Calcutta High Court
Dayamayee Mondal vs Indian Oil Corporation Limited And Ors. on 7 August, 2006
Equivalent citations: 2006(4)CHN491
Author: Bhaskar Bhattacharya
Bench: Bhaskar Bhattacharya
JUDGMENT Prabuddha Sankar Banerjee, J.
1. This mandamus appeal at the instance of the appcllant is against the order passed by a learned Single Judge in W.P. No. 2642 (W) of 2004.
2. The said writ application was brought by the present appellant against Indian Oil Corporation and private respondent No. 4 challenging the selection of private respondent No. 4 as LPG Distributor at Khairasole, District Birbhum.
3. Pursuant to the guidelines by the Ministry of Petroleum and Natural Gas, Indian Oil Corporation published an advertisement on 16.02.2002 in the Ananda Bazar Patrika by which they invited application from female candidates belonging to Scheduled Caste category. Some criteria were duly mentioned in the advertisement for applying for the said dealership.
4. The present appellant along with the respondent No. 4 and few others applied for the said distributorship. The Indian Oil Corporation finally selected the respondent No. 4 as LPG distributor. The present appellant challenged the said selection on the ground that on the day of application, the private respondent No. 4 had no requisite qualification and was not a member of the Scheduled Caste community.
5. The learned Single Judge by the order impugned dismissed the application on the ground that such disputed question of fact cannot be agitated in the writ jurisdiction. The learned Single Judge was satisfied on the basis of xerox copy of the caste certificate of private respondent No. 4 and on the basis of the same he dismissed the writ application as the same was without any substance.
6. Sri Kalyan Bandopadhyay, learned senior Counsel appearing for the appellant challenged the impugned order mainly on the following grounds:
i) That at the time of submission of the application before the appropriate authority, the respondent No. 4 did not possess the requisite Scheduled Caste certificate.
ii) That the learned Single Judge erred in rejecting the writ application without considering the fact that the present appellant had strong case in her favour.
7. Sri Bandopadhyay further contended at the time of hearing that the present appellant is to be selected as LPG Distributor as she was serial No. 2 in the panel prepared by the Indian Oil Corporation.
8. Sri Kartick Bhattacharyya, learned Counsel appearing for the respondent No. 4, however, contended that the respondent No. 4 had requisite caste certificate at the relevant time as she produced the Scheduled Caste certificate of her brothers and also became a member of Scheduled Caste community after her marriage with her husband who also belongs to the Scheduled Caste community. Sri Bhattacharya further contended that the Scheduled Caste certificate of the respondent No. 4 was duly produced before the appropriate authority after the same was obtained subsequently. Sri Bhattacharya further submitted that there was no irregularity or illegality on the part of the Indian Oil Corporation in selecting his client as the LPG Distributor for the area as the same was done after observing all the formalities.
9. Sri Mitra, learned senior Counsel appearing for the Indian Oil Corporation also supported the impugned order. Sri Mitra contended further that the advertisement does not provide that the Scheduled Caste certificate must be submitted along with the application.
10. It is not disputed that when the private respondent No. 4 applied for the said dealership, she did not submit her own Scheduled Caste certificate issued by the competent authority. At that time, Scheduled Caste certificate issued by the Gram Panchayat was submitted.
11. Sri Bandopadhyay appearing for the appellant at the time of hearing referred to the advertisement and on the basis of the same it was submitted that possession of valid certificate at the time of submission of the application was a must. Sri Bandopadhyay further submitted that the Indian Oil Corporation called the respondent No. 4 for the interview on 16.10.2003 and in that letter the respondent No. 4 was asked to bring original documents.
