Bombay High Court
Seema Raju Pol vs Bharat Petroleum Corporation ... on 9 March, 2016
Bench: S.S. Shinde
6744.13wp
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD.
WRIT PETITION NO.6744 OF 2013.
Mrs. Seema Raju Pol,
age 37 years, occu. Housewife,
r/o at Po. Lasur Station,
Tq. Gangapur,
Dist. Aurangabad-423702. .. PETITIONER.
VERSUS
1. Bharat Petroleum Corporation Ltd.,
through its State Co-ordinator,
Oil Industry, Maharashtra Furnace Oil Building,
10 P.D. Mellor Road, Opp. Prakash Auto Mobile,
Wadi Bunder, Mumbai-400 010.
2. Territory Manager (Retail),
Bharat Petroleum Corporation Ltd.,
At Po. Akolner,
Tq. & Dist. Ahmednagar-414107. ..RESPONDENTS.
...
Advocate for Petitioner : Mr.Shedge Ranjit A.
Advocate for Respondents : Mr.Sanket S.kulkarni.
...
CORAM : S.S. SHINDE & V.L. ACHLIYA, JJ.
Dated: March 09, 2016.
ORAL JUDGMENT: [Per Shinde, J]
1. Rule, returnable forthwith. By consent of the parties,
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taken up for final hearing at admission stage itself.
2. This petition has been filed being aggrieved by the
impugned action of the respondents dated 6th July, 2013 of
cancellation of the selection of the petitioner for MS/HSD
retail outlet dealership on Lasur to Sultanabad new Mumbai
Highway, District Aurangabad. The respondent - Bharat
Petroleum Corporation Ltd. Issued an advertisement in the
newspaper Daily Lokmat on 13th March, 2012 inviting
applications for the allotment of retail outlet dealership for
MS/HSD. In the said advertisement, one retail outlet which
is to be set up at Lasur Station to Sultanabad new Mumbai
High Way was advertised. In the said advertisement, it was
mentioned that, the said location is reserved for "Open
category for Woman". In pursuance to the said
advertisement, the petitioner filed an application along with
necessary documents. It is further case of the petitioner that,
pursuant to receipt of the said application, the respondents
verified the documents, carried out spot verification of the
proposed site, approved the site and were satisfied on
verification that, the said site is a proper place for allotment of
outlet dealership. Upon satisfying themselves, the
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respondents called the petitioner for interview on 26 th
October, 2012. All the applicants including the petitioner
appeared for the interview along with original documents and
all the enclosures as stipulated in the application form. It is
the case of the petitioner that, the respondents were satisfied
with the documents submitted by the petitioner along with
the application and upon verification and after satisfying
themselves that there is compliance of the requirements, the
Selection Committee evaluated performance of the petitioner
and other applicants for the said location and the said
committee after minute and detailed interview of the
petitioner and others, declared selection of performance of the
candidates and in the said statement, level-1, level-2 and
level-3 committee has ranked and placed the petitioner in the
first place in Open Category for Woman at Lasur to
Sultanabad on New Mumbai Highway location. It is the case
of the petitioner that, the petitioner was allotted 83.47 marks
which were based upon the capability to provide
infrastructure and facility, capability to arrange finance,
capability to generate business as well as other criteria. It is
further case of the petitioner that, during the interview, the
site selection report in respect of site offered by the petitioner
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was also shown. According to the petitioner, the petitioner
has secured 16% more marks compared to the candidates at
Sr.No.2. The petitioner has secured 16 to 17 marks ahead
than its second empaneled candidate Mrs. Farzana Badshah
Patel. In spite of selection of the petitioner, it is the case of
the petitioner that, the respondents delayed the allotment of
letter of intent without any reason. The candidate at Sr.No.2
namely Mrs. Farzana Badshah Patel filed an objection on the
ground that, the petitioner has mentioned the relationship
with owner of land as "spouse" in the application, which
amounts to deliberate attempt on the part of the petitioner to
conceal the important information which would attract the
provisions of Clauses 10(K) and 21 of the Brochure for
Selection of Petrol/Diesel Retail Outlet Dealers. The
respondents on 6th July, 2013 cancelled selection of the
petitioner Hence, this petition.
