Karnataka High Court
Sri Vinay R vs M/S. Indian Oil Corporation Ltd on 30 November, 2022
Author: Prasanna B. Varale
Bench: Prasanna B. Varale
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 30TH DAY OF NOVEMBER 2022
PRESENT
THE HON'BLE MR. PRASANNA B. VARALE, CHIEF JUSTICE
AND
THE HON'BLE MR. JUSTICE ASHOK S. KINAGI
WRIT APPEAL NO.1177 OF 2022 (GM-RES)
C/W
WRIT APPEAL NO.1184 OF 2022
IN W.A.NO 1177 OF 2022
BETWEEN:
SRI VINAY R
S/O LATE U. RAMA MURTHY
AGED ABOUT 40 YEARS
R/AT NO.11, 3RD 'A' CROSS
J.C. NAGAR
BENGALURU-560 086.
...APPELLANT
(BY SRI. D. R. RAVISHANKAR, SR. ADV., FOR
SRI. RAJASHEKAR S., ADVOCATE)
AND
1. M/S. INDIAN OIL CORPORATION LTD.
HAVING ITS REGISTERED OFFICE AT
INDIAN OIL BHAVAN, G-9, ALI YAVAR,
JUNG MARG, BANDRA (EAST)
MUMBAI - 400051
REP BY ITS MANAGING DIRECTOR
2
2. M/S INDIAN OIL CORPORATION LTD.
MARKETING DIVISION
BANGALORE DIVISIONAL OFFICER
INDIAN OIL BHAVAN
NO. 28, FIRST FLOOR, ANJUMAN K R TOWER
P KALINGA RAO (MISSION ROAD )
BENGALURU - 560027
REP BY ITS DIVISIONAL MANAGER (RETAIL SALES)
3. THE DEPUTY GENERAL MANAGER
(RETAIL SALES)
M/S INDIAN OIL CORPORATION LTD.
INDIAN OIL BHAVAN
NO. 28, FIRST FLOOR, ANJUMAN K R TOWER
P KALINGA RAO (MISSION ROAD )
BENGALURU - 560027
RESPONDENT NOS.1 TO 3 ARE REGISTERED
UNDER THE COMPANIES ACT.
...RESPONDENTS
(BY SRI. DHANANJAY JOSHI, SR. ADV. FOR
SMT. KAVITHA DAMODARAN, ADV. AND
SRI. VACHAN H. U., ADV. FOR C/R2)
THIS WRIT APPEAL IS FILED U/S 4 OF THE
KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE
THE ORDER DATED 09.11.2022 PASSED BY THE LEARNED
SINGLE JUDGE OF THIS HON'BLE COURT IN WP
NO.14919/2022 AND IN REVERSAL OF THE SAME, ALLOW
THE WRIT PETITION AS PRAYED FOR AND GRANT SUCH
OTHER AND FURTHER RELIEFS.
IN W.A.NO.1184/2022
BETWEEN:
SRI BALKUNJE DIWAKAR SHETTY
AGED ABOUT 52 YEARS
S/O LATE K JAGANNATH SHETTY
G-02 OM SHAKTI APARTMENTS
3
NO.1446/1438 25/26TH MIAN, 5TH 'A' CROSS
BTM LAYOUT 2ND STAGE
BENGALURU - 560076
...APPELLANT
(BY SRI. D. R. RAVISHANKAR, SR. ADV., FOR
SRI. RAJASHEKAR S., ADVOCATE)
AND
1. M/S. INDIAN OIL CORPORATION LTD.
HAVING ITS REGISTERED OFFICE AT
INDIAN OIL BHAVAN, G-9, ALI YAVAR,
JUNG MARG, BANDRA (EAST)
MUMBAI - 400051
REP BY ITS MANAGING DIRECTOR
2. M/S INDIAN OIL CORPORATION LTD.
MARKETING DIVISION
BANGALORE DIVISIONAL OFFICER
INDIAN OIL BHAVAN
NO. 28, FIRST FLOOR, ANJUMAN K R TOWER
P KALINGA RAO (MISSION ROAD )
BENGALURU - 560027
REP BY ITS DIVISIONAL MANAGER (RETAIL SALES)
3. THE DEPUTY GENERAL MANAGER
(RETAIL SALES)
M/S INDIAN OIL CORPORATION LTD.
INDIAN OIL BHAVAN
NO. 28, FIRST FLOOR, ANJUMAN K R TOWER
P KALINGA RAO (MISSION ROAD )
BENGALURU - 560027
RESPONDENT NOS.1 TO 3 ARE REGISTERED
UNDER THE COMPANIES ACT.
