Sq. Ldr. Kashi Nath Singh vs Union Of India (Uoi) And Ors.
2003 Latest Caselaw 174 Del

JUDGMENT

A.K. Sikri, J.

1. Petitioner is an ex-serviceman, who retired on 2nd January, 1984 as Sq. Leader from Indian Air Force when he was 42 years of age. It is a common case of the parties that respondent No. 2, as a measure of rehabilitation, has formulated a policy reserving 7.5 percent of the Oil Product agencies namely, LPG, Petrol Pumps and kerosene oil agencies, to certain categories of defense personnel. It is one of the various schemes for resettlement of retired service personnel because persons belonging to defense services normally retire at comparatively younger age and much earlier than the retirement age prescribed for civil services.

2. In accordance with the aforesaid policy Indian Oil Corporation (hereinafter referred to as IOC, for short)/respondent No. 4 herein issued an advertisement in October 1985 inviting applications for award of LPG dealership at various locations from the candidates belonging to following categories under the defense quota.:-

a. defense personnel who are permanently and severely disabled either in war or on military duty during peace time.

 b.    Widows and motherless dependents   of defense personnel whose husbands/guardians were killed while on military duty either in war or peace and; 
 

 c.      extremely deserving cases of ex-servicemen who have no means of livelihood.  
 

3. The case of the petitioner is that since he remained unemployed after his premature retirement from Air Force and barely managed to survive and look after his family consisting of wife, son and two daughters with his meager pension, he applied for LPG dealership pursuant to aforesaid advertisement as he fulfillled all necessary eligibility conditions and procedure for allotment of LPG agencies to ex-servicemen as contained in letter dated 13th July, 1987 issued by Directorate General of Resettlement , Ministry of defense.

4. Applications of the petitioner as well as others who applied pursuant to the aforesaid advertisement were screened and five candidates including the petitioner -- Sq. Ldr. Kashi Nath Singh (Retd.) and Shri Janardhan Chaubey were called for interview by the Oil Corporation Board. On the recommendation of Oil Corporation Board, ultimately Shri Janardhan Chauby was issued Letter of Intent dated 15th July, 1998 offering him distributorship of Indane at Buxar.

5. Petitioner challenged this action of IOC by filing Civil Writ Petition No. 510/88 impleading Shri Janardhan Chaubey as respondent No. 9 therein. This Writ Petition was decided by Division Bench of this Court vide judgment dated 28th December, 1998 holding that respondent No. 9-Shri Janardhan Chaubey was not eligible to apply as he had not fulfillled certain conditions. Letter of Intent dated 15th January, 1988 in his favor was accordingly quashed by observing as under:-

"We, consequently, held that one of the necessary condition for the grant of LPG agency to an applicant who fell in the category of "extremely deserving cases of ex-servicemen who have no means of livelihood" was to produce an eligibility certificate from the Director General Resettlement who was to grant the certificate on the basis of certificates from the District Collector and secretary, Zile Sainik Board/Rajya Sainik Board stating that the applicant, ex-servicemen, was unemployed and has no means of livelihood means of livelihood either from the landed property or agricultural land. This condition was not fulfillled in the case of Janardan Chaubey and therefore he was not entitled to the allotment of LPG Agency at Buxor. The letter of intent dated 15th January, 1988 allotting LPG Agency to Janardan Chaubey respondent No. 9 consequently liable to be quashed."

6. It may be mentioned that petitioner had also made a prayer that he be allotted the said LPG Agency. This request of the petitioner was not acceded to on the ground that all the applicants who had applied for the dealership were not parties in the Writ Petition and thus allowing the Writ Petition partly, following directions were given:-

"" We consequently allow the petition partly and quash the letter of intent to allot the LPG agency to Respondent No. 9 at Buxar (Bihar) out of the reserved defense category quota, dated 15th January, 1988. The question of allotment of this LPG Agency would be decided afresh by the Indian Oil Corporation in accordance with the policy in this behalf. Rest of the petition stands dismissed. In the special circumstances of the case the parties are left to bear their own costs."

7. After the aforesaid judgment, Director General (Resettlement) wrote letter dated 19th January, 1989 to the respondents recommending allotment of LPG agency to the petitioner. However, respondent No. 9/Janardan Chaubey challenged the aforesaid Order by filing Special Leave Petition No. 1688/89 which was summarily dismissed by Supreme Court vide Order dated 17th February, 1989. Thereafter, petitioner met officials of IOC and respondent No. 2 at various levels requesting for issuance of Letter of Intent in his favor. All these attempts proved abortive and in 1997 he was informed that Oil Corporation Board were being reconstituted on State wise basis. In August 1997, dealership Selection Board started functioning at Patna for Bihar State. Thereafter, advertisement dated 5th June, 1998 has been issued by IOC inviting applications from eligible candidates for different locations in Bihar (Buxar) from the defense quota. As per this advertisement following categories are mentioned who would be considered for allotment of dealership on priority basis :-

" Indian Oil corporation Ltd.,(Marketing Division) proposes to appoint candidates nominated by the Directorate General Resettlement, on the following priority basis under the defense category, at the locations mentioned below:-

(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-time due to attributable causes."

