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2012 DIGILAW 393 (JK)

Bashir Ahmad Bathanji v. General Manager, Indian Oil Corporation & Ors.

2012-07-09

HASNAIN MASSODI, M.M.KUMAR

body2012
1. The appellant responded to an advertisement notice issued on 25.2.2009 by-Indian Oil Corporation Limited — respondent herein, inviting applications from candidates fulfilling eligibility criteria laid down in the notice for award of dealership under Kissan Seva Kendra (KSK) scheme at Zirpora tehsil Bijbehara. The advertisement notice also attracted response from S/Shri Kafeel Ahmad and Irshad Ahmad — respondent no. 5 in the appeal. 2. The respondents to make the allotment in an objective and transparent manner adopted a methodology whereunder claim of each aspirant was assessed on the basis of a number of factors and marks under each of the heads. The criteria laid down was duly notified. The heads under which marks were allotted included "land", "financial support", "qualification", "business generation", "age", "experience", "business ability" and "personality". Every candidate, therefore, was required to submit in his application the details of the land available to him for setting of the facility, the financial support he had, his qualification, business generation capacity, age, experience, and other relevant details as would enable the respondents to assess the business ability and personality of the aspirant. 3. The respondents on assessing and evaluating the merit of the three candidates for advertised dealership awarded marks to them having regard to information made available with the application form. The appellant secured 47.83 marks whereas S/Shri Kafeel Ahmad and Irshad Ahmad were awarded 73.47 and 75.17 marks respectively. Resultantly, the allotment was made in favour of Shri Irshad Ahmad — respondent no. 5, who had secured highest marks i.e. 75.17. 4. The appellant, aggrieved with his non-selection filed a writ petition registered as OWP no. 405/2011. The appellant threw challenge to the selection of respondent no. 5 on the grounds that the appellant was not granted any marks under the head "land" though he had in his application identified a plot of land with requisite dimensions for setting up the dealership. It is also pleaded that respondent no. 5 has been convicted of offence punishable under section 420 RFC, case FIR 35/2009, P/S Bijbehara and therefore not Competent Court and thus not entitled to be considered for allotment of the dealership. 5. It is also pleaded that respondent no. 5 has been convicted of offence punishable under section 420 RFC, case FIR 35/2009, P/S Bijbehara and therefore not Competent Court and thus not entitled to be considered for allotment of the dealership. 5. The respondents resist the writ petition inter alia on the grounds that the Land Evaluation Committee on inspection did not find the plot of land offered by the appellant for setting up of the KSK Retail Outlet suitable and that the land offered did not fulfill the prescribed requirement. 6. The writ court on going through the pleadings and the available record and upon hearing the counsel for the parties did not find any merit in the writ petition. The writ petition was accordingly dismissed on 23rd May 2012. 7. The writ court judgment dismissing the writ petition is questioned in the present appeal on the grounds that the writ court did not appreciate the case set up in its right perspective. It is pleaded that the petitioner's case that respondent no. 5 in whose favour the retail outlet was allotted was convicted of offence punishable under section 420 RFC, case FIR 35/2009, P/S Bijbehara, and thus not eligible for the allotment of the KSK retail outlet in terms of the Advertisement Notice, was not discussed at all by the writ court while rendering the judgment. It is reported that the plot of land on which the appellant proposed to install KSK retail outlet satisfied all the requirements laid in the advertisement notice and the appellant for reasons other than justifiable was not awarded marks due on account of the land. 8. We have gone through the appeal, as also the writ record and have heard counsel for the parties. 9. The plea taken by the appellant that respondent no. 5 because of his involvement in case FIR 35/2009 was not eligible for the allotment of KSK retail outlet is without merit. The plea is taken unmindful of the fact that the case FIR 35/2009 was compounded and in terms of section 345(6) Cr.P.C. such composition would not amount to respondent's conviction of offence punishable under section 420 RFC. It is pertinent to point out that in terms of advertisement notice only a person convicted of an offence and awarded punishment in consequence of said conviction is declared ineligible for allotment of KSK. It is pertinent to point out that in terms of advertisement notice only a person convicted of an offence and awarded punishment in consequence of said conviction is declared ineligible for allotment of KSK. Even otherwise also the ineligibility of respondent 5 would in no manner enhance the chances of appellant to get the sales outlet allotted in his favour inasmuch as the appellant has been awarded 47.83 marks as against. Shri Kafeel Ahmad, another aspirant for the retail outlet in question who has been awarded 73.47 marks. The right, if any, to question • eligibility of respondent 5 is that of Shri Kafeel Ahmad and not the present appellant. 10. The writ court was right in concluding that the question of suitability of land offered by the appellant fell squarely within the jurisdiction of Land Evalua tion Committee and once such Committee did not find the land suitable for setting up a KSK retail outlet, neither the appellant could compel the respondent corporation to set up the said facility on his land, nor could he persuade this court to sit in appeal over the decision taken by the Land Evaluation Committee on visiting the spot/sight inspection. 11. For the reasons discussed above, the appeal is held to be without any merit and accordingly dismissed.