Hon'ble Ajit Kumar,J.
1. Heard Sri Atul Dayal, learned Advocate appearing for the petitioner and Sri Prakash Padia, learned counsel for the respondents.
2. The order impugned in the present writ petition is the one passed by the General Manager, Indian Oil Corporation Limited, U.P. State Office, Lucknow dated 29.06.2012, whereby, the representation of the petitioner with regard to his grievance for holding him 'not qualified' in the merit panel prepared on 25.11.2010 and thus denial of allotment of petrol pump pursuant to the advertisement dated 10.01.2006.
3. The factual matrix of the case is that respondent Indian Oil Corporation (for brevity 'respondent Corporation') issued an advertisement dated 10.01.2006 inviting applications for retail outlet petrol pump at various locations including the one at AIT-Jakhauli, district Jalaun on National Highway No. 25. Pursuant to the said advertisement, the petitioner herein applied annexing, along with his application, all the necessary documents and his candidature was considered and was adjudged to have possessed all requisite qualifications for empanelment as per the rules and guidelines of the Corporation. The panel was prepared accordingly and the petitioner was placed at serial no. 2 having secured lesser marks than another candidate Sri Awadhesh Gupta who was placed at serial no. 1 and thus petitioner could not be selected. What is interesting to notice that in the category to arrange finances, income and other assets, 12 marks, 4 marks and 4 marks respectively were assigned and the petitioner secured 15.69 marks out of 20 marks. However, before the letter of intent could have been issued by the respondent Corporation, the selected candidate Awadhesh Gupta is said to have died in a road accident and accordingly no further action was taken in the matter.
4. Under the circumstances, the petitioner, being second in panel, made an application to the respondent Corporation, with a request that as per clause 17.1 and 17.2 of the brochure of the Corporation, if the candidate placed on the top of panel could not be offered dealership, he being on second position, should be offered dealership. This application was made by the petitioner on 12.02.2007. Instead of considering the application of petitioner on merits, the Senior Divisional Retail Sales Manager wrote a letter to the petitioner communicating that the competent authority has cancelled the selection process pursuant to the advertisement dated 10.01.2006 due to 'unavoidable reasons'. This order came to be challenged before this Court by the petitioner vide Civil Misc. Writ Petition No. 29742 of 2007 which was allowed in following terms:
"Thus, in consonance with the aforesaid Ruling we find it proper that the order cancelling the entire selection process on the ground of discrepancies is not justified and accordingly, the order dated 07.03.2007 is quashed and it is directed that the Corporation shall continue with the same selection process and to take recourse from the point it stood vitiated and shall complete the same preferably within a period of one month and shall consider afresh the representation given by the petitioner dated 12.02.2007 (Annexure 2 to the writ petition) and pass appropriate orders in accordance with law within one month thereafter."
(Emphasis added)
5. It appears that respondent Corporation thereafter, proceeded with the matter and directed the petitioner to submit certain documents vide letter dated 21.01.2010. In compliance of the aforesaid, petitioner submitted all his documents as were available to him as on 19.08.2010. Thereafter, the respondent Corporation prepared again prepared a panel in which the petitioner has been declared as 'did no qualify' as he could not secure 60% marks under the head 'capability to arrange finances'. This panel was declared on 25.11.2010 and is impugned in the present writ petition.
6. Against the panel prepared by respondent Corporation, petitioner seems to have filed another writ petition no. 3052 of 2011 which was disposed of with a direction vide order dated 20.10.2011 that petitioner may approach the concerned authority by moving an appropriate application for redressal of his grievances. It is under these circumstances, the petitioner made a representation to the authority which has come to be decided by an order of rejection passed by the General Manager, U.P. State Office, Lucknow on 29.01.2012.
