Research › Search › Judgment

Bombay High Court · body

2021 DIGILAW 536 (BOM)

Mahadev Tukaram Tonde v. Government Of India

2021-03-08

ABHAY AHUJA, SUNIL P.DESHMUKH

body2021
JUDGMENT Abhay Ahuja, J. - Rule. Rule made returnable forthwith. By consent of learned counsel for the parties, heard finally. 2. By this petition fled under Article 226 of Constitution of India, petitioner is challenging communication dated 16-02- 2021, whereby petitioner has been found ineligible for the RO dealership for the reason that, "Caste Certificate prior to date of application not submitted". 3. It is the case of the petitioner that pursuant to the advertisement dated 25-11-2018 published by respondent no.2 Corporation inviting applications for retail outlet (petrol pump) dealership at various places in the State of Maharashtra including one such location being Thetgavhan vide location No.2270 on Telgaon Dharur Road, in the Aurangabad Division, reserved for OBC category, the petitioner submitted online application on 25-12-2018 for the said location in OBC category. Pursuant to a draw held on 22-06-2019, petitioner was selected for RO dealership and by communication dated 22-06-2019, petitioner was requested to remit Rs.30,000/- online towards initial security deposit and was also requested to submit various documents including those in respect of the petitioner's specific eligibility criteria of belonging to OBC category. 4. Petitioner deposited an amount of Rs.30,000/- and has also submitted various documents as well as copy of caste certificate dated 08-08-1994 as well as caste validity certificate dated 26-04-1995 indicating the petitioner belonging to Nomadic Tribe Vanjari category as well as declaration required as per Appendix VII-B stating that he belongs to OBC community which is recognized as a backward class by the Government of India for the purpose of reservation in services as per the orders of the DoPT Memorandum dated 08-09-1993 modified on 14-10-2008 and also that he does not belong to the Creamy Layer. 5. On 26-11-2020 the petitioner was requested to submit the following documents : "1. Gut number mentioned in application is Gut No. 403 document offered for land Gut No.22/1/A Affidavit of given. Caste Certificate of OBC Prior date of application to be submitted". 6. However, since caste certificate prior to date of application was not submitted, vide letter dated 16-02-2020 respondent no.2 communicated to the petitioner that the petitioner's candidature was not found to be eligible for RO dealership as "Caste Certificate prior to date of application was not submitted". 7. Thereafter, it is submitted that, petitioner approached the Grievance Redressal Committee of respondent no.2 seeking to quash the rejection communicated by respondent no.2. 7. Thereafter, it is submitted that, petitioner approached the Grievance Redressal Committee of respondent no.2 seeking to quash the rejection communicated by respondent no.2. However, it is submitted that till date the grievance of the petitioner has not been favourably considered. 8. Mr. Jadhavar, learned counsel for the Petitioner submits that the communication dated 16-02-2020 deserves to be quashed and set aside and respondent no.2 be directed to issue letter of intent in favour of the petitioner. He would submit that the application was invited by respondent no.2 for retail outlet dealership under the OBC category and as such the petitioner had applied for the same. He would submit that as was required by respondent no.2 by letter dated 26-06-2019 as well as 26-11-2020, petitioner had submitted necessary declarations of being OBC and the said letter had not requested for the OBC certificate. Referring to the terms of the brochure, learned counsel would submit that neither the online application nor the communication dated 22-06-2019 or 26-11-2020 requested for submission of the OBC certificate and that after the online application, the petitioner was, vide communication dated 22-06-2019 declared as selected candidate pursuant to draw of lots and the communication dated 16-02-2021 finding him ineligible on the basis of documents is nothing but frustrating a right created in favour of the petitioner. 9. It is also submitted by the petitioner that condition no.14 E (viii) clearly stipulates that scrutiny of the documents be carried out only after receipt of 10% of the security deposit (initial security deposit) and (ix) refers to that in case of rectifiable deficiency in the documents submitted, intimation to the selected candidate to submit the required corrected document within 21 days has to be given which the 2nd respondent has failed to submit. He submits that if there is any deficiency and said deficiency is rectifiable, then respondent no.2 is bound to give notice of a period of 21 days to rectify the said deficiency but the same was not done and straightway he was held to be ineligible. The said action is totally illegal in the eyes of law and ought to be quashed and set aside and the petitioner be declared as eligible candidate for RO dealership. 10. The said action is totally illegal in the eyes of law and ought to be quashed and set aside and the petitioner be declared as eligible candidate for RO dealership. 10. In any event, the learned counsel vehemently submits, that Nomadic Tribe Vanjari falls under OBC category at serial no.146 in the central list of OBCs in Maharashtra as notified in the Gazette of India dated 13-09-1993 and that he had submitted copy of the caste certificate issued by the Sub-Divisional Officer, Beed on 08-08-1994 certifying that the petitioner belonging to NT Vanjari Tribe which was verified by the Caste Scrutiny Committee on 26-04-1995. 