Surender Deo Agarwal vs Union Of India Thru Secy. ...
2011 Latest Caselaw 3610 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

 Court No. - 2
 

 
Case :- WRIT - C No. - 13360 of 2009
 

 
Petitioner :- Surender Deo Agarwal
 
Respondent :- Union Of India Thru Secy. Petroleum And Others
 
Petitioner Counsel :- K.M. Misra,H.R. Misra
 
Respondent Counsel :- A.S.G.I.,Dr. A.K. Nigam,K.K. Mishra,P.N.Saxena,Prakash Padia
 

 
Hon'ble Ashok Bhushan,J.

Hon'ble Bharati Sapru,J.

Heard Sri H.R. Misra, learned Senior Counsel for the petitioner and Sri Prakash Padia, learned Counsel appearing for the respondents No. 2 and 3 as well as Sri P.N. Saxena, learned Senior Advocate, assisted by Sri K.K. Misra for the respondent No. 4.

By this writ petition, the petitioner has prayed for quashing the order dated 14.12.2007, issued by the respondent no. 2 as well as communication dated 28.2.2009 by which 19.3.2009 was fixed for interview for allotment of LPG distributorship at Baragaon, Varanasi.

The petitioner as well as the respondent no. 4 were applicants for the distributorship of LPG. The select pannel was earlier prepared, in which the petitioner was shown at serial No. 1 and one Uma Kant Misra at serial No. 2 and respondent no. 4 at serial no. 3. A detailed complaint was submitted by the respondent no. 4 against the empanelling the petitioner at serial no. 1, copy of which has been filed as Annexure-3 to the writ petition. A letter dated 3.5.2005 was received by the petitioner informing him that complaint had been received hence, the matter was kept in abeyance. The writ petition was filed by the respondent no. 4 being writ petition No. 25717 of 2005, which was disposed of by a Division Bench on 4.4.2005, directing for consideration of the complaint submitted by the respondent no. 4.

The General Manager passed the order 30.10.2005 holding that evaluation carried out by the selection committee was not as per the policy/guidelines of the Corporation hence, cancelled the merit panel submitted by the Selection Committee based on the interview conducted from 3.3.2005 to 5.3.2005 and order was passed for conducting re-interview. The petitioner aggrieved by the said decision approached this Court by filing writ petition No. 71560 of 2005. A Division Bench of this Court after considering the matter by order dated 2.8.1997 disposed of the writ petition remitting the matter back to the General Manager for reconsideration of the representation/complaint submitted by the respondent no. 4, Pramod Kumar Singh and pass appropriate,reasoned and speaking orders. It is useful to quote the operative portion of the order:

" In the facts and circumstances of the case, we are of the considered opinion that the matter requires reconsideration by the General Manager in the light of the above observations. Accordingly, a review of the order is necessary in the interest of justice. It is not in the domain of the Court to grant a licence or appoint a L.P.G. Distributor. This has to be done by the appropriate authority of the Indian Oil Corporation. We remand the matter back to the General Manager, Indian Oil Corporation i.e. respondent no. 1 for reconsideration and he will reconsider the representation/complaint submitted by the respondent no. 3 and pass appropriate, reasoned and speaking order after taking into account all the aspects of the matter and the submissions made in this petition. The concerned parties shall be heard by him. This exercise shall be completed within a period of one month from the date of filing a certified copy of the order before him.

Subject to the observations made above, the writ petition stands disposed of."

In pursuance of the direction of this Court dated 2.8.2007, the General Manager passed a detailed order on 14.12.2007 in which he has recorded a finding that the marks awarded to the petitioner by Dealer's Selection Committee under different heads were not as per policy/guidelines of the Corporation. The merit pannel dated 5.3.2005 was cancelled and reinterview was directed as per policy/guidelines of the Corporation. The petitioner instead of challenging the said order in this Court, submitted certain representation to the Ministry of Petroleum and Natural Gas. The Corporation fixed 12.2.2008 to 15.2.2008 as the dates for re- interview but the same could not be held. Again on 19.9.2008 the date was fixed for re-interview, on which date also re-interview could not be held. Subsequently, when the notice dated 28.2.2009 was issued to the petitioner fixing 19.3.2009 as the date for re-interview, the petitioner filed the present writ petition challenging the notice dated 28.2.2009 as well as the earlier detailed order passed by the General Manager dated 14.12.2007 by which the select pannel was cancelled.

