Amreshwar Pratap Sahi & Vivek Kumar Birla, JJ.
1. This petition assails the selection and award of dealership of L.P.G. by the Indian Oil Corporation at Ramkola, District Kushinagar in favour of the respondent No. 3 and for quashing of the order dated 7.5.2012. The category is open, and for women. The advertisement was earlier issued on 29.12.1997 followed by a fresh advertisement on 24.8.2000. The petitioner and the respondent No. 3 were both applicants alongwith other female category candidates. The first assessment and interview in respect of the candidature aforesaid took place when the interview was held on 19.6.2007 by the Selection Committee. The Selection Committee, however, put the results in abeyance and referred the matter to the Screening Committee. The Screening Committee again conducted an interview on 24.1.2008, but the outcome thereof was not approved by the competent authority.
2. The petitioner claims that she was placed at serial No. 1 in the empanelment so drawn but when the matter came up before the final authority, namely, the respondent No. 1, an order was passed on 3.7.2009 to the effect that the interviews conducted and the marks awarded were not in accordance with the guidelines and in view of the discrepancy which also indicated a 5% difference of marks between the candidates, inter se, a fresh interview was directed to be held by the said authority vide order dated 3.7.2009.
3. It is to be noted at this juncture that one of the candidates Gayatri Rao had filed Writ Petition No. 26406 of 2008 and another candidate Mamta Pathak had filed Writ Petition No. 35948 of 2009. The aforesaid two writ petitions were disposed of on 21.12.2010 by the following final orders:
In both these petitions the questions involved are similar and therefore, both of them are being disposed of by this common order.
The present petitions have been filed with the grievance that the case of the petitioners who had applied for LPG distributorship in Ramkolas, District Kushinagar pursuant to the advertisements, has not been considered in its proper perspective.
Learned Counsel for the respondents Sri Sanjeev Singh now submits that fresh interviews are to be held and the claim of the petitioners will also be considered. Sri Singh further submits that the claims of the parties would be considered as per the norms or the policy existing at the time of issuance of the advertisements. That being so, we do not perceive the petitioners having any grievance since their cases will also be considered again.
In this view of the matter, this petition is disposed of that the claim of the petitioners will also be considered while holding
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fresh interview pursuant to the advertisements.
4. A SLP against the same appears to have been filed by Mamta Pathak, but the same has been ultimately dismissed on 30.9.2013 on the ground of the subsequent developments that intervened, leaving it open to the appellant therein to take recourse to the appropriate procedure in accordance with law including a civil suit.
5. It appears that pursuant to the direction of the High Court dated 21.12.2010 a fresh interview was held on 16.3.2011 in which the respondent No. 3 was empanelled as the first candidate entitled for award of dealership. At this stage two writ petitions were filed, one by Gayatri Rao being Writ Petition No. 22827 of 2011 and the other by the petitioner Reeta Singh being Writ Petition No. 23330 of 2011. The petition of Reeta Singh was disposed of on 22.4.2011 and that of Gayatri Rao noticing the same on 11.5.2011 directing the authorities to decide the matter in relation to the objections of the empanelment dated 16.3.2011 simultaneously. These two judgments have been filed alongwith the writ petition and the counter-affidavit of the respondent No. 3. A perusal of both the judgments would indicate that the writ petitions were disposed of for considering the grievance of both the petitioners. However, in the order dated 22.4.2011 the operative part also indicated that till the final results are declared, as per the directions aforesaid, no letter of allotment will be issued in favour of any of the candidates.
6. However, the direction contained in the third paragraph of the judgment dated 22.4.2011 was deleted on a review application on 21.3.2012 by the same Bench and after the fifth paragraph of the same judgment a further direction was added that the petitioner's cause, namely that of Smt. Reeta Singh will be considered as per Clause 18 of the brochure applicable.
7. After the aforesaid directions were issued the impugned order rejecting the representation of the petitioner on 7.5.2012 has been passed.
8. It is stated in the counter-affidavit of the respondent No. 3 that the letter of intent was issued on 9.5.2012. This fact does not appear to have been brought to the notice of this Court either by the petitioner's Counsel, who submits that he had no knowledge of the letter of intent having been issued, and even by the Counsel for the Indian Oil Corporation Sri Sanjiv Singh when an interim order was passed on 9.7.2012 that no further action shall be taken on the basis of the interview dated 16.3.2011. It has been pointed out by Sri Siddhartha Srivastava, learned Counsel for the respondent No. 3, that on 24.7.2012 the Indian Oil Corporation issued a letter to withhold all activities related to the said dealership until further orders of the High Court.
