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2019 DIGILAW 753 (RAJ)

Raj Kumar v. Hindustan Petroleum Corporation Ltd.

2019-03-06

SANJEEV PRAKASH SHARMA

body2019
JUDGMENT 1. In view of the order passed by this Court on 18.02.2019, this writ petition was heard at this stage with the consent of the parties finally. 2. Learned counsel for the petitioner submits that the petitioner was one of the applicant for the dealership of the retail outlet for the location between Manpura to Gopalpura on Mandalgarh- Jahajpur Road vide advertisement dated 19.09.2011 issued by the respondent No. 1 - Hindustan Petroleum Corporation Limited (hereinafter referred to as the Company). 3. The contention of the petitioner is that the allotment was to be done as per the Policy Guidelines published by the respondent- Company which required for allocation of marks for various aspects by the Selection Committee and the evaluation of the candidature was to be done accordingly. 4. It is a submission of the learned counsel that while making such evaluation, the respondent - Company did not follow the prescribed norms as laid down by it and awarded only 45.17 marks to the petitioner while awarding 78.42 marks to the respondent No. 2. The petitioner submitted a complaint against the said awarding of marks to him and also challenged awarding of 78.42 marks to the respondent No. 2 on the ground that the land offered by the respondent No. 2 was not falling at the site for which the advertisement had been published for allocation of the dealership of retail outlet. 5. Learned counsel submits that on the complaint made by the petitioner, the respondent - Company re-examined the application of the petitioner and by letter dated 08.08.2013, it was conveyed to the petitioner that the marks allocated earlier have been revised to 67.42 marks and the petitioner has been placed in the panel at second place. 6. Learned counsel submits that even while conveying the decision dated 08.08.2013, the respondent - Company has fallen in error on several grounds. 7. Firstly, the contention of the petitioner that position with regard to first panel candidate, i.e., the respondent No. 2 was wrongfully decided. It is a submission of the learned counsel for the petitioner that the land was required to be falling between Manpura to Gopalpura Mandalgarh-Jahajpur Road. 7. Firstly, the contention of the petitioner that position with regard to first panel candidate, i.e., the respondent No. 2 was wrongfully decided. It is a submission of the learned counsel for the petitioner that the land was required to be falling between Manpura to Gopalpura Mandalgarh-Jahajpur Road. In support of his contention, learned counsel has taken this Court to the certificate issued by the Patwari dated 01.09.2013 wherein the Patwari has specifically mentioned as under:- ^^fjiksVZ iVokjh & ekuiqjk fnukad 01-09-2013 egksn; th] fuosnu gS fd xzke xksikyiqjk dh vkŒuŒ 1790 jdck 3 ch?kk jksMwey fiŒ ek/kqyky yksxMŒ egktu lkŒ HkhyokM+k ds uke ntZ jsdkMZ gSA mDr vkŒuŒ 1790 jdck 3 ch?kk f=os.kh tgktiqj eq[; lM+d ij xzke xksikyiqjk ls f=os.kh ds chp fLFkr gSA ;g vkŒuŒ xzke ekuiqjk ls xksikyiqjk ds chp fLFkr ugha gSA mfpr vkns'kkFkZ fjiksVZ dj lknj Ásf"kr gSA** 8. It is submitted that the land offered was falling in khasra No. 1790 measuring 3 bighas by the respondent No. 2. This report, as quoted above, was however revised by the Patwari while giving a certificate dated 16.05.2018, which reads as under:- ^^fjiksVZ iVokjh iVokj gYdk & ekuiqjk xzke xksikyiqjk dh vkŒuŒ 1790 jdck & 3-00 ch?kk jksMqey fiŒ ek/kqyky yksxMŒ egktu fuoklh lkaxkusjh xsV & HkhyokM+k ds uke ntZ jsdkMZ gSA mDr vkjkth tgktiqj & ek.Myx<+ lM+d ekxZ ij ekuiqjk ls xksikyiqjk ds chp fLFkr gSA** 9. Learned counsel submits that against the aforesaid report dated 16.05.2018, the petitioner submitted a complaint to the Tehsildar, who directed the concerned Patwari to submit a detailed report specifically mentioning, whether the land was falling between Manpura to Gopalpura Mandalgarh-Jahajpur Road whereupon, a report has been submitted on 02.08.2018 by the Patwari and counter-signed by the Naib-Tehsildar on 14.08.2018 mentioning as under:- ^^fjiksVZ iVokjh iŒgŒ & ekuiqjk egksn; th] fuosnu gS fd Jheku ds vkns'kkuqlkj ÁkFkhZ ds ÁkFkZuk&i= esa of.kZr rF;ksa dh tkap dhA rks jktLo jsdkMZ vuqlkj xzke xksikyiqjk iŒlaŒ ekuqijk ds vkŒuŒ 1790 jdck 3-00 ch?kk jksMqey fiŒ ek/kqyky yksxMŒ egktu lk lkaxkusjh xsV HkhyokM+k ds uke [kkrsnkjh gd esa d`f"k Hkwfe jsdkMZ ntZ gSA vkns'kkuqlkj mDr vkjkth uEcj 1790 dk ekSdk ns[kk x;k rks jktLo uD'ks vuqlkj mDr vku 1790 ek.Myx< f=os.kh&tgktiqj lM+d ,eMhvkj&7 ds lgkjs fLFkr gksdj xzke & xksikyiqjk o xzke & chM dk [ksM+k ds e/; fLFkr gSA vku 1790 xksikyiqjk o ekuiqjk ds e/; fLFkr ugha gSA fjiksVZ Jheku th dh lsok esa isjk gSA** 10. Learned counsel for the petitioner submits that in view of the aforesaid report dated 02.08.2018, the findings on issue No. 1 as communicated to the petitioner vide letter dated 08.08.2013 was unjustified and the respondent No. 2 could not have been placed as a First Panel Candidate. 