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2006 DIGILAW 501 (CAL)

CLS LIMITED v. UNION OF INDIA

2006-08-11

PRANAB KUMAR CHATTOPADHYAY

body2006
( 1 ) THE petitioner herein has challenged the panel prepared by the Dealer selection Committee for appointment of Retail Outlet Dealer of Bharat Petroleum corporation Limited (hereinafter referred to as BPCL) at or around Chanditala in Hooghly District. ( 2 ) THE said petitioner has raised various objections in respect of awarding of the marks on the basis whereof the impugned panel was prepared by the respondent Dealer Selection Committee. It has been submitted on behalf of the petitioner that the guidelines issued by BPCL for allotment of marks in respect of different categories have not been properly followed. ( 3 ) MR. Saptangsu Basu, learned Advocate of the petitioner submits that the said petitioner duly submitted the prescribed application form together with all relevant documents as required in terms of the guidelines framed by the respondent authorities herein. The said learned Advocate of the petitioner further submits that the originals of all the documents annexed with the prescribed application form were also produced before the Selection Committee at the time of interview. Mr. Basu also submits that no genuine ground was disclosed by the respondents to explain why only 5 marks were allotted to the petitioner out of total 25 marks in respect of the category "capability to Provide Finance. " ( 4 ) THE learned Advocate of the petitioner-company further submits that the Selection Committee should have allotted full 25 marks to the said petitioner-company in respect of the parameter relating to "capability to Provide Finance" for the reasons summarised hereunder: - (a) The income returns submitted for the assessment years 2002-03, 2003-04 and 2004-05 would reflect that the total income of the petitioner for assessment year 2004-05 was Rs. 11,30,260/ -. (b) Annual returns submitted by the petitioner for the financial year 2003-04 would show that the income of the petitioner for the year ended 31st March, 2004 was Rs. 49,46,611/ -. (c) The auditors report submitted by the petitioner would reveal that a sum of Rs. 18,88,222/- was standing to the credit of the petitioner in their Current Account and a sum of Rs. 85 lakhs was maintained in several fixed Deposit which as on 31st August, 2004 was worth rs. 1,24,30,448. 38p. 49,46,611/ -. (c) The auditors report submitted by the petitioner would reveal that a sum of Rs. 18,88,222/- was standing to the credit of the petitioner in their Current Account and a sum of Rs. 85 lakhs was maintained in several fixed Deposit which as on 31st August, 2004 was worth rs. 1,24,30,448. 38p. (d) The bank statements submitted on behalf of the petitioner-company for the months of November, 2004, December, 2004 and january, 2005 would clearly show that the credit balance at the end of each of the aforesaid months was Rs. 14,18,308. 20, Rs. 1,39,31,754. 17 and Rs. 13,32,400. 31 respectively. (e) Valuation Report of the property being holding No. 20, Salkia road, Howrah, Ward No. 11, Howrah Municipal Corporation of which the petitioner was the owner would show that as on 28th December, 2004, the valuation was Rs. 10. 55 crores. ( 5 ) IT has been submitted on behalf of the petitioner-company that on the basis of the documents produced by the petitioner-company, full 12 marks should have been awarded in favour of the petitioner under the sub-category "liquid cash in the form of bank Fixed Deposits" and for the identical reasons 4 marks under the sub-category "fixed and Moveable Assets" and further 4 marks under the sub-category "income" should have also been awarded in favour of the petitioner-company. ( 6 ) REFERRING to the documents annexed with the application form submitted by the petitioner, learned Advocate of the petitioner submits that the fixed deposits of the petitioner-company as on 31st August, 2004 was rs. 1,24,30,448. 38p and therefore, following the guidelines issued by the respondent authorities, full 12 marks earmarked for the sub-category "liquid cash in the form of bank Fixed Deposits" should have been awarded in favour of the petitioner-company. ( 7 ) THE learned Advocate of the petitioner-company submits that the prescribed norms for allocation of marks on various parameters have not been followed while evaluating the candidature of the petitioner-company as according to the said learned Advocate, if the documents annexed with the prescribed application form submitted by the petitioner had been taken into consideration in an appropriate manner then full 25 marks would have been allotted to the petitioner in respect of the parameter "capability to Provide Finance". The learned advocate of the petitioner specifically urged before this Court that the Selection committee did not allocate marks on various parameters in respect of the petitioner-company in order show undue favour to the respondent No. 5 and thus violated the declared prescribed norms for evaluating the candidates. ( 8 ) IT has been urged on behalf of the respondent authorities namely, the respondent Nos. 2, 3 and 4 herein that the petitioner-company neither produced nor relied on any document in order to establish that the said petitioner-company was a profit making company