Madras High Court
R.Sathiyan vs The Senior Area Manager on 12 August, 2009
Author: T.S.Sivagnanam
Bench: T.S.Sivagnanam
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 12/08/2009 CORAM THE HONOURABLE Mr.JUSTICE T.S.SIVAGNANAM Writ Petition No.7433 of 2009 and M.P.(MD)Nos.1 & 2 of 2009 R.Sathiyan ... Petitioner Vs The Senior Area Manager, Indian Oil Corporation Limited, Marketing Division, Indane Area Office Triveni, 2nd Floor, B-35, Sastri Road, Thillai Nagar, Trichy - 18. ... Respondent Petition filed under Article 226 of the Constitution of India praying for the issuance of writ of Certiorari, calling for the records relating to the impugned order passed by the respondent in his proceedings TRAO/28, dated 17.07.2009 and quash the same as illegal. !For Petitioner ...Mr.B.Saravanan ^For Respondent ...Mr.R.Ravi :ORDER
By consent, the writ petition is taken up for final disposal.
2.The petitioner is an applicant for appointment of LPG Distributorship pursuant to a notification issued by the respondent in the Hindu dated 06.02.2008. The prayer in the writ petition is to quash the order dated 17.07.2009 by which the respondent informed the applicant that his candidature has not been found to be eligible for award of the distributorship since the affidavit in annexure-A is not as per the format ie., removed clauses pertaining to eligibility/evaluation.
3.The facts leading to the filing of the above writ petition are as follows:
The petitioner applied pursuant to the notification dated 06.02.2008, for LPG distributorship for the area of operation of Karur Town under open category along with the application form, a list of 9 enclosures were to be enclosed including an affidavit as per the format in annexure-A. It is submitted by the petitioner that as per the annexure-A, the applicant is entitled to strike off whatever is not applicable and delete those which were not applicable. It is the case of the petitioner that due to sheer inadvertence para-6 of the affidavit in annexure-A was omitted to be typed and the same was submitted. This omission has resulted in passing of the impugned order.
4.The correctness of the impugned order is assailed on the following grounds:
"i)The para-6 in the affidavit as per the format in annexure-A is only directory and not mandatory,
ii)Even after a candidate is selected, the respondent Corporation can very well obtain such an affidavit after completion of the selection process
(iii)The failure to afford an opportunity to the petitioner to submit a affidavit with para-6 is in violation of principles of natural justice and the demand of fair play".
5.The respondent filed counter affidavit contending that 63 applications were received pursuant to the notification dated 06.02.2008 of which 17 applications were rejected due to non-compliance of the prescribed format and the petitioner's application is one such application which was rejected. Out of the 17 applications which were rejected 5 applications were on the ground identical to that of the writ petitioner. It is further contended that the affidavit in question contains affirmations relating to the capability of the petitioner to arrange finance among other things. Therefore, it is imperative that para-6 should be included by all the candidates while applying under open category. The respondent would rely upon their internal policy guidelines issued by the Indian Oil Corporation in which it has been clearly held that incomplete affidavits cannot be construed as proper applications. It is further submitted that the condition to submit an affidavit in the proper format is a mandatory condition and therefore, the application of the petitioner has been treated as an incomplete application and the rejection of his candidature is valid. On the above ground the respondent Corporation prayed for dismissal of the writ petition.
6.Learned counsel for the petitioner while reiterating the submissions made in the affidavit filed in support of the writ petition, would vehemently contend that this is not a case where the affidavit was not filed but whereas it was a case where para-6 is omitted to be typed, due to sheer inadvertence.
7.Learned counsel would further rely upon Clause 14 of the application and submit that under the said Clause which deals with capability to arrange finance, it has been mentioned that if on verification if it is found that the information given by the applicant is incorrect/false/misrepresented then the applicant's candidature will stand cancelled and will be ineligible for this LPG distributorship. By reading of the said condition, the learned counsel would submit that sufficient power has been reserved by the Corporation to cancel the distributorship if it is found that any of the information furnished regarding the capability to arrange finance is incorrect.
