Punjab-Haryana High Court
Kirti Yadav vs Indian Oil Corporation And Others on 26 November, 2014
Bench: Surya Kant, Raj Mohan Singh
HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
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LPA No.1859 of 2014 (O&M)
Date of Decision: 26.11.2014
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Kirti Yadav ... Appellant
VS.
Indian Oil Corporation Ltd. & Ors. ... Respondents
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CORAM: HON'BLE MR.JUSTICE SURYA KANT
HON'BLE MR.JUSTICE RAJ MOHAN SINGH
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1. Whether Reporters of local papers may be allowed to see the judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
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Present: Mr. Ashok Aggarwal, Senior Advocate with
Mr. Ashwani Talwar, Advocate for the appellant
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SURYA KANT, J. (Oral)
(1) This Letters Patent Appeal is directed against the order dated 06.09.2014 whereby learned Single Judge has dismissed the appellant's writ petition, challenging the order dated 20.02.2013 vide which the Retail Outlet Dealership awarded to the appellant, has been cancelled.
(2) The facts may be noticed briefly. The Indian Oil Corporation Ltd. (in short, 'the IOC') issued an advertisement dated 18.09.2011 (Annexure P1) inviting applications for allotment of Retail Outlet Dealerships including at Sr.No.102 for the one meant for General Category at Sector- 31, Panchkula.
(3) Twenty candidates including the appellant and respondent No.3 applied for the subject site, out of whom 19 were found eligible and were called for interview on 17.04.2012 and as V.VISHAL 2014.12.23 16:02 I attest to the accuracy and authenticity of this document LPA No.1859 of 2014 -2- per the merit panel, the appellant ranked at No.1, respondent No.3 stood at No.2 and one Parveen Kumar got the third position. (4) Respondent No.3 lodged a complaint against the selection of appellant alleging that she was wrongly awarded 04 marks under the parameter 'Fixed & Movable Assets' as the appellant was awarded only 0.52 marks under that 'sub-head' for another location in Gurgaon. The complaint was investigated as per clause 18 of the 'Brochure For Selection of Retail Outlet Dealers' and having found it well- merited, the IOC revised the merit panel according to which respondent No.3 stood at No.1, Parveen Kumar at No.2 and one Manju Pathania came at No.3. The appellant's name did not figure in the revised merit panel. (5) The re-evaluated and revised merit panel which resulted into her elimination from ranking in the final result and which was conveyed to her vide memo dated 20.02.2013 (Annexure P8), came to be assailed by the appellant in a writ petition which has been dismissed by the learned Single Judge vide order under appeal. (6) The core question that arises for consideration is whether the appellant was entitled to and was rightfully awarded 04 marks under the sub-head 'Fixed & Movable Assets' or her marks under that head were correctly reduced to 0.16? (7) A few more facts pertaining to the evaluation of the appellant under the head 'Fixed & Movable Assets' may be noticed at this stage. It is an admitted fact that for her assessment under V.VISHAL 2014.12.23 16:02 I attest to the accuracy and authenticity of this document LPA No.1859 of 2014 -3- the head 'Fixed & Movable Assets', the appellant enclosed the Valuation Certificate for 3 Nos. TATA 1613 vehicles valuing `8.5 lacs each and 1 No. Maruti Gypsy for a value of `4 lacs. The Valuation Certificate was issued by a Government-approved Valuer. She also enclosed copies of RC books of all the four vehicles which admittedly disclosed that her 3 TATA vehicles were hypothecated to IndusInd Bank Ltd. It is also not in dispute that the Evaluation Committee accepted the Valuation Certificate on the premise that all the four vehicles were owned by the appellant and as such awarded her 04 marks. When a complaint was received from the third respondent, the matter was re-considered and it was found that only the value of Maruti Gypsy amounting to `4 lacs could be taken into consideration and since the working capital advertised for the location in question was `25 lacs, the appellant was entitled to 0.16 marks only instead of 04 marks. As against the above-stated plea taken by the IOC or respondent No.3, the entire case of the appellant rests upon Certificate dated 15.07.2011 (Annexure P4) and Accounts Statement furnished by IndusInd Bank (Annexure P5 colly). While the certificate dated 15.07.2011 certifies that the Bank had received all the dues under the Hire Purchase agreement dated 17.05.2008 in respect of 3 TATA vehicles, the Accounts Statement of the Bank (Annexure P5 colly) was also suggestive of the fact that all the due instalments had been paid by 14th July, 2011 i.e. much before the advertisement was V.VISHAL 2014.12.23 16:02 I attest to the accuracy and authenticity of this document LPA No.1859 of 2014 -4- issued on 18.09.2011. The appellant's case thus before the learned Single Judge was that at the time when she applied for allotment of retail outlet in question, the loan in respect of all the TATA vehicles had already been paid and the vehicles being free from all encumbrances were rightly evaluated under the head of 'Fixed & Movable Assets' as per the Certificate of Valuation. (8) This is also undeniable fact that the certificate dated 15.07.2011 (Annexure P4) or the Statement of Accounts (Annexure P5 colly) were not appended by the appellant along with her application form and there was no other document before the Valuation Committee of the IOC to infer that the vehicles were no longer hypothecated. It is also concealed that the appellant did not get cancelled/deleted the entries of the hypothecation in the RCs and such entries were subsisting in the RCs, copies whereof were appended by her along with the application form.
