Gujarat High Court Case Information System
Print
LPA/1099/2010 11/ 11 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS
PATENT APPEAL No. 1099 of 2010
In
SPECIAL
CIVIL APPLICATION No. 3537 of 2010
For
Approval and Signature:
HONOURABLE
THE CHIEF JUSTICE MR. S.J. MUKHOPADHAYA
HONOURABLE
MR.JUSTICE ANANT S. DAVE
=================================================
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, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=================================================
DEEPA
GANPATBHAI PARMAR - Appellant(s)
Versus
INDIAN
OIL CORPORATION LTD & 2 - Respondent(s)
=================================================
Appearance :
MR
BB NAIK Senior Advocate with MR PARTHIV A BHATT for Appellant(s) :
1,
MR MANISH R BHATT with MRS MAUNA M BHATT for Respondent(s) : 1
- 2.
MR MAKBUL I MANSURI for Respondent(s) :
3,
=================================================
CORAM
:
HONOURABLE
THE CHIEF JUSTICE MR. S.J. MUKHOPADHAYA
and
HONOURABLE
MR.JUSTICE ANANT S. DAVE
Date
: 10/05/2011
CAV
JUDGMENT
(Per
: HONOURABLE MR.JUSTICE ANANT S. DAVE)
This
appeal under clause 15 of the Letters Patent arises out of oral
judgment dated 21.04.2010 delivered by the learned Single Judge in
Special Civil Application No.3537 of 2010 by which prayer for
issuance of direction to respondent – Indian Oil Corporation to
issue a letter of intent for grant of retail outlet dealership [for
short, “the outlet”] of the respondent Corporation at
Palanpur in the State of Gujarat to the petitioner, who was placed at
Sr. No.1 in the list of successful selectees prepared by the
Selection Committee of the respondent corporation, pursuant to the
public advertisement issued by the Corporation in daily newspapers,
as per guidelines issued by the respondent – Corporation, is
refused.
2. For
the sake of convenience, brief facts, as admitted by the respondent –
IOC in its affidavit reply, are reproduced herein below:
[1] An advertisement was
released in Times of India, Ahmedabad, dated 31.07.2009, and Divya
Bhaskar, Ahmedabad, dated 09.08.2009 for selection of dealers under
SC/ST categories for Gujarat State.
[2] No amendment /
corrigendum was released after the advertisement.
[3] The last date for
receipt of application was 07.09.2009.
[4] Palanpur, District
Banaskantha, Gujarat, is one of the locations in the said
advertisement under “SC” category.
[5] Applications received by
due date were scrutinized and eligible and ineligible applications
were segregated as per procedure.
[6] Selection process by way
of nomination of Level-I / Level-II committees are governed by Policy
Circular No.90-10/2005(RO/6002) dated 10.01.2005.
[7] Level-I committee awards
marks to eligible applicants based on documents submitted along with
the applications. There is no involvement / presence of applicants
during in Level-I.
[8] Level-II Committee
personally interviews the candidates and declares the merit panel
based on marks awarded by Level-I committee and marks secured during
interview. Merit panel and marks secured by each candidate under
various parameters are displayed at the venue of the interview on the
same day of conclusion of personal interviews.
[9] Out of the total
eligible marks of 40 for SC/ST category dealer selection, 31 marks
are for Level-I committee and balance 9 marks are for level-II
committee. The minimum marks required for selection is 50% of total
eligible marks.
[10] Out of the total six
locations advertised under ADO, after completion of Level-I markings,
interviews were held for 5 locations during the period from 14 to
19.12.2009 at Ahmedabad Divisional Office.
[11] For all the five
locations, the Level-I committee was the same. Similarly, the
nominated Level-II committee conducted interviews for all the five
locations and declared the merit panel along with marks.
[12] For the location
Palanpur, the personal interviews were held on 16 & 17-12.2009
and the merit panel and marks were declared on 17.12.2009. The merit
panel for the location is under:-
[i] No.1 – Smt.
Geetaben Ganpatbhai Parmar
[ii] No.2 – Shri
Kalpeshkumar Hiralal Vania
[iii] No.3 – Shri
Jignesh Khemchandbhai Patel
[13] As per procedure, with
the approval of competent authority, FIR for the No.1 candidate in
the merit panel was carried out. In the meantime, the respondent
received complaint / representation from the No.2 candidate in the
merit panel, Shri Kalpeshkumar Hiralal Vania, dated 24.12.2009 and
04.01.2010. As per procedure, complaints / representation was
investigated by a senior officer nominated by competent authority.
[14] The nominated officer
investigated the complaints / representation after considering the
same, vide approval Ref.G S O/RO/SC dated 22.01.2010, Executive
Director – Gujarat State Office approved cancellation of the
entire selection process and merit panel for the location Palanpur
and to conduct re-interview for the location.