7. The argument advanced by learned counsel for the petitioner is that the reason assigned in the panel that on account of petitioner not having secured 60% marks under the head 'capability to arrange finances', was absolutely illegal, as on the same set of documents that he had submitted initially, under the same head he had secured 15.69 marks. He has drawn the attention of this Court towards the earlier panel at page 66 of the writ petition wherein he has been shown to have secured 4 marks in income category, whereas in the impugned panel now prepared on 25.11.2010 he has been allotted only zero marks in income category. In this regard his argument is two fold: firstly, once in the income category with the papers that he had earlier filed at initial stage pursuant to advertisement, he was allotted 4 marks, on the same set of papers he could not have been allotted zero marks; and secondly, when the initial set of papers that he had filed with initial application were available on record, he was allotted 4 marks, if he had filed latest documents pursuant to letter dated 21.07.2010, it could not be said that he had not annexed the income certificate of 2005-06 nor was it a case of respondents while cancelling the earlier panel that petitioner was wrongly awarded the marks in the income category.
8. To buttress the argument, learned counsel for the petitioner has drawn the attention of the Court to para 19 of the writ petition wherein a clear plea was taken that once the petitioner has been allotted 15.69 marks on the basis of papers and properties filed and assets shown, the award of lesser marks on same set of documents was illegal, more especially when the respondents have not disclosed any yardstick for awarding such marks. The reply to this para 19 has been given in para 19 of the counter affidavit. For better appreciation of the facts we are reproducing para 19 of the writ petition and also the para 19 of the counter affidavit filed by the respondent Corporation herein under:
"19. That a bare perusal of the aforesaid result demonstrates that petitioner has been awarded/granted 6.66 marks out of 12 under the head of 'liquid cash' while 2.33% out of 4 have been awarded under the head of 'fixed and movable assets' while zero marks have been awarded out of 4 against 'income' head and 5 out of 5 marks have been awarded with regard to credit worthiness and therefore total of 13.99 marks have been awarded out of total of 25 which is 56% and had petitioner been awarded 15% would have been 60%. Comparison of aforesaid marks with marks obtained by the petitioner in the interview held on 29.06.2006 (A-4) demonstrates that petitioner had been awarded total of 15.69, 69% marks out of total of 20 marks which were demarcated as maximum 12 marks under the head of such resources which can be readily converted to liquid cash to cover working capital requirement but maximum of 4 marks for other assets like vehicle etc. and other source of income like rent, earning etc. and out of this total, petitioner had been awarded 15.69 marks apart from 5 full marks for credit worthiness and this time, out of aforesaid 20 marks, petitioner has been awarded only 8.99 marks which is absolutely illogical, arbitrary and perverse on the face of it inasmuch as earlier petitioner had annexed his income certificate, issued by Tehsildar demonstrating Rs.80,000/- as income per annum whereas for interview, held on 25.11.2010, petitioner had annexed income certificate of Rs.2,50,000/- and further even as per respondents themselves, on the basis of same property, valuables etc., once petitioner had been awarded 15.69 marks out of 20 on the basis of same documents, lesser marks could not have been awarded legally but it appears that only in order to harass the petitioner, respondent authorities have deliberately and without disclosing yardstick for awarding such marks have reduced marks of petitioner."
(writ petition) "19. That in respect of the contents of paragraph nos. 19 and 20 of the writ petition, it is submitted that marks were rightly awarded to the petitioner by taking into consideration the papers and documents submitted by him; there is neither any irregularity nor illegality in awarding marks to the petitioner."
(counter affidavit)
9. Learned counsel for the petitioner has raised another argument, thirdly, that when their own brochure vide clause 17.1 and 17.2 provides that in case if dealership awarded to first candidate in the panel is cancelled, then the dealership will be awarded to second person in panel. Vide clause 17.2 of the brochure, the life of the panel is provided for one year. So according to the learned counsel for the petitioner, there is no occasion for the respondent Corporation to have cancelled the panel on the death of first candidate in the panel and this is why the Division Bench in Writ Petition No. 29742 of 2007 quashed the cancellation order 07.03.2007 vide order dated 19.02.2010. Further, the argument is that the order impugned cancelling the panel dated 07.03.2007 was absolutely cryptic and non speaking order and the reasons having not been specified, nothing can be said that the panel cancelled for any illegality or irregularity in its preparation.
