{"id":125113,"date":"2011-05-10T00:00:00","date_gmt":"2011-05-09T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/deepa-vs-indian-on-10-may-2011"},"modified":"2016-05-03T01:45:15","modified_gmt":"2016-05-02T20:15:15","slug":"deepa-vs-indian-on-10-may-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/deepa-vs-indian-on-10-may-2011","title":{"rendered":"Deepa vs Indian on 10 May, 2011"},"content":{"rendered":"
Gujarat High Court<\/div>\n
Deepa vs Indian on 10 May, 2011<\/div>\n
Author: Mr.S.J.Mukhopadhaya,&Nbsp;Honourable Mr.Justice Dave,&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\t \n\t \n\t \n\t \n\t\n\n\n \n\n\n\t \n\nLPA\/1099\/2010\t 11\/ 11\tJUDGMENT \n \n \n\n\t\n\n \n\nIN\nTHE HIGH COURT OF GUJARAT AT AHMEDABAD\n \n\n \n\n\n \n\nLETTERS\nPATENT APPEAL No. 1099 of 2010\n \n\nIn\n\n\n \n\nSPECIAL\nCIVIL APPLICATION No. 3537 of 2010\n \n\n \n\n\n \n\n \n \nFor\nApproval and Signature:  \n \nHONOURABLE\nTHE CHIEF JUSTICE MR. S.J. MUKHOPADHAYA \n\n \n\n \n \n\n\n \n\nHONOURABLE\nMR.JUSTICE ANANT S. DAVE\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\n\t\t\tbe referred 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 \n\nDEEPA\nGANPATBHAI PARMAR - Appellant(s)\n \n\nVersus\n \n\nINDIAN\nOIL CORPORATION LTD & 2 - Respondent(s)\n \n\n=================================================\n \nAppearance : \nMR\nBB NAIK Senior Advocate with MR PARTHIV A BHATT for Appellant(s) :\n1, \nMR MANISH R BHATT with MRS MAUNA M BHATT for Respondent(s) : 1\n- 2. \nMR MAKBUL I MANSURI for Respondent(s) :\n3, \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\tTHE CHIEF JUSTICE MR. S.J. MUKHOPADHAYA\n\t\t\n\t\n\t \n\t\t \n\t\t\t \n\n \n\n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\nand\n\t\t\n\t\n\t \n\t\t \n\t\t\t \n\n \n\n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\nHONOURABLE\n\t\t\tMR.JUSTICE ANANT S. DAVE\n\t\t\n\t\n\n \n\n \n \n\n\n \n\n \n \n\n\n \n\nDate\n: 10\/05\/2011 \n\n \n\nCAV\nJUDGMENT \n<\/pre>\n
(Per
\n: HONOURABLE MR.JUSTICE ANANT S. DAVE)<\/p>\n
\tThis
\nappeal under clause 15 of the Letters Patent arises out of oral
\njudgment dated 21.04.2010 delivered by the learned Single Judge in
\nSpecial Civil Application No.3537 of 2010 by which prayer for
\nissuance of direction to respondent – Indian Oil Corporation to
\nissue a letter of intent for grant of retail outlet dealership [for
\nshort, “the outlet”] of the respondent Corporation at
\nPalanpur in the State of Gujarat to the petitioner, who was placed at
\nSr. No.1 in the list of successful selectees prepared by the
\nSelection Committee of the respondent corporation, pursuant to the
\npublic advertisement issued by the Corporation in daily newspapers,
\nas per guidelines issued by the respondent – Corporation, is
\nrefused.\n<\/p>\n
2.\tFor
\nthe sake of convenience, brief facts, as admitted by the respondent –
\nIOC in its affidavit reply, are reproduced herein below:\n<\/p>\n
[1]\tAn advertisement was
\nreleased in Times of India, Ahmedabad, dated 31.07.2009, and Divya
\nBhaskar, Ahmedabad, dated 09.08.2009 for selection of dealers under
\nSC\/ST categories for Gujarat State.\n<\/p>\n
[2]\tNo amendment \/
\ncorrigendum was released after the advertisement.\n<\/p>\n
[3]\tThe last date for
\nreceipt of application was 07.09.2009.\n<\/p>\n
[4]\tPalanpur, District
\nBanaskantha, Gujarat, is one of the locations in the said
\nadvertisement under “SC” category.\n<\/p>\n
[5]\tApplications received by
\ndue date were scrutinized and eligible and ineligible applications
\nwere segregated as per procedure.\n<\/p>\n
[6]\tSelection process by way
\nof nomination of Level-I \/ Level-II committees are governed by Policy
\nCircular No.90-10\/2005(RO\/6002) dated 10.01.2005.\n<\/p>\n
[7]\tLevel-I committee awards
\nmarks to eligible applicants based on documents submitted along with
