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2004 DIGILAW 90 (PAT)

Rajni Shahi v. Union Of India

2004-01-21

S.K.KATRIAR

body2004
Judgment 1. Heard Mr. Vishwanath Prasad Singh for the petitioner, Mr. Ajay Tripathi for respondent nos. 4 and 5 (Bharat Petroleum Corporation Limited), and Mr. Rajendra Prasad Singh for respondent no. 7 (Smt. Nasema Khatoon). This writ petition in substance has been preferred to quash the selection of respondent no. 7 as the L.P.G. distributor for Belsand, district Sitamarhi and to appoint the petitioner in her place, or, in the alternative, to quash the entire selection process. 2. The respondent Corporation published an advertisement which appeared in the local dailies on 6.9.2000 (Annexure-1), inter alia, inviting applications for appointment of L.P.G. distributor at Belsand (Sitamarhi), reserved for the category of women. The petitioner and respondent no. 7 were also applicants, who appear at serial no. 2 and serial no. 1 of the meritlist. 3. While assailing the validity of the impugned selection, learned counsel for the petitioner submits that the land offered by respondent no. 7 is unsuitable for various reasons. He next submits that the land offered by the respondent no. 7 was changed at a later date which violates the essential terms and conditions of the advertisement. He also submits that respondent no. 7 is not a resident of the district of Sitamarhi and has, therefore, disqualified herself from consideration. He next submits that respondent no. 7 had received interview letter stating that she will be interviewed on 11.9.2001, which was in violation of the stipulation in the interview letter, which was extended to 12.9.2001. He lastly submits that the repsondent authorities have not made available the original records of the Dealer Selection Board. 4. Learned counsel for the two sets of respondents have in their separate submissions supported the impugned action. 5. I have perused the materials on record and considered the submissions of learned counsel for the parties. The first submission on behalf of the petitioner is that the land initially offered in the application can not be changed. The same was admittedly changed at a later stage of the selection process. The relevant clause of the advertisement is set out hereinbelow for the facility of quick reference : 5.1. Similar clause of the respondent Corporation was considered by the Supreme Court in its judgment reported in 2003 (4) P.L.J.R. S.C. page 175 (K. Vinod Kumar V/s. S. Palanisamy and others). While interpreting the aforesaid clause, the Supreme Court has observed as follows : "... Similar clause of the respondent Corporation was considered by the Supreme Court in its judgment reported in 2003 (4) P.L.J.R. S.C. page 175 (K. Vinod Kumar V/s. S. Palanisamy and others). While interpreting the aforesaid clause, the Supreme Court has observed as follows : "... the purpose of furnishing particulars of land 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." 5.2. It is true that respondent no. 7 was interviewed on 12.9.2001, and she purchased the new plot of land on 13.11.2001. The petitioner has not asserted in her pleadings as to the date on which selection process had concluded. The land offered by respondent no. 7 in her application was not owned by her, whereas the one now offered by her is owned by her. A photo copy of the registered deed to absolute sale is marked Annexure-B to her counter affidavit. I feel no difficulty in concluding on the authority of the judgment of the Supreme Court that respondent no. 7 changed the plot of land at a later date which does not disqualify her, having been offered within a period of two months of the selection. 6. The discussion in paragraph 7 of the judgment is relevant in the present context and is set out hereinbelow tor the facility of quick reference : "The proceedings of the Dealer Selection Board must satisfy the requirements of a bona fide administrative decision arrived at in a fair manner. There are no mala fides alleged against the Dealer Selection Board or the President or any Member thereof. There is no specific plea raised impugning the manner of marking. It appears that all the three members of the Board including the President conducted the proceedings, and each one of them gave marks expressing his own assessment of the merits of the applicants. There is no specific plea raised impugning the manner of marking. It appears that all the three members of the Board including the President conducted the proceedings, and each one of them gave marks expressing his own assessment