11. It is further submitted that neither in the advertisement nor in the brochure, it is specified that the caste certificate should be of a specific date in order to claim benefit of reservation/or the location reserved for a particular category. He submits that in the absence of such specific requirement, the impugned order is illegal, arbitrary and unjust. 12. Learned counsel for the petitioner further submits that reservation is provided to the backward class people so as to uplift them and to bring them in main stream. Reservation is provided to the backward class people and not to the certificate. In order to claim benefits of reservation, person must be belong to that particular reserved category. Caste certificate issued by the competent authority is necessary just to ascertain his/her social status i.e. caste and date of such certificate is absolutely irrelevant. Certificate issued by the competent authority is just declaration of caste/social status of a person and it does not confer caste or social status of said person. He submits that the approach of respondent no.2 is arbitrary, unreasonable and unjust and therefore the communication dated 16-02-2020 deserves to be quashed and set aside. 13. On the other hand, Mr. Bhandari, learned counsel for respondent no.2 would submit that petitioner has obtained OBC caste certificate dated 12-07-2020, which is after the date of the application by petitioner for RO dealership. He submits that the terms of brochure are very clear. He draws our attention to the specific eligibility criteria contained in Clause 4 (vi)(b) of the brochure pertaining to the Other Backward Classes to submit that eligible candidates belonging to other backward classes should be recognized by the concerned State as OBC in which the location has been advertised. He submits that the terms of brochure are very clear. He draws our attention to the specific eligibility criteria contained in Clause 4 (vi)(b) of the brochure pertaining to the Other Backward Classes to submit that eligible candidates belonging to other backward classes should be recognized by the concerned State as OBC in which the location has been advertised. He also draws our attention to a Note on page 12 of the Brochure with regard to submission of documents by selected candidates that all certificates/documents required for meeting eligibility/specific eligibility criteria should be in possession of the applicant and valid as on the date of application. For the sake of ready reference the said note is reproduced as under : "Note : with regard to submission of documents by selected candidates : 1. All certificates/documents required for meeting Eligibility/Specific eligibility criteria should be in possession of the applicant and valid as on date of application ....." 14. Learned counsel for respondent no.2 would, therefore, submit that respondent Corporation is justified in rejecting the candidature of the petitioner. He relies upon a decision of this court in the case of Navnath Shankar Badage Vs. Indian Oil Corporation Limited and another in Writ Petition No. 5812 of 2019 passed on 18 th June, 2019 to submit that in an almost identical situation this court has dismissed the petition holding that all certificates/documents required for meeting eligibility criteria should be in possession of the applicant and valid as on the date of application and that the attempt of the petitioner to show that he is belonging to the OBC category is of no consequence as the same is futile attempt or an afterthought theory of the petitioner. 15. He also submits that there is no question of giving any intimation to the petitioner to rectify any deficiency as there is no rectifiable deficiency but a failure to comply with the terms and conditions of the advertisement/brochure. 16. We have heard learned counsel for the parties and with their assistance also perused the papers and proceedings in the matter. 17. The facts being largely undisputed, the issue at hand is whether the communication dated 16-02-2021 rejecting the eligibility of the petitioner for retail outlet dealership on the ground that caste certificate prior to date of application is not submitted is tenable or not. 18. 17. The facts being largely undisputed, the issue at hand is whether the communication dated 16-02-2021 rejecting the eligibility of the petitioner for retail outlet dealership on the ground that caste certificate prior to date of application is not submitted is tenable or not. 18. In our view the arguments by the respondent no.2 appear to have weight. The specific eligibility criteria contained in Clause-4 (vi)(b) of the brochure requires that candidates belonging to OBC should be recognized as such by the concerned State only where the location has been advertised. Not only that the note on page 12 of the brochure referred to above, clearly requires the petitioner to be in possession of a valid certificate on the date of application. Admittedly, the petitioner was not in possession of the required OBC certificate as on the date of the application. The application for the retail outlet was made on 25-12-2018, whereas the OBC certificate was obtained on 12-07-2020 pursuant to application made on 11-07-2020 clearly indicating that the required certificate was not even issued to the petitioner let alone it being in possession of the applicant and valid as on the date of the application. We also observe from page 62 of the brochure that the required declaration in Appendix VII-A, which is a standard format required for OBC category certificate as required under the specific eligibility criteria pursuant to the 2nd respondent's letter dated 26-06-2019 as well as 26-11-2020 do not appear to have been submitted. But only copies of the caste certificate as well as caste validity certificate indicating the petitioner belonging to Nomadic Tribe Vanjari category appear to have been submitted along with VII-B declaration described earlier. We are therefore, unable to accept the submissions made on behalf of the petitioner. 