although the said issue was a very relevant criteria for preparation of panel regarding allotment of the Retail Outlet Dealership. The learned Advocate of the respondent authorities submits that the petitioner-company not only failed to annex necessary audited balance sheet for the year 2003-04 to demonstrate that it was a profit making company but also the authorised representative of the petitioner-company did not produce the said document even at the time of interview as a result whereof the said petitioner was awarded zero marks out of total 20 marks in respect of the sub-category "ready Availability of Finance". The learned Advocate of the respondent authorities further submits that the petitioner did not even annex the said audited balance sheet with the writ petition and/or with the affidavit-in-reply filed in connection with the writ petition. ( 9 ) FOR the aforementioned reasons, the learned Advocate of the respondent authorities urged before this Court that the petitioner did not possess necessary authenticated documents to fulfill the criteria required for consideration of candidature of the said petitioner-company. The learned Advocate of the respondent authorities also submits that the Selection Committee prepared the panel strictly on merits and there is no valid ground to interfere with the decision of the respondent No. 4 in this regard. ( 10 ) MR. Dipankar Dutta, learned Advocate representing the respondent authorities referred to and relied upon a decision of the Supreme Court in the case of Bharat Singh and Ors. v. State of Haryana and Ors. , reported in AIR 1988 SC 2181 and submits that in a writ petition not only the facts but also the evidence in proof of such facts have to be pleaded and annexed to it. According to Mr. v. State of Haryana and Ors. , reported in AIR 1988 SC 2181 and submits that in a writ petition not only the facts but also the evidence in proof of such facts have to be pleaded and annexed to it. According to Mr. Dutta, the writ petitioner herein not only failed to annex necessary audited balance sheet for the year 2003-04 in order to demonstrate that it was a profit making institution but also did not produce the said document at the time when the interview took place as a result whereof zero (0) marks was awarded on account of "ready Availability of Finance". ( 11 ) MR. Dutta further submits that the petitioner failed to demonstrate whether it was a profit making company or not from the documents relied on by the said petitioner at the interview. The said factum was the main criteria in the zone of consideration for allotment of the dealership and was absolutely germane for deciding the issue of preparation of panel. According to Mr. Dutta, the writ petitioner herein failed to prove that the audited balance sheet for the year 2003-04 was annexed with the prescribed application form submitted by the said petitioner-company for the Retail Outlet Dealership at Chanditala. ( 12 ) THE learned Advocate of the petitioner, however, submits that non-production of any document with the prescribed application form should lead to disqualification but in view of issuance of the interview letter by the respondent oil Company, it should be presumed that all the relevant documents have been duly submitted along with the prescribed application form. Mr. Saptangsu Basu, learned Advocate of the petitioner submits that the said petitioner was not disqualified for non-production of any document and in the event, any further document was required to be furnished then the respondent authorities should have informed the petitioner to furnish the said document. The learned Advocate of the petitioner further submits that since the petitioner was not disqualified by the respondent authorities for non-production of any document, the said respondents cannot subsequently take the stand that necessary documents were not produced by the petitioner-company. ( 13 ) CONSIDERING the contentions of the respondents herein I find that the respondent authorities never suggested that the petitioner-company did not furnish any document. ( 13 ) CONSIDERING the contentions of the respondents herein I find that the respondent authorities never suggested that the petitioner-company did not furnish any document. The respondent authorities, in my opinion, have taken a specific stand that necessary documents under the parameter "capability to provide Finance" and particularly in respect of the sub-category "ready availability of Finance" have not been produced by the petitioner-company as a result whereof the Selection Committee did not allocate any mark in respect of the said parameter. ( 14 ) ON examination of the records I find that the petitioner did not furnish audited balance sheet for the last three years immediately preceding the financial year during which the petitioner applied for dealership. The petitioner only annexed audited balance sheet for the financial years 2000-01, 2001-02 and 2002-03 although the said petitioner should have annexed the audited balance sheet for the assessment year 2003-04. ( 15 ) THE respondent authorities by issuing the interview letter to the petitioner did not condone the aforesaid disqualification regarding non-submission of the relevant document in relation to a specific parameter for assessment of the candidates