of the merits of the applicants. The marks given by the three were then totalled and arranged in the order of merit. The appellant herein topped the list. In the absence of a particular procedure or formula having been prescribed for the Board to follow, no fault can be found with the manner in which the proceedings were conducted by the Board. The Board is entrusted with the task of finding out the best suitable candidate and, so long as the power is exercised bona fide, the Board is free to devise and adopt its own procedure subject to satisfying the test of reasonableness and fairness. There is no averment that the procedure adopted by the Board was arbitrary, unfair or unreasonable." In the present case also, there is no allegation of mala fides against anybody, nor there is any averment that the procedure adopted by the Board was arbitrary, unfair and unreasonable. 7 The petitioners second contention is that respondent no. 7 is not a resident of the district of Sitamarhi and is, therefore, disqualified from consideration in view of the terms and conditions of the advertisement. The relevant clause of the advertisement is set out hereinbelow for the facility of quick reference : It appears to me that the clause is unhappily worded and the two portions of the clause seem to be contradictory to each other. However, taking into account a combined view of the clause, it appears to me that a non-resident is also entitled to apply. However, all things being equal, a resident of the district of Sitamarhi will be given preference. It is no part of the petitioners case that she and respondent no. 7 were equal in all respects and, therefore, she (the petitioner) should be given preference. 7.1. Learned counsel for the Corporation has placed before me that Dealer and Distributor Selection Manual, paragraph 6 of which is relevant and headed the "Norms for evaluating the candidates", and is set out hereinbelow for the facility of quick reference : "6. 7 were equal in all respects and, therefore, she (the petitioner) should be given preference. 7.1. Learned counsel for the Corporation has placed before me that Dealer and Distributor Selection Manual, paragraph 6 of which is relevant and headed the "Norms for evaluating the candidates", and is set out hereinbelow for the facility of quick reference : "6. Norms for evaluating the candidates : The D.S.B. will judge the inter-se suitability of the candidates on the following basis : (a) Personality, Business ability and Salesmanship 30 Marks (b) Capability to arrange Finances 20 Marks (c) Educational Qualification & general level of intelligence 20 Marks (d) Capability to provide infrastructure and facilities (land, godown, Showroom, etc.) 15 Marks (e) General assessment 15 Marks Total 100 Marks Two things clearly appear on a perusal of the same. The inter se suitability of the candidates has to be adjudged on the basis of the five components, and land is only one of them carrying only 15 per cent or less marks. In other words, the candidates have to satisfy a host of factors. Applying the aforesaid yard-stick, the Dealer Selection Board has adjudged the suitability of respondent no. 7, the petitioner, and other eligible candidates and placed the former at no. 1, and the latter at no. 2, of the merit list. In other words, respondent no. 7 and the petitioner are not of the same level. Therefore, the aforesaid clause is not attracted in the present case. The same would have been attracted, had both of them been of the same level, both had scored the same marks, in which case residence would have been the deciding factor. 8. Respondent no. 7 stated in her application, and represented before the Board and the Corporation, that she is a resident of the district of Sitamarhi. She placed documentary evidence in support of her case which were subjected to enquiry and local inspection by the respondent authorities and have found to their satisfaction that she is a resident of the district of Sitamarhi. She has placed before me a number of documents in support of her submission, whereas the petitioner has placed before me certain documents to show that she is not a resident of the district of Sitamarhi. She has placed before me a number of documents in support of her submission, whereas the petitioner has placed before me certain documents to show that she is not a resident of the district of Sitamarhi. This raises an issue of facts and it is difficult for this Court in exercise of its writ jurisdiction to examine as to which version is correct. However, in order to satisfy myself, I have considered, the