{"id":205996,"date":"2010-04-21T00:00:00","date_gmt":"2010-04-20T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/whether-vs-indian-on-21-april-2010-2"},"modified":"2018-08-23T11:49:42","modified_gmt":"2018-08-23T06:19:42","slug":"whether-vs-indian-on-21-april-2010-2","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/whether-vs-indian-on-21-april-2010-2","title":{"rendered":"Whether vs Indian on 21 April, 2010"},"content":{"rendered":"
Gujarat High Court<\/div>\n
Whether vs Indian on 21 April, 2010<\/div>\n
Author: K.A.Puj,&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\n\n \n\n\n\t \n\nSCA\/3537\/2010\t 34\/ 34\tJUDGMENT \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. 3537 of 2010\n \n\n \n \nFor\nApproval and Signature:  \n \nHONOURABLE\nMR.JUSTICE K.A.PUJ \t\t\tSd\/- \n===================================\n \n\t  \n\t \n\t \n\t \n\t\t \n\t\t\t \n\t\t\t\t \n\n1.\n\t\t\t\n\t\t\t \n\t\t\t\t \n\nWhether\n\t\t\t\tReporters of Local Papers may be allowed to see the judgment ?\n\t\t\t\n\t\t\t \n\t\t\t\t \n\nYES\n\t\t\t\n\t\t\n\t\n\t \n\t\t \n\t\t\t \n\t\t\t\t \n\n2.\n\t\t\t\n\t\t\t \n\t\t\t\t \n\nTo\n\t\t\t\tbe referred to the Reporter or not ?\n\t\t\t\n\t\t\t \n\t\t\t\t \n\nYES\n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\t\t\t\t \n\n3.\n\t\t\t\n\t\t\t \n\t\t\t\t \n\nWhether\n\t\t\t\ttheir Lordships wish to see the fair copy of the judgment ?\n\t\t\t\n\t\t\t \n\t\t\t\t \n\nNO\n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\t\t\t\t \n\n4.\n\t\t\t\n\t\t\t \n\t\t\t\t \n\nWhether\n\t\t\t\tthis case involves a substantial question of law as to the\n\t\t\t\tinterpretation of the constitution of India, 1950 or any order\n\t\t\t\tmade thereunder ?\n\t\t\t\n\t\t\t \n\t\t\t\t \n\nNO\n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\t\t\t\t \n\n5.\n\t\t\t\n\t\t\t \n\t\t\t\t \n\nWhether\n\t\t\t\tit is to be circulated to the civil judge ?\n\t\t\t\n\t\t\t \n\t\t\t\t \n\nNO\n\t\t\t\n\t\t\n\t\n\n \n\n===================================\n \n\nDEEPA\nGANPATBHAI PARMAR - Petitioner\n \n\nVersus\n \n\nINDIAN\nOIL CORPORATION LTD & 1 - Respondents\n \n\n=================================== \nAppearance\n: \nMR B B NAIK,\nSenior Advocate WITH MR\nPARTHIV A BHATT for Petitioner. \nMR M R BHATT, Senior Advocate WITH\nMRS MAUNA M BHATT for\nRespondents. \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 K.A.PUJ\n\t\t\n\t\n\n \n\nDate\n: 21\/04\/2010 \nORAL JUDGMENT<\/pre>\n
\tThe petitioner
\n\thas filed this petition under Article 226 of the Constitution of
\n\tIndia praying for the direction to the respondents to issue a letter
\n\tof Intent for grant of Retail Outlet Dealership of the respondent
\n\tCorporation at Palanpur which is at Sr. No.1 of the advertisement
\n\tissued by the respondent Corporation on 31.07.2009 in ‘The Times of
\n\tIndia’ and on 09.08.2009 in ‘Divya Bhaskar’ and to grant Dealership
\n\tof Retail Outlet at Palanpur as per the guidelines issued by the
\n\trespondent.  The petitioner has also prayed for an interim relief
\n\trestraining the respondents from undertaking fresh selection process
\n\tfor grant of  Retail Outlet Dealership of the respondent Corporation
\n\tat Palanpur.\n<\/p>\n
\tThis Court has
\n\tissued notice on 23.03.2010.  On 01.04.2010, further order was
\n\tpassed by this Court recording the fact that the respondent
\n\tCorporation has produced on record of this petition certain
\n\tdocuments as referred to in the affidavit-in-reply.  A grievance was
\n\traised by the petitioner that though certain documents are referred
\n\tto in the affidavit-in-reply, the same were neither produced nor
\n\tcopies thereof were given to the petitioner.  Accordingly, copies
\n\tare also given to the petitioner.  Affidavit-in-rejoinder is filed
\n\tby the petitioner on 05.04.2010.\n<\/p>\n
