Supreme Court of India
SMT. MOUMITA PODDARversusINDIAN OIL CORPORATION LTD. & ANR.
- Citation
- 2010 INSC 456
- Decided
- 30 July 2010
- Disposal
- Dismissed
- Bench
- ALTAMAS KABIR
Holding
The selection was flawed but the Court declined to set aside the appointment, allowing the dealership to stand in view of subsequent events and public interest.
Summary
The Supreme Court heard appeals by Smt. Moumita Poddar challenging the appointment of a retail outlet dealership to respondent No.2 (Alpana Saha) by Indian Oil Corporation Ltd. The High Court had set aside the entire selection on the ground that the Selection Committee failed to follow the policy circular dated 4‑Sept‑2003 and that the lease deed offered by respondent No.2 was not produced at the interview. The Division Bench reversed part of that judgment but upheld the appointment. The Supreme Court held that although the selection was vitiated by non‑observance of the circular, the extraordinary jurisdiction under Article 136 should not be exercised because the dealership has been operating for over five years, there are no allegations of fraud, and the subsequent events justify leaving the selection undisturbed. Consequently, the appeals were dismissed and the dealership remained with respondent No.2.
Issues considered
- The selection and appointment of the retail outlet dealership to respondent No.2 was vitiated by non‑observance of the policy circular and eligibility criteria.
- Whether the entire selection process should be set aside and the appointment cancelled.
- Whether the lease deed, though unregistered, could be considered genuine for awarding marks.
- Whether the brochure dated 1‑Nov‑2004 applies retrospectively to the selection process.
- Whether the Court should exercise its extraordinary jurisdiction under Article 136 in view of subsequent events and public interest.
Legislation cited
- Constitution of Indias. Article 136, s. Article 14
- Transfer of Property Act, 1882s. 107
Subjects
public distribution systemretail outlet dealershipselection processpolicy guidelinesadministrative lawArticle 136arbitrarinesslease deedsubsequent eventspublic interest
Judgment
[2010] 9 S.C.R. 905
SMT. MOUMITA PODDAR A
v.
INDIAN OIL CORPORATION LTD. & ANR.
(Civil Appeal Nos. 6071-6072 of 2010)
JULY 30, 2010
B
[ALTAMAS KABIR, CYRIAC JOSEPH AND SURINDER
SINGH NIJJAR, JJ.]
Public Distribution System - Appointment/selection of
Retail Outlet Dealership of petrol - Challenged by the C
applicant who was not selected - Single Judge of High Court
cancelling the entire selection on account of non-observance
of policy guidelines - Division Bench of High Court upheld
the appointment - On appeal, held: The selection/
appointment was vitiated as the Selection Committee failed o
to observe the policy guidelines as laid down in the policy
circular ..,. The appellant-applicant was also not eligible for
selection in view of the policy guidelines - However, setting
aside of entire selection process is not justified - The proper
course is to offer the dealership to the next candidate on the E
panel - In view of the fact that the candidates in the panel
have not challenged the selection and in view of the
subsequent events that entire infrastructure has been made
available and the dealership is uperating for more than five
years, the selection/appointment of the dealership is not
interfered with in exercise of jurisdiction under Article 136 of F
the Constitution - Constitution of India, 1950 - Article 136 -
Adminstrative Law - Policy Guidelines - Non-observance by
Selection Committee - Effect of - Subsequent events -
consideration of
G
Respondent-Corporation published notice for
appointment of Retail Outlet Dealership. The appellant
applied for the dealership and offered to set up the
dealership on the land purchased by her mother-in-law
905 H
906 SUPREME COURT REPORTS [2010] 9 S.C.R.
A and father-in-law and also furnished documents
expressing their willingness to allow the appellant to use
the land for installation of the Retail Outlet Dealership and
to lease out the same to respondent No. 1 on long term
basis. Respondent No. 2 also submitted her application
B indicating that she had suitable site readily available for
the dealership. She offered the Lease Deed. However,
one of the clauses of the Lease Deed mentioned that she
could not sub-let the leased out landed property. In a
further supplementing Lease Agreement, it was provided
c that the party had the right to create sub-tenancy. Both
the above Lease Deeds were, however, not registered.
After the interview of the applicants, three candidates
were empanelled. Respondent No. 2 was placed at serial
No. 1. The appellant was not empanelled. Letter of intent
was issued in favour of respondent No. 2. The same was
0
challenged by the appellant before High Court in a writ
petition. Another unsuccessful candidate also challenged
the selection of respondent No. 2 in a writ petition. Both
the writ petitions were allowed holding that the selection
E was contrary to the applicable policy guidelines. and that
the entire selection process was vitiated on the ground
of non-application of mind and arbitrariness. The court
also held that the Lease Deed offered by respondent No.
2 was not in existence at the time of interview but was
subsequently, i.e. long after the filing of the writ petition,
F manufactured to defeat the case of the appellant. Writ
appeals against the same were allowed. Therefore, the
instant appeals were filed.
Dismissing the appeals, the Court
G HELD: 1.1 From the fact3 of the case, neither the
appellant nor respondent No.2 would have been eligible
for any preference. Whilst the appellant had offered the
undertakings given by her mother-in-law and father-in-law
to make the land available on lease, respondent No.2
H was only in possession of a lease, which contained a
MOUMITA PODDAR v. INDIAN OIL CORPORATION 907
LTD.
negative covenant. Therefore, the candidature of both, the A
appellant as well as respondent No.2 co~d on~ be
considered under the category that they were pre ared
to make the site available. The eligibility and the rel tive
merit of the candidate was clearly to be adjudged o~ the
basis of the criteria contained in the policy circular dated B
4.9.2003. [Paras 22, 23] [927-A-D]
1.2 Both, on the date of the application and the date
of the interview, respondent No.2 did not fall within any
of the categories as laid down in Circular dated 4.9.2003.
Therefore, her selection was vitiated, as the Selection C
Committee has deviated from the criteria laid down in the
Circular dated 4.9.2003. [Para 27] [932-C-D]
1.3 From the record, it appears that on the date of the
application, respondent No.2 would not fall under the 0
category of land-owner. She was, however, a lease-
holder, but was unable to create a sub-lease, in view of
the negative covenant contained in Clause 4 of the lease-
deed. Furthermore, in the applic·ation, she did not make
available any other material to show that she could make E
the land available. She, however, claims to have produced
the supplementary lease-deed, at the time of the
interview. But there appEHUS to be no material on the
record to indicate that it was actually produced before the
Interview Board. Even at the time of hearing, no material
was produced before this Court by any of the F
respondents to show that it was actually produced
before the Interview Board. In such circumstances, the
Single Judge of the High Court correctly observed that
the lease-deed produced by respondent No. 2 was
perhaps not produced before the Interview C,ommittee. G
The Single Judge, however, has unnecessarily jumped
to the conclusion that it was not a genuine document.