(9) In the light of these admitted facts, the only issue that survived for consideration of the learned Single Judge was whether the appellant was entitled to 'supplement' her application form with additional documents which she chose not to attach while applying or to submit before the expiry of cut-off date and whether IOC was obligated to consider such additional documents which indeed had a direct bearing on the inter se merit of the candidates for empanelment?
V.VISHAL 2014.12.23 16:02 I attest to the accuracy and authenticity of this document LPA No.1859 of 2014 -5- (10) Learned Single Judge has declined to place reliance upon the Certificate (Annexure P4) or the Statement of Accounts (Annexure P5 colly) observing that (i) these documents were not available with the authorities at the time of re-evaluation hence there is no error involved in the evaluation process; (ii) Clause 21.0 of the Brochure mandates that no additional document whatsoever could be accepted or considered after the cut-off date of the application; (iii) the appellant accepted and did not challenge her evaluation under the heading "Fixed & Movable Assets" in respect of another location at Gurgaon where she was awarded only 0.2 marks, within a difference of two days, for there also she did not rely upon the documents Annexure P4 & P5 (colly); (iv) the hypothecation in respect of 3 TATA vehicles actually came to an end on 28.01.2013 i.e. much after the date of advertisement or interview which was on 18.09.2011; and (v) this Court in exercise of writ jurisdiction would not sit as an appellate authority on the evaluation of the candidates and the scope of judicial review would be restricted to ensure that the Authority has not acted arbitrarily or in an unreasonable manner in gross abuse of its powers. (11) It may also be mentioned at this stage that the appellant has now placed on record affidavit of Raj Kumar Khetarpal s/o Yeshpal Khetarpal who is a Government-approved Surveyor & Loss Assessor stating that he had visited M/s IndusInd Bank Ltd. and got it confirmed from the Bank that the entire loan taken by the V.VISHAL 2014.12.23 16:02 I attest to the accuracy and authenticity of this document LPA No.1859 of 2014 -6- party for financing the vehicles had been repaid and thereafter only the Valuation Certificate was issued.
(12) We have heard learned counsel for the appellant at a considerable length and gone through the paper-book with his able assistance.
(13) There is no quarrel that the general eligibility, terms and conditions and other parameters for selection of petrol/diesel retail outlet are contained in the Brochure published by IOC on 02.09.2011 (Annexure P2). Clause 13.1.1 of the Brochure prescribes "NORMS FOR EVALUATING THE CANDIDATES" and under the heading 'Allocation of marks on various Parameters', it prescribes that under the sub-head 'Fixed & Movable Assets' (which includes own land, buildings, shops, house, vehicles etc.), maximum 4 marks could be awarded "based on verifying the documents submitted". It has further been stipulated that "Valuation report duly certified by Govt. Approved Valuers in support of assets is necessary". Clause 21.0(d) clearly states that "no additional documents whatsoever will be accepted or considered after the cut-off date of the application". (14) Clause 13 of the application format reads as follows:-
"13. Give details of source of funds: (to be provided by all applicants) The details to cover free & unencumbered Bank accounts/Govt. Securities/Fixed Deposits, bankers/financial institution certificate for credit worthiness (in the enclosed Appendix V.VISHAL 2014.12.23 16:02 I attest to the accuracy and authenticity of this document LPA No.1859 of 2014 -7- A2)/loans, UTI, NSC, Bonds, Shares of Public Limited Companies (with valuation report) etc., details of other assets (with valuation report) like immovable property (land, building etc.)/movable properties like vehicles etc., any other sources of income like from interest, rent, business etc. (please attach documentary proof in all cases). The details under 'Finance' may be provided in the following format. (Attach separate sheet as required)." (Emphasis by us) (15) It may thus be seen that the applicants were required to attach documentary proof in support of their movable properties like vehicles and other source of income and it was for this reason alone that the appellant presumably attached the Registration Certificates of 3 TATA vehicles which admittedly contained entry regarding hypothecation of vehicles with the Bank. There is no gainsaying that whatever documents were submitted by a candidate along with the application form or before expiry of the last date for submission of the application form, alone could be taken into consideration by the Evaluation Committee of IOC. The appellant admittedly did not attach the documents (Annexure P4 or P5 colly) along with her application form nor the same were submitted before the expiry of cut-off date.
