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SCA/3537/2010 34/ 34 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 3537 of 2010
For
Approval and Signature:
HONOURABLE
MR.JUSTICE K.A.PUJ Sd/-
===================================
1.
Whether
Reporters of Local Papers may be allowed to see the judgment ?
YES
2.
To
be referred to the Reporter or not ?
YES
3.
Whether
their Lordships wish to see the fair copy of the judgment ?
NO
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 ?
NO
5.
Whether
it is to be circulated to the civil judge ?
NO
===================================
DEEPA
GANPATBHAI PARMAR - Petitioner
Versus
INDIAN
OIL CORPORATION LTD & 1 - Respondents
===================================
Appearance
:
MR B B NAIK,
Senior Advocate WITH MR
PARTHIV A BHATT for Petitioner.
MR M R BHATT, Senior Advocate WITH
MRS MAUNA M BHATT for
Respondents.
===================================
CORAM
:
HONOURABLE
MR.JUSTICE K.A.PUJ
Date
: 21/04/2010
ORAL JUDGMENT
The petitioner
has filed this petition under Article 226 of the Constitution of
India praying for the direction to the respondents to issue a letter
of Intent for grant of Retail Outlet Dealership of the respondent
Corporation at Palanpur which is at Sr. No.1 of the advertisement
issued by the respondent Corporation on 31.07.2009 in ‘The Times of
India’ and on 09.08.2009 in ‘Divya Bhaskar’ and to grant Dealership
of Retail Outlet at Palanpur as per the guidelines issued by the
respondent. The petitioner has also prayed for an interim relief
restraining the respondents from undertaking fresh selection process
for grant of Retail Outlet Dealership of the respondent Corporation
at Palanpur.
This Court has
issued notice on 23.03.2010. On 01.04.2010, further order was
passed by this Court recording the fact that the respondent
Corporation has produced on record of this petition certain
documents as referred to in the affidavit-in-reply. A grievance was
raised by the petitioner that though certain documents are referred
to in the affidavit-in-reply, the same were neither produced nor
copies thereof were given to the petitioner. Accordingly, copies
are also given to the petitioner. Affidavit-in-rejoinder is filed
by the petitioner on 05.04.2010.
On 08.04.2010,
the respondent was further permitted to produce on record the Policy
dated 10.10.2005, complaint given by candidate at Sr. No.2 and
Inquiry Officer’s report as well as the decision taken by the
Executive Director.
It is the case
of the petitioner that the respondent Corporation, through
advertisements invited applications for appointment of Dealers for
Retail Outlet Dealership for 15 places situated in Gujarat. All the
Dealerships were reserved for Schedule Caste / Schedule Tribe and 4
Dealerships were reserved for women out of SC / ST. On 01.09.2009,
the petitioner submitted an application in pursuance of the said
advertisement for appointment as a Dealer of the Retail Outlet
Dealership situated at Palanpur, which is at Sr. No.1 of the said
advertisement. The respondent No.2 issued letter dated 27.11.2009
calling the petitioner for personal interview on 17.12.2009 at 10.00
a.m. at the Ahmedabad Divisional office.
It is also the
case of the petitioner that as per the result of the proceeding of
the Selection Committee with marks signed under various heads as per
the guidelines, the petitioner has obtained highest grade and is
selected at Sr. No.1, whereas Kalpesh H. Vania was placed at Sr.
No.2 and Jignesh K. Patel was placed at Sr. No.3 for grant of Retail
Outlet Dealership of the respondent Corporation at Palanpur.
Thereafter, field verification of the petitioner was made by the
officers of the respondent Corporation and in that field
verification also, since nothing was heard from the respondent
Corporation, the petitioner wrote a letter dated 12.03.2010
requesting the respondent Corporation to issue a Letter of Intent to
the petitioner. By letter dated 15.03.2010, the petitioner was
informed by the respondent Corporation that the respondent
Corporation has received certain complaints regarding selection
process adopted for Palanpur location and the respondent Corporation
has investigated the said complaint and the respondent Corporation
has found that there are certain lapses in the selection process
followed for Palanpur Retail Outlet and in view of the same, the
interview process conducted / merit panel prepared for Palanpur
location has been cancelled and fresh interview is being arranged.
