Rajasthan High Court - Jodhpur
Smt. Priyanka Vyas vs Indian Oil Corporation Ltd. & Ors on 20 September, 2016
Author: Sangeet Lodha
Bench: Sangeet Lodha
CIVIL WRIT (CW) No.5086 of 2013
Smt. Priyanka Vyas vs.Indian Oil Corporation Ltd. & Ors.
1
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
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CIVIL WRIT (CW) No.5086 of 2013 PETITIONER:
Smt. Priyanka Vyas wife of Shri Yogesh Vyas, aged about 25 years, by caste Brahmin, resident of Yug Niwas, Near Pushtikar School, Inside Jalori Gate, Jodhpur.
Versus RESPONDENTS:
1.Indian Oil Corporation Ltd. through its Chairman and Managing Director, having its registered office at C-9, Ali Yawar Ganj Marg, Bandra (E), Mumbai-400 051
2.General Divisional Manager, Indian Oil Corporation Limited, Adarsh Nagar, Ashok Chowk, Jaipur.
3.Senior Divisional Retail Outlet Manager, Indian Oil Corporation Limited, Jodhpur Divisional Office, Sector-12, Chopasani Housing Board, Jodhpur.
Date of Order: September, 2016 HON'BLE MR.SANGEET LODHA,J.
Mr.M.S.Singhvi, Senior Advocate with Mr.Vinit Dave, for the Petitioner.
Mr.O.P.Mehta with Mr.V.D.Gaur, for the Respondents.
1. This writ petition is directed against the communication dated 22.2.13 of Senior Divisional CIVIL WRIT (CW) No.5086 of 2013 Smt. Priyanka Vyas vs.Indian Oil Corporation Ltd. & Ors. 2 Retail Outlet Manager, Indian Oil Corporation Ltd. ("IOCL"), informing the petitioner that her application for appointment as Service Provider for operation of IOC-COCO Retail Outlet at location Bhagat Ki Kothi, District Jodhpur, has been found ineligible for the reason that the Clause 2 & 6 of the affidavit annexed with the application as Appendix 'A' is not in format prescribed for selection of Service Provider as available on website of IOCL.
2. The relevant facts are that the IOCL vide advertisement published in the newspaper Rajasthan Patrika, Jodhpur edition, dated 1.10.12, invited applications for appointment of Service Provider for operation of IOC-COCO Retail Outlet at location Bhagat Ki Kothi, District Jodhpur. According to the petitioner, she submitted the application in the format of the application prescribed by the IOCL downloaded from its website. It is submitted that the format was also contained in the Brochure for selection of Petrol/Diesel CIVIL WRIT (CW) No.5086 of 2013 Smt. Priyanka Vyas vs.Indian Oil Corporation Ltd. & Ors. 3 Retail Outlet Dealers issued by IOCL, a copy whereof has been placed on record as Annexure 2. The petitioner also submitted an affidavit in the prescribed format Appendix 'A' affirming that she is married and her spouse, unmarried son and unmarried daughter does not hold Letter of Intent for Retail Outlet or SKO- LDO Dealership or LPG Distributorship of any oil company. As per Clause 6 of the prescribed format, the petitioner in her affidavit also affirmed that presently she is not having contract with any oil marketing company as a Service Provider/Job Contractor/Labour Contractor for any COCO RO and further that if she is selected as a dealer she would terminate this contract before issuance of letter of appointment. The affidavit submitted by the petitioner has been placed on record as Annexure 6.
3. Precisely, the case set out by the petitioner is that the application as well as affidavit filed by her alongwith the application clearly satisfies the CIVIL WRIT (CW) No.5086 of 2013 Smt. Priyanka Vyas vs.Indian Oil Corporation Ltd. & Ors. 4 requirements as laid down in the format Appendix 'A' prescribed by the respondent-IOCL and thus, rejection of the candidature of the petitioner has been made upon an absolutely incorrect and bogus basis. It is submitted that the purpose for issuing prescribed format by the IOCL for selection of Service Provider is to ensure that required true information be gathered from a candidate in order to see that standards to be maintained by the respondent Corporation are met and satisfied and therefore, the application made by the petitioner was not liable to be rejected on absolutely hyper technical ground. It is submitted that even if it is assumed that some error crept in, then the same cannot be said to be incorrigible which could not have been clarified/corrected. That apart, it is contended that the candidature of the petitioner has been rejected without giving her an opportunity of hearing which is violative of principles of natural justice.
