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2017 DIGILAW 452 (CAL)

Dhiren Mondal v. I. O. C. Ltd.

2017-05-05

ANIRUDDHA BOSE, SANKAR ACHARYYA

body2017
JUDGMENT : Aniruddha Bose, J. The appellant and the added respondent, Hare Krishna Sarkar were among the applicants for allotment of Liquified Petroleum Gas Dealership under the Rajiv Gandhi Gramin LPG Vitrak Scheme. The said scheme is operated by three public sector oil companies for different supply points. The vacancy notice in this regard was issued in a Bengali daily, Anandabazar Patrika on 24th May, 2013. The point of dealership involved in this proceeding appears against serial No. 6 of the vacancy notice, the dealership point being Goaldob, Ukhra in the district of Nadia under the Panchayat - Nagarukhra-I. This is a reserved vacancy for those belonging to the scheduled castes. The appellant participated in the selection process upon making requisite application and was successful in that process effected through drawing of lots on 27th November 2013. By a subsequent communication of the Oil Company dated 21st January 2014, however, the appellant's application stood rejected. The reason for this same appears from the communication, which reads:- “To KOLAO/RGGLV/13-14 Shri Dhiren Mondal Date 21.01.2014 C/o. Shri Bhadreshwar Mondal Vill - Shimulpukur, P.O.- Nagarukha, P.S. - Haringhata, Dist - Nadia PIN - 741257. Dear Sir, Sub: Non-consideration of your candidature for selection of RGGLV at Ukrah, Goaldob, Dasbaria, Purba Satbaria, Gram Panchayet: Nagarukhra-I, Block: Haringhata, District-North 24 Parganas This has reference to your selection for RGGLV at Ukrah, Goaldob, Dasbaria, Purba Satbaria, Gram Panchayet : Nagarukhra-I, Block : Haringhata, District-North 24 Parganas through 'draw of lots' held at Kolkata Area Office on 27.11.2013. The nominated officers of the Field Verification Committee has observed during the field verification of credential of the information submitted in the application that you do not have required sufficient financial capability as on the date of application, as specified in the relevant advertisement. In line with the selection guidelines for RGGLV, your candidature for the RGGLV location Ukrah, Goaldob, Dasbaria, Purba Satbaria, Gram Panchayet : Nagarukhra-I, Block : Haringhata, District-North 24 Parganas has not been considered by the Competent Authority for further selection process, on the above ground. Consequently, in line with point no. 10.3 of the 'Brochure For Selection of Rajiv Gandhi Gramin LPG Vitrak', the amount of Rs. 20000/- (Rupees Twenty thousand) only submitted by you is being forfeited. This is issued without any prejudice to the rights of the Corporation in this matter. Consequently, in line with point no. 10.3 of the 'Brochure For Selection of Rajiv Gandhi Gramin LPG Vitrak', the amount of Rs. 20000/- (Rupees Twenty thousand) only submitted by you is being forfeited. This is issued without any prejudice to the rights of the Corporation in this matter. Thanking you, Yours faithfully, For Indian Oil Corporation Ltd. (MD) Chief Area Manager" 2. As a consequence of rejection of the appellant's candidature, Hare Krishna Sarkar, the added respondent was selected as the next eligible candidate. In course of hearing before us, Mr. Yadav, learned counsel appearing for the Oil Company has submitted that only two candidates were found eligible for the said dealership point being the appellant and the added respondent, on the basis of disclosed eligibility criteria. 3. The appellant approached this Court by filing a writ petition, with prayer for invalidation of the aforesaid memorandum dated 21st January, 2014. The main ground for rejecting the appellant's selection, as would be apparent from the aforesaid communication was in relation to the nature of his deposit in which an applicant had to retain certain specified sum of money as per the qualifying criteria. The appellant had the requisite sum as deposit in a current account. The Oil Company's stand is that this did not satisfy the qualification criteria, which stipulated deposit in a savings account or other forms of investment specified by the Oil Company. The learned First Court found that the appellant, being the writ petitioner had maintained a sum of Rs. 3,05,224/- in a trading account and on that basis, it was held that the invalidation of the appellant's candidature was justified. The learned First Court in coming to this finding referred to the advertisement in which the financial credentials of an applicant for the dealership was specified. The judgment of the First Court was delivered on 27th February 2014. 