Bombay High Court
Suresh Pralhad Pawar vs The Union Of India And Ors on 18 March, 2016
Bench: S.S. Shinde
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1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.6368 OF 2011
Suresh s/o. Pralhad Pawar,
Age: 41 Yrs., Occ: Un-employed,
R/o. Nagsen Colony, Plot No. 25,
At Kandari, Bhusaval, Dist.Jalgaon PETITIONER
VERSUS
1] The Union of India,
Through the Secretary,
Ministry of Petroleum and Natural Gas,
Government of India, New Delhi
[Notice to be served on The Assistant Solicitor
General at High Court Bench at Aurangabad]
2] Hindustan Petroleum Corporation Limited,
A duly registered Company,
Through its Regional Manager at CIDCO,
Aurangabad
3] The Indian Oil Corporation Limited
Indian Oil Bhavan,
9, Aliyamer Jang Marg,
Bandra [East], Mumbai 400 051
4] The Bharat Petroleum Corporation Limited
Bharat Petroleum,
4x6, Currimbhoj Road,
Ballard Estate,
Mumbai-1.
[Notice of respondents no. 2 to 4 to be
served on it's Standing Counsels at High
Court Bench at Aurangabad]
RESPONDENTS
...
Mr. R.R.Mantri, Advocate for the Petitioner
Mr. Alok Sharma, Advocate for Respondent Nos.1 and 3
Smt. Anjali Dube [Bajpai], Advocate for respondent No.2
Mr. Sudhir D. Kulkarni, Advocate for Respondent No.4.
...
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2
WITH
WRIT PETITION NO.6642 OF 2011
Balasaheb s/o. Mahadeo Kshirsagar,
Age: 46 years, Occu. Business,
R/o. Siddhant Niwas, Main Road,
Bhoom, Dist. Osmanabad. PETITIONER
VERSUS
1] Indian Oil Corporation Ltd.,
Indane Area / Regional Office,
Aditi Commerce Centre,
2406, East Street, Camp,
5th Floor, Office No.1 and 5,
Pune Cantonment, Pune- 411 001.
Through its Manager.
2] Bharat Petroleum Corporation Ltd.,
L.P.G. Bottling Plant,
Plot No.1059/70/71,
Sikrapur, Chakan Road,
S.H.-55, Sanaswadi,
Tq.Shirur, District Pune.
Through its Manager
3] Hindustan Petroleum Corporation Ltd.
Aurangabad L.P.G. Plant, H-1,
M.I.D.C., Chikalthana, Industrial Area,
Aurangabad-431 210.
Through its Manager
4] The Union of India,
Through its Secretary,
Petroleum Department,
New Delhi
[Copy to be served on Standing Counsel
Shri Alok Sharma] RESPONDENTS
...
Mr. A.N.Nagargoje, Advocate for the Petitioner
Mr. Alok Sharma, Advocate for Respondent No.1
Smt. Anjali Dube [Bajpai], Advocate for respondent No.3
Mr. Sudhir D. Kulkarni, Advocate for Respondent No.2.
...
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3
CORAM: S.S.SHINDE &
V.L.ACHLIYA, JJ.
Reserved on : 16.03.2016
Pronounced on: 18.03.2016
JUDGMENT: [Per S.S.Shinde, J.]:
1] This Writ Petition takes exception to the
advertisement dated 27th July, 2011 [Annexure-D Page-80]
for selectionig of distributors for LPG issued by the
respondents. It further also prays for quashing the April,
2011 Guidelines [Annexure-C Page-60].
2] The learned counsel Mr. R.R.Mantri appearing
for the petitioner submits that, it is settled position of law
that, while distributing public largesse, the same are to be
distributed based on the criteria, which have nexus to the
object of the particular grant by selecting beneficiaries for
effecting transparent procedure. Any law made contrary to
the above cannot stand to the scrutiny of test of
constitutional validity, and would amount to arbitrariness.
