Meghalaya High Court
Shri Sengkal B Sangma vs Indian Oil Corporation Limited And Ors on 15 October, 2015
Bench: Uma Nath Singh, T. Nandakumar Singh
THE HIGH COURT OF MEGHALAYA
WP(C) No.332/2014
Shri. Sengkal B Sangma - 24 years,
S/o Shri. Roynath D. Sangma,
R/o Village Bangranggre,
P.O. Masangpani, PS Phulbari,
District West Garo Hills, Meghalaya. :::: Petitioner
-Vs-
1. INDIAN OIL CORPORATION LIMITED,
represented by its Chairman,
Plot No.3075/3 Sadiq Nagar,
New Delhi-110049.
2. The General Manager,
Indian Oil Corporation Limited,
Registered Office-G-9, Ali Yavar Jung Marg,
Bandra (East), Mumbai-400051.
3. The Chief Area Manager
Indian Oil Corporation Limited,
Integrated Areas Office, Guwahati,
2-Dr. B.K. Kakoti Road, Kachari Basti Ulubari,
Guwahati-781007.
4. Shri. Iqbal Ch. Marak,
S/o Shri. Razaul Karim,
R/o Tura, West Garo Hills, Meghalaya :::: Respondent
BEFORE HON'BLE MR. JUSTICE UMA NATH SINGH, CHIEF JUSTICE HON'BLE MR. JUSTICE T. NANDAKUMAR SINGH For the Petitioner : Mr. MQ Qureshi, Adv For the Respondents : Mr. HS Thangkhiew, Sr. Adv Mr. P Nongbri, Adv Date of hearing : 08.09.2015 Date of Judgment & Order : 15.10.2015 Page 1 of 18 JUDGMENT AND ORDER (Justice T. Nandakumar Singh) Heard Mr. MF Quershi, learned counsel for the petitioner and Mr. HS Thangkhiew, learned senior counsel assisted by Mr. P Nongbri, learned counsel for the respondents No.1-3.
2. The prayer sought for in the present writ petition are for quashing the impugned letter of the respondent No.3 dated 10.04.2014 (Annexure-D) and also the impugned letter/order dated 31.01.2013 (Annexure-G) issued by the respondents No. 3 in favour of the respondent No.4. Under the first impugned letter dated 10.04.2014 issued by the respondent No.3-Chief Area Manager, Indian Oil Corporation Limited informed the petitioner that he was not eligible for candidature as per the conditions mentioned in the advertisement/guidelines dated 17.09.2010 of the Ministry of Petroleum and Natural Gas, Govt. of India for RGGLV and his candidature for distributorship was cancelled after complying with the directions of this Court vide order dated 12.03.2014 passed in WP(C)No.116/2012 and the second impugned letter/order dated 31.01.2013 was for award of the Rajiv Gandhi Gramin LPG Vitrak (RGGLV) for Phulbari Area, District West Garo Hills under ST category to the respondent No.4.
3. The concise fact of the case leading to the filing of the present writ petition, sufficient for deciding the matter in issue, is recapitulated. The scheme known as Rajiv Gandhi Gramin LPG Vitrak (RGGLV) was launched by the Ministry of State for Petroleum & Natural Gas on 16.10.2009 for setting up small size of LPG distribution agencies in order to increase rural penetration and to cover remote as well as low potential areas, location having potential of average monthly sale of 600 LPG cylinders of 14.2 Kg and 1800 customers with monthly per capita consumption of about 5 kg. The assessment of refill sale potential is Page 2 of 18 based on several factors including population, population growth rate, economic prosperity of the location and the distance from the existing nearest distributor. The Oil Marketing Companies such as Indian Oil Corporation Limited (IOCC), Bharat Petroleum Corporation Limited (BPCL) and Hindustan Petroleum Corporation Limited (HPCL) had been directed to identify the areas, the location of area with low penetration so that a target growth of 50% LPG population coverage in each district and 60% over all LPG coverage in States can be achieved. The scheme further aims to eliminate the use of Chulhas and to provide clean cooking fuel to rural women folks.