The document had been duly notarized, therefore, it
could not be said to be a fake document in the absence
H·
908 SUPREME COURT REPORTS [2010] 9 S.C.R.
A of any other material. The Division Bench correctly
accepted the genuineness of the document. Non-
registration of leasH as required u/s. 107 of the Transfer
of Property Act, 1882, may affect the legal rights of the
parties inter se. But in the instant case, respondent No.2
B is not seeking to enforce any such rights. She merely
offered the Lease Deed as proof of her "capability to
provide land" for being used by respondent No.1 as a
Retail Outlet Dealership. By virtue of Important Note (c)
of the Public Notice, respondent No.2 could make the
c land available within two months of the issue of Letter of
Intent. However, even if the second Lease Deed is
genuine, the same was not available before the Interview
Board. Therefore, she could not have been allotted any
marks, for her capability to provide land, in view of the
0 negative covenant contained in the lease-deed. [Para 25
& 26] [930-G-H; 931-A-H]
1.5 A provision which was not in existence when the
selection procedure was completed could have had no
application, unless it is made retrospective in operation.
E The brochure dated 01.11.2004 was published after the
letter of intent was issued to respondent No.2. In
substance, the provision in both the circulars dated
4.9.2003 and the brochure dated 1.11.2004 are identical.
On the issue of allocation of marks, therefore, it would
F have made no difference as to whether the candidature
of the appellant and the respondent No.2 had been
considered under either of the guidelines. [Paras 28 & 29]
[933-D; 932-E-G]
2.1 The Single Judge of High Court was not right in
G setting aside the entire seleci.ion. At the same time the
Division Bench also committed an error of law, in
upholding the selection of respondent No.2. The Single
Judge not only failed to take note of the ground realities,
but ignored the relevant clauses of the policy circular
H
MOUMITA PODDAR v. INDIAN OIL CORPORATION 909
LTD.
dated 04.09.2003. Under the aforesaid Circular, upon the A
selection and appointment of respondent No.2 being
declared illegal, the entire selection could not have been
held to be vitiated. In such circumstances, the Letter of
Intent would be issued to the next candidate in the panel
of three, in terms of Clause 5.4. This Clause specifically B
provides that if the Letter of Intent is cancelled for any
reason, it will be given to the next candidate in the merit
list. In the instant case, even such an eventuality would
not have arisen, as the candidates at Nos. 2 and 3 were
not the writ petitioners before the High Court. [Para 30] c
(933-E-H]
2.2 In view of the findings recorded above, the normal
order would be to set aside the impugned judgment of
the Division Bench. Further direction would have been
to offer the dealership to the next candidate on the panel D
of three. But these candidates have shown no interest in
these proceedings. The peculiar facts· of "this case are
such that it would be appropriate for the Court to take
into consideration the subsequent events, in order to do
complete justice between the parties. (Paras 31 and 32] E
[934-B-C; 935-F-G]
2.3 The facts and circumstances of the instant case
are such that the approach adopted by the Divisio.n
Bench, in taking note of the subsequent events, was
F
appropriate and legally permissible. The clumsy handling
of the entire selection process by respondent No. 1 ought
not to result in disqualification of respondent No.2 who
'"was perhaps not properly g\,lided; There are no
allegations made that respondent No. 2 has either
manipulated the selection or that any undue favour has G
been shown to her by the Selection Committee. The fact
that candidates at Nos. 2 and 3 of the panel have not
challenged the selection and grant of dealership to
respondent No.2. The appellant could also not get any
relief, not being in the panel of selected candidates. In H
910 SUPREME COURT REPORTS [2010] 9 S.C.R.
A view of the facts that the dealership has been operating
for more than five years, it is stated to be one of the best
outlet in the State; the entire infrastructure has been
made available with the combined efforts of respondents
No. 1 and 2; closure of the dealership, at this juncture,
B would result in disastrous consequences to respondent
No. 2. Therefore, keeping in view the over-all public·
interest, the extra ordinary jurisdiction under Article 136
of the Constitution of India for setting aside the selection
made in favour of respondent No. 2 is declined.[Para 36)
c [940-B-H; 941-A-B]
V. Purushotham Rao vs. Union of India and Ors. (2001)
10 sec 305 - distinguished.
Kedarnath Agrawal and Anr. vs. Dhanraji Devi and Anr.
D (2004) 8 SCC 76; Rashpal Malhotra vs. Satya Rajput (1987)
4 SCC 391; Municipal Board of Pratabgarh v. Mahendra
Singh Chawla; (1982) 3 SCC 331; Taherakhatoon vs.
Salambin Mohammad (1999) 2 SCC 635 - relied on
Case Law Reference:
E
(2001) 10 sec 305 Distinguished. Para 31
(2004) 8 sec 6 Relied on. Para 32
(1987) 4 sec 91 Relied on. Para 33
F (1982) 3 sec 391 Relied on. Para 34
,
(1999) 2 sec 635 Relied on. Para 35
CIVIL APPELLATE JURISDICTION : Civil Appeal Nos.
6071-6072 of 2010.
G
From the Judgment & Order dated 30.05.2008 of the High
Court of Gauhati in Writ Appeals No. 53 & 54 of 2005.
Manoj, Aparna Sinha, Abhijat P. Medh for the Appellant.
H Parag P. Tripathi, P.K. Goswami, H.K. Puri, Priya Puri,
MOUMITA PODDAR v. INDIAN OIL CORPORATION 911
LTD. -
V.M. Chauhan, S.K. Puri, Rajiv Mehta, A. Henry for the A
Respondents.
The Judgment of the Court was delivered by
SURINDER SINGH NIJJAR, J. 1. Leave granted.
B
2. These appeals have been filed against the judgment
and order passed by the High Court of Assam, Nagaland,
Meghalaya, Manipur, Mizoram, Arunachal Pradesh and Tripura,
Bench at Agartala in Writ Appeal No: 53/2005 along with
connected Writ Appeal No: 54/2005, wherein the Division c
Bench was pleased to set aside the common order of the
Single Judge in W.P (C) No. 259/2004.