Being
aggrieved by the said decision of the respondent Corporation, the
petitioner has filed the present petition invoking the writ
jurisdiction under Article 226 of the Constitution of India.
Mr. B. B.
Naik, learned Senior Advocate appearing with Mr. Parthiv Bhatt for
the petitioner has submitted that the letter dated 15.03.2010
cancelling the interview process conducted / merit panel prepared
for Palanpur location only for awarding Dealership of Retail Outlet
of the respondent Corporation is absolutely illegal, unlawful and
improper. Once the selection process is completed as per the
guidelines issued by the respondent Corporation and a candidate is
selected, the respondent Corporation cannot cancel the said
selection without affording an opportunity of hearing to the
selected candidate i.e. the petitioner. It is the bare requirement
of the principles of natural justice that the person who is likely
to be affected by the decision of the authority is required to be
heard before taking a decision adverse to him / her. In the present
case, no opportunity of hearing was given to the petitioner. Not
only that, no indepth investigation is carried out by the
respondents as no statement of the petitioner is recorded during the
so-called investigation. The so-called investigation is a
camouflage to deny the petitioner grant of Dealership for a Retail
Outlet of the respondent Corporation at Palanpur location and the
same has been done only with a view to favour some one who is not
selected at Sr. No.1 by the Selection Committee. The same Selection
Committee has selected suitable candidates for all 15 Retail Outlets
for which Dealership was to be awarded and only in the case of
Retail Outlet of Palanpur location, the so-called investigation was
carried out by the respondents and the said selection was cancelled
by the respondents.
Mr. Naik has
further submitted that even in the letter dated 15.03.2010 issued by
the Deputy General Manager (Retail Sales) of the respondent
Corporation, no irregularity or illegality committed in the
selection process has been enumerated. Not even a word is stated by
the Deputy General Manager of the respondent Corporation in the said
letter as to what was the complaint against the selection of
candidate for Retail Outlet at Palanpur location and what are the
findings arrived at by the respondents after carrying out the
investigation in the complaint. Mr. Naik, therefore, submitted that
the apprehension expressed by the petitioner in her letter dated
12.03.2010 has come true that to favour someone, process of
selection was cancelled by the respondents without there being any
legal, valid and lawful basis for the same. He has, therefore,
submitted that the action of the respondent Corporation is highly
arbitrary, unreasonable and capricious and is also violative of the
provisions of Article 14 of the Constitution of India. He has,
therefore, submitted that the petition deserves to be admitted and
the respondent Corporation is required to be restrained by an
interim order of this Court from undertaking fresh selection process
for grant of Retail Outlet Dealership at Palanpur.
Mr. M. R.
Bhatt, learned Senior Advocate appearing for the respondents has
submitted that in order to maintain complete transparency in the
selection procedure, the respondents have acted strictly in
consonance with the terms and conditions of the public notice. As
per Clause 10 (1) of advertisement, this was only an application and
not an offer of Dealership. As per Clause 10 (n), grievance having
been received within the time frame and upon investigation being
carried out, it was thought fit to cancel the selection for the
Palanpur selection. Since no malafides have been alleged and
proved, the Court should not entertain this petition. He has
further submitted that as per Clause 10 (n), after the final
interview, the merit panel is to be displayed. Grievance of the
complainant, if any, can be submitted within a time frame of 30 days
from the date of display of merit panel. In the instant case, the
merit panel was displayed on 17.12.2009. The candidate at Sr. No.2
of the merit panel gave complaint dated 24.12.2009 which was
followed by another complaint dated 04.01.2010. In the said
complaints, grievance was made that for the parameter of Project
Report, zero marks were given despite the fact that the Project
Report was submitted along with his application. As the complaint
was received within the time permissible, as per the procedure, the
same was investigated by an Officer nominated by the Gujarat State
office. The Investigating Officer gave a report stating that due to
inadvertence, in respect of this location, despite Project Report
having been filled by various candidates, zero marks were given.
