HIGH COURT OF MADHYA PRADESH AT JABALPUR Writ Petition No :
10532. OF 201.Dipti Mishra - V/s - Indian Oil Corporation Limited & Ors. Present : Hon’ble Shri Justice Rajendra Menon. ---------------------------------------------------------------------------------------- Shri Sanjay K. Agrawal, learned Advocate with Shri Amit Seth, learned counsel for the petitioner. Shri Aditya Adhikari, learned counsel for Respondent Nos.1 to 3. Shri R.N.Singh, learned Senior Advocate with Shri H.Singh, learned counsel for Respondent No.4. ORDER
(17/01/2013) Challenging the allocation of Retail Petroleum Outlet and grant of dealership to Respondent No.4 under the Kisan Sewa Kendra (Retail Outlet), petitioner has filed this writ petition challenging the selection of Respondent No.4.
2. Respondent No.1 Indian Oil Corporation issued an advertisement vide Annexure-P1 on 28.2.2010 seeking application from interested persons for grant of dealership for establishment of a Kishan Sewa Kendra (Retail Outlet). Even though, various outlets were notified, and outlet was at village Burhanpur in District-Satna and the said outlet was indicated as Serial No.2 of the advertisement 2 Annexure-P1, petitioner and Respondent No.4 submitted their candidature along with one another person for this outlet. After Scrutinizing the documents, both petitioner and Respondent No.4 were short listed and, thereafter, marks were allocated on various head. As per the scheme, petitioner received 74.07 marks as compared to Respondent No.4 who received 82.81 marks. On the basis of the aforesaid merit, Respondent No.4 has been selected and, therefore, petitioner has challenged the said selection.
3. Shri Sanjay K. Agrawal, learned counsel for the petitioner invites my attention to the procedure contemplated for evaluation not only in the advertisement Annexure-P1 but also in the brochure for selection as notified by the Company vide Annexure-P2 and submitted that various para-meters along with maximum marks to be allocated were indicated and one of the para-meters was fixed for assessment of capability to provide finance, for which the maximum marks prescribed was 25.
4. It is stated by Shri Agrawal that in this writ petition, the dispute is only with regard to allocation of marks to the petitioner and Respondent No.4 on this head i.e. capability to provide finance. It is stated that under the heading “capability to provide finance”., four sub- categories have been created. One is with regard to financial soundness of the party concerned, for which marks have been allocated based on the liquid cash, fixed deposit, share of listed company available with a candidate, thereafter, on movable assets 3 including income from agricultural business etc. and credit worthiness.
5. It is stated that for the purpose of considering financial soundings, 25 marks have been distributed in the following manner :
6. For the liquid cash in the form of Bank Balance fixed deposit, shares of listed company, 12 marks are allocated. For fixed and movable assets, 4 marks are allocated. For income, 4 marks are allocated and for credit worthiness, based on letters ensuring for financial institutions or schedule banks, 5 marks are allocated. In the case of the petitioner 1.92 marks were awarded under the heading “liquid cash”. in the form of Bank Draft etc. whereas under the category credit worthiness certificates, five marks are awarded to the petitioner, it is stated that the dispute in this writ petition is with regard to allocation of the marks pertaining to “liquid cash”. only.
7. Shri Agrawal, learned counsel invites my attention to the stipulation contained in the advertisement Annexure-P1 and points out that in this advertisement, under Clause-13 and in the note appended thereto with regard to fix deposit and Bank account, it is only indicated that the financial soundings of a candidate would be evaluated based on the Bank Balance, Fixed Deposit or Share of listed Companies available. It is stated that under this clause, there is no further stipulation that the fix deposit or the bank account has to be in a schedule bank or nationalized bank. Without there being any stipulation in this regard, it is submitted that on the ground, the 4 petitioner has submitted a fixed deposit receipt of 10 Lacs from M/s Balaji Urban Cooperative Bank Limited, which is not a schedule bank and, therefore, no mark is allocated to the petitioner and only 1.92 marks is allocated to the petitioner for the amount lying in the credit in his Bank account. Contending that for a fix deposit of 10 Lacs, no mark is allocated on the ground that the Bank namely M/s Balaji Urban Cooperative Bank Limited is not a Schedule Bank, the benefit is denied. Shri Agrawal, learned counsel submits that an illegality has been committed.
8. It is emphasized by Shri Agrawal that neither in the advertisement, not in the guidelines, there is any stipulation that the Bank Account or the fixed deposit should be in a nationalized bank, or a schedule bank etc. Emphasizing that M/s Balaji Urban Cooperative Bank Limited, Satna is a non-schedule Bank registered under the State Cooperative Societies Act and granted approval, license and permission by the Reserve Bank of India, Shri Agrawal submits that the action of the respondents in imposing a condition in this regard at the time of selection, which was not a condition stipulated in the advertisement is unsustainable and, therefore, he prays for interference into the matter.