4. In this appeal, the said judgment is assailed by the appellant. The copy of the advertisement on the basis of which application for dealership was made has been annexed to the stay petition as "P4". The main question which falls for determination in this appeal is as to whether the appellant fulfilled the eligibility criteria relating to financial capacity or not. The copy of the advertisement on the basis of which application for dealership was made has been annexed to the stay petition as "P4". The main question which falls for determination in this appeal is as to whether the appellant fulfilled the eligibility criteria relating to financial capacity or not. In the advertisement, we find that two sets of eligibility criteria had been specified for applicants from the general category and the Scheduled Castes and Scheduled Tribes category. For the latter category of applicants, the requirement was holding in the name of the applicant or his or her family unit Rs. 2 lacs in certain specified financial instruments or accounts. Such deposit or holding at the specified level was to remain on the last date of filing of the application. The accounts or financial instruments specified were savings accounts in banks/post offices, unencumbered fixed deposits in specified banks, post office, listed companies, governmental organisations, public sector undertakings of both the centre or the state Kishan Vikash Patra, NSC bonds, shares in listed companies, listed mutual funds, ULIP, PPF and Life Insurance policies (as per surrender value). The relevant clause in the said advertisement in bengali further stipulated that in specified bank there must be minimum deposit of Rs. 2 lacs as closing balance in unencumbered fixed deposit, Kishan Vikash Patra, NSC bond or any other investment etc; So far as the appellant is concerned, he had shown total deposit to the tune of Rs. 3,10,573/-. He had Rs. 3,05,224/- in a current account (referred to in a bank's certificate as "Trading A/c, not loan A/c) and in a savings bank account Rs. 5323/-. 5. Mr. Yadav, learned counsel for the Oil Company has produced a document entitled "Brochure For Selection of Rajiv Gandhi Gramin LPG Vitrak (RGGLV)" and according to him the content thereof guides selection of similar dealers. The financial eligibility requirement is specified in Clause 6(g) in this brochure, to which our attention has been drawn. This clause stipulates:- "6(g)............................................................... ...................................... ....................In case of locations reserved under 'SC/ST' category, applicant should have minimum of Rs. The financial eligibility requirement is specified in Clause 6(g) in this brochure, to which our attention has been drawn. This clause stipulates:- "6(g)............................................................... ...................................... ....................In case of locations reserved under 'SC/ST' category, applicant should have minimum of Rs. 2 lakhs as the closing balance on the last date for submission of application as specified in the advertisement or corrigendum (if any), put together from Saving accounts in Bank/Post Office, free and unencumbered Fixed Deposits in Scheduled Banks, Post Office, Listed Companies/Government Organisation/Public Sector Undertaking of State and Central Government, Kisan Vikas Patra, NSC, Bonds, Shares of Listed Companies, Listed Mutual Funds, ULIP, PPF, Surrender value of Life Insurance Policies in the name of self or family members of the "Family unit" as defined in Multiple dealership/ distributorship norm who pledge in writing such assets in favour of applicant." 6. Appearing for the appellant Mr. Kashi Kanta Moitra, learned senior counsel assisted by Mr. Rasomay Mondal, learned counsel have argued that the aforesaid sum in current account of the appellant would constitute investment with a bank and hence would be compatible with the financial eligibility criteria. He has relied on a decision reported in AIR 2014 SC 1464 to contend that before cancelling his selection an opportunity of hearing was required to be given. His case is that the principle of natural justice has been breached on denial of such opportunity to the appellant. We, however, have chosen to decide the issue on merit considering the fact that the vacancy is subsisting since the year 2013. Even if we accept the appellant's contention that principle of natural justice is breached, then we would have to send the dispute back to the selecting body for fresh consideration upon giving opportunity of hearing to the appellant. No purpose would be served in our opinion in remanding the matter to the selection body for fresh decision. The sole point of conflict has crystallized in this appeal and we shall be adjudicating on that issue in this appeal. 7. Learned counsel for the appellant has stressed on the fact that in the advertisement, emphasis was on investments and the instrument in which such investment was to remain was not specifically identified. After specifying the types of investment instruments, the expression 'etc' had been employed in the advertisement. 7. Learned counsel for the appellant has stressed on the fact that in the advertisement, emphasis was on investments and the instrument in which such investment was to remain was not specifically identified. After specifying the types of investment instruments, the expression 'etc' had been employed in the advertisement. According to the appellant, that would imply that the list of saving or investment instruments given in the advertisement was not exhaustive and there could be other forms of investments as well, beyond those specified. In the brochure, however, we find that the expression etc' missing and submission of Mr. Yadav as well as Mr. Sunny Nandy, learned counsel appearing for the added respondent, being the selected candidate is that the brochure ought to prevail over the advertisement. It is also the case of the Oil Company and the added respondent that in the event an advertisement is published specifying the eligibility