documents placed by respondent no. 7 which prima facie lead to the conclusion that she is a resident of the district of Sitamarhi. It is the case of respondent no. 7 that she has returned to her fathers place in the district of Sitamarhi after she became a widow. Annexure-A/1 is the ration-card in the name of father of respondent no. 7 which includes her name. Annexure-A/2 is the voters-list of Sitamarhi Vidhan Sabha which includes the name of respondent no. 7 at serial no. 217 as a voter. Annexure-B is the certificate of residence issued by the Sub-Divisional Officer, Sitamarhi, Sadar of 4.3.2002, based as it is on the certificate bearing No. 196(A), dated 22.8.2000, which is to the effect that respondent no. 7 is residing with her father in Haque Colony, Mehshol Chowk, Dumra Road, Sitamarhi, since the demise of her husband. The said certificate bearing No. 196(A), dated 22.8.2000, is to the same effect, has been issued by the Anchal Adhikari, Dumra, and is marked Annexure-G/3 to her counter affidavit. As stated above, respondent no. 7 has now acquired a plot of land at village Belsand, district Sitamarhi, by registered deed of absolute sale. True it is that the petitioner has also placed on record a few documents to counteract the submission of respondent no. 7, but the over-all picture appears to be that respondent no. 7, after the demise of her husband way back in 1989, is living with her father at Sitamarhi. 9. In so far as the third submission is concerned, it appears to me that the interview letter of respondent no. 7 stated that she has to appear on 11.9.2001 with the stipulation that "... Request for change in the date and time of interview will not be entertained..." Relying on this clause, learned counsel for the petitioner submits that the date of interview of respondent no. 7 was extended to 12.9.2001 and, therefore, in breach of this condition. 7 stated that she has to appear on 11.9.2001 with the stipulation that "... Request for change in the date and time of interview will not be entertained..." Relying on this clause, learned counsel for the petitioner submits that the date of interview of respondent no. 7 was extended to 12.9.2001 and, therefore, in breach of this condition. It appears to me that the condition stated in the interview letter is not a term and condition of the advertisement and cannot, therefore, be mandatory in nature. Allowing it to be as rigid as has been submitted by the petitioner may result in injustice to candidates for circumstances beyond their control. For example, in the present case itself, respondent no. 7 has stated in her pleadings that she was unable to reach Patna on 11.9.2001 because of the rains and flood at Sitamarhi. 10. The Force Majeure clause means that the intention is to save the performing party from the consequences of anything over which he has no control. Though this clause is normally applied to commercial contracts, the same in spirit supports the case of respondent no. 7. The judgment of the Supreme Court reported in A.I.R. 1961 S.C. 1285 (M/s D. Gobindram V/s. M/s Shamji & Co.) illumines the Force Majeure clause. 11. Interpreting the provisions of Section 15 of the Bihar Building & Rent Control Act, Courts have held that the provision contained therein as to the time within which rent has to be deposited can not be taken to be mandatory even though the expression shall has been used therein, and it has to be seen in each case whether or not delay has been properly explained. The following reported judgments have laid down to that effect : (i) A.I.R. 1985 S.C. 964 (Ganesh Prasad V/s. Lakshmi Narayan); (ii) A.I.R. 1989 S.C. 291 (Manmohan Kaur V/s. Surya Kant Bhagwani); (iii) 1999 (2) P.L.J.R. 779 (Kamla Prasad Gupta V/s. Arun Kumar Ojha); (iv) 1999 (3) P.L.J.R. 205 (Vijay Kumar V/s. Shambhu Nath Prasad). 12. The following reported judgments have laid down to that effect : (i) A.I.R. 1985 S.C. 964 (Ganesh Prasad V/s. Lakshmi Narayan); (ii) A.I.R. 1989 S.C. 291 (Manmohan Kaur V/s. Surya Kant Bhagwani); (iii) 1999 (2) P.L.J.R. 779 (Kamla Prasad Gupta V/s. Arun Kumar Ojha); (iv) 1999 (3) P.L.J.R. 205 (Vijay Kumar V/s. Shambhu Nath Prasad). 