4. The said scheme would be implemented by Public Sector of the Oil Marketing Companies (OMCS) aforesaid in a phased manner in addition to their marketing plan for setting up regular LPG distribution identification of location would be finalized by the OMCs based on the present penetration/coverage minimum refill/sale potential for sustaining the Rajiv Gandhi Gramin LPG Vitrak (RGGLV) etc. The criteria and the procedure for selection of RGGLV distribution would be published by OMCs from time to time in various newspapers at the time of advertisement and selection. The OMCs may also formulate draft detailed guidelines for implementation of the scheme and such draft would be subject to the approval of the Ministry of State for Petroleum & Natural Gas, Govt. of India.
5. The petitioner is a member of the Garo Scheduled Tribe community of Meghalaya and a resident of village Bangranggre, P.O. Masangpani, P.S. Phulbari, West Garo Hills District, Meghalaya. The respondents No.1-3 issued an advertisement dated 17.9.2010 in the local daily newspaper inviting application for distributorship of the Rajiv Gandhi Gramin LPG Vitrak (RGGLV) under different categories at the location/place shown in the said advertisement from the candidates who fall under various grades of the State of Meghalaya. It is specifically mentioned in para 7 of the said advertisement dated 17.09.2010 that Page 3 of 18 the application (as per format given in the advertisement) for RGGLV along with documents and the amount which was non-refundable by Demand Draft/Pay Order in the name of any Scheduled Bank were to be submitted before 5:00 pm on 19.10.2010. The eligibility criteria for candidature for distributorship of LPG for the particular area were clearly mentioned in the said advertisement dated 17.09.2010 itself. For easy reference, the relevant portion of the said advertisement dated 17.09.2010 is quoted hereunder:-
"TRANSLATED TYPED COPY OF ADVERTISEMENT Advertisement dated 17th September, 2010 published in the Local Daily Newspaper "Mawphor".
1. The Indian Oil Corporation Ltd. (IOCL), Bharat Petroleum Corporation Ltd. (BPCL) and the Hindustan Petroleum Corporation Ltd. (HPCL) invites application for appointment to the Rajiv Gandhi Gramin LPG Vitrak (RGGLV) under different categories at the location/place shown below from the candidate who falls under various grades who belongs to the State of Meghalaya.
Sl. Oil Name of RGGLV places (in District Category
No. Company Town/Village)
1. IOCL Phulbari West Garo Hills ST
2. BPCL Lumshnong Jaintia Hills ST
3. BPCL Girang Ri-Bhoi ST
'O' means 'Open Category' and SC/ST means Scheduled Caste/Scheduled Tribe.
2. Only individual applicants would be eligible. However, all RGGLVs will be in the joint names of applicant and his/her spouse (i.e. wife/husband will be co-owner of RGGLVs). In case, the applicant is unmarried/divorce/widow/widower, an undertaking will be required to be given that after marriage/re-marriage, spouse.
3. Common Eligibility Criteria for all categories:
"Applicant applying for RGGLV should
(a) Be an Indian citizen
(b) Be a resident of the town/village(s) of the advertised RGGLV location.
(c) Have passed minimum Xth Standard examination or equivalent from recognized Board.
(d) Be not less than 21 years and not more than 45 years in age as on the date of application.Page 4 of 18
(e) Fulfill multiple dealership/distributorship norms.
Multiple Dealership/Distributorship norms mean that the applicant or any other member of 'family unit' should not hold a dealership/distributorship/RGGLV or Letter of Intent (LOI) for a dealership/distributorship/RGGLV of a PSU Oil Company i.e. only one retail Outlet/SKO-LDO dealership/LPG distributorship/RGGLV of PSU Oil Company will be allowed to a 'Family Unit'.
'Family Unit' in case of married person/applicant shall consist of individual concerned, his/her spouse and their unmarried son(s)/daughter(s). In case of unmarried person/applicant, 'Family Unit' shall consist of individual concerned. His/her parents and his/her unmarried brother(s) and unmarried sister(s). In case of divorcee, 'Family Unit' shall consist of individual concerned, unmarried son(s)/unmarried daughter(s) whose custody is given to him/her. In case of widow/widower, 'Family Unit' shall consist of individual concerned, unmarried son(s)/unmarried daughter(s).
