Firose N.P. & Abdul Latheef Chooriot v. Indian Oil Corporation Ltd. & Union of India and Addl.R4

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN** ## **MONDAY, THE 21ST DAY OF MAY 2012/31ST VAISAKHA 1934** ## **WP(C).No. 3343 of 2010 (P)** **--------------------------** **PETITIONER(S):** - **-----------------------** **1. FIROSE N.P., FRIOSE MANZIL,** - **P.O.VILAKKODE, VIA. IRITTY, KANNUR-670 703.** **2. ABDUL LATHEEF CHOORIOT, PERUNTHAYIL HOUSE, AYYAPPANKAVU, VILAKKODE P.O., IRITTY, KANNUR DISTRICT-670 703.** **BY ADVS.SRI.M.RAMESH CHANDER** **SMT.K.A.SANJEETHA SRI.ANEESH JOSEPH** ## **RESPONDENT(S):** - **------------------------------** **1. INDIAN OIL CORPORATION LTD., PANAMPILLY AVENUE, PANAMPILLY NAGAR, KOCHI-682 036, REPRESENTED BY ITS CHIEF AREA MANAGER.** **2. THE CHIEF MANAGER (LPG-O)/DEPUTY GENERAL MANAGER(LPG), INDIAN OIL CORPORATION LTD., PANAMPILLY AVENUE, PANAMPILLY NAGAR, KOCHI-682 036.** **3. UNION OF INDIA, REPRESENTED BY THE SECRETARY,** **MINISTRY OF PETROLEUM, NEW DELHI.** - ***ADDL.R4 IMPLEADED:** - **R4. K.K.RAMACHANDRAN, S/O.VELAYUDHAN ADIYODI, AGED 52 YEARS, RESIDING AT PREETHA, PERAVOOR, KANNUR DISTRICT.** - **(*ADDL.R4 IS IMPLEADED AS PER ORDER DTD. 29/07/2010 IN I.A.NO.10378/2010)** **R1 & R2 BY ADVS. SRI.E.K.NANDAKUMAR,SC, IOC SRI.A.K.JAYASANKAR NAMBIAR** **SRI.K.JOHN MATHAI** **SRI.P.BENNY THOMAS** **SRI.P.GOPINATH** **R3 BY ADV. SRI.P.PARAMESWARAN NAIR,ASST.S.G. OF INDIA ADDL.R4 BY ADV. SRI.C.K.SREEJITH** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09/02/2012, THE COURT ON 21/05/2012 DELIVERED THE FOLLOWING:** **Kss** ## **WPC.NO.3343/2010 P** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **P1: COPY OF THE ADVERTISEMENT WHICH CAME IN MALAYALA MANORAMA DTD 29/12/2007.** - **P2: COPY OF THE PARTNERSHIP DEED BETWEEN THE PETITIONERS DTD. 28/01/2008.** - **P3: COPY OF THE COMMUNICATION NO.CAO/G/04 OF THE FIRST RESPONDENT DTD. 25/08/2009.** - **P4: COPY OF THE BROCHURE ISSUED BY THE FIRST RESPONDENT.** - **P5: COPY OF THE CERTIFICATE ISSUED BY THE FEDERAL BANK LTD., IRITTY BRANCH DTD. 14/09/2009.** - **P6: COPY OF THE CERTIFICATE ISSUED BY THE STATE BANK OF TRAVANCORE IRITTY BRANCH DTD. 12/09/2009.** - **P7: COPY OF THE CERTIFICATE ISSUED BY THE FEDERAL BANK LTD., IRITTY BRANCH DTD. 14/09/2009.** - **P8: COPY OF THE MARKS AWARDED TO THE CANDIDATES FOR THE INTERVIEW CONDUCTED FOR SELECTION OF LPG DISTRIBUTOR FOR PERAVOOR.** - **P9: COPY OF THE COMMUNICATION NO.KESO/LPG/57 ISSUED BY THE SECOND RESPONDENT TO THE FIRST PETITIONER DTD. 13/01/2010.** - **P10: COPY OF THE COMMUNICATION NO.KESO/LPG/57 ISSUED BY THE SECOND RESPONDENT TO THE SECOND PETITIONER DTD. 13/01/2010.** - **P11: COPY OF THE MARKS AWARDED BY THE SELECTION OF LPG DISTRIBUTOR DTD. 18/09/2000.** ## **RESPONDENT'S EXHIBITS:** - **R4(A): COPY OF THE CERTIFICATE ISSUED BY CNR TRADING COMPANY DTD. 26/01/2008.** - **R4(B): COPY OF THE INFORMATION RECEIVED FROM INSTITUTE OF TECHNOLOGY, MAYYIL DTD. 11/11/2009 ON A PETITION FILED UNDER RTI ACT.** - **R4(C): COPY OF THE LETTERDTD. 25/05/2010 THE LETTER OF INTENT.** - **R4(D): COPY OF THE LETTER DTD. 28/06/2010 ISSUED BY THE INDIAN OIL CORPORATION PMK POWER CIVIL STATION KANNUR.** ## **/TRUE COPY/** **P.S.TO JUDGE** ## **Kss** ## **P.N.RAVINDRAN, J. ----------------------------------------W.P(C).No.3343 of 2010 ----------------------------------------Dated this the 21[st] day of May, 2012** ## **JUDGMENT** Exts.P9 and P10 letters sent by the second respondent to the petitioners informing them that they have been declared ineligible for award of the LPG distributorship at Peravoor are under challenge in this writ petition. The brief facts of the case are as follows. 2. By Ext.P1 notification published in the Malayala Manorama daily dated 29.12.2007 the Bharat Petroleum Corporation Limited, the Indian Oil Corporation Limited and the Hindustan Petroleum Corporation Limited invited applications from various categories of persons for appointment as LPG distributor at various locations including Peravoor in Kannur district. The LPG distributorship at Peravoor was that of the Indian Oil Corporation Limited. Pursuant to Ext.P1 notification, the petitioners, as partners of a firm constituted as per Ext.P2 partnership deed dated 28.1.2008 submitted separate applications. They were called to appear for an interview on 16.9.2009 as per Ext.P3 letter ## **W.P(C).No.3343 of 2010** -:2:- dated 25.8.2009. The petitioners appeared for the interview and after interview Ext.P8 empaneled list was published. The petitioners were ranked first and the 4[th] respondent was ranked second. After the