SUNITA GUPTA Vs UNION OF INDIA .
Bench: GYAN SUDHA MISRA,V. GOPALA GOWDA
Case number: C.A. No.-004681-004681 / 2014
Diary number: 27935 / 2009
Advocates: DR.RAJEEV SHARMA Vs
SANJAY KAPUR
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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
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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
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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
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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
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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
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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
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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.
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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
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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’
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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
1 (1990) 3 SCC 752
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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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