Sri H.R. Misra, learned Counsel for the petitioner challenging the order contends that the order dated 14.12.2007 communicated on 20.12.2007 is not in accordance with the directions issued by the Division Bench on 2.8.2007. He submits that only direction issued by the Division Bench was for consideration of the complaint of respondent no. 4. He further submitted that it was not open for the respondents to either receive any further representation or to obtain fresh inquiry report. He submits that the Corporation has travelled beyond the directions issued by this Court in calling for fresh inquiry report and placing reliance upon the same. He submits that the order of the General Manager is violative of the directions of this Court dated 2.8.2007. He submits that order of the Division Bench has to be read as clear restraint in considering any further representation. He placed reliance on the judgment reported in (2010) 11 Supreme Court Cases 557 MANOHAR LAL (Dead) BY LRS. Versus UGRASEN (Dead) BY LRS. & ORS.

Sri Prakash Padia, learned counsel for the respondents refuting the submissions of the learned counsel for the petitioner contended that the Corporation was well within his right to consider the marks allocated to the petitioner under different heads. He submitted that the complaint submitted by respondent no. 4 was against the entire selection and the marks awarded to the petitioner. He submits that it was not confined only to the allegation of the respondent no. 4 that he was awarded 7 less marks. He submits that when the matter was remitted, the General Manager was fully empowered to consider the matter. He submits that there was nothing in the order dated 2.8.2007 by which General Manager was restrained from obtaining further report. He further submits that so far as challenge to the order dated 14.12.2007 is concerned, the writ petition is barred by laches since the petitioner has approached this Court in March, 2009 i.e. after more than one and half years from the date of the order. He submits that the re-interview is only consequential action to the order dated 14.12.2007 and the petitioner ought to have challenged the same within reasonable time.

Sri P.N. Saxena, learned Counsel appearing for the respondent no. 4 submits that although there are specific findings in the order dated 14.12.2007 that allocation of marks to the petitioner under different heads is not in accordance with the policy/guidelines of the Corporation but there is no challenge on merits to the said finding in the writ petition except general allegations. He further submits that only challenge in the writ petition is with regard to the jurisdiction of the Corporation to proceed to examine the allocation of marks to the petitioner which according to the petitioner is not in conformity with the earlier direction of the Division Bench judgment dated 2.8.2007 passed in writ petition No. 71560 of 2005.

We have considered the submissions of learned Counsel for the parties and have perused the record.

The principal submission which has been made by learned counsel for the petitioner is that the decision taken by the Corporation on 14.12.2007 is in violation of the directions issued by the Division Bench dated 2.8.2007. The submission is that the order of the Division Bench does not permit the corporation to enter into the allocation of marks to the petitioner and the order has to be read as prohibiting any exercise except the consideration of the complaint submitted by the respondent no. 4. The relevant partition of the order of the Division Bench of this Court dated 2.8.2007 as quoted above, remitted the matter back for reconsideration. We quote the relevant portion of the direction " We remand the matter back to the General Manager, Indian Oil Corporation i.e. respondent no. 1 for reconsideration and he will reconsider the representation/complaint submitted by the respondent no. 3 and pass appropriate, reasoned and speaking order after taking into account all the aspects of the matter and the submissions made in this petition."

