Allahabad High Court
Panch Dev Kumar vs Indian Oil Corporation Ltd. And 2 ... on 9 May, 2018
Bench: Dilip B. Bhosale, Chief Justice, Suneet Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD
Chief Justice's Court
Case :- WRIT - C No. - 15653 of 2018
Petitioner :- Panch Dev Kumar
Respondent :- Indian Oil Corporation Ltd. And 2 Others
Counsel for Petitioner :- Shantanu Khare,Shri Ashok Khare
Counsel for Respondent :- Pramod Kumar Rai
Hon'ble Dilip B. Bhosale,Chief Justice
Hon'ble Suneet Kumar,J.
Heard Sri Ashok Khare, learned Senior Advocate, appearing for the petitioner and Sri R.M. Saggi, learned counsel for the respondent-Corporation.
By the instant writ petition, petitioner is assailing the communication dated 9 April 2018 issued by the second respondent, Divisional Retail Sales Manager, Varanasi, whereby, the representation of the petitioner has been rejected, affirming the order dated 27 February 2018 cancelling the candidature of the petitioner for dealership outlet.
Pursuant to an advertisement dated 17 October 2014, issued by the Indian Oil Corporation (for short 'Corporation'), petitioner applied for Kisan Seva Kendra-Rural Retail Outlet Dealership at Karauti, Development Block-Mehnagar, Azamgarh, for Scheduled Caste category. Petitioner supplied lease deed of Plot No. 911 (M), measuring 680.4 sq. meter for the dealership; on fulfilling the terms and conditions he was duly selected in the draw of lots conducted on 27 March 2017.
The candidature of the petitioner was rejected for the reason contained in the impugned communication dated 9 April 2018, which reads thus:
"In the subject case, sub lease clause was not found available in the lease deed executed on 12.11.2014 for the offered land and which was submitted along with the application form for the subject dealership. Any addition/alteration in the originally submitted lease deed dated 12.11.2014 is not allowed in line with selection guidelines of the Corporation. Thus Rectification deed (titima) dated 25.07.2017 issued by Deputy Registrar, Mehnagar Distt Azamgarh enclosed with your representation dated 05.08.2017 cannot be accepted as per selection guidelines of the Corporation as the same is not valid as on date of initial affidavit submitted with the application form i.e. 14.11.2014."
Learned Senior Counsel appearing for the petitioner submits that the action of the Corporation rejecting the candidature of the petitioner is arbitrary, illegal and not in terms of the conditions contained in the Brochure for Selection of Dealers for Regular and Rural Retail Outlets dated 21 May 2014 (for short 'Brochure'). Petitioner fulfills the condition pertaining to 'Land'.
Learned counsel appearing for the respondent-Corporation has placed reliance on the terms and conditions provided in the Brochure to submit that lease deed submitted by the petitioner did not contain any sub-lease clause and the rectification deed dated 25 July 2017 incorporating the sub-lease clause was after the last date of submission of application/affidavit, therefore, it is urged that petitioner was not found to be eligible on the last date of submission of application form.
Rival submission falls for consideration.
We have gone through the averments of the writ petition and the material brought on record and supplied by the learned counsel for the Corporation, in particular, the Brochure, with the assistance of learned counsel for the parties. The conditions for making available 'land' reads thus:
"(vi) Land (Applicable to all categories):
The other conditions with respect to offering of land are as under:
a) The land should be available with the applicant as on the date of affidavit and should have minimum lease of XX years from the date or after the date of advertisement but not later than the date of affidavit. (Appendix-XA/XB)
b) If the offered land is on Long term lease then the Lease agreement should have a provision to sub-lease the land wherever the locations are advertised under Corpus Fund Scheme (CFS), Other Corporation Owned Sites ("A"/ "CC" sites) and Company Leased sites.
Procedure for Filling and Submission of Application: provides that no alteration/addition/deletion in the application form shall be permitted except affixing of photograph and putting signature on the application form. The rectified or additional documents will be accepted only if they are pertaining to the information provided in the Application Form. Sub-clause (viii) reads thus:
"viii. No alteration/addition/deletion in the application form will be permitted except affixing of photograph and putting signature on the application form. The rectified or additional documents would be accepted only if they are pertaining to the information provided in the Application form."
The facts, inter se, parties are not in dispute, the only reason assigned in the impugned communication is that the rectification deed was submitted after the last date of submission of the form/affidavit. In other words, the rectification document dated 25 July 2017 is not prior to the affidavit submitted with the application form dated 14 November 2014 i.e. the lease deed did not contain sub lease clause which was provided for by the petitioner by the rectification deed after the date of submission of the application form.
In our opinion, the approach of the Corporation in rejecting the candidature of the petitioner is not only hyper technical but the basis for rejection is also not borne out from the terms and conditions contained in the Brochure for selection of dealers for regular and rural retail outlets relied upon by the learned counsel for the respondent-Corporation. The conditions relied upon require that the 'land' should be available with the applicant on the date of affidavit and should have minimum lease of 20 years from the date or after the date of advertisement but not later than the date of affidavit. It is admitted by the Corporation that the petitioner was having lease deed of the land for a minimum 20 years. The other condition stipulates that if the offered land is on "long term lease" then the lease agreement should have a provision to sub- lease the land wherever the locations are advertised.
