Karnataka High Court
Indian Oil Corporation Limited vs Shivayya Gagigeyya Bichagattimath on 14 September, 2023
Author: S.R. Krishna Kumar
Bench: S.R. Krishna Kumar
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NC: 2023:KHC-D:10687-DB
WA No. 100485 of 2022
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 14TH DAY OF SEPTEMBER, 2023
PRESENT
THE HON'BLE MR JUSTICE S.R. KRISHNA KUMAR
AND
THE HON'BLE MR JUSTICE G BASAVARAJA
WRIT APPEAL NO. 100485 OF 2022 (GM-RES)
BETWEEN:
INDIAN OIL CORPORATION LIMITED
BELGAUM DIVISION OFFICE
KHANAPUR ROAD, TILAKWADI
BELAGAVI CITY-590006
REP. BY SENIOR MANAGER (RETAIL SALES)
...APPELLANT
(BY SRI. C.V.ANGADI, ADVOCATE)
AND:
1. SHIVAYYA GAGIGEYYA BICHAGATTIMATH
AGE: 55 YEARS, OCC: AGRICULTURE,
R/O: AKKIPETH, III CROSS
NEAR VENKATESHWAR TEMPLE,
OLD HUBBALLI, HUBBALLI-580024.
2. KISHAN MERWADE S/O. ISHWARSA MERWADE
AGE: 47 YEARS, OCC: NOT KNOWN
JAGADISH T R R/O: LAKSHMANASA NAGAR MULGUND ROAD,
HIGH COURT OF
KARNATAKA GADAG-582103.
DHARWAD
BENCH ...RESPONDENTS
2023.10.10
11:11:17 +0530
(BY SRI.SHIVASAI M.PATIL, ADVOCATE FOR C/R1);
SRI. GOURISHANKAR H MOT, ADVOCATE FOR R2)
THIS WRIT APPEAL IS FILED U/S.4 OF KARNATAKA HIGH
COURT ACT, 1961, PRAYING TO ALLOW THIS WRIT APPEAL AND SET
ASIDE ORDER DATED 08-06-2022 PASSED IN W.P.NO.121079/2020
(GM-RES); TO DISMISS THE SAID WRIT PETITION.
THIS WRIT APPEAL COMING ON FOR PRELIMINARY HEARING,
THIS DAY, KRISHNA KUMAR J., DELIVERED THE FOLLOWING:
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NC: 2023:KHC-D:10687-DB
WA No. 100485 of 2022
JUDGMENT
This intra-Court appeal is directed against the impugned order dated 8.6.2022 passed in WP No.121079/2020, whereby the said petition filed by the respondent No.1/writ petitioner was allowed by the learned Single Judge.
2. Heard the learned counsel for the appellant;
learned counsel for respondent No.1 and learned counsel for respondent No.2 and perused the material on record.
3. The material on record discloses that on 25.11.2018, the appellant issued a notification for allotment of retail outlet in pursuance of which respondent No.1 submitted an application and was selected and intimation in this regard was issued to him on 5.2.2019. Subsequently, vide communication 5.4.2019, the appellant called upon the respondent No.1 to produce necessary documents which were submitted by him along with letter dated 22.04.2019.
In the said reply dated 22.04.2019, respondent No.1 stated that he had submitted OBC certificates of his two daughters.
He also stated that the earlier caste certificate dated -3- NC: 2023:KHC-D:10687-DB WA No. 100485 of 2022 4.2.2019 issued in his favour had been misplaced and accordingly, he had applied for fresh/new OBC certificate and that he would produce the same immediately after it was issued to him. However, the appellant rejected the candidature of respondent No.1 vide impugned Communication dated 8.6.2019, subsequent to which, Tahsildar issued a communication dated 3.1.2020 confirming that respondent No.1 belonged to category 3B and that a certificate dated 4.2.2019 had been issued in his favour. In pursuance of the same, respondent No.1 submitted a representation dated 14.1.2020 to the appellant and requested them to allot the dealership of the IOC retail outlet in his favour and since the appellant did not respond to the same, the respondent No.1 preferred the aforesaid writ petition which was contested by the appellant and was allowed by the learned Single Judge by passing the impugned order by holding as under:
"The petitioner, who sought for allotment of Retail Outlet Dealership in Huballi city, is before this Court seeking to quash the impugned communication dated 08.06.2019 at Annexure-J, whereby the petitioner was -4- NC: 2023:KHC-D:10687-DB WA No. 100485 of 2022 informed that his candidature has been found ineligible since he did not submit the required documents within stipulated time.