This incorrect allotment of zero marks was due to erroneous reading
of Clause 10 of the public notice. Based upon the investigation
report, the Executive Director of the Gujarat State Office formed an
opinion that awarding of zero marks was prejudicial to all the
candidates who had submitted the Project Reports along with their
applications. In this view of the matter, to give opportunity to
all the candidates, the impugned decision has been taken which is
not only in the interest of candidates but also to substantiate
transparency element in the selection process.
By enumerating
the sequence of events, Mr. Bhatt has further submitted that after
receipt of the applications by due date, the same were scrutinized
and eligible and ineligible applications were segregated as per
procedure. Selection process by way of nomination of Level 1 /
Level 2 Committees are governed by Policy Circular dated 10.01.2005.
Level 1 Committee awards marks to eligible applicants based on
documents submitted along with the applications. There is no
involvement / presence of applicants during the selection process
undertaken by Level 1 Committee. Level 2 Committee personally
interviews the candidates and declares the merit panel based on
marks awarded by Level 1 Committee and marks secured during
interview. Merit panel and merit secured by each candidate under
various parameters are displayed at the venue of the interview on
the same day of conclusion of personal interviews. Out of the total
eligible marks of 40, for SC / ST category Dealership selection, 31
marks are for Level 1 Committee and balance 9 marks are for Level 2
Committee. The minimum marks required for selection is 50% of total
eligible marks. Out of the total 6 locations advertised under ADO,
after completion of Level 1 markings, interviews were held for 5
locations during the period from 14 to 19.12.2009 at the Ahmedabad
Divisional Office. For all the five locations, Level 1 committee
was the same. Similarly, the nominated Level 2 Committee conducted
interviews for all the five locations and declared the merit panel
along with marks. For the location of Palanpur, the personal
interviews were held on 16 & 17.12.2009 and the merit panel and
marks were declared on 17.12.2009. As per merit panel for the
location, the petitioner stood at Sr. No.1. As per the procedure,
with the approval of the Competent Authority, field investigation
report for the No.1 candidate in the merit panel was carried out.
In the meantime, the respondent received complaint / representation
from the respondent No.2 candidate in the merit panel on 24.12.2009
and 04.01.2010. As per the procedure, complaints / representations
were investigated by a Senior Officer nominated by Competent
Authority.
Mr. Bhatt
further submitted that the nominated Officer investigated the
complaint / representation and submitted his report on 20.01.2010
and after considering the same, vide approval dated 22.01.2010,
Executive Director, Gujarat State Office approved the cancellation
of the entire selection process and merit panel for the location
Palanpur and to conduct re-interview for the location. The
petitioner has been informed of management decision vide letter
dated 15.03.2010. Mr. Bhatt, therefore, submitted that the
complaint of the second empanelled candidate having been received
within the time frame and upon the same being investigated, a
decision has been arrived at that the marks given to the second
empanelled candidate were not proper. He has further submitted that
the selection process was carried out by entire selection
Committees, for 15 location in Gujarat. The petitioner has failed
to point out any specific rule not being complied with by any of the
members of the Selection Committee. Only with regard to subject
location, when the correct facts were brought to the notice and upon
investigation, having been found to be correct, the impugned
decision has been rendered. He has, therefore, submitted that the
petition is devoid of any merit and, therefore, deserves to be
dismissed with costs.
In support of
his submissions, Mr. Bhatt has relied on the decision of the Hon’ble
Supreme Court in the case of Jagdish Mandal V/s. State of Orissa
and others, (2007) 14 SCC 517 wherein it is held that when the
power of judicial review is invoked in matters relating to tenders
or award of contracts, certain special features should be borne in
mind. A contract is a commercial transaction. Evaluating tenders
and awarding contracts are essentially commercial functions.