8.Learned counsel would further submit that in para-6 of the annexure- A(format of the affidavit to be signed) is also identical to clause 14 of the application. Added to that in case, it is found that the details as required in item No.14, is not made available as and when required, the offer of distributorship at any stage could be withdrawn and the applicant to undertake not to claim any damages against the oil company.
9.Learned counsel also invited the attention of this Court to the affidavit which was filed before the respondent and contend that in all other respects the affidavit satisfied the requirement and the omission to type para-6 is out of sheer and inadvertence.
10.Learned counsel would further submit that in respect of one other candidate P.Leelavathi who had applied for LPG distributorship pursuant to another notification dated 06.02.2008, had submitted a false declaration stating that she had passed PUC when infact she had failed in PUC. Though it was necessary to enclose the PUC pass certificate along with the application, the said candidate did not enclose the same and in spite of that her application was not rejected but an opportunity was granted to the said P.Leelavathi to produce the original document as well as the xerox copy at the time of interview. Therefore, learned counsel would submit that a similar opportunity could be granted to the petitioner to submit fresh affidavit in annexure-A with clause 6.
11.Learned counsel would place reliance on a decision of the Hon'ble Supreme Court reported in 2003 10 SCC 681 (K.Vinod Kumar Vs. S.Palanisamy and others) and state that the facts are identical to that of the present case and prayed for allowing the writ petition.
12.Learned counsel for the respondent on the other hand submitted that if any opportunity is granted to the petitioner at this stage, it would be opening of Pandora's box and several other rejected candidates will have to be extended the same benefit.
13.Learned counsel placed reliance on the condition No.19 of the notification dated 06.02.2008 and stated that applications which are incomplete in any respect will not be considered and no correspondence will be entertained by the oil company in such cases whatsoever.
14.Learned counsel would rely upon condition No.19(d) and submit that all affidavits have to be submitted in original along with the application. Learned counsel further submitted that the affidavit is of utmost importance, 35 marks was fixed for such details while the applications are assessed. Learned counsel for the respondent also invited the attention of this Court to the internal policy guidelines issued by the oil company for evaluation dated 28.01.2008 and submitted that under the said guidelines the incomplete application are where affidavit is not as per the format namely removed clauses pertaining to eligibility or pertaining to evaluation. Therefore, learned counsel would contend that it is a mandatory condition and cannot be stated to be directory. With regard to the case of P.Leelavathi, learned counsel for the respondent would submit that the facts and circumstances of the said case was totally different and not applicable to the case on hand.
15.Learned counsel would place reliance on the judgments of the Division Bench of this Court reported in 2006 WLR 574 (Dr.M.Vennila Vs. Tamil Nadu Public Service Commission, rep. by Deputy Secretary, Government Estate, Anna Salai, Chennai 600 002), 2006 WLR 964 (Dr.A.Rajapandian Vs. State of Tamil Nadu, rep.by its Secretary, Department of Animal Husbandry, Fort St., George, Chennai and others) and a unreported decision of this Court in W.P.No.29095 of 2008 dated 30.04.2009, for the proposition that there should be strict adherance to the terms and conditions in the information brochure/notification and in the absence of any specific rule, the instructions given to the candidates in the information brochure has to be adhered to and the candidates cannot rectify the defects subsequently.
16.In reply, learned counsel for the petitioner would contend that the judgments of the Division Bench of this Court in both the cases related to service matters would not be applicable to the facts and circumstances of the present case and in respect of the unreported decision of this Court in W.P.No.29095 of 2008, learned counsel would contend that in that case a photograph was required to be affixed which was not complied with by the applicant and the Court held that it is a mandatory condition and upheld the rejection. Learned counsel submitted that the facts of the present case are different and therefore, prayed for the allowing the writ petition.
17.I have heard Mr.B.Saravanan, learned counsel for the petitioner and Mr.R.Ravi, learned counsel for the respondent and perused the materials available on record.