\tOn 08.04.2010,
\n\tthe respondent was further permitted to produce on record the Policy
\n\tdated 10.10.2005, complaint given by candidate at Sr. No.2 and
\n\tInquiry Officer’s report as well as the decision taken by the
\n\tExecutive Director.\n<\/p>\n
\tIt is the case
\n\tof the petitioner that the respondent Corporation, through
\n\tadvertisements invited applications for appointment of Dealers for
\n\tRetail Outlet Dealership for 15 places situated in Gujarat.  All the
\n\tDealerships were reserved for Schedule Caste \/ Schedule Tribe and 4
\n\tDealerships were reserved for women out of SC \/ ST.  On 01.09.2009,
\n\tthe petitioner submitted an application in pursuance of the said
\n\tadvertisement for appointment as a Dealer of the Retail Outlet
\n\tDealership situated at Palanpur, which is at Sr. No.1 of the said
\n\tadvertisement.  The respondent No.2 issued letter dated 27.11.2009
\n\tcalling the petitioner for personal interview on 17.12.2009 at 10.00
\n\ta.m. at the Ahmedabad Divisional office.\n<\/p>\n
\tIt is also the
\n\tcase of the petitioner that as per the result of the proceeding of
\n\tthe Selection Committee with marks signed under various heads as per
\n\tthe guidelines, the petitioner has obtained highest grade and is
\n\tselected at Sr. No.1, whereas Kalpesh H. Vania was placed at Sr.
\n\tNo.2 and Jignesh K. Patel was placed at Sr. No.3 for grant of Retail
\n\tOutlet Dealership of the respondent Corporation at Palanpur.
\n\tThereafter, field verification of the petitioner was made by the
\n\tofficers of the respondent Corporation and in that field
\n\tverification also, since nothing was heard from the respondent
\n\tCorporation, the petitioner wrote a letter dated 12.03.2010
\n\trequesting the respondent Corporation to issue a Letter of Intent to
\n\tthe petitioner.  By letter dated 15.03.2010, the petitioner was
\n\tinformed by the respondent Corporation that the respondent
\n\tCorporation has received certain complaints regarding selection
\n\tprocess adopted for Palanpur location and the respondent Corporation
\n\thas investigated the said complaint and the respondent Corporation
\n\thas found that there are certain lapses in the selection process
\n\tfollowed for Palanpur Retail Outlet and in view of the same, the
\n\tinterview process conducted \/ merit panel prepared for Palanpur
\n\tlocation has been cancelled and fresh interview is being arranged.\n<\/p>\n
\tBeing
\n\taggrieved by the said decision of the respondent Corporation, the
\n\tpetitioner has filed the present petition invoking the writ
\n\tjurisdiction under Article 226 of the Constitution of India.\n<\/p>\n
\tMr. B. B.\n<\/p>\n
\tNaik, learned Senior Advocate appearing with Mr. Parthiv Bhatt for
\n\tthe petitioner has submitted that the letter dated 15.03.2010
\n\tcancelling the interview process conducted \/ merit panel prepared
\n\tfor Palanpur location only for awarding Dealership of Retail Outlet
\n\tof the respondent Corporation is absolutely illegal, unlawful and
\n\timproper.  Once the selection process is completed as per the
\n\tguidelines issued by the respondent Corporation and a candidate is
\n\tselected, the respondent Corporation cannot cancel the said
\n\tselection without affording an opportunity of hearing to the
\n\tselected candidate i.e. the petitioner.  It is the bare requirement
\n\tof the principles of natural justice that the person who is likely
\n\tto be affected by the decision of the authority is required to be
\n\theard before taking a decision adverse to him \/ her.  In the present
\n\tcase, no opportunity of hearing was given to the petitioner.  Not
\n\tonly that, no indepth investigation is carried out by the
\n\trespondents as no statement of the petitioner is recorded during the
