Laxmi Basfore vs Senior Area Manager
2021 Latest Caselaw 4322 Cal

                          IN THE HIGH COURT AT CALCUTTA
                            Constitutional Writ Jurisdiction
                                    Appellate Side

Present :-   Hon'ble Justice Amrita Sinha

                                W.P.A. No. 705 of 2019

                                 IA No. CAN 1 of 2020

                              (Old No. CAN 2380 of 2020)

                                     Laxmi Basfore

                                          Vs.

    Senior Area Manager, Indian Oil Corpn. Ltd., Siliguri Area Office & Ors.


For the writ petitioner         :-    Mr. Raja Basu Chowdhury, Adv.
                                      Mrs. Juin Dutta Chakraborty, Adv.

For the respondents             :-    Mr. Jayanta Sengupta, Adv.
                                      Mr. Amit Kumar Nag, Adv.
                                      Mr. M. Roy, Adv.

Hearing concluded on            :-    13.08.2021

Judgment on                     :-    19.08.2021



Amrita Sinha, J.

In response to an advertisement published by the Indian Oil Corporation

Limited in the daily newspaper on 31st August, 2017 inviting applications for

awarding LPG Distributorship at Malangi Tea Garden, Alipurduar, the petitioner

applied along with the requisite application fee and she was intimated that her

application was registered. The said vacancy is reserved for Scheduled Caste

candidate. A draw of lots was conducted on 29th May, 2018 wherein the petitioner

became unsuccessful.

The next communication received by the petitioner is a letter dated 18th

December, 2018 whereby the Senior Area Manager of the Company intimated the

petitioner about her candidature being rejected as she failed to deposit the field

verification certificate deposit fee of Rs. 20,000/- only after getting selected for the

subject location. In the said communication it was further mentioned that letter in

this regard was sent to her on 4th November, 2018 and a system generated reminder

letter had been issued to her on 12th November, 2018 but as she did not take any

action in response to the same her candidature stood rejected.

The letter dated 18th December, 2018 was sent to the petitioner through

registered post posted on 20th December, 2018.

Immediately upon receipt of the said letter, the petitioner has averred in the

writ petition that, she visited the office of the respondent authority and expressed

her intention and willingness to deposit the aforesaid amount. The respondents

refused to accept the same as the time period for making the deposit had expired.

The petitioner thereafter sent a written communication to the Deputy General

Manager of the Company by a letter dated 3rd January, 2019 and expressed her

willingness to avail the opportunity offered to her. In the absence of a response from

the Company, the petitioner filed the instant writ petition on 11th January, 2019.

The matter was taken up for consideration by the Court on 5th February,

2019. The Court after hearing the parties directed the respondent Company to file

their affidavit in opposition within 8th February, 2019 and the matter was directed

to appear in the list on 13th February, 2019, at the top. The respondent Company

was supposed to show before the Court that the petitioner was duly informed by

electronic mail of being successful in the draw of lots and was required to deposit

the requisite amount and other documents.

In compliance of the order passed by the Court an affidavit in opposition was

affirmed by the Company on 8th February, 2019. In the said affidavit the Company

annexed an electronic mail communication sent on 4th November, 2018 intimating

'please find attachment for security deposit letter'. The letter dated 4th November,

2018 allegedly written to the petitioner has been annexed with the opposition. A

further email communication dated 12th November, 2018 allegedly being the

reminder for putting in deposit fee for conducting field verification, claimed to have

been sent to the petitioner, was also annexed. According to the respondents, the

petitioner was intimated as regards payment of the deposit fee by way of attachment

sent via email on 4th November, 2018 and 12th November, 2018.

The Court took up the matter for consideration on 14th February, 2019 and

was of the opinion that the petitioner was entitled to an order of interim protection.

As an interim measure the Court restrained the Company from allotting dealership

of LPG in respect of the location Malangi Tea Garden in favour of any third party till

disposal of the writ petition. The matter was directed to appear in the monthly list of

March, 2019.

On 24th July, 2019 a supplementary affidavit on behalf of the Company was

served upon the learned advocate for the petitioner wherefrom the petitioner learnt

that the Company being aggrieved by the order passed on 14th February, 2019

preferred an appeal before the Hon'ble Division Bench before the Circuit Bench at

Jalpaiguri. The Hon'ble Division Bench heard the matter on 5th April, 2019 and was

not inclined to lift the interim order of stay granted by the learned Single Judge and

requested the learned Single Judge to expedite hearing of the writ petition.

Notice of appeal was never served upon the petitioner.

In the said supplementary affidavit some additional disclosures were made by

the Company. It was mentioned that on cancellation of the petitioner's candidature

on account of failure to deposit the requisite fees and the necessary documents,

redraw of lots was conducted on 29th December, 2018 and a third person was

declared as a successful candidate. A communication was sent to the successful

candidate vide letter dated 1st January, 2019 for payment of credential verification

deposit fee along with submission of the requisite documents. A further

communication dated 9th January, 2019 made by the Company to the said

successful candidate mentions that the security deposit and the required

documents had not been submitted and accordingly seven working days' time was

granted for submission of the requisite money and the documents. Receipt has been

annexed to the supplementary affidavit showing that the successful candidate

deposited the sum of Rs. 20,000/- on 18th January, 2019.

