{"id":121649,"date":"2010-07-15T00:00:00","date_gmt":"2010-07-14T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/pushpaben-vs-indian-on-15-july-2010"},"modified":"2019-03-11T03:32:41","modified_gmt":"2019-03-10T22:02:41","slug":"pushpaben-vs-indian-on-15-july-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/pushpaben-vs-indian-on-15-july-2010","title":{"rendered":"Pushpaben vs Indian on 15 July, 2010"},"content":{"rendered":"
Gujarat High Court<\/div>\n
Pushpaben vs Indian on 15 July, 2010<\/div>\n
Author: H.K.Rathod,&Nbsp;<\/div>\n
   Gujarat High Court Case Information System \n\n  \n  \n    \n\n \n \n    \t      \n         \n\t    \n\t\t   Print\n\t\t\t\t          \n\n  \n\n\n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t\n\n\n \n\n\n\t \n\nSCA\/5921\/2010\t 13\/ 21\tORDER \n \n \n\n\t\n\n \n\nIN\nTHE HIGH COURT OF GUJARAT AT AHMEDABAD\n \n\n \n\n\n \n\nSPECIAL\nCIVIL APPLICATION No. 5921 of 2010\n \n\n \n\n\n \n\n \n\n\n \n\n=========================================================\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n1\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tReporters of Local Papers may be allowed to see the judgment ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n2\n\t\t\n\t\t \n\t\t\t \n\nTo be\n\t\t\treferred to the Reporter or not ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n3\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\ttheir Lordships wish to see the fair copy of the judgment ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n4\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tthis case involves a substantial question of law as to the\n\t\t\tinterpretation of the constitution of India, 1950 or any order\n\t\t\tmade thereunder ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n5\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tit is to be circulated to the civil judge ?\n\t\t\n\t\n\n \n\n \n=========================================================\n\n \n\nPUSHPABEN\nJAIDEEPBHAI MORI - Petitioner(s)\n \n\nVersus\n \n\nINDIAN\nOIL CORPORATION LTD & 1 - Respondent(s)\n \n\n=========================================================\n \nAppearance\n: \nMR\nANSHIN H DESAI for\nPetitioner(s) : 1, \nNOTICE SERVED BY DS for Respondent(s) : 1, \nMRS\nMAUNA M BHATT for Respondent(s) : 1 -\n2. \n=========================================================\n\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\nCORAM\n\t\t\t: \n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\nHONOURABLE\n\t\t\tMR.JUSTICE H.K.RATHOD\n\t\t\n\t\n\n \n\n \n \n\n\n \n\nDate\n: 15\/07\/2010 \n\n \n\n \n \nORAL\nORDER<\/pre>\n
1.\tHeard
\nlearned advocate Mr.A.H.Desai for petitioner and learned Senior
\nAdvocate Mr.M.R.Bhatt for learned advocate Mrs.Mauna Bhatt on behalf
\nof respondents.\n<\/p>\n
2.\tBrief
\nfacts of present case are that on 31.3.2009, the respondent
\nCorporation vide public advertisement dated 31.7.2009 published in
\nthe Times of India, declared that, for 15 locations, retail outlet
\ndealership was to be given in the State of Gujarat of different
\ncategories. The petitioner belongs to ST category. As per the
\nprocedure, the respondent Corporation also called for verification of
\nthe caste certificate of the petitioner from the Mamlatdar, Mamlatdar
\noffice, Bhanvad vide communication dated 25.1.2010. On 3.2.2010, the
\nMamlatdar, Bhanvad vide communication confirmed the same by replying
\nin writing to the respondent Corporation. Vide Regd.A.D.
\nCommunication dated 26.11.2009, the petitioner was communicated that
\nthe petitioner shall have to appear before the Selection Committee
\nfor interview at Rajkot on 22.12.2009 at 15.00 hrs. along with the
\ndocuments. As the petitioner was declared on merit panel No.1 on
\n22.12.2009 and because for a period of almost two months, no letter
\nof intent \/ final order of allotment of the retail outlet dealership
\nwas issued to the petitioner, the petitioner complained to the Member
\nof Parliament, Jamnagar and vide communication dated 20.2.2010, the
\ncomplaint of the petitioner was forwarded to the respondent
\nCorporation by the Member of Parliament,Jamnagar. The reply dated
\n16.3.2010 given to the Member of Parliament by the respondent
\nCorporation, it is stated that re-interviews are to be held because
\nthere were some lapses in ‘initial scrutiny’ and some of the
\napplicants were wrongly denied an opportunity to appear in the
\ninterview, and therefore, selection process  has been cancelled, and
\nre-interviews of all the eligible applicants have been planned. The
\npetitioner again sent a communication dated 21.2.2010 to the
\nrespondent No.2 complaining about the inaction on the part of the
\nrespondent Corporation, wherein it is also stated that the FIR is
\nalso completed on 25.2.2010 and inspite of that, no letter of intent
\n\/ order has been sent to the petitioner.\n<\/p>\n
3.\tAgainst
\nthat, affidavit-in-reply is filed by respondents which is at Page-65.
