Abhishek Kumar Vs HPCL & Ors.

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IONLINEf SCC Online Web Edition: http:/lwww.scconline.com
TruePrint"" source Supreme Court Cases,© 2024 Eastern Book Company. The text of this version of
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Modak, (2008) 1 SCC 1 paras 61,62 & 63.
308 SUPREME COURT CASES (2016)12 sec

(2016) 12 Supreme Court Cases 308
(BEFORE V. GOPALA GOWDA AND ARUN MISHRA, JJ .)
a
ABHISHEK KUMAR Appellant;
Versus
HINDUSTAN PETROLEUM CORPORATION LIMITED
AND OTHERS Respondents.
Civil Appeals Nos. 3230-31 of 2016t with
Nos. 3234-35 of 2016:t, decided on March 29,2016 b
A. Government Grants, Largesse, Public Property and Premises -
Dealership - LPG distributorship - Selection process - Removal of
candidate's (appeUant's) name from merit list - Vague and non-specific
order of removal and subsequent substantiation and supplementation that too
by taking a new plea during pendency of writ appeal - Impermissibility and
unsustainability c
- Though appellant's name figured in merit list at Sl. No. 1, letter
of intent not issued to appellant - During pendency of writ petition of
appellant before Single Judge, letter of intent issued to another candidate
(Respondent 7) - Thereafter appellant's application rejected on vague and
non-specific grounds - And subsequently during writ appeal, new ground
d
relating to false declaration by appellant regarding requirement/condition of
fixed deposits, held, impermissible- Impugned order of Division Bench of
High Court set aside - Order of Single Judge of High Court holding that the
order of HPCL against the appellant in ousting him and denying the benefit of
appointment and selection as LPG dealership is bad in law, restored - Single
Judge further has rightly noticed that hardly an explanation coming from HPCL
for disqualification of the appellant i.e. contained in Annexure 5 to the writ e
petitioners and did not say the ground as to how the appointment of the seventh
respondent came to be made earlier and disqualification and removal of the
name of the appellant from the merit panel at a subsequent stage - Therefore,
Single Judge has rightly made observation that the said aspect required to be
investigated by the Chairman of HPCL and make an enquiry by its Vigilance
Department - HPCL directed to issue letter of intent to appellant within six f
weeks (Paras 6 and 12 to 19)
Commr. of Police v. Gordhan.das Bhanji, AIR 1952 SC 16, relied on
Rameshwar Prasad Chaudhary v. Hindustan Petroleum Corpn Ltd., CWJC No. 11413 of
2009, order dated 25-2-2010 (Pat), affirmed
Hindustan Petroleum Corpn. Ltd. v. Abhishek Kumar, 2011 SCC OnLine Pat 646, reversed
B. Government Grants, Largesse, Public Property and Premises - g
Dealership - LPG distributorship - Eligibility condition - Scope of
relaxation or strict compliance - Reiterated, if there is an essential condition
for which there is no general relaxation, it should be strictly complied with -
[But issue of false declaration by appeUant regarding requirement/condition
t Arising out of SLPs (C) Nos. 27522-23 of 2011. Arising out of impugned Final Judgment and h
Order dated 6-4-2011 in LPAs Nos. 634 and 672 of2010 passed by the High Court ofPatna
:j: Arising out ofSLPs (C) Nos. 19648-49 of2012
IONL IN E f SCC Online Web Edition: http:/lwww.scconline.com
Modak, (2008) 1 SCC 1 paras 61,62 & 63.
ABHISHEK KUMAR v. HINDUSTAN PETROLEUM CORPN. LTD. 309

