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2015 DIGILAW 1158 (HP)

Akhil Kumar v. Indian Oil Corporation Limited

2015-08-24

MANSOOR AHMAD MIR, TARLOK SINGH CHAUHAN

body2015
JUDGMENT Mansoor Ahmad Mir 1. Writ petitioner has invoked the jurisdiction of this Court by the medium of the writ petition in hand and has sought quashment of communication, dated 10.03.2015, (Annexure P9) made by the respondent, whereby the candidature of the writ petitioner for distributorship of Retail Outlet at location Tatahar SH19, District Mandi, was rejected, and has also sought writ of mandamus commanding the respondent to process the case of the writ petitioner for allotment of the Retail Outlet at the said location as per the terms and conditions contained in the advertisement notice, dated 30.06.2014 (Annexure P1), on the grounds taken in the writ petition. 2. The respondent has resisted the writ petition by the medium of the reply. 3. An advertisement notice was issued by the respondent on 30.06.2014 (Annexure P1) inviting the applications for appointment of Retail Outlet distributor in the State of Himachal Pradesh and one of the location advertised was at Tatahar, District Mandi, SH19. 4. The writ petitioner applied in terms of the conditions contained in the Brochure for Selection of Dealers for Regular and Rural Retail Outlets (for short "the Brochure") (Annexure P2). The writ petitioner had given details of his financial ability, mention of which has been given in clause 10 of the application form, (Annexure P3) wherein it has been disclosed that the writ petitioner alongwith his family members, i.e. mother, was having the financial ability to the tune of ` 36,26,762.50. The writ petitioner had also filed an affidavit/undertaking, which is at page 30 of the paper book, and has given the details as to how he has complied with the terms and conditions contained in the Brochure and how he is entitled to be selected for the said Retail Outlet distributorship. The mother of the writ petitioner had also filed an affidavit, which is at page 35 of the paper book, and stated that in case the writ petitioner came to be selected for the Retail Outlet distributorship, she will provide financial assistance to him to the tune of 21,54,822/. 5. Thereafter, a communication was made by the respondent to the writ petitioner on 22.08.2014 (Annexure P4) and was asked to show, by or before 12.09.2014, whether the amount lying in GPF Account No. 54473 can meet the requisite fund criterion for development of Retail Outlet. 6. 5. Thereafter, a communication was made by the respondent to the writ petitioner on 22.08.2014 (Annexure P4) and was asked to show, by or before 12.09.2014, whether the amount lying in GPF Account No. 54473 can meet the requisite fund criterion for development of Retail Outlet. 6. The writ petitioner responded to the said communication vide Annexure P5 and annexed the certificate issued by the Block Education Officer, Gopalpur1, District Mandi, stating therein that the amount lying in the GPF Account of the mother of the writ petitioner can be released at any point of time. 7. Thereafter, the respondent decided to inspect the site and vide letter, dated 24.09.2014 (Annexure P6), requested the writ petitioner to remain present personally on the site on 11.10.2014 alongwith photo identity card issued by any Government Department. 8. After examining all documents and taking into account the spot inspection, it was found that the writ petitioner was eligible and accordingly, was declared to be selected, vide Annexure P7, dated 20.10.2014. 9. The respondent has remained silent and has not made any communication thereafter to the writ petitioner. The writ petitioner made a communication to the Petroleum Minister, which was forwarded by the Ministry of P&NG to the respondent. Thereafter, the respondent, vide letter, dated 10.03.2015 (Annexure P9), communicated to the writ petitioner that the amount to the tune of ` 12,26,963/, as shown in the GPF Account of his mother, was not admissible as per the dealership selection guidelines of the respondent Corporation and after excluding the said amount, the balance amount remained to be ` 23,99,799.50/, whereas the required amount should not be less than ` 25 lacs. It was further informed that they were not ready to accept the request of the writ petitioner to accept any fresh documents of finance after cut off date, constraining him to file the writ petition. 10. The respondent has not denied all the said facts but has only pressed into service the ground that the GPF amount cannot be counted while assessing the financial ability/resources of the writ petitioner. It has also been stated that the respondent Corporation has made a communication with the office of the Accountant General, Himachal Pradesh, in response to which it was informed that the said amount cannot be utilized for the purpose of obtaining the Retail Outlet distributorship. 11. Heard. 12. It has also been stated that the respondent Corporation has made a communication with the office of the Accountant General, Himachal Pradesh, in response to which it was informed that the said amount cannot be utilized for the purpose of obtaining the Retail Outlet distributorship. 11. Heard. 12. It appears that the writ petitioner has been dragged from pillar to post and post to pillar for nothing and has been made to suffer because of the bureaucratic approach, that too, technical one. 13. The question, which arises for consideration before this Court, is whether the amount lying in the GPF of the writ petitioner or his family member is excluded from the financial ability in terms of Clause 4(v) contained in the Brochure? 14. Clause 4 of the Brochure deals with Finance and it nowhere provides that the amount lying in the GPF of a person or his family member is excluded. However, the excluding clause is contained in Clause 4 (v) (c) and (d), which reads as under: "4. ELIGIBILITY CIRTERIA FOR INDIVIDUAL APPLICANTS PROPERIETORSHIP/ PARTNERSHIP . (v) Finance: (c) Cash/Jewelry/Instruments, etc. where the ownership cannot be established will not be considered. (d) Balance in current account will not be considered." 