INDRAJIT PRASAD V. UNION OF INDIA AND 6 ORS.

WP(C)/8397/2018

AI Insights

The case involves a dispute over the selection process for a petrol/diesel retail outlet dealership by HPCL at Kawaimari-Dhing road, Nagaon. The petitioner, Indrajit Prasad, and respondent No.7, Anand Agarwal, both applied for the dealership. Initially, Prasad was placed first in the merit list, but after a re-interview ordered by the court, Agarwal was placed first. The petitioner challenged the re-evaluation process, arguing that the land offered by Agarwal was agricultural and could not be used for commercial purposes, and that marks were awarded without proper justification. The court found that the decision-making process was not complete and directed HPCL to re-evaluate the candidates' credentials.

• Counselvise Citation: [2019] 140 COUNSELVISE.COM (IT) 683474 (HC-ASSAM NAGALAND MIZORAM AND ARUNACHAL PRADESH)
• Appeal Type: Others
• Pronouncement Date: 11-02-2019
• Assessment Year: misc
• Other Referred Cases: Writ Appeal No.123/2017, WP(C) No.2078 of 2015
• Laws Referred To: Article 226 of the Constitution of India, Assam Agricultural Land (Regulation of Re-classification and Transfer for Non-Agricultural Purpose) Act, 2015
• Result in Favour of: Others
• Court: HIGH COURT
• Department Lawyers: ASSTT S G I ADVOCATE; SS DEY; S BORTHAKUR; S S ROY
• Assessee Lawyers: K N CHOUDHURY
• Keywords: HPCL; Merit List; Quashing of provisional merit list; Reevaluation of credentials; Selection of petrol/diesel retail outlet dealership; Land use for commercial purpose
• Section: 226

