Gujarat High Court
Hareshbhai Nathabhai Patel vs Hindustan Petroleum Corporation ... on 4 August, 2021
Bench: J.B.Pardiwala, Vaibhavi D. Nanavati
C/LPA/272/2018 JUDGMENT DATED: 04/08/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 272 of 2018
In R/SPECIAL CIVIL APPLICATION NO. 214 of 2013
With
R/LETTERS PATENT APPEAL NO. 1034 of 2018
In
SPECIAL CIVIL APPLICATION NO. 214 of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE J.B.PARDIWALA
and
HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
==========================================================
HARESHBHAI NATHABHAI PATEL
Versus
HINDUSTAN PETROLEUM CORPORATION LTD THRO CHIEF REGIONAL
MANA & 2 other(s)
==========================================================
Appearance:
MR DHARMESH R PATEL(5592) for the Appellant(s) No. 1
MS MINOO A SHAH(774) for the Respondent(s) No. 1
NOTICE SERVED(4) for the Respondent(s) No. 2,3
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CORAM:HONOURABLE MR. JUSTICE J.B.PARDIWALA
and
HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
Page 1 of 24
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C/LPA/272/2018 JUDGMENT DATED: 04/08/2021
Date : 04/08/2021
ORAL JUDGMENT
(PER : HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI)
1. Both the captioned appeals are directed against the
judgment dated 26.12.2017 passed by learned Single Judge of
this Court in the Special Civil Application No.214 of 2013 and
other connected writ-applications. The writ-applicant of Special
Civil Application No.214 of 2013 has filed Letters Patent
Appeal 272 of 2018 and the Letters Patent Appeal No.1034 of
2018 is at the instance of the original respondent - Hindustan
Petroleum Corporation Ltd., - (for short 'HPCL').
2. Since the challenge involved in both the appeals is to the
self same judgement passed by the learned Single Judge, the
appeals are taken up for hearing analogously and are being
disposed off by this common order. The parties are referred to
as per the array of parties in special civil application no. 214
of 2013.
2.1 The appellant of Letters Patent Appeal No. 272 of 2018-
original writ-applicant challenged the decision taken by the
HPCL dated 27.12.2012 whereby the authority had called writ-
applicant for the re-interview with regard to grant of retail
out-let distributorship relating to the location within two
kilometers from Sikka Chokdi on S.H.59, Dist.Sabarkantha. The
issue involved in the present appeal is with regards to grant of
dealership for HPCL retail-outlet and the process undertaken
C/LPA/272/2018 JUDGMENT DATED: 04/08/2021
for the same.
2.2 The Special Civil Application No.214 of 2013 was filed by
the original writ-applicant seeking the following reliefs :-
"(A) Admit this petition;
(B) Allow this Petition by issuing an appropriate writ, order
or direction by quashing and setting aside the decision of Re-
interview dated 27 / 12/12 issued by the respondent No.1;
(C) Pending, Admission and till final disposal of the present
petition, be pleased to restrain the respondent no. 1 from
further proceeding with regard to the decision of Re-interview
dated 27/12/12 issued by the respondent no. 1 in the interest
of justice;
D) Grant such other and further relief (s) as deemed fit in the
interest of the justice."
3. Facts giving rise to these appeals are summarized as
under :-
3.1 The respondent No.1 - HPCL issued an advertisement
dated 30.6.2010 in the daily newspapers Times of India and
Sandesh in the State of Gujarat for appointment of retail outlet
dealer at location No.90 within two kilometers from Sikka
Chokdi on S.H.59, Dist.Sabarkantha under open category in the
Gujarat. The writ-applicant applied for the same as per the
said advertisement and was called for interview along with
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other candidates on 7.10.2010.
3.2 The writ-applicant appeared for the interview. According
to the writ-applicant the writ-applicant was the most eligible
candidate but his name did not reflect in the select list
published on 17.12.2010. According to the writ-applicant, he
was at Sr.No.1 or 2 but his name altogether was excluded
from the list.