3. Learned
Single Judge has extensively dealt with the contentions raised by the
learned counsel for the parties, grounds of challenge and defense
raised therein. The following main contentions were raised by learned
counsel for the petitioner:-
[a] That once a selection
process was completed, as per the guidelines issued by the respondent
Corporation and a candidate is selected and placed at Sr. No.1 at
merit panel, cancellation of whole selection without affording
opportunity of hearing to the selected candidate viz. the petitioner
was contrary to principles of natural justice and an opportunity of
hearing ought to have been given to the petitioner before taking such
a decision.
[b] No in-depth
investigation was carried out by respondent Corporation and no
statement of the petitioner was recorded. The above investigation
was nothing but a camouflage to deny the petitioner grant of
dealership for retail outlet.
[c] There was uniformity by
the Selection Committee for all 15 retail outlets for which
dealership was awarded and only with a view to favour the candidate
at Sr. No.2, so-called investigation was carried out.
[d] That as per the terms
and conditions of the brochure guidelines, clause 10(e) provided
that, originals of the Affidavits and self attested copies of the
other supporting documents should be submitted along with the
completed application form duly signed. Further, policy circular
No.90-10/2005 issued by the Corporation provided evaluation for
dealership selection procedure. Clause 5 of the said policy
circular also mandated submission of attested copies of documents
along with application and if any document submitted by the applicant
without signing or attesting the same, such document was not to be
considered by the Selection Committee Level-I and only zero marks was
to be awarded in such a case.
[e] Since there was
deviation by respondent Corporation with regard to uniform
applicability of the policy in the case of petitioner, such decision
was arbitrary, unreasonable, discriminatory and violative of Articles
14 and 19 of the Constitution of India and required to be quashed and
set aside.
Per contra, learned counsel
for the Corporation defended such action on the part of the
respondent – Corporation. Learned counsel placed heavy reliance on
the advertisement for inviting applications and submitted that
cancellation of entire selection process, preparation of merit panel
and to conduct re-interview of the location had no consequence and to
bring more transparency all eligible candidates were invited for
interview. It was further contended that selectee had no right for
awarding of dealership and discretion did vest with the respondent –
Corporation. It was contended that as per the clause 10(1) of
advertisement, it was only an application and not an offer of
dealership and further when a complaint was received in time from an
aggrieved person, Corporation was duty bound to investigate it and
the report was sent to Executive Director of Gujarat State, who
formed an opinion that awarding of zero marks was prejudicial to all
the candidates on the ground that it was not signed or attested and,
therefore, decision of the Corporation was taken in overall interest
of the candidates as well as the Corporation. Learned counsel also
emphasized that power of judicial review will not be permitted to be
invoked to protect private interest at the cost of public interest or
to decide contractual disputes and the tenderor or contractor with a
grievance can always seek damages in civil court in judicial review.
In contractual matters, a writ court can only interfere only when
process adopted or decision made by the authority is malafide or
intended to favour someone or whether the decision making process is
irrational, arbitrary or the authority had no power to take such a
decision or larger public interest is affected.
4. Learned
Single Judge noticed the moot question before the court was to decide
as to whether awarding of zero marks for the project report, when it
was not signed by the candidate, was justified or not and on
complaint being made by the aggrieved party, to cancel the select
list is in violation of the policy framed by the IOC. The learned
Single Judge also referred to Circular No.90-10/2005 dated 10.10.2005
and ultimately found that various clauses of the policy circular give
separate identification to the project report and it is different
from the documents, which are referred to clause 5 and this would
lead to believe that when the project report is submitted as it is,
it may not be required to be signed and if such a project report is
not signed same shall not be considered as furnishing of an unsigned
document. The reasonable belief of the candidate when he has
submitted an unsigned project report that this being not a document
meaning thereby not a copy of the original document, it is not
required to be signed and when the Investigating Officer took the
view that it is not justified to ignore such project report, which is
not signed, the court should not interfere in such decision and with
regard to cancellation of select list and discretion on the part of
the Corporation that in case of awarding zero marks with regard to
selection procedure adopted for outlets other than Palanpur there is
nothing wrong if such selection lists were not cancelled by the
respondent – Corporation. Learned Single Judge also considered
that clauses of the circular had two parts, some of the clauses were
substantive while others were procedural and even if a procedural
aberration, which may not amount to error in re-assessment on
investigation by the Investigating Officer or it may cause some
prejudice to the petitioner there was no basis for accepting the
allegation that the exercise was undertaken only with a view to
favour the candidate at Sr. No.2. The learned Single Judge after
considering overall aspects of the matter and judgments of the Apex
Court, dismissed the petition.
5. Learned
counsel for the appellant re-agitated grounds of challenge to the
decision of IOC raised before the learned Single Judge and further
vehemently submitted that the learned Judge erred in interpreting
clause 10(e) of the selection Policy as mentioned in the brochure,
which mandated about attestation of the documents and the policy
circular No.90-10/2005 dated 10.10.2005 with regard to selection of
petrol / diesel retail outlets, which was applied uniformly not only
in the State of Gujarat but all over the country. It is further
submitted that since one of the candidates, who was assigned zero
marks, has not submitted attested project report, interpretation of
policy to favour such candidate is contrary to the law. Besides, the
report was not sent to the Head Office and if such an interpretation
is to be advanced and to be believed for one outlet, it was incumbent
upon the respondent to cancel the interview of all 15 locations /
outlets and to re-interview all the candidates after assigning marks
on the basis of the document though not attested by the candidates.