3. We may briefly notice, here the facts which are
necessary to decide the legal issues raised herein:
D
Indian Oil Corporation, respondent No.1, published a
notice on 19.2.2004 for appointment of Retail Outlet Dealership
in local newspapers in the State of Tripura situated at
Ranirbazar and Agartala. The advertisement shows that for
Ranirbazar, the type of dealership offered was "Dealer owned". E
The advertisement further indicates that dealership at both the
locations were for women. At Ranirbazar the dealership was
only for Open Category (Women). The last date for submission
of applications was 19.03.2004. The relevant clauses for
advertisement were as under: F
"NOTICE
Appointment of Retail Outlet Dealer
Indian Oil Corporation Limited (Marketing division) Invites G
applications for appointment of Dealers for Retail Outlet
dealership in the State of Tripura at the following locations
for dealer owned/ Company Owned Retail Outlets on site
owned by Dealer/to be taken by the Company on outright
sale or lease: H
912 SUPREME COURT REPORTS [2010] 9 S.C.R.
A SI. Location Revenue Type of D'ship Category
No. Dist. Co. Owned/
Dealer owned
1. Ranirbazar West Dealer owned OP
Tripura (Women)
B 2. Agartala West Company ST
Tripura owned (Women)
Important Note
c (a) The candidate should furnish along with the application,
details of land, which he/she may make available for the
Retail Outlet.
(b) Considering the location of the land from the point of
view of suitability from commercial angle and rates
D
acceptable to IOCL (AOD), applicants already having land
and willing to transfer the land on ownership/long lease to
IOCL (AOD), would be given preference.
(c) If an applicant, after selection is unable to provide the
E land indicated by him/her in the application form within a
period of two (2) months from the date of Letter of Intent
(LOI), the Company will have the right to cancel the
allotment of dealership to him/her. Suitability of land will be
decided by the Company. There is no commitment from
F the Company for raking the offered land from the applicant."
"14. APPLICATION FORMS AND ENCLOSURES
COMPLETE IN ALL RESPECTS MUST BE SUBMITTED
IN DUPLICATE ALONG WITH NON-REFUNDABLE FEE
SO AS TO REACH THE OFFICE ADDRESS
G
MENTIONED ABOVE BEFORE THE CLOSE OF
OFFICE ON 19.03.2004."
4. In response to this advertisement, the appellant
submitted her application on 12.3.2004, for appointment of
H
MOUMITA PODDAR v. INDIAN OIL CORPORATION 913
LTD. [SURINDER SINGH NIJJAR, J.]
Retail Outlet Dealer in Open Category (Women) for the location A
at Ranirbazar. In her application, the appellant offered to set up
the dealership on land, purchased by her mother-in-law, being
C.S. Plot Nos. 2172, 2173 and 2174/4035 and another land
purchased by her father-in-law, Mr. Binoy Krishna Poddar,
measuring 1.36 Acres in Dag No.1075, Hal Dag No. 1679 of B
Khatian No.491 situated in Mouja Bridhya Nagar, Tehsil:
Khoyerpur, Bridhya Nagar at the periphery of Ranirbazar, the
entire area being commonly known as Ranirbazar. According
to the appellant, the aforesaid land being situated on the
Assam-Agartala Road, (National Highway-44) with the frontage c
of 51 .5 Metres on the road, is most suitable for the purpose of
setting up the Retail Outlet. Both her mother-in-law and father-
in-law furnished an undertaking that the said land could be used
by the appellant for the aforesaid purpose. They had duly
executed documents expressing their readiness and willingness D
to allow the appellant to use the aforesaid land for installation
of the retail outlet dealership and to lease out the same to
respondent No.1, on long term basis, if she was offered a letter
of intent. All the relevant documents were furnished with the
application for the said dealership.
E
5. On 18.03.2004, the respondent No.2, Smt Alpana Saha
submitted her application. She indicated in the application form
that she had suitable site readily available for the dealership.
Giving details of the land, she stated that she was offering two
lease deeds, being Deed No.381/ dated 16/3/2004; and Deed F
No.616/ dated 25/2/2004; in support of the land offered by her.
Reference is also made to a non-encumbrance certificate
relating to proposed site at "Location No.181 IFP 200 ft.". With
regard to dimension of plot, it is mentioned "Location No. II
frontage 42 metres depth 52". The lease deed dated G
16.03.2004 was to remain in full force from 16.3.2004 for a
period of 49 years, It specifically provides that respondent No.2
"shall carry on over the rented vacant landed property for the
purpose of Oil Business under 1.0.C. Limited in [Assam Oil
H
914 SUPREME COURT REPORTS [2010] 9 S.C.R.
A Division] DIGBOI Assam". However Clause 4 of the lease deed
provides as under:
"4 That, in no circumstances the second party will not sub-
let the leased out landed property to any person or party(s)
authority."
B
6. Clause 5 of the lease deed gives the option to
respondent No.2 to take further period of lease by executing a
fresh deed. The aforesaid lease deed is not a registered
document. It is, however, authenticated by a notary public at
C Agartala. By a further deed of tenancy agreement dated
18.3.2004, the terms and conditions contained in the lease
deed dated 16.3.2004 have been supplemented. In the
supplementing lease agreement dated 18.3.2004 it is provided
as under:
D
"The second party shall have right and/or power to create
sub-tenancy, or the sub-let or to create or grant lease in
favour of any person, individual or body corporate of the
property and/or in respect of the properties described in
the scheduled attached to the tenancy agreement dated
E
16.3.2004 as per terms and conditions as would be
determined by the second party for the tenure not
exceeding the terms what has been granted in the terms
and conditions as laid down in the said tenancy
Agreement dated 16.3.2004."
F
The aforesaid Clause undoubtedly removes the negative
covenant in the Lease Deed dated 16.3.2004. However, it
seems that even this Lease Deed is not registered.
G 7. On 25.05.2004, the appellant received a Registered
Letter from the Respondent No.1, calling upon her to appear
before the Interview Board on 16.06.2004 at Guwahati. The
appellant was asked to bring all the original documents, details
of whic'l had been submitted by her in her above said
H application. On 11.06.2004, the appellant was informed by
MOUMITA PODDAR v. INDIAN OIL CORPORATION 915
LTD. [SURINDER SINGH NIJJAR, J.]
Depot Manager (Marketing). Kunjaban, Agartala, of the A
respondent No.1 over telephone that the Survey Team of the
respondent No.1 would visit the sites offered by the respective
applicants on 12.06.2004 for the purpose of inspection of the
land offered by the applicants. Thereafter, on 12.06.2004, the
above Depot Manager (Marketing) informed the appellant that s
the visit of the Survey Team on 12.06.2004 had now been.
deferred to 14.06.2004. Subsequently, on 14.06.2004, the
appellant was informed that the proposed visit of the Survey
Team of the respondent No.1 had been cancelled and the
appellant would be subsequen!!Y informed of the date for the c
said inspection of land. However, the appellant did not receive
any such intimation nor was any inspection ever carried out by
the said Sur./ey Team.