Principles of equity and natural justice stay at a distance. If the
decision relating to award of contract is bona fide and is in public
interest, courts will not, in exercise of power of judicial review,
interfere even if a procedural aberration or error in assessment or
prejudice to a tenderer, is made out. The 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. The
tenderer or contractor with a grievance can always seek damages in a
civil court. The Court further held that before interfering in
tender or contractual matters in exercise of power of judicial
review, the Court should pose to itself the following questions :-
Whether the
process adopted or decision made by the authority is mala fide or
intended to favour someone;
OR
Whether the
process adopted or decision made is so arbitrary and irrational that
the Court can say : the decision is such that no responsible
authority acting reasonably and in accordance with relevant law
could have reached ;
Whether the
public interest is affected.
Mr. Bhatt
further relied on the decision of the Hon’ble Supreme Court in the
case of Siemons Public Communication Pvt. Ltd. And Another V/s.
Union of India & Ors., AIR 2009 SC 1204 wherein while
reiterating the above principles, the Court held that the Courts
will not exercise power of judicial review and interfere even if it
is accepted for the sake of argument that there is a procedural
lacuna.
Based on the
above factual scenario as well as the settled legal position, Mr.
Bhatt has submitted that the petition deserves to be dismissed.
Since in the
affidavit-in-reply and subsequent thereto, new documents were
produced on record, Mr. Naik has taken the Court through the
rejoinder along with certain further submissions based on those new
documents. He has submitted that there is no dispute about the fact
that after the interview, merit panel is to be displayed and
complaint, if any, against the same shall be submitted within a time
frame of 30 days from the date of display of merit panel. He,
however, submitted that subsequent to this, the process adopted by
the respondents is not in accordance with the policy. The
Investigating Officer has not carried out the investigation in
accordance with the policy framed by the respondent Corporation.
The Investigating Officer has come to the conclusion that the
Selection Committee has wrongly given zero marks against the Project
Report to the candidates who have not signed their Project Reports
as it is not compulsory to sign the Project Reports while submitting
the same. While observing this, the Investigating Officer has not
looked into and considered the Policy framed by the respondent
Corporation which is applicable to all over the country in its
proper perspective. The Policy Circular clearly provides that any
document submitted by the applicant without signing the same shall
not be considered by the Selection Committee Level 1 and if it is to
be evaluated and the marks are to be assigned, zero marks would be
assigned to the said document. The said Policy is applicable all
over India and the same is followed in the selection of 15 sites
advertised by the Gujarat office of the respondent Corporation for
which interviews were held by the same Committee and even evaluation
was done by the same Committee. In all the 15 sites, Selection
Committee has considered the same standard and assigned zero marks
against the Project Reports to the candidates who have not signed
the Project Reports. He has cited certain instances for at least 4
sites which clearly show that wherever the candidates have not
signed the Project Reports, they are assigned zero marks against the
marks to be allotted to the Project Reports. He has, therefore,
submitted that Gujarat State Office of the respondent Corporation
cannot interpret the said policy in a manner to oblige one of the
applicants who had not stood at Sr. No.1 in the selection. He has
also invited the attention of the Court to Clause 10 (e) of the
Selection of Petrol / Diesel Retail Outlet Dealership framed by
respondent Corporation which clearly provides that Originals of
the affidavits and self-attested copies of the other supporting
documents should be submitted along with the complete application
form, duly signed. He has, therefore, submitted that all the
documents which are submitted along with the application are
required to be signed by the candidates and if any document is not
signed by the candidate, the same shall not be considered by the
Selection Committee and, if any marks are to be given against the
said document, the same will be zero marks as per the Policy
contained in the Circular dated 10.10.2005.