19. Coming to the argument of the learned counsel for the petitioner that the petitioner was declared selected candidate pursuant to communication dated 22-06-2019 and that the defendant's communication dated 16-02-2021 is a frustration of right created in his favour. We note that the communication dated 22-06-2019 is clearly conditional upon submission of documents within 10 days, which as can be seen from the communication dated 26-11-2020 as well as 16-02-2021, was not done. The communication dated 22-06-2019 is clearly subject to the terms and conditions. Therefore, there can be no question of frustration of any right. 20. We note that the communication dated 22-06-2019 is clearly conditional upon submission of documents within 10 days, which as can be seen from the communication dated 26-11-2020 as well as 16-02-2021, was not done. The communication dated 22-06-2019 is clearly subject to the terms and conditions. Therefore, there can be no question of frustration of any right. 20. There also does not seem to be any merit in the contention that the condition that the scrutiny of documents would be carried out only after receipt of the initial security document suggesting that the date of the OBC certificate can be after the date of application as that argument also does not impress us in view of the specific terms of the advertisement/brochure as observed above. 21. Further the argument that the deficiency for which the petitioner has been held to be ineligible is rectifiable in our view does not hold any water inasmuch as the terms of the advertisement and the brochure are very clear that a valid OBC certificate should be possessed by the petitioner as on the date of the application and therefore, there is no question of intimating the petitioner to submit the corrected documents within 21 days. In fact, the chain of events clearly indicate that the OBC certificate was obtained on 12- 07-2020 whereas the application for RO dealership was made on 25-12-2018 and therefore the question of rectifiable deficiency would not arise. By letter dated 26-11- 2020, the petitioner was once again informed that the caste certificate of OBC prior to date of application is to be submitted, however, since the petitioner did not furnish the said certificate as was required in terms of the advertisement/brochure and as reiterated vide letter dated 26-11-2020, his candidature was found to be ineligible vide communication dated 16-02-2021. There is therefore no merit in the arguments advanced on behalf of the petitioner. 22. Also to keep harping that the petitioner had a certificate of Vanjari Nomadic Tribe, which under the central list of OBCs in Maharashtra is at serial no.146 and therefore, he already had the social status of OBC and it would not be material as to when the said certificate is obtained, is also fallacious. 22. Also to keep harping that the petitioner had a certificate of Vanjari Nomadic Tribe, which under the central list of OBCs in Maharashtra is at serial no.146 and therefore, he already had the social status of OBC and it would not be material as to when the said certificate is obtained, is also fallacious. This is because despite the terms of the brochure requiring the petitioner to be in possession of a valid OBC certificate in form VII-A from the concerned State in which the location has been advertised as on the date of application, the petitioner has obtained the same only on 12- 07-2020, pursuant to an application dated 11-07-2020, which is after the date of application. The petitioner has after he obtained the Nomadic Tribe certificate in 1994 validated in 1995, had obtained the OBC certificate only on 12-07-2020 to make out a case against the rejection of his claim. Nothing had prevented the petitioner to approach the authority to obtain the OBC certificate earlier. Being therefore in respectful agreement with the views expressed by this court in the case of Navnath Shankar Badage (supra), we are unable to accept the contention of the learned counsel for the petitioner that once the social status has been declared, then it is immaterial as to when the certificate is issued. This is more so because we are dealing with the case of a tender where several candidates would apply and only the ones who comply with the specific terms of the said tender would be eligible to be issued the letter of intent. If the petitioner is allowed on the basis of the arguments of the learned counsel to proceed further in the process, it would place similarly rejected candidates who are unable to approach this court on an unequal footing, which cannot be permitted. 23. Further, when the terms of a tender/advertisement are so specific as have been described above, there is no room for giving a go by to the same especially in matters of public tenders as this one. The words used in the advertisement or the brochure could not be ignored and they must be given meaning and their necessary significance. 