\nRelevant averments are in Para.2 to 5, which are quoted as under :\n<\/p>\n
 2.\tAt
\nthe outset, I most respectfully submit that merely because in the
\noutlet list, the petitioner has been at placed at Sr.No.1, ipso facto
\ndoes not entitle the petitioner for award of dealership. I humbly
\nsubmit that no fundamental rights of the petitioners have been
\nviolated and on this limited ground alone, the petition is not
\nmaintainable and may kindly be rejected summarily with costs.\n<\/p>\n
3.\tI
\nfurther humbly submit that none of the averments made in the memo of
\nthe petition, not specifically dealt with in the present affidavit or
\nforming part of the record may be treated as admitted and I
\nspecifically deny the averments not specifically dealt with in the
\npresent affidavit or forming part of the record.\n<\/p>\n
4.\tI
\nhumbly submit that as will be demonstrated hereinafter, in order to
\nmaintain complete transparency in the selection procedure, the
\nrespondents have acted strictly in consonance with the terms and
\nconditions of the public notice. I submit that as per clause(10)(1),
\nthis was only an application and not an offer of dealership. I
\nfurther submit that as per clause10(n), grievance having been
\nreceived for two locations namely Lathi and Amreli within the time
\nframe and upon further investigation carried out, it was found that
\nsimilar irregularities occurred for Hadala, Dist   Surendranagar
\nalso and hence it was thought fit to even cancel the selection for
\nthe Hadala location. I submit that malafides not having been alleged
\nand proved, this Hon’ble Court may be pleased not to entertain the
\npetition on this ground also.\n<\/p>\n
5.\tI
\nsubmit that interviews for the retail outlet locations at Lathi,
\nDist.Amreli and Hadala. Dist. Surendranagar were undertaken. A
\ncomplaint from one Shri Umath Dhansukhbhai Merubhai for the location
\nat Lathi, which was advertised under the ST category was received. In
\nthe said complaint, it was stated that his application was rejected
\non the ground that the signature in the application form and
\naffidavit did not tally. A representation was received by the
\nExecutive Director of the Gujarat State Office of IOC from the said
\napplicant stating that his application had been rejected as he had
\nsigned in the application in English and in the affidavit in
\nGujarati. I submit that based on the said representation, the
\nExecutive Director sought for a report for the said rejection on
\nfrivolous grounds. I submit that thereupon, a report was submitted,
\nin which it was recorded that the above referred applicant had signed
\nin all places in the application (except affidavit) in English
\nwhereas in the affidavit, he had signed in Gujarati. It was stated
\nthat since the affidavit was signed in Gujarati and the said document
\nwas important, the Selection Committee had decided to reject the
\napplication. The Executive Director of IOCL, noting that this was a
\nfrivolous ground for rejecting the application, gave a decision that
\nthe stand taken by the Selection Committee was not correct and that
\nthe said candidate had been denied the chance to appear for the
\ninterview. Further inquires were made about the number of locations
\nin which the Selection Committee had followed the same methodology.
\nIt was ascertained that the said Selection Committee had followed the
\nsame methodology of rejecting the application form on the ground of
\ndifference in signature for three locations, viz. Lathi, Hadala and
\nMalia. The Executive Director, being the final authority in the
\nGujarat State Office, therefore formed an opinion that rejection of
\nthe applications on the above referred ground had affected selection
\nprocess for all the three locations. The decision was therefore taken
\nin public interest to cancel the merit  panel and for re-interview
\nfor all the three locations. I submit that the above referred
\nsequence of events would demonstrably go to show that the merit panel
\nhas been cancelled as the respective candidates had been put at
\ndisadvantage in view of the Selection Committee’s action of rejecting
\notherwise eligible applications on the sole ground that the said
\ncandidates having signed in English and Gujarati language. As this
\nwas a hyper technical view taken by the Selection Committee, in the
\ninterest of all the candidates, the decision for cancelling the merit
\npanel and for re-interview has been taken.\n<\/p>\n
4.\tAgainst
\nthat, affidavit-in-rejoinder is filed by petitioner reiterating the
\nsame allegations against respondent Corporation. Learned advocate
\nMr.Desai submitted that on that basis, it seems that there are no
\nvalid, genuine and bonafide reasons for the respondent Corporation to
\ncall for fresh selection and petitioner presumed that some
\napplicant\/s who were desirous of having the retail outlet dealership
\nfor the location of Hadala, Dist.-Surendranagar having failed in such
\nranking system, have tried to use the pressure on the officers of the
\nCorporation and have sought for fresh selection and therefore, the
\nLaw Officer of the respondent Corporation has sat tight lipped about
\nthe reasons for which the fresh selection is sought for by the
\nrespondent Corporation. He also submitted that affidavit of
\nrespondent is silent on the important points, viz. who is the
\ncomplainant, on what basis the decision is taken, is any notice is
\nissued, is any hearing afforded, what are the grounds on which fresh
\nselection is sought for. Therefore, these are the points and for
\nthat, affidavit of respondent remained silent. Therefore, allegation
\nwhich has been made by petitioner in petition amounts to accepting by
\nrespondent. He relied upon in rejoinder, certain procedure
\nprescribing in brochure  for selection of petrol\/diesel outlet
\ndealership.\n<\/p>\n
5.\tBefore
\nthis Court, learned advocate Mr.Desai again emphasizes his
\nsubmissions that in respect to Hadala, no complaint received by
\nrespondent. Let these facts may be disclosed while scrutinizing
\napplication and what happened. He submitted that first they have to
\nscrutinize application submitted by all the applicants in respect to
\nHadala and thereafter, they have to consider marks given in oral