8. The appellant has highlighted that the proposed
inspection was of paramount significance in ascertaining the D
desirability of the offered site for setting up the Retail Outlet.
The policy of the respondent No.1 stipulated that the technical/
commercial suitability of the land offered by the applicants
would be ascertained by a team of IOC Officers before the
Interview. E
9. On 16.06.2004, the interviews were conducted by the
respondent No.1 for appointment of Retail Outlet Dealers for
the abovementioned location of Ranir Bazar. Nine persons,
including the appellant and the Respondent No.2, appeared F
before the Interview Board. The interview board, upon
evaluation of the inter se merits of all the nine applicants, in
terms of the policy circular dated 4.9.2003, empanelled three
candidates in order of merit. Respondent No.2 is placed at
Sl.No.1 in order of merit. The appellant was not amongst the G
first three candidates and was consequently not empanelled.
After the declaration of the result, the site offered by respondent
No.2 was verified by respondent No.1 on 29.6.2004. By a
communication dated 8.7.2004, respondent No.2 was informed
that Letter of Intent had been issued in her favour.
H
916 SUPREME COURT REPORTS [2010] 9 S.C.R.
A 10. The action of respondent No.1 in offering the letter of
intent to respondent No.2 was challenged by the appellant
before the Guwahati High Court, Agartala Bench by way of writ
petition being W.P.(C)No.259/2004. Smt. Payel Biswas, one
of the unsuccessful candidates, also challenged the selection/
B appointment of respondent No.2 by way of Writ Petition (C)
No.256/2004. Both the writ petitions were decided by the
learned Single Judge by a common judgment and order dated
14.9.2004.
11. It was held that the selection of respondent No.2 was
C contrary to the applicable policy guidelines. The entire selection
process was vitiated on the ground of non-application of mind
and arbitrariness. It was observed by the learned Single Judge
that in the absence of site verification the selection committee
could not have adjudged the suitability of the site/land offered
D by the respective candidates. It was further held by the learned
Single Judge that the selection was arbitrary as it had been
made by taking into consideration the facts which did not exist.
It was observed by the learned Single Judge that the lease
deed dated 18.3.2004 could not have been produced before
E the interview committee. It is noticed by the learned Single
Judge that prior to the filing of the additional affidavit dated
28.5.2005 respondent No.2 had not mentioned in any of the
pleadings that lease deed dated 18.3.2004 was in fact
produced at the time of interview. It was, therefore, concluded
F by the learned Single Judge that lease deed dated 18.3.2004
was not in existence at the time of interview, but was
subsequently, i.e., long after the filing of the writ petition,
manufactured by the respondent to defeat the case of the
appellant and conversely to strengthen the case of the
G respondents.
12. We may notice here the observations made by the
learned Single Judge in regard to what we have noticed above.
These observations are as follows:
H "True, this agreement apparently refers to the earlier
MOUMITA PODDAR v. INDIAN OIL CORPORATION 917
LTD. [SURINDER SINGH NIJJAR, J.]
Tenancy Agreement dated 16/3/2004 and purports to A
confer additional benefits/advantages to the respondent
no: 2 allowing her the power to create sub-tenancy in
respect of land offered by her in favour of IOCL (AOD).
However, neither the counter-affidavits of the respondents
nor their additional affidavits filed by them prior to 28/5/ s.
2005 throw any light on the existence of this documents
even though it was projected to have been executed as
e_arly as 18/3/2004. It should have been, if there contention
is correct, in the custody of either of the respondents. No
· satisfactory explanation is forthcoming from any of them c
for this mysterious omission. In view of this, I am persuaded
to believe that Annexure 10 (tenancy agreement dated 18/
3/2004) was not in existence at the time of the interview
but was subsequently, i.e. long after the filing of this Writ
Petition, manufactured by them to defeat the case of the 0
appellant and conversely, to strengthen the case -Of
respondent No: 1. Consequently, reliance cannot be
placed upon this document to hold that the respondent No:
2, at the time of her interview, had any land of her own or
land for creating long lease to the IOCL(AOD). Therefore,
E
the Selection Committee has acted arbitrarily and grossly
erred in law in placing the respondent No.2 as the No.1
candidate in the merit panel."
"16. In the instant case, I have recorded my findings that
in the absence of site verification, which is the sine qua F
non for proper assessment on the suitability or otherwise
of the lpnd~ offered by the respective candidates, the
respo)lder:it No...1 and the Selection Committee constituted
by it have/violated the guidelines contained in the Brochure
issued by the).OCltd. and have not taken into account the G
relevant
I
factors for selection
/
of the dealership in question.
I have also concluded that no Tenancy Agreement was
produced by the respondent No.2 at the time of her
interview evidencing her right to transfer any land to the
respondent No.1 on long Iese. Upon those findings, I have H•
918 SUPREME COURT REPORTS. [2010] 9 S.C.R.
A no alternative but to hold that the entire selection process
for appointment of the dealership in question sands vitiated
on the ground of non-application of mind and arbitrariness.
It is, however, contepded by Mr. D.B. Sengupta, -tile
learned senior counsel for the respondent No.1, that _t~e
B guidelines contained in the Brochure of the Corporation are
merely instructions to be followed, have no force of law and
are, therefore not binding upon the respondent No.1.
According to him, while very effort was made by the
respondent No.1 to comply with such guidelines in the-
c selection process of the dealership in question, such
guidelines, in the nature of things, having no force of law,
any or every infraction thereof cannot have the effect of
vitiating the selection process. It is true that administrative
instructions or guidelines issued by the executive
authorities do not have the force of law like a statute
D
passed by legislatures and deviation frpm such
instructions/guidelines may not have the same effect as
violation of a statutory provisions. But it must be
remembered that these guidelines are not framed only to
be ignored or only to be observed in breach. On the
E contrary, they are framed to ensure fairness, transparency
and non-arbitrariness by the executive authorities in their
dealing with the public."