In order to achieve the objective of directive principles of
State policy and to uplift the members of Scheduled Caste
and Scheduled Tribes etc., the provision is made for making
available the infrastructure as well as corpus funds for
Scheduled Castes and Scheduled Tribes candidates. The
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relaxation in age, educational qualification and financial
requirement was also made, while considering the
candidature of the afore-mentioned categories for
distribution of petroleum products. It is submitted that,
sometime in the past, there were various arbitrary
allotments of such dealerships by respondent no.1, most of
which came to be cancelled by the Hon'ble Supreme Court
and the then Minister Incharge of the Department of
respondent no. 1 was also held personally liable. In support
of this contention, the learned counsel appearing for the
petitioner pressed into service exposition of the Hon'ble
Supreme Court in the case of Common Cause A Registered
Society Vs. Union of India and others1. The learned counsel
also invited our attention to the Judgment of the Hon'ble
Supreme Court in the case of T.R.Kothandaraman Vs. Tamil
Nadu Water Supply and Drainage Board Engineers
Association2 and submits that, the classification should be
based upon the intelligible differentia. However, in the
present case, the criteria laid down by the afore-mentioned
guidelines are not based upon the intelligible differentia.
3] It is submitted that, once roster is finalized for
1 AIR 1996 SC 3538
2 1994 [6] SCC 282
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new location, locations falling under 'Open' category of the
roster are offered to the State Government for direct award
of distributorship. It is submitted that, such allotment in
favour of State, without following proper procedure like
followed in the individual cases, is not proper. It is further
submitted that, there is no basis for prescribing minimum
age of 21 years and maximum age of 45 years on the date
of application for all categories except GP category.
learned counsel appearing for the petitioner invited our
The
attention to the clause 7.2 of the specific eligibility criteria
for different categories, and submits that, there is no
reason why there should be direct award of the
distributorship in favour of State. It is submitted that, if the
category of Defence Personnel is considered, it is only who
died in harness due to attributable causes and disabled in
peace due to attributable causes should be entitled to
apply. However, the same is not being followed by the
respondents. He further invited our attention to the
relevant clause in the guidelines, which provides for a
personnel serving in different Departments of Central /
State Governments and Public Sector undertakings of
Central / State Government, who are incapacitated or
disabled while performing their duties will be eligible for the
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said category for distributorship. It is submitted that, when
such personnel is continued in service, there is no reason
for granting distributorship to them simultaneously.
4] The learned counsel further invited our
attention to the clause 17 of the guidelines, and submits
that, a person selected for the distributorship will have to
personally manage the operation of the LPG Distributorship
and will not be eligible for taking up any other employment.
Contrary to the said clause, the distributorship have been
given to such personnel, who are in the service and who
cannot personally supervise. The learned counsel further
invited our attention to the relevant clause, providing for
qualification for applying for the distributorship, and
submits that, it is difficult to understand that, why such
higher qualifications are necessary for allotting
distributorship. He further invited our attention to the other
clauses of the guidelines, and submits that, said guidelines
have no nexus to the object to be achieved, and therefore,
the said guidelines deserve to be quashed.
5] Writ Petition No.6642/2011 is filed taking
exception to the advertisement dated 27.07.2011, like in
earlier Writ Petition, and also there is prayer seeking
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directions to the respondents to carry out the selection
process in respect of LPG Distributorship by adopting the
old procedure laid down in Brochure dated March, 2010.
The learned counsel appearing for the petitioner in the said
Writ Petition adopted the arguments advanced by the
learned counsel appearing for the petitioner in Writ Petition
No.6368/2011. In addition to that, he submits that, outer
age limit was not prescribed in earlier guidelines, and
therefore, there is no any rational for providing outer age
limit in 2011 guidelines. He submits that, in earlier
guidelines, residents of the concerned District only were
eligible for filing application for distributorship. Therefore,
relying upon the pleadings in the Petition, annexure
thereto, the learned counsel appearing for the petitioner
submits that, Petition deserves to be allowed.
6] The learned counsel appearing for the
respondent no.2 in Writ Petition No.6368/2011, relying upon
the averments in the affidavit-in-reply on behalf of
respondent no.2 submits that, the new guidelines have
come into existence from October, 2010 for selection of
LPG Distributors from approved locations, which are to be
advertised. Based upon the said guidelines, the
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advertisement for the distributorship in Maharashtra State
was given on 27th July, 2011, and as per the guidelines, the
selection of the candidates for the distributorship was done
by the draw of lots amongst all the eligible candidates, who
fulfill the eligibility criteria.