criteria, that ought to be strictly adhered to and there should not be any deviation therefrom. It is their submission that such a course is necessary on the ground of the public policy as in the event there is post advertisement change in the eligibility criteria, many eligible candidates who might have had satisfied the altered criteria would be deprived of the opportunity to participate in a selection process. Mr. Yadav has relied on judgment of Full Bench of the Punjab and Haryana High Court reported in the case of Indu Gupta v. Director, Sports Punjab, Chandigarh and another (AIR 1999 Punjab and Haryana 319) in support of his submission that the relevant clause in the brochure ought to be strictly adhered to. "14. The terms and conditions of the brochure imposes a clear obligation upon the applicant to make a specific claim and support such claim with requisite documents. The specific claim of the candidate would be liable to be entertained only if it is supported by the said documents. In absence thereof or if the application is otherwise incomplete, it would be liable to be rejected and the authorities concerned would be under no obligation to consider such claim. The specific claim of the candidate would be liable to be entertained only if it is supported by the said documents. In absence thereof or if the application is otherwise incomplete, it would be liable to be rejected and the authorities concerned would be under no obligation to consider such claim. To stake a claim under a particular category is for the candidate to decide but once such a decision is taken by him he is obliged to strictly adhere and comply with the terms and conditions of the brochure and furnish all the requisite information asked for including submission of the certificate like gradation certificate in case of a claim being staked to sports category." 8. Learned counsel for the assessee on the other hand has submitted that every term of a tender document ought not to be held to be mandatory and distinction should be made between essential conditions and ancillary conditions of documents of this nature. It is within the domain of the authorities to vary the ancillary term and on this point he has relied on a decision of the Supreme Court in the case of M/s Poddar Steel Corporation v. M/s. Ganesh Engineering Works and others ( AIR 1991 SC 1579 ). This judgement however deals with the power of the tendering body to go for minor variation in the terms and this is not an authority for the proposition that a bidder can claim such variation as a matter of right. In this appeal we are to address the question as to whether the bidder fulfilled the qualification criteria relating to financial capacity. In the event his current account deposit is taken into account, then the criteria shall stand fulfilled. Otherwise, the action of the Oil Company rejecting his selection would stand justified. But before we examine this issue, we shall address the question as to whether the eligibility criteria in the advertisement would be accepted as the one by which the application of the appellant is to be tested or it would be the aforesaid clause in the brochure which would be strictly applicable. This aspect acquires importance because the eligibility criteria published in the advertisement in Bengali is not identical with the text of the brochure. We have already reproduced the key feature of the financial eligibility criteria as published in the advertisement earlier in this judgment. This aspect acquires importance because the eligibility criteria published in the advertisement in Bengali is not identical with the text of the brochure. We have already reproduced the key feature of the financial eligibility criteria as published in the advertisement earlier in this judgment. The main difference between the relevant clause in the brochure and the advertisement is that in the latter, in clause "chha" (the seventh letter in the consonant table of Bengali alphabets) thereof, the list of nature of accounts and financial instruments in which the sum of Rs. 2 lacs is to be retained in not exhaustive. The last line of the said clause in the advertisement lists unencumbered fixed deposit in specified banks, Kishan Vikash Patra, NSC, bond or any other investment etc, to be the depositories in which the minimum sum of Rs. 2 lacs is to be retained. The applicable clause in the brochure does not stipulate "any other investments" apart from those specified therein. The range of deposit instruments published in the Bengali advertisement is thus wider, and the instruments specified in the list are only illustrative items and not exhaustive. In this regard, we also find that in the first subparagraph in Clause "Chha", which stipulates the financial eligibility criteria of general category candidates, the minimum retention requirement is Rs. 4 lacs and an exhaustive list of financial instruments have been given. There is no employment of the adverb "et cetera" in that part of clause "chha". 