\ninterview and if any of the candidate who having higher marks
\ncomparison to petitioner,  some mistake is committed, then they can
\nhold the fresh interview. For that, there is no such averments made
\nby respondent in affidavit-in-reply. In short, the petitioner is
\nchallenging decision of respondent cancelling selection list in
\nrespect of three places (i) Hadala (ii) Lathi and (iii) Maliya. The
\nlearned Senior Advocate Mr.M.R.Bhatt submitted that the petitioner is
\nbelonging to ST category at Hadala. The decision which has been taken
\nby respondent for re-interview the same candidates those who appeared
\nearlier removing certain discrepancies occurred due to signature in
\napplication form in Gujarati \/ English. The detail reason has been
\ngiven by respondent Corporation in affidavit-in-reply which can be
\nconsidered to be objective decision of respondent to cancel entire
\nselect list in three places and decided to have fresh selection where
\nthe present petitioner is also to be called for interview.\n<\/p>\n
6.\tLearned
\nSenior Advocate Mr.M.R.Bhatt submitted that in procedure, there are
\ntwo stages; one is for scrutiny of application and second is for oral
\ninterview. Therefore, petitioner will be called once again for
\ninterview straightway by respondent in the re-interview  as and when
\nscheduled by respondent.\n<\/p>\n
7.\tI
\nhave considered submissions made by both learned advocates and
\naverments made in petition, affidavit-in-reply as well as
\naffidavit-in-rejoinder of petitioner. I failed to understand the
\nsubmission made by learned advocate Mr.Desai. Merely in oral
\ninterview petitioner has been selected at Serial No.12, is not giving
\nany right which can be enforced against respondent Corporation.
\nMerely name is included in select list, it cannot give any legal
\nvested or statutory right for appointment or offered  dealership.
\nSuch selection list cannot be enforced against respondent once entire
\nselect list is cancelled by respondent Corporation. In certain cases,
\nwhen malpractice has been adopted by some of the persons or some
\ntechnical difficulties or lapse on administrative side is occurred,
\nin such circumstances, entire select list is required to be cancelled
\nso that it can be given reasonable opportunity to each candidate, who
\nhave not been given opportunity at the relevant time because of some
\ndiscrepancies arise in scrutinizing the application form. Therefore,
\naccording to my opinion, the contentions which have been raised by
\nlearned advocate Mr.Desai cannot be accepted.\n<\/p>\n
8.\tLearned
\nSenior Advocate Mr.M.R.Bhatt has relied upon one decision of this
\nCourt in SCA No.3537 of 2010 decided on 21.4.2010 where identical \/
\nsimilar question has been examined by this Court. Relevant
\nobservations are in Para.21 to 28 are quoted as under :\n<\/p>\n
\t21.\tHaving
\n\theard learned advocates appearing for the parties and having
\n\tconsidered their rival submissions in light of the provisions
\n\tcontained in the advertisement inviting applications for awarding
\n\tRetail Outlet Dealership for various places including Palanpur and
\n\talso in light of the Policy Circular No.90-10\/2005 in respect of
\n\tevaluation for dealer selection and also in light of the decided
\n\tcase law on the subject, the Court is of the view that the moot
\n\tquestion before the Court is to decide as to whether the awarding of
\n\tzero marks for the Project Report when it is not signed by the
\n\tcandidate is justified and on complaint being made by the aggrieved
\n\tparty, to cancel the select list is in violation of the Policy
\n\tframed by the respondent Corporation.  Before addressing these two
\n\tquestions, it is necessary to take into consideration the other
\n\tprovisions of the advertisement as well as the Policy Circular
\n\tNo.90-10\/2005.  Clause 10 (l) of advertisement makes it clear that
\n\tthis was merely an application and not an offer of Dealership.  Once
\n\tthe selection list having been prepared, it is to be displayed.
\n\tHowever, this final select list would not confer any right on the
\n\tcandidate so selected as the aggrieved party shall have right to
\n\tmake complaint against such final selection list within 30 days from
\n\tthe date of display of such selection list.  When such a complaint
\n\tis made by the aggrieved party within the period of 30 days, it is
\n\trequired to be investigated as per the procedure laid down and if
\n\tthe grievance raised in the complaint is found to be justified, such
\n\ta final list may be cancelled and fresh selection list is required
\n\tto be prepared.  Thus, simply because petitioner stood at Sr. No.1
\n\tin the selection list, this fact by itself does not confer any right
\n\ton the petitioner as the candidate at Sr. No.2 has raised a
\n\tcomplaint within the period of 30 days from the date of display of
\n\tthe selection list and he has raised the grievance that he has been
\n\twrongly awarded zero mark for the Project Report.  The whole
\n\tquestion, therefore, depends upon the issue as to whether awarding
\n\tof zero mark to the candidate at Sr. No.2 and others who have not
\n\tsigned the Project Report is justified.  In support of the original
\n\tdecision of the respondent authorities of awarding zero mark to the
\n\tcandidates for the Project Report submitted by them, without
\n\taffixing their signature on such Project Report, reliance is placed
\n\tby the petitioner on Clause 10 (e) of the selection of Petrol \/
\n\tDiesel Retail Outlet Dealers framed by the respondent Corporation
\n\twhich clearly indicates that the originals of the affidavits and
\n\tself-attested copies of the other supporting documents should be
\n\tsubmitted along with complete application form, duly signed.  The
\n\tprima facie reading of this Clause would normally make any one to
\n\tbelieve that all the documents which are submitted along with the
\n\tapplication are required to be signed by the candidates and if any
\n\tdocument is not signed by the candidate, the same shall not be
\n\tconsidered by the Selection Committee and if any marks are to be
\n\tgiven against the said document, the same will be zero marks as per
\n\tthe Policy contained in Circular No.90-10\/2005 dated 10.10.2005.