7] The learned counsel invited our attention to the
procedure for applying as per the said guidelines and
submits that, the said process is done with an intent to
ensure that, the selection process is transparent and no
favoritism is being shown to any individual. It is submitted
that, based upon the past experience and the business
requirement, the guidelines for selection of distributors are
revised from time to time. The said guidelines were made
applicable to all locations advertised, re-advertised on or
before 1st October, 2010. It is submitted that, in the said
selection guidelines, there is no mark basis evaluation
system or interview for final selection. All the applicants
meeting the eligibility criteria qualify for the draw. The
selection is carried out based upon the draw of lots. It is
submitted that, the eligibility criteria has been so defined
that, it needs minimum requirements of educational
qualification, finance and infrastructure for LPG
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distributorship. The entire selection process was revised
with a view to ensure that, there is no scope for arbitrary,
illegal, unfair, and favoritism to any individual. Each and
every applicant was given fair opportunity to make an
application and selection of candidates was based upon
draw of lots. Based upon the said guidelines, an
advertisement has been issued on 27th July, 2011, for
selection of LPG distributors at various advertised locations.
8] It is submitted that, quota for physically
handicapped persons was 5% and quota for outstanding
sport person was 2% i.e. 7% combined quota. As per the
earlier guidelines, the SC / ST category quota was 25% and
the same is retained in the new guidelines, which also does
not deprive the petitioner of any reservation. In fact, the
said guidelines ensure that, the award of LPG
distributorship is done by eliminating the possibility of any
unfair, arbitrary and illegal favoritism to any individual, who
has applied for the distributorship. It is submitted that, in
the earlier policy, there was selection process, based upon
evaluation of candidates on various parameters like
personality, business acumen, experience, educational
qualification, capability to arrange funds and capability to
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arrange finance, and therefore, the same has been change
in the revised policy. It is submitted that, the minimum
qualification has been prescribed and all the candidates
who fulfill the same were eligible to participate in the draw.
It is submitted that, the maximum age limit of 60 years is
kept for GP category and in respect of all others, who are
ages 21 to 45 are made eligible for applying the
distributorship.
ig It is submitted that,
supervision is a condition, which has already been given in
the personal
the policy as well as in the Brochure.
9] It is submitted that, though the reservation is
provided for SC / ST category is re-categorized, however,
the percentage of the total SC/ST category is maintained by
adjusting the other open categories location under SC/ST
category in the roaster. If any shortfall of SC/ST category
on account of re-categorization then the said shortfall is
made good by converting corresponding number of
distributorship locations under Open category to the SC/ST
category. It is submitted that, the policy decision has been
made with intent to ensure that, dependents of the
Government / Central, State and Public Sector Unit
including Defence Personnel, who have died while
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performing duties and employees of Government / Central,
State and Public Sector Unit including Defence Personnel
who become disabled while performing duties can apply
under GP category. It is submitted that, the time limit
prescribed for submitting the application and the
documents is reasonable period. It is submitted that, some
of the provisions in the existing guidelines were also part of
the earlier guidelines, there is no substance in the
contention of the petitioner that, 50% distributionship is
given to the State. It is submitted that, merely because
additional qualifications are prescribed for maintaining
minimum qualification for applying further distributorship
cannot be said to be unreasonable. It is submitted that,
none of the provisions in the guidelines can be said to be
unreasonable, arbitrary or contrary to the legal provision,
and therefore, in the said policy decision is in the nature of
guidelines, therefore, the Petition may be rejected.
10] The learned counsel appearing for the
respondent no. 3 relying upon the averments in the
affidavit in reply filed by the said respondent submits that,
in pursuant to the guidelines, the advertisement for the
distributorship had been given. Accordingly, final selection
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of the candidates is done by the draw of lots amongst all
the eligible candidates, who fulfill eligibility criteria. The
selection for the LPG distributionship is made by the draw
of lots with intent to ensure that, no favoritism is being
shown to any individual. All the eligible candidates who
fulfill the norms become eligible for considering LPG
distributorship, and therefore, there was no need for
evaluation of an individual separately. All the candidates
who were eligible were considered. It is submitted that, the
petitioner was not eligible to apply, and therefore,
petitioner has no locus to challenge selection process and
guidelines.
11] It is submitted that, so far time limit for
submitting application is the same as was prescribed in the
earlier policy. It is submitted that, 540 applications were
received for 36 locations advertised by the respondents.
Thereafter, as per the policy so as to cure defects of
technical nature, individuals were called upon to give
reasons within 21 days.
