Bombay High Court
Hanmant Madhavrao Ainwad vs The State Of Maharashtra And ... on 8 August, 2016
Bench: R.M. Borde
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IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.6763 OF 2016
Hanmant s/o Madhavrao Ainwad
age: 30 years, occu: unemployed &
Business, R/o House No.1113,
Bahadarpura, Tq. Kandhar
District: Nanded Petitioner
Versus
1 The State of Maharashtra
Through: Secretary
Social Welfare Department,
Mantralaya, Mumbai 32
2 Deputy Director/Member Secretary
Caste Scrutiny Committee for
Scheduled Caste & Scheduled Tribe,
Aurangabad Region, Aurangabad
3 Indian Oil Corporation Limited
Aurangabad Divisional Office,
'Indian Oil Bhavan',
Plot No.99, Jyoti Nagar,
Aurangabad 431 005
through: Its Senior Divisional
Retail Sales Manager Respondents
Mr. V.S. Panpatte advocate for the petitioner
Mr. A.R. Kale, Assistant Government Pleader for Respondent Nos.1 & 2
Mr. Anand Bhandari advocate for respondent No.3
_______________
CORAM : R.M. BORDE &
K.L. WADANE, JJ
(Date : 8th August, 2016.)
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ORAL JUDGMENT
(Per: R.M. Borde, J)
1 Heard.
2 Rule. With the consent of the parties, petition is taken up
for final decision, at admission stage.
3 The petitioner is objecting to the order passed by the
respondent No.3, directing the petitioner to submit validation
certificate, within a period of 180 days from the date of issuance
of authorization, failure of which will result in denial of the request
of the petitioner to claim authorization for operating a retail outlet
for sale of petroleum products.
4 The petitioner claims to belong to Manerwarlu, scheduled
tribe (ST) and is in receipt of a tribe certificate issued by the
competent authority, certifying accordingly. The tribe certificate
issued to the petitioner is referred to respondent No.2 scrutiny
committee for verification and the proposal is stated to be
pending. The petitioner was employed as Shikshan Sevak in a
school operated by a private management and continued in
employment between 13.12.2014 to 16.3.2016. After the
selection of the petitioner for allotment of retail outlet for sale of
petroleum products, he tendered resignation on 17.3.2016 which
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was accepted by the education society. The petitioner had, in
response to the advertisement issued by petroleum Company,
tendered an application requesting for issuance of authorization
for retail sale of petroleum products i.e. for grant of dealership.
On consideration of the application tendered by the petitioner, he
was selected by the petroleum Company in observance of the
procedure prescribed in that behalf. The petitioner was
communicated by the petroleum Company on 17.2.2016 the
decision of his selection and he was called upon to tender
validation certificate within a period of 180 days from the date of
result i.e. from 16.2.2016.
5 The petitioner contends that, it is not within his powers to
secure validation certificate within the time stipulated by the
petroleum Company. The petitioner, after the favourable result in
the selection process for appointment as dealer, tendered
resignation to school management and relinquished the job. The
petitioner apprehends that, in the event of his failure to submit
validation certificate within the time stipulated by the petroleum
Company, he is likely to loose the offer made by the petroleum
Company appointing him as a dealer for sale of petroleum
products. The petitioner, as such, has approached this Court
seeking appropriate directions to the petroleum Company.
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6 An affidavit in reply has been presented on behalf
respondent petroleum Company, wherein, it has been stated that,
so far as the terms and conditions laid down under the
advertisement are concerned, those are binding on the petroleum
Company and Company, on its own, cannot make any deviation
from such terms and conditions. Reliance is placed on the
Judgment in the matter of Anita Sidram Koli V/s State of
Maharashtra in Writ Petition No.69771 of 2009 decided by
the Division Bench of this Court on 9.3.2010. In the aforesaid
Judgment, the petroleum Company proceeded to relax the
condition in respect of production of validation certificate, at the
time of interview, which stipulation was recorded in the
advertisement. The relaxation granted by the petroleum Company
in favour of the selected candidate was objected by the other
candidates who had participated in the process of selection.
Dealing with the challenge, the Division Bench of this Court held
that it is not open for the petroleum Company to relax the
condition in favour of few candidates. It is observed that
stipulations recorded in the advertisement or under the Rules,
are binding on the petroleum Company and those shall apply
uniformly in respect of all the candidates participating in process
of selection. The Judgment delivered by the Division Bench has
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been followed in the matter of Anita Sonone V/s Indian Oil
Corporation in Writ Petition No.4441 of 2011 decided on
22.2.2012 as well as in the decision rendered by the Division
Bench of this Court on 1.10.2012 in Writ Petition No. 8043 of
2012.