\n\tso-called investigation.  The so-called investigation is a
\n\tcamouflage to deny the petitioner grant of Dealership for a Retail
\n\tOutlet of the respondent Corporation at Palanpur location and the
\n\tsame has been done only with a view to favour some one who is not
\n\tselected at Sr. No.1 by the Selection Committee.  The same Selection
\n\tCommittee has selected suitable candidates for all 15 Retail Outlets
\n\tfor which Dealership was to be awarded and only in the case of
\n\tRetail Outlet of Palanpur location, the so-called investigation was
\n\tcarried out by the respondents and the said selection was cancelled
\n\tby the respondents.\n<\/p>\n
\tMr. Naik has
\n\tfurther submitted that even in the letter dated 15.03.2010 issued by
\n\tthe Deputy General Manager (Retail Sales) of the respondent
\n\tCorporation, no irregularity or illegality committed in the
\n\tselection process has been enumerated.  Not even a word is stated by
\n\tthe Deputy General Manager of the respondent Corporation in the said
\n\tletter as to what was the complaint against the selection of
\n\tcandidate for Retail Outlet at Palanpur location and what are the
\n\tfindings arrived at by the respondents after carrying out the
\n\tinvestigation in the complaint.  Mr. Naik, therefore, submitted that
\n\tthe apprehension expressed by the petitioner in her letter dated
\n\t12.03.2010 has come true that to favour someone, process of
\n\tselection was cancelled by the respondents without there being any
\n\tlegal, valid and lawful basis for the same.  He has, therefore,
\n\tsubmitted that the action of the respondent Corporation is highly
\n\tarbitrary, unreasonable and capricious and is also violative of the
\n\tprovisions of Article 14 of the Constitution of India.  He has,
\n\ttherefore, submitted that the petition deserves to be admitted and
\n\tthe respondent Corporation is required to be restrained by an
\n\tinterim order of this Court from undertaking fresh selection process
\n\tfor grant of Retail Outlet Dealership at Palanpur.\n<\/p>\n
\tMr. M. R.\n<\/p>\n
\tBhatt, learned Senior Advocate appearing for the respondents has
\n\tsubmitted that in order to maintain complete transparency in the
\n\tselection procedure, the respondents have acted strictly in
\n\tconsonance with the terms and conditions of the public notice.  As
\n\tper Clause 10 (1) of advertisement, this was only an application and
\n\tnot an offer of Dealership.  As per Clause 10 (n), grievance having
\n\tbeen received within the time frame and upon investigation being
\n\tcarried out, it was thought fit to cancel the selection for the
\n\tPalanpur selection.  Since no malafides have been alleged and
\n\tproved, the Court should not entertain this petition.  He has
\n\tfurther submitted that as per Clause 10 (n), after the final
\n\tinterview, the merit panel is to be displayed.  Grievance of the
\n\tcomplainant, if any, can be submitted within a time frame of 30 days
\n\tfrom the date of display of merit panel.  In the instant case, the
\n\tmerit panel was displayed on 17.12.2009.  The candidate at Sr. No.2
\n\tof the merit panel gave complaint dated 24.12.2009 which was
\n\tfollowed by another complaint dated 04.01.2010.  In the said
\n\tcomplaints, grievance was made that for the parameter of Project
\n\tReport, zero marks were given despite the fact that the Project
\n\tReport was submitted along with his application.  As the complaint
\n\twas received within the time permissible, as per the procedure, the
\n\tsame was investigated by an Officer nominated by the Gujarat State
\n\toffice.  The Investigating Officer gave a report stating that due to
\n\tinadvertence, in respect of this location, despite Project Report
\n\thaving been filled by various candidates, zero marks were given.
