Hon'ble Attau Rahman Masoodi,J.
( By Hon'ble Attau Rahman Masoodi,J. ) These three writ petitions essentially raise a dispute as regards the selection of a retail outlet dealership situated on Lakhimpur-Gola Road at Gola Gokarannath and all the writ petitions being interrelated were heard together and are being decided by a common judgement.
Brief facts of the case are that an advertisement was issued by Bharat Petroleum Corporation Limited for allotment of a retail outlet dealership at location 'Lakhimpur-Gola Road' at Gola Gokarannath, District Lakhimpur Kheri under scheduled caste category some time in the year 2011. The record reveals that as many as 13 candidates applied for the allotment of retail outlet dealership and selection pursuant to the advertisement was held on 25.9.2012 wherein one Sri Ajay Kumar Bhargawa was placed at first position according to his merit. Soon after declaration of the result, a complaint as regards the faulty assessment of marks came to be filed by one Chandra Prakash, the candidate who was placed at the second position in the merit list declared on 25.9.2012. The undue pendency of the complaint made by Chandra Prakash gave rise to a Writ Petition No. 4436 (MB) of 2013, which after being filed in the month of May, 2013, remained pending and later on has come to be clubbed with the subsequent writ petitions filed in the year 2014 mentioned above. During pendency of Writ Petition No. 4436 (MB) of 2013, the record reveals, that the competent authority proceeded to consider the complaint made by Sri Chandra Prakash and on evaluation of the grievance raised in the complaint, it was found that the complaint so made by him would materially affect the result of the selection and the Committee having regard to the allegations levelled in the complaint, proceeded to reevaluate the result of the selection and a fresh result for allotment of retail outlet dealership was declared on 3.12.2013 on the basis of which the allotment made in favour of M/s Sai Filling Station through its proprietor Sri Ajay Kumar Bhargawa was cancelled on 31.12.2013.
The complaint filed by Chandra Prakash against the selection held in the year 2012 is primarily based on the fact that some candidates in support of their application had filed the requisite affidavits of prospective customers which were wrongly assessed for award of marks under the head 'capacity' to generate business (tied up volume) carrying five marks. The objection of the complainant was that the stamp paper on which the affidavits of prospective customers were filed, were purchased by the prospective dealer himself and were not purchased by the customers, as such the affidavits so filed were legally not admissible for the award of marks in view of the provisions of Section 29 of the Indian Stamp Act, 1999 read with Schedule-I.
The complaint filed by Chandra Prakash was proceeded with by the high power committee for evaluation of marks without any notice to the petitioner who on the basis of the assessment of his merit initially on 25.9.2012, was allotted the retail outlet dealership in the name of M/s Sai Filling Station through its Proprietor Ajay Kumar Bhargawa. The petitioner feeling aggrieved against the reevaluation of merit by the high power committee and that too without any notice to him, filed Writ Petition No. 72 (MB) of 2014 and in this manner the impugned orders dated 3.12.2013 i.e. fresh merit list and order dated 31.12.2013 i.e. cancellation of retail outlet, as contained in Annexure-1 to the writ petition came to be challenged.
The first and the foremost ground on the basis of which the impugned action has been assailed is to the effect that the respondent company before passing the impugned order of reevaluation of merit on the basis of a complaint filed by Chandra Prakash i.e. respondent no. 4, has not afforded any opportunity to the petitioner, as such, the said order being violative of the principles of natural justice stands vitiated in the eye of law and for the same very reason, the consequential order dated 31.12.2013 was also assailed to be bad in the eye of law.
The Company has filed a counter affidavit to the writ petition wherein a specific stand has been taken by the respondent company that the complaint filed by Sri Chandra Prakash was processed and considered by a high power Committee strictly in accordance with the guidelines which specifically provide under clause 21 as under:
"21. Furnishing of false information / concealing information:
If any information furnished by the applicant is found to be false at any point of time before or after appointment as a dealer or conceals any information which if declared would have made him/her ineligible for dealership, the allotment will be cancelled forthwith and dealership terminated, in case commissioned."
