Mahadev Tukaram Tonde vs Government Of India And Another
2021 Latest Caselaw 4160 Bom

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          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                   BENCH AT AURANGABAD


            901 CIVIL WRIT PETITION NO.4231 OF 2021

          Mahadev Tukaram Tonde
          Age : 44 years, Occu.: Agril.,
          R/o.: Sonimoha, Tq. Dharur,
          District : Beed                   ....               PETITIONER

                  VERSUS

 1.       Government of India
          Through its Ministry of
          Petroleum and Natural Gas,
          New Delhi

 2.       Indian Oil Corporation Ltd.
          Through its Divisional General Manager,
          Aurangabad Circle Ofce,
          "Indian Oil Bhawan", Plot No.99,
          Jyoti Nagar, Aurangabad           ....            RESPONDENTS

                                  ...
        Advocate for Petitioner : Mr. Shivprasad G. Jadhavar
         Advocate for Respondent No.2 : Mr. A. P. Bhandari
                                  ...

                               CORAM: SUNIL P. DESHMUKH &
                                        ABHAY AHUJA, JJ.

DATED: 8th MARCH, 2021.

JUDGMENT : (PER ABHAY AHUJA, J.) :

1. Rule. Rule made returnable forthwith. By consent of

learned counsel for the parties, heard fnally.

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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 Certifiate prior

to date of appliiation 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

specifc 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

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certifcate dated 08-08-1994 as well as caste validity

certifcate 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 modifed 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 ofered for land Gut No.22/1/A

Afdavit of given.

Caste Certifcate of OBC Prior date of application

to be submitted".

6. However, since caste certifcate 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 Certifcate prior to date of application

was not submitted".

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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

certifcate. 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 certifcate and that

after the online application, the petitioner was, vide

communication dated 22-06-2019 declared as selected

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candidate pursuant to draw of lots and the communication

dated 16-02-2021 fnding 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 rectifable defciency 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 defciency and said defciency is

rectifable, then respondent no.2 is bound to give notice of a

period of 21 days to rectify the said defciency 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. 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 notifed

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in the Gazette of India dated 13-09-1993 and that he had

submitted copy of the caste certifcate issued by the Sub-

Divisional Ofcer, Beed on 08-08-1994 certifying that the

petitioner belonging to NT Vanjari Tribe which was verifed

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 specifed that the caste certifcate

should be of a specifc date in order to claim beneft of

reservation / or the location reserved for a particular

category. He submits that in the absence of such specifc

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

certifcate. In order to claim benefts of reservation, person

must be belong to that particular reserved category. Caste

certifcate issued by the competent authority is necessary

just to ascertain his / her social status i.e. caste and date of

such certifcate is absolutely irrelevant. Certifcate issued by

the competent authority is just declaration of caste / social

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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 certifcate 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 specifc 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 certifcates /

documents required for meeting eligibility / specifc 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 :

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"Note : with regard to submission of documents by selected candidates :

1. All certifcates / documents required for meeting Eligibility / Specifc 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 justifed 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 certifcates / 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 defciency as there

is no rectifable defciency but a failure to comply with the

terms and conditions of the advertisement / brochure.

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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 certifcate prior to date of appliction is not

submitted is tenable or not.

18. In our view the arguments by the respondent no.2

appear to have weight. The specifc 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 certifcate on the date of

application. Admittedly, the petitioner was not in possession

of the required OBC certifcate as on the date of the

application. The application for the retail outlet was made

on 25-12-2018, whereas the OBC certifcate was obtained on

12-07-2020 pursuant to application made on 11-07-2020

clearly indicating that the required certifcate was not even

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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 certifcate as required under the

specifc eligibility criteria pursuant to the 2 nd 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

certifcate as well as caste validity certifcate 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

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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 certifcate

can be after the date of application as that argument also

does not impress us in view of the specifc terms of the

advertisement / brochure as observed above.

21. Further the argument that the defciency for which the

petitioner has been held to be ineligible is rectifable 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 certifcate 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 certifcate was obtained on 12-

07-2020 whereas the application for RO dealership was

made on 25-12-2018 and therefore the question of

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rectifable defciency would not arise. By letter dated 26-11-

2020, the petitioner was once again informed that the caste

certifcate of OBC prior to date of application is to be

submitted, however, since the petitioner did not furnish the

said certifcate 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

certifcate 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 certifcate 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

certifcate 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 certifcate in 1994

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validated in 1995, had obtained the OBC certifcate 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 certifcate 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

certifcate 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 specifc 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 specifc 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

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advertisement or the brochure could not be ignored and

they must be given meaning and their necessary

signifcance.

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)SCALE134 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 superfuous- they must be given meaning and their necessary signifcance. 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

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the Supreme Court in the case of Bakshi Seiurity and

Personnel Serviies 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 fdes. 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 fde 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 fnal, 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 fde 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

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with relevant law could have reached';

(ii) Whether public interest is afected.

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 diferent 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.

 (ABHAY AHUJA, J.)                      ( SUNIL P. DESHMUKH, J. )

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