Allahabad High Court

Jyoti Agrawal vs Indian Oil Corporation Ltd. And ... on 2 November, 2011

Bench: Amitava Lala, Vinay Kumar Mathur

HIGH COURT OF JUDICATURE AT ALLAHABAD

A.F.R. Court No.3

Civil Misc. Writ Petition No. 58047 of 2010

Jyoti Agrawal ....... Petitioner

Versus

Indian Oil Corporation Ltd. & another ....... Respondents

Present:

(Hon'ble Mr. Justice Amitava Lala and Hon'ble Mr. Justice V.K. Mathur)

Appearance:

For the petitioner : Mr. N.S. Chahar.

For the respondents : Mr. P.Padia, &

Mr. V.P. Mathur.

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Amitava Lala, J.-- This writ petition is basically made for the purpose of quashing the order impugned dated 07.09.2010 passed by the respondent no.2. Under the order impugned, petitioner's application dated 19.10.2007 with reference to interview conducted by the Indian Oil Corporation between 05.10.2009 to 12.10.2009 was rejected on the ground that statement with regard to fixed deposits in a Bank had not been mentioned in Column No.14.3 of the application format meant for the purpose and also the same was made on 18.10.2007, a day before submission of the application form by the petitioner.

The petitioner has contended that he was empanelled as first candidate whereas the added respondent no.4 is second empanelled candidate in the panel of selection. We find from the selection chart that both the candidates i.e. the petitioner and the respondent no.4 have obtained the similar marks. But the candidature of the respondent no.4 was not accepted because he was elder in age. As per the brochure of selection of L.P.G. Distributorship applicable for advertisement from January 2009, in case two or more applicants score same marks based on documents and interview, then the applicant who is younger in age shall be placed above the other applicants in the merit. The respondent no.4, being second empanelled candidate, challenged the order by filing a writ petition being Writ-C No.60888 of 2009 (Dr. Sangeeta Mathur Vs. Union of India & Others), which was disposed of by a Division Bench of this Court by order dated 23.11.2009 directing the authority concerned to consider the case of the petitioner(therein) and issuance of letter of intent to either of the candidate was kept in abeyance till the decision by the authority concerned. Thereafter, the Corporation i.e. Indian Oil Corporation considered the case and made few verifications. During the verifications, it appeared to them that the petitioner did not deposit requisite amount in the Bank either in the Savings Bank Account or in the Fixed Deposit as per the terms and conditions to become eligible. According to the Corporation, capability to provide finance is one of the elementary parameters for grant of L.P.G. Distributorship. So far as the Savings Bank Account is concerned, it will be considered on the date of the application and so far as the fixed deposits are concerned, the same will be considered as on the date of advertisement. Marks will be given on the basis of the availability of the fund and maximum 18 marks will be given, if someone keeps Rs.18 lacs or above in the Bank. The advertisement was made on 07.09.2007. The application was made on 19.10.2007. The Fixed Deposit was admittedly made on 18.10.2007. The date of interview was 12.10.2009.

Upon going through the application form, which is annexed to the writ petition, we find that so far as saving bank account is concerned, the figure has been shown as Rs.22,18,120= 92. The column of fixed deposit is shown as blank. The petitioner has prepared a chart on the basis of the bank statement, which is annexure-5 to the writ petition, and by showing the same has contended before us that fixed deposit was made on 18.10.2007. So far the saving bank account is concerned the figure which has been mentioned was available on 19.10.2007 but from that date till 22.01.2008 sometimes it has been reduced below 18 lacs and it has enhanced thereafter. By taking the plea of such amount, the petitioner has contended that the financial competency has been fully protected by such statement and rejection of his candidature by the Corporation is hyper-technical in nature. However, the fixed deposit is made only for a period of 91 days as available from next page of annexure-5 to the writ petition. The petitioner further contended that she has not concealed any fact, on the contrary she has clearly stated the correct facts and given the figures in the writ petition itself. Therefore, there is no case of concealment of facts on the part of the petitioner to ignore her candidature as first empanelled candidate.

According to us, not making concealment of any fact, will not entitle the petitioner to become eligible on the basis of the explanation in the writ petition. The judgment of the Supreme Court reported in 2005 (7) SCC 484 ( Sangeet Singh Vs. Union of India & Others), laid down two principles of construction in the case of interpretation of condition stipulated in the government advertisement. One is relating to casus omissus and the other in regard to reading the statute as a whole, appear to be well settled. Under the first principle a casus omissus cannot be supplied by the court except in the case of clear necessity and when reason for it is found in the four corners of the statute itself but at the same time a casus omissus should not be readily inferred and for that purpose all the parts of a statute or section must be construed with reference to the context and other clauses thereof so that the construction to be put on a particular provision makes a consistent enactment of the whole statute. This would be more so if literal construction of a particular clause leads to manifestly absurd or anomalous results which could not have been intended by the legislature. A casus omissus ought not to be created by interpretation, save in some case of strong necessity.

The particular case before us is in connection with the eligibility of two candidates. The second empanelled candidate being respondent no.4 has been placed as second empanelled candidate because of her higher age not for any other disqualification. She was eliminated by the principle of toss, not on merit. On the other hand, upon re-verification, the petitioner was found ineligible and, therefore, now the defect has been wanted to be cured before the Court.

In another judgment of the Supreme Court reported in JT 2007 (5) SC 257 (Shiv Kant Yadav Vs. Indian Oil Corporation and Others), the Supreme Court held that there was requirement to disclose the true and correct fact, which does not appear to have been done and in case untrue or incorrect or false statement is given, neither the dealership can be granted nor letter of intent can be issued. The Indian Oil Corporation would be within its rights to withdraw the letter of intent/terminate the dealership/distributorship (if already appointed) and that, would have no claim, whatsoever. Therefore, ultimately the Court held that if any factual mis-statement or declaration is made, that permits cancellation of the allotment. The order of the High Court does not suffer from any infirmity to warrant interference when it was held by the High Court therein that the income was less than Rs.2 lacs, which was required, did not materially affect the eligibility of the applicant was not accepted and accordingly the writ petition was dismissed. Therefore, taking overall view of the matter we are of the view that though it is not a case of concealment but a case of disqualification and the disqualification cannot be cured by the Court at this stage on the basis of the documents, which have been annexed with the writ petition, when infirmities are apparent from the face of it as per the conditions of the brochure made for the selection of dealership/ distributorship for the year 2009.

Hence, in totality, we cannot pass any affirmative order in favour of the petitioner. Therefore, the writ petition cannot be admitted. Hence, it is dismissed at the stage of admission on contest, however, without imposing any cost.

(Justice Amitava Lala)

I agree.

(Justice V.K. Mathur)

Dt.02.11.2011

pks/

Hon'ble Amitava Lala,J.

Hon'ble V.K. Mathur, J.

The writ petition is dismissed, however,

without imposing any cost.

Dt. 02.11.2011

pks/-

For orders, see order of date passed on