10. Yet another argument, fourthly, has been advanced by learned counsel for the petitioner that the process of selection starts from the advertisement till the preparation of panel and since the Division Bench had asked that process should be restarted from the stage when stood vitiated, meaning thereby, the cancellation order dated 07.03.2007 having been passed after the petitioner made an application that the first candidate on the panel died on 27.01.2007 in an accident, the action cancelling the panel would mean that it stood vitiated on account of death only and, therefore, according to learned counsel for the petitioner, the process should have been started in terms of clause 17.1 and 17.2 of the brochure and, therefore, according to him the impugned order and the panel whereby, the petitioner is rendered disqualified for the allotment on retail outlet deserves to be quashed.
11. Per Contra, the argument advanced by learned counsel for the respondent Corporation Sri Padia is that the order of Division Bench would be taken to have permitted the respondent Corporation to have proceeded from L-I (Level one) stage only. The basis of the argument of Mr. Padia is that since the selection process stood cancelled under the order dated 07.03.2007, quashing of the same resulted in initiating the process from that stage only and, therefore, the Corporation is fully justified in inviting the documents from the petitioner for reconsideration of his candidature. He has heavily relied on the letter dated 27.07.2010 issued by the Senior Divisional Retail Sales Manager inviting documents in support of various heads in which marks were to be awarded. In this letter, he asserts that the document pertaining to the income of the last financial year as on the date of application was required, which according to him, does not find place in the list contained in the letter dated 19.08.2010 submitted by the petitioner in reply to the letter dated 21.07.2010. Learned counsel for the respondents under the circumstances, asserts that having not submitted the income certificate of the relevant financial year, the petitioner has been given zero marks in income category.
12. From the arguments advanced by learned counsel for the petitioner and the arguments advanced by learned counsel for the respondents, one tickling issue clearly emerges as to whether the awarding of marks by the Corporation as 13.99 out of 20 in the category of capability to arrange finance under the panel prepared on 25.11.2010 was justified when this panel was prepared in pursuance to the same advertisement which was issued in 2006 and in the panel prepared in the year 2006/ 2007, the petitioner was awarded 15.69 marks under the same head which is admittedly higher than what is now awarded under impugned panel.
13. From the perusal of documents, as have been annexed, we find that under the letter dated 21.07.2010, petitioner was required to submit the documents relating to the year 2006 in five sub-categories i.e. document relating to availability of liquid cash in the form of bank statement; fixed deposit etc.; income based on income tax return etc.; fixed and movable assets; credit worthiness certificate; and tied up volume. However, the documents that have been supplied by the petitioner under the letter dated 19.08.2010 pertain to the year 2010 only whether it is a Union Bank of India Savings Bank Account details or the income certificate of Tehsildar or the fixed assets certificates, or the worthiness certificates, or about the sale potentials. From the perusal thereof it is therefore, clear that the petitioner did not file any document pertaining to year 2006 in 2010 and yet we find that the panel that has been prepared marks are awarded to him towards liquid cash in form of bank fixed deposits, towards fixed and moveable assets also and towards bankers certificate. What transpires therefore, from the letter dated 21.07.2010 and the panel prepared on 25.11.2010 that the Corporation considered the documents of the petitioner that were already on its record at the time the petitioner had submitted his initial application in the year 2006. Had it been a case as is sought to be argued by the learned counsel for the respondents that the petitioner could not be awarded marks because he did not file the income certificate of the relevant year, logically the petitioner ought not to have been awarded marks in any of the sub-heads of 'capability to arrange finance'. But this is not so and therefore, it appears that awarding of zero marks to the petitioner in income category is absolutely illegal and illogical, once in the same sub-head he had been awarded 4 marks in 2006 panel. It is not the case of respondents either pleaded in the counter affidavit or in the earlier order dated 07.03.2007 whereby the first panel was cancelled, that the marks were earlier wrongly awarded to the petitioner. Under the circumstances, the impugned panel cannot be justified and is liable to be quashed in so far as the awarding of marks to the petitioner in the category of capability to arrange finance is concerned.