\n\tThis incorrect allotment of zero marks was due to erroneous reading
\n\tof Clause 10 of the public notice.  Based upon the investigation
\n\treport, the Executive Director of the Gujarat State Office formed an
\n\topinion that awarding of zero marks was prejudicial to all the
\n\tcandidates who had submitted the Project Reports along with their
\n\tapplications.  In this view of the matter, to give opportunity to
\n\tall the candidates, the impugned decision has been taken which is
\n\tnot only in the interest of candidates but also to substantiate
\n\ttransparency element in the selection process.\n<\/p>\n
\tBy enumerating
\n\tthe sequence of events, Mr. Bhatt has further submitted that after
\n\treceipt of the applications by due date, the same were scrutinized
\n\tand eligible and ineligible applications were segregated as per
\n\tprocedure.  Selection process by way of nomination of Level 1 \/
\n\tLevel 2 Committees are governed by Policy Circular dated 10.01.2005.
\n\t Level 1 Committee awards marks to eligible applicants based on
\n\tdocuments submitted along with the applications.  There is no
\n\tinvolvement \/ presence of applicants during the selection process
\n\tundertaken by Level 1 Committee.  Level 2 Committee personally
\n\tinterviews the candidates and declares the merit panel based on
\n\tmarks awarded by Level 1 Committee and marks secured during
\n\tinterview.  Merit panel and merit secured by each candidate under
\n\tvarious parameters are displayed at the venue of the interview on
\n\tthe same day of conclusion of personal interviews.  Out of the total
\n\teligible marks of 40, for SC \/ ST category Dealership selection, 31
\n\tmarks are for Level 1 Committee and balance 9 marks are for Level 2
\n\tCommittee.  The minimum marks required for selection is 50% of total
\n\teligible marks. Out of the total 6 locations advertised under ADO,
\n\tafter completion of Level 1 markings, interviews were held for 5
\n\tlocations during the period from 14 to 19.12.2009 at the Ahmedabad
\n\tDivisional Office.  For all the five locations, Level 1 committee
\n\twas the same.  Similarly, the nominated Level 2 Committee conducted
\n\tinterviews for all the five locations and declared the merit panel
\n\talong with marks.  For the location of Palanpur, the personal
\n\tinterviews were held on 16 & 17.12.2009 and the merit panel and
\n\tmarks were declared on 17.12.2009.  As per merit panel for the
\n\tlocation, the petitioner stood at Sr. No.1.  As per the procedure,
\n\twith the approval of the Competent Authority, field investigation
\n\treport for the No.1 candidate in the merit panel was carried out.
\n\tIn the meantime, the respondent received complaint \/ representation
\n\tfrom the respondent No.2 candidate in the merit panel on 24.12.2009
\n\tand 04.01.2010.  As per the procedure, complaints \/ representations
\n\twere investigated by a Senior Officer nominated by Competent
\n\tAuthority.\n<\/p>\n
\tMr. Bhatt
\n\tfurther submitted that the nominated Officer investigated the
\n\tcomplaint \/ representation and submitted his report on 20.01.2010
\n\tand after considering the same, vide approval dated 22.01.2010,
\n\tExecutive Director, Gujarat State Office approved the cancellation
\n\tof the entire selection process and merit panel for the location
\n\tPalanpur and to conduct re-interview for the location.  The
\n\tpetitioner has been informed of management decision vide letter
\n\tdated 15.03.2010.  Mr. Bhatt, therefore, submitted that the
\n\tcomplaint of the second empanelled candidate having been received
\n\twithin the time frame and upon the same being investigated, a
\n\tdecision has been arrived at that the marks given to the second
\n\tempanelled candidate were not proper.  He has further submitted that
\n\tthe selection process was carried out by entire selection
\n\tCommittees, for 15 location in Gujarat.  The petitioner has failed
\n\tto point out any specific rule not being complied with by any of the
\n\tmembers of the Selection Committee.  Only with regard to subject
\n\tlocation, when the correct facts were brought to the notice and upon
\n\tinvestigation, having been found to be correct, the impugned
\n\tdecision has been rendered.  He has, therefore, submitted that the
\n\tpetition is devoid of any merit and, therefore, deserves to be
\n\tdismissed with costs.\n<\/p>\n
\tIn support of
\n\this submissions, Mr. Bhatt has relied on the decision of the Hon’ble
\n\tSupreme Court in the case of Jagdish Mandal V\/s. State of Orissa
\n\tand others, (2007) 14 SCC 517 wherein it is held that when the
\n\tpower of judicial review is invoked in matters relating to tenders
\n\tor award of contracts, certain special features should be borne in
\n\tmind.  A contract is a commercial transaction.  Evaluating tenders
\n\tand awarding contracts are essentially commercial functions.