9. The respondent No. 3 thereafter has filed a counter-affidavit on 28.9.2012 stating for the first time before the Court about the issuance of letter of intent. It is, thus, clear that this Court was not informed of any such letter of intent having been issued on the date when the interim order-was passed on 9.7.2012.
10. A counter-affidavit has also been filed by the respondent-Indian Oil Corporation and to both the counters the petitioner has filed a rejoinder affidavit. Sri Siddhartha Srivastava has also handed over a brief synopsis bringing on record the guidelines for selection of retail outlet dealers under which the said selections have been carried out.
11. Two grounds have been principally raised by the petitioner's Counsel Sri K.D. Tiwari, firstly that the petitioner's assessment of financial credit worthiness has been erroneously dealt with in the impugned order by awarding no marks inspite of the fact that the petitioner had tendered all documents including the banker's certificate. Sri Tiwari, therefore, contends that ample finances were available for which evidence had been adduced to support the capability of the petitioner to arrange finances. He, therefore, submits that the award of 'O'-marks is founded on an erroneous consideration and hence the impugned order deserves to be set aside on this ground alone.
12. The second submission of Sri Tiwari is that the respondent No. 3, admittedly, had not offered any land nor had she disclosed any such information of availability of land in her application form and consequently her candidature ought to have been rejected. He submits that in the absence of any land being available to the respondent No. 3 the dealership could not have been awarded to her. It is further submitted that the office memorandum indicating the guidelines dated 9.10.2000 clearly makes a provision to that effect. However, if any relaxation was being given to the respondent No. 3 to provide land even after two months of the date of declaration of result then in that event such a facility should be provided to the petitioner as well, as she has the capability to provide finances as also the land for the purpose of setting up the dealership.
13. Replying to the said submissions Sri Sanjiv Singh, learned Counsel for the Indian Oil Corporation, contends that the finances that were disclosed by the petitioner, namely, the certificate dated 21.9.2000 was not found to be credit worthy by the authority for the reasons disclosed in the impugned order. He further submits that the certificate aforesaid does not disclose that the finances were available as desired at the time of the moving of the application or prior to that. He, therefore, submits that the conclusion therefore drawn about the aforesaid certificate being unclear as on the date of the advertisement is a correct finding. He further submits that any supporting documents that were subsequently filed do not support the cause of the petitioner at all and hence she was not entitled for any marks against the said head.
14. In the aforesaid background the respondent No. 3 was found to be an eligible candidate and so far as the land is concerned Sri Sanjiv Singh submits that the same can also be made available within two months of the selections and award of dealership as is provided for in Clause 3.10.1 of the brochure.
15. He, therefore, contends that the findings do not suffer from any infirmity and the writ petition deserves to be dismissed.
16. Sri Siddhartha Srivastava, learned Counsel for the respondent No. 3, has invited the attention of the Court to paragraph 6 of the counter-affidavit to contend that the letter of intent was issued on 9.5.2012 whereafter the answering respondent has made investments at the site for the purpose of setting up the dealership and has also incurred a financial liability by raising a loan from a bank. He submits that the letter of intent had already been acted upon when the stay order came to be passed by this Court on 9.7.2012. In essence his contention is that the land had been offered and development had begun on the site for which there is also a field investigation report.
17. He further contends that the petitioner is far behind in the award of marks as the difference is of about 10 marks between the petitioner and the respondent No. 3. The contention, in particular, with regard to the credit worthiness of the petitioner is sought to be questioned on the basis of the averments contained in paragraph 29 of the counter-affidavit where it has been stated that the certificate dated 21.9.2000 does not refer to any bank account number of the petitioner. He further submits that the savings bank account at Kaptanganj, as indicated by the petitioner, was opened in 2006 as such it cannot be co-related to the availability of finances in the year 2000. There is a denial about the status of the savings bank account No. 1408 at Harpur Branch which has been denied in the rejoinder affidavit of the petitioner by filing a photostat copy of the passbook of the said account at Harpur Branch.
