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2016 DIGILAW 2414 (ALL)

Km. Kalawati Yadav v. I. O. C. L.

2016-07-12

MAHESH CHANDRA TRIPATHI, V.K.SHUKLA

body2016
JUDGMENT Km. Kalawati Yadav is before this Court with following relief: - (i) Issue a writ, order or direction in the nature of certiorari quashing the order dated 29.03.2016 passed by the Respondent No.1; (ii) Issue a writ, order or direction in the nature of certiorari quashing the order dated 24.06.2015 passed by the Respondent No.4; (iii) Issue a writ, order or direction in the nature of certiorari quashing the order dated 12.03.2015 passed by the Respondent No.2; (iv) Issue a writ, order or direction in the nature of mandamus commanding the respondents to issue letter of intent to the petitioner; (v) Issue any other writ, order or direction which this Hon'ble Court may deem fit and proper in the circumstances of the case; (vi) Award costs in favour of the petitioner throughout. 2. As per record this much is reflected that the Indian Oil Corporation (hereinafter referred to as 'IOCL') issued an advertisement in various newspapers including 'Dainik Jagran' on 26.10.2011, inviting applications for the appointment of Retail Outlet Dealers throughout the State. The present dispute is with regard to the location namely Kandharapur in District Azamgarh (Sl. No.586). The said location was advertised under physically handicapped category. In pursuance of the said advertisement, the petitioner having requisite qualification and fulfilling all the terms and conditions submitted her application form for the said location within time. It is sought to be contended that she had submitted her registered sale deed executed by Ram Ashrey in favour of the petitioner for the period of 29 years and 11 months for an area of 14400 sq. ft. It has been contended that the IOCL duly considered her application and after scrutinising her application form asked the petitioner to be present for interview on 27.07.2012. It has also been averred in the writ petition that at the time of interview only two persons; one petitioner and another Sri Lalji Prasad Gaur had appeared before the said interview board and the petitioner was declared empanelled candidate with 54.17 marks and another candidate Sri Lalji Prasad Gaur was declared unqualified as he failed to obtain minimum 50 marks, which was required. 3. From the record it is also reflected that the petitioner was declared as first empanelled candidate without awarding marks under the head "land and infrastructure". 3. From the record it is also reflected that the petitioner was declared as first empanelled candidate without awarding marks under the head "land and infrastructure". Being aggrieved the second candidate namely Sri Lalji Prasad Gaur had filed a grievance petition on 24.08.2012 and raised two grievances: - (i) The physically handicapped certificate submitted by the petitioner is forged. (ii) He had been wrongly awarded 0' marks under the head "Credit parameter". 4. Learned counsel for the petitioner has contended that without affording any opportunity to the petitioner the objection so filed by the second candidate, the IOCL had proceeded to pass an order dated 09.04.2014 for re-evaluation of all the eligible candidates by fresh L1 Committee. So far as the first objection is concerned the Respondent No.2 had clearly recorded in his finding that physically handicapped certificate which was submitted by the petitioner was genuine one and as such the first objection was rejected. This much is also reflected that the IOCL had raised certain objections with regard to property in question which was so submitted by the petitioner while submitting her credentials at the time of filing the application form and in pursuance to the notice dated 17.06.2014. In the meantime, the second candidate Sri Lalji Prasad Gaur died on 18.07.2015. 5. Aggrieved with the inaction of the IOCL, the petitioner approached this Court by means of Writ Petition No.1603 of 2015 challenging the order dated 09.04.2014 by which re-evaluation of marks by the L1 Committee was ordered and this Court vide order dated 19.01.2015 disposed of the writ petition with a direction to the IOCL to conclude the proceedings within four weeks. Thereafter, the Respondent No.2 proceeded to pass order dated 12.03.2015 holding that the L1 Committee had awarded 0' marks to the petitioner under the head of "Fixed and Movable Assets" and also under the head of experience. In the re-evaluation the marks had been reduced below 50 and as such the petitioner had been declared disqualified. The said order had also been assailed by means of another Writ Petition No.19870 of 2015 and the same was disposed of by the Division Bench of this Court vide order dated 09.04.2015. The order dated 09.04.2015 is reproduced below: - "Heard Sri Rakesh Kumar, learned counsel for the petitioner and Sri Prakash Padia, learned counsel representing respondent nos.1 to 3. The order dated 09.04.2015 is reproduced below: - "Heard Sri Rakesh Kumar, learned counsel for the petitioner and Sri Prakash Padia, learned counsel representing respondent nos.1 to 3. By the impugned order dated 12th March, 2015 issued by the Deputy General Manager (RS) the candidature of the petitioner for dealer-ship of retail outlet for location Kandharapur, District Azamgarh in physically handicapped category has been rejected on two grounds, firstly that the two documents were not self attested by the petitioner and secondly valuation report was not given by the Government Approved Valuers. In our opinion both the objections are very technical and they defeat the cause of justice and purpose of the scheme. In case the documents were not self attested, the respondents could have asked the petitioner to remove such defects. With regard to the valuation report, it should not have been ordinarily rejected except where the valuation mentioned in the report was found to be arbitrary, unreasonable and not accurate. It have been pointed out by Sri Padia, that the petitioner can file a complaint before the grievance cell under clause 19 of the Brochure of Selection of Retail Outlet dated 15th September, 2011. Learned counsel for the petitioner states that liberty may be given to file a complaint under the aforesaid provision. We, accordingly, dispose of this petition with the direction to the petitioner to file a complaint within two weeks from today after fulfilling all other formalities required for filing of such complainant. In case such a complainant is filed the competent authority shall take an appropriate decision in accordance to law also taking into consideration the purpose of the scheme and that the scheme should not be defeated on technical and hyper technical grounds within a period of two months from the date of submission of the complaint. Petition stands disposed of as above." 6. In response to the said directives, the petitioner had proceeded to submit a detailed representation before the Respondent No.4 and the Respondent No.4 after affording an opportunity of hearing to the petitioner had proceeded to pass order dated 24.06.2015 rejecting the claim of the petitioner. Petition stands disposed of as above." 6. In response to the said directives, the petitioner had proceeded to submit a detailed representation before the Respondent No.4 and the Respondent No.4 after affording an opportunity of hearing to the petitioner had proceeded to pass order dated 24.06.2015 rejecting the claim of the petitioner. The petitioner once again challenged the said order by means of Writ Petition No.51548 of 2015 and the coordinate Bench of this Court vide order dated 29.10.2015 had granted liberty to the petitioner to file representation before the Respondent No.1, Managing Director, Indian Oil Corporation Ltd., which was disposed of with a direction to the Executive Director (Marketing). 7. Subsequently, the IOCL proceeded to file recall application No.415864 of 2015 which was allowed vide order dated 22.01.2016 with a direction to the Executive Director (Marketing) to decide the claim of the petitioner and finally the claim of the petitioner was rejected vide order dated 29.03.2016, precisely on the ground that the land offered by the petitioner did not fulfil the required depth of land, which is less than the required depth as per advertisement. It is sought to be contended that finding is wholly perverse whereas the petitioner has taken a lease land measuring 120 ft. x 120 ft. i.e. 37 meter x 37 meter. It has also been contended that the said fact can very well be verified from the lease deed and the authority on spot has factually erred in measuring the land. 8. Learned counsel for the petitioner has contended that in the present matter the Land Evaluation Committee had proceeded ex-parte and at no point of time any communication was made to the petitioner regarding any deficiency of land as per the advertisement and as such this Court should come to rescue and reprieve of the petitioner. 9. On the other hand, Sri Prakash Padia, learned counsel for the respondent vehemently opposed the writ petition and contended that the petitioner did not fulfil the minimum required area. Finally, the authority on spot rejected the claim of the petitioner taking into consideration that he failed to provide the required area as per brochure advertised by the IOCL and as such, there was no infirmity or illegality in the said order. Finally, the authority on spot rejected the claim of the petitioner taking into consideration that he failed to provide the required area as per brochure advertised by the IOCL and as such, there was no infirmity or illegality in the said order. Once the petitioner does not fulfil the minimum required area as per the brochure advertised by the IOCL then there is no infirmity in the order passed by the authority concerned. 10. We have heard rival submissions and perused the record. 