11. Learned counsel further submits that with regard to income parameters, the petitioner was wrongfully denied marks although he submitted income returns for the financial years 2008-2009, 2007-2008 and 2006-2007. It is a submission that as per the Policy Norms, income-tax returns for the last three financial years was required to be looked into. However, as the petitioner had not submitted income-tax returns for the last financial years 2010- 2011 and 2009-2010, the respondent - Company, the respondent- Company has allotted 0 (zero) marks to the petitioner whereas the financial returns for the financial year 2008-2009 was available on record and accordingly, the petitioner was entitled to be given 1.25 marks as per the norms. 12. 12. Learned counsel further submits that for credit worthiness, the petitioner was entitled to be given full marks, i.,e., 5 marks as he had enclosed credit worthiness certificate from the Central Cooperative Bank Limited, Mahua but the respondent - Company had wrongly ignored the said certificate on the ground that the Cooperative Bank is not a Scheduled Bank whereas the norms specifically mentions of the certificate to be issued either by the Scheduled Bank or by a Financial Institution. 13. It is a submission of the learned counsel for the petitioner that the Central Cooperative Bank Limited, Mahua is falling within the ambit of Financial Institution and, therefore, the credit worthiness certificate could not have been ignored by the respondent - Company for awarding of marks on that count. 14. Thus, learned counsel submits that the marks allotted to him, after revision, ought to have been increased by 6.25 marks in addition to the marks already allotted to him i.e., 67.42 marks. Thus, the submission of the learned counsel for the petitioner is that the respondent - Company has wrongfully deprived the petitioner of his rightful claim for being empanelled as a First Panel Candidate for allotment of dealership of retail outlet between Manpura to Gopalpura on Mandalgarh-Jahajpur Road and the empanellment of the respondent No. 2 was illegal, arbitrary and unjustified. 15. Per contra, learned counsel appearing for the respondent - Company submits that the land, as per the documents submitted by the respondent No. 2, bearing khasra No. 1790 was falling on Mandalgarh-Jahajpur Road and was, therefore, rightly considered for selection for the advertised location. It is asserted that the land was within the advertised location. 16. Learned counsel also submits that so far as the Central Cooperative Bank Limited is concerned, it is not a Scheduled Bank and on account of the same, the certificate submitted by the petitioner was not taken into consideration for grant of credit worthiness marks. 17. Learned counsel also submits that the respondent - Company has rightly not granted the marks for the income as the Income-Tax Returns for the Financial Years 2010-2011 and 2009- 2010 were not submitted by the petitoner. 18. Learned counsel for the respondent - Company also submits that the land offered by the respondent No. 2 was falling in village Gopalpura and, therefore, it was considered to be at correct location. 19. 18. Learned counsel for the respondent - Company also submits that the land offered by the respondent No. 2 was falling in village Gopalpura and, therefore, it was considered to be at correct location. 19. Learned counsel appearing for the respondent No. 2 submits that the land which was to be offered was to be on Mandalgarh- Jahajpur Road. He has taken this Court to Annexure-12, which is placed on record, to submit that his land falls on the Triveni Road which is going towards Mandalgarh and the road on the other side goes towards Jahajpur. The requirement as per the advertisement was that the land falling between Manpura to Gopalpura on Mandalgarh-Jahajpur Road is required and if the land was not falling on the Manpura to Gopalpura road but it is falling on the main road, i.e., Mandalgarh-Jahajpur Road, it would be treated to be as falling within the norms of the advertisement. 20. Learned counsel submits that as per the Patwari report dated 16.05.2018 (quoted above), the land falls on Jahajpur-Mandalgarh Road and, therefore, as per the Patwari report dated 16.05.2018 which mentioned location of the land falling between Manpura- Gopalpura Road, the respondent - Company had rightly empanelled him at First Place. 