...RESPONDENTS
(BY SRI. DHANANJAY JOSHI, SR. ADV. FOR
SRI. VACHAN H. U., ADV. FOR C/R1)
4
THIS WRIT APPEAL IS FILED U/S 4 OF THE
KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE
THE ORDER DATED 09.11.2022 PASSED BY THE LEARNED
SINGLE JUDGE OF THIS HON'BLE COURT IN WP
NO.14925/2022 (GM-RES) AND IN REVERSAL OF THE
SAME, ALLOW THE WRIT PETITION AS PRAYED FOR AND
GRANT SUCH OTHER AND FURTHER RELIEFS AS THIS
HON'BLE COURT DEEMS FIT AND PROPER UNDER THE
FACTS AND CIRCUMSTANCES OF THE CASE IN THE
INTEREST OF JUSTICE AND EQUITY.
THESE WRIT APPEALS COMING ON FOR
PRELIMINARY HEARING THIS DAY, ASHOK S. KINAGI, J.,
DELIVERED THE FOLLOWING:
JUDGMENT
W.A.Nos.1177/2022 and 1184/2022 are filed under Section 4 of the Karnataka High Courts Act challenging the common order dated 09.11.2022, passed in W.P.Nos.14919/2022 and 14925/2022 respectively by the learned Single Judge.
2. Parties are referred to as per their ranking before the learned Single Judge. The appellant in W.A.No.1177/2022 is the petitioner in W.P.No. 14919/2022, the appellant in W.A.No.1184/2022 is the petitioner in W.P.No.14925/2022 and respondents are the respondents before the learned Single Judge. 5
3. Brief facts leading rise to filing of these appeals are as under:
The respondent issued a notification dated 31.03.2020 calling for an application from the eligible person for appointment as a Service Providers to such COCO Retail Unit. The petitioners applied for selection as a Service Provider for the COCO Retail Unit. The selection criteria was notified in the said notification and the guidelines for evaluation of appointment of Service Provider. The respondents allotted a marks to the candidates including the petitioners and the same was published in the notice board. Smt. Roopa Paul was selected. It is contended that Smt. Roopa Paul is in illegible to confer with Rank No.1 by mechanically assigning her higher marks in various categories. The petitioners challenged the selection of Smt. Roopa Paul in W.P.No.16390/2021. This court directed the respondents not to take any precipitative action on 22.10.2021. During the pendecy of the aforesaid writ petitions, the respondents issued a fresh 6 advertisement in engaging Service Provider for the COCO Retail Outlet. The action of the respondents in issuing fresh advertisement is illegal and arbitrary.
Hence, the petitioners filed the writ petitions.
The respondents filed the statement of objections contending that the selection criteria finalized by the Ministry of Petroleum and Natural Gas, Government of India for selecting Service Providers for the company owned and company operated (COCO) Outlets of all three Oil Marketing Companies i.e., Hindustan Petroleum Corporation Ltd., Bharat Petroleum Corporation Ltd., and Indian Oil Corporation all over the country. It is further contended that Ministry of Petroleum and Natural Gas, the Government has not made as a party in the writ petitions. Hence, the writ petitions are liable to be dismissed on the ground of non-joinder of necessary party. The necessary changes in the selection criteria are neither malicious nor arbitrary. It is contended 7 that the writ petitions are filed with a malafide intention of some how hanging on to the COCO dealership under some pretext or other. Hence, prayed to dismiss the writ petitions.
The learned Single Judge after hearing the parties, dismissed the writ petitions vide order dated 09.11.2022. The petitioners, aggrieved by the order passed in the aforesaid writ petitions, have filed this intra-court appeals.
4. Heard Sri D.R.Ravishankar, the learned Senior counsel for the petitioners and Sri Dhananjay Joshi, learned Senior counsel for the respondent No.2.
5. Learned Senior counsel for the petitioners submits that there is no nexus so as to put a condition/evaluation of Service Provider agency. He further submits that the petitioners can raise a grievance even after participating in the tender process. He further submits that when the petitioners 8 submitted their tender, the broacher was available and the petitioners are challenging the decision making process and further the conditions of evaluation mentioned in the broacher is arbitrary and the respondents are trying to show the nexus in the statement of objections. He submits that the action of the respondents in notifying the evaluation criteria based on the age is arbitrary and erroneous. In order to buttress his arguments, he has placed a reliance on the judgment of the Hon'ble Apex Court reported in 2002 SCC Online SC 1591, 1995 (1) SCC 478, (1989)2 SCC 505 and (2018)18 SCC 83. Hence, he submits that learned Single Judge committed an error in dismissing the writ petitions. Hence on these grounds, he prayed to allow the writ appeals.