Mr. Naik has
further submitted that since the question is of interpretation of
policy, the same has to be referred to the head office of the
respondent Corporation and not any Officer of the Gujarat State
office of the Corporation can decide the same, when the Policy is
followed all over India by different Selection Committees appointed
by the respondent Corporation. He has further submitted that the
officer of the Gujarat State office nominated by the Corporation to
investigate the complaint is only a show made by the Gujarat State
office of the Corporation to scrap the selection for Palanpur site
only to oblige the candidate at Sr. No.2 for selecting him in fresh
interview. He has, therefore, submitted that the inquiry and the
decision to carry out fresh selection is arbitrary, unreasonable,
capricious and in colourable exercise of power and contrary to the
policy framed by the Corporation. He has, therefore, submitted that
the decision to hold fresh selection is required to be quashed and
set aside and the petitioner may be awarded Retail outlet at
Palanpur location forthwith.
In support of
his submissions, Mr. Naik relied on the decision of the Apex Court
in the case of Kumari Shrilekha Vidyarthi and others V/s. State
of U.P. and others, (1991) 1 SCC 212 wherein it is held that
every State action, in order to survive, must not be susceptible to
the vice of arbitrariness which is the crux of Article 14 and basic
to the rule of law, the system which governs us. Arbitrariness is
the very negation of the rule of law. Conferment of the power
together with the discretion which goes with it to enable proper
exercise of the power is coupled with the duty to shun arbitrariness
in its exercise and to promote the object for which the power is
conferred, which undoubtedly is public interest and not individual
or private gain, whim or caprice of any individual. All persons
entrusted with any such power have to bear in mind its necessary
concomitant which alone justifies conferment of power under the rule
of law.
Mr. Naik
further relied on the decision of the Hon’ble Supreme Court in the
case of Ramana Dayaram Shetty V/s. International Airport
Authority of India and others, (1979) 3 SCC 489 which is the
basic decision laying down the law on awarding of tenders, contracts
etc. and the exercise of the discretion by the authorities.
Mr. Naik
lastly relied on the decision of the Hon’ble Supreme Court in the
case of ABL International Limited and another V/s. Export Credit
Guarantee Corporation of India Limited and others, (2004) 3
SCC 553 wherein it is held that when an instrumentality of the
State acts contrary to public good and public interest, unfairly,
unjustly and unreasonably, in its contractual, constitutional or
statutory obligations, it really acts contrary to the constitutional
guarantee found in Article 14 of the Constitution of India.
Therefore, once the State or an instrumentality of the State is a
party, it has obligation in law to act fairly, justly and reasonably
to a contract which is the requirement of Article 14 of the
Constitution.
Based on the
above judgments and factual position, Mr. Naik has submitted that
the petition may be entertained and interim protection may be
granted or alternatively it should be allowed with a direction to
the respondent Corporation to allot the Retail Outlet at Palanpur to
the petitioner forthwith.
Having heard
learned advocates appearing for the parties and having considered
their rival submissions in light of the provisions contained in the
advertisement inviting applications for awarding Retail Outlet
Dealership for various places including Palanpur and also in light
of the Policy Circular No.90-10/2005 in respect of evaluation for
dealer selection and also in light of the decided case law on the
subject, the Court is of the view that the moot question before the
Court is to decide as to whether the awarding of zero marks for the
Project Report when it is not signed by the candidate is justified
and on complaint being made by the aggrieved party, to cancel the
select list is in violation of the Policy framed by the respondent
Corporation. Before addressing these two questions, it is necessary
to take into consideration the other provisions of the advertisement
as well as the Policy Circular No.90-10/2005. Clause 10 (l) of
advertisement makes it clear that this was merely an application and
not an offer of Dealership. Once the selection list having been
prepared, it is to be displayed. However, this final select list
would not confer any right on the candidate so selected as the
aggrieved party shall have right to make complaint against such
final selection list within 30 days from the date of display of such
selection list. When such a complaint is made by the aggrieved
party within the period of 30 days, it is required to be
investigated as per the procedure laid down and if the grievance
raised in the complaint is found to be justified, such a final list
may be cancelled and fresh selection list is required to be
prepared. Thus, simply because petitioner stood at Sr. No.1 in the
selection list, this fact by itself does not confer any right on the
petitioner as the candidate at Sr. No.2 has raised a complaint
within the period of 30 days from the date of display of the
selection list and he has raised the grievance that he has been
wrongly awarded zero mark for the Project Report. The whole
question, therefore, depends upon the issue as to whether awarding
of zero mark to the candidate at Sr. No.2 and others who have not
signed the Project Report is justified. In support of the original
decision of the respondent authorities of awarding zero mark to the
candidates for the Project Report submitted by them, without
affixing their signature on such Project Report, reliance is placed
by the petitioner on Clause 10 (e) of the selection of Petrol /
Diesel Retail Outlet Dealers framed by the respondent Corporation
which clearly indicates that the originals of the affidavits and
self-attested copies of the other supporting documents should be
submitted along with complete application form, duly signed. The
prima facie reading of this Clause would normally make any one to
believe that all the documents which are submitted along with the
application are required to be signed by the candidates and if any
document is not signed by the candidate, the same shall not be
considered by the Selection Committee and if any marks are to be
given against the said document, the same will be zero marks as per
the Policy contained in Circular No.90-10/2005 dated 10.10.2005.