during interview but as a matter of fact granted an opportunity to the petitioner-company to produce the same even at the time of interview. The said petitioner did not furnish the said audited balance sheet at any stage as a result whereof the Selection Committee did not allocate any mark in respect of the parameter "capability to Provide Finance" and particularly for the sub-category "ready Availability of Finance" for non-filing of relevant document. ( 16 ) NORMS for evaluating candidates have been specifically mentioned in the brochure issued by the Bharat Petroleum Corporation Limited wherein it has also been specifically mentioned that each candidate during the interview will be assessed by the Selection Committee broadly under certain parameters. Non-submission of the relevant document in connection with a particular parameter cannot altogether disqualify a candidate and the Selection Committee is entitled to assess the candidate in respect of other parameters wherein the concerned candidate has fulfilled all other conditions. ( 17 ) IN the instant case the respondent authorities assessed the petitioner and awarded marks in respect of all the prescribed parameters excepting the parameter relating to "ready Availability of Finance" for non-production and/or non-submission of the relevant document. ( 17 ) IN the instant case the respondent authorities assessed the petitioner and awarded marks in respect of all the prescribed parameters excepting the parameter relating to "ready Availability of Finance" for non-production and/or non-submission of the relevant document. For the aforementioned reasons, it cannot be said that the issuance of the interview letter to the petitioner-company itself presupposes that all the documents which were required to be submitted by the petitioner-company along with the application form were duly furnished and/or produced at the time of interview as has been claimed by the petitioner herein. ( 18 ) IN my opinion, the respondent authorities herein have shown extremely fair attitude in the present case by allowing the petitioner to appear during the interview even though one vital document had not been produced and/or annexed with the prescribed application form to establish that the petitioner-company was making profit during the previous three years prior to the date of application for dealership. If the petitioner had secured higher marks than the other contesting candidates inspite of its failure to secure any mark in respect of the category "ready Availability of Finance", the petitioner could have been selected for the dealership in question. In the instant case, admittedly, the respondent no. 5 secured higher marks than the petitioner herein and therefore, the petitioner was not selected for the Retail Outlet Dealership in question although it is not in dispute that in respect of the other parameters, adequate marks have been duly allotted to the petitioner-company. ( 19 ) FOR the aforementioned reasons, I am unable to uphold the contentions of the petitioner herein as I do not find any infirmity and/or irregularity in the decision of the Selection Committee regarding allocation of marks and preparation of panel for Retail Outlet Dealership at Chanditala. ( 20 ) THE learned Advocate of the respondent No. 5 herein urged before this Court that the instant writ petition is not maintainable for non-exhausting the alternative remedy mentioned in the brochure published by the Bharat petroleum Corporation Limited for selection of Retail Outlet Dealers, I am not inclined to entertain the aforesaid objection at this stage as the preliminary objection regarding maintainability of the writ petition on the ground of alternative remedy should have been taken at the very initial stage of the proceeding and not at the time of final hearing of the writ petition. ( 21 ) FROM the records I find that the writ petition was initially moved on 19th May, 2005 when Jayanta Kumar Biswas, J. upon hearing the submissions of the learned Counsel of the respective parties gave directions for filing affidavits in the matter and also granted interim order in favour of the petitioner. Scrutinising the said order I find that the respondent authorities did not raise any objection regarding maintainability of the writ petition for non-existing the alternative remedy. Furthermore, the alternative remedy mentioned in the brochure cannot be equated with an alternative remedy prescribed by statute. ( 22 ) IN any event, considering the facts and circumstances of this case, i am of the opinion that there is no other equally efficacious legal remedy available to the petitioner and therefore, the preliminary objection raised on behalf of the private-respondent, namely, the respondent No. 5 herein cannot be sustained in law and the same is therefore, rejected. ( 23 ) FOR the reasons discussed hereinbefore, the instant writ petition is liable to be dismissed being devoid of any merit specially when I have already held hereinbefore that there is no illegality and/or irregularity in awarding marks to the petitioner or in preparation of the panel by the selection Committee for appointment of Dealer in respect of Retail Outlet dealership at Chanditala. Accordingly, this writ petition stands dismissed. There will be, however, no order as to costs.