Madras High Court
M.Anbazhakan vs The Divisional Retail Sales Manager on 20 November, 2012
Author: K.Ravichandra Baabu
Bench: K.Ravichandra Baabu
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 20/11/2012 CORAM THE HON'BLE MR.JUSTICE K.RAVICHANDRA BAABU W.P.(MD)No.7662 of 2007 and W.P.(MD)No.10295 of 2007 M.Anbazhakan .. Petitioner in both W.Ps. Versus 1.The Divisional Retail Sales Manager Indian Oil Corporation Limited No.2, Race Course Road Chokkikulam, Madurai 2.Y.Sterlin Pachiathas (R2 impleaded as per order of this Court dated 02.04.2008 made in M.P.No.2 of 2007 in W.P.(MD) No.7662 of 2007 ) .. Respondents in both W.Ps. Prayer in W.P.(MD)No.7662 of 2007 Writ Petition under Article 226 of the Constitution of India praying for issuance of a Writ of Certiorarified Mandamus, calling for the impugned letter dated 29.08.2007 communicated by the respondent to the petitioner, quash the same and consequently directing the respondent to include the name of the petitioner for interview in the list of candidates for the operator-ship of Kisan Seva Kendra Operator for outlet No.160 at Erachakulam Village, Kanyakumari District. Prayer in W.P.(MD)No.10295 of 2007 Writ Petition under Article 226 of the Constitution of India praying for issuance of a Writ of Mandamus, directing the respondents to set aside the allotment made in favour of the second respondent as Kisan Seva Kendra Operator for outlet No.160 at Erachakulam Village, Kanyakumari District and consequently directing the respondents to conduct fresh interview by including name of the petitioner, for the operator-ship of Kisan Seva Kendra Operators for outlet No.160 at Erachakulam Village. !For Petitioner ... Mr.T.Arul (in both W.Ps.) ^For Respondent - 1 ... Mr.K.Muraleedharan (in both W.Ps.) For Respondent - 2 ... Mr.Natesh Raja (in both W.Ps.) - - - - - :COMMON ORDER
The prayer in W.P.No.7662 of 2007 is challenging the impugned communication, dated 29.08.2007, issued by the first respondent and consequently, seeking for a direction to the first respondent to include the name of the petitioner for interview in the list of candidates for the dealership of Kisan Seva Kendra Operators for Outlet No.160 at Erachakulam Village.
2. It is the case of the petitioner that the first respondent issued a paper publication on 23.06.2007 and invited applications from eligible candidates to apply for petrol and diesel outlet as Kisan Seva Kendra Operators. The petitioner had applied for the dealership of a petrol and diesel outlet at Erachakulam Village situated in Thovalai Taluk, Kanyakumari District, through his application, dated 25.07.2007. The petitioner along with his application, had furnished a Nativity Certificate issued by the Deputy Tahshildar. However, the petitioner's application was rejected by a communication issued by the first respondent, dated 22.08.2007, on the ground that the petitioner did not enclose the Residence Certificate from the competent authority with his application. Thereafter, the petitioner obtained the Residence Certificate from the Deputy Tahsildar, Agasteeswaram Taluk and furnished the same to the first respondent with a request to include his name in the list of candidates for the interview. However, the first respondent passed the impugned communication, dated 29.08.2007, refusing to include the petitioner's name in the list of candidates selected for interview on the ground that the petitioner had furnished the Residence Certificate later after submitting the application on 25.07.2007. Aggrieved by the same, the present Writ Petition is filed before this Court.
3. In W.P.No.10295 of 2007, the petitioner sought for a Mandamus, directing the first respondent to set aside the allotment made in favour of the second respondent as Kisan Seva Kendra Operators for Outlet No.160 at Erachakulam Village and consequently, directing the first respondent to conduct fresh interview by including the name of the petitioner for the interview.
4. The second Writ Petition in W.P.No.10295 of 2007 came to be filed by the petitioner in pursuant to the allotment of dealership in favour of the second respondent.