(f) Have minimum total amount of Rs.2 lakhs put together from Saving accounts in Bank (as on date of application), free and unencumbered fixed deposits in scheduled banks, Kisan Vikas Patra, NSC, bonds, any other investment etc. in the name of self or family members of the 'Family Unit' as defined above. (In case of RGGLV locations reserved under 'SC/ST' category, applicants with less than Rs.2 lakhs are also eligible to apply). For evaluation purpose, marks will be awarded to applicants of all categories based on the amount mentioned in the application.
(g) Own a suitable land (plot) of minimum 20 meter x 24 meter in dimension at the advertised RGGLV location for construction of LPG Cylinder Storage Godown. Own means having clear ownership title of the property in the name of the applicant/family member of the 'Family Unit' as defined in multiple dealership/distributorship norm. In case of ownership/co-ownership by family member, consent letter from the family member will be required. Land for construction of Godown will be considered suitable, if it is freely accessible through all weather motorable approach road (public road or private road of the applicant connecting to the public road) and should be plain, in one contiguous plot, free from live overhead power transmission or telephone lines. Pipelines/Canals/Drainage/Nallahs should not be passing through the plot.
(h) Be physically and mentally sound to be able to run the business.
(i) Neither have been convicted nor charges been framed by any Court of law for any criminal offence involving moral turpitude/economic offences.
Page 5 of 18
(j) Not be a signatory to distributorship/dealership agreement, terminated on account of proven cases of malpractice/adulteration of any Oil Company.
4. Specific Eligibility Criteria for Different Categories. a. Scheduled Caste/Scheduled Tribe Category (SC/ST) The candidates belonging to Castes/Tribes recognized as Scheduled Castes/Scheduled Tribes (SC/ST) under the Constitution of India will be eligible.
The candidates will be required to submit alongwith application a certificate issued by the competent authority notified by the Government of India certifying that the candidate belongs to Scheduled Caste/Scheduled Tribe.
5. The application should be submitted in a plain paper (by typing) as shown in the prescribed format by this advertisement.
6. Application Fee: An amount of Rs.1000/- (Rupees one thousand) should be submitted alongwith the application form which is non- refundable and Rs.500/- (Rupees five hundred) only for the candidates who belongs to SC/ST shall submit. (SC/ST candidates shall enclose their SC/ST Certificates).
7. Application (as per format given in the advertisement) for RGGLV along with documents and the amount which is non- refundable by Demand Draft/Pay Order in the name of any Scheduled Bank to be submitted in the address given herein below before 5:00 pm on 19.10.2010.
Name of the place Demand Draft/Pay Payable at Office address for
Sr.No. Order in favour of any submitting the
Scheduled Bank drawn application and
in the name of application fee
From To Indian Oil Corporation Guwahati Sr.Area Manager,
1 1 Ltd. Indane Area
Office, Indian Oil
Corp. Ltd.,
Kachari Basti,
Ulubari, Guwahati-
788007
2 3 Bharat Petroleum Guwahati Bharat Petroleum
Corporation Ltd.(BPCL) Corp. Ltd.,
Ananda path,
House No.-1, R.P.