14. We may also record that in the head of 'capacity to arrange finance' earlier in the year 2006 there were only three sub-heads with total allocation of marks on 12, 04 and 04 in total 20 but now in 2010 yet another sub-head of 5 marks has been added making total to 25. This additional sub-head is Banker's certificate. The question is whether in the same selection process these categories could be changed or modified. However, since th respondent Corporation has allocated marks to the petitioner in that category and nothing has been argued on that count, we are not going into this question.
15. Now testing the other two arguments of petitioner, we find that the Division Bench direction was for consideration of panel already prepared by the respondent Corporation, we find that the Corporation when vide order dated 27.03.2007 had cancelled the selection process it did not assign any reason. In order to appreciate the argument, we are reproducing the order passed on 27.03.2007 which is as under:
"REGD.A.D Ref. No. LDO/DSB/An-F-60 Date:07.03.2007 To:
Sir Bhagwat Narain, S/o Sir Govind Singh, Vill. Chavanpura, Distt. JALAUN Subject: Interview conducted against advertisement on 10.01.06 for Retail Outlets under Land Owners category Madam/Sir, Please refer to the advertisement dated 10.01.06 in the "Dainik Jagran" against which you submitted your application for retail outlet dealership at the location "Between Ait & Jakhauli".
We regret to inform you that the above process has been cancelled by the Competent Authority due to certain unavoidable reasons.
You will be informed on further development on the above, if any, in future.
We regret the inconvenience caused to you.
Thanking you, Yours faithfully, For INDIAN OIL CORPORATION LTD, SR. DIVISIONAL RETAIL SALES MANAGER"
16. From the perusal of aforesaid order, we find what is written for cancellation is 'unavoidable reasons' by the competent authority even no mention has been made as to on what date the competent authority had cancelled or issued any direction to cancel the selection process. From the entire counter affidavit also we find that no such plea has been taken in defence of the order dated 07.03.2007, obviously because the said order stood quashed by Division Bench in writ petition. The Division Bench directed that the process to restart from the stage it stood vitiated under order dated 07.03.2007 (supra). We need to explore here now as to what the words and expression "from the point it stood vitiated' means in the context of the present case. The order dated 07.03.2007 being cryptic and non speaking, the words and expression "due to certain unavoidable reasons" needed exploration or contextual interpretation. Exploration would have been possible, if either the earlier Division Bench in its judgment (supra) had discussed reasons behind it or the respondent Corporation had explained away the same in the counter affidavit or under the impugned order. However, since above two things are missing, we are left with no other option but to go for contextual interpretation. The documents and the facts that have been brought to our notice and which are admitted to the parties, what transpires is that the letter of intent pursuant to the selection panel prepared in the year 2006 could not be issued to the first candidate Awadhesh Gupta because of his terminal accident on 26.01.2007 and it is when the petitioner set up his claim under application dated 12.01.2007 taking recourse to the provisions contained in clause 17.1 and 17.2 of the brochure of Indian Oil Corporation, the respondent Corporation passed the order cancelling the selection process and, therefore, the logical presumption that can be drawn is that selection process virtually stood vitiated for the time being only on account of death of first candidate in the panel and before clause 17.1 and 17.2 could be put into motion the respondent Corporation, we do not hesitate to say so, in a hush-hush manner cancelled the selection process on account of death of first candidate as unavoidable reasons which we do not find to be a valid reason and so in the context of the present case and in the background of the facts and circumstances detailed herein above, we hold that the words and expression "from the point it stood vitiated" as contained in the operative portion of order of Division Bench dated 19.02.2010 means that it stood vitiated only on account of accident if first candidate in panel and the Corporation in its misplaced wisdom, cancelled the selection process. So reading together the words and expression "Corporation shall continue with the same selection process" and "take recourse from the point it stood vitiated" lead us to an inevitable conclusion that the 'point' now to start, would be the point as covered under clause 17.1 and 17.2 of the brochure which has been brought on record as Annexure No. 3 to the writ petition. The relevant provisions referred to herein above are reproduced as under:
"17.1--FIELD VERIFICATION The dealership will be offered to the No.1 candidate in the merit panel on the basis of the interview after necessary filed verification and Letter of Intent (LOI) will be issued If the no.1 candidate is not found suitable/ fails to full fill the terms and conditions of the award of dealership of the award is to be cancelled for any reason whatsoever, the dealership will be offered to the 2nd candidate in the merit panel after necessary filed verification.
