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Saturday, April 26, 2014

Retail Dealership - Hindustan Petrol corporation - Rejecting the selection order before communication on mere technicality is not sound -After the interview, her name was on top of the results list and she was shown as selected. She was awarded 35 marks under the head ‘Land and Infrastructure’. Later, the respondents made an about turn and declared that she was ineligible as she had given the consent letters of the co-owners after the due date and hence, the marks awarded under ‘Land and Infrastructure’ were reduced to zero.- High court dismissed the writ - Apex court held that we hold that the respondent-Corporation, being an instrumentality of the State has acted unfairly in the present case in cancelling the selection of the appellant for the retail outlet dealership in question and not issuing the letter of intent to her. The appellant has competed for the appointment and was selected fairly after satisfying the requirements. Therefore, we direct the respondents to restore the appointment to the appellant within six weeks from the date of receipt of the copy of this order.The appeal is accordingly allowed on the above terms with no order as to costs. = SUNITA GUPTA ……….APPELLANT Vs. UNION OF INDIA & ORS. ………RESPONDENTS= 2014 ( April.Part ) judis.nic.in/supremecourt/filename=41449

Retail Dealership - Hindustan Petrol corporation - Rejecting the selection order before communication on mere technicality is not sound - After the interview, her name was on top of the results list and she was shown as selected.  She  was  awarded  35 marks under the head ‘Land and Infrastructure’.  Later,  the  respondents made an about turn and declared that she was ineligible as she had  given the consent letters of the co-owners after the due date  and  hence,  the marks awarded under ‘Land  and  Infrastructure’  were  reduced  to  zero.- High court dismissed the writ - Apex court held that  we  hold  that   the   respondent-Corporation, being an instrumentality of the State has acted unfairly in the present case in cancelling the selection of the appellant  for the retail outlet dealership in question and not issuing  the  letter of intent to her. The appellant has competed for the appointment  and was selected fairly after satisfying the requirements.  Therefore, we direct the respondents to restore the appointment  to  the  appellant within six weeks from the date of receipt of the copy of this  order.The appeal is accordingly allowed on the above terms with no order as to costs.   =    
   The
  appellant was initially found eligible and was called for the  interview.
  After the interview, she was shown as selected and the visit to the  land
  mentioned along with the application for the dealership was  accepted  as
  sufficient and 35 marks were awarded in that regard. 
Subsequently, it was
  changed to zero, as per clause 12 of the guidelines, on the  ground  that
  consent letters of the co-owners were not submitted before the  due  date
  along with the application but much later and as per the said clause,  no
  addition/deletion or alteration will be permitted in the application once
  it is submitted.
     In our considered viewpoint, this  approach  of  the  respondents  was
  erroneous as the application form of the appellant was initially accepted
  along with the consent letters of her husband and father-in-law  to  whom
  the land belonged and the site visit was completed satisfactorily and she
  was called in for the interview. 
After the interview, her name was on top
  of the results list and she was shown as selected.  She  was  awarded  35
  marks under the head ‘Land and Infrastructure’.  Later,  the  respondents
  made an about turn and declared that she was ineligible as she had  given
  the consent letters of the co-owners after the due date  and  hence,  the
  marks awarded under ‘Land  and  Infrastructure’  were  reduced  to  zero.
  Hence, 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
 It
  is evident that the documents the appellant provided at first  were  seen
  to be sufficient, and the fact that she chose  to  give  some  additional
  documents to buttress her application cannot be a ground to  nullify  her
  appointment, given that clause 14, ‘Preference  for  applicants  offering
  suitable land’ of the HPCL “Guidelines for  Selection  of  Retail  Outlet
  Holders” details that  the  land  owned  by  the  family  members  namely
  spouse/unmarried children will also be considered subject to the  consent
  of the concerned family member. 
Since, in this case, the land  was  owned
  by her husband and father-in-law, she gave their  consent  letters  along
  with the application form within the due date. 
We feel that the appellant
  has sufficiently met the conditions of the application and the respondent
  Corporation has erred in subsequently cancelling  the  appointment  on  a
  flimsy technicality and has acted in an arbitrary and unfair  manner.  It
  is relevant to quote the case of Mahabir Auto Stores & Ors. v. Indian Oil
  Corporation and Ors.[1], wherein it was held that -
      “Having regard to the nature  of  the  transaction,  we  are  of  the
      opinion that it would be  appropriate to state that  in  cases  where
      the instrumentality of the state enters  the  contractual  field,  it
      should be governed by the incidence of the contract. It is true  that
      it may not be necessary to give reasons but, in our opinion,  in  the
      field of this nature fairness must be there to the parties concerned,
      and having regard to the large number or  the  long  period  and  the
      nature of the dealings between the parties, the appellant should have
      been taken into confidence. Equality and fairness  at  least  demands
      this much from an instrumentality of the State dealing with  a  right
      of the State not to  treat  the  contract  as  subsisting.  We  must,
      however, evolve such process which will work.”