Road, behind MLA
Hostel, Dispur,
Guwahati-781006,
Assam
Page 6 of 18
8. The mode of selection and calculation
All the applicants who have fulfilled all the conditions will be counted from 100 marks by checking from the application form. All these counting will be done as follows:-
Sl.No. Parameter Max marks 1. Financial Capability 50 2. Income 10 3. Educational Qualification 40
Selection for the RGLVV will be done by draw of lots out of all eligible applicants securing minimum qualifying marks (minimum qualifying marks is 60% for locations reserved under SC/ST category and minimum 80% marks for all other category locations. The details information which consist of allotting of marks under draw of lots out has been given in one booklet which you can get from the address mentioned in Para 7 @ Rs.50/-. You can also downloading from the website. www.iocl.com;
www.ebharatgas.com; www.bharatpetroleum.in; www.hindustanpetroleum.com"
6. From the conditions mentioned in the said advertisement dated 17.09.2010 and the guidelines issued by the Ministry of Petroleum & Natural Gas, Govt. of India and also from the admitted case of both the parties, it is clear that the present writ petition is for distributorship of LPG under the RGGLV for Phulbari area/place and also the applicant should be the resident of Phulbari on or before 19.10.2010, which was the last date for filing the application under the said advertisement dated 17.09.2010 and also the applicant should have suitable plot of land for construction of LPG storage Godown and the said plot should be in the name of the applicant/family member of the 'family unit' as defined in multiple dealership/distributorship mentioned in the said advertisement or guidelines dated 17.09.2010. In response to the said advertisement dated 17.09.2010, the petitioner filed application for dealership/distributorship of LPG under RGGLV for the area called "Phulbari/Phulbari village".
7. The respondent No.3 by an official letter No.G/RGGLV/1-289 dated 13.06.2011, informed the petitioner that he was qualified for selection of RGGLV. Page 7 of 18 Further, he was requested to be present alongwith photo identity card issued by any Govt. department for the draw at 2:00 pm on 05.07.2011 in the Conference Hall, D.C. Office, Tura. It is also stated that the petitioner was selected as the eligible candidate for the award of distributorship at Phulbari in the draw held on 05.07.2011 in the Conference Hall, D.C. Office, Tura. But to the utter shock and dismay of the petitioner, the respondent No.3 informed him under his letter No.G/LPG: RGGLV/--799 dated 16.12.2011 that after further inquiry it was found that he was not the resident of Phulbari village and that he was a resident of Bangranggre on the date of filing the application and had acquired the residentship of Phulbari at a later date (i.e. after the last date 19.10.2010) by virtue of his marriage as per his matrimonial custom and also that the land shown in his application was not in Phulbari village but fall in Messangpani and also neither belonged to him nor to any of the family member as defined in the advertisement and accordingly, his candidature for the distributorship was cancelled. For easy reference, the said letter dated 16.12.2011 is quoted hereunder:-
"INDIAN OIL CORPORATION LIMITED Integrated Area Office, Guwahati, 2 Dr. B.K. Kakoti Road, Kachari Basti, Ulubari, Guwahati-781007 G/LPG: RGGLV/1-799 Date: 16.12.2011 REGISTERED A/D To, Sri. Sengkal B Sangma P.O. Masangpani, Vill: Bangranggre District West Garo Hills Meghalaya-794104 Dear Sir, Subject: Application for Award of Rajiv Gandhi Gramin LPG Vitrak (RGGLV) at Phulbari, District West Garo Hills under ST category Advertised on 17.09.2010.Page 8 of 18
Please refer your application (serial number Ghy/Pbi/04) for award of above-mentioned RGGLV. You were selected as the eligible candidate for award of the distributorship at Phulbari, in the draw held at Tura on 05/07/2011.
However, our field investigation committee, while verifying the facts and information submitted by you in your application for the location has found the following discrepancies:-
1. In your application you had claimed that you are resident of the village Phulbari. However, during investigation it was found that you were a resident of Bangranggre on the date of application and had acquired the residentship of Phulbari at a later date by virtue of your marriage, as per your matrimonial custom.
2. The land shown in the application is not in the village Phulbari, but falls in Messangpani.
3. The showroom land as shown in the application belongs neither to you nor any of your family member as defined in our advertisement.
In view of the above discrepancies/misrepresentation of facts in your application, your candidature for the distributorship is hereby cancelled.
This is for your information please.
Thanking You, Yours faithfully For INDIAN OIL CORPORATION LIMITED INTEGRATED AREA OFFICE, GHY Sd/-
(J. MADHAV) CHIEF AREA MANAGER"
8. The petitioner being aggrieved by the said letter dated 16.12.2011, filed the writ petition being WP(C) No.116/2012 against the present respondents.