18.For resolving the controversy, it is to be decided as to whether the petitioner should be permitted to submit a fresh affidavit including para-6 therein, which according to the petitioner was omitted to be typed due to sheer inadvertence. It is true that the notification issued by the respondent dated 06.02.2008 states that incomplete applications in any respect will not be considered and all affidavits have to be submitted in original along with the applications. In the instant case, the affidavit has been submitted. It is to be seen whether the submitted affidavit is incomplete affidavit and whether the respondent is justified in not considering the same. The reason assigned by the petitioner is that the omission is on account of inadvertence and that he has not suppressed any other details and on this hyper technical ground, he should not be shut out from the zone of consideration. Admittedly, the grant of distributorship is a distribution of state largess and the procedure adopted by the authorities should be fair and reasonable, transparent and in compliance with the statutory regulations and such other matters. The answer to the question which has arisen for consideration in this case has been already answered by the Supreme Court in the decision reported in 2003 10 SCC 681 (K.Vinod Kumar Vs. S.Palanisamy and others). In the said case, the notification was also for appointment of LPG distributorship by the Bharat Petroleum Corporation at several locations. The clause which came up for consideration before the Supreme Court is clause(g) of the said notification which pertains to the details of godown facilities, location of the land, applicant's willingness to transfer the land/facilities on ownership/long lease to the company. In the said clause (g), it was further stated that if an applicant, after selection, is unable to provide the land indicated by him/her earlier, within a period of two months, the allotment of the distributorship would be cancelled. The question which was considered by the Supreme Court in the said case was as to whether the said condition clause(g) is mandatory or directory. In para-8 of the said judgment, the Hon'ble Supreme Court held thus:
"8.So far as the requirement of Instruction (g) as stated above is concerned, it does not appear to be mandatory. The purpose of furnishing particulars of land in the application is to enable a determination as to whether the specified place would accommodate the godown facilities and distributorship arrangements from a commercial angle. This requirement is mandatory but satisfying the requirement at the stage of making the application is only directory. The particulars of such land can be made available even subsequent to the filing of the application, and may even be subsequent to the selection. The consequence of failure to make the suitable land available within a period of two months from the date of selection is that the selection of such candidate would be liable to be cancelled".
19.The Hon'ble Supreme Court held that furnishing of the particulars was mandatory but held that furnishing of such particulars at the stage of application was only directory. If we examine para-6 of the affidavit which has been omitted to be typed by the petitioner in the affidavit submitted by him along with the application, it is stated that if the details regarding the various sources of funds required for setting up and operation of the distributorship, is found to be not made available as and when required, the offer of distributorship, at any stage, can be withdrawn and the applicant is also required to give an undertaking, in such event, he will not claim damages whatsoever against the oil company.
20.The norms for evaluating the candidates dated 29.06.2007 has been submitted by the respondent in the typed set of papers filed in support of this writ petition. Under para 1.2 regarding allocation of marks on various parameters in respect of the obligation to provide godown facilities and other matters, the total marks which has been allotted is 35. Similarly, in respect of capability to provide finance, the total marks under different heads is also
35.
21.The Hon'ble Supreme Court while considering the condition regarding infrastructural facilities held that providing infrastructural facilities is mandatory to furnish all information at the stage of application is directory. It is to be noted that the percentage of marks allotted to both categories namely infrastructural as well as providing details of financial capacity are equal namely, 35 marks. Therefore, applying the ratio of the Hon'ble Supreme Court in the case of K.Vinodkumar, as referred to supra, I am of the opinion that the requirement to provide finance is mandatory but satisfying the requirement at the stage of making application is only directory.
22.It is further to be noted that on a combined reading of the Clauses 19- C and D of the notification dated 06.02.2008 and Para-6 of the affidavit in annexure -A would clearly establish that the furnishing all information at the stage of application is only directory which are as follows:
"19(c) Applications received after the cut-off date for any reason including postal delay, and those without accompanying valid documents including application fee or incomplete in any respect will not be considered and no correspondence will be entertained by respective Oil company in such cases whatsoever.
19(d) All affidavits have to be submitted in original along with the application.
6.@ that against item No.14 on my application form details of various sources of funds required for setting up and operation of the distributorship has been furnished. I undertake that these funds will be made available for the purpose of setting up and operation of distributorship. In case it is found that the same is not made available as and when required, the offer of distributorship, at any stage, can be withdrawn and that I will have no claim/damages whatsoever against the oil company".