  For  the  reasons  stated  supra,  we  hold  that   the   respondent-
  Corporation, being an instrumentality of the State has acted unfairly
  in the present case in cancelling the selection of the appellant  for
  the retail outlet dealership in question and not issuing  the  letter
  of intent to her. The appellant has competed for the appointment  and
  was selected fairly after satisfying the requirements.  Therefore, we
  direct the respondents to restore the appointment  to  the  appellant
  within six weeks from the date of receipt of the copy of this  order.
  The appeal is accordingly allowed on the above terms with no order as
  to costs.       
2014 ( April.Part ) judis.nic.in/supremecourt/filename=41449
GYAN SUDHA MISRA, V. GOPALA GOWDA

                                             NON-REPORTABLE
                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION


                        CIVIL APPEAL NO.4681 OF 2014
                  (Arising out of SLP(C) NO. 25020 OF 2009)




           SUNITA GUPTA                              ……….APPELLANT


                                     Vs.


  UNION OF INDIA & ORS.                   ………RESPONDENTS





                               J U D G M E N T






  V.Gopala Gowda J.


      Leave granted.


  2. The present appeal arises out of the impugned judgment and order dated
  21.07.2009 passed by the High Court of Judicature at  Allahabad  in  W.P.
  No. 5199 of 2007 whereby the High Court dismissed the writ petition filed
  by the appellant on the  ground  that  the  orders  dated  27.7.2006  and
  26.12.2006 passed by the respondents do not suffer  from  any  infirmity,
  illegality or error in law  and  they  are  perfectly  justified  and  in
  accordance with the guidelines prescribed in this  regard  and  therefore
  the same do not require interference by the High Court.
  3. The facts in brief are stated hereunder:
      The Hindustan Petroleum Corporation Limited issued  an  advertisement
  in the newspaper “Amar Ujala” dated 20.7.2005 inviting  applications  for
  opening its retail outlet in the said location in the category  of  open-
  W(women) by 22.8.2005, and in pursuance of the above  advertisement,  the
  appellant submitted an  application  on  18.8.2005  along  with  all  the
  relevant documents and demand draft of Rs.1,000/-  for  grant  of  retail
  outlet. Thereafter, the team of the Corporation visited  the  appellant’s
  site and submitted its report to the office. The Corporation after  being
  satisfied with the location of the land,  called  the  appellant  for  an
  interview vide letter dated 10.2.2006 and she appeared for the  interview
  on 3.3.2006 before the selection committee constituted by the respondent.
  On the same day, a list was displayed on the notice board  in  which  the
  appellant’s name was first on the list and she was shown as selected.
      The appellant was waiting for a letter of intent but then on 7.8.2006
  she received a registered letter dated 27.7.2006  issued  by  the  Deputy
  General Manager in-charge North Zone, wherein it was mentioned  that  the
  respondents decided to set aside the entire interview and  selection  and
  called for a fresh interview to be conducted. The appellant got 35  marks
  awarded for ‘Land and infrastructure’ as indicated in  the  letter  dated
  27.7.2006 but it was  mentioned  that  the  selection  committee  wrongly
  awarded 35 marks as zero marks should have been awarded for land  because
  no consent was obtained from the owners of the land.