8. Significantly category of "extremely deserving cases for ex-servicemen who have no means of livelihood" which was included in advertisement dated October 9, 1985 is missing in the present advertisement. Petitioner is not covered by any of the categories mentioned in advertisement dated 5th June, 1998. In these circumstances, he has filed present Writ Petition with the following prayers:-

A. That by the grant of writ of mandamus or any other appropriate writ or direction, the respondents No. 2 to 6 may kindly be directed to decide forthwith the entitlement for LPG dealership at Buxar (Bihar) on the basis of the pending applications, out of which the application and entitlement of Shri Janardhan Chaubey was set aside in terms of the orders of this Hon'ble Court dated 20.12.88 in CWP No. 510 of 1988;

B. that by the grant of writ of mandamus or any other appropriate writ or direction the respondents 2 to 6 may kindly be directed to decide forthwith within time to be fixed, and allot the LPG dealership at Buxar (Bihar) without inviting any fresh applications.

C. That by the grant of writ of certiorari or any other appropriate writ or direction, the invitation as published in the 'Hindustan' Patna Edition dated 5.6.98 giving a go-by and seeking to by pass the orders of this Hon'ble Court to decide the question regarding allotment of LPG agency at Buxar on the basis of criteria other than what was applicable to the petitioner may kindly be set aside and quashed so far as it relates to the location at Buxar, and also the policy/basis thereof.

D. Any other or further directions or orders as may be deemed just and proper in the circumstances of the case and with interest of justice.

9. In the counter affidavit filed on behalf of respondents 2-5 it is stated that advertisement in question has been issued pursuant to the guidelines framed by respondent No. 1 and as per the revised policy categories entitled to preference are mentioned in the said advertisement. It is stated that when the category "extremely deserving cases for ex-servicemen who have no means of livelihood" is omitted by the Central Government in its policy for preferential treatment to ex-servicemen, the IOC had to issue advertisement as per the prevalent policy in terms of directions issued by Central Government as it could not go contrary thereto.

10. Respondent No. 1 has not filed any counter affidavit. Learned counsel for the petitioner made following submissions in support of his contention :-

1. When earlier Writ Petition filed by the petitioner was decided and allowed way back in December 1988 the respondent could not delay the matter in complying with the directions contained in the said judgment. If because of their own delay earlier policy has been changed and substituted by new policy respondents could not take advantage of their wrong.

2. In any case as far as dealership at Buxar is concerned for which advertisement dated 5th June, 1998 was issued, once it was found that Shri Janardhan Chaubey was not eligible, the respondent had to consider remaining applications pursuant to same advertisement only and it could not invite applications all over again. Referring to the directions contained in judgment dated December 28, 1998 it was submitted that when Division Bench of this Court ordered that question of allotment of this LPG agency would be decided 'afresh', it had to be an exercise based on the same material which was, according to the learned counsel, the meaning of the word 'afresh' in contra distinction to the expression 'a' - 'fresh'.

3. It was submitted in the alternative, that even if fresh exercise was to be undertaken by inviting the application all over again Court had clearly directed that it was to be 'in accordance with the policy in this behalf' and thus policy which was prevalent at that time on the basis of which applications were invited in 1985 would be applicable. Therefore, as far as dealership in Buxar is concerned, the respondent could not consider the cases in accordance with new policy merely because it had come into force in the meantime.

11. In view of the aforesaid submissions two questions are required to be taken note of in this case:-

1. In view of the directions contained in Judgment dated 28th December, 1988 passed by Division Bench in CWP. No. 510/88, where the question of allotment of LPG agency was to be decided by the IOC by inviting the applications all over again or fresh look had to be given by examining the applications which had already been invited pursuant to advertisement dated October 9, 1985.

2. In case first question is answered against the petitioner and it is held that respondent is entitled to invite fresh applications again and consider the same, whether these applications are to be examined in the light of the earlier policy which was prevalent when advertisement dated October 9, 1985 was issued or these applications are to be considered in the light of existing policy in so far as allotment of LPG agency at Buxar is concerned.