2. Learned Counsel for the petitioner submits that although the impugned communication does not specify as to what was the required document which was not submitted, it is not disputed that in the earlier communication dated 05.04.2019, it was brought to the notice of the petitioner that he had failed to produce the OBC certificate and therefore, the reason for which the candidature of the petitioner was rejected is that he failed to produced the OBC certificate. Learned Counsel for the petitioner submits that it is not disputed by the petitioner that Retail Outlet which was sought to be allotted by the respondent-Corporation was reserved for an OBC candidate. It is also not disputed that in the Application Form filled and uploaded by the petitioner, he had mentioned that he belongs to OBC category. Nevertheless, after the name of the petitioner was picked in the draw from among the eligible candidates for allotment of Retail Outlet Dealership, the petitioner was informed by a communication dated 05.04.2019 at Annexure-G that he has to produce the original OBC certificate. To this, the petitioner gave a reply dated 22.04.2019 at Annexure-H stating that he had applied to the Revenue Department seeking OBC certificate. However, his daughters viz., Swetha and Gowramma were already issued with OBC certificates and therefore on the strength of such certificates having been issued to the daughters, the -5- NC: 2023:KHC-D:10687-DB WA No. 100485 of 2022 petitioner had made a declaration in the application that he possessed the OBC certificate.
3. Learned Counsel submits that the petitioner being an agriculturist never had an occasion to seek OBC certificate. On the other hand, during the admission of his daughters to the schools and colleges, the petitioner had obtained OBC certificates for his daughters. Nevertheless, Annexure-K, is a communication dated 03.01.2020 made by the Tahsildar-Grade-II, Hubballi, stating that the Caste and Income certificate bearing No.RD003857956613 dated 04.02.2019 issued in the name of the petitioner is genuine and correct. It is clarified that the petitioner belongs to the Veerashaiva Lingayatha caste of category III-B of the backward classes. This information was also sought to be provided by the petitioner in terms of the communication dated 14.01.2020 at Annexure-L to the respondent- Corporation. Nevertheless, since, no positive reaction came from the respondent-Corporation, the petitioner filed this writ petition seeking to quash the impugned communication dated 08.06.2019 and to issue a direction to the respondent-Corporation to include the petitioner in the list of candidates eligible for draw of lots and accordingly, permit the petitioner to participate in the draw to be held on 22.01.2020. Learned counsel would further submit that during the course of these proceedings, the petitioner obtained a caste certificate and copy of the same has been furnished along with memo dated 03.02.2020.
4. During the course of these proceedings, respondent-Corporation informed this Court that in a subsequent allotment, a person by name Mr. Kishan -6- NC: 2023:KHC-D:10687-DB WA No. 100485 of 2022 Marwade was allotted the Retail Outlet Dealership, which was earlier allotted to the petitioner. Therefore, the petitioner filed an impleading application to implead the said Mr.Kishan Marwade. Though notice was served on Mr. Kishan Marwade, he did not appear before this Court. Therefore, while permitting the petitioner to implead Mr.Kishan Marwade as respondent No.2, this Court also held that the notice served on respondent No.2 is sufficient.
5. Learned Counsel for the respondent-Corporation submits that in terms of the Brochure of the respondent- Corporation for selection of dealer for regular and rural Retail Outlets dated 24.11.2018 at page No.12 where a note regarding submission of documents by the selected candidates is provided for, it is clear that all certificates/documents required for meeting eligibility/specific eligibility criteria should be in possession of the applicant and valid as on date of filing of the application. Coupled with these requirements, it is submitted that the petitioner has in fact made a declaration in the application stating that all information given in the application is true and correct. Learned Counsel submits that at column No.15 of the application an undertaking is also given by the petitioner that eligibility for Retail Outlet Dealership will be processed based on the information given in the application. However, on verification, if it is found that information given by the applicant is false or misrepresented, then the applicant's candidature will stand cancelled and that the applicant will be declared ineligible for allotment of Retail Outlet Dealership. The petitioner has also declared that he is in possession of the supporting -7- NC: 2023:KHC-D:10687-DB WA No. 100485 of 2022 documents in original in respect of the information given by the petitioner in the application and if selected, failure to present documents in original will result in cancellation of the selections due to submission of false/ unsupported information in the application. The learned Counsel submits that the petitioner has given a false information or misleading information by stating that he is in possession of the original OBC certificate, which the petitioner was admittedly not possessing as on the date of filing the application.