\n\tHowever, before accepting this interpretation, two issues arise for
\n\tCourt’s determination.  Firstly, what is the interpretation put
\n\tforward by the Investigating Officer and accepted by the respondent
\n\tCorporation and whether such an interpretation is correct in the eye
\n\tof law.  The Investigating Officer in his report dated 22.01.2010
\n\thas taken the view that as per Clause 10 of the advertisement, all
\n\tdocuments \/ certificates are to be self-attested and copies thereof
\n\tare to be attached with the application.  In the Gujarati version of
\n\tthe advertisement, for document, the word used is  Dastavej ,
\n\twhich in common parlance means documents \/ papers issued by \/
\n\tauthenticated by Government or some other authorities.  Since the
\n\tProject Report is prepared by the applicant himself, he may not have
\n\tconsidered this as a document or ‘Dastavej’.  The Investigating
\n\tOfficer further observed that no where in the advertisement, it is
\n\tclearly stated that all papers attached with the application are to
\n\tbe signed by the applicant.  Since the complainant who stood at Sr.
\n\tNo.2 in the selection list has included Project Report in the duly
\n\tsigned application form, the check list of documents to be
\n\tsubmitted, giving page numbers, it will be unfair to ignore the
\n\tProject Report.   Considering all these aspects of the matter, the
\n\tInvestigating Officer took the view that the Project Report should
\n\thave been considered and marks should have been awarded.  He has,
\n\ttherefore, recommended that the decision of the Level 1 Committee of
\n\tawarding zero mark to the Project Report which was not signed by the
\n\tcandidate would amount to unfair practice and hence, the merit panel
\n\tis required to be cancelled and fresh interview process of Palanpur
\n\tlocation is required to be again undertaken.  This recommendation of
\n\tthe Investigating Officer was approved by the Executive Director of
\n\tGujarat State Office and accordingly, decision to conduct fresh
\n\tinterview for Palanpur location was taken.\n<\/p>\n
\t22.\tClause
\n\t4 of the Policy Circular No.90-10\/2005 deals with basis for marking.
\n\t It states that Level Committee 1 will scrutinize the applications
\n\tand award marks to the candidates in respect of the parameters,
\n\twhich are based on documents.  The details are as under :-\n<\/p>\n
\t\t\t\tParameter<\/p>\n
\t\t\t\tMax
\n\t\t\t\tMarks<\/p>\n
\t\t\t\tEvaluation<\/p>\n
\t\t\t\tCapability
\n\t\t\t\tto provide land and infrastructures \/ facilities.\n<\/p><\/blockquote>\n
35<\/span><\/p>\n
\t\t\t\tBased
\n\t\t\t\ton documents<\/p>\n
\t\t\t\tCapability
\n\t\t\t\tto provide finance.\n<\/p><\/blockquote>\n
25<\/span><\/p>\n
\t\t\t\tBased
\n\t\t\t\ton documents<\/p>\n
\t\t\t\tEducational
\n\t\t\t\tQualification<\/p>\n
15<\/span><\/p>\n
\t\t\t\tBased
\n\t\t\t\ton documents<\/p>\n
\t\t\t\tAge<\/p>\n
04<\/span><\/p>\n
\t\t\t\tBased
\n\t\t\t\ton documents<\/p>\n
\t\t\t\tCapability
\n\t\t\t\tto generate business <\/p>\n
\t\t\t\tTie
\n\t\t\t\tup with prospective customer.\n<\/p><\/blockquote>\n
\t\t\t\tProject
\n\t\t\t\tReport for realizing sales potential.\n<\/p><\/blockquote>\n
05<\/span><\/p>\n
03<\/span><\/p>\n
\t\t\t\tProduction
\n\t\t\t\tof documents and affidavit from prospective customers.\n<\/p><\/blockquote>\n
\t\t\t\tProject
\n\t\t\t\tReport<\/p>\n
\t\t\t\tExperience<\/p>\n
\t\t\t\tRetail
\n\t\t\t\ttrade of petroleum products.\n<\/p><\/blockquote>\n
\t\t\t\tOther
\n\t\t\t\t\/ related petroleum trade\/transport \/ automobiles.\n<\/p><\/blockquote>\n
\t\t\t\tHospitality
\n\t\t\t\t\/ Service industry \/ FMCG <\/p>\n
\t\t\t\tOthers<\/p>\n
04<\/span><\/p>\n
04<\/span><\/p>\n
03<\/span><\/p>\n
02<\/span><\/p>\n
01<\/span><\/p>\n
\t\t\t\tBased
\n\t\t\t\ton furnishing of documentary evidence to establish the relevant
\n\t\t\t\tservice of minimum 1 year.\n<\/p><\/blockquote>\n
\t\t\t\tTotal<\/p>\n
91<\/span><\/p>\n<\/blockquote>\n
\t23.\tIn
\n\tthe above Chart, against all columns, except the column of Project
\n\tReport, parameters are to be judged and evaluation is to be made on
\n\tthe basis of the documents produced.  Only against Project Report
\n\tfor releasing sales potential, evaluation is to be made only on the
\n\tbasis of the Project Report.  Clause 5 further makes it clear that
\n\tthe above marks will have to be awarded on the basis of attested
\n\tcopies, documents submitted along with the application as original
\n\tdocuments are to be brought by the candidates at the time of
\n\tinterview.  All the documents enclosed with the application will be
\n\tserially numbered and signed by each Level 1 Committee Member.