If the 2nd candidate also fails to full fill the terms and conditions of offer or found unsuitable for any reason whatsoever, their the dealership will be offered to the 3rd candidate in the merit list.
If the 3rd candidate also fails to full fill the terms and conditions of offer or found unsuitable for any reason whatsoever, or in case where no. 2nd or 3rd candidates are available in the "merit panel" as explained above, the location may be readvertised at the discretion of IOC.
A person who has been issued the LOI would be required to full fill the terms and conditions of the same within the specified time period for issuance of letter of appointment and commissioning of the dealership.
17.2--VALIDITY OF MERIT PANEL The merit panel will be valid for a period of one year from the date commissioning of the dealership. If within this period, the dealership offer to the first empanelled candidate is to be withdrawn for any reason whatsoever or the dealership is terminated on account of wrong statement made in the application or any other reason like proven ineligibility (due to complaint etc.) of the dealer or proven malpractice, IOC will have the option of awarding dealership to the next candidate in the merit panel if he/she meets the eligibility criteria and after necessary field verification."
17. The above provisions clearly provide: (a) if the award of dealership is cancelled for any reason whatsoever to the first candidate in the panel, the dealership will be offered to the second candidate after necessary verification and so on. 17.1 clearly specifies that in the given facts and circumstances, even if the third candidate in the panel cannot be offered dealership and then only occasion would be for re-advertisement of location at the discretion of Indian Oil Corporation. 17.2 clearly provides the life of merit panel to be one year.
18. Thus, from the above provisions it is very much clear that once the panel is prepared, it will last for one year and only for valid reasons to be recorded, it can be cancelled and secondly if the number 1 candidate in the panel in the event not found suitable fails to fulfill the conditions of award of dealership then number 2 will be given offer, if no. 2 also fails on the above account then no. 3. In case no. 3 candidate also could not be allotted for reason valid enough, then the advertisement of location for the allotment will be made again. So one thing is very clear that under the provisions that either the candidate empanelled will be awarded the dealership or fourth advertisement will taken place. Under no circumstance, any fresh application or documents can be invited under the same advertisement from those empanelled or any other new candidate who did not find place in the panel.
19. Applying the above provisions to the facts of the present case, we are of the clear opinion that the first candidate in the panel Sri Awadhesh Gupta could not have been offered letter of intent because of his terminal accident and which was brought to the notice of the Corporation by the petitioner himself vide application dated 12.02.2007 and, therefore, petitioner was entitled to be considered as per the aforesaid provisions but instead of adhering to its own rules, the Corporation proceeded to cancel the panel. The counsel for the Corporation strenuously argued that once the selection process was cancelled everything returned to its own position and since the court directed for re-initiating the selection process, it automatically turns out to be a direction for the stage of cancellation. What he wants to suggest is de novo assessment for empanellment. We are afraid, how could such interpretation of the order be made that not only does violence to the spirit of the order but amounts to convert decree to do something against the rules. No court of law can direct for an action to be taken unless the rules and regulations provide for same. Court cannot create or substitute any provision which is not there, so if the Court directed for restart of some selection process it would depend upon the stage the Corporation had already undertaken the process. In the present case, no further advertisement had been directed nor, was so issued and since Court directed for re-initiating the same selection process from the point it is stood vitiated, it would mean that the panel which was already there and since got revived by quashing the order dated 07.03.2007 cancelling it, the respondents were required to consider the case applying the provisions of clause 17.1 and 17.2.