The said writ petition i.e. WP(C) No.116/2012 was finally disposed of by an order of this Court dated 12.03.2014 under which the respondents No.1-3 were directed to give an opportunity of being heard to the petitioner before passing any order on the materials on record against the petitioner and set aside the said impugned letter dated 16.12.2011. The operative portion of the said judgment and order dated 12.03.2014 passed in WP(C) No.116/2012 is quoted hereunder:-Page 9 of 18
"8. From the above factual backdrop, it can easily be ascertained that no opportunity of being heard was given to the petitioner, who was once informed by the respondent No.3 under his letter dated 13.06.2011 that the petitioner is qualified for draw for selection of RGGLV before passing the impugned letter dated 16.12.2011, and this Court is of the considered view that in the given case, natural justice cannot be taken as empty formality.
9. For the foregoing reasons, the impugned letter dated 16.12.2011 is set aside and the respondent No.1-3 are directed to give an opportunity of being heard to the petitioner before passing any order on the materials on record. It is made clear that the whole exercise should be completed by the respondents No.1-3 within a period of four weeks from the date of receipt of a certified copy of this judgment and order. Further, it is made clear that a copy of any order passed by the respondents should be furnished to the petitioner very promptly."
9. In the affidavit-in-opposition field by the respondent No. 3, it was stated that on the last date of filing the application i.e. 19.10.2010 mentioned in the said advertisement dated 17.09.2010, the petitioner was the resident of Bangranggre village P.O. Masangpani and in support of that also produced the residential certificate dated 27.11.2007 and by virtue of his marriage on 04.02.2011, the petitioner became a resident of Phulbari long after last date of filing the application i.e. 19.10.2010. It was also categorically stated in the affidavit-in-opposition filed by the respondent No. 3 that the land mentioned in his application for constructing the LPG Godown was found to be the land of one Rafiqul Islam Mondal, who had given the land to the petitioner under an affidavit dated 14.10.2010. It was also further stated in the affidavit-in-opposition filed by the respondent No.3 that the DM (LPG), BNGN-II also submitted the investigation report dated 11.10.2011 that the petitioner was not a resident of Phulbari on or before the last date of filing the application i.e. 19.10.2010 and also due to his marriage on 04.02.2011, he became a resident of Phulbari and also that the land shown for construction of LPG Godown neither belonged to the petitioner nor to any of the family member of the 'Family Unit' as defined in the said advertisement dated 17.09.2010. For easy reference, the certificate dated 27.11.2007 and the inquiry report dated 11.10.2011 are quoted hereunder:- Page 10 of 18
"Shri. S. Ch. Marak Village - Bangrangggre Nokma Mouza No.29-11 West Garo Hills TO WHOM IT MAY CONCERN This is to certify that Shri. Sengkal B. Sangma S/o Shri. Roynath D. Sangma is personally known to me since a pretty long time. He is a permanent resident of vill Bangranggre P.O. Massangpani PS Phulbari West Garo Hills of the State of Meghalaya. He belongs to "Garo" community which is recognized as Scheduled Tribe.
He hails from a respectable family and bears a good moral character.
I wish him all success in future life.
Place Bangranggre Sd/-
Date 27-11-2007 Head Nokma No.1
Vill - Bangranggre,
Elaka No.29 ..... West Garo Hills
INTER OFFICE MEMO
From Field Officer To Chief Area Manager
Ref. LPG-Sales, Bongaigaon-1 & II GIAO, Ulubari, Guwahati-7
Date RGGLV/GIAO/BNG-01a
11.10.2011
Sub: Submission of FVC for Phulbari location We are submitting herewith the FVC report for Phulbari Location under RGGLV with the following discrepancies:-
1. As per Application dt.19.10.2010 Shri. Sengkal B. Sangma was a Resident of Bangranggre whereas while doing the FVC Shri. A.G. Mondal, Gaon Bura, Phulbari has certified that Shri. Sengkal B. Sangma is a permanent resident of village Phulbari due to his marriage on 04.02.2011. As per matrilineal customary of the Garo Community and by marriage, he is presently a permanent resident of village Phulbari.