\n\tPrinciples of equity and natural justice stay at a distance.  If the
\n\tdecision relating to award of contract is bona fide and is in public
\n\tinterest, courts will not, in exercise of power of judicial review,
\n\tinterfere even if a procedural aberration or error in assessment or
\n\tprejudice to a tenderer, is made out.  The power of judicial review
\n\twill not be permitted to be invoked to protect private interest at
\n\tthe cost of public interest, or to decide contractual disputes.  The
\n\ttenderer or contractor with a grievance can always seek damages in a
\n\tcivil court.  The Court further held that before interfering in
\n\ttender or contractual matters in exercise of power of judicial
\n\treview, the Court should pose to itself the following questions :-\n<\/p>\n
\tWhether the
\n\tprocess adopted or decision made by the authority is mala fide or
\n\tintended to favour someone;\n<\/p>\n
 OR<\/p>\n
\tWhether the
\n\tprocess adopted or decision made is so arbitrary and irrational that
\n\tthe Court can say :  the decision is such that no responsible
\n\tauthority acting reasonably and in accordance with relevant law
\n\tcould have reached ;\n<\/p>\n
\tWhether the
\n\tpublic interest is affected.\n<\/p>\n
\t Mr. Bhatt
\n\tfurther relied on the decision of the Hon’ble Supreme Court in the
\n\tcase of Siemons Public Communication Pvt. Ltd. And Another   V\/s.
\n\tUnion of India & Ors., AIR 2009 SC 1204 wherein while
\n\treiterating the above principles, the Court held that the Courts
\n\twill not exercise power of judicial review and interfere even if it
\n\tis accepted for the sake of argument that there is a procedural
\n\tlacuna.\n<\/p>\n
\tBased on the
\n\tabove factual scenario as well as the settled legal position, Mr.
\n\tBhatt has submitted that the petition deserves to be dismissed.\n<\/p>\n
\tSince in the
\n\taffidavit-in-reply and subsequent thereto, new documents were
\n\tproduced on record, Mr. Naik has taken the Court through the
\n\trejoinder along with certain further submissions based on those new
\n\tdocuments.  He has submitted that there is no dispute about the fact
\n\tthat after the interview, merit panel is to be displayed and
\n\tcomplaint, if any, against the same shall be submitted within a time
\n\tframe of 30 days from the date of display of merit panel.  He,
\n\thowever, submitted that subsequent to this, the process adopted by
\n\tthe respondents is not in accordance with the policy.  The
\n\tInvestigating Officer has not carried out the investigation in
\n\taccordance with the policy framed by the respondent Corporation.