was a new plea (improvisation) during writ appeal, thus not maintainable -
see Shortnote A.] (Paras 10 and 11)
a A.P. Public Service Commission v. Koneti Venkateswarulu, (2005) 7 SCC 177 : 2005 SCC
(L&S) 924; B.S.N. Joshi & Sons Ltd. v. Nair Coal Services Ltd., (2006) 11 SCC 548,
referred to
SS-D/57058/S
Advocates who appeared in this case :
R.P. Bhatt, Senior Advocate (Mobit Kr. Shah, Advocate) for the Appellant (in CAs
b Nos. 3230-31 of2016);
Sunil Kumar, Senior Advocate (Narendra Kumar, Vinod Mehta, C. Kannan and H.K.
Naik, Advocates) for the Appellant (in CAs Nos. 3234-35 of2016);
A. Sharan, Senior Advocate (Irshad Ahmad, Anurag Rawat, Sudhir Kumar, Sanjay
Kapur, Anmol Chandan, Ms Priyank.a Das and Sameer Rohatgi, Advocates) for the
Respondents.
Chronological list ofcases cited onpage(s)
c 1. 2011 SCC OnLine Pat 646, Hiru:Justan Petroleum Corpn Ltd. v.
Abhishek Kumar (reversed) 309e, 31Id-e, 314/
2. CWJC No. 11413 of 2009, order dated 25-2-2010 (Pat), Rameshwar
Prasad Chaudhary v. Hindustan Petroleum Corpn.
Ltd. 309/, 310e, 314f
3. (2006) 11 SCC 548, B.S.N. Joshi & Sons Ltd. v. Nair Coal Services Ltd. 3 12c
4. (2005) 7 SCC 177: 2005 SCC (L&S) 924, A.P. Public Service
d Commission v. Koneti Venkateswarulu 312b
5. AIR 1952 SC 16, Commr. of Police v. Gordharu:Jas Bhanji 312f-g, 314c-d
ORDER
1. Heard the learned Senior Counsel for the parties. Leave granted.
2. The correctness of the common judgment and order dated 6-4-2011
e passed in Hindus tan Petroleum Corpn. Ltd. v. Abhishek Kumarl by the Division
Bench of the High Court of Judicature at Patna is under challenge in these civil
appeals by the appellant. Questioning the correctness and legality of the said
common judgment, it is prayed to set aside the same by allowing the appeals
and restore the judgment and order passed in Rameshwar Prasad Chaudhary
v. Hindustan Petroleum Corpn. Ltd.2
t 3. The relevant brief facts are as under: the appellant pursuant to the
advertisement made by Hindustan Petroleum Corpn. Ltd. (in short "HPCL")
invited applications for awarding LPG distributorship of 13 locations including
one, namely, Hajipur. The appellant herein submitted the application along with
other applicants including Respondent 7 and the appellant Rarneshwar Prasad
Choudhary in the connected civil appeals arising out of Special Leave Petitions
g Nos. 19648-49 of 2012. Interviews were held on 28-3-2008 and results were
declared on 29-3-2008 and the appellant has been empanelled at Sl. No. 1 in
the merit panel on the basis of evaluation of all aspects which were required
to be considered and the appellant was selected as a successful candidate for
awarding LPG distributorship by HPCL.
h
1 2011 SCC OnLine Pat 646
2 CWJC No. 11413 of2009, order dated 25-2-2010 (Pat)
Modak, (2008) 1 SCC 1 paras 61,62 & 63.

4. After the main panel list was published, field verification was made
by the HPCL officers on 27-1-2009. Though the appellant's name was found
placed at Serial No. 1 in the merit list, the letter of intent was not issued. a
Hence, the appellant filed a writ petition bearing CWJC No. 12405 of 2009
seeking for issuance of a writ of mandamus to HPCL. During the pendency
of the said writ petition, letter of intent was issued to Respondent 7 that
was followed by another order dated 3-9-2009 issued to the appellant herein
intimating him pursuant to the application in response to HPCL' s advertisement
(referred supra) for awarding new LPG distributorship at Hajipur District of b
Vaishali that while the HPCL's officers were proceeding further for selection
for LPG distributorship, they observed some major discrepancies during the
field verification with regard to the information provided by him vis-a-vis
application for the distributorship which is in gross violation of terms and
conditions of the selection undertaking given by him in his application form.
5. As a result, the appellant was informed that he had lost the merit position c
in the merit panel which was feasible subsequent to the interview and they
expressed their inability to proceed further. Therefore, he was informed that
his application is rejected as statement made in his application and documents
enclosed therewith are subject to verification of the information provided by
him are held to be incorrect or false. By saying so it has not been specifically
spelt out what are the major discrepancies and what is the incorrect information d
furnished by the appellant in his application. The correctness of the same was
questioned by filing another writ petition before the High Court of Judicature
at Patna urging various legal contentions contending that the said order is not
legal and valid and the same has been passed without any basis and requested
for quashing the same.
6. The learned Single Judge vide his judgment and order dated 25-2-2010 e
passed in Rameshwar Prasad Chaudhary v. Hindustan Petroleum Corpn. Ltd. 2
allowed the writ petition. The learned Single Judge of the High Court after
examining the rival legal contentions examined the correctness of the removal
of the appellant's name from the merit list along with claim made by the
appellant in the connected appeals. The learned Single Judge has held that the
claim of the appellant has been defeated on a hypertechnical ground which f
would not be found to be sustainable by this Court, then the learned Single
Judge has observed that he failed to understand as to how the officials of
HPCL could be so large-hearted and blind to some other statements and facts
when it came down to declarations and documentation made by the seventh
respondent and further rightly made observation that obviously HPCL was
either under pressure or obligation to accommodate Respondent 7, therefore, g
it has been held that the order of HPCL against the appellant in ousting him
and denying the benefit of appointment and selection as LPG dealership is
bad in law. The learned Single Judge further has rightly noticed that hardly
an explanation coming from HPCL for disqualification of the appellant i.e.
contained in Annexure 5 to the writ petitioners and did not say the ground as
h
2 CWJC No. 11413 of 2009, order dated 25-2-2010 (Pat)
Modak, (2008) 1 SCC 1 paras 61,62 & 63.