3.3 Being aggrieved by the said select list the writ-applicant
preferred a representation to respondent No.1-HPCL which was
not considered by the respondent No.1-HPCL and hence Special
Civil Application No.10253 of 2011 was preferred by the writ-
applicant. It is also relevant to quote the prayers as preferred
in the said Special Civil Application which reads thus:-
8(B) Allow this petition by issuing an appropriate writ, order
or direction quashing and setting aside the selection list dated
7.12.2010 issued by the respondent No.1 and thereby, be
pleased to direct the respondent No.1 to grant the retail
outlet dealership within 2 kms. from Sika Chowkdi on SH 59
to the present petitioner.
3.4 In the Special Civil Application No.10253 of 2011 the
respondent No.1-HPCL took a stance that the writ-applicant did
appear in the select list but in view of the allegations raised
by various other candidates and after investigation it was
decided to cancel the select list which was impugned in
Special Civil Application No.10253 of 2011. In view of the said
stance of the respondent No.1-HPCL the writ-application came
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to be disposed off vide order dated 20.6.2012 by making the
following observations :-
"3. From the record of the petition and from the submission
made by the learned advocate for the petitioner and
respondent company it has emerged that the respondent
company has treated the merit list as "cancelled".
Therefore, the relief prayed for by the petitioner in paragraph
No.8(B) to the effect that the selection list dated 7.12.2010
issued by the respondent No.1 be set aside, would not survive
/ stands satisfied in view of the decision taken by the
respondent company.
4. It is not in dispute that the petitioner's name was in the
list prepared by the respondent. The said list i.e. the list
containing petitioner's name is treated as cancelled. Actually
in the petition the petitioner himself claimed that the list may
be cancelled. Thus, when the list is treated as "cancelled" by
the respondent company, the petitioner cannot claim that
dealership of retail outlet may be granted to him. When the
list is cancelled then the names of all persons / candidates
who were in the list would stand cancelled and that therefore
in view of the first part of relief prayed for by the petitioner
himself, the second part of the relief would not survive. In
view of the fact that the respondent company has treated the
list as "cancelled", the relief prayed for in petition would not
survive. The petition, therefore, is disposed of accordingly.
C/LPA/272/2018 JUDGMENT DATED: 04/08/2021
5. At this stage, it is necessary to mention that in view of
the aforesaid decision of the respondent company, one the
candidates whose names was included in the merit list has
preferred petition being Special Civil Application No.793 of
2012 and challenged the decision / action of the respondent
company. The said petition is pending. It is also necessary to
mention that present petitioner is one of the respondents in
the said petition therefore so far as present petitioner's
grievance with regard to other candidates would be
considered in the said petition and therefore also present
petition does not survive and the same is disposed of
accordingly."
3.5 It is also required to mentioned about the Special Civil
Application No.793 of 2012 was filed by Mr. Virendrakumar
Prajapati challenging the decision of cancellation of select list
and constitution of new select panel. In the said writ-
application the interim order came to be passed on 21.09.2012
which reads thus:-
"11. So far as the interim relief is concerned, the Court is
not inclined to restrain the respondent corporation from
conducting fresh interviews at this stage, more particularly
because said Rule 19 on which the petitioner has placed
reliance contemplates that fresh interviews of the same
candidates can be conducted. Even according to the
communication dated 8.9.2011, the respondent corporation
has informed the petitioner that the respondent corporation is
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going to conduct fresh interview of only those candidates who
was enlisted on earlier occasion. Therefore, the Court is not
inclined to stay the process of fresh interviews of the very
same candidates as contemplated by the respondent
corporation under communication dated 8.9.2011. It is,
however, clarified, in view of the stipulation made by the
learned advocate for the petitioner, that the change made in
the marks as per the details mentioned in paragraph No.16 of
the affidavit in SCA No.10253/2011, shall not be taken into
account by the committee when fresh interview of the same
candidates are conducted and appropriate decision will be
taken independently and only on the basis of the interviews
which may be held by the committee in pursuance of the
communication dated 8.9.2011 and the marks which the
candidates may secure. It is further clarified that the final
decision and subsequent actions by the respondent corporation
of allotting outlet will be subject to final decision of the
present petition. If any candidate other than the petitioner is
selected after the fresh interviews, then in the letter of intent
/ letter of allotment, the respondent corporation shall
subsequently clarify that the said decision will be subject to
the final order in the present petition."