empaneled list was published, the impugned letters were issued to the petitioners informing them that during field verification it was noticed that they have withdrawn money from the bank accounts mentioned in their applications before the expiry of three months from the date of submission of the applications and that it amounts to violation of clause 14.2 of the application form thereby rendering them ineligible for award of the LPG distributorship. Hence this writ petition challenging Exts.P9 and P10 and seeking the following reliefs:- _i) to call for the records leading to Exts.P9 and P10 and quash the same by issuance of a writ of certiorari or any other writ, direction or order._ _ii) to issue a writ of mandamus or any other writ, direction or order, directing respondents 1 and 2 to allot LPG distributorship at Peravoor, Thalassery Taluk, Kannur district to the petitioners. iii) to declare that clause 14.2 of the application as unconstitutional and violative of Article 14 of the Constitution of India and unenforceable._ ## **W.P(C).No.3343 of 2010** -:3:- The main contention raised by the petitioners is that the reliance placed on clause 14.2 of the application form to disqualify them is misconceived and without any merit. Relying on Exts.P5 and P6 certificates it is contended that the first petitioner had the sum of Rs.9,39,260/- lying in deposit with the Iritty branch of the Federal Bank as on 14.9.2009 and the sum of Rs.9,92,806/- lying in deposit with the Iritty branch of the State Bank of Travancore as on 12.9.2009 and also on the date of the interview, namely 16.9.2009. Relying on Ext.P7 it is contended that the sum of Rs.7,21,579/- was lying in deposit in the savings bank account maintained by the second petitioner with the Federal Bank, Iritty branch as on 14.9.2009. 3. Respondents 1 and 2 have filed a statement dated 5.10.2010. In paragraph 5 it is stated that during field verification it was noticed that the petitioners had withdrawn the amounts lying in the bank in violation of clause 14.2 of the application form. It is stated that the second petitioner deposited the sum of Rs.4,90,000/- on 28.1.2008 in account No.14580100007512 maintained by him in the State Bank of India and withdrew the entire amount on the very next day, i.e. 29.1.2008. It is stated that marks were awarded to the petitioners for ability to provide ## **W.P(C).No.3343 of 2010** -:4:- finance and as the amount deposited on 28.1.2008 was withdrawn on the very next day, the petitioners are ineligible to award of marks on that count and are also rendered ineligible to be considered for award of the distributorship. 4. Pursuant to the directions issued by this Court respondents 1 and 2 have filed an additional counter affidavit dated 28.7.2011 explaining the meaning of clause 14.2. Paragraph 3 of the said affidavit is extracted below:- _“3. This respondent has already filed a statement stating the circumstances under which the petitioners became ineligible. During the course of hearing held on 27.7.2011, this Hon'ble Court directed this respondent to clarify the meaning of Clause 14.2 of the application which has been extracted by the petitioner in paragraph 15 of the writ petition. The said clause reads as “the amount mentioned should remain in the bank for a minimum period of three months from the date of application or the date of interview whichever is earlier”. What is meant by the aforesaid clause is that the amount which the petitioners indicate as deposited in the Bank should remain in the Bank for a minimum period of three months from the date of application or till the date of interview whichever is earlier. In other words, if the interview is held before the expiry of three months from the date of_ -:5:- ## **W.P(C).No.3343 of 2010** _application the amount need not be deposited till the date of interview and it can be withdrawn. Again, if the interview is held after three months, the amount need not be maintained in the bank account till the date of interview. This is the manner in which the aforementioned clause is interpreted by the respondent unanimously in all cases of dispute. It is submitted that so far as the petitioners are concerned, the 2[nd] petitioner had deposited amount on 28.1.2008 with State Bank of India in his account and withdrew the full amount the following day, i.e. on 29.1.2008. Application of the petitioner is dated 30.1.2008. Hence even as on the date of application, the amount was not in the Bank Account. In such circumstances, the petitioners were declared ineligible for award of distributorship and they were not called for interview.”