9. Inviting my attention to the circular and the provisions in this regard contemplated by the Reserve Bank of India as contained in Annexure-RJ/1, it is emphasized that the Bank, namely Balaji Urban Cooperative Bank Ltd. Satna has been registered and granted license 5 by the Reserve Bank of India, Banks are classified as nationalized bank, public sector bank, foreign bank, corporative bank, both schedule bank and non-schedule bank and as the Bank, where the fixed deposit of the petitioner is available is a non-schedule bank as per classification issued by the Reserve Bank of India and the license and permission is granted by the Reserve Bank of India filed along with rejoinder, the F.D. upto ` 10 lacs should have been accepted and marks granted and rejection of the same on the ground that the Bank is not a schedule bank is said to be illegal.
10. Emphasizing that the condition, which is not stipulated in the advertisement cannot be imposed upon the petitioner at the time of conducting the selection process, this writ petition is filed.
11. In support, thereof, reliance is placed on the Supreme Court Judgment in the case of Ramana Vs. I.A. Authority of India AIR 197.SC 162.and a judgment of this Court in the case of Rajkumari Yadav Vs. India Oil Corporation Ltd. and Ors. 2011 (1) MPLJ 69 to canvass the condition that once a condition and criteria is laid down in the advertisement, no further criteria can be laid down changing the requisite condition.
12. In sum and substance, it is the condition of the petitioner that with regard to determination of the financial soundings, the only criteria fixed was availability of the liquid cash in the form of bank balance, fixed deposit or the share certificate of the listed company, which condition is fulfilled by the petitioner. The condition with 6 regard to fixed deposit being from a schedule bank or a particular category of Bank is a condition imposed by the selection committee and not the one stipulated in the advertisement, the action is said to be illegal.
13. Respondents have refuted the aforesaid and submitted that as per the norms laid down by the Corporation, the fixed deposit has to be in a schedule Bank and as the M/s Balaji is not a schedule bank, it is pointed out that the company is well within it's right in rejecting the claim of the petitioner and awarding him no marks from the fixed deposit receipt.
14. Shri Aditya Adhikari, learned counsel for Respondent Nos.1 to 3 and Shri R.N.Singh, learned Sr. Counsel for Respondent No.4 took me through the return and additional return filed by the respondents and argued that it is a case, where company is entitled to determine the financial soundings of a party and if for the said purpose, the company has laid down a criteria, the same has to be followed. The criteria laid down in this regard cannot be termed as arbitrary or illegal.
15. It is further pointed out by them that in the advertisement Annexure-P1, certain general terms and conditions are stipulated in Clause-10 and Sub-Clause (f) thereof, clearly indicates that the applicant has to submit a certificate and by referring to the brochure Annexure-P2, it is stated that a condition is stipulated to the effect that the said certificate should be from the schedule Bank. It is stated that 7 as the petitioner has not produced the fixed deposit receipt from a schedule bank, respondents have not committed any error in rejecting the claim of the petitioner.
16. Emphasizing that in Annexure-A2 itself, there is a stipulation of certification from the Bank, which has to be schedule bank, learned counsel for the respondents argued that no error has been committed and the action taken is proper.
17. It is the case of the respondents that the petitioner's fixed deposit receipt being not from a schedule bank, they have not committed any error in only awarding marks from the cash lying in the form of bank balance to the petitioner. It is stated that the subjective satisfaction arrived at by the respondent Nos.1 to 3 in the matter of financial soundings of the petitioner cannot be termed as illegal and, therefore, no relief can be granted.
18. Shri Sanjay Agrawal, learned counsel clarified the position with regard to Appendix-A2 and explained that Annexure-A2 has been submitted by the petitioner from a schedule bank namely Allahabad Bank and this certificate is with regard to credit worthiness of a candidate i.e. a different sub-clause and as under this clause already five marks are awarded and the certificate for credit worthiness is from a schedule bank, the requirement of certificate under appendix- A2 from a schedule bank stipulated from credit worthiness cannot be read into for requirement for evaluating the fixed deposit criteria”
19. Emphasizing that the 12 marks allocated with regard to fix deposit and bank balance and 5 marks allocated for credit worthiness are entirely different, Shri Agrawal submits that the explanation given by the respondents is unsustainable.
20. Having heard learned counsel for the parties and on perusal of the record, it is seen that even though the advertisement is in hindi but the terms and conditions of advertisement as are notified is nothing but translation of the same as is contained in the brochure namely A2. For evaluating the eligibility of an applicant, maximum 100 marks are allocated, 100 marks are sub-divided into various sub-categories and one of the para-meters is capability to produce the finance and the marks allocated under this category is 25, and the 25 marks under this category is distributed in the following manner :
21.