18. Sri Srivastava, therefore, submits that even on the basis of the documents on record the petitioner has failed to fulfill the criteria of providing the details of any fixed deposits standing in her name and other assets. He has invited the attention of the Court to the guidelines dated 28.8.2003 Clause (2) to substantiate his submissions. Firstly, that the certificate is not worthy of credit and has been rightly rejected and secondly the other two ingredients of fixed deposits and other assets is not fulfilled by the petitioner. He, therefore, submits that even if 5 marks are awarded to the petitioner for the banker's certificate, she will still lag behind the respondent No. 3 who is 10 marks ahead of the petitioner.
19. Sri Siddhartha Srivastava then contends that so far as the availability of land of the answering respondent is concerned, it is not mandatory to provide any details of the land alongwith the application form and that land can always be allowed to be made available within two months of the date of the issuance of letter of intent. He has invited the attention of the Court to para. 3.10.1 of the guidelines dated 9.10.2000 as also the terms of the advertisement and the criteria for allocation of marks on various parameters.
20. Sri Srivastava has further vehemently urged that so far as the availability of land is concerned, this issue stands covered by the decision directly in point by the Apex Court in the case of K. Vinod Kumar Vs. S. Palanisamy and Others, , with special reference to paras. 8 to 10 of the aforesaid judgment. He contends that in view of the aforesaid decision the contention of the petitioner in this regard deserves to be rejected. He has further urged that any subsequent financial status disclosed by the petitioner in respect of the bank accounts also does not come to the aid of the petitioner.
21. We have considered the submissions raised and it would be appropriate to first refer to the guidelines relating to award of marks in relation to the financial capability and credit worthiness of a candidate. The capability to arrange finances carries a decision of 15 marks as per para. 3.10.1(b) of the memorandum dated 9.10.2000. The same is followed by the clarification indicating further distribution of these 15 marks by providing that 5 marks will be allotted for banker's certificate for credit worthiness. The availability of fixed deposits in schedule banks will carry 5 marks and other assets would carry 5 marks. In order to further assess the award of said marks another memorandum of modified evaluation dated 26.6.2002 indicates that the banker's certificate for credit worthiness has to be from the bank. The fixed deposit should be prior to the advertisement date. The income tax criteria should be fulfilled as per the Income Tax Act. If there is any other asset like a vehicle in the name of the applicant, the details should be provided in respect thereof and the same would also be applicable for other assets, excluding jewellery.
22. The petitioner's claim rests on the certificate dated 21.9.2000, copy whereof has been filed alongwith the writ petition and has also been discussed in the impugned order. The impugned order noticing the said certificate refers that it is not clear whether the amount mentioned therein was available with Smt. Reeta Singh on the date of advertisement. If this was the confusion then the petitioner could have been called upon to provide the exact details, but in our opinion once the certificate has been issued by the bank and it has not been denied or contradicted by the bank itself, then an assessment about its clarity by the respondent authority was clearly misplaced on such a ground.
23. So far as the other assets and fixed deposits are concerned, the finding is that no other details are mentioned and, therefore, her claim does not deserve to be considered and she has been awarded 'O' marks.
24. In our opinion, the question of award of marks on the creditworthiness of the petitioner was dependent on the genuineness of the banker's certificate, as furnished by the petitioner. Sri Sanjiv Singh for the Indian Oil Corporation and Sri Siddhartha Srivastava for the respondent No. 3 have nowhere been able to point out the requirement of any other document from the bank or supporting material for a banker's certificate to be furnished by a candidate. Their argument and the conclusion drawn about the availability of the said credit worthiness, therefore, has been incorrectly dealt with in the impugned order. The impugned order itself records that the award of marks is based on the three criterias referred to hereinabove of which the first is banker's certificate for credit worthiness. The impugned order nowhere mentions that any further documents are required to support a banker's certificate.
25. In such circumstances the arguments advanced by the learned Counsel for the respondents on that count cannot be accepted. The impugned order dated 7.5.2012, therefore, is vitiated on account of such assumption which, in our opinion, is a perverse approach. The situation would have been different if the bank itself would have denied the said credit worthiness, but in the absence of any such material to the contrary the impugned order proceeds on a perverse parameter so far as the creditworthiness of the petitioner is concerned.