3.6 The interim order dated 21.09.2012 passed in Special
Civil Application No.793 of 2012 was challenged by Mr
Virenddrakumar Prajapati by way of filing Letters Patent
Appeal No.1333 of 2012 which came to be dismissed
summarily vide order dated 22.10.2012.
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3.7 The present writ-applicant of Special Civil Application
No.214 of 2013 - Hareshkumar Patel then came before this
Court filing the writ-application challenging the decision of the
respondent authorities to call the parties for re-interview vide
communication dated 27.12.2012.
3.8 The writ-applicant being aggrieved by the said decision of
respondent no.1 of conducting re-interview the writ-applicant
challenged the said decision being contrary to the guidelines of
the company as well as contrary in nature and therefore the
said decision was required to be quashed and set aside.
3.9 It is the case of the writ-applicant that the said decision
of respondent HPCL mainly to support a favourable person and
select by way of re-interviews. It was further submitted that
there was a strong apprehension that respondent no.1 tried to
correct the mistakes of prior interview and award of marks
during prior interview and therefore respondent no was making
effort to award more marks to respondent no.2.
3.10 The writ-applicant further alleged favouritism it was
mainly submitted that the decision making process of
respondent.1 was not in consonance with guidelines of retail
outlet dealership.
3.11 The learned single judge vide common judgement and
order dated 26.12.2017 disposed off the Special Civil
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Application nos. 793/2012, 214/ 2013 and 7521/2014 by
considering the rival contentions of the parties and observed as
this in paragraphs 18 to 20:-
"18. As the impugned selection is ordered to be quashed and
set aside, the entire exercise or the procedure of selection is
ordered to be conducted afresh as per the guidelines qua the
petitioners who are the original applicants. The procedure for
selection may be conducted after providing an opportunity to
all the petitioners including the petitioner in SCA 793/2012
and also keeping in mind the interim orders, where, in SCA
7451 of 2014, it has been clarified by the interim order that
FDR may not be furnished and the petitioner may disclose his
financial position while appearing for the purpose of fresh
interview. At the same time, it will be open for the
Respondent Corporation to take the decision as per their
norms or the policy where the person is having a dealership
of another Company like the Petitioner in SCA 214/2013.
Therefore, it will be open for the Respondent Corporation to
consider this aspect of eligibility for the purpose of another
dealership when he is already having one dealership. The
entire exercise shall be completed within a period of six
weeks.
19. The present group of petitions accordingly stands
allowed. The impugned communication/order or the selection
procedure shall stand quashed and set aside subject to the
direction as stated herein above.
C/LPA/272/2018 JUDGMENT DATED: 04/08/2021
20. The present petitions accordingly stands allowed partly
to the aforesaid extent. Rule is made absolute."
3.12 It is against this decision as rendered by the Learned
Single Judge in Special Civil Application No.213 of 2014 the
present appeals are preferred. The grievance as principally
raised in the LPA no. 272 of 2018 preferred by the original
writ-applicant is on the ground that calling for re-interview is
merely an eyewash to overcome the illegalities committed by
respondent HPCL, whereas the LPA no. 1034 of 2018 preferred
by the original respondent HPCL has raised the grievance and
is aggrieved by the order passed by the learned Single Judge
directing the respondent No.1-HPCL to follow due procedure
and conduct re-interview which according to the respondent
No.1-HPCL is wholly unjustified and erroneous in view of the
prevailing policy of the respondent No.1- HPCL.
4. We have heard Mr. Dharmesh R. Patel, the learned
counsel appearing for the writ-applicant and Ms. Minoo A.