“1. marks for liquid cash in the form of bank balance, fix deposit, share of listed company etc., four marks for fixed and movable assets, four marks for income including income from agriculture benefits etc. and five marks for credit worthiness based on a letter of credit issued with regard to the credit worthiness from a schedule bank or from a financial institute as per Appendix-A2. It is, therefore, clear from a complete reading of Pages 20 and 21 of the brochure Annexure-A2 and the Appendix-A2 page-38 that with regard to the fixed deposit to be submitted, except for stipulating that the liquid cash has to be in the form of bank balance, fixed deposit or share of a listed company, there is no further stipulation that the these 9 banks accounts or fixed deposits have to be in a schedule bank or non- schedule bank, foreign bank or any other bank etc.
22. It is only notified that 12 marks are allocated to the candidate, who established availability of the liquid cash in the form of bank balance or fix deposit. There is nothing in the brochure to show that the fix deposit has to be in a schedule bank or non-schedule bank or any other bank falling in a particular category. However, for considering the credit worthiness, it is clearly submitted that the credit worthiness certificate has to be submitted in the Appendix-A2 from a financial institute or a schedule bank. It is, therefore, clear that for allocating 12 marks as indicated hereinabove, the only condition stipulated is the availability of the fixed deposit in a bank and for contesting the credit worthiness, a letter of credit worthiness certificate is from a schedule bank. The criteria laid down in the advertisement and the brochure shows that the certificate or a letter as required from a schedule bank is for evaluating the credit worthiness only. With regard to availability of the bank balance or fixed deposit, no such condition with regard to F.D. being in a particular category of bank like schedule bank, non-schedule bank and nationalized bank etc. is indicated.
23. That being so, Shri Agrawal is right in contending that without incorporating any condition, specific in nature that the fixed deposit should be in a schedule bank, the action of the respondents in rejecting 10 and refusing to grant marks to the petitioner is unsustainable and arbitrary decision.
24. During the course of hearing of this writ petition, Shri Agrawal, learned counsel for the petitioner emphasized that if it was so stipulated or even when scrutiny of the application was undertaken is called upon, a fix deposit receipt could have been submitted by the petitioner and the petitioner would have given a proper receipt of the fix deposit from a Schedule Bank and by not specifying the requirement properly in the advertisement, the right of the petitioner to participate in the selection is being denied and to that effect, Shri Agrawal has made out a case.
25. If respondents wanted the fixed deposit to be in a particular class or category of bank, they should have so clarified in the advertisement itself. The action undertaken by the selection committee at the time of scrutiny of documents without indicating so in the advertisement is wholly unsustainable. As held by the Supreme Court in the case of Ramana (Supra) the condition of eligibility, which is required to be specified to a person participating in the process of tender and selection should be specifically provided and if the condition stipulated in the advertisement is fulfilled, it is the well settled rule that the executive authority cannot change the criteria at the time of scrutiny or conducting selection process detrimental to the interest of a candidate. If it is done, the mandate of Article 14 of the Constitution and administrative action becomes arbitrary”
26. In the present case also, once it was stipulated in the advertisement that the fixed deposit can be of a bank and when there is no specific stipulation that a bank has to be nationalized bank, scheduled banks or otherwise, imposition of condition of fixed deposit being from a scheduled bank is nothing but changing the rule of game, which is impermissible. In the case of Rajkumari (Supra), it has been held by this Court that in the absence of there being any stipulation in the advertisement and policy guidelines for laying down certain condition, insisting upon, following such a condition is unsustainable.
27. In the case of Rajkumari (Supra), which pertains to grant of dealership from the respondent/ company under the same scheme for for S.C. and S.T. Candidates, certain marks were to be awarded. It was not stipulated in the advertisement or the policy that any oral interview shall be held in the selection process. A oral interview was conducted and the marks were allocated. As conduct of the oral interview was contradictory to the condition presented in the advertisement, the same was quashed. In the present case also, similar factual scenario exists as indicated hereinabove. In the advertisement and in the brochure Annexure-R2 with regard to fixed deposit, the only condition is that the candidate should have requisite cash in the form of bank balance or fixed deposit in a bank. There is nothing in this to show that the bank where bank balance or fixed deposit is credited should be schedule bank or otherwise”
28. Introduction of such a condition at the time of selection On the ground that there is policy of the bank without noticing to the candidate concerned is nothing but an arbitrary decision which cannot be upheld by this Court.
29. Accordingly, I find much force in the argument advanced by Shri Sanjay K. Agrawal to the extent that without a specific condition being stipulated, the action of denying marks to the petitioner, on the fixed deposit receipt produced is unsustainable. Accordingly, this petition is allowed, allocation of marks and selection process undertaken is quashed and the matter is remanded back to the corporation for reconsidering of the candidature of the applicant and respondent No.4 afresh afresh following the requirement and terms and conditions of the policy and the advertisement.
30. With the aforesaid, the petition is allowed and disposed of. Certified Copy as per rules. ( RAJENDRA MENo.) JUDGE nd