_ 5. Respondents 1 and 2 have filed an additional counter affidavit dated 12.8.2011 explaining the meaning of clause 14.2 of the application. Paragraph 3 of the said additional counter affidavit is extracted below:- _“3. This respondent has already filed a statement stating the circumstances under which the petitioners became ineligible for allotment of dealership. During the course of hearing held on 27.7.2011, this Hon'ble Court directed this respondent to clarify the true impact and meaning_ ## **W.P(C).No.3343 of 2010** ## -:6:- _of Clause 14.2 of the application which has been extracted by the petitioner in paragraph 15 of the writ petition. The said clause reads as follows:-_ _“The amount mentioned should remain in the bank for a minimum period of three months from the date of application or the date of interview whichever is earlier”._ _What is meant by the aforesaid clause is that the amount which the petitioners indicate as deposited in the Bank should remain in the Bank for a minimum period of three months from the date of application or till the date of interview whichever occurs earlier. In other words, if the interview is held before the expiry of three months from the date of application the amount need be deposited only till the date of interview, after which it can be withdrawn. Again, if the interview is held after three months from the date of application, the amount need not be maintained in the bank account till the date of interview. This is the true meaning of the aforementioned clause and this is the manner in which the it is interpreted by the respondent consistently in all cases. It is submitted that in so far as the petitioners are concerned, the 2[nd] petitioner had deposited amount on 28.1.2008 with State Bank of India in his account and withdrew the full amount the following day, i.e. on 29.1.2008. The application of the petitioner is_ ## **W.P(C).No.3343 of 2010** ## -:7:- _dated 30.01.2008. Hence even as on the date of application, the amount was not in the Bank Account. In the circumstances, the petitioners were declared ineligible for award of distributorship and they were not called for interview.”_ 6. I heard Sri.M.Ramesh Chander, learned counsel appearing for the petitioners, Sri.E.K.Nandakumar, learned Senior Advocate appearing for respondents 1 and 2 and Sri.C.K.Sreejith, learned counsel appearing for the additional 4[th] respondent. The learned counsel appearing for the petitioners contended that clause 14.2, which is relied on by the respondents, has no application to the case on hand, that the stipulation in clause 14.2 that the amount mentioned in the application should remain in the bank for a minimum period of three months from the date of application or the date of interview, whichever is earlier, does not convey any meaning in view of the fact that the application comes first and the interview thereafter, that on the date of the interview the amount mentioned in the application was available in the bank account and therefore the decision declaring the petitioners ineligible for award of the LPG distributorship relying on clause 14.2 is liable to be set aside. The learned counsel appearing for the petitioners contended that the decision declaring the ## **W.P(C).No.3343 of 2010** -:8:- petitioners ineligible for award of the LPG distributorship relying on clause 14.2 is therefore, liable to be set aside for the reason that on the date of the interview the amount mentioned in the application was available in the bank. 7. Per contra, the learned Senior Advocate appearing for respondents 1 and 2 contended that the meaning of the aforementioned clause is that the amount which the petitioners have in their application claimed is lying in deposit with the bank should remain in the bank for a minimum period of three months from the date of the application or till the date of the interview, whichever is earlier. The learned Senior Advocate contended that if the interview is held before the expiry of three months from the date of the application the amount need be deposited in the bank only till the date of the interview after which the deposit can be withdrawn by the applicant, if he chooses, and if the interview is held after three months from the date of the application, the amount need not be maintained in the bank after the expiry of three months from the date of the application. The learned counsel contended that respondents 1 and 2 have understood the said clause in the manner indicated above. Relying on the documents produced by the petitioners themselves it is stated ## **W.P(C).No.3343 of 2010** -:9:- that the second petitioner deposited the sum of Rs.4,90,000/- on 28.1.2008 in the Iritty branch of the State Bank of India and withdrew the amount on the very next day i.e. 29.1.2008, even before the application was submitted on 30.1.2008 and that as on the date of application, the amount referred to in the application was not lying in deposit in the bank and therefore the petitioners were rightly declared ineligible for award of the LPG distributorship. 