It is further asserted in the counter affidavit that any wrong undertaking made by an applicant entails a consequence of cancellation of dealership, therefore, rule of opportunity as in the case of allotment of retail outlet dealership is well regulated and does not envisage an opportunity to be afforded to an aggrieved person in case the action is justified on the violation of any conditions of the brochure, as provided for under clause 21 or in respect of any declaration made by the applicant-dealer. It is further contended in the counter affidavit that even though it is not specifically provided in the guidelines as to who would purchase the non judicial stamp papers on which the affidavits of prospective buyers are to be transcribed which are required to be filed in support of the candidature of a candidate in relation to the assessment of marks under the head 'capability of generating business', yet the responsibility of purchase of non judicial stamp papers under the Stamp Act, as per section 29 read with Article 4, Schedule 1-B lies on the part of the person who has submitted the affidavit, therefore, the affidavits of the prospective buyers filed by the petitioner i.e. Sri Ajay Kumar Bhargawa on the self purchased stamp paper being inadmissible in law have rightly been ignored for the purposes of assessment of the petitioner's marks in the revised assessment of merit declared on 3.12.2013.
It is noteworthy that the allotment in favour of M/s Sai Filling Station through its proprietor Sri Ajay Kumar Bhargawa had been finalised and the retail outlet dealership had already been commissioned much before the date of issuing the reevaluated merit list on 3.12.2013. In such a situation whether opportunity ought to have been afforded to the petitioner for explaining his position in respect of the disputed affidavits or not, the issue calls for an answer within the scope of Article 14 of the Constitution of India to which every law or guidelines are subservient.
According to the learned counsel for the petitioner, the rule of opportunity is a part and parcel of Article 14 of the Constitution of India and such a rule comes into play as soon as any public authority proceeds to take a decision which goes adverse to any valuable and justiciable right of a person. The submission proceeds that once a legal right of allotment of retail outlet has culminated in favour of the petitioner on the basis of comparative merit, the authorities before taking away the benefit accrued under such a right, are bound to afford an opportunity to the petitioner in terms of the guidelines which have been framed in the spirit of Article 14 of the Constitution of India.
In essence, it is the rule of audi alteram partem which has been canvassed by the learned counsel for the petitioner and violation whereof has been vehemently urged to attack the impugned action. From the stand taken in the counter affidavit the respondents have not only denied such an opportunity being available to the petitioner but have also defied the same on the strength of clause 21 of the brochure which has been extracted hereinabove. On a close scrutiny of various clauses of the brochure, we find that the rule of opportunity is dispensed with in a situation where a candidate is found to be disqualified or where a candidate has indulged into a concealment of material fact or has mislead the authorities on the basis of any undertaking. The present case is not a case where the candidature of the petitioner was found disqualified on the basis of any misleading information on account of having filed any wrong undertaking. It is the own case set up by the respondents that even if the affidavits of prospective customers suffered from any defect, the same would not lead to disqualification but would affect the assessment of merit of a candidate determined by the selection committee. Once it is admitted that filing of such affidavits has not disqualified the petitioner from the zone of consideration, the relevant issue is as to whether the respondent company has delved into the alleged impact of filing of such affidavits as per the mandate of law, which clearly envisages rule of opportunity to be a condition precedent before taking an adverse decision impinging upon a valuable right of the petitioner to continue with the running of retail outlet dealership on the basis of his predetermined merit.
The validity of the affidavits has been questioned and found objectionable by the respondent company not on the basis of any categorical or clear condition envisaged under the brochure but in order to prove their stand, the respondents have taken aid of the provisions of Section 29 of the Stamps Act read with the schedule as mentioned above. The stand adopted by the respondent oil company in para 8 of the counter affidavit is reproduced below:
"8. That the assertions depicted in paragraph no.9 of the writ petition, as alleged are not accepted with the additional say that the L 2 committee, having constituted during the course of selection process for scrutinizing the Papers/Documents wrongly cleared the affidavit submitted by the petitioner under the tied up volume head of the prospective customers. The L2 Committee has otherwise cleared the affidavits submitted by all the applicants not of the petitioner only. The copies of affidavits submitted by the petitioner of the prospective customers are being filed as Annexure CA-1 to this counter affidavit, which reveals that the affidavits submitted on non judicial stamp not purchased by the person executing the document are vitiated in law as are submitted in contravention of section 29 a read with schedule 1-B (4) of Indian Stamp Act 1899. The relevant provisions of Indian Stamp Act 1899 along with corresponding schedule are being appended herewith as Annexure C A-2 to this counter affidavit, which postulate that in case of submitting any affidavit including an affirmation declaration in the case of persons by law allowed to affirm or declare, the expense of providing the proper stamp shall be borne by the person, drawing, making or executing the same.