However, before accepting this interpretation, two issues arise for
Court’s determination. Firstly, what is the interpretation put
forward by the Investigating Officer and accepted by the respondent
Corporation and whether such an interpretation is correct in the eye
of law. The Investigating Officer in his report dated 22.01.2010
has taken the view that as per Clause 10 of the advertisement, all
documents / certificates are to be self-attested and copies thereof
are to be attached with the application. In the gujarati version of
the advertisement, for document, the word used is Dastavej ,
which in common parlance means documents / papers issued by /
authenticated by Government or some other authorities. Since the
Project Report is prepared by the applicant himself, he may not have
considered this as a document or ‘Dastavej’. The Investigating
Officer further observed that no where in the advertisement, it is
clearly stated that all papers attached with the application are to
be signed by the applicant. Since the complainant who stood at Sr.
No.2 in the selection list has included Project Report in the duly
signed application form, the check list of documents to be
submitted, giving page numbers, it will be unfair to ignore the
Project Report. Considering all these aspects of the matter, the
Investigating Officer took the view that the Project Report should
have been considered and marks should have been awarded. He has,
therefore, recommended that the decision of the Level 1 Committee of
awarding zero mark to the Project Report which was not signed by the
candidate would amount to unfair practice and hence, the merit panel
is required to be cancelled and fresh interview process of Palanpur
location is required to be again undertaken. This recommendation of
the Investigating Officer was approved by the Executive Director of
Gujarat State Office and accordingly, decision to conduct fresh
interview for Palanpur location was taken.
Clause 4 of
the Policy Circular No.90-10/2005 deals with basis for marking. It
states that Level Committee 1 will scrutinize the applications and
award marks to the candidates in respect of the parameters, which
are based on documents. The details are as under :-
Parameter
Max.
Marks
Evaluation
Capability
to provide land and infrastructures / facilities.
35
Based
on documents
Capability
to provide finance.
25
Based
on documents
Educational
Qualification
15
Based
on documents
Age
04
Based
on documents
Capability
to generate business
Tie
up with prospective customer.
Project
Report for realizing sales potential.
05
03
Production
of documents and affidavit from prospective customers.
Project
Report
Experience
Retail
trade of petroleum products.
Other
/ related petroleum trade/transport / automobiles.
Hospitality
/ Service industry / FMCG
Others
04
04
03
02
01
Based
on furnishing of documentary evidence to establish the relevant
service of minimum 1 year.
Total
91
In the above
Chart, against all columns, except the column of Project Report,
parameters are to be judged and evaluation is to be made on the
basis of the documents produced. Only against Project Report for
releasing sales potential, evaluation is to be made only on the
basis of the Project Report. Clause 5 further makes it clear that
the above marks will have to be awarded on the basis of attested
copies, 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 1 Committee Member.