The primary contention of the petitioner is that as she was not made aware of

the fact that the candidature of the first successful candidate was cancelled and

there was a redraw of lots held on 3rd. November, 2018 where she was successful

and further that she was directed and required to pay Rs. 20,000/- along with the

necessary documents accordingly, she was unable to comply the same. Immediately

after getting notice of cancellation of her candidature she rushed to the office of the

Company and prayed for extension of time to deposit the money.

The learned advocate of the petitioner has referred to the brochure containing

the Unified Guidelines for selection of LPG Distributorship according to which the

selection has been made. Paragraph 9 of the said brochure has been relied upon

which mentions that all applicants desirous to apply for the locations shall submit

their application online along with requisite application fee and the selection of the

LPG Distributorship will be done by conducting draw of lots from amongst all the

eligible applicants for the location. The status of the application would be

communicated through email/SMS to the registered email ID/mobile number

provided by the applicants.

The provision mentioning about intimation to the selected candidate for

submitting required documents has also been placed. A list of eligible applicants

and the applicants eligible for draw of lots was to be made available on the notice

board and the website of the Company. The procedure for holding the draw of lots

has also been relied upon. It mentions that information has to be sent to the eligible

candidates through email/SMS to report for draw of lots for selection of LPG

Distributorship at a specified venue, date and time. The successful candidate in the

draw of lots upon intimation of selection would be required to make payment of the

security deposit and subsequently a Letter of Intent would be issued to the

candidate. The candidature of the selected candidate would be cancelled in the

event of failure to deposit the amount within seven working days' time from the date

of intimation to the candidate.

The condition for holding redraw has also been placed. It has been mentioned

that redraw for selection would be held from the remaining eligible applicants and

the procedures laid down for holding draw will be applicable in case of redraw.

According to the petitioner the redraw of 3rd November, 2018 has not been

held in accordance with the guidelines. It has been submitted that the petitioner

was never intimated of the redraw. No intimation was sent to her that she was

successful in the redraw. She was also not communicated regarding payment of the

security deposit and the extension of time for payment of the deposit. It is only after

getting the letter of rejection that the petitioner got to know about her selection and

thereafter her rejection.

It has been argued that the Company is liable to act in accordance with the

guidelines. Prayer has been made for allowing the petitioner to deposit the money

upon setting aside the cancellation of her candidature.

The learned advocate representing the Company submits that the petitioner

was duly intimated about her selection and communication was made through

electronic mail requesting her to pay the security deposit and to submit the

necessary documents by communicating letters dated 4th November, 2018 and 12th

November, 2018. The petitioner failed to comply with the direction given in the

aforesaid communications.

It has further been pointed out that the petitioner approached the Company

for the first time by writing the letter dated 3rd January, 2019. It has been argued

that in the said letter the petitioner never denied regarding receipt of the

communication to pay. There is no statement that she was not aware of the

direction for making payment within the stipulated time.

According to the Company, intimation may be sent either through email or

through SMS. In the instant case, intimation was sent to the petitioner through

electronic mail. It has been pointed out that the attachment referred to in the

electronic mail dated 4th November, 2018 and 12th November, 2018 was actually

sent to the petitioner. It has further been contended that as the petitioner is

disputing receipt of the aforesaid letters, then the matter has to be decided upon

taking evidence and the writ petition is liable to dismissed. It has been submitted

that the writ petition filed by the petitioner ought not to be entertained in view of the

disputed questions of facts involved herein.

It has been submitted that the petitioner does not have a right to be awarded

the Distributorship. As the petitioner failed to comply with the terms and conditions

mentioned in the guidelines, accordingly, her candidature has been rightly cancelled

by the Company. In support of the aforesaid stand, the respondents have relied

upon the judgments delivered by the Hon'ble Supreme Court in the matter of

Glodyne Techno Serve Limited -vs- State of Madhya Pradesh & Ors. reported in

(2011) 5 SCC 103 (paragraph 47) and Nobel Resources Limited -vs- State of

Orissa & Ors. reported in AIR 2007 SC 119.

The respondents pray for dismissal of the writ petition.

I have heard and considered the rival submissions made on behalf of both the

parties.

What is to be decided in the instant writ petition is whether the Company

acted in accordance with the guidelines for selection of LPG Distributorship. It

appears that the advertisement was published in August, 2017 inviting application

from eligible applicants and the first draw of lots was held in May, 2019. The

petitioner was unsuccessful. As the successful candidate failed to comply with the

guidelines, her candidature stood rejected. The petitioner was never intimated about

the rejection of the candidature of the successful candidate. The Company

conducted a redraw on 3rd November, 2018. For conducting the redraw, as per

paragraph 16 of the guidelines, the Company is required to send information to the

eligible candidates to report for draw of lots at a specified venue, date and time. In

the instant case, the Company has not produced a single scrap of paper to show

that the petitioner was intimated about the redraw to be held on 3rd November,

2018. As there was no intimation about the redraw, the petitioner was completely

unaware of the same.