12. The Scheduled Caste certificate of the respondent No. 4 was granted on 22.12.2003. Sri Bandopadhyay accordingly contended that even on the date of interview, the private respondent No. 4 did not possess the Scheduled Caste certificate. In spite of the same, the private respondent No. 4 was selected and was placed at Sl. No. 1 whereas the present appellant was placed at sl. No. 2 and the result was published on 16.10.2003 i.e. on the date of interview. Sri Bandopadhyay challenged the said selection on the ground that though the private respondent No. 4 did not possess the Scheduled Caste certificate issued by the competent authority which was a 'must' as per advertisement, the Indian Oil Corporation illegally selected the private respondent No. 4. In support of his contention Sri Bandopadhyay relied upon the case of Bhupinderpal Singh and Ors. v. State of Punjab and Ors. reported in AIR 2000 SC 2011. He relied upon paragraph 13 of the said reported case which runs as follows:
13. Placing reliance on the decisions of this Court in Ashok Kumar Sharma v. Chander Shekhar 1997(4) JT (SC) 99; A.P. Public Service Commission v. B. Sarat Chandra 1990(4) Serv LR 235 (SC); Dist. Collector and Chairman, Vizianagaram (Social Welfare Residential School Society) Vizianagaram v. M. Tripura Sundari Devi 1990(4) Serv LR 237 (SC); Rekha Chaturvedi v. University of Rajasthan 1993(1) JT (SC) 220: 1993 AIR SCW 1488: 1993 Lab IC 1250; M.V. Nair v. Union of India 1993(2) SCC 429 : 1993 AIR SCW 1412 : 1993 Lab IC 1111; and U.P. Public Service Commission, U.P., Allahabad v. Alpana 1994(1) JT (SC) 94 : 1994 AIR SCW 2861, the High Court has held (i) that the cut off date by reference to which the eligibility requirement must be satisfied by the candidate seeking a public employment is the date appointed by the relevant service rules and if there be no cut off date appointed by the rules then such date as may be appointed for the purpose in the advertisement calling for applications; (ii) that if there be no such date appointed then the eligibility criteria shall be applied by reference to the last date appointed by which the applications have to be received by the competent authority. The view taken by the High Court is supported by several decisions of this Court and is therefore, well-settled and hence cannot be found fault with. However, there are certain special features of this case which need to be taken care of and justice done by invoking the jurisdiction under Article 142 of the Constitution vested in this Court so as to advance the cause justice.
13. On the basis of the same, it was submitted that the cut off date should be the date of application as per advertisement in the absence of any Rule.
14. In Satyendranath Mondal v. Hindusthan Petroleum Corporation Limited and Ors. reported in 1994(1) CHN 362, the Division Bench of this Court came to the following findings:
16, As already indicated above, the respondent No. 5 Radhakrishna had, admittedly, obtained the highest mark and the writ petitioner appellant Satyendra Nath Mondal had obtained the second highest mark at the interview by the Board on 9.12.87, and empanelled by it a the only two eligible candidates for the relevant purpose. Since the respondent No. 5, Radhakrishna Roy, on the face of the materials on record and in view of the discussions above, does not at all appear to be eligible for being awarded the subject Dealership, the writ petitioner-appellant-Satyendra Nath Mondal, having, admittedly, obtained the second highest mark and empanelled by the Board as the other lone eligible candidate for the purpose of carrying out filed investigation, must certainly be held eligible for being awarded the subject Dealership as a matter of course on the selection made by the Board itself, the Board not having found any other better candidate than him, amongst the intending candidates, who had participated in the matter. As observed by the learned Trial Judge himself, the Board is a High Level Body consisting of a retired High Court Judge and a retired Civil Servant, which is an independent entity. The learned Judge had also observed that there could be minimal scope for alleging mala fide against such a body. The said High Level Body, upon due consideration of the applications/cases of all the intending candidates, had, admittedly, granted the second highest mark to the writ petitioner-appellant-Satyendra Nath Mondal. The respondent No. 5 Radhakrishna, who had been given the highest mark by the Board, being found utterly ineligible for being awarded the subject dealership, the selection of the appellant-Satyendra Nath Mondal for the subject Dealership should be deemed to be a selection by the Board itself, in the aforesaid circumstances. The appellant-Satyendra Nath Mondal would accordingly be entitled to be awarded the subject Dealership, in the aforesaid facts and circumstances. That would, in effect, amount to giving effect to the selection made by the Selection Board in the relevant matter. In this context, we would feel tempted to refer to the observations made by the Hon'ble Supreme Court of India in the decision in Comptroller and Auditor General of India, Gian Prakash, New Delhi and Anr. v. K.S. Jagannathan and Anr. AIR 1987 SC 537, which runs as follows:
There is thus no doubt that the High Courts in India exercising their jurisdiction under Article 226 have the power to issue a writ of mandamus or a writ in the nature of mandamus or to pass orders and give necessary directions where the Government or a public authority has failed to exercise or has wrongly exercised the discretion conferred upon it by a Statute or a rule or a policy decision of the Government or has exercised such discretion mala fide or on irrelevant consideration or by ignoring the relevant considerations and materials or in such manner as to frustrate the object of conferring such discretion or the policy for implementing which such discretion has been conferred. In all such cases and in any other fit and proper case a High Court can in the exercise of its jurisdiction under Article 226, issue a writ of mandamus or a writ in the nature of mandamus or pass orders and give directions to compel the performance in a proper and lawful manner of the discretion conferred upon the Government or a public authority, and in a proper case, in order to prevent injustice resulting to the concerned parties the Court may itself pass an order or give directions which the Government or the public authority should have passed or given had it properly and lawfully exercised its direction."