Clause 11 further makes it clear that the original documents brought
by the applicants are to be seen by the Officer deputed by the
Divisional Office and verified with the attested copies submitted by
them. In cases where there is a discrepancy in the attested copy as
compared to the original documents, such candidates will be declared
ineligible. Various clauses of the Policy Circular give separate
identification to the Project Report and it is something different
from the document. This would, therefore, 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, the 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.
It is also
necessary to deal with one more contention raised by the petitioner
challenging the cancellation of select list on the ground that such
a procedure is adopted only with regard to Palanpur location whereas
in other locations also, zero marks are awarded for the Project
Reports when they are submitted by the candidates without affixing
their signature and despite this fact, no such action was taken by
the respondent Corporation in respect of those areas.
There is no
much substance in this argument as the complaints are made within
stipulated time only in respect of Palanpur location. The
respondents, on their own, will not initiate any inquiry and cancel
the select list. As per the guidelines, only when some complaints
are received within the stipulated period and on inquiry, if it is
found that the complainant is justified in making such complaints,
then only, inquiry is made and after investigation, appropriate
decision is taken. Thus, even if zero marks are allotted to the
Project Reports in other locations, there is nothing wrong if those
selection lists were not cancelled by the respondent Corporation.
Even if it is
assumed that the Project Report is also a document and it is to be
signed and since the said document is not signed by any particular
candidate, whether the respondent Corporation is justified in
awarding zero marks for such Project Report. The Clauses in the
Policy Circular are to be divided into two parts, some of the
clauses are substantive clauses whereas some of the clauses are
procedural clauses. When a particular paper or document is not
signed with the bonafide belief that it is not required to be signed
and on that basis, if the said document is not considered, the
respondent authorities cannot be held to be justified in taking
decision as it is mainly a procedural irregularity and simply on
that basis, zero mark should not have been awarded who have
submitted such Project Report. It should have been evaluated on its
own merit subject to further clarification from the candidate at the
time of oral interview. The Courts have also time and again made
such distinction and in a given case, appropriate directions are
issued. In Jagdish Mandal (Supra), the Apex Court in a very
categorical term held that if the decision relating to award of
contract is bona fide and is in public interest, courts will not, in
exercise of power of judicial review, interfere even if a procedural
aberration or error in assessment or prejudice to a tenderer, is
made out. Here in the present case, it is a bonafide decision of
the respondent authorities, based on the investigation report and
approved by the Executive Director of Gujarat State Office of the
respondent Corporation. At the most, it can be said to be a
procedural aberration or may amount to error in reassessment on
investigation by the Investigating Officer or it may cause some
prejudice to the petitioner. Despite this, the Court should not
exercise its power of judicial review in such matter and interfere
in the decision taken by the respondent authorities for cancellation
of the selection list and conducting re-interview for Palanpur
location. There is no basis for accepting the allegation that the
whole exercise was undertaken only with a view to favour the
candidate at Sr. No.2.
The entire
procedure undertaken by the respondent Corporation is transparent
and proper accountability is fixed at every stage. Even after
canceling the selection list, the Retail Outlet is not awarded to
the candidate at Sr. No.2. Fresh interview is ordered to be held
and by adopting this course, only direction issued was to examine
the Project Report and award appropriate marks and thereafter
consider the same on merits. No prejudice would be caused to any
one. The petitioner has also a chance to again prove herself and
only after fresh interview, whosoever gets the highest number of
marks, will get the award of Retail Outlet for Palanpur location.
The whole idea is to get the best out of the lot and one should not
be declared best only on the basis of default by someone if it is
not a default of very substantive nature.
In view of the
above discussion, the Court is of the view that there is no
substance or merit in the challenge of the petitioner against
cancellation of the selection list and conducting fresh interview
for Retail Outlet for Palanpur location. Even the decisions relied
upon by the petitioner are not of any assistance to the petitioner
as the Court has not found any arbitrariness or any malafide
exercise of power in the decision making process of the respondent
authorities. The petition is, therefore, dismissed. Notice
discharged without any order as to costs.
Sd/-
[K. A. PUJ, J.]
Savariya
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