant and the private respondent No.6 died for attributable causes in harness. Both of them therefore fell under Category-5(b)(d). They therefore formed one class to be considered accordingly insofar as their inter se rival competing claims for appointment are considered are concerned. The question of treating them as equals along - 3 - with the persons in category-a, b, c and e did not arise as they formed a separate class. What Article-14 of the Constitution of India mandates is that equals have to be treated alike and not that unequals have to be treated alike. It is an undisputed fact between the parties that the private respondent No.6 though falling under category-5(b)(d) as the petitioner, nonetheless applied and was given a certification by the Director General of Re-settlement (D.G.R.) that her husband died in war thus placing her in the applicant category -5(b)(b) The defence personnel who died in war and a defence personnel who died in harness for reasons not attributable to his duties in defence of the nation obviously fell in different categories and therefore could not be considered as one class and therefore has to be considered by the respondent corporation on that basis for inter se priority. Clause-23 of the brochure for selection of dealers provides as follows:- “23. FURNISHING OF FALSE INFORMATION. If any information furnished by the applicant is found to be false at any point of time before or after appointment as a dealer, the allotment will be cancelled forthwith and distributorship terminated in case commissioned.” Under the aforesaid clause-23 any application submitted under the category not relevant to the - 4 - applicant under Clause-5(b) would per se make the application defective and had to be rejected outright. If a defence personnel died for attributable causes in service and not in course of war as was certified erroneously, the application of respondent No.6 being per se defective had to be rejected outright. If the application was defective at the very inception and was wrongly entertained, the entire process thereafter gets vitiated. The appellant on 10.12.2008 raised an objection that the respondent No.6 had wrongly represented herself as a widow of a defence personnel who died in course of war and obtained consideration for dealership and selection on that basis in a category having priority over the appellant though both were factually falling in one category itself. Only then the D.G.R. on 9.8.2005 wrote to the respondent corporation that after the filing of the writ petition and matters brought to its attention the D.G.R. realized that it had issued a wrong certificate and that the respondent No.6 was the widow of a defence personnel who only died in harness for attributable causes. The error committed by the D.G.R. is one aspect of the matter. The other is the conduct of the respondent No.6 herself. Surely, no one knew better than her how her husband died. She consciously accepted an - 5 - erroneous certificate issued by the D.G.R. and on strength of such an erroneous certificate, incorrect to her knowledge, applied for the dealership in question seeking consideration in priority over the widow of those defence personnel who died in harness for attributable causes. In the counter affidavit before the writ court respondent No.6 at paragraph-14 of the counter affidavit asserted that she and the appellant fell in the same category of Clause-5(b)(b). Therefore, even after her categorization had been questioned and the D.G.R. correcting itself, she still insisted on pursuing her claim under a wrong category. Had the appellant not raised the issue, respondent No.6 would have been sanguine in having obtained dealership on an incorrect representation. Nothing has been urged before us to demonstrate why respondent No.6 did not take appropriate steps for correction of her categorization as a widow of a defence personnel under Clause-5(b)(b) of the brochure for dealership selection before selection to the respondent corporation or why she did not do so at any stage during the process of selection or even thereafter. According to her own case, respondent No.6 is a Matriculate and not an illiterate lady. Therefore she was fully capable of reading and understanding not only the - 6 - conditions of prioritization under the brochure but also the incorrect recordings of her status in the certificate issued by the D.G.R. Her conduct in this regard in having pursued the matter actively under a wrong certificate to her knowledge cannot simply be lost sight of. The result was that at the stage of interview the petitioner and the respondent No.6 who fell in one category, 5(b)(d) and were to be treated alike for consideration, came to be treated as unequals though they were equals. Respondent No.6 gained advantage over the appellant by claiming the higher priority category of Clause-5(b)(b) as distinct from the lower priority of Clause-5(b)(d). It has to be kept in mind that the selection was on an interview only by a board of three members. Prioritization of widows of defence personnel had its own objective. It is not a case of preference simpliciter amongst persons similarly situated. It is difficult for us to enter into the minds of the members of the interview board and decipher what weighed in their mind and what passed their minds while awarding marks at the interview when obviously the aspect of inter se priority amongst the applicants undoubtedly must have weighed being a sub-conscious factor in their awarding marks. The submission on behalf of the respondents - 7 - that there was no deliberate fraud played, that it was an inadvertent error which has now been corrected by de- scaling of the marks of respondent No.6 when she still retains her panel position, does not impress. The foremost question to our mind is the infirmity in the decision making process at the very inception in entertaining an application based on incorrect facts when it was required to be rejected under the brochure. The active pursuit of such an incorrect application led to obtaining of a benefit illegally thereunder at the stage of consideration. The consideration done at the initial stage when two persons similarly situated came to be treated as unequals resulting in grant of priority to one of them is in teeth of Article-14 of Constitution of India. The infirmity goes to the root of the decision making process itself. These questions of fact and law have not been considered by the writ court when it dismisses the same as a “misplaced kind of categorization” to hold that as the respondent corporation had accordingly descaled the marks of respondent No.6 for her categorization, the defects stood remedied. The finding that the respondent corporation made queries from the D.G.R. is factually contrary to records as discussed above. We therefore find it difficult to affirm the judgement under appeal in light of - 8 - the aforesaid discussions. The words 'preference' and 'priority' have different legal connotations. In P. Ramanatha Aiyar's Advanced Law Lexicon, 3rd Edition, 'preference' has been described as “the act of prefering one thing above another; estimation of onething more over another; choice of one thing rather than another”. It is apparent that the question of preference would arise between applicants in the same category and not different categories. On the contrary, 'priority' has been defined as “a legal preference or precedence (as) priority of claims. The latter therefore connotes separate classification and the giving of precedence. A Bench of this Court on 18.5.2009 after the counter affidavit was filed by the Indian Oil Corporation observed as follows:- “In view of the facts as noted in the order dated 17.4.2009 it is directed that no letter of intent shall be issued to respondent No.6, if not already issued, parties would maintain status quo.” Counsel for respondent No.6 sought to persuade us that the letter of intent had, in fact, already been issued to her by registered post on 10.3.2009. On record, however, is the letter of the respondent corporation dated 26.2.2010/5.3.2010 furnished to the appellant under the Right to Information Act which very - 9 - clearly states that the letter of intent has been issued on 22.9.2009. The contention therefore of respondent No.6 that the dealership has become operational on 31.3.2010 after dismissal of the writ petition on 16.2.2010 to persuade us that this Court may not interfere in equity at this belated stage does not impress. We wish to make it clear that the question before us was quite simply one of fact with regard to an incorrect categorization and defective application, the pursuit of the same, the consideration thereof, till such time that the appellant strenuously pursued the same and unraveled the truth of the case. Had it not been so it would have well suited respondent No.6 to obtain an advantage contrary to law. In the entirety of the facts and circumstances of the case we are satisfied that the grant of dealership to respondent No.6 cannot be sustained as the entire decision making process and consideration stood vitiated which permeates the entire selection process itself including grant of marks for which what the corporation submits as corrective measures is not sufficient to wipe out the vice committed contrary to Article-14 of the Constitution of India right at the inception of the selection process. The selection and grant of dealership to - 10 - respondent No.6 is therefore set aside. The respondent corporation is directed to advertise afresh and proceed for fresh interview and selection in accordance with law. The judgement under appeal is set aside and the appeal stands allowed. KC ( Navin Sinha, J.) ( Dinesh Kumar Singh, J.)