8. I have considered the submissions made at the Bar by the learned counsel appearing on either side. I have also gone through the pleadings and the materials on record. The short question that arises for consideration in this writ petition is whether the disqualification of the petitioners for the reason that the second petitioner had withdrawn the money lying in deposit within the period of three months from the date of application is legal and proper. The main contention raised by the learned counsel for the petitioners is that clause 14.2 has no application to the case on hand. Clause 14.2 is extracted below:- _“14.2. The amount mentioned should remain in the bank for a minimum period of three months from the date of application or the date of interview whichever is earlier”._ **W.P(C).No.3343 of 2010** -:10:- In the instant case the application dated 28.1.2008 was submitted on 30.1.2008. Even on 29.1.2008, before the application was submitted, the second respondent withdrew the entire amount deposited by him in the bank. Therefore, as on the date of the application, no amount was lying in deposit in his bank account, though in the application it was stated that the sum of Rs.4,90,000/- was lying in deposit. In W.P.(C)No.37706 of 2010, a learned single Judge of this Court considered a provision similar to clause 14.2 occurring in a notification issued by the Bharat Petroleum Corporation, inviting applications for appointment as LPG distributor at Palode in Trivandrum district. In that case the applicant did not maintain the amount that was deposited in the bank for a minimum period of three months. On the short ground that the petitioner did not maintain the amount deposited in the bank for a period of three months from the date of the application, the learned single Judge upheld the rejection of his application on the ground that he is disqualified for violating clause 14.2 of the application. The same question was considered by me in W.P.(C) No.27099 of 2009 wherein the applicant did not maintain the amount lying to his credit in the bank account for a minimum period of three months from the date of application. It was held ## **W.P(C).No.3343 of 2010** ## -:11:- that in view of the stipulation in clause 14.2 that the amount mentioned in the application should have remained in the bank for a minimum period of three months from the date of the application, or the date of interview, whichever is earlier, the disqualification of the applicant was in order. Recently, a learned single Judge of this Court considered a similar stipulation in _**Sahira Basheer v. Indian Oil Corporation Ltd**_ ., 2011 (4) KLT 169. In that case, the application was submitted on 22.1.2008 and on that date, more than Rs.19,00,000/- was available in three bank accounts maintained by the applicant. The applicant however, withdrew the sum of Rs.10,00,000/- from the bank account on 12.3.2008 and redeposited the said amount on 14.3.2008 and thereafter the amount deposited was available for more three months. The applicant was however, disqualified for the reason that she did not maintain the amount deposited in the bank account for a minimum period of three months. Interpreting the very same provision, the learned single Judge held that after subscribing to a declaration in the application form that if later it is found that the information given by the applicant is incorrect, his candidature will stand cancelled and he will be declared ineligible for distributorship and making the oil company believe that the ## **W.P(C).No.3343 of 2010** ## -:12:- applicant will maintain the amount deposited in the bank account for a minimum period of three months from the date of the application or till the date of interview, the applicant cannot withdraw any portion of the amount from the said account and that too without the consent or concurrence of the company. It was held that as the information given by the applicant was found to be incorrect, the applicant's candidature was rightly cancelled. 