13. The learned Single Judge rejected the submission that
F there had been substantial compliance with the applicable
guidelines and that no manifest injustice has been caused to
the appellant. It is held that it was open to the respondents to
demonstrate that the course of action adopted in this case was
not arbitrary and was based on rational principles. The learned
G Single Judge declined to take into consideration that the pump
outlet has been in operation since 12.5.2005. The learned
Single Judge also held it to be irrelevant that huge amounts of
money had been spent by respondent No.2 in establishing the
retail outleC It was also considered to be irrelevant by the
H learned Single Judge that the retail outlet has been functioning
MOUMITA PODDAR v. INDIAN OIL CORPORATION 919
LTD. [SURINDER SINGH NIJJAR, J.]
regularly and to the benefit of general public. It was held that if A
the contentions of the respondents were accepted "then every
·unsuccessful bidder in public tender will be held barred by the
principles even if the tender process is vitiated by non
application of mind, illegality, irrationality or procedural
impropriety thereby sounding the death-knell for judicial review B
of administrative action. Therefore, the contention of the learned
senior counsel in this behalf has no force and is, accordingly,
rejected." With these observations the learned Single Judge
granted the following reliefs:
"For the reasons stated in the forgoing, W.P.(C) No.259
c
of 2004 is allowed. The letter of intent No. SM 2/8-482
dated the 8th July, 2004 issued by the respondent No.1
and the selection process in connection therewith are
hereby quashed. The respondent No.1 shall now start the
selection process afresh by constituting a Selection D
Committee, which shall consider the case of the petitioner
and other eligible candidates for allotment of the dealership
in question on the basis of the land documents etc.
submitted by them as on 16.06.2004 and in accordance
with the Brochure dated 01.11.2004 (or the Brochure/ E
guidelines applicable) ·issued by the IOC Ltd. and
thereafter makes the selection. It is made clear that the
Selection Committee shall not take into account the
Tenancy Agreement dated 18.03.2004 (Annexure-10), the
Sale Deed bearing No.1-13161dated15.12.2004 and the F
Sale Deed bearing No.1-13162 dated 15.12.2004, which
obviously came into existence long after the date of
interview. Having held that the respondent No.2 is not
entitled to any mark on land and infrastructure, the
respondent No.1 is directed to allow the respondent No.2 G
to wind up the Retail Outlet Dealership is question within
30 (thirty) days, of the receipt of this judgment at her own
cost of expenses. W.P. (C) No.256 of 2004 is hereby
dismissed. The parties in the two writ petitions are directed
to bear their own costs." H
920 SUPREME COURT REPORTS [2010] 9 S.C.R.
A 14. Against the aforesaid judgment in WP (C) No.259/
2004 respondents filed writ appeals being Writ Appeal Nos.53
and 54 of 2005. Both the appeals have been allowed and the
judgme·nt of the learned Single Judge was set asitle by the
impugned judgment dated 30.5.2008. The Division Bench
B noticed the three issues identified by the learned Single Judge
which are as follows:
First Issue: Suppression of material facts by the appellant
in her writ petition.
C Second Issue: Applicability of the norms for grant of
dealership as circulated by the brochure dated 1.11.2004 and
the compliance of the said norms by respondent No.1 -
Corporation in the matter of selection of respondent No.2.
D The Third Issue separately identified by the learned
Single Judge: Was the lease deed dated 18.3.2004 brought
on record by respondent No.2 in the writ petition a genuine and
acceptable document ~o. as to form the basis for deciding the
eligibility of respondent No.2 for the award of 25 marks in the
E selection process under the head "capability to provide land
and infrastructure/facilities". The Division Bench, accordingly,
confined the consideration of the matter to the aforesaid three
issues.
15. The Division Bench accepted the finding of the learned
F . Single Judge on the first issue and held that there was no
suppression of material facts by the writ petitioner, the appellant
herein. It is noticed that it was not the requirement of the
advertisement that the land documents had to be submitted
along with the application.
G
16. The Division Bench however did not accept the
conclusion of the learned Single Judge on the second issue
which was based on Clause 14 and the norms contained in the
brochure dated 1.11.2004. It was held that "A reading of policy
H circular dated 4.9.2003 would show that the said circular
MOUMITA PODDAR v. INDIAN OIL CORPORATION 921
LTD. [SURINDER SINGH NIJJAR, J.]
comprehensively lays down the norms for dealer selection A
under three different categories as already noted. Not only the
eligibility of the candidates and the selection procedure has
been set out, even three parameters on the basis of which the
selection is to be conducted by award of marks under different
heads have been spelt out in the Policy Circular dated B
4.9.2003." The affidavit filed by respondent No.1 was accepted .
wherein it was clearly stated that the selection has been held
in accordance with policy circular dated 4.9.2003. I! was,
therefore, held that since the policy circular dated 4.9.2003 held
the field on the date of the interview/sele.ction on 16.6.2004, c
the circular dated 1.11.2004 would have no application. It is
further observed by the Division Bench that under the policy
circular dated 4.9.2003 site verification prior to the interview
is not contemplated. It was introduced by the norms published
in the brochure! dated 1.11.2004. Therefore, the learned Single o.
Judge erred in holding that the selection process is vitiated as
the land of the appellant had not been verified prior to the
interview or the land of respondent No.2 was verified after the
interview.
17. With regard to the third issue, the Division Bench has E
concluded that even though the tenancy agreement dated
18.3.2004 has not been registered, it could still be a genuine
document. It has been held that r,_.,1 registration of the document
as required under Section 107 of the Transfer of Property Act
would not affect the genuineness of the document which stands F
established by the attestation of the document by a notary public
notified under the Notaries Act, 1952. Therefore, even though
the document may not have been before the Selection
Committee at the time of award of 25 marks to respondent
No.2, under the head of "capability to provide land and G
infrastructure/facilities" the existence of the document which has
to be accepted will not materially influence the end result, i.e.,
the aY"ard of 25 marks to respondent No.2. Consequently, it is
held that since the ultimate award of 25 marks in favour of
respondent No.2 will have to remain unchanged/unaltered the H
922 SUPREME COURT REPORTS [2010] 9 S.C.R.
A ·grant of dealership to respondent No.2 cannot be said to be
vitiated on the ground of arbitrariness.
18. We may notice here that the Writ Petition
I
(C) No.256
of 2004 filed by Payel Biswas was also dismissed by the
learned Single Judge. Her grievance in the writ petition was
8
against the failure of respondent No.1 to conduct spot
verification of the land offered by the candidates including her
own. Her candidature was, however, rejected on the ground that
her husband is a partner of Mis. Biswas and Sons an existing
C retail outlet dealing with Petroleum products, which is carrying
on such business at Agartala town. She was accordingly held
not to be eligible for dealership in terms of Clause 1(c) and (d)
of the advertisement. Consequently, the writ petition was
dismissed on the ground that she had no locus standi.
D 19. We have heard both the appedls together. Mr.
Pradeep Ghosh learned senior counsel appearing for the
appellant submitted that the entire selection process is vitiated.