\nthe applications.  There is no involvement \/ presence of applicants
\nduring in Level-I.\n<\/p>\n
[8]\tLevel-II Committee
\npersonally interviews the candidates and declares the merit panel
\nbased on marks awarded by Level-I committee and marks secured during
\ninterview.  Merit panel and marks secured by each candidate under
\nvarious parameters are displayed at the venue of the interview on the
\nsame day of conclusion of personal interviews.\n<\/p>\n
[9]\tOut of the total
\neligible marks of 40 for SC\/ST category dealer selection, 31 marks
\nare for Level-I committee and balance 9 marks are for level-II
\ncommittee. The minimum marks required for selection is 50% of total
\neligible marks.\n<\/p>\n
[10]\tOut of the total six
\nlocations advertised under ADO, after completion of Level-I markings,
\ninterviews were held for 5 locations during the period from 14 to
\n19.12.2009 at Ahmedabad Divisional Office.\n<\/p>\n
[11]\tFor all the five
\nlocations, the Level-I committee was the same. Similarly, the
\nnominated Level-II committee conducted interviews for all the five
\nlocations and declared the merit panel along with marks.\n<\/p>\n
[12]\tFor the location
\nPalanpur, the personal interviews were held on 16 & 17-12.2009
\nand the merit panel and marks were declared on 17.12.2009.  The merit
\npanel for the location is under:-\n<\/p>\n
\t[i]\tNo.1 – Smt.\n<\/p>\n
Geetaben Ganpatbhai Parmar<\/p>\n
\t[ii]\tNo.2 – Shri
\nKalpeshkumar Hiralal Vania<\/p>\n
\t[iii]\tNo.3 – Shri
\nJignesh Khemchandbhai Patel<\/p>\n
[13]\tAs per procedure, with
\nthe approval of competent authority, FIR for the No.1 candidate in
\nthe merit panel was carried out.  In the meantime, the respondent
\nreceived complaint \/ representation from the No.2 candidate in the
\nmerit panel, Shri Kalpeshkumar Hiralal Vania, dated 24.12.2009 and
\n04.01.2010. As per procedure, complaints \/ representation was
\ninvestigated by a senior officer nominated by competent authority.\n<\/p>\n
[14]\tThe nominated officer
\ninvestigated the complaints \/ representation after considering the
\nsame, vide approval Ref.G S O\/RO\/SC dated 22.01.2010, Executive
\nDirector – Gujarat State Office approved cancellation of the
\nentire selection process and merit panel for the location Palanpur
\nand to conduct re-interview for the location.\n<\/p>\n
3.\tLearned
\nSingle Judge has extensively dealt with the contentions raised by the
\nlearned counsel for the parties, grounds of challenge and defense
\nraised therein. The following main contentions were raised by learned
\ncounsel for the petitioner:-\n<\/p>\n
[a]\tThat once a selection
\nprocess was completed, as per the guidelines issued by the respondent
\nCorporation and a candidate is selected and placed at Sr. No.1 at
\nmerit panel, cancellation of whole selection without affording
\nopportunity of hearing to the selected candidate viz. the petitioner
\nwas contrary to principles of natural justice and an opportunity of
\nhearing ought to have been given to the petitioner before taking such
\na decision.\n<\/p>\n
[b]\tNo in-depth
\ninvestigation was carried out by respondent Corporation and no
\nstatement of the petitioner was recorded.  The above investigation
\nwas nothing but a camouflage to deny the petitioner grant of
\ndealership for retail outlet.\n<\/p>\n
[c]\tThere was uniformity by
\nthe Selection Committee for all 15 retail outlets for which
\ndealership was awarded and only with a view to favour the candidate
\nat Sr. No.2, so-called investigation was carried out.\n<\/p>\n
[d]\tThat as per the terms
\nand conditions of the brochure guidelines, clause 10(e) provided
\nthat, originals of the Affidavits and self attested copies of the
\nother supporting documents should be submitted along with the
\ncompleted application form duly  signed.  Further, policy circular
\nNo.90-10\/2005 issued by the Corporation provided evaluation for