Therefore, it is submitted that the order impugned deserves to be
quashed and set aside and consequential order of the learned Single
Judge also deserves to be dismissed.
6. Mr.
Bhatt, learned advocate for the respondent – Corporation,
reiterated submissions made before the learned Single Judge and also
drawn attention of this Court to the public advertisement issued in
newspapers, detailed procedure followed by the Corporation, role of
the Selection Committee at Levels I & II and further affidavits
filed in this appeal and submitted that no error much less error of
law appears in the oral judgment delivered by the learned Single
Judge, which calls for any interference by Appellate Bench and
accordingly the appeal deserves to be rejected. Learned counsel for
the respondent extensively referred to the findings of learned Single
Judge from para 21 onwards of the impugned judgment and submitted
that rejection of the writ petition is based on correct
interpretation of clauses of circular and policies of the respondent
– Corporation and by applying the law declared by the Apex
Court in various decisions referred to in the impugned judgment,
appeal be rejected. Learned advocate for the respondent No.3
accepted and adopted the submissions made by Mr. Bhatt, learned
Senior Advocate for the respondent No.2 – Corporation.
7. Having
heard learned counsel for the parties and on perusal of the record,
we are of the view that learned Single Judge has committed an error
while interpreting clause 5 of the Circular No.90-10/2005 and clause
10(e) of brochure / guidelines for selection of petrol / diesel
outlets, which mandated that self-attested copies of all other
supporting documents should be submitted along with completed
application form duly signed and also originals of the affidavits.
For necessary reference, clause 5 of Circular dated 10.10.2005 and
clause 10(e) of brochure / guidelines for selection of petrol/diesel
outlets, are reproduced herein below:
“5. The above marks
will have to be awarded on the basis of attested copies of the
documents submitted along with the application as original documents
are to be brought by the candidates at the time of interview. All the
documents enclosed with the application will be serially numbered and
signed by each Level-I committee member”
“10(e) Originals
of the Affidavits and self attested copies of the other supporting
documents should be submitted along with the completed application
form duly signed”
8. Thus,
the application to be submitted by the candidate is not only to be
signed but copies of the documents submitted along with application
are required to be attested. The word document is not to be
interpreted in a narrow sense as it is understood ordinarily but it
has wider connotation and any supporting material in the form of
document along with originals of the affidavits were to be attested
by a candidate. In the facts of this case, admittedly, private
respondent No.3 has not attested its project report and awarding zero
marks by the Selection Committee at Level-I could not have been
interpreted as incorrect procedure adopted by the Committee inasmuch
as the Committee had strictly adhered to plain, simple and natural
interpretation of clause 5 of circular dated 10.10.2005 and clause
10(e) of the brochure / guidelines of the selection of petrol /
diesel outlet. It is further evident that cancellation of selection
is qua only Palanpur outlet, though similar procedure was followed by
the IOC for other all 15 outlets, where zero marks was awarded in
absence of attestation of documents, including project report, such a
treatment of IOC in case of Palanpur outlet only would amount to
clear cut discrimination with regard to application of the policy
uniformly and will be hit by Article 14 of the Constitution of India
and being discriminatory deserves to be quashed and set aside.
9. By
various orders, we have directed the respondent Corporation to
produce on record application of 3rd respondent along with
project report, but in spite of several opportunities given to
respondent – Corporation, no such report was produced. Though
we may not draw any adverse interference, but at the same time,
respondent – IOC has failed to justify as to why discriminatory
treatment was given to the appellant – petitioner, who was
selected and placed at Sr. No.1 in the merit list when nothing
adverse was found against him. Therefore, we are of the opinion that
the appellant was treated unfairly and unreasonably by the
respondent, more particularly, by one of the Executive Director at
Zonal level and the said action needs to be set right. The decisions
of the Apex Court relied on by the learned Single Judge with regard
to power of judicial review in a contractual matter and law laid down
therein by Their Lordships of the Apex Court, we are in respectful
agreement, but in view of the facts stated and discussed by us in
preceding paragraphs, those decisions may not be applicable to the
facts of the present case.
In
view of the above, order dated 21.04.2010 passed by the learned
Single Judge in Special Civil Application No.3537 of 2010 is hereby
quashed and set aside and the respondent – Corporation is
directed to issue a letter of intent for grant of retail outlet
dealership of the respondent-Corporation at Palanpur within a period
of two weeks from the date of the receipt of the writ of this order.
With
the aforesaid, this appeal is allowed.
[S.J.Mukhopadhaya,
C.J.]
[Anant S. Dave, J.]
*pvv
Top