6. Per contra, learned counsel for the respondents submits that the contract entered between the petitioners and respondents dated 01.01.2018 and 31.12.2020, the term of the contract 9 came to an end, but because of the pendency of the litigation, the respondents were unable to appoint anybody. He submits that the petitioners are successful in hanging outlets till date. He submits on 09.05.2022 fresh process initiated and he furthers submits that the broacher/guidelines was approved by the Ministry of Petroleum and not by the respondent- Company. He submits that the petitioners have not arrayed the Petroleum Department as a party in the writ petitions. Hence, he submits that the writ petitions are not maintainable for non-joinder of necessary party. He further submits that the relief sought in the writ petitions itself was misconceived. He submits that the petitioners could not have sought the relief against the Corporation and he further submits that the conditions mentioned in the broacher is a policy decision for the entire country. He further submits that except the petitioners none of them have challenged the conditions mentioned in the broacher. He submits that the learned Single Judge after 10 considering the entire material on record, was justified in dismiss the writ petitions.
7. Perused the records and considered the submissions of the learned counsel for the parties.
8. It is not in dispute that both the appellants are operating man power services at their respective COCO Retail Unit of the respondent-Corporation and the contract awarded to the appellants came to an end. The respondents issued a notification on 22.12.2020 seeking to select two persons in both the cases. The petitioners aggrieved by the notification dated 22.12.2020 preferred a writ petition in W.P.No.11806/2021 . During the pendency of the said writ petition, the impugned advertisement came to be issued by the respondents. It is notified in the said advertisement to download a broacher and other guidelines from the website. The learned Single Judge extracted the eligibility criteria, selection criteria and for guidelines evaluation and selection process, 11 declaration of results and empanelment in the case of tie in paragraph No.7 of the impugned order and further considering the eligibility criteria. The selection process was done in terms of the notification dated 01.07.2022. The learned Senior counsel for the petitioners submits that the age criteria that is stipulated for selection is arbitrary. To consider the said issue, the petitioners having accepted the terms and conditions mentioned in the broacher have participated in the selection process. It was only upon being unsuccessful, have challenge the result in the writ petitions. This was clearly not open to the appellant. The Principles of Estoppel would operate.
The Hon'ble Apex Court in the case of ASHOK KUMAR VS. STATE OF BIHAR reported in AIR 2017 SC (Civil) 98 held that the candidates did not challenge decision to hold fresh selection for the posts- participated in fresh process of selection-challenge to result of selection by them in writ petitions only on 12 being unsuccessful in selection not permissible and Principle of estoppel would be attracted.
Further, the Hon'ble Apex Court in the case of MADRAS INSTITUTE OF DEVELOPMENT STUDIES VS. DR. K. SIVASUBRAMANIYAN reported in AIR 2015 SCW 4847 held that decision of Academic Authorities about suitability of a candidate to be appointed as a Associate Professor in a research institute cannot normally be examined by the High Court under its writ jurisdiction and further held that person who consciously takes part in process of selection cannot turn around and questioned method of selection.
Further, the learned Single Judge relied upon the judgment of the Hon'ble Apex Court in the case of TATA CELLULAR VS. UNION OF INDIA reported in (1994) 6 SCC 651 held that the Court cannot sit on a Court of appeal but merely review the manner in which the decision was made and examination would be the decision making process and further, placed a 13 reliance on the judgment of the Hon'ble Apex Court in the case of MICHIGAN RUBBER (INDIA) LTD., VS. STATE OF KARNATAKA AND OTHERS reported in (2012)8 SCC 216 held that the basic requirement of Article 14 is fairness in action and non-arbitrariness in essence and substance is the heartbeat of fair play and further held that the scope of judicial review in contractual matter is restricted to the decision making process and further held that the petitioners have failed to establish arbitrariness and reasonableness and further held that it is for the corporation to draw up notification according to its necessities. The learned Single Judge has considered the submissions of the learned counsel for the parties and assigned the detail reason in dismiss the writ petitions. There is no dispute in regard to the law laid down by the Hon'ble Apex court in the judgment relied upon by the learned counsel for the petitioners. The said judgments are not applicable to the present case in hand. The learned Single Judge was justified in passing the 14 impugned orders. Accordingly, we do not find any errors in the impugned orders. Accordingly, we decline to interfere with the impugned orders. Hence we proceed to pass the following:
ORDER The writ appeals are dismissed.
In view of disposal of the writ
appeals, pending IAs., if any, do not
survive for consideration and are
accordingly disposed of.
Sd/-
CHIEF JUSTICE
Sd/-
JUDGE
ssb