On conjoint reading of both the conditions pertaining to 'land', it is apparent that the applicant is required to provide a land having minimum lease of 20 years, however, in the event of a long term lease i.e. beyond 20 years, the lease agreement should have a provision to sub-lease the land. In other words, the condition of sub-lease is only applicable to 'long term lease' and not where the lease of land is for 20 years. That apart, the condition (viii) under the procedure for filling and submission of application clearly stipulates that rectified or additional documents would be accepted only if they pertain to the information provided in the Application Form.
The petitioner in the application form provided for the land and the lease deed which is prior to the last date of submission of the application form. Lease deed though for 20 years did not provide for sub-lease, consequently, petitioner submitted a rectification/supplementary document providing for sub-lease, which in our opinion, was permissible in view of clause (viii) of procedure for filling and submission of application. Clause (viii) read with the conditions provided under the heading 'land', the requirement of sub-lease is a condition if the offered land is a long term lease which may not apply to the land leased for 20 years. Even otherwise taking the case, as is being urged on behalf of the Corporation, that the lease deed must contain a provision for sub-lease, even then in our opinion, the same can be provided by a rectification deed executed after the last date of the submission of the application, for the reason that the rectification does not tantamount to any alteration/addition/deletion insofar it pertains to the offered land, but merely seeks to supplement the information provided in the application form in respect of the land offered on the date of affidavit/application. The rectification will relate back to the date on which the lease deed was executed.
Reliance was finally placed on paragraph 'M' of "PSU Oil Marketing Company's Manual for Selection of Dealers for Regular and Rural Retail Outlets" (for short 'Manual') by learned counsel for the respondent-Corporation to urge that the rectification document is in respect of the 'land' offered by the petitioner, therefore, as per the terms and conditions contained in the Brochure and Manual, the document should be of an earlier date, prior to the last date of submission of the form. Para 'M' is extracted:
"M. Final processing of applications
.................
Note:
a. No applicant should be made ineligible on the rectifiable grounds.
b. Opportunity will be given to make payment of application fee/IDP (wherever applicable), if not paid earlier or paid by way of defective instrument. Opportunity will also be given to submit fresh affidavit if not submitted earlier or earlier affidavit was defective or not as per format. However, in such cases date of initial affidavit (if affidavit is found defective) or cut-off date for submission of application (if affidavit is not enclosed along with application form) would be considered valid for evaluating eligibility criteria.
c. This opportunity is provided with an objective to provide rectified or additional documents in support of eligibility parameters. However, documents in support of the basis eligibility criteria of Land, Finance, Educational qualification, Age and Residence certificate for Rural ROs will be accepted only if they are valid as on the date of the initial affidavit submitted along with the application."
On plain reading of the clause (a) of para 'M' of the Manual does not support the contention of the learned counsel for the Corporation. Clause (a) categorically and unambiguously provides that no applicant should be made ineligible on the rectifiable grounds. Eligibility criteria, in respect of land, finance, qualification etc. is to be considered on the last date of submission of application form/affidavit and not on a later date. The applicant in terms of clause (c) of para 'M', is provided an opportunity to provide rectified or additional documents in support of eligibility parameters for evaluating eligibility criteria including that of 'Land'. In this backdrop, the Corporation, in the facts of the instant case, does not dispute the title, location or the lease deed of the land offered by the petitioner. The objection is that the lease deed of the offered land does not contain a clause for sub-lease. The issue, therefore, is whether the petitioner can be made ineligible merely for the reason that the rectification document incorporating sub lease clause is of a subsequent date. In our opinion, such a basis for rejection of the candidature is not inferable from the provisions of the Brochure or the Manual relied upon by the Corporation. The rectification/additional document was submitted in support of eligibility parameters insofar it relates to the 'land'. Petitioner has neither made any alteration/addition/deletion changing the eligibility criteria in respect of the offered land by incorporating the sub-lease clause in the lease deed offered prior to the date of submission of the application/affidavit which is not a ground to render the applicant ineligible either under the Brochure or Manual. Incorporation of a sub lease clause to the lease deed submitted prior to the submission of the application/affidavit is a rectifiable ground in terms of para 'M' of the Manual. The petitioner in terms of sub-para (a), cannot, therefore, be made ineligible on the rectifiable ground. The rectification deed/supplementary document would relate back to the date of execution of the lease deed which admittedly is prior to the last date of submission of the form/affidavit.
On specific query, learned counsel for the respondent failed to point out from the Brochure/Manual and the material brought on record to show that in the given facts, the candidature of the petitioner could be rejected on any other ground pertaining to 'Land'.
Having due regard to the facts and circumstances of the case, the writ petition deserves to be allowed. Order accordingly. The impugned order/ communication dated 9 April 2018 issued by the second respondent Divisional Retail Sales Manager, Varanasi, is set aside and quashed.
Order Date :- 9.5.2018
K.K. Maurya
(Suneet Kumar,J.) (Dilip B. Bhosale,CJ)