(16) Neither the writ court would direct nor it would permit the authorities to relax the conditions like Clause 21.0(d) of the Brochure as such a discretion once given to the authorities is V.VISHAL 2014.12.23 16:02 I attest to the accuracy and authenticity of this document LPA No.1859 of 2014 -8- capable of misuse to any extent. The Brochure (Annexure P2) published by the IOC is a complete code in itself and as such, the IOC is duty-bound to adhere to its Clauses uniformly. In view formed by the learned Single Judge, therefore, is inescapable. (17) In all fairness, it may be noticed that according to learned counsel for the appellant that if a complaint received by IOC has been investigated, the IOC "will pass speaking order after giving due opportunity to the complainant etc." as contained in Clause 18 (B) of the Brochure. He further contended that the appellant was condemned unheard and was not associated during investigation of the complaint. Reliance is placed on two decisions, namely, (i) Sewa Ram vs. Bharat Petroleum Corpn. Ltd. & Ors., 2008(2) RCR (Civil) 317; and (ii) Amit Kumar Sharma vs. Hindustan Petroleum Corporation Ltd., 2014(1) WLC (Raj)
572. It is further urged that learned Single Judge need not to have viewed the powers of judicial review in a narrow compass as the Hon'ble Supreme Court in Tata Cellular vs. Union of India, (1994) 6 SCC 651 very aptly enlarged the scope of power of judicial review in a case when there is breach of rules of natural justice. (18) Learned Senior Counsel thus contends that the impugned order (Annexure P8) is totally cryptic and non-speaking as it fails to assign any reason for the appellant's downgrading in the merit empanelment. We have considered this aspect as well. It is true that the communication dated 20.02.2013 (Annexure P8) is V.VISHAL 2014.12.23 16:02 I attest to the accuracy and authenticity of this document LPA No.1859 of 2014 -9- not happily- worded and after disclosing the revised merit panel on re-evaluation it falls short of unfolding the reasons which led to the elimination of the appellant from securing 1st, 2nd, or 3rd position. It might also be true that the appellant was not associated during investigation of the complaint. But does it really affect the merit of the case? Had it been the case of appellant that even in the absence of documents (Annexure P4 or Annexure P5 colly), she was entitled to a higher grading under the sub-heading of "Fixed & Movable Assets" then only such an objection could be entertained. Having held above with reference to the mandatory nature of conditions contained in the Brochure, no reliance can be placed on the documents which the appellant did not attach with her application form or were not submitted before the cut-off date. Her contention for non-observance of principles of natural justice is hyper-technical in nature and does not improve her case on merit.
(19) The appellant herself admittedly accepted her downgraded evaluation under the sub-heading "Fixed and Movable Assets" without the help of documents (Annexure P4 & P5 colly) in respect of another location at Gurgaon. It conclusively establishes that she has no other defence except to say that the bank loan on 3 TATA vehicles stood paid before the cut-off date. However, she having failed to rely upon the supporting documents in this regard, may be inadvertently or otherwise, the net result remains the same. In our considered view, the observance of principles of V.VISHAL 2014.12.23 16:02 I attest to the accuracy and authenticity of this document LPA No.1859 of 2014 - 10 - natural justice is not an empty formality or a compulsory ceremony.
It must yield or assume meaning full results. The appellant cannot insist for an exercise in futility when the final outcome is ex facie unchanged.
(20) For the foregoing reasons, we do not find any merit in this appeal which is accordingly dismissed.
(Surya Kant)
Judge
26.11.2014
.11.2014 (Raj Mohan Singh)
Singh)
vishal shonkar
Judge
V.VISHAL
2014.12.23 16:02
I attest to the accuracy and
authenticity of this document