However in the present matter the non judicial stamp of the affidavits have not been purchased by the respective deponents rather have been purchased by the petition in his own name.
However if a particular manner is required by the law to do a particular act, the same should be done in that manner only otherwise should not be done at all. Now the petitioner wants to take advantage of his own wrong, insisting for selecting himself.
However, in the brochure/application form it is always specifically mentioned, as in present case too, that no additional documents whatsoever will be accepted or considered after the cut-off date for submission of applications and if any statement made in the application or in the documents in closed therewith by the candidate at any stage is found to be incorrect or false and/or the applicant conceals any information which if declared would have made him/her in eligible for dealership, the application is liable to be rejected and in case of applicant has been appointed as a dealer, the dealership is liable to be terminated. In such cases the candidate/dealer shall have no claim whatsoever against the oil company."
Section 29 of the Indian Stamps Act, 1899 which has been placed reliance upon in the counter affidavit is extracted below:
"Section 29. Duties by whom payable In the absence of an agreement to the contrary, the expense of providing the proper stamp shall be borne-
(a) In the case of any instrument described in any of the following Articles of Schedule I, namely: -
No. 2. (Administration Bonds), No. 6. (Agreement relating to Deposit of Title deeds, Pawn or Pledge), No. 13. (Bill of Exchange), No. 15. (Bonds), No. 16. (Bottomry Bond), No. 26. (Customs Bond), No. 27. (Debenture), No. 32. (Further Charge), No. 34. (Indemnity-bond), No. 40. (Mortgage-deed), No. 49. (Promissory-note), No. 55. (Release), No. 56. (Respondentia Bond), No. 57. (Security Bond or Mortgage-deed).
No. 58. (Settlement).
No. 62 (a). (Transfer of shares in an incorporated company or other body corporate), No. 62.(b) (Transfer of debentures, being marketable securities, whether the debenture is liable to duty or not, except debentures provided for by Section 8), No. 62 (c). (Transfer of any interest secured by a bond, mortgage-deed or policy of insurance), By the person drawing, making or executing such instrument;
(b) In the case of a policy of insurance other than fire-insurance-by the person effecting the insurance;
(bb) In the case of a policy of t7ire-insurince-by the person issuing policy;
(c) In the case of a conveyance (including a reconveyance of mortgaged property) by the grantee in the case of a lease or agreement to lease-by the lessee or intended lessee;
(d) In the case of a counterpart of a lease-by the lessor;
(e) In the case of an instrument of exchange by the parties in equal shares;
(f) In the case of a certificate of sale-by the purchaser of the property to which such certificate relates; and
(g) In the case of an instrument of partition - by the parties thereto in proportion to their respective shares in the whole property partitioned, or, when the partition is made in execution of an order passed by a Revenue-authority or Civil Court or arbitrator, in such proportion as such proportion as such authority, Court or arbitrator directs."
This provision corresponds to Section 35 of the U.P. Stamp Act, 2008. The schedule appended to both the Acts is identical except the price of stamp duty fixed against each article.
The relevant portion of the Schedule appended to U.P. Stamps Act is reproduced hereunder:
"SCHEDULE [See section 3 and Section 80] Stamp duty on Instruments under the Uttar Pradesh Stamp Act, 2008 Description of instrument Proper stamp duty
1. ACKNOWLEDGEMENT of debt exceeding, one thousand rupees in amount or value, writ ten or signed by, or on behalf of, a debtor in order to supply evidence of such debt in any book (other than a banker's passbook) or on a separate piece of paper when such book or paper is left in the creditors possession:
Provided that such acknowledgment does not contain any promise to pay the debt or any stipulation to pay interest or to deliver any goods or other property.
Ten rupees
2. ADMINISTRATION - BOND, including a bond given under section 291, 375 and 376 of the Indian Succession Act, 1925 (Act No. 39 of 1925) or Section 6 of the Government Savings Banks Act, 1873 (Act no. 5 of 1873) The same duty as Bond (No. 14), subject to maximum of two hundred rupees.
3. ADOPTION-DEED, that is to say, any instrument (other than a Will) recording an adoption or conferring or purporting to confer an authority to adopt.
ADVOCATE,-- See Entry as an Advocate (No. 17-) One hundred rupees.
4. AFFIDAVIT, including an affirmation or declaration in the case of persons by law allowed, affirming or declaring instead of swearing.
