Rajasthan High Court - Jaipur
Hemlata Gupta vs Hindustan Petroleum Corp Ltd Ors on 10 October, 2017
Author: Mn Bhandari
Bench: M.N.Bhandari
HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT
JAIPUR
S.B. Civil Writ Petition No. 9334/2015
Hemlata Gupta wife of Ravindra Kumar Gupta, aged about 40
Years, resident of Bapawar Kalan, Tehsil Sangod, District Kota.
Petitioner
Versus
1- Hindustan Petroleum Corporation Limited, a Government of
India Enterprises, registered office 17, Jamshedji Tata Road,
Mumbai-400020 through Chairman.
2- Senior Regional Manager, Hindustan Petroleum Corporation
Limited, Udaipur, Retail Regional Office, 50, Saheli Nagar,
New Polo Ground, Udaipur-313001.
3- Senior Regional Manager and duly constituted Attorney,
Hindustan Petroleum Corporation Limited, Udaipur, Retail
Regional Office, 50, Saheli Nagar, New Polo Ground, Udaipur-
313001.
4- Om Prakash Mehta son of Shri Bheru Lal Mehta, Mehta
Tractor, Bapawar Road, Village Sangod, District Kota.
Respondents
_____________________________________________________ For Petitioner(s) : Mr. Bipin Gupta For Respondent(s) : Ms. Suruchi Kasliwal - for HPCL Mr. Arvind Bhardwaj - for No.4 _____________________________________________________ HON'BLE MR. JUSTICE M.N.BHANDARI Judgment 10/10/2017 (2 of 9) [CW-9334/2015] By this writ petition, a challenge is made to the order dated 8th May, 2015 and Letter of Intent ("LOI") issued in favour of private respondent No.4-Om Prakash Mehta.
Learned counsel for petitioner submits that an advertisement was issued for retail outlet dealership. The applications were submitted by the petitioner and others. They were called for the interview and after it, the petitioner was placed at No.1 in the merit list having secured 85.77 marks. The next person was Om Prakash Mehta having secured 77.77 marks. The petitioner should have been given LOI.
On a complaint made by private respondent-Om Prakash Mehta, six issues were framed, out of which, first four were decided in favour of the petitioner and next two against him. Out of the two issues decided against the petitioner, first issue was pertaining to experience. It has not been counted for the reason that salary was not drawn by the petitioner at the place where she had worked and, accordingly, conclusion was drawn that she should have been awarded zero mark, out of four. If petitioner is awarded zero mark out of four, she would still be at No.1 and above the private respondent-Om Prakash Gupta.
The other issue was about marital status of the petitioner. Her name was Hemlata Agarwal prior to marriage and Hemlata Gupta subsequently. The name of the petitioner remained the same, however, surname changed due to marriage. When petitioner was served with the show cause notice in the year 2011, she immediately submitted a marriage certificate to show reason of change of the surname. The petitioner was ousted on (3 of 9) [CW-9334/2015] that count ignoring that her name did not change after marriage, rather, it remained Hemlata itself thus petitioner's elimination is not legal.
It is also stated that due to elimination of the petitioner, the respondent-HPCL decided to award retail outlet dealership to the private respondent-Om Prakash Mehta. He was not entitled due to pendency of criminal cases, where charges had been framed. It was not disclosed, rather, suppressed by him. The petitioner gave information about it in the year 2012 while sending reply to the show cause notice but no cognizance was taken. As per guidelines, if a candidate has been convicted or against whom charges have been framed by the court of law then he is not qualified. The private respondent was yet held eligible in disregard to the guidelines.
It is further stated that private respondent offered two lands, out of which, one was mutated in his favour subsequent to the last date of submission of the application. Out of the two lands offered by the private respondent, a land having 0.16 hectares was not confirming to the requirement having no road thus additional land was offered and taken into consideration by the official respondents. The land subsequently offered should not have been taken into account by the official respondents. On both the grounds, private respondent should have been disqualified but the official respondents ignored the aforesaid to favour him. In view of the above, impugned order be set aside.
Learned counsel for respondents have contested the writ petition. It is stated that so far as petitioner is concerned, her (4 of 9) [CW-9334/2015] experience certificate was taken into consideration. No payment towards salary was made thus she was not found entitled to any marks, accordingly, a direction was given to award zero mark out of four.
The second issue was about marital status of the petitioner. She was required to submit marriage certificate or an affidavit for change in name. It is to find out what was her maiden name and surname subsequently. The document was required to be submitted along with application. The petitioner failed to do so, rather, marriage certificate was submitted subsequent to the application and could not be accepted as per terms and conditions of the guidelines. Accordingly, it was ignored and petitioner was not entitled to get retail outlet dealership in absence of completion of all the formalities as per the guidelines.
It is further stated that so far as private respondent-Om Prakash Mehta is concerned, he had offered both the lands simultaneously i.e. at the time of submission of application. The allegation of subsequent offer of the land is incorrect. The petitioner has taken mutation to be a subsequent offer, whereas, as per guidelines, agreement to purchase is considered as "owned land". The land offered by the private respondent was inconformity to the requirement thus allegations made by the petitioner are not acceptable.