23.Now coming to the decision relied on by the learned counsel for the respondent, it is to be noted that the decision of the Division Bench reported in 2006 WLR 574 (Dr.M.Vennila Vs. Tamil Nadu Public Service Commission, rep. by Deputy Secretary, Government Estate, Anna Salai, Chennai 600 002), was considering the effect of information/notification issued by the Tamil Nadu Public Service Commission inviting the candidates for direct recruitment to the post Assistant Surgeon in Tamil Nadu Medical Service has to be strictly complied with or not or in other words whether they are arbitrary. The Division Bench of this Court held that applications filed violations of the instructions are liable to be rejected and no modification or relaxation can be made by this Court in exercise of power under Article 226 of the Constitution of India.
24.The other matter in the case reported in 2006 WLR 964 (Dr.A.Rajapandian Vs. State of Tamil Nadu, rep.by its Secretary, Department of Animal Husbandry, Fort St., George, Chennai and others), the Division Bench of this Court was considering the case whether the application forms was not signed and declaration forms not filled up and what would be the effect of such applications. The Division Bench of this Court held that the Tamil Nadu Public Service Commission was justified in rejecting the unsigned applications.
25.The Division Bench judgments referred to supra pertaining to a notification issued by the Tamil Nadu Public Service Commission and the effect of unfilled/unsigned incomplete applications and as to whether the said applications have to be considered. In such circumstances, the Division Bench of this Court has held that the rejection was valid. In my opinion, the facts of the present case are couched in a different fashion in the sense that clause 14 of the application which reads as follows:
"14.Capability to Arrange Finance:
Please note that marks will be awarded to applicant on capability to arrange finance based on the information given by the applicant on the Gross Annual Income, Amount in Savings Bank Account, Value of investments in FD/Shares/MF etc., value of assets and ability to get loan from Banks/Financial Institution. On verification, if it is found that the information given by the applicant is incorrect/false/ misrepresented then the applicant's candidature will stand cancelled and will be ineligible for this LPG distributorship".
26.A perusal of the above clearly indicates that in case it is found that the details regarding source of funds required for the purpose of setting up and operation of the distributorship is not made available, as and when required, the offer of distributorship can be cancelled and can be withdrawn at any stage. Assuming that a declaration is made in item No.14 of the application and based on which the selection is done and agreement signed, it is well open to the respondent Corporation to cancel the distributorship if the applicant is unable to act in accordance with the information furnished in clause No.14. It is precisely the effect of such clause in respect of providing infrastructural facilities came up for consideration before the Supreme Court in the case of K.Vinod Kumar referred to supra. As already noted that as per the norms of evaluation the marks assigned for infrastructural and capability to provide finance are equal, with 35 marks for each. This condition was held to be mandatory and to be complied with by the distributor, but was held to be directory at the stage of making the application. It is not the case of the respondent that the applicant has not filled up the relevant condition in Sl.No.14 of the application. In paragraphs 21 and 22 of the typed set of papers filed in support of this writ petition, which is the Application, the applicant/petitioner has furnished all the details regarding his capability to provide finance and furnished the names of the bank accounts and other assets, properties of the families and such other details as required to be filled in clause 14.1 to 14.5 of the application. The only omission is that the declaration in the affidavit that in case, it is found that the petitioner is not able to make available, his distributorship is liable for cancellation and he cannot claim damages against the oil company. In my opinion, this condition is already incorporated in clause 14 of the application and the applicant has agreed to the said condition and signed the application format and submitted the same before the authorities.
27.Therefore, considering all the above mentioned factors, I am of the considered view that the impugned order of rejection is not sustainable in law and accordingly, the same is set aside. The writ petition stands allowed. It is submitted by the petitioner that the interview for the candidates are to be held between 13.08.2009 and 14.08.2009. The petitioner shall be permitted to attend the interview and participate in the selection process with other candidates and also be permitted to file a fresh affidavit incorporating Para-6. No costs. Consequently, M.P.(MD)Nos.1 and 2 are closed.
sms To The Senior Area Manager, Indian Oil Corporation Limited, Marketing Division, Indane Area Office Triveni, 2nd Floor, B-35, Sastri Road, Thillai Nagar, Trichy - 18