21. I have considered the submissions made by the learned counsels for the parties and have also perused the material available on record, I find that so far as the contention raised by the petitioner relating to the location of the land offered by the respondent No. 2 is concerned, this Court would ordinarily not give any finding relating to a location of the land while sitting in writ jurisdiction because the questions of facts cannot be examined by this Court in the writ jurisdiction and this Court would have dismissed this writ petition on that count alone. 22. However, as quoted hereinabove, there are three reports of the Patwari of the concerned village. A Patwari is a Revenue Officer, who is required to give correct position of a particular land falling in his village and the report so give, unless challenged, has to be treated as correct. The respondent - Company is required to evaluate the report which gives the exact location of the land as per the revenue record. It is noticed that there is some discrepancy in the reports submitted by the Patwari in the year 2013 and on 16.05.2019. The respondent - Company is required to evaluate the report which gives the exact location of the land as per the revenue record. It is noticed that there is some discrepancy in the reports submitted by the Patwari in the year 2013 and on 16.05.2019. Thereafter, the Naib Tehsildar along with Patwari has submitted a report placed on record along with the additional affidavit dated 14.08.2018, quoted above. 23. Perusal of the said report dated 14.08.2018 reveals that a final verdict has been given by the Naib Tehsildar based on the report of the Patwari concerned that the land bearing Aaraji No. 1790 does not fall between Manpura to Gopalpura on Mandalgarh-Jahajpur Road. The said report has not been challenged by the respondent No. 2 either by filing a counter affidavit or in any other proceedings. 24. In view of the aforesaid position, this Court would treat the said report dated 14.08.2018 to be final indicating the position of land of khasra No. 1790 belonging to the respondent No. 2. Hence, it is held that the land offered by the respondent No. 2 does not fall between Manpura to Gopalpura on Mandalgarh-Jahajpur Road would, therefore, not be treated to be a land for the location as advertised by the respondent - Company vide advertisement dated 19.09.2011. Accordingly, the respondent No. 2 was not eligible to be empanelled for dealership selection for the location between Manpura to Gopalpura on Mandalgarh-Jahajpur Road. 25. This Court also finds that as per the norms laid down by the respondent - Company for grant of marks for different aspects for an applicant, have not been followed strictly while granting marks to the petitioner. As per the norms, a Financial Institution Certificate was sufficient for the purpose of credit worthiness marks and it was not necessary that the certificate was required to be issued only by a Scheduled Bank. Accordingly, the petitioner is entitled to receive full 5 marks for the said purpose. 26. As per the aforesaid norms, 4 marks, in all, were required to be granted for the income-tax assessment. The petitioner has submitted Income-Tax Returns for the Financial Year 2008-2009 which falls within three years financial returns and, therefore, as required under the norms, the petitioner is required to receive 1.25 marks which have not been allotted to him earlier. 26. As per the aforesaid norms, 4 marks, in all, were required to be granted for the income-tax assessment. The petitioner has submitted Income-Tax Returns for the Financial Year 2008-2009 which falls within three years financial returns and, therefore, as required under the norms, the petitioner is required to receive 1.25 marks which have not been allotted to him earlier. It is thus, seen that the decision conveyed to the petitioner vide letter dated 08.08.2013 denying him empanellment as a First Empanelled Candidate is unjustified and illegal and there has been a deliberate ignorance towards Policy Guidelines which are binding on the respondent - Company. 27. Accordingly in view of the aforesaid findings arrived at by this Court, this writ petition is allowed. The letter/decision dated 08.08.2013 so far as placing the petitioner at No. 2 in the empanellment, is set aside. The petitioner should be treated as First Empanelled Candidate and further steps would be taken by the respondent - Company to award the retail outlet as advertised by them vide advertisement dated 19.09.2011 for the location between Manpura to Gopalpura on Mandalgarh-Jahajpur Road. 28. Cost of this writ petition Rs. 1,00,000/- (Rupees One Lac only) is awarded to the petitioner which shall be recovered by the respondent - Company from its erring officials, who have not followed the Policy Guidelines/Norms as laid down by the respondent - Company and for not examining the case at hand in its correct perspective.