26. In view of the aforesaid error and award of 'O' marks to the petitioner the impugned order deserves to be set aside for re-valuation and reconsideration of the award of marks on the same parameter in respect of the contesting parties.
27. Coming to the issue of the land provided by the respondent No. 3 again the relevant provisions are required to be gone into in the background that the petitioner and the respondent No. 3 both have been awarded 'O' marks for infrastructural ability as they had failed to disclose the land that was available with them in their application form. In this regard reverting back to the guidelines dated 9.10.2000 the relevant part thereof deserves to be extracted as the entire arguments hinge around the same. The said provision as it stood then is extracted hereinunder:
The applicants for dealerships/distributorships may be asked to furnish alongwith their applications, details of land/godown facilities which they would make available for retail outlets dealerships/LPG distributorships. Considering the location of the land from the point of view of commercial angle, applicants who are willing to transfer the land on ownership/long lease to the Oil Company at the rates acceptable to the Oil Company, should be given preference while awarding the marks by the DSB. "If an applicant, after selection, is unable to provide the land/facilities indicated by him earlier within a period of two months, then the allotment of dealership/distributorship made to him should be cancelled." However, the aforesaid condition would not apply to the categories covered under the Corpus Fund Scheme." [Ref: Ministry of Petroleum and Natural Gas letter No. P-39012/1/2000-IOC dt. 5th July, 2000 read with letter No. P-39012/1/1999-IOC dt. 9th October, 2000]
28. For the purpose of infrastructure evaluation, 35 marks are allocated under the aforesaid clause and the head of award of marks has been redistributed in relation to LPG distributorship for godown and showroom separately. For godowns 20 marks have been allocated for which the first criteria that 20 marks can be awarded if the applicant owns suitable land, and in the alternative has a firm offer where he can be awarded 10 marks. Similarly, for the showroom ownership carries 15 marks whereas a firm offer carries only 5 marks. The same terms are incorporated in the advertisement and it is an admitted position that 'O' marks have been awarded both to the petitioner and the respondent No. 3 at the time of selection as they did not offer any land.
29. It is clear that the bone of contention takes a turn inasmuch as the advertisement is dated 24.8.2000 and the final interview was held on 16.3.2011. The respondent No. 3 claims to have been offered a letter of intent on 7.5.2012. For all these 12 years there is no material on record to indicate that the respondent No. 3 had offered any land or given any details thereof to the respondent-Indian Oil Corporation intimating the site of location.
30. Learned Counsel for the respondent No. 3 Sri Siddhartha Srivastava submits that this is not a mandatory requirement and he, therefore, relies on paragraphs 8 to 10 of the judgment in the case of K. Vinod Kumar (supra), to substantiate his submissions.
31. Having perused the said judgment we find that the Apex Court while interpreting a similar clause has held that the availability of land is mandatory. To enable a determination as to whether the specific place would be suitable for the godown facilities and running of the business or a commercial angle on satisfying the requirement at the stage of making the application is only directory. The judgment further indicates that the particulars of such land can be made available even subsequent to the filing of the application or even subsequent to the selection. The consequence of failure to make a suitable land available within a period of two months from the date of selection is that the same would be liable to be cancelled.
32. In that case the said period was relaxed for a period of four months and, therefore, on an interpretation of the letter that was given by the Indian Oil Corporation in the said case, the Apex Court held that the Corporation itself had extended the time for identifying a suitable plot of land and therefore if, had that been a pre-condition such an opportunity would not have been given.
33. We have considered the same and we further find from the records of the present case that the results of selections were declared on 16.3.2011. If one goes by the guidelines contained in Clause 3.10.1 extracted hereinabove, then the condition of not providing the land within the period of two months of selection as indicated earlier would invite the cancellation of the dealership. A similar provision was being considered by the Apex Court in the case of K. Vinod Kumar (supra).
34. The Court has also been informed of the decision in the case of Umesh Kumar Gupta v. Union of India and others, decided on 13.12.2010 and we find that a similar condition was imposed in relation to an applicant in the said case as well and the Apex Court found that the decision to cancel the award of letter of intent did not suffer from any infirmity in the following terms:
After about 5 years of the withdrawal of the Letter of Intent, the petitioner filed writ petition which was dismissed by the Division Bench of the High Court by observing that the decision taken by respondent No. 2 to drop the proposal for setting up of retail outlet cannot be termed as arbitrary. The Division Bench also observed that in view of the petitioner's failure to make available suitable piece of land, respondent No. 2 did not commit any illegality by withdrawing the Letter of Intent.