Exemptions:
Affidavit or declaration in writing when made -
(a) as a condition of enrolment under the Indian Army Act, 1950 (Act No. 46 of 195), the Indian Air Force Act, 1950 (Act No. 45 of 1950) or the Navy Act, 1957 (Act No. 62 of 1957), or
(b) for the sole purpose of enabling any persons to receive any pension or charitable allowance.
Ten rupees The classification of the Schedule-I, I-A and I-B in its application in U.P. stands brought in line, by U.P. Act No. 10 of 2010, with Schedule I as appended to the Central Act. The stamp paper in the State of U.P. for the purposes of 'affidavit' is fixed at Rs.. 10/- whereas, under the Central Act, it is fixed at Re. 1. It is, however, not provided as to who would purchase the stamp paper. This position is sufficiently evident from the plain reading of Section 29 which clearly refers to the articles of the schedule in respect of which it is provided that the stamp paper shall be purchased by the person drawing, making or executing such instrument. An 'affidavit' is classified as article no. 4 in the schedule and in relation thereof, the restriction of purchase by the person drawing, making or executing is not imposed under Section 29.
Once the mandate of law under Section 29 does not postulate the intention of legislature in the manner in which objection has been taken in the counter affidavit, to say the least, such an objection raised by the respondents is not only misconceived but the same appears to have been fished out baselessly and without any lawful justification.
Now coming to the question of opportunity, we may note that a complete mechanism has been provided under the guidelines to look into the grievances raised by the participating candidates in the selection process and for our purpose clause-19 of the brochure being relevant is reproduced below:
"19. Grievance / Complaint redressal system :
(a) An aggrieved person may send his/her complaint to the oil company at the address of the customer service cell displayed at the nearest retail outlet of the concerned oil company. Complaints can also be lodged on the website of the oil company. Complaints against dealer selection received after 30 days from the date of publication of the merit panel after the interview will not be considered / entertained under any circumstances.
o Anonymous / pseudonymous complaints will not be investigated and will be filed without taking any action on the same.
o On receipt of a complaint, a letter will be sent by the oil company to the complainant through Registered Post advising the complainant to submit details of allegation with a view to prima facie substantiate the allegations along with supporting documents, if any, within 30 days. The complainant will be clearly advised that the oil company will examine the complaint and if it is established that the complaint does not have any substance, he/she may be liable for legal action. The oil company will examine response of the complainant and if it is found that the complaint does not have specific and verifiable allegations, the same will be filed.
(b) When a decision is taken to investigate the complaint, the investigation will be done by one Senior Official of Oil Company and will pass a speaking order after giving due opportunity to the complainant etc. Copy of the speaking order will be given to all concerned. Thereafter, decision on the complaint will be taken as under:
(i) Complaints not substantiated: The decision to be conveyed by way of speaking order to the complaint by the regional office.
(ii) Established complaint: Action will be taken as under:
In case the dealer selection was done as per the laid down guidelines and the complaint against the first empanelled candidate is established, action will be taken to cancel the selection of the first empanelled candidate and issuance of LOI to the next candiate in the merit panel. Similar action will be taken in case of established complaint against second empanelled candidate also.
In case where complaint is due to error in evaluation of documents by Scrutinizing Committee, reevaluation of all applicant by a fresh Scrutinizing Committee nominated by Regional Head will be arranged. During reevaluation, the Committee will record justification for any change in marks (for every candidate under any parameter).
> There will no interview and the marks awarded earlier by the interview committee will be considered for revised result.
> A high level committee of two members not below the rank of JG 'E' nominated by Regional Head with one member from Regional office and one Territory Manager other than the territory to whom the complaint pertains will examine the reevaluation done by the fresh scrutinizing committee and submit recommendations to the Regional Head.
a) Where there is change of rankings in merit panel-revised mark sheet and panel will be displayed on the notice board/ website besides separate communication to be sent to all empanelled candidates (pre-revised and revised empanelled candidates) by the Territory Manager within 7 days from receiving the decision from Regional Head's office. Regional office should also communicate the decision to the complainant by way of speaking order.
b) Where there is no change or rankings in merit panel- the decision should be conveyed by way of speaking order to the complainant by the Regional office.
In case where complaint is substantiated due to error by the Interview committee.
> Wherever there is transcribing or totalling error (in scrutinizing committee's marks), a committee of two members not below the rank of JG 'E' nominated by Regional Head with one member from Regional officer and one Territory Manager other than the concerned territory will prepare revised result based on evaluation by original scrutinizing committee and marks on interview based parameters awarded by original interview committee.