5. The first respondent in both the Writ Petitions filed separate counter affidavits. It is stated by the first respondent that as per Clause 10(d) of the general conditions of advertisement, no inclusion/deletion/modification of document would be permitted after submission of the application and the same is uniformly applied to all applicants. If additional documents or replacement of documents for one applicant is permitted, there would be objections from the other applicants and the same would become bad precedent. Therefore, in order to avoid such complication, it was specifically mentioned in the advertisement that no inclusion/deletion/modification of document would be permitted after submission of the application. As the petitioner had submitted only Nativity Certificate and admittedly, not the Residence Certificate as required under the Advertisement along with his application, dated 25.07.2007, it was found that the petitioner's application was defective. Therefore, immediately, the petitioner was informed through communication dated 22.08.2007 that he did not qualify for the interview since Residence Certificate from the competent authority was not enclosed along with application form.
6. Insofar as the other Writ Petition is concerned, the first respondent filed a counter affidavit and contended that as the petitioner was not qualified, he was not included in the list of candidates selected for the interview. On 04.09.2007 itself, the interview was conducted and the second respondent herein was selected. At that stage, the petitioner had filed the present Writ Petition, which is not maintainable. As the petitioner was not at all an eligible candidate and did not attend the interview, he cannot question the selection of the second respondent.
7. Learned counsel for the petitioner contended that when the petitioner submitted his application on 25.07.2007, he had produced the Nativity Certificate along with his application and therefore, the first respondent is not justified in rejecting his application. Moreover, when the petitioner had produced the Residence Certificate issued by the competent authority on 28.08.2007, the first respondent ought to have considered the said certificate and consequently, included the petitioner's name in the list of candidates called for interview.
8. The learned counsel further invited my attention to the advertisement issued by the first respondent, more specifically, to Serial No.3, which deals with disqualification of persons to apply; Clause 8(h) which states that the application submitted by the respective applicants would be rejected, if it is found that any information or the documents and the other information furnished by them after submitting the application are found false. By relying Clause 8(h) of the advertisement, the learned counsel submitted that the petitioner is entitled to furnish the Residence Certificate even after submitting the application and in view of such position, the action of the first respondent was bad.
9. Per contra, the learned counsel for the first respondent contended that when the very basic requirement as stated under Clause 2(a) of the advertisement contemplates that the petitioner should obtain the Residence Certificate within six months prior to the filing of the application from the competent Revenue Official, he is not qualified to be considered for the interview, when admittedly the Residence Certificate was obtained by the petitioner only after submission of his application.
10. The learned counsel for the first respondent further pointed out that Clause 8(h) of the advertisement, is referable to the other relevant factors in pursuant to the interview conducted and not in respect of documents to be furnished at the time of presenting the application. At any event, the learned counsel for the first respondent contended that as the interview was conducted as early as on 04.09.2007 and the second respondent was selected and appointed as dealer, the petitioner is not entitled to any relief in this Writ Petition. The learned counsel appearing for the second respondent contended that insofar as the selection of the second respondent is concerned, the petitioner has not made any allegation against such selection except by stating that his name also ought to have been included in the interview list.
11. Heard the learned counsel for the petitioner as well as the learned counsel for the respondents.
12. The first Writ Petition in W.P.No.7662 of 2007 is challenging the order of the first respondent, whereby, the petitioner's request for inclusion of his name in the list of candidates called for interview was rejected. Therefore, only when the petitioner succeeds in this Writ Petition, the question of considering his case in the other Writ Petition would arise. Thus, it leads this Court to consider his claim in W.P.No.7662 of 2007 first and to find out as to whether the same is justifiable or not.
13. The admitted facts in this case are as follows:-
(i) The first respondent issued a paper publication, dated 23.06.2007 and the petitioner had applied on 25.07.2007. He had furnished only a Nativity Certificate along with his application and not a Residence Certificate.
(ii) The first respondent after scrutinizing the application submitted by the petitioner, sent a communication on 22.08.2007 and informed that he was not qualified for attending the interview for dealership selection, on the ground that he did not enclose the Residence Certificate obtained from the competent authority.