to how the appointment of the seventh respondent came to be made earlier and
disqualification and removal of the name of the appellant from the merit panel
a at a subsequent stage. Therefore, the learned Single Judge has rightly made
observation that the said aspect required to be investigated by the Chairman of
HPCL and make an enquiry by its Vigilance Department.
7. Having ordered so, the writ petition filed by the appellant was allowed
and the writ petition filed by Rameshwar Prasad Choudhary, the appellant in the
connected civil appeals, was dismissed for the reasons recorded in the aforesaid
b impugned common judgment.
8. The correctness of the same was questioned by Respondent 7 by urging
various legal contentions. The High Court after examining the correctness of
the findings and the legality of the cancellation order dated 3-9-2009, granted
the relief as prayed for in the writ petition filed by the appellant herein i.e. LPA
No. 672 of2010 arising out ofCWJC No. 15113 of2009 and dismissed LPA
c No. 634of2010 arising out ofCWJC No. 11413 of2009. After hearing the rival
legal contentions urged by the parties, at para 3 the Division Bench of the High
Court, after adverting to the relevant factual aspects under the order impugned
communication issued to the appellant herein by the respondent HPCL stating
that in view of the re-evaluation he had lost his position in the merit list and the
same is awarded in favour of the seventh respondent herein.
d 9. The Division Bench of the High Court after examining the definition
of the "family unit", incorporated in the advertisement after extracting the
"family unit" from the advertisement which is in English version is reproduced
hereinbelow: (Hindustan Petroleum easel, SCC OnLine Pat para 5)
"5. . . . 'Family unit in case of married person/applicant shall consist
e of individual concerned, his/her spouse and their unmarried son(s)/
daughter(s). In case of unmarried person/applicant, "family unit" shall
consist of individual concerned, his/her parents and his/her unmarried
brother(s) and unmarried sister(s).' "
10. It was held that in view of the condition incorporated in the
advertisement, the said condition in the advertisement was to the knowledge
t of all concerned and required strict compliance. It was not confined to
the guidelines of the brochure and the applicant was even not aware of
it. Thereafter, examining the five fixed deposit receipts with regard to the
impugned judgment found that the two FDRs of Sahara furnished by the
appellant herein were in the name of mother (Meena Gupta). The learned
counsel for the respondent has not placed any emphasis and further it is
g highlighted that out of 10 FDRs furnished by the appellant, six were in the joint
name of mother and the unmarried sister. Therefore, the same was examined
by the Division Bench with reference to the advertisement published on
17-10-2007, and 14-11-2007 was the last date for submission of the application.
Further, it was noticed that the sister got married on 30-7-2005. Photocopies
of the fixed deposit receipts are on record, and the name of Neetu Kumari was
h
1 Hindustan Petroleum Corpn. Ltd. v. Abhishek Kumar, 2011 SCC OnLine Pat 646
Modak, (2008) 1 SCC 1 paras 61,62 & 63.