6. Learned Counsel for the respondent-Corporation seeks to place reliance on the following judgments:
(1) SHIV KANT YADAV VS. INDIAN OIL CORPORATION AND OTHERS (2007) 4 SCC 410;
(2) AVTAR SINGH VS. UNION OF INDIA AND OTHERS
(2016) 8 SCC 471; AND
(3) INDIAN OIL COPROTAION LIMITED AND
OTHERS VS. RAJ KUMAR JAH AND OTHERS,
RENDERED BY THE HIGH COURT OF PATNA,
(2012) 2 PLJR 783.
7. Per contra, learned Counsel for the petitioner draws attention of this Court to RAM KUMAR GIJROYA Vs. DELHI SUBORDINATE SERVICES SELECTION BOARD AND ORS.
(2016) 4 SCC 754 to contend that under similar circumstance where the appellant before the Hon'ble Supreme Court has submitted that OBC certificate after the cut off date, the Hon'ble Supreme Court held that the appellant therein who had declared himself as a Scheduled Caste candidate, was in fact a Scheduled Caste candidate by birth and not by acquisition of the category by any other event happening at a later stage.
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8. Heard the learned Counsels and perused the petition papers.
9. The issue as noticed is quite simple. The question is whether the candidature of the petitioner could be rejected by the respondent-Corporation on failure of the petitioner to produce the OBC caste certificate.
10. No doubt, on the plain reading of the Brochure and the contents of the application, which were filled and uploaded by the petitioner, it is clear that the petitioner was required to possess an OBC certificate and having been selected and when called for verification of the original documents and other information furnished by the petitioner, the petitioner was required to furnish the original OBC caste certificate.
11. The respondent-Corporation cannot be faulted for rejecting the candidature of the petitioner on the non- production of the original certificate at the hands of the petitioner. However, going by the decision of the Hon'ble Supreme Court in the case of RAM KUMAR GIJROYA (supra), it is seen that the Hon'ble Supreme Court has held that merely because the caste certificate was not produced or sought to be produced subsequent to the cut off date, that would not take away the eligibility of the petitioner who had declared that he belongs to the OBC category and eventually the OBC caste certificate has been issued in favour of the petitioner. It was therefore held by the Hon'ble Supreme Court that a certificate issued by the competent authority certifying the caste of a person is only an affirmation of fact which is already in existence. The -9- NC: 2023:KHC-D:10687-DB WA No. 100485 of 2022 purpose of such certificate is to enable the authorities to believe in the assertion of the candidate that he belongs to a particular category and act thereon by giving the benefit to such candidate for his belonging to such category. It was also held that it is not that petitioners did not belong to that category prior to cut off date or that they acquired the status only on the date of issuance of the certificate and in view of such position, necessitating upon a certificate being tendered subsequent to the cut off date, it was held that it would be clearly arbitrary and it has no rationale objective sought to be achieved. It was therefore held that the Constitutional Benches of the Hon'ble Supreme Court in the case of INDRA SAWHNEY AND ORS. Vs. UNION OF INDIA AND ORS. (AIR 1993 SC 447) and MRS.VALSAMMA PAUL Vs. COCHIN UNIVERSITY AND OTHERS (AIR 1996 SC 1011) while interpreting Articles 14, 15, 16 and 39A of the Directive Principles of State Policy held that the object of providing reservation to the SC/ST and educationally and socially backward classes of the society is to remove inequality in public employment, as candidates belonging to these categories are unable to compete with the candidates belonging to the general category as a result of facing centuries of oppression and deprivation of opportunity. The constitutional concept of reservation envisaged in the Preamble of the Constitution as well as Articles 14, 15, 16 and 39A of the Directive Principles of State Policy is to achieve the concept of giving equal opportunity to all sections of the society.