\n\tClause 11 further makes it clear that the original documents brought
\n\tby the applicants are to be seen by the Officer deputed by the
\n\tDivisional Office and verified with the attested copies submitted by
\n\tthem.  In cases where there is a discrepancy in the attested copy as
\n\tcompared to the original documents, such candidates will be declared
\n\tineligible.  Various clauses of the Policy Circular give separate
\n\tidentification to the Project Report and it is something different
\n\tfrom the document.  This would, therefore, lead to believe that when
\n\tthe Project Report is submitted as it is, it may not be required to
\n\tbe signed and if such a Project report is not signed, the same shall
\n\tnot be considered as furnishing of an unsigned document.  The
\n\treasonable belief of the candidate when he has submitted an unsigned
\n\tProject Report that this being not a document, meaning thereby not a
\n\tcopy of the original document, it is not required to be signed and
\n\twhen the Investigating Officer took the view that it is not
\n\tjustified to ignore such Project Report, which is not signed, the
\n\tCourt should not interfere in such decision.\n<\/p>\n
\t24.\tIt
\n\tis also necessary to deal with one more contention raised by the
\n\tpetitioner challenging the cancellation of select list on the ground
\n\tthat such a procedure is adopted only with regard to Palanpur
\n\tlocation whereas in other locations also, zero marks are awarded for
\n\tthe Project Reports when they are submitted by the candidates
\n\twithout affixing their signature and despite this fact, no such
\n\taction was taken by the respondent Corporation in respect of those
\n\tareas.\n<\/p>\n
\t25.\tThere
\n\tis no much substance in this argument as the complaints are made
\n\twithin stipulated time only in respect of Palanpur location.  The
\n\trespondents, on their own, will not initiate any inquiry and cancel
\n\tthe select list.  As per the guidelines, only when some complaints
\n\tare received within the stipulated period and on inquiry, if it is
\n\tfound that the complainant is justified in making such complaints,
\n\tthen only, inquiry is made and after investigation, appropriate
\n\tdecision is taken.  Thus, even if zero marks are allotted to the
\n\tProject Reports in other locations, there is nothing wrong if those
\n\tselection lists were not cancelled by the respondent Corporation.\n<\/p>\n
\t26.\tEven
\n\tif it is assumed that the Project Report is also a document and it
\n\tis to be signed and since the said document is not signed by any
\n\tparticular candidate, whether the respondent Corporation is
\n\tjustified in awarding zero marks for such Project Report.  The
\n\tClauses in the Policy Circular are to be divided into two parts,
\n\tsome of the clauses are substantive clauses whereas some of the
\n\tclauses are procedural clauses.  When a particular paper or document
\n\tis not signed with the bonafide belief that it is not required to be
\n\tsigned and on that basis, if the said document is not considered,
\n\tthe respondent authorities cannot be held to be justified in taking
\n\tdecision as it is mainly a procedural irregularity and simply on
\n\tthat basis, zero mark should not have been awarded who have
\n\tsubmitted such Project Report.  It should have been evaluated on its
\n\town merit subject to further clarification from the candidate at the
\n\ttime of oral interview.  The Courts have also time and again made
\n\tsuch distinction and in a given case, appropriate directions are
\n\tissued.  In Jagdish Mandal (Supra), the Apex Court in a very
\n\tcategorical term held that if the decision relating to award of
\n\tcontract is bona fide and is in public interest, courts will not, in
\n\texercise of power of judicial review, interfere even if a procedural
\n\taberration or error in assessment or prejudice to a tenderer, is
\n\tmade out.  Here in the present case, it is a bonafide decision of
\n\tthe respondent authorities, based on the investigation report and
\n\tapproved by the Executive Director of Gujarat State Office of the
\n\trespondent Corporation.  At the most, it can be said to be a
\n\tprocedural aberration or may amount to error in reassessment on
\n\tinvestigation by the Investigating Officer or it may cause some
\n\tprejudice to the petitioner.  Despite this, the Court should not
\n\texercise its power of judicial review in such matter and interfere
\n\tin the decision taken by the respondent authorities for cancellation
\n\tof the selection list and conducting re-interview for Palanpur
\n\tlocation.  There is no basis for accepting the allegation that the
\n\twhole exercise was undertaken only with a view to favour the
\n\tcandidate at Sr. No.2.\n<\/p>\n
\t27.\tThe
\n\tentire procedure undertaken by the respondent Corporation is
\n\ttransparent and proper accountability is fixed at every stage.  Even
\n\tafter canceling the selection list, the Retail Outlet is not awarded
\n\tto the candidate at Sr. No.2.  Fresh interview is ordered to be held
\n\tand by adopting this course, only direction issued was to examine
\n\tthe Project Report and award appropriate marks and thereafter
\n\tconsider the same on merits.  No prejudice would be caused to any
\n\tone.  The petitioner has also a chance to again prove herself and
\n\tonly after fresh interview, whosoever gets the highest number of
\n\tmarks, will get the award of Retail Outlet for Palanpur location.