2. As per clause 9 of Application the candidate must have Own Land at Advertised location for LPG godown and Showroom but in this case Shri. Sengkal B. Sangma is having land at MESANGPANI village which is not in advertised location i.e. Phulbari, West Garo Hills.
3. Similarly, Showroom land, though in advertised location but neither owned by Shri. Sengkal B. Sangma nor in his family unit but Page 11 of 18 land belongs to Rafiqul Islam Mondal and who had given an affidavit dt.14.10.2010, in the purpose of declaring that 30ft x 20ft land is given to Sengkal B. Sangma for the construction of showroom.
Sd/- Sd/-
11.10.2011 11.10.2011
(G.PATHAK) (A.K. SAXENA)
AM (LPG), BNGN-II DM (LPG), BNGN-II"
10. As per the directions of this Court vide order dated 12.03.2014 passed in WP(C)No.116/2012, opportunity of being heard was provided to the writ petitioner. After due consideration of the case of the writ petitioner, the respondent No.3 had come to the finding that the petitioner was not eligible for award of LPG dealership under the RGGLV at Phulbari vide the impugned order/letter dated 10.04.2014. The reasons for coming to the finding that the petitioner was not the eligible candidate for award of LPG under the RGGLV at Phulbari are mentioned in the impugned order dated 10.04.2014 and as such, it would be more profitable to quote the impugned order dated 10.04.2014 as hereunder:-
"INDIAN OIL CORPORATION LIMITED Integrated Area Office, Guwahati, 2 Dr. B.K. Kakoti Road, Kachari Basti, Ulubari, Guwahati-781007 Registered with A/D To, Shri. Sengkal B Sangma Ref:GIAO/LPG/RGGLV-Phulbari P.O. Masangpani, Date: 10.04.2014 Vill: Bangranggre District West Garo Hills Meghalaya-794104 Dear Sir, Subject: Your application for Award of Rajiv Gandhi Gramin LPG Vitrak (RGGLV) at Phulbari, District West Garo Hills under ST Category advertised on 17.09.2010.Page 12 of 18
Ref: Judgment dated 12.03.2014 on WP(C) No.116/2012 (Sengkal B. Sangma v. IOCL & Others) in the Hon'ble High Court of Meghalaya.
Please refer to your application (serial number Ghy/Pbi/04) for award of above - mentioned RGGLV. You were selected as the eligible candidate for award of the RGGLV at Phulbari, in the draw held at Tura on 05/07/2011.
However, the Field Verification Committee, after carrying out necessary investigation as per procedure found certain discrepancies in respect of the information/documents submitted by you and hence you were found ineligible.
The above fact of your having been considered ineligible was communicated to you vide letter no. G/LPG: RGGLV/1 Dated 16.12.2011.
A writ petition was filed by you in the Hon'ble High Court of Meghalaya, vide W.P. (C) No. - 116/2012 (Sengkal B. Sangma v. IOCL & Others) challenging rejection of your candidature for the RGGLV.
The Hon'ble High Court in its judgment dated 12.03.2014 instructed that:
Quote "The impugned letter dated 16.12.2011 is set aside and the respondents No.1-3 are directed to give an opportunity of being heard to the petitioner before passing any order on the materials on record. It is made clear that the whole exercise should be completed by the respondents No.1-3 within a period of four weeks from the date of receipt of a certified copy of this judgment and order. Further, it is made clear that a copy of any order passed by the respondents should be furnished to the petitioner very promptly.
Unquote Copy of order is attached.
Accordingly, you were advised to appear at the office of the Chief Area Manager, Guwahati Integrated Area Office, IOCL on 07.04.2014 to provide an opportunity to you of being heard as per the contents of the Hon'ble High Court order. You appeared duly before the Chief Area Manager at 11 a.m. on 07.04.2014 when the following was clarified to you:
1. In your application you had claimed that you are resident of the village Phulbari. However, during investigation it was found that you were a resident of Bangranggre on the date of application and have acquired the residentship of Phulbari at a later day by virtue of your marriage, as per your matrimonial custom.
2. The land shown in the application is not in village Phulbari, but falls in Messangpani.Page 13 of 18
3. The showroom land as shown in the application belongs neither to you nor to any of your family member as defined in our advertisement.