expunged from the fixed deposit receipts after the last date for submission of
the application and the declaration made by Respondent 1 in his application,
a photocopy of which is on record, that the aforesaid fixed deposit receipts a
which were really in the joint names of the mother and the unmarried sister,
have been declared to be in the exclusive name of the mother of the appellant
erroneously. The declaration given by the appellant to the fact is incorrect
and false infom1ation and misrepresentation shall incur disqualification from
consideration and placed reliance upon the judgment of this Court in A.P. Public
Service Commission v. Koneti Venkateswarulu 3 in support of the contention b
that the furnished information in the application is bona fide mistake or in
support of the contention that there has been suppression of material fact is
incontrovertible. The explanation that it was irrelevant and inadvertent, he
further placed reliance upon the judgment of this Court in B.S.N. Joshi & Sons
Ltd. v. Nair Coal Services Ltd. 4 at para 66 in support of the proposition of law
that the Court could not shut the eyes, the Division Bench also observed that c
we are also not shutting our eyes towards the new principles of judicial review
which are being developed, but the law as it stands now having regard to the
principles laid down in the aforementioned decisions may be summarised as
under: (SCC p. 571)
"(i) if there are essential conditions, the same must be adhered to;
d
(ii) if there is no power of general relaxation, ordinary the same shall
not be exercised and the principle of strict compliance would be applied
where it is possible for all the parties to comply with all such conditions
fully."
11. The aforesaid judgment has been rightly applied to the fact situation
and set aside the impugned common judgment and order in allowing the writ e
petition of the appellant in LPA No. 672 of 2010 which arises out of CWJC
No. 15113 of 2009 and LPA No. 634 of 2010 arising out of CWJC No. 11413
of2009 was dismissed and upheld the impugned judgment dated 3-9-2009.
12. The correctness of the same is questioned in these appeals contending
that the order of cancelling the distributorship of the appellant is on vague
ground. The same cannot be subsequently substantiated by supplementing the f
reasons in the counterstatement that is filed by HPCL in the writ petition
proceedings and the same is totally impermissible in law and placed reliance
upon the judgment of this Court in Gordhandas Bhanji case 5, in paras 8 and 9
which are extracted below: (AIR p. 18)
"8. It will be necessary at this stage to determine whether this was g
a cancellation by the Commissioner on his own authority acting in the
exercise of some power which was either vested in him or of which he bona
fide believed himself to be possessed, or whether he merely acted as a post
office in forwarding orders issued by some other authority. We have no
3 (2005) 1 sec 111 : 2005 sec (L&S) 924 h

4 (2006) 11 sec 548
5 Commr. of Police v. Gordhandas Bhanji, AIR 1952 SC 16
Modak, (2008) 1 SCC 1 paras 61,62 & 63.

hesitation in reaching the conclusion that this is not an order of cancellation
by the Commissioner but merely intimation by him of an order passed and
a made by another authority, namely, the Government of Bombay.
9. An attempt was made by referring to the Commissioner's affidavit
to show that this was really an order of cancellation made by him and that
the order was his order and not that of the Government. We are clear that
public orders, publicly made, in exercise of a statutory authority cannot
be construed in the light of explanations subsequently given by the officer
b making the order of what he meant, or of what was in his mind ; or what he
intended to do. Public orders made by public authorities are meant to have
public effect and are intended to affect the actings and conduct of those to
whom they are addressed and must be construed objectively with reference
to the language used in the order itself."
13. This Court has fairly laid down the principle that the order which is
c based must sustain or justified on the ground on which it is passed subsequently
it does not open by HPCL to substantiate the same by supplementing its reasons
with regard to sustaining the incorrect information regarding fixed deposit
amount as required as per the guideline the particular which is furnished in
the name of the appellant and the mother originally as on the date of filing
application. It was in the name of the appellant and the mother and sister who
d was married by that time. Some of the FDRs were in the name of mother and
the married daughter. Therefore, married daughter is not a family member,
and subsequently rectification in the FDRs, in the name of mother, is totally
impermissible in law. The infom1ation furnished in the application form is
incorrect information and false declaration, therefore, rejection of the name of
the appellant from the merit list dated 3-9-2009 is not correct.
e
14. We have considered the counterstatement filed between the proceedings
before the High Court and also before this Court. It has sought to justify the
reasons and grounds on which the appellant's name was cancelled from the
merit list on evaluation.
15. The learned Single Judge has rightly referred to the grounds on which
t they sought to justify the cancellation order and it is held that is totally not
traceable in the order. Therefore, the learned Single Judge rightly rejected the
said contention by recording the reasons and found fault with the action of the
fourth respondent in cancelling the name of the appellant from the merit list and
selecting the seventh respondent without examining the merits and demerits
of his candidature though his name was found at Serial No. 2. The learned
g Single Judge had rightly made certain observations and directed the Chairman
to investigate into the matter.
16. We have carefully examined the reasoning of the Division Bench
in the impugned judgment. Having regard to the reasons mentioned in the
cancellation order dated 3-9-2009, it is very clear that there is no specific
ground urged for cancellation of the candidature of the appellant from the merit
h list after issuing the letter of intent in favour of the seventh respondent on
30-7-2009 when the appellant had earlier filed writ petition seeking writ of
Modak, (2008) 1 SCC 1 paras 61,62 & 63.