15. On the basis of the same, Sri Bandopahdyay contended that the present appellant who was sl. No. 2 in the panel prepared by the Indian Oil Corporation is to be selected automatically as the LPG Distributor, if it is found that selection of the private respondent No. 4 is against law.
16. Sri Mitra, learned senior Counsel appearing for the Indian Oil Corporation however, challenged the said plea on the ground that on the basis of available documents, the Indian Oil Corporation selected the respondent No. 4 as the best candidate and as such, the order of the learned Single Judge should not be interfered with.
17. Sri Mitra, at the same time, contended that in the advertisement it was not mentioned that submission of caste certificate along with application was pre-condition for considering the said application.
18. In the advertisement, it has been specifically mentioned under the heading Scheduled Caste (SC) "Candidates belonging to this category should possess a certificate of Scheduled Caste category issued by a competent authority notified by Government of India." Item No. 12 of the said advertisement states that "application form with enclosure complete in all respects must be submitted....
19. Sri Mitra further submitted that item No. 12 along with item No. 10 do not provide that Scheduled Caste certificate is to be submitted along with the application form.
20. We cannot agree with Sri Mitra in this regard. The advertisement is to be read as a whole and we cannot take the isolated part of the said advertisement. On reading the said advertisement, it is crystal clear that possession of Scheduled Caste certificate at the time of submission of the application is a must.
21. Sri Mitra relied upon the case of State of Jammu and Kashmir v. Chandrasekhar and Ors. reported in 1993(2) SCC 611 and Aruna Ben T Bhojak v. Ahmedabad Education Society and Ore. reported in 1995(3) SCC 120.
22. Sri Mitra in course of his strenuous argument tried to impress upon us that in view of said reported cases, the respondent i.e. Indian Oil Corporation has a very good case and their action in selecting the private respondent as LPG Distributor was correct. Sri Mitra further contended that the private respondent was selected by the Indian Oil Corporation as she was able to obtain the Scheduled Caste certificate though, at a belated stage. Accordingly, Sri Mitra submitted that the Division Bench should not interfere with the findings of the learned Single Judge.
23. In the case reported in 1993 Supple (2) SCC 611, the, applicants had no educational qualification when they applied for. Subsequently, at the time of interview they had the requisite qualification and accordingly, the Supreme Court came to their rescue.
24. In this case it is not disputed that at the time of submission of application by the private respondent she did not possess the Scheduled Caste certificate.
25. It is also not disputed that at the time of interview she was not in possession of the Scheduled Caste certificate. The said Scheduled Caste certificate issued by the competent authority was obtained long after the interview was over.
26. In view of the said position, we are of the clear view that the case as referred to by Sri Mitra is not applicable in the instant case.
27. Let us now consider the case reported in 1995(3) SCC 120.
28. It is seen that in that case, the post was reserved for ST. Initially ST candidate was lacking experience but the same was subsequently acquired. The post was filled up by a general candidate. The Apex Court came to the conclusion that as the ST candidate obtained the requisite experience subsequently, her selection was approved.
29. In the instant case, the appellant as well as the private respondent belong to Scheduled Caste community and there was no question of appointment of female from the general caste. In view of the said position the said case will also not help the Indian Oil Corporation.
30. On the basis of material on record it is crystal clear that when the application by private respondent No. 4 was made, she was not in possession of the Scheduled Caste certificate issued by a competent authority which was the prime criterion. In the absence of the same, the said application by the private respondent is to be treated as invalid one and selection of the private respondent No. 4 on the basis or the said invalid application is void ab initio
31. We are, thus, of the opinion that there was mistake on the part of the learned Single Judge in rejecting the writ application and we are also of the opinion that the said order is required to be set aside. Accordingly, this mandamus appeal is allowed. The order impugned passed by the learned Single Judge is hereby set aside. The selection of private respondent, namely, Shaymali Saha as LPG Distributor at Khoirasole is hereby cancelled.
32. It appears from the result of the selection by the Indian Oil Corporation which is Annexure 'R-1' to the affidavit-in-opposition, that it prepared a list of three selected candidates in order of merit and that the appellant figured as No. 2. As the No. 1 has been found to be ineligible, we direct the respondents to select the appellant in place of the private respondent No. 4. Necessary step be taken within three weeks.
33. In the facts and circumstances, there will be, however, no order as to costs.
Bhaskar Bhattacharya, J.:
I agree.
Later:
34. Let xerox certified copy of this order be given to the parties within two days from the date of making such application.