\n\tThe whole idea is to get the best out of the lot and one should not
\n\tbe declared best only on the basis of default by someone if it is
\n\tnot a default of very substantive nature.\n<\/p>\n
28.\tIn
\nview of the above discussion, the Court is of the view that there is
\nno substance or merit in the challenge of the petitioner against
\ncancellation of the selection list and conducting fresh interview for
\nRetail Outlet for Palanpur location.  Even the decisions relied upon
\nby the petitioner are not of any assistance to the petitioner as the
\nCourt has not found any arbitrariness or any malafide exercise of
\npower in the decision making process of the respondent authorities.
\nThe petition is, therefore, dismissed.  Notice discharged without any
\norder as to costs.\n<\/p>\n
8.1\tIn
\nsimilar situation, the legal aspect has been examined by Apex Court
\nin number of decisions that in case of selection list prepared for
\nappointment to the candidate in respect of any post, whether such
\nselected candidate having any legal vested right or not for getting
\nappointment. Though these decisions are of service matter but,
\nequally it applies considering the same principle which has been
\ninvolved in  determining the contentions raised by learned advocate
\nMr.Desai. In case of State of UP & Others v. Rajkumar Sharma &
\nOthers,<\/a> reported in (2006) 3 SCC 330. Relevant Para.14 is quoted as
\nunder :\n<\/p>\n
 14.\tSelectees
\ncannot claim the appointment as a matter of right. Mere inclusion of
\ncandidates  name in the list does not confer any right to be
\nselected, even if some of the vacancies remained unfilled and the
\nconcerned candidates cannot claim that they have been given a hostile
\ndiscrimination.  (See: Shankarsan Dash v. Union of India, (AIR<\/a> 1991
\nSC 1612), Smt. Asha Kaul and Another v. State of Jammu & Kashmir
\nand<\/a> another (1993 (2) SCC 573), Union of India v. S.S. Uppal (AIR<\/a>
\n1996 SC 2346), Hanman Prasad v. Union of India (1996 (10) SCC 742),
\nBihar Public Service Commission & Ors. v. State of Bihar &
\nOrs. (AIR 1997 SC 2280), Syndicate Bank & Ors. v. Shankar Paul &
\nOrs. (AIR<\/a> 1997 SC 3091), Vice Chancellor, University of Allahabad v.
\nDr. Anand Prakash Mishra and Ors.<\/a> (1997 (10) SCC 264), Punjab State
\nElectricity Board v. Seema  (1999 SCC (L&S) 629); All India SC &
\nST Employees Association v.\tA Arthur Jeen, (AIR<\/a> 2001 SC 1851),
\nVinodan T. v. University of Kalikut,<\/a> (2002 (4) SCC 726), S. Renuka v.
\nState of Andhra Pradesh and Ors. (AIR 2002 SC 1523), and Baitariani
\nGramiya Bank v. Pallab Kumar & Ors. (AIR<\/a> 2000 SC 4248).\n<\/p>\n
8.2\tThe
\nApex Court has examined aforesaid aspect, in case of Punjab State
\nElectricity Board & Others v. Malkiat Singh,<\/a> reported in 2006 SCC
\n(L&S) 235. Relevant Para.4 and 5 is quoted as under :\n<\/p>\n
4.\tHaving
\nconsidered the respective submissions made by the learned counsel for
\nthe parties, we are of the view that the High Court committed an
\nerror in proceeding on the basis that the respondent had got a vested
\nright for appointment and that could not have been taken away by the
\nsubsequent change in the policy.  It is settled law that mere
\ninclusion of name of a candidate in the select list does not confer
\non such candidate any vested right to get an order of appointment.
\nThis position is made clear in para 7 of the Constitution Bench
\njudgment of this Court in Shankarsan Dash vs. Union of India<\/a> [(1991)
\n3 SCC 47] which reads:-\n<\/p>\n
 7.
\nIt is not correct to say that if a number of vacancies are notified
\nfor appointment and adequate number of candidates are found fit, the
\nsuccessful candidates acquire an indefeasible right to be appointed
\nwhich cannot be legitimately denied. Ordinarily the notification
\nmerely amounts to an invitation to qualified candidates to apply for
\nrecruitment and on their selection they do not acquire any right to
\nthe post. Unless the relevant recruitment rules so indicate, the
\nState is under no legal duty to fill up all or any of the vacancies.