In view of the above discrepancies you failed to meet the eligibility conditions for the distributorship/RGGLV.
Since you do not meet the eligibility criteria as per the conditions mentioned in the advertisement/policy guidelines of the Ministry of Petroleum and Natural Gas, Govt. of India, your candidature for the distributorship is hereby cancelled.
The above is for your information and record please. Thanking You Yours faithfully, For Indian Oil Corporation Limited, Sd/-10/4/2014 (J.MADHAV) CHIEF AREA MANAGER"
11. From the above factual backdrop, we are of the considered view that the petitioner was not the eligible candidate for RGGLV at Phulbari inasmuch as, the petitioner was not the resident of Phulbari on or before the last date of filing the application i.e. 19.10.2010 and long after the last date of filing the application, he became the permanent resident of Phulbari because of his marriage on 04.02.2011 and also the land shown in the said application of the petitioner for construction of LPG Godown neither belonged to the petitioner nor to any member of the family of the petitioner as defined in the said advertisement dated 17.09.2010. It is a settled law that cut-off date for the purpose of determining the eligibility of the candidate must be the last date for filing the application. The ratio laid down by the Apex Court regarding the cut-off date for determining the eligibility of the candidate in the matter of employment is also applicable in the present case regarding the cut-off date for determining the eligibility of the candidate. The Apex Court in Ashok Kumar Sonkar vs. Union of India & Anr.: (2007) 4 SCC 54 held that possession of requisite qualification is mandatory. The same should not be uncertain. If an uncertainty is allowed to Page 14 of 18 prevail, the employer would be flooded with applications of ineligible candidates.
A cut-off date for the purpose of determining the eligibility of the candidates concerned must, therefore, be fixed. In the absence of any rules or any specific date having been fixed in the advertisement, the law would be the last date for filing the application. Paras 11, 15 & 20 of the SCC in Ashok Kumar Sonkar's case (Supra) read as follows:-
"11. The question as to what should be the cut-off date in absence of any date specified in this behalf either in the advertisement or in the reference is no longer res integra. It would be last date for filing application as would appear from the discussion made hereinafter.
15. It was held: SCC pp.21-22, para 6) "So far as the first issue referred to in our Order dated 1-9-1995 is concerned, we are of the respectful opinion that majority judgment (rendered by Dr T.K. Thommen and V. Ramaswami, JJ.) is unsustainable in law. The proposition that where applications are called for prescribing a particular date as the last date for filing the applications, the eligibility of the candidates shall have to be judged with reference to that date and that date alone, is a well-established one. A person who acquires the prescribed qualification subsequent to such prescribed date cannot be considered at all. An advertisement or notification issued/published calling for applications constitutes a representation to the public and the authority issuing it is bound by such representation. It cannot act contrary to it. One reason behind this proposition is that if it were known that persons who obtained the qualifications after the prescribed date but before the date of interview would be allowed to appear for the interview, other similarly placed persons could also have applied. Just because some of the persons had applied notwithstanding that they had not acquired the prescribed qualifications by the prescribed date, they could not have been treated on a preferential basis. Their applications ought to have been rejected at the inception itself. This proposition is indisputable and in fact was not doubted or disputed in the majority judgment. This is also the proposition affirmed in Rekha Chaturvedi v. University of Rajasthan: 1993 Supp (3) SCC 168: 1993 SCC (L&S) 951: (1993) 25 ATC 234. The reasoning in the majority opinion that by allowing the 33 respondents to appear for the interview, the recruiting authority was able to get the best talent available and that such course was in furtherance of public interest is, with respect, an impermissible justification. It is, in our considered opinion, a clear error of law and an error apparent on the face of the record. In our opinion, R.M. Sahai, J. (and the Division Bench of the High Court) was right in holding that the 33 respondents could not have been allowed to appear for the interview."Page 15 of 18
The said decision is, therefore, an authority for the proposition that in absence of any cut-off date specified in the advertisement or in the rules, the last date for filing of an application shall be considered as such.