Judgement Text

"Page No.# 1/5 GAHC010269622018 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C) 8397/2018 1:INDRAJIT PRASAD S/O. SRI BISHNU PRASAD, R/O. JAIL ROAD, P.O. AND P.S. NAGAON, DIST. NAGAON, ASSAM-782001. VERSUS 1:UNION OF INDIA AND 6 ORS. REP. BY THE SECRETARY TO THE GOVT. OF INDIA, IN THE MINISTRY OF PETROLEUM AND NATURAL GAS, NEW DELHI. 2:HINDUSTAN PETROLEUM CORPN. LTD. (A GOVT. OF INDIA ENTERPRISE) HAVING ITS REGD. OFFICE AT 17 JAMSHEDJI TATA ROAD MUMBAI-400020. 3:THE GENERAL MANAGER RETAIL (EAST ZONE) HINDUSTAN PETROLEUM CORPN. LTD. 771 ANANDPUR OFF E.M. BYPASS KOLKATA-700107. 4:THE DY. GENERAL MANAGER FINANCE (EAST ZONE) HINDUSTAN PETROLEUM CORPN. LTD. 771 ANANDPUR OFF E.M. BY PASS KOLKATA-700107. 5:THE SENIOR REGIONAL MANAGER RETAIL HINDUSTAN PETROLEUM CORPN. LTD. GUWAHATI REGIONAL OFFICE H.D. COMPLEX 2ND FLOOR Page No.# 2/5 JANAPATH ULUBARI GUWAHATI-781007. 6:SELECTION COMMITTEE REP. BY ITS SECRETARY C/O. THE SENIOR REGIONAL MANAGER RETAIL HINDUSTAN PETROLEUM CORPN. LTD. GUWAHATI REGIONAL OFFICE H.D. COMPLEX 2ND FLOOR JANAPATH ULUBARI GUWAHATI-781007. 7:SRI ANAND AGARWAL S/O. LT. RAJ KUMAR AGARWAL R/O. C/O. PAWAN AUTOMOBILES A.T. ROAD DIST. KAMRUP (M) ASSAM Advocate for the Petitioner : MR. K N CHOUDHURY Advocate for the Respondent : ASSTT.S.G.I. BEFORE HONOURABLE MR. JUSTICE UJJAL BHUYAN ORDER Date : 11-02-2019 Heard Mr. K.N. Choudhury, learned Senior counsel, assisted by Mr. M. Mahanta, learned counsel for the petitioner; Mr. S. Borthakur and Mr. S.S. Roy, learned counsel for Hindustan Petroleum Corporation Ltd (HPCL), for respondent Nos.2 to 6; and Mr. S.S. Dey, learned Senior counsel, assisted by Mr. M. Nath, learned counsel for respondent No.7. 2. By filing this petition under Article 226 of the Constitution of India, petitioner seeks quashing of provisional merit list dated 08.10.2018 and further seeks a direction to the respondents to re-evaluate the credentials of the parties in strict compliance to the judgment and order dated 08.08.2018 passed in Writ Appeal No.123/2017. 3. Matter relates to selection of petrol/diesel retail outlet dealership of HPCL at Kawaimari-Dhing road in the district of Nagaon. 4. HPCL issued advertisement on 14.09.2011 for appointment of retail outlet dealers at different places including at Kawaimari-Dhing road, Nagaon. Page No.# 3/5 5. This litigation pertains to dealership at Kawaimari-Dhing road. 6. Both petitioner and respondent No.7 had responded to the said advertisement for dealership at Kawaimari-Dhing road. Interview was held on 27.06.2012 following which merit list was published. In the merit list, petitioner was placed at Serial No.1 whereas respondent No.7 was placed at Serial No.2. 7. Respondent No.7 lodged complaint before the authorities of HPCL that no marks were awarded to him under the headings ‘experience’ and ‘income’ though he was entitled for marks under the said headings. Complaint of respondent No.7 was sustained by HPCL authorities. However, Senior Regional Manager issued letter dated 25.04.2013 cancelling the merit list and deciding to go for fresh selection. By subsequent order dated 16.12.2014, selection process itself was cancelled which was unsuccessfully challenged by respondent No.7 before this Court in WP(C) No.2078 of 2015. The writ petition was dismissed on 27.03.2017. 8. Respondent No.7 thereafter preferred an appeal being Writ Appeal No.123/2017. In the hearing of the appeal, learned counsel for the petitioner and respondent No.7 suggested that selection be made by re-interviewing both the candidates. On the other hand, learned counsel for HPCL had contended that in the meanwhile a new policy for appointment of retail outlet dealers was introduced with effect from 23.06.2014 as per which selection is made by draw of lots from amongst the eligible candidates. However, this contention was not accepted by the Division Bench on the ground that while the new policy came into effect from 23.06.2014 the selection process had commenced in the year 2011. In such circumstances, Writ Appeal No.123/2017 was disposed of vide order dated 08.08.2018 by directing HPCL to immediately call the petitioner and respondent No.7 for reevaluation of their credentials for appointment of retail outlet dealer at Kawaimari-Dhing road, Nagaon further directing that this exercise should be completed within two months. 9. Thus, as per the direction of the Division Bench, HPCL was required to call petitioner and respondent No.7 for reevaluation of their credentials for appointment of retail outlet dealer at Kawaimari-Dhing road. 10. Thereafter, the two candidates were interviewed on 08.10.2018 following which provisional merit panel has been prepared placing respondent No.7 at Serial No.1 securing 80.70 marks out of 100 and petitioner at Serial No.2 securing 78.27 marks out of 100. 11. At this stage, it may be mentioned that at the first instance, interview was conducted at 27.06.2012 whereafter statement of performance was prepared. From this statement, it is seen that there were altogether 5 candidates for the dealership at Kawaimari-Dhing road though one Prabesh Kumar Jain was absent. Candidates at Serial Nos.4 and 5 were way below the marks secured by the petitioner and respondent No.7. Therefore, they are out of contention. The contest is between petitioner and respondent No.7. 12. As per the said statement dated 27.06.2012, petitioner had secured 78.64 marks out of 100 whereas respondent No.7 had secured 74.06 out of 100. Both were granted ‘0’ marks under the heading ‘experience’. However, in the re-interview held on 08.10.2018, respondent No.7 has been granted 3 marks out of 4 against ‘0’ by the petitioner. That apart, under the heading ‘income’, respondent No.7 has been awarded 4 marks as against ‘0’ by the petitioner. These two marks have significantly altered the position in favour of respondent No.7. 