3. The learned Counsel for the petitioner invited our
attention to various documents which are placed on record
and submits that, inadvertently the petitioner, while filling in
the Clause 11(c) i.e. 'Relation of the landlord with the
applicant', has written "Spouse". He ;further submits that, in
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fact, in clause 11(b), name of the owner of the land has been
written as Pol Ravindra Bansidhar (Proof to be attached). He
invited our attention to the affidavit filed by the said Pol
Ravindra Bansidhar and submits that said Ravindra has
mentioned in the affidavit the relationship with the petitioner
that, she is his sister-in-law. Learned Counsel for the
petitioner has further invited our attention to various
documents which would show that, husband's name of the
petitioner is "Raju". Therefore, learned Counsel for the
petitioner submits that, when the documents placed on
record unequivocally indicate that name of husband of the
petitioner is "Raju", there is no question of intentionally
mentioning relationship with the landlord as "spouse". It is
submitted that, even if the contention of the respondents is
accepted without admitting but assuming that, the petitioner
secured some more marks since the assessment was out of 35
for filling in the incorrect information in the form and even if
the assessment is considered to be out of 25 marks, the
petitioner has secured 16 to 17 more marks than the
candidate at Sr.No.2. It is submitted that, it is only in case of
deliberate suppression or concealment, the provisions of
clauses 10(K) and 21 of the said Brochure can be invoked.
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At the cost of repetition, it is submitted that, it is sheer
inadvertent mistake to mention 'spouse' in column 11(c) of
the application and it is because, the petitioner is not
conversant with the English language.
4. Therefore, relying upon the pleadings in the petition,
annexures thereto, learned Counsel for the petitioner submits
that, the petition deserves to be allowed.
5. On the other hand, learned Counsel for the
respondents, relying upon the averments in the affidavit-in-
reply filed on behalf of respondents 1 and 2, submits that, the
contention of the petitioner that, inadvertently "spouse" was
written in clause 11(c) of the application, cannot be accepted.
Even though, for the sake of argument it is accepted that it
was a mistake committed by the petitioner, relying upon the
information given by the petitioner in her application, marks
are allotted to the petitioner. Accepting the statement of the
petitioner that the owner is spouse, marks have been allotted
out of 35. However, if the land belongs to brother-in-law,
then the petitioner may get 25 or less than 25 marks for the
land which is offered by her. Therefore, according to the
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learned Counsel for the respondents, allotment of 35 marks to
the petitioner is incorrect assessment and the petitioner, will
get either 25 marks or less than that. The learned Counsel
for the respondents invited our attention to the Clause 21 of
the said Brochure and submits that, if any information
furnished by the applicant is found to be false at any point of
time before or after appointment as a dealer or conceals any
information which if declared would have made him/her
ineligible for dealership, the allotment will be cancelled
forthwith and dealership terminated. It is submitted that, the
petitioner has got more than 10 marks because of the mistake
and hence, the entire process of selection will have to be
reopened, which is not permissible under the law. It is
submitted that, the second impaneled candidate has given
complaint to the Grievance Cell and requested that, Level-1,
Level-2 and Level-3 committee should review the earlier
decision regarding the assessment of marks and hence, in
view of the complaint, the grievance cell has re-considered the
application of the petitioner and rejected the selection of the
petitioner for the above location. He invited our attention to
Clauses 13 and 21 of the said Brochure and submits that,
after the cut off date, no addition, alteration or modification is
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permissible as per rules. Therefore, relying upon the
averments in the affidavit-in-reply and the aforesaid
provisions of the Brochure, he submits that, the petition
deserves no consideration. Hence, the same may be rejected.
6. We have given careful consideration to the submissions
of the learned Counsel or the petitioner and the respondents.
With their able assistance, perused the pleadings in the
petition, grounds taken therein, annexures thereto and the
reply filed on behalf of respondents No.1 and 2 as also the
judgment of the Apex Court cited across the Bar by the
learned Counsel for the petitioner in case of Sunita Gupta
Vs. Union of India & Ors. in Civil Appeal No.4681 of
2014 delivered on 22nd April, 2014.