20. Possession of requisite educational qualification is mandatory. The same should not be uncertain. If an uncertainty is allowed to prevail, the employer would be flooded with applications of ineligible candidates. A cut-off date for the purpose of determining the eligibility of the candidates concerned must, therefore, be fixed. In absence of any rule or any specific date having been fixed in the advertisement, the law, therefore, as held by this Court would be the last date for filing the application."
The Apex Court is of the similar view in (i) U.P. Public Service Commission, U.P., Allahabad & Anr v. Alpana: (1994) 2 SCC723; (ii) Rajasthan Public Service Commission v. Kalia Kumar Paliwal & Anr: (2007) 10 SCC 260 and; (iii) Bedanga Talukdar v. Saifudaullah Khan & Ors: (2011) 12 SCC 85.
12. It is fairly well settled that the writ proceeding is not the appropriate forum for deciding the disputed questions of fact. In the present case, even if it was clear that the petitioner was not the eligible candidate for award of RGGLV at Phulbari as per the materials produced by the respondents No.1-3, he (petitioner) had seriously disputed the fact that he was not the resident of Phulbari on the last date of filing the application i.e. 19.10.2010 and also the land mentioned in his application for construction of LPG Godown neither belonged to the petitioner nor to any member of his family as defined in the said advertisement dated 17.09.2010.
Disputed Questions of Fact:
13. The Apex Court in D.L.F. Housing Construction (P) Ltd., v. Delhi Municipal Corpn. & Ors.: (1976) 3 SCC 160 held that: Page 16 of 18
"20. In our opinion, in a case where the basic facts are disputed, and complicated questions of law and fact depending on evidence are involved the writ court is not the proper forum for seeking relief. The right course of the High Court to follow was to dismiss the writ petition on this preliminary ground, without entering upon the merits of the case. In the absence of firm and adequate factual foundation, it was hazardous to embark upon a determination of the points involved. On this short ground while setting aside the findings of the High Court, we would dismiss both the writ petition and the appeal with costs. The appellants may if so advised, seek their remedy by a regular suit."
The Apex Court in Daljit Singh Dalal (Dead) through LRS v. Union of India & Ors.: (1997) 4 SCC 62 held that:
"8. There are thus several disputed questions of fact. We also fail to see any public interest involved in this petition. The disputes raised by the petitioner being factual disputes, cannot be examined in a writ petition under Article 32 of the Constitution. The petition is, therefore, dismissed with no order as to costs."
The Apex Court in Vinay Shukla v. Union of India & Ors.:(2007) 2 SCC 464 held that:
"4. Learned counsel has next submitted that the petitioner should be awarded damages for his illegal abduction and confinement by the authorities of the State. The allegations made by the petitioner are entirely factual in nature, which can be established only by recording oral evidence. It will be open to the petitioner to seek such legal remedy as is available to him in law for claiming damages on the ground of his alleged abduction and confinement. The writ petition is dismissed."
The Apex Court in Kerela State Electricity Board & Anr. v. Kurien E. Kalathil & Ors: (2000) 6 SCC 293 held that:
"10. We find that there is a merit in the first contention of Mr. Raval. Learned Counsel has rightly questioned the maintainability of the writ petition. The interpretation and implementation of a clause in a contract cannot be the subject matter of a writ petition. Whether the contract envisages actual payment or not is a question of construction of contract. If a term of a contract is violated, ordinarily the remedy is not the writ petition under Article 226. We are also Page 17 of 18 unable to agree with the observations of the High Court that the contractor was seeking enforcement of a statutory contract. A contract would not become statutory simply because it is for construction of a public utility and it has been awarded by a statutory body. We are also unable to agree with the observation of the High Court that since the obligations imposed by the contract on the contracting parties come within the purview of the Contract Act, that would not make the contract statutory. Clearly, the High Court fell into an error in coming to the conclusion that the contract in question was statutory in nature."
14. For the foregoing discussions, we are of the considered view that this writ petition is devoid of merit. Accordingly, this writ petition is dismissed.
JUDGE CHIEF JUSTICE
Lam
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