  4. Aggrieved by the same, the appellant filed Writ  Petition  No.5199  of
  2007 praying for a writ of certiorari to quash the orders dated 27.7.2006
  and 26.12.2006. The relief of writ of mandamus has also  been  sought  to
  direct the respondents for issuing a letter of intent to the appellant in
  pursuance of her selection dated 3.3.2006 for retail outlet dealership at
  Islam Nagar-Bisauli Marg, and further to direct the respondents to  issue
  necessary HSD and MSD for her retail outlet dealership.  Prior  to  this,
  the appellant filed W.P No. 56740 of 2006 praying for quashing  of  order
  dated 27.7.2006. The High Court, vide order  dated  12.10.2006,  directed
  the appellant to file a fresh comprehensive representation along with the
  certified copy of the order as well  as  a  complete  copy  of  the  writ
  petition with all Annexures  before  the  concerned  competent  authority
  within two weeks from the date of the order and on such a  representation
  being filed as stipulated, the concerned competent authority shall decide
  the same within eight weeks of the receipt of the representation by means
  of a reasoned order. Subsequent to this, vide order dated 26.12.2006, the
  respondent-Corporation constituted a review committee and stated that the
  land held by the appellant is jointly held in her  husband’s  name  along
  with four others and consent letter from her husband and his father  have
  been  obtained,  but  not  from  the  other  owners.   Accordingly,   the
  appellant’s representation was held to be disposed off in  compliance  of
  the order of  the  High  Court  dated  12.10.2006.  The  appellant  being
  aggrieved by the aforesaid orders has filed the  present  appeal,  urging
  certain legal and factual grounds.


  5. The learned counsel for the appellant has contended that the  decision
  to cancel the selection of the appellant is void for breach of principles
  of natural justice as the appellant was not afforded  an  opportunity  of
  hearing by the so-called Review Committee and the same is ultra vires  of
  Article 14 of the Constitution of India. It was  further  contended  that
  there is no whisper  of  the  Review  Committee  in  the  guidelines  and
  therefore it did not have the jurisdiction to  sit  in  appeal  over  the
  selection. It was argued that the land map issued  by  the  Consolidation
  Officer which was annexed by the appellant  along  with  her  application
  form, showing the plot in question, has been divided  into  three  parts,
  out of which the middle part  belongs  to  the  appellant  and  that  the
  husband’s and father-in-law’s consent was there for the  same  and  also,
  the land required was only 900 sq.m. but the appellant had proposed  land
  of an area of 2980 sq.m. and as such there was no occasion or requirement
  to submit the consent letters of other co-owners when  proposed  land  of
  appellant’s husband was in excess of the required land.  It  was  further
  argued that the order passed by the respondent no.3 is bad in law as  the
  High Court  vide  its  order  dated  12.10.2006  directed  the  competent
  authority  of  the  Corporation  to  decide  the  representation  of  the
  appellant and not  respondent  no.3.  The  appellant  also  obtained  the
  consent letters from all the co-owners on 11.04.2006.