\ndealership selection procedure.   Clause 5 of the said policy
\ncircular also mandated submission of attested copies of documents
\nalong with application and if any document submitted by the applicant
\nwithout signing or attesting the same, such document was not to be
\nconsidered by the Selection Committee Level-I and only zero marks was
\nto be awarded in such a case.\n<\/p>\n
[e]\tSince there was
\ndeviation by respondent Corporation with regard to uniform
\napplicability of the policy in the case of petitioner, such decision
\nwas arbitrary, unreasonable, discriminatory and violative of Articles
\n14 and 19 of the Constitution of India and required to be quashed and
\nset aside.\n<\/p>\n
\tPer contra, learned counsel
\nfor the Corporation defended such action on the part of the
\nrespondent – Corporation.  Learned counsel placed heavy reliance on
\nthe advertisement for inviting applications and submitted that
\ncancellation of entire selection process, preparation of merit panel
\nand to conduct re-interview of the location had no consequence and to
\nbring more transparency all eligible candidates were invited for
\ninterview.  It was further contended that selectee had no right for
\nawarding of dealership and discretion did vest with the respondent –
\nCorporation.  It was contended that as per the clause 10(1) of
\nadvertisement, it was only an application and not an offer of
\ndealership and further when a complaint was received in time from an
\naggrieved person, Corporation was duty bound to investigate it and
\nthe report was sent to Executive Director of Gujarat State, who
\nformed an opinion that awarding of zero marks was prejudicial to all
\nthe candidates on the ground that it was not signed or attested and,
\ntherefore, decision of the Corporation was taken in overall interest
\nof the candidates as well as the Corporation.  Learned counsel also
\nemphasized that power of judicial review will not be permitted to be
\ninvoked to protect private interest at the cost of public interest or
\nto decide contractual disputes and the tenderor or contractor with a
\ngrievance can always seek damages in civil court in judicial review.
\nIn contractual matters, a writ court can only interfere only when
\nprocess adopted or decision made by the authority is malafide or
\nintended to favour someone or whether the decision making process is
\nirrational, arbitrary or the authority had no power to take such a
\ndecision or larger public interest is affected.\n<\/p>\n
4.\tLearned
\nSingle Judge noticed the moot question before the court was to decide
\nas to whether awarding of zero marks for the project report, when it
\nwas not signed by the candidate, was justified or not and on
\ncomplaint being made by the aggrieved party, to cancel the select
\nlist is in violation of the policy framed by the IOC. The learned
\nSingle Judge also referred to Circular No.90-10\/2005 dated 10.10.2005
\nand ultimately found that various clauses of the policy circular give
\nseparate identification to the project report and it is different
\nfrom the documents, which are referred to clause 5 and  this would
\nlead to believe that when the project report is submitted as it is,
\nit may not be required to be signed and if such a project report is
\nnot signed same shall not be considered as furnishing of an unsigned
\ndocument.   The reasonable belief of the candidate when he has
\nsubmitted an unsigned project report that this being not a document
\nmeaning thereby not a copy of the original document, it is not
\nrequired to be signed and when the Investigating Officer took the
\nview that it is not justified to ignore such project report, which is
\nnot signed, the court should not interfere in such decision and with
\nregard to cancellation of select list and discretion on the part of
