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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
———————–
[1] (1990) 3 SCC 752
———————–
11

 

 

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