(iii) Admittedly, the said communication dated 22.08.2007 issued by the first respondent was not challenged. However, on receiving the said communication from the first respondent, the petitioner obtained a Residence Certificate from the Deputy Tahsildar, Agasteeswaram Taluk, on 28.08.2007 and produced the same on the very same day along with his request for inclusion of his name in the select list of candidates for interview. However, the said request was rejected by the impugned order, by stating that the production of the Residence Certificate after making the application is not valid. At this stage, it is useful to refer the condition imposed in Clause 2(a) of the advertisement of the first respondent, which reads as follows:-
"2 (a) tpz;zg;gjhuh; me;je;j khtl;lj;jpy; trpg;gtuhf nUf;f Btz;Lk;. tpz;zg;gjhuh; jA;fsJ tpz;zg;gj;Jld; tpz;zg;g Bjjpf;F Ke;ija MW khjA;fSf;Fs; tUtha; mjpfhhpahy; me;je;j khtl;lj;jpy; nUe;jw;fhd tHA;;fg;gl;l nUg;gpl rhd;wpjHpd; efiy nizf;f Btz;Lk;. me;j mjpfhhpapd; jFjp epiyahdJ (Rank) jhrpy;jhh; my;yJ Jiz jhrpy;jhh; my;yJ khtl;lj;jpd; fhty;Jiw Mizah;/fhty;Jiw Jiz Mizah; jFjp epiyf;F Fiwthf nUf;ff;TlhJ." (Emphasis supplied) A perusal of the said condition, shows that the Residence Certificate should have been obtained within six months before the date of the application and not later or after filing of the application. Admittedly, in this case, the application was made on 25.07.2007 and the Residence Certificate was obtained subsequently, i.e., 28.08.2007. Therefore, the very issuance of the said certificate subsequent to the presentation of the application shows that the condition under Clause 2(a) of the advertisement was not complied with. No doubt, the petitioner had submitted a Nativity Certificate along with his application.
14. The learned counsel for the petitioner contended that when the Nativity Certificate is produced, the authority ought to have considered the same as Residence Certificate.
15. I am unable to accept the said contention of the learned counsel. The Nativity Certificate and Residence Certificate do not have the same character and object behind issuance of the same. The Nativity Certificate is issued to certify that a particular person belongs to a particular village or town, whereas the Residence Certificate is issued to certify that he is a permanent resident of a particular address at particular village or town. The Residence Certificate is issued to emphasize on the permanent residence of a particular person, whereas, the Nativity Certificate is issued to emphasize that the particular person is the native of a particular village or town of particular taluk. While Nativity Certificate carries a general statement, the Residence Certificate carries a specific statement. At any event, as the authorities themselves are admittedly issuing two different certificates, namely, Nativity Certificate and Residence Certificate and when the first respondent in his advertisement had specifically sought for only production of Residence Certificate (nUg;gpl rhd;wpjH;), the petitioner is not justified in claiming that the production of Nativity Certificate would serve the purpose. Moreover, the petitioner did not question the order issued by the first respondent, dated 22.08.2007, whereby, he was informed that he was not qualified for attending the interview for dealership selection, as he had not produced the Residence Certificate along with his application. On the other hand, the petitioner by accepting the said order, obtained the Residence Certificate subsequently and produced the same before the first respondent at a later point of time. Therefore, the first respondent rightly rejected the claim of the petitioner for inclusion of his name for the selection by the impugned order which is only a consequential in nature. It is well settled that a consequential order alone cannot be challenged without challenging the basic order as held in the decision of the Hon'ble Supreme Court in Edukanti Kistamma (Dead) Through LRs. & Others Vs. S.Venkatareddy (Dead) Through LRs. & Others reported in 2010 (1) SCC 756.
16. Considering all these facts and circumstances, I find that the petitioner is not entitled to succeed in this Writ Petition, as he had not complied with the mandatory requirements contemplated in the terms and conditions of the advertisement. It is also to be seen at Clause 10(c) of the said advertisement that it is not permitted to include/delete/alter anything after submitting the application. The petitioner did not challenge this Clause too. Thus, he is bound by the terms and conditions of the advertisement. Thus, the petitioner having not satisfied the mandatory requirements of producing the Residence Certificate at the time of submitting the application, the first respondent rightly rejected his claim. Accordingly, I find no merit in the Writ Petition. Since I am dismissing the Writ Petition in W.P.No.7662 of 2007, there is no necessity for me to consider the other Writ Petition. As the petitioner having failed to succeed in the Writ Petition in W.P.No.7662 of 2007, no cause of action survives for the petitioner to maintain the other Writ Petition in W.P.No.10295 of 2007. Accordingly, the same is also dismissed. No costs.
smn2 To The Divisional Retail Sales Manager Indian Oil Corporation Limited No.2, Race Course Road Chokkikulam, Madurai