9. We shall now turn to the issue as to whether the conditions stipulated in the advertisement should be treated to be the applicable condition or it would be the aforesaid clause in the brochure. In the advertisement, the conditions and eligibility criteria as well as the manner and mode of making application has been exhaustively expressed. Though there is reference to the brochure containing eligibility criteria in that advertisement and the website in which the brochure could be accessed as well as actual point of sale of the brochure has been disclosed, the appellant appear to have relied on the advertisement only. The learned First Court has also found the breach of the eligibility criteria as published in the advertisement only. The communication of the Oil Company bearing no. The learned First Court has also found the breach of the eligibility criteria as published in the advertisement only. The communication of the Oil Company bearing no. KOLAO/RGGLV/13-14 dated 21st January 2014, by which the appellant was informed that his selection process would not proceed further also refers to shortcoming of the appellant's financial capacity in relation to what was stipulated in the advertisement only. Thus, the parties to this appeal had relied on the clauses of the published advertisement for determining the eligibility criteria. In any event, the brochure cannot have the strength of the legal instrument, which could supersede the conditions of eligibility advertised in a case of this nature. 10. It is also the case of the appellant that the amount shown in his current account did not reflect any overdrawn amount and was his own deposit, on which fact there is not much dispute. But the distinction which is sought to be made both by Mr. Yadav and Mr. Nandy is that a trading account would reflect regular withdrawals for the purpose of business and ought not to be considered as investment. We agree with the submission of the Oil Company that so far as specifying eligibility criteria is concerned, they have the prerogative to stipulate the same. No challenge is thrown by the appellant also that the criteria stipulated by them is arbitrary or unreasonable. We shall have to address the question to if amount the appellant had in current account satisfied the eligibility criteria as published in the advertisement or not. We have analyzed the financial eligibility criteria applicable to the subject dispute in the preceding paragraphs. On behalf of the appellant a document captioned 'Fair Practice Code and Bank's Deposit Policy' issued by the United Bank of India bearing Circular No. CSD/06/OM-455/2004 dated December 20, 2004 has been relied upon to contend that credit in the current account constitutes deposit only. The appellant had both Saving Account and Current Account with the same bank at the local branch. In that document, under the heading "DEPOSIT POLICY", there are stipulations and the sub-heading 'Types of Deposit Accounts' to the following effect:- "Types of Deposit Accounts:- While various deposit products offered by the Bank are assigned different names. The deposit products can be categorized broadly into the following types. Definition of major deposits schemes are as under:- 4. In that document, under the heading "DEPOSIT POLICY", there are stipulations and the sub-heading 'Types of Deposit Accounts' to the following effect:- "Types of Deposit Accounts:- While various deposit products offered by the Bank are assigned different names. The deposit products can be categorized broadly into the following types. Definition of major deposits schemes are as under:- 4. "Demand deposits" means a deposit received by the Bank which is with drawable on demand; 5. "Savings deposits" means a form of demand deposit which is subject to restrictions as to the number of withdrawals as also the amounts of withdrawals permitted by the Bank during any specified period; 5. "Term Deposit" means a deposit received by the Bank for a fixed period with drawable only after the expiry of the fixed period and include deposits such a Recurring/ Reinvestment Plan Certificate/Fixed Deposits with monthly/quarterly interests and etc. 6. "Current Account" means a form of demand deposit where-from withdrawals are allowed any number of times depending upon the balance in the account or up to a particular agreed amount and will also include other deposit accounts which are neither Savings Deposit nor Term Deposit;" (reproduced as it is in the said document). 11. Our attention has also been drawn to the following passage from authoritative text Banking, Law and Practice in India, by M.L. Tannan (Eighteenth Edition 1989) Published by Orient Law House. Reliance has been placed on the following passage from page 7 of the publication:- "In very general terms, the functions of a commercial bank can be classified under the following main heads : I. Receiving of Money on Deposit : This is, perhaps, the most important function of almost all modern banks, as it is largely by means of deposits that a bank prepares the basis for several other activities. The money power of a bank, by which it helps largely the business community, depends considerably upon the amounts it can borrow by way of deposits, which may be in the form of fixed, savings or current deposits. All these go towards augmenting its resources. The money power of a bank, by which it helps largely the business community, depends considerably upon the amounts it can borrow by way of deposits, which may be in the form of fixed, savings or current deposits. All these go towards augmenting its resources. The money received on fixed deposits can be used without any risk of withdrawal before the due date, and, in the case of savings deposits, a bank