13. Basic contention of Mr. Choudhury, learned counsel for the petitioner, is that land offered by respondent No.7 belongs to Sri Bombeswar Deori and three others which has been taken on lease by respondent No.7 for a period of 30 days. However, while issuing no objection certificate to such transfer of land, Certificate Officer, Sadar Revenue Circle, Nagaon on 17.10.2011 had made it clear that the land in question would be used for agricultural purpose only. Mr. Choudhury would therefore Page No.# 4/5 argue that the land offered by respondent No.7 is agricultural land and cannot be used for commercial purpose as such use is prohibited under the Assam Agricultural Land (Regulation of Re-classification and Transfer for Non-Agricultural Purpose) Act, 2015. 13.1. Another contention of Mr. Choudhury is that there was no justification for awarding 4 marks to respondent No.7 under the heading ‘income’ since respondent No.7 had filed income tax return in Form No.ITR II which is meant for individual and HUFs not having income from business or profession. The third ground of attack of Mr. Choudhury is that marks under heading ‘experience’ i.e., 3 marks in favour of respondent No.7 against ‘0’ marks of the petitioner were awarded without any documentary proof. Division Bench had directed reevaluation of credentials of the two candidates but HPCL had gone beyond that. 14. On the other hand, Mr. Dey, learned counsel for respondent No.7 referring to his affidavit has justified preparation of the merit panel by HPCL authorities. It is contended that under Clause 19 of the Guidelines for Selection of Retail Outlet Dealers, petitioner has his remedy of lodging complaint but petitioner did not lodge complaint. Respondent No.7 has contended that in the initial interview, he was unfairly denied marks under the headings ‘experience’ and ‘income’ which position has been rectified in the re-interview. Regarding land in question, he submits that there has been no cultivation of crops since last 10 years which is certified by the Sub-Divisional Agricultural Officer, Nagaon. Therefore, Deputy Commissioner, Nagaon has been moved for conversion of the land to commercial. In so far land of the petitioner is concerned, it is situated at Kachamari and not at Kawaimari. Therefore, land offered by the petitioner is not at the advertised location. 15. Mr. Borthakur, learned counsel for the HPCL, submits that the writ petition is premature. There are four stages of scrutiny and verification. Only the stages of verification of documents and interview have been completed. Two other stages of verification still remain. In such circumstances, petitioner should have waited for the final decision of the HPCL. Mr. Roy has produced the record. 16. Submissions made by learned counsel for the parties have been considered. Also perused the materials on record including the record produced by Mr. Roy, learned counsel for the HPCL. 17. As per guidelines framed by HPCL for selection of retail outlet dealers, more particularly, Clause 12 thereof, availability of suitable land for setting up of retail outlet at the advertised location is the essence of the dealership. How the site offered is to be evaluated is laid down in Clause 12. As per Note 3 to the evaluation clause, offered land should be convertible for commercial and petrol pump use. 18. As contended by Mr. Borthakur, it is true that at this stage, only a preliminary assessment has been made. The merit list prepared is provisional and not final. 19. No doubt, petitioner and respondent No.7 are in serious competition for the dealership. In the initial round, petitioner was at Serial No.1 whereas respondent No.7 was at Serial No.2 which position has now been reversed. In the earlier round, both the candidates were awarded ‘0’ marks under the heading ‘experience’. In the present round while respondent No.7 has been awarded 3 marks, petitioner has not been awarded any mark. Petitioner has contended that such award of marks in favour of respondent No.7 is de hors any documentary proof or evidence. Another area of contest is the award of marks under the heading ‘income’ where petitioner has not been awarded any mark as against 4 marks in favour of respondent No.7 which the petitioner contends to be unjustified going by the income tax returns of respondent No.7. But the more serious objection by the petitioner to the candidature of respondent No.7 is the nature of land offered by respondent No.7. 20. Documents annexed to the writ petition indicate that the leased land offered by respondent No.7 is agricultural land which is to be used for agricultural purpose only. However, respondent No.7 has Page No.# 5/5 contended that no agricultural activity had taken place on such land for the last 10 years and therefore respondent No.7 has moved the revenue authorities for reclassification of the land. But as on today, status of the land has not been changed. On the other hand, respondent No.7 has alleged that the offered land of the petitioner is not at the advertised location. 21. As submitted by Mr. Borthakur further two stages of verification still remain to be carried out to complete the decision-making process. In such circumstances, Court is of the view that intervention at this stage may not be justified. However, regarding preliminary objection raised by respondent No.7, it is to be noted that the present reevaluation has taken place pursuant to direction of the Division Bench in the writ appeal. Therefore, it would not be justified to take the view that remedy of the petitioner should be confined to filing of complaint under Clause 19. 22. That being the position, since the decision-making process is not yet complete, respondent Nos.2 to 6 are directed to re-evaluate the candidatures of petitioner and respondent No.7 strictly in terms of the direction of the Division Bench of this Court dated 08.08.2018 passed in Writ Appeal No.123/2017 and also by taking note of the objections relating to classification and location of land, income and experience of the two candidates, before any final decision is taken in accordance with law. 23. Needless to say, it would be open to either parties to assail the final decision that may be taken in accordance with law, if so advised. 24. Record produced is returned back to Mr. Roy. JUDGE Comparing Assistant "