Upon careful perusal of the copy of the application,
which is placed on record at Exh.A page 17 of the
compilation, it shows that in Clause 1 while filling in the
individual information, the petitioner has written name of her
husband as "Pol Raju Bansidhar". The other details have also
been mentioned. Therefore, it is abundantly clear that, name
of the husband of petitioner is "Raju". Upon careful perusal
of the Clause 11(b) of the said application, it appears that
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while writing name of the owner of the land, it is written as
"Pol Ravindra Bansidhar" and in bracket it is written as proof
to be attached. However, while writing relationship of the
land owner, "spouse" is written. There is no slightest doubt
that, when the very same applicant has written name of her
husband as Pol Raju Bansidhar, will not deliberately fill in the
wrong information in clause 11(c) as "spouse" and it appears
to be a sheer mistake committed by the petitioner. We have
carefully perused the contents of the affidavit filed by said Pol
Ravindra Bansidhar, which was submitted by the petitioner
along with the application, wherein while mentioning
relationship with the petitioner, "Bhavjai" (sister-in-law) is
written. Even, in the affidavit filed by husband of the
petitioner dated 12th April, 2012, it is clearly mentioned that,
applicant is his wife. There are copies of other documents
including 7/12 extract, which would unequivocally indicate
that name of petitioner's husband is Raju. There are also
documents relating to land wherein, name of Ravindra
Bansidhar Pol is written. There is overwhelming evidence
placed on record which would unequivocally indicate that,
Ravindra Bansidhar Pol is brother-in-law of the petitioner. At
only one place in clause 11(c) of the application,
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inadvertently, it is written as "spouse" instead of "sister-in-
law".
7. Admittedly, before cancellation of the selection of the
petitioner, the petitioner was not heard by the respondents;
no principles of natural justice were followed by the
respondents and action of the respondents in cancellation of
selection of the petitioner was unilateral.
8. Upon careful perusal of the material placed on record, it
is abundantly clear that, the respondents after following
proper procedure including evaluation of the site offered by
the applicants, conducting interviews of the petitioner along
with other applicants and after verification of all the
documents, selected the petitioner.
9. Even if, the respondents were to consider the complaint
of the candidate at Sr.No.2 namely Mrs. Farzana Badshah
Patel that, by virtue of mentioning incorrect information in
Clause 11(c) of the application, the petitioner has received
more marks compared to said Mrs.Farzana, in that case, also
the petitioner has secured 16 to 17 more marks compared to
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the candidate at Sr.No.2 Mrs. Farzana Badshah Patel. If the
complaint was filed with the allegation of filling in the
incorrect information, and if the respondents were of the
opinion that there is substance in the said allegation, the
same set of rules, on which respondents have placed reliance,
provides for mechanism for redressal of the grievance /
complaint under Clause 19 of the said Brochure. Clause 19
of the Brochure provides for Grievance / Complaint redressal
system. Upon perusal of the said provision, it is provided
that, whenever there is transcribing or totalling error (in
scrutinizing committee's marks), a committee of two members
not below the rank of JG 'E' nominated by Regional Head with
one member from Regional office and one Territory Manager
other than the concerned territory will prepare revised result
based on evaluation by original scrutinizing committee and
marks on interview based parameters awarded by original
interview committee. Therefore, it was open for the
respondents to adhere to the said procedure and not to take
drastic action of cancellation of selection of the petitioner
without hearing the petitioner. The learned Counsel for the
petitioner is right in placing reliance on the decision of the
Apex Court in case of Sunita Gupta (supra) wherein, in
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somewhat similar fact situation, the Apex Court considered
the prayer of the appellant therein and allowed the appeal and
directed the respondents therein to issue appointment letter
in favour of the appellant therein. It is not necessary for us to
elaborate on the said judgment. Suffice it to say that, the
Supreme Court, after considering the facts and hearing the
Counsel for the parties therein, has taken a view that, the
review order passed by the respondents is bad in law as the
appellant was originally found to have fulfilled all the criteria
for the land offered which was greater in area than the land
required as per the rules and guidelines of the respondent
Corporation. The review committee, on a mere technicality,
denied the appellant her right to the dealership, after it was
previously declared that she was selected for the same.
10. Keeping in view the exposition of the Supreme Court in
case of Sunita Gupta (supra) and the discussion in the
foregoing paragraphs, in our opinion, the respondents have
committed an error in cancellation of the selection of the
petitioner.
11. In the result, petition is allowed in terms of prayer
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clause (B). We direct the respondents to re-assess / evaluate
the marks of the petitioner keeping in view Clause 19 of the
said Brochure, after hearing the petitioner and original
complainant. We make it clear that, the entire exercise is to
be done by the respondents, as expeditiously as possible;
however, within twelve weeks from today and communicate
the decision to the petitioner and the complainant. We make
it clear that, the respondents shall not raise the ground of
mentioning incorrect information in clause 11(c) as "spouse"
in the application and it will not be open for the respondents
to raise the said ground and also to reopen all other issues
except the error in the allotment / assessment of the marks.
Petition is partly allowed. Rule is made absolute in the
above terms with no order as to costs.
Parties to act upon authenticated copy of this judgment.
[V.L. ACHLIYA, J)] [ S.S. SHINDE, J ]
.....
Kadam.