  6. The learned counsel for the respondent on the  other  hand,  contended
  that the appellant did not submit  complete  documents  as  required  and
  failed to submit the consent letters of the  co-owners  of  the  proposed
  land, as a result of which the selection of the appellant  was  cancelled
  by order dated  27.7.2006  and  finally  decided  on  26.12.2006  as  the
  appellant overlooked the document dated 10.2.2006 which demonstrated that
  all the documents were to be  placed  before  the  interview  board.  The
  condition of submission of consent letters of all co-owners of  the  land
  was part and parcel of the  conditions  mentioned  in  the  advertisement
  dated  20.7.2005,  a  mandatory  requirement  under  Clause  14  of   the
  dealership guidelines and it  was  apparent  from  paragraph  13  of  the
  advertisement as well as in the application form itself. It was submitted
  that since the consent letters of the co-owners  of  the  land  were  not
  submitted along with the application  form,  the  selection  was  rightly
  cancelled and 35 marks awarded to the appellant under  the  parameter  of
  land and infrastructure facility was wrong and the same was rectified  by
  awarding zero marks. It  was  further  submitted  that  the  order  dated
  27.7.2006 was passed after affording full opportunity of hearing  to  the
  appellant. It was urged that the appellant  has  wrongly  challenged  the
  impugned orders as a violation of her fundamental rights.
  7. We have heard  the  rival  legal  contentions  for  the  parties.  The
  appellant was initially found eligible and was called for the  interview.
  After the interview, she was shown as selected and the visit to the  land
  mentioned along with the application for the dealership was  accepted  as
  sufficient and 35 marks were awarded in that regard. Subsequently, it was
  changed to zero, as per clause 12 of the guidelines, on the  ground  that
  consent letters of the co-owners were not submitted before the  due  date
  along with the application but much later and as per the said clause,  no
  addition/deletion or alteration will be permitted in the application once
  it is submitted.
     In our considered viewpoint, this  approach  of  the  respondents  was
  erroneous as the application form of the appellant was initially accepted
  along with the consent letters of her husband and father-in-law  to  whom
  the land belonged and the site visit was completed satisfactorily and she
  was called in for the interview. After the interview, her name was on top
  of the results list and she was shown as selected.  She  was  awarded  35
  marks under the head ‘Land and Infrastructure’.  Later,  the  respondents
  made an about turn and declared that she was ineligible as she had  given
  the consent letters of the co-owners after the due date  and  hence,  the
  marks awarded under ‘Land  and  Infrastructure’  were  reduced  to  zero.
  Hence, 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.  It
  is evident that the documents the appellant provided at first  were  seen
  to be sufficient, and the fact that she chose  to  give  some  additional
  documents to buttress her application cannot be a ground to  nullify  her
  appointment, given that clause 14, ‘Preference  for  applicants  offering
  suitable land’ of the HPCL “Guidelines for  Selection  of  Retail  Outlet
  Holders” details that  the  land  owned  by  the  family  members  namely
  spouse/unmarried children will also be considered subject to the  consent
  of the concerned family member. Since, in this case, the land  was  owned
  by her husband and father-in-law, she gave their  consent  letters  along
  with the application form within the due date. We feel that the appellant
  has sufficiently met the conditions of the application and the respondent
  Corporation has erred in subsequently cancelling  the  appointment  on  a
  flimsy technicality and has acted in an arbitrary and unfair  manner.  It
  is relevant to quote the case of Mahabir Auto Stores & Ors. v. Indian Oil
  Corporation and Ors.[1], wherein it was held that -
      “Having regard to the nature  of  the  transaction,  we  are  of  the
      opinion that it would be  appropriate to state that  in  cases  where
      the instrumentality of the state enters  the  contractual  field,  it
      should be governed by the incidence of the contract. It is true  that
      it may not be necessary to give reasons but, in our opinion,  in  the
      field of this nature fairness must be there to the parties concerned,
      and having regard to the large number or  the  long  period  and  the
      nature of the dealings between the parties, the appellant should have
      been taken into confidence. Equality and fairness  at  least  demands
      this much from an instrumentality of the State dealing with  a  right
      of the State not to  treat  the  contract  as  subsisting.  We  must,
      however, evolve such process which will work.”


  For  the  reasons  stated  supra,  we  hold  that   the   respondent-
  Corporation, being an instrumentality of the State has acted unfairly
  in the present case in cancelling the selection of the appellant  for
  the retail outlet dealership in question and not issuing  the  letter
  of intent to her. The appellant has competed for the appointment  and
  was selected fairly after satisfying the requirements.  Therefore, we
  direct the respondents to restore the appointment  to  the  appellant
  within six weeks from the date of receipt of the copy of this  order.
  The appeal is accordingly allowed on the above terms with no order as
  to costs.

                       ………………………………………………………………………J.
                        [GYAN SUDHA MISHRA]




                       ………………………………………………………………………J.
                         [V. GOPALA GOWDA]
 New Delhi,
 April 22, 2014
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[1]    (1990) 3 SCC 752


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