20. As a matter of rule per brochure, no fresh empanelment was required. What was required was to ensure whether petitioner being no. 2 did fulfill terms and conditions of the award of dealership or not so as to complete the stalled selection process by issuing letter of intent. This according to us is also the spirit of the order of the Division Bench (supra).
21. We also find that rules/ guidelines whatever one may call, as contained in the brochure, it aims at transparency, fairness and non-arbitrariness in the matter of award of dealership which very much has the flavour of a public contract. The steps as taken by the Corporation in the present case and sought to be defended by its counsel, to state the least, indicative of defaults and dereliction of the Corporation and its functionaries. Such unwarranted actions, in our considered opinion, being only with a purpose to deny fruits of selection to an empanelled candidate, deserve strong deprecation and we do so.
22. For the aforesaid reasons, we also do not see any justification in the order passed by competent authority in rejecting the application of the petitioner and justifying the action in preparation of fresh panel apart from an illegal act of awarding zero marks in income category to the petitioner and thereby holding him disqualified for having not secured 60% in the concerned head.
23. In a decision making process where an authority or for that matter a committee is authorized to evaluate the merits of a claim, we may say so, acquire adjudicatory role and has to apply the principles governing the field quite objectively. The objectivity is lost once the action taken is flavored with a tinge of Wednesburry unreasonableness begetting irrationality. While the thought process of such authority not only gets adulterated by misconceived prejudices the consequential action gets vitiated with utter irrationality. Such actions therefore, loath the courts to set right unnecessarily created issues/ conflicts through the task of judicial review as rightly observed in Jayrajbhai Jayantibhai Patel v. Anilbhai Jayantibhai Patel & Ors (2006) 8 SCC 200 "While appreciating the inherent limitations in exercise of power of judicial review, the judicial quest has been to find and maintain a right and delicate balance between the administrative discretion and the need to remedy alleged unfairness in the exercise of such discretion." Hence, in our considered opinion this would have been a case of gross miscarriage of justice but for our interference.
24. Under the circumstances, we are quashing the order passed by the concerned respondent dated 29.06.2012 (Annexure No. 1 to the writ petition) and also the panel prepared on 25.11.2010 in so far as the allotment of marks in the head of capability to arrange finance is concerned. We direct the respondent to consider the candidature of petitioner in the light of marks awarded in the said head to him in the panel prepared in the year 2006 or if any verification is required, that has to be done only to examine that he fulfills other conditions of award of dealership pursuant to advertisement dated 10.01.2006. We, thus, hold that as per panel prepared in 2006 by the Corporation, the petitioner is entitled to be given retail outlet dealership in question as per provision of clause 17.1 of the brochure, and except for any legal impediment, he shall be awarded the same. Necessary orders in this regard shall be passed by the Corporation within five weeks from the presentation of the certified copy of this order.
25. In this case, we find that the Corporation by its decisions which are arbitrary and capricious, forced litigations upon the petitioner twice. The Courts are there to balance law and equity and in this case both are in favour of the petitioner, compelling us to impose exemplary cost to do complete justice in the case. Supreme Court in the case of Salem Advocate Bar Association, Tamil Nadu v. Union of India, AIR 2005 SC 3353 has held that "so far as awarding of costs at the time of judgment is concerned, awarding of costs must be treated generally as mandatory inasmuch as the liberal attitude of the Courts in directing the parties to bear their own costs had led the parties to file a number of frivolous cases in the Courts or to raise frivolous and unnecessary issues. Costs should invariably follow the event Costs must be appropriately apportioned. Special reasons must be assigned if costs are not being awarded. Costs should be assessed according to the rule in force."
26. Under Chapter XXII, Rule 11 of Allahabad High Court Rules, 1952, there is an ample provision for award of cost. The provision runs as under:
"11. Costs. - In disposing of an application under this Chapter, the Court may make such order as to costs as it may consider just."
27. In view of the above, writ petition succeeds and is allowed with cost that we quantify to be Rs. 25,000/-.
Order Date :- 28.8.2018 IrfanUddin