> Wherever there is error in award of marks by the interview committee which affects merit panel, re-interview of all the eligible candidates who have appeared in the interview earlier, will be conducted.
The existing practice of issuing LOI only if no complaint is pending for disposal will continue. If complaint is received after issuance of LOI, the LOI should be held in abeyance till the disposal of the complaint."
Clause 19 of the guidelines issued on 15.9.2011 (Annexure-5) provides a complete procedure for observance of the principles of natural justice. It is sufficiently evident from Clause 19 (B) that once a complaint is found to be satisfactory for the purposes of investigation, a senior official of the oil company will hold an enquiry at the first stage and pass a speaking order, copy whereof shall also be served on the complainant etc. It is further clarified that a copy of the speaking order will be given to all concerned. It is clear that all the affected persons are found to be served a copy of the speaking order.
In the present case the complaint filed by respondent no. 5 was found satisfactory for the purpose of investigation. There is no mention in the counter affidavit as to whether any speaking order passed by the competent authority who conducted the investigation, was at all communicated to the petitioner and other affected parties or not. Although the petitioner has not raised a specific grievance as regards non-compliance of clause 19 (b) in the writ petition but the whole grievance raised by the petitioner is that he was not issued a show cause notice or given any opportunity of hearing before the impugned action was resorted to. In the absence of any satisfactory explanation offered by the respondent Company, this Court safely draws an inference that the speaking order which ought to have been communicated to the petitioner in compliance of clause 19 (b) was not served on him and such dereliction of this duty on the part of the respondents constitutes a sufficient violation of the rule of opportunity. Non-communication of the speaking reasons clearly falls within the scope of denying a show cause, therefore, the petitioner is right in saying that he was not issued any show cause notice before unsettling the result of his previous selection at position no. 1. Before passing the consequential order cancelling petitioner's retail outlet dealership without any opportunity which was sought to be justified on the strength of clause-21 extracted above, is also misconceived as the issue involved in the present case was not that of disqualification but the same related to the assessment of marks. The guidelines not only provide for the service of the speaking order on the completion of investigation by a senior officer of the oil Company to all concerned before implementation of the order so passed, a further procedure is set out under clause 19 (b) (ii) that any error in the evaluation of documents by scrutinizing committee, shall be further subjected to re-evaluation by fresh scrutinizing committee and fresh scrutinizing committee shall record justification for any change in the marks in relation to every candidate as per the prescribed criteria. The present case clearly falls within the category of cases where error in evaluation of documents by the scrutinizing committee was a subject matter of complaint in the light of Section 29 of the Indian Stamps Act.
We have already observed that the alleged defect pointed out in respect of the affidavits of prospective customers filed by the petitioner did not suffer from any legal deficiency merely on the ground that the stamp paper for drawing such affidavits was purchased by the prospective dealer being an applicant in the selection process. This Court finds that the defect pointed out in the affidavits was wholly unjustified and untenable. Further, non-observance of the rule of notice envisaged under clause 19 (b) of the guidelines would amount to a clear violation of the rule of opportunity, as such, not only that the basis of issuance of reassessment of fresh merit but non-adherence to the procedure prescribed under law go to vitiate the impugned action altogether and render the impugned orders as illegal and arbitrary. The violation of Article 14 of the Constitution of India is clearly made out which calls for interference under Article 226 of the Constitution of India.
In the result, the writ petition filed by the petitioner M/S Sai Filling Station, namely, Writ Petition No. 72 (MB) of 2014 is allowed and the impugned merit list dated 3.12.2012 as well as order dated 31.12.2013, contained in Annexure-1 to the writ petition are hereby set aside.
Since we have allowed the Writ Petition No. 72 (MB) of 2014 filed by the dealer, consequently, both the writ petitions filed by the complainant viz. Chandra Prakash, i.e. Writ Petition No. 4436 (MB) of 2013 and Writ Petition No. 813 (MB) of 2014, for all the same very reasons recorded hereinabove, deserve to be dismissed and are hereby dismissed.
No order as to cost.
Dated: 19.1.2016 MFA Court No. - 4 Case :- MISC. BENCH No. - 72 of 2014 Hon'ble Amreshwar Pratap Sahi, J.
Hon'ble Attau Rahmam Masoodi, J.
The writ petition is allowed vide our orders of date, on separate sheets.
Dated: 19.1.2016 MFA