4. A reply to the writ petition has been filed on CIVIL WRIT (CW) No.5086 of 2013 Smt. Priyanka Vyas vs.Indian Oil Corporation Ltd. & Ors. 5 behalf of the respondent taking the stand that the present petition has been filed in the month of May, 2013 whereas, the IOCL has already appointed Shri Gaurav Bhandari as a Service Provider for operation of COCO Retail Outlet at the location in question on 22.4.13. Accordingly, it is submitted that the petition filed is highly belated for the relief claimed and the same deserves to be dismissed on this count alone. It is submitted that the petitioner has not filed the affidavit in the prescribed format Appendix 'A'. In this regard, while referring to the contents of the format in which the petitioner has filed affidavit and the format actually prescribed, it is contended that apparently, the affidavit filed by the petitioner alongwith the application form is not in the prescribed format Appendix 'A'. It is submitted that Clause 2 & 6 of the affidavit submitted by the petitioner does not conform to the Clause 2 & 6 of the prescribed format of affidavit and therefore, the rejection of the candidature of the CIVIL WRIT (CW) No.5086 of 2013 Smt. Priyanka Vyas vs.Indian Oil Corporation Ltd. & Ors. 6 petitioner cannot be said to be arbitrary or unreasonable.
5. In the rejoinder filed, the petitioner while controverting the allegations levelled regarding suppression of the fact of appointment of Service Provider, it is submitted that the petitioner was not aware of the factum of appointment of Service Provider, neither any such information was supplied to the petitioner. According to the petitioner, the appointment of the Service Provider has been made by the respondent Corporation without rightly deciding the candidature of the petitioner and acting in highly discriminatory manner and therefore, the appointment made is absolutely illegal and inconsequential. Regarding Clauses 2 & 6 of the affidavit filed being not in conformity with the format of the affidavit prescribed as Appendix 'A', the petitioner has reiterated that since the informations supplied by the petitioner are not incorrect and since the requisite information has been CIVIL WRIT (CW) No.5086 of 2013 Smt. Priyanka Vyas vs.Indian Oil Corporation Ltd. & Ors. 7 submitted by the petitioner, her candidature was not liable to be rejected on absolutely wrong and technical reason.
6. Mr.M.S.Singhvi, Senior Advocate appearing for the petitioner contended that the petitioner had submitted the application and the affidavits in Appendix 'A' downloaded from the website of IOCL which does not contain any incorrect or false information and since the requisite informations have been set out in the affidavit filed, nothing turns on the question that the Clauses 2 & 6 of the affidavit filed by the petitioner are not strictly in conformity with the Clauses 2 & 6 of the prescribed format of the affidavit Appendix 'A'. Learned counsel submitted that when essential facts relevant for determining the eligibility were specifically set out in the affidavit filed, the candidature of the petitioner could not have been rejected on the ground that the affidavit filed was defective. In support of the contention, learned counsel has relied upon the CIVIL WRIT (CW) No.5086 of 2013 Smt. Priyanka Vyas vs.Indian Oil Corporation Ltd. & Ors. 8 decisions of the Hon'ble Supreme Court in the matter of "C.Buchiivenkata Rao vs. The Union of India & Ors.", (1972) 1 Supreme Court Cases, 734 and "Hina vs. Union of India & Ors.", (2016) 6 Supreme Court Cases
293.