It is submitted that the important note contained in the
advertisement shows that the suitability of the land offered by
E the candidate had to be considered from commercial angle. It
was necessary for the candidates to give details of the land
which could be offered on ownership/long lease to respondent
No.1. Such a candidate will have to be given preference. The
candidates were required to furnish details of the land which
F they may make available. An outer period of two months has
been prescribed to provide the land indicated in the application
form from the date of allotment. According to Mr. Ghosh, since
respondent No.2 was not in a position to offer land even on a
leasehold basis her candidature could not have been
G considered. Mr. Ghosh has placed strong reliance on the
negative covenant contained in Clause 4 of the lease deed
dated 16.3.2004 which was sought to be rectified by execution
of the supplementary lease deed dated 18.3.2004. Even
otherwise it could not have been relied upon as the same was
not registered. According to learned senior counsel, mere
H
MOUMITA POODAR v. INDIAN OIL CORPORATION 923
LTD. [SURINDER SINGH NIJJAR, J.]
notarization would not make it a valid lease, as it was for a term A
of 49 years. Therefore, on the date of the application
respondent No.2 was not having a valid lease in her favour.
Therefore, even if the lease deed had been furnished, the same
could not be taken into consideration. This would render the
decision of the selection committee arbitrary as no reliance B
could have been placed on a. non-existent document. Mr. Ghosh
then submitted that procedure provided in Clause 14 of the
brochure dated 1.11.2004 having been ignored, the selection
is vitiated on this ground alone. Mr.Ghosh then makes .a
reference to the norms for evaluating the candidates as c
contained in Clause 16(1) of the brochure. According to the
learned senior counsel, since respondent No.2 could not be
granted any marks under the category for "capability to provide
land and infrastructure/facilities" her selection by granting her
25 marks out of a total of 35 marks is clearly arbitrary and D
violates Article 14 of the Constitution.
20. Countering the submissions, Mr. P.K. Goswami,
learned senior counsel appearing for respondent No.2, submits
that the circular dated 1.11.2004 was not applicable in this
case. It came into force after the entire selection process was E
over and the letter of intent having been issued to respondent
No.2. Learned counsel furthP,r submitted that criteria for
evaluation of candidates are e1aborately stated in the policy
circular. dated 4.9.2003. On the basis of this circular,
respondent No.1 had issued the advertisement dated F
19.2.2004. The advertisement clearly stated that the applicant
shall furnish details of land which she may make available for
the retail outlet. There was no requirement for attaching any
document in the application. Merely because the appellant has
attached the documents, is of no consequence. Respondent G
No.2 had complied with the necessary requirements. Her
candidature was evaluated on the basis of the criteria laid down
in the circular dated 4.9.2003. The Division Bench correctly
concluded that the brochure dated 1.11.2004 has no application
to the facts of this case. Mr. Goswami submitted that the criteria H
924 SUPREME COURT REPORTS [2010] 9 S.C.R.
A under the circular dated 4.9.2003 were not as rigid as the
criteria under the circular dated 1.11.2004. The procedure
prescribed under this circular does not require any site
verification prior to the conduct of the interview. In support of
this submission, learned counsel had relied on Clause 5(2) of
B the Circular which only provided that the candidate will be
evaluated by the selection committee through interviews based
on the marking system as given in Annexure-A. Under these
criteria, the committee was required to prepare a panel of three
candidates in order of merit. Only thereafter, it was necessary
C to conduct investigation. The procedure contemplated under
Clause 14(1) of the brochure dated 1.11.2004 would not be
applicable in this case. Mr.Goswami then submitted that the
learned Single Judge wrongly held that the supplemental lease
dated 18.3.2004 was not produced by respondent No.2 at the
interview. He has made a reference to the pleadings of the
0
respondent No.2 and submitted that the lease deed dated
18.3.2004 was one of the original documents produced before
the interview board. All the applicants had been directed to bring
the original documents of all the enclosures as stipulated in the
application form. Even if the document was not registered, it
E could still be relied upon by the selection board as it had been
duly notarized. He submitted that there was no material before
the learned Single Judge to conclude that the document dated
18.3.2004 is a manufactured document. According to the
learned counsel, the genuineness of the document has rightly
F not been put in issue by the Division Bench, as it has been duly
notarized. Mr. Goswami then submitted that the respondent
No.2 had been correctly given 25 marks under the category
"capability to provide land and infrastructure/facilities". The
criteria contained in the circular dated 4.9.2003 did not require
G the candidate to be a land owner/lease holder. The only
requirement was that the candidate has a firm offer from the
land owner who is willing to give the same to the company. In
fact, even the candidate who can arrange land would also be
eligible. Therefore, according to Mr. Goswami, respondent
H No.2 has been correctly given 25 marks. The decision of the
MOUMITA PODDAR v. INDIAN OIL CORPORATION 925
LTD. [SURINDER SINGH NIJJAR, J.]
selection committee, according to him, is not against the A
provisions of the applicable policy and, therefore, not arbitrary.
Mr. Goswami then submitted that even though the appellant had
only submitted two undertakings from her mother-in-law and
father-in-law, she was also given 25 marks. Therefore,
respondent No.2 was in a better position compared to the B
appellant as she had offered an unregistered lease deed in her
favour whereas appellant had only furnished the two
undertakings given by her in-laws. He further submitted that the
appellant ha·1ing taken advantage of the same parameters
cannot possibly complain of any breach of Article 14 of the c
Constitution of India. Lastly, he submitted that in view of the
subsequent events, it would not be an appropriate case for this
Court to interfere with the judgment of the Division Bench in
exercise of extra ordinary jurisdiction under Article 136 of the
Constitution of India. Learned counsel highlighted that D
respondent No.2 has made huge investments to a tune of more
than rupees one crore to commission and operate the petrol
pump. At present she has outstanding loans of more than
rupees one crore. Even respondent No.1 has spent Rs.25 lakhs
or more in establishing the outlet. According to the learned E
counsel, to shut down the dealership at this stage would not be
in public interest. Learned counsel also brought to our notice
that by two sale deeds dated 15.12.2004, respondent No.2 had
· purchased substantial portion of the land. This fact was brought
to the notice of tile learned Single Judge through additional
affidavit dated 27.7.2005. It was, however, wrongly not taken F
into consideration. It is also brought to our notice that
subsequently by sale deed dated 14.12.2007 respondent No.2
has purchased even the remaining portion of the land. The
learned counsel added that the outlet of respondent No.2 has
been adjudged to be the best in the State of Tripura. Apart from G
this, learned counsel submitted that the appellant did not come
within the three empanelled candidates in the order of merit
and, therefore, no relief can be granted to her. In support of his
submission, the learned counsel relies on a number of
H
926 SUPREME COURT REPORTS [2010) 9 S.C.R.
A judgments of this Court, viz. :- Kedarnath Agrawal & Anr. Vs.