Shah, the learned counsel appearing for the respondent -
HPCL.
Submissions on behalf of the appellant (original writ-
applicant) of LPA No.272 of 2018 :-
5. Mr. Dharmesh R. Patel, the learned counsel appearing
for the appellant submitted that the appellant was more
meritorious and figured at Sr. No.1 in the merit-list and that
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he was awarded the highest marks by the earlier select panel.
5.1 He submitted that the process of re-interview directed by
the learned Single Judge was merely an eyewash. He further
submitted that the entire merit-list was scrapped by the
respondent - HPCL because of the fact that one other
participant challenged the decision of change of marks in select
list and cancelling the merit-list by filing the Special Civil
Application No.793 of 2012. Pending the said writ-application
the respondent - HPCL decided to conduct re-interview which
gave rise to the Special Civil Application No.214 of 2013
whereby the learned Single Judge directed the respondent
No.1-HPCL to conduct re-interview by following due procedure
for selection after providing an opportunity to all the writ-
applicants including the writ-applicant in the Special Civil
Application No.793 of 2012 and keeping in mind the interim
orders, where in the Special Civil Application No.7451 of 2014,
it was clarified by the interim order that the FDR may not be
furnished and the writ-applicant may disclose his financial
position while appearing for the purpose of fresh interview. At
the same time, it was kept open for the respondent-
Corporation to take decision as per their norms or policy
where the person is having dealership of another Company like
the writ-applicant of the Special Civil Application No.214 of
2013. It was kept open for the respondent-Corporation to
consider the aspect of eligibility for the purpose of another
dealership when he was already having one dealership. The
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entire exercise was directed to be completed within a period of
six weeks. He has vehemently submitted that though the
learned single judge had partly allowed the writ-application
and directed the respondent No.1-HPCL to conduct re-interview
the said exercise was against the guidelines and prevailing
policy of the HPCL.
5.2 He submitted that the said guidelines provide for
selection of retail outlet dealership produced at Annexure-A to
the writ-application. He relied on Rules 12, 15, 19 and
guidelines of 2010.
Rule 12 provides for;
"Preference for offering suitable land."
Rule 15 provides for;
"In case for any reason the interview carried out for a
specific location has been nullified and re-interview has to be
held then all the candidates who have appeared for the
original interview only will be called for the re-interview."
Rule 19 provides for;
"grievance / complaint redressal system."
C/LPA/272/2018 JUDGMENT DATED: 04/08/2021
Guidelines for 2010
5.2 Mr. Patel submitted that though the appellant was more
meritorious, the respondent No.2 was arbitrarily awarded more
marks by the respondent-HPCL. The appellant is aggrieved by
the decision making the process of the respondent -
Corporation. Lastly he submitted that the decision of re-
interview by the respondent No.1-HPCL which has been in fact
conducted was erroneously directed by the learned Single
Judge to be re-conducted by way of re-interview and,
therefore, the order passed by the learned Single Judge was
required to be quashed.
Submissions on behalf of the respondent - HPCL :-
6. Per contra, Ms. Minoo A. Shah, learned counsel
appearing for the respondent HPCL submitted that the learned
Single Judge committed an error in partly allowing the Special
Civil Application. She submitted that the opponent No.1 i.e.
original writ-applicant having appeared in the selection process
was bound by the subject, selection guidelines and could not
have questioned the disqualification which was the decision
taken by the appellant in accordance with the guidelines of
March, 2010. Clause 19(b) referred to in the impugned order
of March, 2010 is not a part of March, 2010 Guideline and
actually pertains to the guidelines of September, 2011.
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6.1 She submitted that since the advertisement for the
location under dispute was issued on 30.6.2010 and the
interview was conducted on 7.12.2010, the case of the original
writ-applicant was required to be considered as per the March,
2010 guidelines. She therefore submitted that the writ-
applicant in accordance with the guideline of March, 2010 was
not eligible for the second dealership.