7. On the other hand, Mr.O.P.Mehta, learned counsel appearing for the IOCL submitted that in terms of the advertisement issued the appointment of Service Provider for operating the COCO Retail Outlet at location in question was made only for a period of three years and the period of three years of the Service Provider appointed having expired on 20.4.16, the writ petition has rendered infructuous. Learned counsel submitted that as a matter of fact, while filing the petition, the petitioner has concealed the material facts from this court. Learned counsel submitted that the petitioner had filed the application so also the affidavit in the format prescribed for selection of Petrol/Diesel Retail Outlet Dealers, which are not the prescribed format for selection of Service Provider to operate CIVIL WRIT (CW) No.5086 of 2013 Smt. Priyanka Vyas vs.Indian Oil Corporation Ltd. & Ors. 9 COCO Retail Outlet. Learned counsel urged that the petitioner had mislead this court, by producing the Brochure issued by the IOCL for selection of Petrol and Diesel Retail Outlet Dealers and contending that the affidavit filed by her alongwith the application was in the prescribed format Appendix 'A'. Drawing the attention of this court to the guidelines issued by the IOCL for appointment of Service Provider placed on record as Annexure R/4, learned counsel urged that apparently the application form as also the affidavit filed by the petitioner for appointment as Service Provider is not in prescribed format and therefore, the IOCL was absolutely justified in holding the application by the petitioner ineligible. Learned counsel urged that the petitioner is guilty of concealment and suppression of material facts and therefore, the writ petition deserves to be dismissed with exemplary costs. Drawing the attention of the court to the Clauses 2 & 6 of the affidavit filed by the petitioner as also the format CIVIL WRIT (CW) No.5086 of 2013 Smt. Priyanka Vyas vs.Indian Oil Corporation Ltd. & Ors. 10 prescribed in Appendix 'A', learned counsel submitted that in Clause 2 of the affidavit filed, the facts regarding the existing contractor ship of the petitioner for COCO operation or her holding the Letter of Intent for Service Provider (or Contractor) for operation of the oil company are missing. Learned counsel would submit that the Clause 6 of the affidavit in the prescribed format Appendix 'A' prescribing the declaration regarding the petitioner not owning a land, wholly or partly, on which Retail Outlet is constructed and for which she has applied for the selection as Service Provider, is totally missing in the affidavit filed. Learned counsel submitted that in absence of the declaration as aforesaid in the affidavit filed, the petitioner could not have been held eligible for participating in the selection process for appointment of Service Provider and therefore, the action of IOCL in rejecting the candidature of the petitioner, is absolutely justified. Learned counsel urged that as laid down by a CIVIL WRIT (CW) No.5086 of 2013 Smt. Priyanka Vyas vs.Indian Oil Corporation Ltd. & Ors. 11 Bench of this court in the matter of "IOCL vs. Shyam Sunder" (D.B.Civil Special Appeal No.390/12, decided on 4.3.13), if the affidavit pertaining to the norms of eligibility is not as per the format prescribed, the rejection of the candidature cannot be faulted with.
8. Replying the arguments of the learned counsel for the respondent-IOCL, Mr.M.S.Singhvi, Senior Advocate submitted that in the advertisement issued there is no clause that if the affidavit is not found in the prescribed format, the candidature shall be liable to be rejected and therefore, the ratio of Bench decision in Shyam Sunder's case (supra) is not applicable to the facts of the present case. Learned counsel submitted that may be that the period of three years as provided for in the advertisement for appointment of Service Provider has expired but then, the petitioner who has been illegally denied the consideration for appointment as Service Provider cannot be denied the relief for this reason. Learned counsel submitted that the petitioner has CIVIL WRIT (CW) No.5086 of 2013 Smt. Priyanka Vyas vs.Indian Oil Corporation Ltd. & Ors. 12 come to know about the different guidelines for appointment of the Service Provider only by way of reply to the writ petition filed on behalf of the respondents. Learned counsel submitted that the candidature of the petitioner has not been rejected on the ground that the application filed by her was not in prescribed format and therefore, the contention sought to be raised by the counsel for the respondent for the first time before this court, deserves to be rejected for this reason alone.
9. I have considered the rival submissions and perused the material on record.
10. Indisputably, vide advertisement published in the newspaper 'Rajasthan Patrika' dated 1.10.12, the IOCL invited the application for appointment of Service Provider to operate its COCO Retail Outlet at the location Bhagat Ki Kothi, Jodhpur. It was specifically mentioned in the advertisement that the persons aspirant to make application may obtain Detailed CIVIL WRIT (CW) No.5086 of 2013 Smt. Priyanka Vyas vs.Indian Oil Corporation Ltd. & Ors. 13 Guidelines and Application Form from the office of Senior Divisional Retail Sales Manager, IOCL, Jodhpur Division Office, by paying Rs.50/- through demand draft in the name of 'Indian Oil Corporation Limited (MD)'. That apart, it was also clearly mentioned that the Guidelines and the Application Form may also be downloaded from the IOCL website www.iocl.com.