Dhanraji Devi & Anr. ( [2004] 8 SCC 76 paragraphs 16-31 ),
Rash pal Malhotra Vs. Satya Rajput ( [1987] 4 SCC 391 ),
Municipal Board of Pratabgarh Vs. Mahendra Singh Chawla
( [1982) 3 SCC 331 ), Taherakhatoon Vs. Salambin
B Mohammad ( [1999] 2 SCC 635 ) and AM.Allison Vs.
B.L.Sen ( [1957) SCR 359 ).
21. Mr. Parag P. Tripathi, learned senior counsel,
appearing for respondent No.1 has submitted that the aforesaid
selection was conducted at the time when respondent No.1 was
C trying to restructure the selection procedure. The policy with
regard to allotment of dealership was in a transient period after
the selection board had been disbanded. The effort of the
respondent No.1 was to make the criteria transparent. The
policy was undergoing refinements with issue of the successive
D circulars. He has made a reference to a number of successive
policy circulars which have been issued making a reference to
the provisions of the circular dated 4.9.2003. Learned counsel
submitted that respondent No.1 was looking for candidates
who were either owners of land or had firm offer Jrom land
E owners for purchase of land or those who could arrange land.
It was a flexible criteria not confined only to the owners or lease
holders of land. Learned counsel submitted that the policy has
been made uniformly applicable to all the candidates and
therefore the selection cannot be held to be arbitrary or violative
F of Article 14 of the Constitution of India.
22. We have considered the submissions made by the
learned counsel for the parties. We have also perused the
relevant clauses of the policy circular dated 4.9.2003 and the
G brochure dated 1.11.2004. The public notice dated 19.2.2004
stipulated that the candidate should furnish along with
application, details of land, which she may make available for
the retail outlet. This condition was certainly fulfilled by
respondent No.2. She had given the details of the land. No
document was required to be attached. Clause (b) of the
H
MOUMITA PODDAR v. INDIAN OIL CORPORATION 927
LTD. [SURINDER SINGH NIJJAR, J.]
important note stated that applicants already having land and A
willing to transfer the land on ownership/long lease to
respondent No.1 would be given preference. It appears to us
from the facts noticed above that neither the appellant nor
respondent No.2 would have been eligible for any preference.
Whilst the appellant had offered the undertakings given by her s
mother-in-law and father in law to make the land available on
lease, respondent No.2 was only in possession of a lease,
which contained a negative covenant. Therefore, the
candidature of both the appellant as well as respondent No.2
could only be considered under the category that they were c
prepared to make the site available.
23. The eligibility and the relative merit of the candidate
was clearly to be adjudged on the basis of the criteria contained
in the policy circular dated 4.9.2003. There could be no
deviation therefrom. This circular provides elaborate guidelines. D
The selection procedure is as follows:
"SELECTION PROCEDURE
5.2.1 Advertisement:
E
Selection of dealers will be done through advertisement
in the newspapers.
5.2.2 Application processing Fee:
F
An application processing fee (Non refundable) of
Rs.1000/- will be charged from the applicants other than
SC/ST. In case of SC/ST applicants, the application
processing fee will be Rs.500/-.
5.2.3 Selection Committee: G
The selection will be done by a Committee consisting of
3 'E' Grade officers of IOC from outside the State as
nominated by the Head of the State Office providing such
officers. H
928 SUPREME COURT REPORTS [2010] 9 S.C.R.
A The candidates will be evaluated by the Selection
Committee through Interviews based on the marking
system as given in Annexure A.
The Selection Committee will prepare a panel of 3
candidates and the approval for award of dealership will
B
be given by the State Head.
5.3 Preparation of Panel:
The Selection Committee will prepare a panel of 3
c candidates in order of merit. The panel will be finalized
immediately on completion of interview for a particular
dealership. The State Head will approve issuance of Letter
of Intent to the No.1 candidate in the merit panel.
5.4 Letter of Intent :
D
Letter of Intent will be issued to the No.1 candidate in the
merit panel after conducting necessary Field Investigation.
If the LOI to No.1 candidate has to be cancelled for any
reason like, he refuses to accept the dealership, is
E unwilling to give the land to IOC on acceptable terms within
a specified period etc., the LOI will be given to the next
candidate in the merit panel with the approval of the State
Head."
Clause 6.7 provides for selection of site/location as per
F
existing guidelines in this regard. Clause 7 provides that all
eligible candidates will be called for interview by Committee
consisting of three officers of IOC. Evaluation parameters of the
candidates are set out in Cl~use 7 .1 which is as under:
G "7 .1 Evaluation Parameters:
The selection committee will Interview the candidates as
per the following evaluation criteria:
H
MOUMITA PODDAR v. INDIAN OIL CORPORATION 929
LTD. [SURINDER SINGH NIJJAR, J.]
Retail Outlet: A
Sr. Parameters Marks
No.
Retail SKO-
Outlet· LOO B
a. Capability to provide land 35 35
and infrastructure /facilities .
b. Capability to provide finance 25 35
24 .. The detailed evaluation system is provided in C
Annexure-A to the instruction. The relevant portion of the
evaluation criteria and weightage for selection of dealer was
as under:
"Evaluation criteria and weightage for selection of D
dealer:
The evaluation criteria has been designed as under to
maintain uniformity, objectivity, transparency and the
methodology of assessment has been designed for ease
E
of quantification.
Each candidate during the interview will be assessed by
the Selection Committee broadly under the following
parameters:
F
Retail Outlet
a. Capability to provide land and infrastructure/
facilities 35 marks
b. Capability to provide finance 25 marks G
C. Educational qualifications 15 marks
d. Capability to generate business 10 marks
e.1 Age 4 marks
f. Experience 4 marks
H
930 SUPREME COURT REPORTS [2010) 9 S.C.R.
A g. Business ability/acumen 5 marks
h. Personality 2 marks
Allocation of m;:irks on various parameters
B Existing Sub Description Marks Details/alloca-
Head heads tion of marks
Land Suitable Owns 35 Marks to b'e
and in- land for land/has allotted,
frastru- retail firm offer owns land and
c cture outlets from land willing to give to
owner/can company: 35,
arrange has firm offer and
land willing to give to
company: 25,
D owns land and not
willing to give to
company but is
willing to use for
development of
Retail Outlet: 20,
E
firm offer but not
willing to give to
company but is
willing to use for
development of
F Retail Outlet : 15
,
Sub total 35"
25. Both the appellant as well as respondent No.2 were
G assessed on the basis of the aforesaid criteria and secured
25 marks each out of a total of 35 marks. From the record, it
appears that on the date of the application, respondent No.2
would not fall under the category of land owner. She was,
however, a lease holder, but was unable to create a sub lease,
H in view of the negative covenant contained in Clause 4 of the
MOUMITA PODDAR v. INDIAN OIL CORPORATION 931
LTD. [SURINDER SINGH NIJJAR, J.]
lease deed dated 18.3.2004. Furthermore in the application, A
she did not make available any other material to show that she
could make the land available. She, however, claims to have
produced the supplementary lease deed dated 18.3.2004, at
the time of the interview. But there appears to be no material
on the record to indicate that it was actually produced before B
the Interview Board. Even at the time of hearing, no material
was produced before us by any of the respondents to show that
it was actually produced before the Interview Board. In such
circumstances, the learned Single Judge, in our opinion,
correctly observed that the lease deed dated 18.3.2004 was C
perhaps not produced before the Interview Committee.