According to the respondents, the petitioner was successful in the redraw. A

successful candidate, according to paragraph 17 of the guidelines, is required to

deposit Rs. 20,000/- only and also submit the required documents within seven

working days' of intimation of selection. Apart from an email communication dated

4th November, 2018 addressed to the petitioner mentioning about the attachment of

the security deposit letter, there is nothing to show that the attachment i.e.; the

letter of intimation of being declared successful in the draw of lots conducted on 3rd

November, 2018 was at all served upon the petitioner. There is no conclusive

evidence to show that the aforesaid letter dated 4th November, 2018 was actually

sent to the petitioner through electronic mail. The symbol which usually appears

when attachment is sent through email is missing in the cover page of the email.

Similarly, the communication dated 12th November, 2018 also does not conclusively

prove that the letter, along with the attachment, was actually sent to the email ID of

the petitioner.

Assuming that the aforesaid letters were sent to the petitioner, there is no

evidence whatsoever to show that the petitioner was intimated about holding the

redraw of lots and about the date, time and venue where the redraw of lots was to

be held. Admittedly, the requirement of Paragraph 16(i) of the aforesaid guidelines

has not been complied with by the Company at the time of or prior to conducting

the redraw.

The letter dated 18th December, 2018 rejecting the candidature of the

petitioner was surprisingly sent to the petitioner by registered post with

acknowledgment due card. The envelope containing the aforesaid letter was posted

on 20th December, 2018. The reason for change in the mode of communication has

not been addressed by the Company. The petitioner by a letter dated 3rd January,

2019 simply prayed for extension of time for making the payment. She never raised

the allegation of non-receipt of the intimation to pay the security deposit. She

neither raised the allegation of not being informed prior to the holding of redraw.

The Company ignored the request of the petitioner as a fresh redraw was conducted

and a third party was selected.

From the documents annexed to the supplementary affidavit filed by the

Company it appears that a further redraw was held on 29th December, 2018 in

presence of a single applicant who was declared successful. The said successful

candidate also failed to pay the security deposit within seven working days' time as

mentioned in the letter dated 1st January, 2019. The Company by a letter dated 9th

January, 2019 extended the time for a further period of seven days for making the

payment. The payment was, however, accepted by the Company on 18th January,

2019 that too, after expiry of the extended period for making the payment. It

appears that the Company surreptitiously held the redraw and granted extension of

time to the presently selected candidate but ignored the prayer of the petitioner for

grant of extension of time for making the payment.

The ratio of the judgment delivered by the Hon'ble Supreme Court in the

matter of Nobel Resources (supra) is a well settled proposition of law that disputed

questions of fact ordinarily could not have been entertained by the High Court in

exercise of its power of judicial review. In the instant case, there is absolutely no

dispute that prior to holding the redraw on 3rd November, 2018 no intimation was

served upon the petitioner who was an eligible candidate to participate in the

redraw.

The contention of the respondent relying upon the judgment of the Hon'ble

Supreme Court in the matter of Glodyne Techno (supra) is that it was the

discretionary power of the authority to reject the candidature of the petitioner on

account of non-submission of the deposit and the necessary documents. The

Company miserably failed to convince the Court that the petitioner was ever made

aware of the redraw and the subsequent steps taken to intimate her of being

successful. Moreover, the facts of the case under reference are completely different

from the facts of the case at hand.

As the guidelines have not been adhered to by the Company at the time of

holding the redraw accordingly, it is concluded that the redraw held by the

Company on 3rd November, 2018 is illegal and arbitrary. All subsequent steps taken

by the Company are also illegal and liable to be set aside and is accordingly set

aside.

It is made clear that as the redraw held on 3rd November, 2018 was not held

in accordance with law, accordingly the subsequent redraw held on 29th December,

2018 cannot be said to be validly held. No legally enforceable right accrues in favour

of a successful candidate in a selection not held in accordance with law. Submitting

the security deposit by the subsequently selected candidate will not be able to save

the redraw from the vice of arbitrariness. Similarly the petitioner cannot reap the

benefit of a selection process which was not held in accordance with the guidelines.

In view of the above, the Company is directed to proceed with the redraw from

the stage when the selection of the first successful candidate stood cancelled due to

non-compliance of the guidelines i.e. from the first redraw stage. The redraw shall

be held strictly in accordance with the provisions laid down in the Unified

Guidelines.

WPA No. 705 of 2019 along with all connected applications stand disposed of.

Urgent certified photocopy of this judgment, if applied for, be supplied to the

parties on compliance of usual legal formalities.

(Amrita Sinha, J.)