\n\tThe Investigating Officer has come to the conclusion that the
\n\tSelection Committee has wrongly given zero marks against the Project
\n\tReport to the candidates who have not signed their Project Reports
\n\tas it is not compulsory to sign the Project Reports while submitting
\n\tthe same.  While observing this, the Investigating Officer has not
\n\tlooked into and considered the Policy framed by the respondent
\n\tCorporation which is applicable to all over the country in its
\n\tproper perspective.  The Policy Circular clearly provides that any
\n\tdocument submitted by the applicant without signing the same shall
\n\tnot be considered by the Selection Committee Level 1 and if it is to
\n\tbe evaluated and the marks are to be assigned, zero marks would be
\n\tassigned to the said document.  The said Policy is applicable all
\n\tover India and the same is followed in the selection of 15 sites
\n\tadvertised by the Gujarat office of the respondent Corporation for
\n\twhich interviews were held by the same Committee and even evaluation
\n\twas done by the same Committee.  In all the 15 sites, Selection
\n\tCommittee has considered the same standard and assigned zero marks
\n\tagainst the Project Reports to the candidates who have not signed
\n\tthe Project Reports.  He has cited certain instances for at least 4
\n\tsites which clearly show that wherever the candidates have not
\n\tsigned the Project Reports, they are assigned zero marks against the
\n\tmarks to be allotted to the Project Reports.  He has, therefore,
\n\tsubmitted that Gujarat State Office of the respondent Corporation
\n\tcannot interpret the said policy in a manner to oblige one of the
\n\tapplicants who had not stood at Sr. No.1 in the selection.  He has
\n\talso invited the attention of the Court to Clause 10 (e) of the
\n\tSelection of Petrol \/ Diesel Retail Outlet Dealership framed by
\n\trespondent Corporation which clearly provides that  Originals of
\n\tthe affidavits and self-attested copies of the other supporting
\n\tdocuments should be submitted along with the complete application
\n\tform, duly signed.   He has, therefore, submitted that all the
\n\tdocuments which are submitted along with the application are
\n\trequired to be signed by the candidates and if any document is not
\n\tsigned by the candidate, the same shall not be considered by the
\n\tSelection Committee and, if any marks are to be given against the
\n\tsaid document, the same will be zero marks as per the Policy
\n\tcontained in the Circular dated 10.10.2005.\n<\/p>\n
\tMr. Naik has
\n\tfurther submitted that since the question is of interpretation of
\n\tpolicy, the same has to be referred to the head office of the
\n\trespondent Corporation and not any Officer of the Gujarat State
\n\toffice of the Corporation can decide the same, when the Policy is
\n\tfollowed all over India by different Selection Committees appointed
\n\tby the respondent Corporation.  He has further submitted that the
\n\tofficer of the Gujarat State office nominated by the Corporation to
\n\tinvestigate the complaint is only a show made by the Gujarat State
\n\toffice of the Corporation to scrap the selection for Palanpur site
\n\tonly to oblige the candidate at Sr. No.2 for selecting him in fresh
\n\tinterview.  He has, therefore, submitted that the inquiry and the
\n\tdecision to carry out fresh selection is arbitrary, unreasonable,
\n\tcapricious and in colourable exercise of power and contrary to the
\n\tpolicy framed by the Corporation.  He has, therefore, submitted that
\n\tthe decision to hold fresh selection is required to be quashed and
\n\tset aside and the petitioner may be awarded Retail outlet at
\n\tPalanpur location forthwith.\n<\/p>\n
\tIn support of
\n\this submissions, Mr. Naik relied on the decision of the Apex Court
\n\tin the case of Kumari Shrilekha Vidyarthi and others V\/s. State
\n\tof U.P. and others, (1991) 1 SCC 212 wherein it is held that
\n\t\tevery State action, in order to survive, must not be susceptible to
\n\tthe vice of arbitrariness which is the crux of Article 14 and basic
\n\tto the rule of law, the system which governs us.  Arbitrariness is
\n\tthe very negation of the rule of law.  Conferment of the power
\n\ttogether with the discretion which goes with it to enable proper
\n\texercise of the power is coupled with the duty to shun arbitrariness
\n\tin its exercise and to promote the object for which the power is
\n\tconferred, which undoubtedly is public interest and not individual
\n\tor private gain, whim or caprice of any individual.  All persons
\n\tentrusted with any such power have to bear in mind its necessary
\n\tconcomitant which alone justifies conferment of power under the rule
\n\tof law.\n<\/p>\n
\tMr. Naik
\n\tfurther relied on the decision of the Hon’ble Supreme Court in the
\n\tcase of Ramana Dayaram Shetty V\/s. International Airport
\n\tAuthority of India and others, (1979) 3 SCC 489 which is the
\n\tbasic decision laying down the law on awarding of tenders, contracts
\n\tetc. and the exercise of the discretion by the authorities.\n<\/p>\n
\tMr. Naik
\n\tlastly relied on the decision of the Hon’ble Supreme Court in the
\n\tcase of ABL International Limited and another V\/s. Export Credit
\n\tGuarantee Corporation of India Limited and others, (2004) 3
\n\tSCC 553 wherein it is held that when an instrumentality of the
\n\tState acts contrary to public good and public interest, unfairly,
\n\tunjustly and unreasonably, in its contractual, constitutional or
\n\tstatutory obligations, it really acts contrary to the constitutional
\n\tguarantee found in Article 14 of the Constitution of India.