6.2 She submitted that the writ-applicant was already holding
and operating the dealership of another public sector oil
company and, therefore, the writ-applicant was disqualified
under the multiple dealership norms. She substantiated the said
submission by stating that the writ-applicant was a signatory to
a dealership of another oil company and could not now be
considered for selection of subject location in view of
disqualification applicable as per Clause (6) of March, 2010
guidelines. Clause (6) of the Guidelines of March, 2010 reads
thus;
"6. Multiple dealership norms (relationship clause) :
For Individuals including Partnerships
"Persons desirous of applying should not he having either
letter of Intent (LOI) or Dealership/Distributorship of any Oil
Company in his/her own name or in the name family
members in his/her family unit."
6.3 To substantiate the said submission she referred to the
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guidelines of selection which are forming part of the record of
Special Civil Application at Annexure-I. She relied on clause (6)
of the March, 2010 guidelines and further submitted that it
was incorrect to raise a grievance on the applicability of
guidelines of September 2011 which is applicable to MS/HSD
diesel advertisement from September 2011 whereas the
guidelines applicable to the case of writ-applicant are of March
2010 for advertisement issued from march 2010 and therefore
there is no breach of any procedures or guidelines. She further
submitted that there is no violation of fundamental right of the
writ-applicant in any manner.
6.4 She further submitted that there is no procedural
impropriety in complying clause 19 and other clauses in
respect of investigation of the complaints as per the guidelines
of march 2010. She submitted that the co-ordinate bench had
considered the clause 19 and other clauses applicable to the
case of writ-applicant and submitted there was no scope to
restrain the respondent no.1 from conducting the re-interview.
It was further submitted that the writ-applicant did not have
any inherent right to claim the dealership and dictate the
selection process which is otherwise required to be conducted
in accordance with the guidelines of the company.
6.5 She submitted that the learned Single Judge ought to
have dismissed the writ-application filed by the original writ-
applicant on the ground that the original writ-applicant had
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violated the multiple dealership norms as stated in the
guidelines and, therefore, the decision of appellant - HPCL
disqualifying the opponent No.1 or the original writ-applicant
in the selection process was just and proper. She further
submitted that the direction of the learned Single Judge for
allowing the opponent No.1 to participate in re-interview
amounted relaxation of guidelines and such special treatment
to the original writ-applicant would amount breach of
guidelines of the appellant - HPCL. She submitted that the
appellant had acted in accordance with the law and guidelines
of March, 2010.
6.6 In view of the above submissions, she submitted that the
order passed by the learned Single Judge was erroneous and,
therefore, the same is required to be quashed and set aside.
Since the Learned Single judge has committed an error in
overlooking the policy of 2010 which governed the case of the
writ-applicant.
7. We have heard Mr. Dharmesh R. Patel, the learned
counsel appearing for the appellant and Ms. Minoo A. Shah,
the learned counsel appearing for the respondent No.1-HPCL.
Analysis :-
8. Before adverting to rival contentions of the parties on
facts of the case, in our view it is apposite to narrate the legal
position on such claims in case of contractual disputes and the
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tenability of interference in the same under writ jurisdiction.
8.1 The law may not require much narration on the question
as to permissibility of invoking the writ jurisdiction in such
contractual matters as the same is well settled by now. The
interference in the process needs to be minimal and when the
same is governed by public interest and after following due
process of law, the interference is permissible to a very limited
extent.
The Honorable Apex Court in the case of Raunaq
International Ltd vs IVR Construction LTd reported in 1999 (1)
SCC 492 was pleased to observe as under :-
"9. The award of a contract, whether it is by a private party
or by a public body or the State, is essentially a commercial
transaction. In arriving at a commercial decision,
considerations which are of paramount importance are
commercial considerations. These would be:
(1) the price at which the other side is willing to do the
work;
(2) whether the goods or services offered are of the requisite
specifications;
(3) whether the person tendering has the ability to deliver the
goods or services as per specifications. When large works
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contracts involving engagement of substantial manpower or
requiring specific skills are to be offered, the financial ability
of the tenderer to fulfil the requirements of the job is also
important;
(4) the ability of the tenderer to deliver goods or services or
to do the work of the requisite standard and quality;
(5) past experience of the tenderer and whether he has
successfully completed similar work earlier;
(6) time which will be taken to deliver the goods or services;
and often.