We have heard learned Counsel for the parties and perused the record. Clause 9 of the Letter of Intent provides for automatic withdrawal and cancellation of allotment in the event of non-fulfillment of the conditions enumerated in that clause including the one that the land shall make available by the petitioner for setting up the petrol pump within a period of two months. Admittedly, the petitioner did not comply with the condition specified in Clause 9(e) of the Letter of Intent. Therefore, the decision taken by the competent authority of respondent No. 2 to withdraw the Letter of Intent cannot be faulted and we do not find any error in the view taken by the High Court that respondent No. 2 did not commit any illegality by withdrawing Letter of Intent issued in favour of the petitioner.
The SLP is accordingly dismissed.
35. It is, therefore, clear from the decisions aforesaid that the availability of land is compulsory. However, the timing of the availability of such land has been relaxed by virtue of the said judgments even for providing the same within two months of the date of selection.
36. In the instant case there is yet another aspect of the matter which deserves to be noted. The letter of intent dated 9.5.2012 which has been filed alongwith the counter-affidavit states that respondent No. 3 will make available the suitable plot of land as indicated by her within a period of two months from the date of the letter after getting clearance for the godown as well as for the showroom.
37. There is nothing in the said letter to indicate as to what land was indicated by the respondent No. 3 nor is there any detail or even mention of the plot of land in the counter-affidavit filed by the said respondent. The counter-affidavit states about the field investigation but no details or the contents thereof have been made available either by the respondent No. 3 or by the Indian Oil Corporation. It is thus clear that even the letter of intent does not mention the proposed land to be made available by the respondent No. 3. The letter of intent also indicates that the same would be subject to the final decision of the Supreme Court in Mamta Pathak case (supra), and any other case. As noticed above the SLP of Mamta Pathak has already been dismissed by the Apex Court, but so far as the petitioner is concerned the present writ petition had been filed and the letter of intent is obviously subject to the outcome of the present writ petition.
38. From a perusal of the affidavits on record and the terms and conditions of allotment, it is clear that the impugned order does not consider the issue of availability of land with the respondent No. 3 in the aforesaid perspective and there is no finding that the respondent No. 3 had offered any land as on the date of the passing of the impugned order dated 7.5.2012.
39. The letter of intent was issued on 9.5.2012, where also no such indication has been given. It is thus clear that there was nothing before the Indian Oil Corporation to assume that the respondent No. 3 fulfilled the aforesaid criteria of making available the land in the manner aforesaid.
40. Apart from this, even if the details of the land being a directory requirement at the stage of filing the application is accepted, then too, a directory provision is not meant for being disobeyed. There is nothing on record to indicate the availability of land offered by the respondent No. 3.
41. The question, however, still remains about the assessment of the candidature of the petitioner and the respondent No. 3 inasmuch as the claim of Mamta Pathak has already attained finality and Gayatri Rao does not appear to have further questioned the correctness of the decision in this matter. Thus, the dispute now survives only between the petitioner and the respondent No. 3.
42. The third argument of the learned Counsel for the petitioner that the respondent No. 3 appears to have been at an advantage on account of her being the wife of a C.B.I., official, has not been substantiated by any material, as such this argument stands rejected.
43. Having recorded our findings as aforesaid, the Court finds that the matter deserves to be reconsidered in the light of the observations made hereinabove by the respondent No. 1 afresh and consequently we hereby allow the writ petition and set aside the order dated 7.5.2012 with a further direction to the respondent No. 1 to reconsider the claim by passing a reasoned and speaking order on the issue so raised and till such final decision is taken the direction of the Corporation vide letter dated 24.7.2012 withholding all activities relating to the subject location shall continue to remain in force.
44. If it is ultimately found that the petitioner could compete with the respondent No. 3 on financial credit worthiness, then she would also be entitled to get an opportunity to offer land. However, if it is found that the respondent No. 3 had not offered land as per the observations hereinabove, and the petitioner also was on the same footing, it would be open to the respondent-Corporation to advertise the location afresh. With the aforesaid observations and directions, this writ petition is allowed.