\nthe Corporation that in case of awarding zero marks with regard to
\nselection procedure adopted for outlets other than Palanpur there is
\nnothing wrong if such selection lists were not cancelled by the
\nrespondent – Corporation.  Learned Single Judge also considered
\nthat clauses of the circular had two parts, some of the clauses were
\nsubstantive while others were procedural and even if a procedural
\naberration, which may not amount to error in re-assessment on
\ninvestigation by the Investigating Officer or it may cause some
\nprejudice to the petitioner there was no basis for accepting the
\nallegation that the exercise was undertaken only with a view to
\nfavour the candidate at Sr. No.2. The learned Single Judge after
\nconsidering overall aspects of the matter and judgments of the Apex
\nCourt, dismissed the petition.\n<\/p>\n
5.\tLearned
\ncounsel for the appellant re-agitated grounds of challenge to the
\ndecision of IOC raised before the learned Single Judge and further
\nvehemently submitted that the learned Judge erred in interpreting
\nclause 10(e) of the selection Policy as mentioned in the brochure,
\nwhich mandated about attestation of the documents and the policy
\ncircular No.90-10\/2005 dated 10.10.2005 with regard to selection of
\npetrol \/ diesel retail outlets, which was applied uniformly not only
\nin the State of Gujarat but all over the country.  It is further
\nsubmitted that since one of the candidates, who was assigned zero
\nmarks, has not submitted attested project report, interpretation of
\npolicy to favour such candidate is contrary to the law.  Besides, the
\nreport was not sent to the Head Office and if such an interpretation
\nis to be advanced and to be believed for one outlet, it was incumbent
\nupon the respondent to cancel the interview of all 15 locations \/
\noutlets and to re-interview all the candidates after assigning marks
\non the basis of the document though not attested by the candidates.
\nTherefore, it is submitted that the order impugned deserves to be
\nquashed and set aside and consequential order of the learned Single
\nJudge also deserves to be dismissed.\n<\/p>\n
6.\tMr.\n<\/p>\n
Bhatt, learned advocate for the respondent – Corporation,
\nreiterated submissions made before the learned Single Judge and also
\ndrawn attention of this Court to the public advertisement issued in
\nnewspapers, detailed procedure followed by the Corporation, role of
\nthe Selection Committee at Levels I & II and further affidavits
\nfiled in this appeal and submitted that no error much less error of
\nlaw appears in the oral judgment delivered by the learned Single
\nJudge, which calls for any interference by Appellate Bench and
\naccordingly the appeal deserves to be rejected.  Learned counsel for
\nthe respondent extensively referred to the findings of learned Single
\nJudge from para 21 onwards of the impugned judgment and submitted
\nthat rejection of the writ petition is based on correct
\ninterpretation of clauses of circular and policies of the respondent\n<\/p>\n
– Corporation and by applying the law declared by the Apex
\nCourt in various decisions referred to in the impugned judgment,
\nappeal be rejected.  Learned advocate for the respondent No.3
\naccepted and adopted the submissions made by Mr. Bhatt, learned
\nSenior Advocate for the respondent No.2 – Corporation.\n<\/p>\n
7.\tHaving
\nheard learned counsel for the parties and on perusal of the record,
\nwe are of the view that learned Single Judge has committed an error
\nwhile interpreting clause 5 of the Circular No.90-10\/2005 and clause
\n10(e) of brochure \/ guidelines for selection of petrol \/ diesel
\noutlets, which mandated that self-attested copies of all other
\nsupporting documents should be submitted along with completed
\napplication form duly signed and also originals of the affidavits.