15. A bare perusal of the said provision does disclose that the amount, as quoted hereinabove, is to be excluded. Thus, GPF amount is not to be excluded from taking into account while determining the financial ability of the applicant/writ petitioner. 16. As discussed hereinabove, a communication was made by the respondent to the writ petitioner on 22.08.2014 (Annexure P4), to which the writ petitioner responded in terms of Annexure P5, was considered, site inspection was conducted in terms of Annexure P6 and the writ petitioner was declared to be selected in terms of Annexure P7. Then, how can it lie in the mouth of the respondent, after declaring the writ petitioner to be selected candidate vide Annexure P7, dated 20.10.2014, that he was not eligible. 17. The respondent has not been able to carve out a case that it has considered the case of the writ petitioner afresh and has rejected his candidature. Even, there is nothing on the file indicating that the decision, dated 20.10.2014 was revoked and the candidature of the writ petitioner was rejected. 18. 17. The respondent has not been able to carve out a case that it has considered the case of the writ petitioner afresh and has rejected his candidature. Even, there is nothing on the file indicating that the decision, dated 20.10.2014 was revoked and the candidature of the writ petitioner was rejected. 18. Learned Senior Counsel appearing on behalf of the writ petitioner submitted that the writ petitioner was also having other financial ability at that point of time and had the respondent pointed out and not accepted the explanation given in the application form (Annexure P3) read with the communication (Annexure P5), he would have produced the other documents indicating that he has other financial ability at his hand. The writ petitioner has placed on record Annexure P8, which does disclose that the mother of the writ petitioner was having a sum of ` 1,17,573/in her account with the Post Office, Sarkaghat, as on 30.07.2014 and a sum of 66,524/with the Punjab National Bank. Sarkaghat, as on 31.07.2014. This fact was also brought into the notice of the respondent, but despite that, it has chosen to remain moot spectator and has not conveyed any decision to the writ petitioner till 10.03.2015, when the communication (Annexure P9) rejecting his candidature was made to him. 19. The respondent has also stated that it has made communication with the office of the Accountant General, Himachal Pradesh, which was made basis for issuing Annexure P9. 20. It is worthwhile to record herein that the respondent is a big company and is running business throughout the country. If such a company will be allowed to take such a stand, that will be doomsday for that company and unfortunate for the poor persons who hail from a hilly State, that too, far flung areas. 21. The communication, which the respondent has placed on record as Annexure R1, was addressed to the Accountant General, Himachal Pradesh on 23.04.2015, has been replied by the said office on 27.04.2015. 22. After going through both these communications, one comes to an inescapable conclusion that both the communications have been issued much after Annexure P9, dated 10.03.2015, was made. 21. The communication, which the respondent has placed on record as Annexure R1, was addressed to the Accountant General, Himachal Pradesh on 23.04.2015, has been replied by the said office on 27.04.2015. 22. After going through both these communications, one comes to an inescapable conclusion that both the communications have been issued much after Annexure P9, dated 10.03.2015, was made. Then, how can it lie in the mouth of the respondent that the decision making process was made on the basis of the said documents, which came into existence after the decision was taken in terms of Annexure P9, is suggestive of the fact that Annexure R1 is an 10 after thought in order to justify its action Annexure P9 and also to deprive the petitioner from reaping the fruits of his selection as Retail Outlet distributor, for which he participated in terms of the advertisement notice, was declared eligible and selected. 23. We deem it proper to record herein that the amount lying in the GPF of an employee is the amount which belongs to the employee and is for the benefit of the employee. It is earned money of an employee and it cannot be said that the said amount cannot be released to the employee and the same cannot be made a ground to deprive an employee or the family member of the employee of his legitimate right. It is not the aim and object of the GPF subscription. The aim and object of the GPF subscription is that at the time of the retirement or at the time of dire need, the employee must be in a position to get handsome amount and meet his requirements, that too, strictly in terms of the law applicable. 24. The aim and object of subscription to the Provident Fund has been discussed by the Rangoon High Court in the case titled as Ellen Florence Rodriguez versus Edith Mary Hannay and others, reported in AIR (29) 1942 Rangoon 64 (2). 25. The Apex Court in the case titled as Union of India versus Jyoti Chit Fund and Finance and others, reported in AIR 1976 Supreme Court 1163, has held that the provident fund amount is property of the employee, which he can use at the time of retirement or otherwise and the government is a trustee. 26. 25. The Apex Court in the case titled as Union of India versus Jyoti Chit Fund and Finance and others, reported in AIR 1976 Supreme Court 1163, has held that the provident fund amount is property of the employee, which he can use at the time of retirement or otherwise and the government is a trustee. 26. Having said so, Annexure P9, dated 10.03.2015, merits to be quashed and is quashed accordingly. The respondent is directed to pass requisite orders in terms of Annexure P7, dated 20.10.2014, as early as possible, preferably within four weeks. 27. The writ petition is disposed of, as indicated hereinabove, alongwith all pending applications.