\n\tTherefore, once the State or an instrumentality of the State is a
\n\tparty, it has obligation in law to act fairly, justly and reasonably
\n\tto a contract which is the requirement of Article 14 of the
\n\tConstitution.\n<\/p>\n
\tBased on the
\n\tabove judgments and factual position, Mr. Naik has submitted that
\n\tthe petition may be entertained and interim protection may be
\n\tgranted or alternatively it should be allowed with a direction to
\n\tthe respondent Corporation to allot the Retail Outlet at Palanpur to
\n\tthe petitioner forthwith.\n<\/p>\n
\tHaving heard
\n\tlearned advocates appearing for the parties and having considered
\n\ttheir rival submissions in light of the provisions contained in the
\n\tadvertisement inviting applications for awarding Retail Outlet
\n\tDealership for various places including Palanpur and also in light
\n\tof the Policy Circular No.90-10\/2005 in respect of evaluation for
\n\tdealer selection and also in light of the decided case law on the
\n\tsubject, the Court is of the view that the moot question before the
\n\tCourt is to decide as to whether the awarding of zero marks for the
\n\tProject Report when it is not signed by the candidate is justified
\n\tand on complaint being made by the aggrieved party, to cancel the
\n\tselect list is in violation of the Policy framed by the respondent
\n\tCorporation.  Before addressing these two questions, it is necessary
\n\tto take into consideration the other provisions of the advertisement
\n\tas well as the Policy Circular No.90-10\/2005.  Clause 10 (l) of
\n\tadvertisement makes it clear that this was merely an application and
\n\tnot an offer of Dealership.  Once the selection list having been
\n\tprepared, it is to be displayed.  However, this final select list
\n\twould not confer any right on the candidate so selected as the
\n\taggrieved party shall have right to make complaint against such
\n\tfinal selection list within 30 days from the date of display of such
\n\tselection list.  When such a complaint is made by the aggrieved
\n\tparty within the period of 30 days, it is required to be
\n\tinvestigated as per the procedure laid down and if the grievance
\n\traised in the complaint is found to be justified, such a final list
\n\tmay be cancelled and fresh selection list is required to be
\n\tprepared.  Thus, simply because petitioner stood at Sr. No.1 in the
\n\tselection list, this fact by itself does not confer any right on the
\n\tpetitioner as the candidate at Sr. No.2 has raised a complaint
\n\twithin the period of 30 days from the date of display of the
\n\tselection 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
\tClause 4 of
\n\tthe Policy Circular No.90-10\/2005 deals with basis for marking.  It
\n\tstates that Level Committee 1 will scrutinize the applications and
\n\taward marks to the candidates in respect of the parameters, which
\n\tare based on documents.  The details are as under :-\n<\/p>\n
\t\t\t\tParameter<\/p>\n
Max.\n<\/p>\n
\t\t\t\tMarks<\/p>\n
Evaluation<\/p>\n
Capability
\n\t\t\t\tto provide land and infrastructures \/ facilities.\n<\/p>\n
35<\/span><\/p>\n
Based
\n\t\t\t\ton documents<\/p>\n
Capability
\n\t\t\t\tto provide finance.\n<\/p>\n
25<\/span><\/p>\n
Based
\n\t\t\t\ton documents<\/p>\n
Educational
\n\t\t\t\tQualification<\/p>\n
15<\/span><\/p>\n
Based
\n\t\t\t\ton documents<\/p>\n
Age<\/p>\n
04<\/span><\/p>\n
Based
\n\t\t\t\ton documents<\/p>\n
Capability
\n\t\t\t\tto generate business <\/p>\n
Tie
\n\t\t\t\tup with prospective customer.\n<\/p>\n
Project
\n\t\t\t\tReport for realizing sales potential.\n<\/p>\n
05<\/span><\/p>\n
03<\/span><\/p>\n
Production
\n\t\t\t\tof documents and affidavit from prospective customers.\n<\/p>\n
Project
\n\t\t\t\tReport<\/p>\n
Experience<\/p>\n