\nHowever, it does not mean that the State has the licence of acting in
\nan arbitrary manner. The decision not to fill up the vacancies has to
\nbe taken bona fide for appropriate reasons. And if the vacancies or
\nany of them are filled up, the State is bound to respect the
\ncomparative merit of the candidates, as reflected at the recruitment
\ntest, and no discrimination can be permitted. This correct position
\nhas been consistently followed by this Court, and we do not find any
\ndiscordant note in the decisions in State of Haryana v. Subhash
\nChander Marwaha<\/a> ((1974) 3 SCC 220 : 1973 SCC (L&S) 488 : (1974) 1
\nSCR 165), Neelima Shangla v. State of Haryana<\/a> ((1986) 4 SCC 268 :
\n1986 SCC (L&S) 759), or Jatendra Kumar v. State of Punjab ((1985)
\n1 SCC 122 : 1985 SCC (L&S) 174 : (1985) 1 SCR 899) .\n<\/p>\n
5.\tThe
\nsame position is reiterated and followed by this Court in All India
\nSC & ST Employees  Assn. & Anr. vs. A. Arthur Jeen &
\nOrs.<\/a> [(2001) 6 SCC 380] and State of Orissa and Ors. Vs. Bhikari
\nCharan Khuntia and Ors. [(2003) 10 SCC 144].\n<\/p>\n
8.3\tThis
\nHon’ble Court has  in case of Vaja Mehulkumar Pitabhai & Anr. v.
\nState of Gujarat  & Others, reported in 2007 I CLR 1012 SCC (L&S)
\n235 held in Para.20 as under :\n<\/p>\n
 \tThis
\naspect has been examined by the Apex Court in Case of Rani Lakshmibai
\nKshetriya Gramin Bank Vs. Chand Beharia Kapoor and others reported in
\nAIR 1998 S.C. Page 3104, the relevant paras 9 and 12 are quoted as
\nunder:\n<\/p>\n
\t 9.\tComing
\nto the second question, it requires no detailed scrutiny and it is
\nwell established that inclusion of name in the list of successful
\ncandidates does not confer an indefeasible right to be appointed.  It
\nhas been so held in the Constitution Bench decision of this Court in
\ncase of Shankarsan Dash Vs. Union of India, said case the Court has
\ngone to the extent of following (at p. 1586 of AIR SCW):\n<\/p>\n
\t It
\nis not correct to say that if a number of vacancies are notified for
\nappointment and adequate number of candidates are found fit, the
\nsuccessful candidates acquire an indefeasible right to be appointed
\nwhich can not be legitimately denied.  Ordinarily the notification
\nmerely amounts to an invitation to qualified selection they do not
\nacquire any right to the post, the State is under no legal duty to
\nfill up all or any of the vacancies.\n<\/p>\n
\t12.\tThough
\nthe panel ordinarily remains alive for one year but in accordance
\nwith the guidelines of the Government of India, Ministry of Finance
\nit would be open to Board to extend the said period under intimation
\nto the Government in Banking Division.  In the case in hand the
\nresolution of the Board dated 28\/3\/1985 indicates that the life of
\nthe panel had been extended by for a further period of six months,
\nand therefore, after expiry of the said period it was not open for
\nthe Court to issue direction to appoint people from the said panel.\n<\/p>\n
\tTherefore,
\nthere is no substance, in the present petition which required any
\ninterference by this Court.  Accordingly, present petition is
\ndismissed.\n<\/p>\n
8.4\tThe
\nApex Court has examined aforesaid aspect, in case of Union of India
\n& Others v. K.V.Vijeesh,<\/a> reported in (1996) 3 SCC 139. Relevant
\nPara.6 is quoted as under :\n<\/p>\n
6.\tIn
\nthe  context of\t the facts  of the  instant case the only question
\nwhich falls  for determination in this appeal is whether a candidate
\nwhose name appears in the select list on the\tbasis of  a competitive
\nexamination acquires a right of appointment\tin Government  service in
\n an existing\tor a future vacancy.\t The above  question has  been
\nanswered by a Constitution Bench  of this  Court in  Shjankarsan
\nDash\t vs. Union of  India (AIR<\/a>  1991 SC  1612); [(1991) 3 SCC 47]
\nwith the following words:-\n<\/p>\n
 It
\nis not correct  to say that if a number of vacancies are\tnotified for
\nappointment and adequate number of candidates  are found  fit,  the
\nsuccessful candidates  acquire  an indefeasible right\t to be
\nappointed which   cannot    be   legitimately denied. Ordinarily the
\nnotification merely amounts  to an invitation to qualified candidates
\n to apply  for recruitment and  on their selection they do  not.
\nUnless  the\trelevant recruitment rules\tso indicate, the State is
\nunder no\t legal\tduty  to fill  up all  or\t  any\tof   the vacancies.