\nFor necessary reference, clause 5 of Circular dated 10.10.2005 and
\nclause 10(e) of brochure \/ guidelines for selection of petrol\/diesel
\noutlets, are reproduced herein below:\n<\/p>\n
“5.\tThe above marks
\nwill have to be awarded on the basis of attested copies of the
\ndocuments submitted along with the application as original documents
\nare to be brought by the candidates at the time of interview. All the
\ndocuments enclosed with the application will be serially numbered and
\nsigned by each Level-I committee member”\n<\/p>\n
“10(e)\t\tOriginals
\nof the Affidavits and self attested copies of the other supporting
\ndocuments should be submitted along with the completed application
\nform duly signed”\n<\/p>\n
8.\tThus,
\nthe application to be submitted by the candidate is not only to be
\nsigned but copies of the documents submitted along with application
\nare required to be attested. The word document is not to be
\ninterpreted in a narrow sense as it is understood ordinarily but it
\nhas wider connotation and any supporting material in the form of
\ndocument along with originals of the affidavits were to be attested
\nby a candidate.  In the facts of this case, admittedly, private
\nrespondent No.3 has not attested its project report and awarding zero
\nmarks by the Selection Committee at Level-I could not have been
\ninterpreted as incorrect procedure adopted by the Committee inasmuch
\nas the Committee had strictly adhered to plain, simple and natural
\ninterpretation of clause 5 of circular dated 10.10.2005 and clause
\n10(e) of the brochure \/ guidelines of the selection of petrol \/
\ndiesel outlet.  It is further evident that cancellation of selection
\nis qua only Palanpur outlet, though similar procedure was followed by
\nthe IOC for other all 15 outlets, where zero marks was awarded in
\nabsence of attestation of documents, including project report, such a
\ntreatment of IOC in case of Palanpur outlet only would amount to
\nclear cut discrimination with regard to application of the policy
\nuniformly and will be hit by Article 14 of the Constitution of India
\nand being discriminatory deserves to be quashed and set aside.\n<\/p>\n
9.\tBy
\nvarious orders, we have directed the respondent Corporation to
\nproduce on record application of 3rd respondent along with
\nproject report, but in spite of several opportunities given to
\nrespondent – Corporation, no such report was produced.  Though
\nwe may not draw any adverse interference, but at the same time,
\nrespondent – IOC has failed to justify as to why discriminatory
\ntreatment was given to the appellant – petitioner, who was
\nselected and placed at Sr. No.1 in the merit list when nothing
\nadverse was found against him.  Therefore, we are of the opinion that
\nthe appellant was treated unfairly and unreasonably by the
\nrespondent, more particularly, by one of the Executive Director at
\nZonal level and the said action needs to be set right.  The decisions
\nof the Apex Court relied on by the learned Single Judge with regard
\nto power of judicial review in a contractual matter and law laid down
\ntherein by Their Lordships of the Apex Court, we are in respectful
\nagreement, but in view of the facts  stated and discussed by us in
\npreceding paragraphs, those decisions may not be applicable to the
\nfacts of the present case.\n<\/p>\n
\tIn
\nview of the above, order dated 21.04.2010 passed by the learned
\nSingle Judge in Special Civil Application No.3537 of 2010 is hereby
\nquashed and set aside and the respondent – Corporation is
\ndirected to issue a letter of intent for grant of retail outlet
\ndealership of the respondent-Corporation at Palanpur within a period
\nof two weeks from the date of the receipt of the writ of this order.\n<\/p>\n
\tWith
\nthe aforesaid, this appeal is allowed.\n<\/p>\n
[S.J.Mukhopadhaya,
\nC.J.]<\/p>\n
     \t[Anant S. Dave, J.]<\/p>\n
*pvv<\/p>\n
\t\t   \u00a0\u00a0\u00a0<\/p>\n
\t\t   Top<\/p>\n","protected":false},"excerpt":{"rendered":"
Gujarat High Court Deepa vs Indian on 10 May, 2011 Author: Mr.S.J.Mukhopadhaya,&Nbsp;Honourable Mr.Justice Dave,&Nbsp; 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 […]<\/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-125113","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nDeepa vs Indian on 10 May, 2011 - 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\/deepa-vs-indian-on-10-may-2011\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Deepa vs Indian on 10 May, 2011 - 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