QUESTION NO. 1:

12. As already noted above Division Bench, while allowing the Writ Petition of the petitioner partly, gave the following directions in its judgment dated December 20, 1988 :

"The question of allotment of this LPG Agency would be decided afresh by the Indian Oil Corporation in accordance with the policy in this behalf".

13. A direction was therefore given to decide the question of allotment of LPG dealership at Buxar 'afresh'.

14. Dictionary meaning of the world 'afresh' is : again, anew, newly, freshly; once more, once again, encore, bis, over, over again, denovo (Latin). Oxford dictionary defines 'afresh' to mean : 'with a new beginning; new'. Oxford dictionary thus makes it clear that 'afresh' means 'new beginning'. Further, 'afresh' is treated as synonym of 'denovo'. Denovo clearly means all over again whether that material has to be discarded and decision is to be taken on the basis of fresh material.

15. Black's Law Dictionary defines Denovo : "Anew; afresh; a second time. A venire de novo is a writ for summoning a jury for the second trial of a case which has been sent back from above for a new trial."

16. However, 'denov trial' is defined as : 'Trying a matter anew as if it had not been heard before and as if no decision had been previously rendered'. (Farmingdale Supermarket, Inc. vs. U.S., DCNJ, 336 F.Supp.534,536; (Ref. Hearing denovo cases : Ray vs. Illinois Bd., 1 Dist., 113 III.App,3d 510, 69 III Dec.451, 454, 447, N.E.2d 886, 889; Collier & Wallis vs. Astor, 9 Cal.2d 202, 70, P.2d, 171, 173).

17. Learned counsel for the petitioner therefore is not correct in his submission that pursuant to the aforesaid directions, respondent was to examine the applications which had already been invited pursuant to advertisement dated October 9, 1985. When Division Bench passed the Order directing that the question of allotment of this LPG agency would be decided afresh, it clearly meant that applications are to be invited again. If the Court meant what petitioner is arguing, it would have specifically directed the respondent to consider the remaining applications already received pursuant to advertisement dated October 9, 1985 after excluding the name of respondent No. 9-Janardan Chaubey. No such directions were given. Therefore, the issue is decided against the petitioner.

QUESTION NO. II;

18. On this issue, my considered view is that the question of allotment of LPG agency at Buxar should be decided in accordance with the policy that was prevalent at the relevant time. There are number of reasons in arriving at this conclusion :

(i) the Division Bench in its Order dated December 20, 1988 itself stated that question of allotment of LPG is to be decided, 'in accordance with the policy in this behalf'. When the said judgment was pronounced it was only earlier policy which was in vogue and that was in the mind of the Court while giving the aforesaid directions.

(ii) Petitioner having applied pursuant to advertisement dated October 9, 1985 and being eligible under the category of "extremely deserving cases for ex-servicemen who have no means of livelihood" had right to be considered as on that date. The need for fresh exercise arose only because of illegal action on part of respondent in issuing Letter of Intent to Shri Janardan Chaubey who was otherwise not eligible. But for this illegal action, petitioner would have been eligible as per the scheme prevalent at that time for his consideration. He had therefore acquired vested right to be considered. No doubt Government has right to change its policy. However, such a policy cannot operate retrospectively and further vested right of a person under the earlier policy cannot be taken away. This is a trite law and has been decided by catena of judgments by the Supreme Court. Since the action of the respondent in issuing Letter of Intent to Shri Janardan Chaubey was set aside fresh exercise was to be done on the basis of position which existed in 1985 and thus it is that policy which would be applicable in the instant case.

(iii) Even if the date on which Division Bench of this Court passed the Order is to be taken into consideration namely, December 20, 1988 it is the earlier policy which was in force at that time and therefore when the direction was issued on that date, respondents were called upon to decide the matter afresh in accordance with that policy.

(iv) It is the respondents who took time in carrying out the direction of the Division Bench. Although no time within which the directions were to be implemented was stipulated in the judgment dated December 20, 1988, respondents were expected to take steps within reasonable time. However, respondents took almost ten years in issuing fresh advertisement. If during this period there is a change in the policy which excludes the petitioner from consideration, respondents cannot take advantage of their fault and now state that the matter of allotment of LPH agency at Buxar would be governed by the policy prevailing on 5th June, 1998 on which date fresh advertisement was issued.

19. This Writ Petition is accordingly allowed partly. Advertisement dated 5th June, 1998 in so far as it includes LPG agency at Buxar is hereby set aside. Respondents are directed to issue fresh advertisement in respect of LPG agency at Buxar specifying that it would be allotted on the basis of same criteria and category of "extremely deserving cases for ex-servicemen who have no means of livelihood" would also be eligible. Keeping in view that already much time has elapsed, the advertisement should be issued within two months from the date of this judgment and thereafter decision be taken within six months.

20. No costs.