\nHowever,  it  does  not mean that the State has the licence of acting
\nin an  arbitrary manner. The decision  not to  fill\t up  the
\nvacancies had to be taken bona fide for appropriate  any  of  them
\nare filled up, the State  is bound  to respect the  comparative
\nmerit  of the candidates, as reflected at the recruitment    test,
\n and     no discrimination can be permitted.  (emphasis supplied) <\/p>\n
8.5\tRecently,
\nthe Apex Court has  examined aforesaid aspect, in case of State of
\nOrris & Anr. v. Rakishness Nada  & Others, reported in 2010
\n(6) Scale 126. Relevant Para.13 and 14 is quoted as under :\n<\/p>\n
 13.\tA
\nperson whose name appears in the select list does not acquire any
\nindefeasible right of appointment. Empaneling at the best is a
\ncondition of eligibility for purpose of appointment and by itself
\ndoes not amount to selection or create a vested right to be
\nappointed. The vacancies have to be filled up as per the statutory
\nrules and in conformity with the constitutional mandate.\n<\/p>\n
14.\tA
\nConstitution Bench of this Court in Shankarsan Dash Vs. Union of
\nIndia, AIR 1991 SC 1612, held that appearance of the name of a
\ncandidate in the select list does not give him a right of
\nappointment. Mere inclusion of candidate s name in the select list
\ndoes not confer any right to be selected, even if some of the
\nvacancies remain unfilled. The candidate concerned cannot claim that
\nhe has been given a hostile discrimination. (see also Asha Kaul &
\nAnr. Vs. State of J & K & Ors., (1993) 2 SCC 573; Union of
\nIndia Vs. S.S.Uppal, AIR 1996 SC 2340; Bihar Public Service
\nCommission Vs. State of Bihar AIR 1997 SC 2280; Simanchal Panda Vs.
\nState of Orissa & Ors., (2002) 2 SCC 669; Punjab State
\nElectricity Board & Ors. Vs. Malkiat Singh (2005) 9 SCC 22; Union
\nof India & Ors. Vs. Kali Dass Batish & Anr. AIR 2006 SC 789;
\nDivisional Forests Officers & Ors. Vs. M. Ramalinga Reddy AIR
\n2007 SC 2226; Subha B. Nair & Ors. Vs. State of Kerala &
\nOrs., (2008) 7 SCC 210; Mukul Saikia & Ors. Vs. State of Assam &
\nOrs., (2009) 1 SCC 386; and S.S. Balu & Anr. Vs. State of Kerala
\n& Ors., (2009) 2 SCC 479).\n<\/p>\n
15.\tSelect
\nlist cannot be treated as a reservoir for the purpose of
\nappointments, that vacancy can be filled up taking the names from
\nthat list as and when it is so required. ….\n<\/p>\n
9.\tThe
\naforesaid decision is given by this Court in respect to retail outlet
\nfor Palanpur location where same and similar circumstances have been
\nexamined by this Court and petition filed by petitioner having same
\ngrievance against the cancellation of select list has been rejected.
\nIn view of above decision given by this Court in identical and
\nsimilar circumstances and decisions of Apex Court as referred above,
\ntherefore, the contention raised by learned advocate Mr.Desai cannot
\nbe accepted. It is merely a selection, which cannot give any legal
\nvested right to enforce when entire select list in respect of three
\nplaces   Hadala, Lathi and Maliya has been cancelled by respondent.
\nFor that, respondent Corporation is entitled to cancel such selection
\nif some irregularities and lapse on the part of administration  have
\nbeen found from the record on the basis of report received from
\nconcerned officer. Therefore, decision which has been taken by
\nrespondent cancelling the selection list in respect of aforesaid
\nthree places cannot consider to be an arbitrary decision or malafide
\nto favour some candidates, who have not been selected in earlier
\nselection. There is no specific instance  pointed out by petitioner
\nbefore this Court that such selection has been cancelled to favour
\nparticular person. Therefore, in light of this entire facts and
\ncircumstances, according to my opinion, decision which has been taken
\nby respondent Corporation being an objective decision, cannot
\nconsider to be arbitrary or malafide in respect to favour any person,
\nsuch selection has been cancelled. The entire procedure undertaken by
\nrespondent Corporation is transparent and proper accountability is
\nfixed at every stage. Even after cancelling the selection list, the
\nretail outlet is not awarded to any other candidate. No prejudice
\nwould be caused to any one.  The petitioner has also a chance to
\nagain prove herself and only after fresh interview, whosoever gets
\nhighest number of marks will get the award of retail outlet for
\nHadala location. The whole idea is to get the best out of the lot and
\none should not be declared best only on the basis of default
\ncommitted in scrutinizing applications by department which cannot be
\nconsidered to be merely default but such lapse is very substantive in
\nnature which denied legal right of applicants whose applications are
\nrejected and not call for interview only on that ground. The whole
\npetition based on vague allegations. For that, in support of it, no
\ncogent and convincing documents have been placed on record by
\npetitioner. Against which, respondent Corporation has given correct
\nreason on the basis of report received from concerned officer for
\ncancellation of select list.   Therefore, there is no substance in
\npresent petition. Accordingly, present petition is dismissed. Notice
\ndischarged.\n<\/p>\n
(H.K.RATHOD,J.)<\/p>\n
(vipul)<\/p>\n
\t\t   \u00a0\u00a0\u00a0<\/p>\n
\t\t   Top<\/p>\n","protected":false},"excerpt":{"rendered":"
Gujarat High Court Pushpaben vs Indian on 15 July, 2010 Author: H.K.Rathod,&Nbsp; Gujarat High Court Case Information System Print SCA\/5921\/2010 13\/ 21 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 5921 of 2010 ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16,8],"tags":[],"class_list":["post-121649","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nPushpaben vs Indian on 15 July, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/pushpaben-vs-indian-on-15-july-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Pushpaben vs Indian on 15 July, 2010 - 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