Retail
\n\t\t\t\ttrade of petroleum products.\n<\/p>\n
Other
\n\t\t\t\t\/ related petroleum trade\/transport \/ automobiles.\n<\/p>\n
Hospitality
\n\t\t\t\t\/ Service industry \/ FMCG <\/p>\n
Others<\/p>\n
04<\/span><\/p>\n
04<\/span><\/p>\n
03<\/span><\/p>\n
02<\/span><\/p>\n
01<\/span><\/p>\n
Based
\n\t\t\t\ton furnishing of documentary evidence to establish the relevant
\n\t\t\t\tservice of minimum 1 year.\n<\/p>\n
Total<\/p>\n
91<\/span><\/p>\n
\tIn the above
\n\tChart, against all columns, except the column of Project Report,
\n\tparameters are to be judged and evaluation is to be made on the
\n\tbasis of the documents produced.  Only against Project Report for
\n\treleasing 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
\tIt is also
\n\tnecessary to deal with one more contention raised by the petitioner
\n\tchallenging the cancellation of select list on the ground that such
\n\ta procedure is adopted only with regard to Palanpur location whereas
\n\tin other locations also, zero marks are awarded for the Project
\n\tReports when they are submitted by the candidates without affixing
\n\ttheir signature and despite this fact, no such action was taken by
\n\tthe respondent Corporation in respect of those areas.\n<\/p>\n
\tThere is no
\n\tmuch substance in this argument as the complaints are made within
\n\tstipulated 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
\tEven if it is
\n\tassumed that the Project Report is also a document and it is to be
\n\tsigned and since the said document is not signed by any particular
\n\tcandidate, whether the respondent Corporation is justified in
\n\tawarding zero marks for such Project Report.  The Clauses in the
\n\tPolicy Circular are to be divided into two parts, some of the
\n\tclauses are substantive clauses whereas some of the clauses are
\n\tprocedural clauses.  When a particular paper or document is not
\n\tsigned with the bonafide belief that it is not required to be signed
\n\tand on that basis, if the said document is not considered, the
\n\trespondent 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
\tThe entire
\n\tprocedure undertaken by the respondent Corporation is transparent
\n\tand proper accountability is fixed at every stage.  Even after
\n\tcanceling the selection list, the Retail Outlet is not awarded to
\n\tthe 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
\tIn view of the
\n\tabove discussion, the Court is of the view that there is no
\n\tsubstance or merit in the challenge of the petitioner against
\n\tcancellation of the selection list and conducting fresh interview
\n\tfor Retail Outlet for Palanpur location.  Even the decisions relied
\n\tupon by the petitioner are not of any assistance to the petitioner
\n\tas the Court has not found any arbitrariness or any malafide
\n\texercise of power in the decision making process of the respondent
\n\tauthorities.  The petition is, therefore, dismissed.  Notice
\n\tdischarged without any order as to costs.\n<\/p>\n
\t\t\t\t\t\t\t\t\tSd\/-\n<\/p>\n
\t\t\t\t\t\t\t\t[K. A. PUJ, J.]\t\t<\/p>\n
\tSavariya          <\/p>\n
\t\t   \u00a0\u00a0\u00a0<\/p>\n
\t\t   Top<\/p>\n","protected":false},"excerpt":{"rendered":"
Gujarat High Court Whether vs Indian on 21 April, 2010 Author: K.A.Puj,&Nbsp; Gujarat High Court Case Information System Print 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 […]<\/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-205996","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nWhether vs Indian on 21 April, 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\/whether-vs-indian-on-21-april-2010-2\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Whether vs Indian on 21 April, 2010 - 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