IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C) No. 30960 of 2006(I)
1. T.PRASANNAKUMAR,
... Petitioner
Vs
1. STATE OF KERALA,
... Respondent
2. THE DISTRICT COLLECTOR,
3. THE DISTRICT SUPPLY OFFICER,
4. H.GEETHA,
For Petitioner :SRI.GEORGE POONTHOTTAM
For Respondent :SRI.N.NANDAKUMARA MENON
The Hon'ble MR. Justice ANTONY DOMINIC
Dated :24/09/2007
O R D E R
ANTONY DOMINIC,J
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W.P.(C)No.30960 of 2006
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Dated this the 24th day of September 2007
JUDGMENT
This writ petition is filed praying for quashing Ext.P7 and
for a declaration that the first respondent ought not have
entertained the application of the 4th respondent. Petitioner is
also seeking consequential reliefs.
2. The controversy in this writ petition is in relation to
the appointment of an authorised whole sale distributor(AWD) in
Thiruvananthapuram Taluk. Ext.P8 is an advertisement issued
by the second respondent inviting application for the
appointment of an AWD. One of the requirements was that
solvency certificate in original should be produced along with
application. It was also specified that the applications which
were not accompanied with the prescribed documents will not
be considered.
3. In response to Ext.P8, applications were received
before 25.6.2003, the last date fixed in the advertisement.
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Exts.P9 and P11 are the applications submitted by the petitioner
and the 4th respondent. From Ext.P10 -Mahazar prepared at the
time when the applications were opened in the presence of the
applicants, it is revealed that the 4th respondent had produced
only a stamped application and none of the documents
prescribed in the advertisement were produced.
4. The applicants were called for an interview on
16.6.2004 by the second respondent where seven of them
appeared. It is submitted that the 4th respondent produced a
solvency certificate on 16.6.2004. On conclusion process of
selection, Ext.P1 order was issued by the second respondent
granting licence to the petitioner as AWD. Aggrieved by the
appointment of the petitioner, the 4th respondent filed Ext.P2
appeal before the Commissioner of Civil Supplies and the
Appellate Authority rejected the appeal by Ext.P4. Later the 4th
respondent filed Ext.P5 revision before the first respondent and
by Ext.P7, the revision was allowed holding that the 4th
respondent was the most eligible candidate since the solvency
certificate offered by her for Rs.12,81,375 was the maximum. It
is challenging Ext.P7 and for other reliefs that this writ petition
is filed.
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5. The 4th respondent would submit that in response to
Ext.P8 advertisement, she had submitted an application. It is
stated that although she had applied for a solvency certificate
there was some delay and hence the solvency certificate could
not be submitted along with the application and that all
documents except the solvency certificate were produced by her
on 4.3.2004 and on obtaining the solvency certificate the same
was produced on 16.6.2004. She would also contend that when
she tendered solvency certificate before the District Collector on
16.6.2004 that was refused to be accepted and therefore she had
to fax the document to his address. It is further contended that
requirement of solvency certificate is not a part of the rules and
therefore even if solvency certificate was not produced that
could not have resulted in the rejection of her application. In
this connection, the counsel made a reference to the judgment
of a Division Bench of this Court in Varkey v. State of Kerala
(1984 KLT 567).
6. The learned Government Pleader on the other hand
would submit although production of solvency certificate was
one of the conditions in the advertisement the 4th respondent had
not produced the solvency certificate along with the application.
W.P.(C).No.30960/2006
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It is also stated that since the amount offered by the 4th
respondent was the maximum, they have accepted the solvency
certificate and hence the revision was allowed.
7. I have considered the contentions of both sides. It is
the admitted position that Ext.P8 advertisement inviting
applications required production of solvency certificate and it
also provided that failure to produce solvency certificate would
result in rejection of the application. The application form
(Exts.P9 and P11), though not statutory, also required the
applicants to produce solvency certificate obtained from the
Tahsildar, vide clause 6 thereof. In spite of these mandatory
prescriptions, it is the admitted fact that before 25.6.2003, the
last date for submission of the application, the 4th respondent
had not produced the solvency certificate.
8. Even on the first date of personal hearing fixed on
5.3.2004 she did not make it available. Even according to the 4th
respondent only on 16.6.2004 she made available the solvency
certificate. It is the petitioner’s specific contention that when
the application forms received in response to Ext.P8 were
opened on 25.6.2003 the 4th respondent was also present. The
documents that were produced by all the applicants have been
W.P.(C).No.30960/2006
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recorded in Ext.P10 Mahazar prepared on that occasion. He
would also content that the 4th respondent was fully aware of the
solvency certificate offered by the petitioner and therefore she
had that advantage when she offered her solvency certificate on
16.6.2004. On this basis it is submitted that prejudice has been
caused to the petitioner.
9. Thus it is a case where the mandatory conditions of
the notification have not been complied with by the 4th
respondent. If that be so, the second respondent was justified in
treating the 4th respondent ineligible for granting licence as
AWD. The Appellate order also has to be upheld for the same
reason. In so far as Ext.P7 order in revision is concerned, except
that the highest amount was offered by the 4th respondent, there
is no another reason stated in Ext.P7. Since solvency was not
produced as provided in Ext.P8 advertisement, what she
produced subsequently could not have been accepted. For that
reason alone Ext.P7 cannot be sustained.
10. Coming to the Division Bench judgment reported in
1984 KLT 567, from Para 3 of the judgment it is noticed that
the application in that case did not require the applicant to
produce solvency certificate unlike in Exts.P9. It is also the
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found in that case that by the subsequent production of the
solvency certificate no prejudice was caused. In this case it is
the specific contention of the petitioner that at the time when
the 4th respondent produced solvency certificate she knew the
amount offered by the petitioner. Therefore, at the time when
she offered solvency certificate she certainly had that advantage.
If that be so, prejudice been caused.
11. For these two reasons I find that the Division Bench
judgment relied on by the counsel do not apply to the facts of the
case.
In the result, Ext.P7 will stand quashed and the writ
petition is allowed.
ANTONY DOMINIC, JUDGE
dvs