7 Learned counsel appearing for the petroleum Company
places reliance on the decision of the Division Bench at Nagpur in
the matter of Sau Pallavi V/s Union of India in Writ
Petition No.3022 of 2014 decided on 17.4.2015. In the
aforesaid matter, the petitioner, therein, challenged the
communication issued by the petroleum Company canceling the
offer on account of failure of selected candidate to submit
validation certificate within 90 days. The Division Bench, in view
of the decision rendered in Writ Petition No.6577/2009, W.P.No.
4441/2011 and W.P. No.11190/2013, held that, it was not open
for the petroleum Company to relax the condition incorporated in
the advertisement in respect of furnishing caste validation
certificate. The decision in Writ Petition No.6977/2009 has
attained finality since the Honurable Supreme Court has dismissed
the SLP challenging the decision of the High Court. It ought to be
noted that the issue raised for consideration in Writ petition
No.6977/20009 and other matters is slightly different than the
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issue arising in the instant matter or in the matter which arose for
consideration in Writ Petition No.3022/2014. In Writ Petition No.
6977 of 2009, the Petroleum Company, in spite of specific
stipulation in the advertisement requiring production of the
validation certificate at the time of interview, deviated from the
condition and granted relaxation in favour of some candidates.
There were other candidates competing for allotment of
dealership. As a result of granting relaxation in favour of few
candidates, the other candidates who were also competing for
their appointment as dealer, were prejudicially effected. In the
instant matter, the petitioner is the only applicant who has been
found eligible during selection process and that no other candidate
is likely to be prejudicially affected as a result of consideration of
the claim of the petitioner.
8 Apart from this, it must be noted that the process of
issuance of validation certificate requires adjudication by the
scrutiny committee after considering evidence placed on record by
the concerned, claiming validation certificate. It is not within the
powers of such candidate or applicant to secure adjudication from
scrutiny committee within specified time frame. An individual
belonging to reserve category can merely submit the proposal for
issuance of validation certificate within stipulated period and it is
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for the scrutiny committee to process the proposal, call for report
of the vigilance enquiry and after perusal of the record and
extending opportunity of hearing to all the concerned, pronounce
the order either granting validation certificate or turning down the
proposal. As has been rightly recorded by the Division Bench of
this Court, in the matter of Dadasaheb Arjun Gulve versus
State of Maharashtra and others reported in 2008 (2)
Bom. C.R. 712, it is within the exclusive domain of the scrutiny
committee as to when the caste validity certificate is to be issued.
The period within which the caste validity certificate is to be
issued is not in the hands of the petitioner. In the matter of
Dadasaheb, a condition, requiring an elected candidate to submit
validation certificate within stipulated period as prescribed in the
statute was a matter for consideration. As a result of failure of the
elected candidate to submit validation certificate within time
frame stipulated under the relevant provisions of the statute, a
penalty in the nature of vacation of the elected office with
retrospective effect from the date of election is provided. While
interpreting the provision, the Division Bench in the matter of
Dadasaheb recorded that the provision directing an elected
candidate to submit validation certificate within a stipulated period
is directory and not mandatory. In the matter of Shrikant S/o
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Chandrakant Saindane V/s State of Maharashtra and
others (2012 (1) Mh.L.J.787, the petitioner, therein objected
to condition No.7 recorded in the Government resolution dated
5.11.2009 which prevented an appointment or promotion of a
candidate belonging to backward class unless he possesses
validity certificate. Relying on the decision in the matter of
Dadasaheb, the Division Bench of this Court held the condition
shall be deemed to be excessive, unreasonable and therefore,
directed to strike off the said condition. The division bench, while
dealing with the issue in the aforesaid matter also placed reliance
on the Judgment of Supreme court in case of Mohammad Gazi
v/s State of M.P. & others (2000 (03) SCALE 6), wherein,
it has been laid down that a party cannot be asked to do an
impossible act.
9 In view of the decisions rendered in the matter of Shrikant
V/s State of Maharashtra as well as in the matter of Dadasaheb,
the petroleum Company cannot insist upon the petitioner to
tender validation certificate within the time stipulated in the
communication or in the advertisement. Apart from this in the
peculiar facts of the case, since the interest of none of the
candidates, is likely to be affected and the petitioner is the only
candidate, found to be eligible during the process, we direct the
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petroleum Company to issue letter of authorization to the
petitioner, subject to furnishing an undertaking to tender
validation certificate after decision by the scrutiny committee. It is
clarified that the selection of the petitioner as a dealer shall be
subject to production of the validation certificate issued by the
competent scrutiny committee and in the event of his failure to
substantiate his claim for issuance of validation certificate i .e. in
the event of adverse decision by the scrutiny committee, he shall
not be entitled to claim equity.
10 Respondent No.2 scrutiny committee is directed to decide
the validation claim of the petitioner pending with the committee
as expeditiously as possible and preferably within a period of six
months from today.
11 Rule is made absolute in above terms.
12 There shall be no order as to costs.
(K.L. WADANE, J) (R.M.BORDE, J)
vbd