11. The petitioner was knowing fully well that she was applying for appointment as Service Provider to operate COCO Retail Outlet and therefore, she was required to be vigilant enough while downloading the Brochure and the Application Form. A bare perusal of the Application Form submitted by the petitioner, a copy whereof is placed on record reveals that the petitioner had applied in the application format meant for IOCL Retail Outlet (Petrol Pump) Dealership and not for appointment as Service Provider to operate COCO Retail Outlet and obviously, the affidavit filed alongwith the Application Form in the format Appendix A, was CIVIL WRIT (CW) No.5086 of 2013 Smt. Priyanka Vyas vs.Indian Oil Corporation Ltd. & Ors. 14 also in format prescribed for Retail Outlet Petrol Pump Dealership.
12. It is to be noticed that the entire edifice of the writ petition has been raised by the petitioner taking the stand that the petitioner applied for appointment as Service Provider as per the format of the application and the affidavit in Appendix A prescribed by the IOCL, which were downloaded from the website of IOCL. The copy of the Brochure and the application and affidavit format alleged to have been downloaded by the petitioner from the website of IOCL, are placed on record as Annexure-2 & 3. It is really strange that even after the receipt of communication dated 22.2.13 sent by the IOCL, communicating that the petitioner's application for subject location has been found ineligible for the reason that Clause 2 & 6 of the affidavit as per Appendix A, accompanying the application is not as per the format prescribed for Service Provider as available on IOCL website CIVIL WRIT (CW) No.5086 of 2013 Smt. Priyanka Vyas vs.Indian Oil Corporation Ltd. & Ors. 15 www.iocl.com, the petitioner did not care to verify the correctness of the reasons assigned and proceeded to file present writ petition insisting that the application and affidavit filed by her are in format prescribed. It is pertinent to note that in para no.10 of the writ petition, the petitioner has reproduced Clauses 2 & 6 of the format of the affidavit in Appendix A prescribed by the IOCL in respect of appointment of Service Provider but without discussing the variance of the declaration made in the affidavit with the prescribed format Appendix A, in the next para, the petitioner again reiterated that the affidavit submitted by the petitioner alongwith the application was absolutely proper and in accordance with the format prescribed by the IOCL in Clause 2 & 6 of the Appendix A, as appended to the format. It is pertinent to note that except quoting the Clause 2 & 6 of the Appendix A, to be filed by the applicant for appointment as Service Provider alongwith the application in prescribed format, in the entire petition, CIVIL WRIT (CW) No.5086 of 2013 Smt. Priyanka Vyas vs.Indian Oil Corporation Ltd. & Ors. 16 there is no reference that the appointment of the Service Provider is governed by different Guidelines and rather it is projected in the petition as if the appointment of the Service Provider is governed by the Brochure Annexure-2 placed on record.
13. Coming to the question whether the Clause 2 & 6 of the affidavit in format Appendix A are relevant for determining the eligibility of the applicant for appointment of Service Provider, it is not disputed before this Court that any individual including family member which in case of married person include self, spouse and unmarried son, unmarried daughter, who have dealership/distributorship/contractorship for COCO operation or hold Letter of Intent for retail outlet or SKO-LDO dealership or LPG distributorship/Service Provider (or contractor) for operation of COCO of any Oil Company is not entitled to apply for the appointment as Service Provider. Apparently, the Clause 2 of the format of affidavit in Appendix A relates CIVIL WRIT (CW) No.5086 of 2013 Smt. Priyanka Vyas vs.Indian Oil Corporation Ltd. & Ors. 17 to the said eligibility criteria and it is apparent on record that in Clause 2 of the affidavit filed by the petitioner, the declaration regarding the petitioner and her family members not having the Contractorship for COCO operation or the Letter of Intent for Service Provider or contractorship for operation of COCO of any Oil Company is missing. Similarly, in Clause 6 of the format of the affidavit in Appendix A, the petitioner was required to make a declaration that neither she nor any of her family members is owning a land wholly or partly on which the retail outlet is constructed for which she has applied for selection as Service Provider, but no such declaration was incorporated by the petitioner in the affidavit filed, obviously for the reason that the affidavit filed by the petitioner in the format was not meant for the applicants applying for appointment as Service Provider.
14. The eligibility of the applicant for appointment as Service Provider has to be determined on the basis of CIVIL WRIT (CW) No.5086 of 2013 Smt. Priyanka Vyas vs.Indian Oil Corporation Ltd. & Ors. 18 the eligibility criteria laid down and for this reason the application form to be submitted by the candidate is required to be accompanied by the requisite documents relevant for the purpose. In the considered opinion of this Court, the declaration required to be made by the applicant in Clauses 2 & 6 of the affidavit format in Appendix A, directly relates to the eligibility of the person applying for appointment as Service Provider and therefore, the action of the respondent-IOCL in holding the petitioner's application ineligible cannot be said to be illegal and arbitrary.