9. The contention raised in the instant case is that the stipulation in clause 14.2 does not convey any meaning. It is contended that the interview comes only after the application and therefore, the stipulation that the amount mentioned in the application should remain in the bank for a minimum period of three months from the date of the application or the date of interview, whichever is earlier, does not convey any meaning at all and is unworkable. The stand taken by the respondents in the additional counter affidavits is that the meaning of clause 14.2 is that the amount deposited by the applicants in the bank should remain in the bank for a minimum period of three months from the date of the application or till the date of the interview, whichever is earlier. It is stated that if the interview is held before the expiry of three months from the date of the application, the ## **W.P(C).No.3343 of 2010** -:13:- amount need be kept in deposit only till the date of the interview, after which it can be withdrawn and that this is the true meaning to be given to the stipulation in paragraph 14.2 and that the respondents have all along understood and applied clause 14.2 in that manner. It is not in dispute that in the instant case, the applicants were interviewed only long after the applications were submitted. In a given case the interview may take place within a period of three months from the date of the application and in another case, the interview may be held long thereafter. As noticed by the learned single Judge in _**Sahira Basheer v. Indian Oil Corporation Ltd**_ ., it is based on the information of the applicant as regards his or her financial capacity that marks are awarded under the heading “capability to arrange finance”. As held by me in W.P.(C)No.27099 of 2009 the stipulation in paragraph 14.2 that the amount mentioned in the application form should remain in the bank for a minimum period of three months from the date of application is one intended to ensure that the applicant does not make use of borrowed funds to prove his capability to arrange finance and that it is to prevent candidates, who do not have their own funds, availing loans from friends and relatives and depositing the borrowed funds in the bank ## **W.P(C).No.3343 of 2010** -:14:- immediately prior to the date of submission of the application to make it appear that they have their own funds at their disposal and thereafter repaying the loans after the submission of the application that in column 14.2 of the application, it is stipulated that the funds should remain in the bank for a minimum period of three months. In the instant case, the petitioners admittedly withdrew the amount even before the application was submitted. The interview in the instant case was held on 16.9.2009, nearly 20 months after the last date stipulated for submission of applications. Though, as on the date of interview, funds were available in another bank, the petitioners did not admittedly maintain the amount deposited in the bank on 28.1.2008 for a minimum period of three months from the date of the application. In the light of the stand taken by the respondents in their counter affidavits that the petitioners should have maintained the amount deposited in the bank for a minimum period of three months from the date of the application and could have withdrawn it only if the interview was not held within three months from the date of application, it cannot be said that the disqualification of the petitioners on the ground that they did not maintain the amount mentioned in the application in the bank account for a minimum ## **W.P(C).No.3343 of 2010** -:15:- period of three months from the date of application was not in order. In my opinion the proper interpretation to be placed on clause 14.2 of the application is the one given by the respondents in paragraph 3 of the additional counter affidavit dated 12.8.2011. If any other interpretation is placed on clause 14.2, it will only create confusion and would not serve the purpose for which such a stipulation is made in the application. I accordingly hold that the disqualification of the petitioners on the ground that they became ineligible for award of the LPG distributorship in view of non-adherence to clause 14.2 extracted above, cannot be said to be arbitrary or illegal. For the reasons stated above I hold that there is no merit in the challenge to the impugned letters. The writ petition fails and is accordingly dismissed. No costs. ## **P.N.RAVINDRAN, Judge.** ## **ahg.** **P.N.RAVINDRAN, J. --------------------------W.P(C).No.3343 of 2010 ----------------------------** ## **JUDGMENT** **21[st] May, 2012**