The order dated 30.10.2005 which was passed by the Corporation cancelling the selection panel had clearly concluded that evaluation done by the Selection Committee was not as per the policy/guidelines of the corporation due to which the merit panel was cancelled. The said order was set aside by the Division Bench on 2.8.2007 and matter was remitted back. We fail to see any restraint in the order of the Division Bench dated 2.8.2007, where by the General Manager was restrained from considering the whole issue afresh or to obtain any further report. The Division Bench directed to consider the complaint submitted by the respondent no. 4. The complaint which was submitted by the respondent no. 4 attacked the very selection on the ground that there was no transparency in the interview and allegation was that the petitioner has manipulated the selection in his favour due to the favour done by the certain officers of the corporation. When the order of the Corporation was set aside and the matter was remitted back for reconsideration, the question was very much open for the Corporation to examine as to whether the evaluation carried out by the Dealer's Selection Committee was as per the policy/guidelines of the Corporation. The petitioner's case is that the respondent no. 3 was to consider the complaint of respondent no. 4 in so far as he had alleged that he was given seven less marks and it not open to the Corporation to examine the whole matter. Exercise of the Corporation could not be confined only to the extent as to whether the respondent no. 4 was given less seven marks or not. Thus, the submissions of the petitioner that the order of the General Manager dated 14.12.2007 is in disobedience of the order of this Court dated 2.8.2007 cannot be accepted. Learned counsel for the petitioner in support of his submission has relied on the judgment in the case of Manohar Lal (supra). In the aforesaid case the writ petition was filed in the High Court being writ petition No. 4159 of 1980 by one Manohar Lal in which the High Court restrained the authorities from making allotment of anyone else from the land allotted to him. In breach of the said interim order, the State Government directed the Ghaziabad Development Authority to make allotment in favour of Ugrasen. The facts of the said case have been clearly noted in paragraphs 6 and 7, which are quoted below.

6. At the time of consideration of application of Ugrasen by the State Government, the Ghaziabad Development Authority (hereinafter called GDA) vide letter dated 18.3.1980 pointed out that submission of application by Shri Ugrasen was surrounded by suspicious circumstances as it was the last entry made on 31.12.1966 and signature of the receiving clerk had been made by a person who joined service only in 1979. In the meanwhile, Shri Manohar Lal filed Writ Petition No. 4159 of 1980 and the High Court restrained the authorities from making allotment to anyone else from the land allotted to him as per letter dated 7.3.1980.

7. In spite of the said interim order in force, the State Government vide order dated 12.12.1980 directed GDA to make the allotment of land in favour of Shri Ugrasen and thus, in compliance of the same, GDA issued letter of allotment dated 22.12.1980 in his favour. Shri Ugrasen submitted letter dated 1.1.1981 to GDA to give an alternative land as the land covered by Plot Nos. 5 to 16 had been subject matter of the interim order of the High Court in a writ petition filed by Shri Manohar Lal.

In the above context, the apex court laid down following in paragraphs 23 and 24 :

23. Therefore, the law on the question can be summarised to the effect that no higher authority in the hierarchy or an appellate or revisional authority can exercise the power of the statutory authority nor the superior authority can mortgage its wisdom and direct the statutory authority to act in a particular manner. If the appellate or revisional Authority takes upon itself the task of the statutory authority and passes an order, it remains unenforceable for the reason that it cannot be termed to be an order passed under the Act.

24. In Mulraj Vs. Murti Raghunathji Maharaj, AIR 1967 SC 1386, this Court considered the effect of action taken subsequent to passing of an interim order in its disobedience and held that any action taken in disobedience of the order passed by the Court would be illegal. Subsequent action would be a nullity.

There cannot be any dispute to the proposition that any order passed by the authority in violation of the order of this Court is a nullity but as observed above, we fail to see any violation on the part of the Corporation in this regard. Learned Counsel for the Corporation has relied on 2011 (2) EFR 205 Senior Law Manager, Indian Oil Corporation Ltd. and ANR. Vs Guru Shakti Singh and ANR. In the said case, the entire selection process was cancelled by the Corporation. The candidate who was empanelled at serial No. 1 filed writ petition challenging the decision of the Corporation to cancel the selection on the ground that complainant who was at serial no. 2 has died. The High Court allowed the writ petition against which Corporation filed appeal. The apex Court laid down following in paragraphs 3,4 and 8.