12] In Writ Petition No.6642/2011, the respondent
no. 2 i.e. Bharat Petroleum Corporation Ltd. has filed
affidavit in reply. Relying upon the said affidavit in reply,
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the learned counsel appearing for the respondent no. 2
submits that, it is true that, the respondent no. 2 has
cancelled the earlier selection process by issuing fresh
process as per the brochure dated 1st April, 2011. It is
submitted that, it is the prerogative of oil companies to
provide qualification and selection criteria and guidelines
for appointing distributors. The selection guidelines of 2011
has been prepared to bring more fairness and transparency
in the selection process. As per the advertisement dated
14th September, 2002 for LPG distributorship, the petitioner
was granted the distributorship. However, subsequently, it
is cancelled in the year 2008. It is submitted that, the
petitioner has not disclosed about the said facts. He has
also not stated why his distributorship was cancelled in the
year 2008. It is submitted that, by reading clause 6 of the
said guidelines, it is abundantly clear that the draw would
be done only from the eligible candidates. The draw would
be done by the invited guest in presence of at least 50%
eligible candidates and the entire proceeding is
videographed. The result of draw is published on the same
day on the notice board and the company website. After
the issuance of letter of intent, the field verification is
carried out and, if in case the information given by the
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candidate is not correct, the company is entitled to take an
appropriate decision. It is submitted that, the present age
limit prescribed in the new brochure is neither
discriminatory nor irrational. If the entire scheme is taken
into consideration, it will be clear that, none of the
conditions in brochure are discriminatory or arbitrary. The
oil companies have authority under procedure to prescribe
the qualification and age for selection of its distributorship.
It is the prerogative of the oil companies to prescribe the
eligibility or selection criteria for appointing the LPG
distributorships. A person can apply for more than one
location and in case such person is selected for more than
one location than the distributorship can only be
commissioned for only one location. Clause 7.4 of the
Brochure clearly prescribe that all the candidates have to
fulfill the multiple dealership / distributorship norm as
provided thereunder.
13] It is submitted that, in the earlier policy the
candidates who have secured maximum marks were
entitled for selection and because of that reason only
person having higher qualification were entitled. However,
as per the new guidelines, all qualified candidates are
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entitled for selection and it gives opportunity to different
categories. It is submitted that, the aggrieved person can
file a statutory appeal under Rule 14 before the Grievance
Redressal System and he is also entitled to file a Writ
Petition, and hence, there is no substance in the contention
of the petitioner that, there is no remedy to agitate the
grievance.
14]
We have given careful consideration to the
submissions of the learned counsel appearing for the
petitioners, and the learned counsel appearing for the
respective respondents. With their able assistance,
perused the pleadings in the Petition, grounds taken
therein, annexure thereto and the replies filed by the
respective respondents. It is the contention of the
petitioners that, while awarding the distributorship to the
State, the respondents have not kept in view that, the State
may without any criteria would allot distributorship to even
ineligible candidates. Upon careful perusal of the pleadings
in the Petition, no single instance has been mentioned
showing that, State has favoured a particular person by
allotting distributorship with arbitrary exercise of the power.
It is also relevant to mention that the guidelines, for which
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exception is taken by the petitioner, have also been
undergone change and now new procedure is in place. It is
also relevant to mention that, even petitioner in Writ
Petition No.6368/2011 could not participate in the draw
since he was not eligible candidate in view of the said
guidelines. Therefore, the petitioner has no locus to
question the selection process and also selection of the
process.
candidates in pursuant to the afore-mentioned selection
None of the candidate who has been given
distributorship in pursuant to the advertisement are made
party in the Petitions, and therefore, in our opinion, the
petitioners are not entitled for any relief. It is needless to
observe that, even in absence of any specific provision for
affording hearing to the aggrieved person, it is well settled
by this time that, if the direction / order is going to affect a
particular individual, the principles of natural justice needs
to be followed. Therefore, in absence of any selected
candidate party to this Petition, we are not inclined to
entertain these Petitions. Even upon considering the case
in its entirety on merits, we do not find any reason to hold
that, the provisions / guidelines under challenge were
unreasonable.
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15] In our opinion, prescribing age limit,
qualifications providing reservations for the candidates
from SC / ST categories and other categories and also
providing reservation for the defence personnel etc. would
fall exclusively within the domain of the respondents as
long as same is not unreasonable and illegal. Upon
considering the case in its entirety, and in view of the
subsequent events occurred after filing Petitions, and
change in the policy, and also on merits, we do not find any
substance in the Writ Petitions. We are not inclined to
entertain Writ Petitions, hence both the Writ Petitions
stands rejected.
Sd/- Sd/-
[V.L.ACHLIYA] [S.S.SHINDE]
JUDGE JUDGE
DDC