(7) the ability of the tenderer to take follow-up action, rectify
defects or to give post-contract services.
Even when the State or a public body enters into a
commercial transaction, considerations which would prevail in
its decision to award the contract to a given party would be
the same. However, because the State or a public body or an
agency of the State enters into such a contract, there could
be, in a given case, an element of public law or public
interest involved even in such a commercial transaction.
10. What are these elements of public interest? (1) Public
money would be expended for the purposes of the contract.
(2) The goods or services which are being commissioned
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could be for a public purpose, such as, construction of roads,
public buildings, power plants or other public utilities. (3)
The public would be directly interested in the timely
fulfilment of the contract so that the services become
available to the public expeditiously. (4) The public would
also be interested in the quality of the work undertaken or
goods supplied by the tenderer. Poor quality of work or
goods can lead to tremendous public hardship and substantial
financial outlay either in correcting mistakes or in rectifying
defects or even at times in redoing the entire work--thus
involving larger outlays of public money and delaying the
availability of services, facilities or goods, e.g., a delay in
commissioning a power project, as in the present case, could
lead to power shortages, retardation of industrial
development, hardship to the general public and substantial
cost escalation.
11. When a writ petition is filed in the High Court
challenging the award of a contract by a public authority or
the State, the court must be satisfied that there is some
element of public interest involved in entertaining such a
petition. If, for example, the dispute is purely between two
tenderers, the court must be very careful to see if there is
any element of public interest involved in the litigation. A
mere difference in the prices offered by the two tenderers
may or may not be decisive in deciding whether any public
interest is involved in intervening in such a commercial
transaction. It is important to bear in mind that by court
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intervention, the proposed project may be considerably
delayed thus escalating the cost far more than any saving
which the court would ultimately effect in public money by
deciding the dispute in favour of one tenderer or the other
tenderer. Therefore, unless the court is satisfied that there is
a substantial amount of public interest, or the transaction is
entered into mala fide, the court should not intervene under
Article 226 in disputes between two rival tenderers. "
The Honorable Apex Court in the case of Air India Ltd vs
Cochin International Airport reported in 2000 (2) SCC 617 was
pleased to further observe as under :-
"The award of a contract, whether it is by a private party or
by a public body or the State, is essentially a commercial
transaction. In arriving at a commercial decision
considerations which are of paramount are commercial
considerations. The State can choose its own method to arrive
at a decision. It can fix its own terms of invitation to tender
and that is not open to judicial scrutiny. It can enter into
negotiations before finally deciding to accept one of the offers
made to it. Price need not always be the sole criterion for
awarding a contract. It is free to grant any relaxation, for
bona fide reasons, if the tender conditions permit such a
relaxation. It may not accept the offer even though it
happens to be the highest or the lowest. But the State, its
corporations, instrumentalities and agencies are bound to
adhere to the norms, standards and procedures laid down by
them and cannot depart from them arbitrarily. Though that
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decision is not amendable to judicial review, the Court can
examine the decision making process and interfere if it is
found vitiated by mala fides, unreasonableness and
arbitrariness. The State, its corporations, instrumentalities and
agencies have the public duty to be fair to all concerned. "
The Apex Court further observed in Air India (Supra)
"Even when some defect is found in the decision making
process the Court must exercise its discretionary power
under Article 226 with great caution and should exercise it
only in furtherance of public interest and not merely on the
making out of a legal point. The Court should always keep
the larger public interest in mind in order to decide whether
its intervention is called for or not. Only when it comes to a
conclusion that overwhelming public interest requires
interference, the Court should intervene"
The legal position has developed more towards the
restraint that needs to be adopted by the Court while
exercising powers under writ jurisdiction. The reliance can be
placed on the decisions rendered by the Honorable Apex Court
in the cases of Master Marine Services (P) Ltd. v. Metcalfe and
Hodgkinson (P) Ltd. and Anr. 2005 (6) SCC 138; Tejas
Constructions and Infrastructure Private Limited v. Municipal
Council, Sendhwa and Anr. 2012 (6) SCC 464 and several other
pronouncements. Hence in view of the said pronouncements we
now proceed to deal with the facts on hand.