"3. The appellants thereafter cancelled the entire selection process on 27.10.2005, and took a decision for re-interview the candidates. The first respondent filed a writ petition for quashing the said order dated 27.10.2005 and seeking a direction to the appellant to issue him the letter of intent for Distributorship as he was the first in the merit panel. The said writ petition was allowed by the impugned order dated 6.2.2007 holding that there should be no re-interviews and the appellant should proceed with the selection as already conducted in accordance with law. The effect of the order was that the first respondent should be granted the distributorship. The said order is challenged in this appeal by special leave.

4. It is not disputed by the first respondent that the mere fact of a merit panel being prepared with him in the first place does not entitle him to be appointed as a distributor. The case of the first respondent is that as the second respondent who challenged the selection as per the merit panel withdrew the writ petition and none else had questioned the merit panel, the said merit panel continued to be in force and was valid; and therefore, there was no need for re-interviews and he ought to have been granted the distributorship. But the issue is not whether there was a challenge, but whether there was any irregularity in the selection process, and as a consequence whether the decision of appellants to have fresh interviews is open to challenge.

8. The High Court allowed the writ petition filed by the respondents on a rather strange reasoning. We extract below the relevant portion of the impugned order : "As already observed, since the Indian Oil Corporation after being satisfied about the illegality committed by the Committee in awarding marks to a particular candidate (since deceased), decided to re-interview all the candidates, but before the said exercise could be started, the said person died as such no relief can now be granted to him. Rest of candidates have not raised any grievance about their failure in selection, therefore, there is no question for reconsidering their case."

The apex Court observed that High Court failed to deal with the larger issue as to whether the selection committee has acted fairly and properly in awarding marks and preparing the merit panel. Mere death of the complainant could not have resulted in issue of an order of allotment in favour of the writ petitioner in the aforesaid case. The aforesaid judgment clearly supports the contention of the Corporation that the Corporation was to examine as to whether the Selection Board rightly awarded the marks under the different heads in favour of the petitioner and there being no restraint in the Division Bench judgment, directing the Corporation not to examine the marks awarded to the petitioner, we see no illegality or infirmity more so when the Corporation has directed for re-interview. The petitioner has still an opportunity to appear in the interview in pursuance of his application and we have no doubt that Corporation shall again examine all the candidates in accordance with its policy/guidelines. Much emphasis has been given by the learned Counsel for the petitioner that the Corporation has obtained a fresh report after the order of the Court without associating the petitioner. The petitioner has made specific allegations in paragraph 33 of the writ petition. Learned Counsel for the corporation has pointed out that paragraph 33 has been sworn on legal advice. However, when the Corporation was directed to re examine the matter, obtaining any fresh report was not prohibited.

Learned Counsel for the petitioner also contends that Division Bench on 2.8.2007 has directed the Corporation to decide the locus of respondent no. 3 i.e. P.K. Singh respondent no. 4 in the present writ petition. Although learned counsel for the petitioner is right in his submission that there is no specific finding recorded in the order on the locus, it is not denied that the respondent no. 4 was one of the applicants and was also a person who has submitted complaint. Even though the order is silent, we find that there was sufficient locus in respondent No. 4 to file a complaint. The aforesaid submission of the petitioner cannot be of any help to the petitioner.

Considering the aforesaid and taking into consideration the specific finding recorded in the order that the award of the marks under different heads to the petitioner was not in accordance with the policy/guidelines of the Corporation which has been not been successfully assailed in the writ petition, we do not find any ground to exercise our writ jurisdiction under Article 226 of the Constitution of India.

The writ petition lacks merit and is dismissed.

Order Date :- 8.8.2011

LA/-