11. After perusal of the record in question what we find from the record in question is that finally the Deputy General Manager (RS) vide order dated 13.05.2015 had proceeded to reject the candidature of the petitioner for dealership of retail outlet for location Kandharapur, District Azamgarh under the physical handicapped category on two folds; firstly, that two documents were not self attested by the petitioner and secondly evaluation report was not given by the Government approved valuer. The said order had been assailed by the petitioner by means of Writ Petition No.19870 of 2015 and the coordinate Bench of this Court vide order dated 09.04.2015 had proceeded to dispose of the writ petition with observation that both the objections were very technical and they defeat the cause of justice and purpose of scheme. In case the documents were not self attested the respondent could have asked the petitioner to remove such defect. So far as the evaluation report was concerned, the Court observed that it should not have been ordinarily rejected except where the valuation mention in the report was found to be arbitrary, unreasonable and not accurate. Again an opportunity was accorded to the petitioner and finally the present case is being set up on the ground that once the documents attached with the application form were duly verified by the competent officer of the IOCL at the time of interview and all the documents were duly verified from the issuing authority then subsequently the technical objection cannot be raised. 12. 12. So far as the objection regarding the valuer report is concerned, the Executive Director (Retail Sales) had also proceeded to take a notice of the order dated 24.06.2015 wherein an objection was taken with the valuer report, so submitted by the petitioner, was not of the Government approved valuer and in this regard she had also placed reliance on the valuer report dated 21.12.2011 submitted by her, was obtained from M/s Akansha Associate, which was a registered valuation survey and Loss Assessor. In this background, the Executive Director while passing the impugned order had proceeded to observe that for purpose of evaluation, valuer report submitted by a valuer will not be considered provided the valuer is registered/empanelled by anyone of the following agency: - 1. Central Government Department and Bodies like Central Board of Direct Taxes (CBDT/Department of Income Tax, CPWD & other Government Authorities. 2. Public Sector Banks 3. Public Sector Undertakings 4. State Government Department like PWD, PHED, Irrigation Departments. 5. Local Self Government Bodies (like Development Authorities, Municipal Corporation etc.) 13. In this background, what we find that at the time of advertisement the IOCL proceeded for the establishment of a retail outlet at the site the requirement of land as per advertisement itself was required to the extent of 35 meter x 35 meter. While passing the order dated 29.03.2016 the respondent had proceeded to observe that on perusal of the documents made available to the authority the evaluation of the land offered by the petitioner was got conducted by the Land Evaluation Committee (LEC) of the IOCL on 12.04.2012 and it was found not meeting the MORTH norms for setting up fuel station on the national highway as depth of the plot was found to be short i.e. 24.33 meter than the minimum required size of 35 meter (depth) as per advertisement 35 meter x 35 meter. 14. While passing the impugned order it was observed that the report of the Land Evaluation Committee was shown to the petitioner at the time of interview on 27.07.2012 and the petitioner had acknowledged the same by putting her signature and date thereon, as such while rejecting the claim of the petitioner the authority had proceeded to observe that since the land offered by the petitioner did not comply with the requirements of the advertisement-brochure, marks were not awarded under the said parameter. 15. 15. We have also the occasion to peruse the order dated 02.08.2010 passed in Writ Petition No.63960 of 2008 which have been relied by Sri Prakash Padia, learned counsel for the respondent on the similar issue whether while submitting the documents attached with the application form whether the documents are to be self attested or not has proceeded to uphold the stand of the IOCL with the following observation: - "This petition have been filed by the petitioner challenging the order dated 18.09.2008 passed by the General Manager, Indian Oil Corporation Limited whereby the selection of the petitioner for retail outlet dealership/distribution of petrol pump cancelled on the ground that the documents attached with application form filed by the petitioner was neither attested nor self attested. It was further held that unattested documents could not be considered for award of marks and it was directed by the impugned order that the location be re-advertised." 16. He further states that the same has also been approved in the appeal by the Division Bench of this Court as well as by the Hon'ble Apex Court. This Court vide order dated 14.10.2015 passed in Misc. Bench No.9688 of 2015 (Ramesh Chandra Mishra v. Indian Oil Corporation Ltd.) as such law is clear that the incumbent has to complete all the formalities as per the terms and conditions of the brochure for selection of petrol-diesel retail outlet. 17. In view of the aforesaid facts and circumstances, we are of the considered opinion that in the present matter, once the petitioner does not fulfil the basic requirement of the requisite land in question as per the brochure then there is no requirement of deciding any other issue on this score itself. The writ petition sans merit and is, accordingly, dismissed. Petition dismissed.