12. While dealing with the provisions of Section 148 of the Code of Civil Procedure regarding enlargment of time, the Supreme Court in its judgment reported in A.I.R. 1989 Supreme Court 2073 (Johri Singh V/s. Sukh Pal Singh and others), quoted with approval the following portion of its earlier judgment reported in A.I.R. 1961 S.C. 882 (Mahanth Ram Das V/s. Ganga Oas) : "Even in cases where an order is made by the court for doing a thing within a particular time and the order further provides that the application, suit or appeal shall stand dismissed if the thing is not done within the time fixed, the Court has jurisdiction, if sufficient cause is made out, to extend the time even when the application for extension of time is made after the expiry of the time fixed. It is not the application for grant of further time whether made before or after the expiry of the time granted, which confers jurisdiction on the Court, The Court possesses the jurisdiction under S. 148, C.P.C. to enlarge the time and the application merely invokes that jurisdiction." 12.1. The Supreme Court also quoted with approval the following portion of its judgment reported in A.I.R. 1985 S.C. 964 at page 968 (Ganesh Prasad Sah Kesari V/s. Lakshmi Narayan Gupta) : "... Where the Court fixes a time to do a thing, the Court always retains the power to extend the time for doing so. Section 148 of the Code of Civil Procedure provides that where any period is fixed for granted by the Court for the doing of any act prescribed or allowed by the Code, the Court may, in its discretion, from time to time, enlarge such period, even though the period originally fixed or granted may have expired. The principle of this section must govern in not whittling down the discretion conferred on the Court." 12.2. The principle of this section must govern in not whittling down the discretion conferred on the Court." 12.2. The Supreme Court also approved the law laid down by the Allahabad High Court in its judgment reported in A.I.R. 1972 Allahabad 246 (Gobardhan Singh V/s. Barsati), putting the same construction on the provision of Section 148 C.P.C. 13. Learned counsel for the respondent Corporation has also relied on the judgment of the Allahabad High Court reported in A.I.R. 1974 Allahabad page 211 (Ravi Kiran Jain V/s. Bar Council of U.P. through its Secretary and others). It does not appear to me to be relevant in the present case. The facts and circumstances of that case were quite different. 14. I am, therefore, of the view that the Board did not commit an error in extending the date of interview by one day. In fact, this Court is of the view that the Board may have been in error by not extending the date of interview, particularly in a situation where the extended date was within the last date of interview of other candidates. No special interview after conclusion of the selection process was organised for the petitioner. The contention is, therefore, rejected. 15. It appears to me on a perusal of the terms and conditions of the advertisement (Annexure-1), inter alia, that the widow of the employees who died in harness, of the organizations mentioned therein including those of the State Government and the Central Government, may be preferred. The relevant clause of the advertisement is set out hereinbelow for the facility of quick reference : The admitted position is that the late husband of respondent no. 7 (Nasema Khatoon) was an employee of the Bihar Government, who died way back in 1989, which is fortunately not the case with the petitioner. It thus appear to me that in case of any doubt or difficulty or other circumstances being equal, a widow would be entitled to preference. Respondent no. 7 thus scores over the petitioner. 16. Before I part with the records of this case, I would like to observe that the first clause of the advertisement relating to the requirement of land, the clause relating to residence, and the aforesaid clause relating to widows/dependants of the employees of the organisations mentioned therein need to be re-considered and restated with unambiguity. 16. Before I part with the records of this case, I would like to observe that the first clause of the advertisement relating to the requirement of land, the clause relating to residence, and the aforesaid clause relating to widows/dependants of the employees of the organisations mentioned therein need to be re-considered and restated with unambiguity. The clause relating to land may clearly state whether or not it would be permissible to change the land at a later stage. The two portions of the clause relating to residence appear to be mutually contradictory. The clause relating to widows/dependants seems to create an impression that they alone are entitled to apply, inter alia, for the reason of the opening words and should be re-considered whether or not such is the intention and should be re-stated with clarity. 17. In the result, the writ petition is dismissed. There will, however, be no order as to costs in the facts and circumstances of the case.