can use a very large part of them, as generally the demands of customers having such deposits are comparatively small, on account of restrictions placed as to the amount to be withdrawn and the number of withdrawals to be made within a week. By the opening of current accounts, a bank not only obtains funds, but also provides its clients with deposit currency, which is both more convenient and more economical than other forms of currency. By taking money on deposit, a bank provides safe-keeping for people's money. But the money is not set apart in a strong room. It is replaced by a debt due from a banker, who ordinarily pays interest so long as the money is retained by him as a deposit. The principal together with interest is returned on its being claimed in accordance with the terms of the contract." 12. Founded on these explanations the appellant has sought to make out a case that Current Account is a form of demand deposit and comes within the term 'deposit'. Retention of the specified sum of Rs. 2 lacs in the specified instruments or accounts was one of the essential eligibility criteria, on whose breach the appellant has been declared ineligible by the Oil Company in respect of the subject dealership. In the aforesaid passage from Tannan's treatise on Banking Law sum in current accounts is treated as a form of deposit. The requirement in the advertisement was retention of a specified sum of money in any form of investments, in addition to the schemes and deposits specifically mentioned in clause "chha" thereof. In fact the Oil Companies had expanded the range by including "other forms of investments" in which the said sum of rupees two lacs could be retained and further adding the adverb "etc" as short form of the latin expression "et cetera", the use of which at the end of a list indicates that further similar items are included. In fact the Oil Companies had expanded the range by including "other forms of investments" in which the said sum of rupees two lacs could be retained and further adding the adverb "etc" as short form of the latin expression "et cetera", the use of which at the end of a list indicates that further similar items are included. In our opinion, reference to other "forms of investments" modified by employment of the adverb "et cetera" to the list of different types of deposits and schemes in the second part of clause "chha" of the advertisement would imply deposits in current accounts as well. We have already found money in current accounts to be deposits, on the basis of a public sector bank's own memorandum as also commentaries on banking law in a well-known text on subject. The deposit of the appellant in a current account, in our view, can be connected to the financial instruments, schemes and types of deposits specified in aforesaid clause "chha", and should be considered as being similar to those. A liberal construction on this specified eligibility factor is called for, having regard to the class of persons who are covered by it and the object of such classification, being for the benefit of scheduled castes and scheduled tribes. Taking into consideration all these factors, we are of the opinion that deposit in current account of the appellant in the facts of given case would constitute a form of deposit fulfilling the financial eligibility criteria contained in the aforesaid clause of the said advertisement. We are satisfied that the appellant had the eligibility criteria so far as financial capacity is concerned. There is certification from the bank of the appellant that conduct of the appellant has been satisfactory. It is evident from this certification appearing at page 145 that the amount of Rs. 3,05,250/- was kept in a current account and the appellant was otherwise enjoying term loan and cash credit facilities of Rs. 4,32,060/- and of Rs. 1,00,216/- respectively and the appellant was a customer for the bank. 13. We accordingly allow the appeal and set aside the judgement of the learned First Court. The decision of the Oil Company dated 21st January 2014 cancelling the appellant's candidature and forfeiting the deposit of the appellant for Rs. 4,32,060/- and of Rs. 1,00,216/- respectively and the appellant was a customer for the bank. 13. We accordingly allow the appeal and set aside the judgement of the learned First Court. The decision of the Oil Company dated 21st January 2014 cancelling the appellant's candidature and forfeiting the deposit of the appellant for Rs. 20,000/- appearing at page 122 of the paper-book which was made Annexure-P7 to the writ petition is also quashed. We confirm the selection of the appellant so far as the question of meeting the financial criteria is involved, which is the subject matter of dispute in this appeal. 14. On the prayer of learned Counsel for the added respondent, we however stay the operation of this judgement and order for a period of eight weeks as learned Counsel for the added respondent has expressed the intention of his client to prefer a petition for special leave to appeal before the Hon'ble Supreme Court. 15. The appeal is allowed in the in the above terms. 16. There shall be no order as to costs. 17. Urgent certified Photostat copy of this order, if applied for, shall be given to the parties as expeditiously as possible on compliance of all necessary formalities. Sankar Acharyya, J. I agree. Appeal is allowed.