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8.2 At the outset we may say that we are in complete
agreement with the submission as canvassed by Ms. Minoo
Shah on the aspect as to disqualification of the original writ-
applicant. The learned counsel for the writ applicant is not in
a position to dispute the same and nor is there any effort
made to show that the said writ-applicant is not covered by
the disqualification clause. Once the authority comes to a
conclusion with regards to disqualification of a participant on
the ground of prescribed disqualification under the guidelines
for award of work and the same is not disputed on facts, then
it is not open for this court to modify the suitability to
accommodate such participant in the process. Such position
leads to the sole conclusion as to disentitlement of any relief
to the writ-applicant.
8.3 We are of the view that the original writ-applicant could
not have been considered under the multiple dealership norms.
Further the original writ-applicant appears to have misguided
the Court by not disclosing the fact that he was already
holding a letter of intent of another public undertaking viz.
Bharat Petroleum and already operating the retail out-let in the
name and style of Niyati Petroleum Service at Sikka crossing,
Taluka : Dhansura, Dist. Sabarkantha. The original writ-
applicant was holding the retail out-let since 2011-12. The
action of the appellant - HPCL disqualifying the original writ-
applicant (opponent No.1) from appearing in the re-interview
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on 23.5.2014 was in accordance with the guidelines and the
original writ-applicant being ineligible was not required to be
called for re-interview for fresh selection process.
8.4 When the reliance is placed on Clause 6 of Multiple
dealership clause, the same clearly disentitles the writ-
applicant to hold second dealership.
8.5 Clearly the case of the writ-applicant falls for
consideration under the guidelines of HPCL of March, 2010.
Since the respondent No.1-HPCL issued the advertisement for
retail dealership on 30.6.2010, the writ-applicant applied for
the same and appeared for interview on 7.10.2010. The merit-
list which was the subject matter of challenge was also
published on 17.12.2010 and Clause (6) of March, 2010
guidelines disqualifies the writ-applicant since the writ-
applicant is holding another retail dealership the Clause (6) of
the multiple dealership disqualifies the writ-applicant for
allotment of the retail outlet for respondent No.1-HPCL. In
view of the same, the decision of disqualification of the
original writ-applicant cannot be faulted for the process in
question. The guidelines are clear and there is no scope of any
interference by this Court on the decision of disqualification.
8.6 We would also like to add that once the
tendering/employing authority follows the procedure and takes
a decision then the interference under the writ jurisdiction can
C/LPA/272/2018 JUDGMENT DATED: 04/08/2021
be minimal and it may not be open for this Court in writ
jurisdiction to strike a balance by passing directions which are
against the guidelines governing the tender process. Once a
decision has been arrived at taking into consideration all the
relevant factors and also the fact that the decision making
process does not suffer from any patent illegality this court
may refrain from entertaining such appeal.
9. In view of above observations and discussion the order
passed by the learned Single Judge to the extent of directing
the appellant - HPCL to call the original writ-applicant
(opponent No.1) for re-interview is quashed and set aside.
10. In the result, the Letters Patent Appeal No.272 of 2018
filed by the original writ-applicant fails. The Letters Patent
Appeal No.1034 of 2018 filed by the HPCL is allowed. The
judgement dated 27.12.2017 passed by the learned Single
Judge is set aside to the aforesaid extent.
(J. B. PARDIWALA, J)
(VAIBHAVI D. NANAVATI,J)
K.K. SAIYED