24. In this context paragraphs 15 of a recent decision of the Supreme Court in the case of Vidarbha Irrigation Development Corporation Vs. The words used in the advertisement or the brochure could not be ignored and they must be given meaning and their necessary significance. 24. In this context paragraphs 15 of a recent decision of the Supreme Court in the case of Vidarbha Irrigation Development Corporation Vs. Anoj Kumar Agarwal, (2019) 2 Scale 134 is apt and is quoted as under : "15. It is clear even on a reading of this judgment that the words used in the tender document cannot be ignored or treated as redundant or superfluous- they must be given meaning and their necessary significance. Given the fact that in the present case, as essential tender condition which had to be strictly complied with was not so complied with, the Appellant would have no power to condone lack of such strict compliance. Any such condonation, as has been done in the present case, would amount to perversity in the understanding or appreciation of the terms of the tender conditions, which must be interfered with by a constitutional court". 25. It may also not be out of place to mention here that the advertisement by the public corporation is for award of dealership of a petrol pump and as such is a contractual matter. We are therefore, reminded of the principles laid down by the Supreme Court to the extent judicial review can be invoked in such matters. Paragraph 19 of the decision of the Supreme Court in the case of Bakshi Security and Personnel Services Private Limited Vs. Devkishan Computed Private Limited and others, (2016) 8 SCC 446 summarises these principles and the same is quoted as under : "19. It is also well to remember the admonition given by this Court in Michigan Rubber (India) Limited v. State of Karnataka and Others, in cases like the present, as under:- (SCC p.228, para 21) 21. "In Jagdish Mandal vs. State of Orissa, the following conclusion is relevant : (SCC p. 531, para 22) "22. Judicial review of administrative action is intended to prevent arbitrariness, irrationality, unreasonableness, bias and mala fides. Its purpose is to check whether choice or decision is made 'lawfully' and not to check whether choice or decision is 'sound'. When the power of judicial review is invoked in matters relating to tenders or award of contracts, certain special features should be borne in mind. A contract is a commercial transaction. Its purpose is to check whether choice or decision is made 'lawfully' and not to check whether choice or decision is 'sound'. When the power of judicial review is invoked in matters relating to tenders or award of contracts, certain special features should be borne in mind. A contract is a commercial transaction. Evaluating tenders and awarding contracts are essentially commercial functions. Principles of equity and natural justice stay at a distance. If the decision relating to award of contract is bona fide and is in public interest, courts will not, in exercise of power of judicial review, interfere even if a procedural aberration or error in assessment or prejudice to a tenderer, is made out. The power of judicial review will not be permitted to be invoked to protect private interest at the cost of public interest, or to decide contractual disputes. The tenderer or contractor with a grievance can always seek damages in a civil court. Attempts by unsuccessful tenderers with imaginary grievances, wounded pride and business rivalry, to make mountains out of molehills of some technical/procedural violation or some prejudice to self, and persuade courts to interfere by exercising power of judicial review, should be resisted. Such interferences, either interim or final, may hold up public works for years, or delay relief and succour to thousands and millions and may increase the project cost manifold. Therefore, a court before interfering in tender or contractual matters in exercise of power of judicial review, should pose to itself the following questions: (i) Whether the process adopted or decision made by the authority is mala fide or intended to favour someone; OR Whether the process adopted or decision made is so arbitrary and irrational that the court can say: 'the decision is such that no responsible authority acting reasonably and in accordance with relevant law could have reached'; (ii) Whether public interest is affected. If the answers are in the negative, there should be no interference under Article 226. Cases involving blacklisting or imposition of penal consequences on a tenderer/contractor or distribution of State largesse (allotment of sites/shops, grant of licences, dealerships and franchises) stand on a different footing as they may require a higher degree of fairness in action." 26. If the answers are in the negative, there should be no interference under Article 226. Cases involving blacklisting or imposition of penal consequences on a tenderer/contractor or distribution of State largesse (allotment of sites/shops, grant of licences, dealerships and franchises) stand on a different footing as they may require a higher degree of fairness in action." 26. Relying on the aforesaid principles and answering the questions posed therein in the negative, the present case not falling in the exception carved out, we do not think that this is a case for interference under Article 226, this being a commercial and contractual matter, we refrain from exercising our writ jurisdiction in the matter. 27. In the circumstances, the petition fails. Petition is accordingly dismissed. Rule stands discharged. No costs.