15. In Shyam Sunder's case (supra) relied upon by the counsel for IOCL, a Bench of this Court, where the contents in para no.4 of an affidavit filed by the applicant therein, who had applied for award of LPG distributorship, were at variance with the contents of para no.4 of the proforma affidavit published by way of corrigendum held that as per the Guidelines governing the process the application would be construed to be CIVIL WRIT (CW) No.5086 of 2013 Smt. Priyanka Vyas vs.Indian Oil Corporation Ltd. & Ors. 19 incomplete if the affidavit pertaining to the norms of the eligibility is not as per the format prescribed and accordingly, the rejection of the candidature of the applicant therein, was held to be justified.
16. It is true that the Guidelines issued by the IOCL for appointment of the Service Provider does not specifically provides that if the application is not accompanied by an affidavit in prescribed format, the application shall be treated to be incomplete, but then, it is apparent that as per the Guidelines prescribed, the eligibility of the candidate was required to be determined inter alia on the basis of the declaration made by him in Clause 2 & 6 of the prescribed format and therefore, in absence of such declaration in the format required, the action of the IOCL in rejecting the application of the petitioner, treating the same to be incomplete cannot be said to be arbitrary or unreasonable.
17. In C. Bucchivenkata Rao's case relied upon by the CIVIL WRIT (CW) No.5086 of 2013 Smt. Priyanka Vyas vs.Indian Oil Corporation Ltd. & Ors. 20 learned counsel for the petitioner, the Hon'ble Supreme Court where the consideration of the application of the petitioner for mining lease was governed by the provisions of Mineral Concession Rules, 1949 and the application was not accompanied by the proper map, the Hon'ble Supreme Court observed that the form of the application seems to be subordinate to the essential facts to be taken into account before granting a lease and since the Rules does not prohibit any grant on the ground that application for it is defective or not accompanied by map, it cannot be rejected and the defect was permissible to be removed. Suffice is to say that the defect in the application therein did not relate to the eligibility criteria as such and therefore, in the considered opinion of this Court, the decision of the Hon'ble Supreme Court in C. Bucchivenkata Rao's case (supra) does not help the petitioner in any manner.
18. In Heena's case (supra), where in respect of eligibility criteria for age, the applicant applying for CIVIL WRIT (CW) No.5086 of 2013 Smt. Priyanka Vyas vs.Indian Oil Corporation Ltd. & Ors. 21 allotment of retail outlet of petroleum/diesel dealership had produced an attested copy of school leaving certificate of Higher Secondary instead of Matriculation of Secondary School, the Court observed that if copy of secondary school leaving certificate meets the requirement, it does not make a difference in case the school leaving certificate is of the Higher Secondary School and accordingly, it was held that the school leaving certificate produced by the applicant satisfies the requirement of the corporation regarding proof of age. As noticed hereinabove, in the instant case, the eligibility of the petitioner for selection as Service Provider was to be determined on the basis of declaration to be made in the prescribed format of affidavit in Appendix A but requisite declaration was missing in the affidavit filed by her and therefore, on the facts of the case, the decision of the Hon'ble Supreme Court in Hina's case (supra) also does not help the petitioner in any manner.
CIVIL WRIT (CW) No.5086 of 2013 Smt. Priyanka Vyas vs.Indian Oil Corporation Ltd. & Ors. 22
19. Admittedly, pursuant to the advertisement issued, the appointment of the Service Provider was to be made for maximum period of 3 years and it was specifically laid down that the term of the contract shall not be further extended. It has come on record that Mr. Gaurav Bhandari was appointed as Service Provider pursuant to the advertisement issued on 22.4.13 and thus, the term for which the contract was awarded in his favour stands expired. In this view of the matter, at this stage even otherwise, the relief claimed by the petitioner cannot be granted and virtually the writ petition has rendered infructuous.
20. For the aforementioned reasons, in the considered opinion of this Court, the writ petition lacks merits and deserves to be dismissed.
21. Accordingly, the writ petition is dismissed. No order as to costs.
(SANGEET LODHA),J.
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