12. In the judgment cited by the learned Counsel for the respondent-Corporation, it can be seen that in the case
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NC: 2023:KHC-D:10687-DB WA No. 100485 of 2022 of SHIV KANT YADAV (supra) cancellation of allotment of the application seeking allotment of Dealership was upheld for giving a false information regarding income. It was also held that the applicant having given false information could not complain of the action of the Corporation in latter canceling the allotment made in favour of the applicant. However, such is not the case on hand. It cannot be held that the petitioner has mislead the respondent-Corporation. True it is that the petitioner had failed to produce the original OBC certificate as required under conditions of allotment. But, as noticed hereinabove, in the case of RAM KUMAR GIJROYA (supra), similar situation fell for consideration before the Hon'ble Supreme Court and the Hon'ble Supreme Court ruled in favour of the appellant therein. In the case of AVTAR SINGH (supra) the appellant therein had not furnished the information while securing employment as to the criminal case pending against him. Here, again the fact matrix is different. Even otherwise, the Hon'ble Supreme Court laid down certain yardstick, which could be applied depending upon the nature of post, higher post involving more rigorous criteria for all services, etc. It was held that for lower posts which are not sensitive, nature of duties, impact of suppression on suitability has to be considered by authorities concerned considering post/nature of duties/services and power has to be exercised on due consideration of various aspects. This would mean that even in the case of employment, it was held that the minor discrepancies could be ignored depending on the type of post that was sought to be filled by the authority. In the present context applying those principles, this Court would not hesitate to hold that the
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NC: 2023:KHC-D:10687-DB WA No. 100485 of 2022 Retail Outlet Dealership is reserved to a person belonging to OBC category. The petitioner had brought to the notice of the respondent-Corporation that the OBC caste certificates have been issued in favour of the petitioner's daughters. However, the petitioner had fairly submitted before the authorities that he had no occasion to seek an OBC certificate and therefore immediately after the authorities called upon the petitioner to produce the caste certificate, the petitioner applied for certificate and there was some delay in securing the certificate.
13. This Court, however, does not find any fault with the respondent-Corporation in taking a decision that since the petitioner failed to submit the certificate his candidature was rejected. The respondent-Corporation and its authorities are duty bound to follow the requirements as provided in the Brochure and standard set by the Corporation. Nevertheless, it is required to be noticed that by an interim order dated 14.12.2021, this Court had directed the respondent-Corporation not to issue any letter of intent to Mr.Kishan Marwade until further orders, the Corporation was restrained from allotting the Retail Outlet Dealership to any person.
14. For the forgoing reasons, this Court is of the considered opinion that the petitioner deserves to be allotted the Retail Outlet Dealership on production of the original caste certificate. Consequently, this Court proceeds to pass the following:
ORDER (1) The writ petition is allowed.
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NC: 2023:KHC-D:10687-DB WA No. 100485 of 2022 (2) The impugned communication dated 08.06.2019 at Annexure-J, is hereby quashed and set aside.
(3) Subsequent allotment, if any, made by the respondent-Corporation in respect of the Retail Outlet Dealership, for which the petitioner was selected shall stand annulled.
(4) The petitioner is hereby directed to furnish the original OBC certificate to the respondent- Corporation on or before 15.06.2022 with a covering letter.
(5) The respondent-Corporation shall verify the same and thereafter proceed to allot the Retail Outlet Dealership to the petitioner.
Ordered accordingly.
In view of disposal of the main petition, I.A.No.2/2020 stands disposed of.
4. As can be seen from the aforesaid impugned order, the learned Single Judge has taken into account the undisputed fact that respondent No.1 belonged to category 3B and had obtained OBC certificate on 4.2.2019 prior to the appellant calling upon him to produce OBC certificate vide communication dated 25.4.2019 in response to which, respondent No.1 had submitted OBC certificate of his daughters, which established that he belonged to category
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NC: 2023:KHC-D:10687-DB WA No. 100485 of 2022 3B as contended by him. The learned Single Judge also noted that the subsequent communication dated 3.1.2020 issued by the Tahsildar not only confirmed and reaffirmed that the respondent No.1 not only belonged to category-3B but also OBC certificate dated 4.2.2019 had already been issued in his favour. Accordingly, the learned Single Judge placed reliance upon the judgment of the Hon'ble Apex Court in the case of Ram Kumar Gijroya Vs. Delhi Subordinate Services Selection Board & Others1, in order to come to the conclusion that since the material on record clearly establishes that respondent No.1 belonged to category-3B and had already been issued OBC certificate in his favour coupled with OBC certificates of his two daughters already submitted by him to the appellant and in the light of well settled position of law that it is the factum of eligibility that was relevant and not production of documents, which was a curable defect and had at any rate been produced later by the respondent No.1, the impugned communication at Annexure-J dated 8.6.2019 was illegal, arbitrary and 1 (2016) 4 SCC 754
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NC: 2023:KHC-D:10687-DB WA No. 100485 of 2022 contrary to the material on record and the same deserves to be quashed.
5. Upon re-appreciation, re-evaluation and reconsideration of the entire material on record, we are of the considered opinion that the impugned order passed by the learned Single Judge does not suffer from any illegality or infirmity nor can the same be said to be perverse or capricious warranting interference by this Court in the present appeal. Accordingly, we do not find any merit in the present appeal and same is hereby dismissed.
Pending applications, if any, do not survive for consideration and accordingly, they are disposed off.
Sd JUDGE Sd JUDGE JTR List No.: 1 Sl No.: 113