mandamus for issuing the letter of intent in favour of the appellant whose name
was found placed in the merit list at Serial No. 1, after scrutiny and evaluation
of all aspects required to be considered for awarding LPG distributorship, in the a
absence of specific grounds to be mentioned for the cancellation of the name
of the appellant from the merit list on the vague allegation that the statement
made in the application and documents enclosed therewith, and on subsequent
field verification and infom1ation provided by the appellant, are found to be
incorrect or false.
17. The Division Bench on the basis of the submission made by the b
respondent HPCL found that the reasons subsequently invented regarding
the FDR in the name of mother and the sister who is married on the date
of submission of the application is not correct information and with regard
to the FDR amount required to be processed by the appellant on the date
of application. The said reason is a new ground which is invented for the
purpose of justifying the cancellation order intimating the cancellation of the c
candidature of the appellant from the merit list is totally impermissible in law.
This statement of law is found by this Court in Gordhandas Bhanji5. The
principle has been reiterated in a catena of cases by this Court. On this ground
alone the appeal of the appellant must be allowed and we order accordingly
and set aside the impugned judgment and order by allowing LPA No. 672
of 2010 and affirming the impugned order dated 3-9-2009 for cancellation of d
candidature of the appellant is not legally correct. We restore the order of the
learned Single Judge dated 25-2-2010 and further issue a writ of mandamus
to HPCL and its office directing the respondent to issue a letter of intent in
favour of the appellant by awarding the LPG distributorship to him within the
reasonable time of six weeks from the date of receipt of this order.
18. Since we have allowed the civil appeals filed by the appellant connected e
civil appeals filed by the another appellant Rameshwar Prasad Chaudhary,
whose name was found in the merit list at Serial No. 3, for the same reasons,
his appeals are liable to be dismissed accordingly.
19. In the result, we have set aside the judgment and order of the Division
Bench in Hindustan Petroleum Corpn. Ltd. v. Abhishek Kumar 1 and restore
f
the judgment and order passed in Rameshwar Prasad Chaudhary v. Hindustan
Petroleum Corpn. Ltd. 2 by the learned Single Judge, implement the same within
six weeks from the receipt of the copy of this judgment and order.
5 Commr. of Police v. Gordhan.das Bhanji, AIR 1952 SC 16 h

1 2011 SCC Online Pat 646
2 CWJC No. 11413 of 2009, order dated 25-2-2010 (Pat)

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SCC Online Web Edition, © 2024 EBC Publishing Pvt. Ltd.

~(C(D® Page 1 Friday, February 16, 2024

308 SUPREME COURT CASES (2016)12 sec

ABHISHEK KUMAR v. HINDUSTAN PETROLEUM CORPN. LTD. 309

310 SUPREME COURT CASES (2016)12 sec

ABHISHEK KUMAR v. HINDUSTAN PETROLEUM CORPN. LTD. 311

312 SUPREME COURT CASES (2016)12 sec

3 (2005) 1 sec 111 : 2005 sec (L&S) 924 h

ABHISHEK KUMAR v. HINDUSTAN PETROLEUM CORPN. LTD. 313

314 SUPREME COURT CASES (2016)12 sec

5 Commr. of Police v. Gordhan.das Bhanji, AIR 1952 SC 16 h

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