So far as pendency of the criminal cases against the private respondent are concerned, no information about it was given by the petitioner. The private respondent-Om Prakash Mehta was called to submit character certificate. It was obtained and (5 of 9) [CW-9334/2015] furnished on 11th December, 2014. The character certificate given in his favour was taken into consideration and thereby, the private respondent was held eligible.
Learned counsel appearing for the private respondent further stated that criminal cases resulted in acquittal subsequently thus he could not have been disqualified.
I have considered the rival submissions made by learned counsel for the parties and perused the record.
The facts pertaining to the case need not to be reiterated other than so relevant for decision on the issues raised by the parties. The petitioner failed to submit marriage certificate or an affidavit of the required nature to indicate her status after marriage. It was required as per Para 16(h) of the guidelines and said para is quoted hereunder for ready reference:
"16(h) Married Women applicant with change of name after marriage should submit a copy of the marriage certificate or an affidavit in support of the maiden name and name after marriage."
The petitioner submitted marriage certificate subsequent to the last date of submission of the application form, rather, on a show cause notice. The subsequent document was not admissible in view of Para 9(i) of the guidelines thus official respondents had rightly refused to consider her case. In view of the above, I do not find any illegality in the decision made by the committee due to non-submission of the marriage certificate or required affidavit along with the application.
(6 of 9) [CW-9334/2015] The issue now relates to private respondent-Om Prakash Mehta. His candidature has been challenged on two counts. So far as offer of lands is concerned, I find that document of the required nature was submitted along with application and is coming out from the material on record. The mutation subsequently entered does not effect it because as per the guidelines, even agreement to purchase is considered to be inconformity to the requirement. Both the lands were offered along with application thus allegation of offer of land subsequent to the application is not made out. In that regard, the guidelines submitted by the parties are relevant where definition of "owned land" and other categories has been given with clarification as to what type of document has to be submitted. It include even agreement for purchase. Accordingly, I do not find any substance in the first argument raised by learned counsel for petitioner against private respondent.
The other issue is regarding pendency of the criminal cases against private respondent. Para 5 of the guidelines has been referred and is quoted hereunder for ready reference:
"5. Disqualification The following are not eligible:
(a) Candidates convicted or against whom charges have been framed by a Court of law for any criminal offence involving moral turpitude/economic offence (other than freedom struggle).
(b) Mentally unsound person/totally paralysed person.
(7 of 9) [CW-9334/2015]
(c) Signatory to an agreement of a RO/SKO-LDO dealership/ LPG distributorship of any oil company terminated on the grounds of adulteration/malpractice.
(d) Guilty of wilfully giving wrong information." The para quoted above shows disqualification. If a candidate has been convicted or against whom charges have been framed by the court of law for any criminal offence involving moral turpitude/economic offence (other than freedom struggle) then is disqualified. The document on record shows that two cases were pending against the private respondent at the time of submission of the application. The nature of the cases has also been given in the document submitted by the petitioner. The private respondent did not disclose pendency of those cases while submitting application. It may be for the reason that column in the application was at variance with the guidelines. It was requiring disclosure only when a person is convicted.
Learned counsel for respondent-HPCL was asked as to what would prevail i.e. guidelines or the application form looking to the variance between two. She fairly admits that guidelines would prevail. The consideration of the candidature is made in consonance to the guidelines. The guidelines provide disqualification if charges have been framed in the criminal case of moral turpitude/economic offence. The information about pending cases against the private respondent was given by the petitioner in reply to the show cause notice, that too, in the year 2012 itself. In any case, even if it is assumed that HPCL could not know about (8 of 9) [CW-9334/2015] pendency of criminal cases at a later stage and asked the private respondent to get character certificate. It was obtained and furnished on 11th December, 2014 showing good character though two criminal cases were pending even on the aforesaid date. How character certificate was managed by the private respondent is not to be commented but reflects on his conduct. Based on the aforesaid certificate, the HPCL proceeded further and issued LOI in favour of the private respondent. The fact, however, remains that even on the date of character certificate, two criminal cases were pending against the private respondent. The respondent-HPCL has ignored the aforesaid.
The question is as to whether non-discloser and subsequent acquittal would wash the disqualification attached in the guidelines. Whether it is to be seen on the date of application or on the subsequent date. If subsequent date is relevant then there was no reason to ignore the candidature of the petitioner who had also submitted marriage certificate immediately on service of show cause notice. In view of the aforesaid, even private respondent was not eligible to get retail outlet dealership.
At this stage, learned counsel for respondents submitted that criminal cases were not involving moral turpitude. I find no pleading to this effect so as to be decided and determined the issue aforesaid. It is not a case of the respondents that though criminal cases after framing charges were pending but was not involving moral turpitude. Altogether a new case cannot be made contrary to what has been pleaded otherwise no opportunity would exist with the petitioner to clarify the aforesaid.
(9 of 9) [CW-9334/2015] Taking into consideration the facts of the case, I find that while the petitioner was rightly disqualified but respondent No.4 was also not eligible in view of the facts given above. Thus while setting aside the order impugned herein, the HPCL is given liberty to re-advertise the location or if guidelines permit to consider candidature of other applicants, if any, then to proceed accordingly. The petitioner as well as private respondent may apply again if advertisement is issued by the respondent-HPCL.
The writ petition stands disposed of with the aforesaid.
(MN BHANDARI) J.
FRBOHRA