26. We, however, find that the Single Judge has
unnecessarily jumped to the conclusion that it was not a genuine
document. It had been duly notarized, therefore, it could not be
said to be a fake document in the absence of any other D
material. In our opinion, the Division Bench has correctly
accepted the genuineness of the document. Non-registration
of lease as required under Section 107 of the Transfer of
Property Act, 1882, may affect the legal rights of the parties
inter se. But here Respondent No.2 is not seeking to enforce E
any such rights. She merely offered the lease deed as proof of
her "capability to provide land" for being used by Respondent
No.1 as a Retail Outlet Dealership. By virtue of Important Note
(c) of the Public Notice dated 19.2.2004, respondent No.2
could make the land available within two months of the issue F
of Letter of Intent, which was issued on 8.7.2004. This,
however, will not change the legal position. Even if the second
lease deed is genuine, the same was not available before the
interview board. No material was placed before this court to
show that the document was in fact available at the time when G
the interview was conducted. Therefore, she could not have been
allotted any marks, for her capability to provide land, in view of
th·e negative covenant contained in the lease deed dated
16.3.2004.
H
932 SUPREME COURT REPORTS [2010] 9 S.C.R.
A 27. A clear cut procedure has been laid down in the
circular 4.9.2003 for making the selection under Clause 5. It is
clearly provided that the candidates will be evaluated by the
selection committee through interviews based on the marking
system as given in Annexure-A. Annexure-A clearly stipulates
s three categories of candidates, namely, i) owner of the land
who is willing to give the land to respondent No.1 by sale/lease;
ii) individuals who have firm offers from land owner who are
willing to give the land to respondent No.1; and iii) candidates
who can arrange land. Both on the date of the application and
C the date of the interview, in our opinion, the respondent No.2
did not fall within any of the aforesaid categories. Therefore,
her selection was vitiated, as the Selection Committee has
deviated from the criteria laid down in the Circular dated
4.9.2003. In the absence of the lease deed dated 18.3.2004,
the Interview Committee had no material before it, to award
0
any marks to respondent No.2, against the column "capability
to provide land".
28. There is hardly any difference in the provisions
contained in the circular dated 4.9.2003 and the brochure
E dated 1.11.2004 with regard to the candidate's capability to
provide land. Clause 16(1) of the brochure dated 1.11.2004
contained the same provision as the provisions contained in
Annexure A of the circular dated 4.9.2003. The brochure dated
1.11.2004 clarified the parameters which were applicable to
. F individuals in the allocation of marks. Under the parameter "land
and infrastructure" ; sub head suitable land and retail outlet
provides a clear description of the desired candidates. In
substance, however, the provision in both the circulars dated
4.9.2003 and the brochure dated 1.11.2004 are identical. On
G the issue of allocation of marks, therefore, it would have made
no difference as to whether the candidature of the appellant
and the respondent No.2 had been considered under either of
the ~uidelines.
29. The difference between the circular dated 4.9.2003
H
MOUMITA PODDAR v. INDIAN OIL CORPORATION 933
LTD. [SURINDER SINGH NIJJAR, J.]
and the brochure dated 1.11.2004 is that under the latter, A
Clause 14(1) postulates that the site verification shall be before
the interview for that location. But this precondition, as noticed
by the Division Bench, could not be made applicable to the
selection proces~ lfJhich had been completed. The interview in
the ongoing selection has been held on 4.6.2004. The panel, B
according to Clause 5.2.3 and Clause 5.3 is to be prepared
immediately on the completion of interview. Such a panel was
duly prepared. It is the accepted position before us that the
appellant did not fall within the panel of three most meritorious ·
candidates. Thereafter, according to Clause 5.4, the Letter of c
Intent had to be issued to the candidate at No.1 of the merit
list. Respondent No.2 being in such position was given the
Letter of Intent on 8.7.2004. The brochure was published after
the letter of intent was issued to respondent No.2. A provision
which was not in existence when the selection procedure was D
completed could have had no application, unless it is made
retrospective in operation.
30. Having said all that, we may now consider the question
as to whether it was necessary for the learned Single Judge to
quash the entire selection. We are of the considered opinion, E
that in the peculiar facts of this case, the learned Single Judge
adopted a very pedantic and doctrinaire approach to a problem
which in fact, had to be viewed pragmatically. The Learned
Single Judge not only failed to take note of the ground realities,
but ignored the relevant clauses of the policy circular dated 4th F
of September, 2003. Under the aforesaid Circular, upon the
selection and appointment of respondent No.2 being declared
illegal, the entire selection could not have been held to be
vitiated. In such circumstances, the Letter of Intent would be
issued to the next candidate in the panel of three, in terms of G
Clause 5.4. This Clause specifically provides that if the letter
of intent is cancelled for any reason, it will be given to the next
candidate in the merit list. In this case, even such an eventuality
would not have arisen, as the candidates at Nos.2 and 3 were
not the writ petitioners before the High court. Therefore, in our H
934 SUPREME COURT REPORTS (2010] 9 S.C.R.
A opinion, the learned Single Judge needlessly set aside the
entire selection. At the same time the Division Bench also
committed an error of law, in upholding the selection of
respondent No.2.
B 31. In view of our findings recorded above, the normal
order would be to set aside the impugned judgment of the
Division Bench. Further direction would have been to offer the
dealership to the next candidate on the panel of three. But
these candidates have shown no interest in these proceedings.
In these circumstances, the learned counsel for respondent
C No.2 has made strenuous efforts to persuade the Court, not to
interfere in the grant of the dealership to respondent No.2. The
same prayer was also made before the learned Single Judge.
It was, however, rejected with the observations reproduced in
the earlier part of the judgment. The learned Single Judge
D rejected the submission by placing reliance on a judgment of
this court in V. Purushotham Rao Vs. Union of India and
Others ( (2001] 10 SCC 305 ). In our opinion, the aforesaid
judgment was rendered under some very peculiar and
exceptional circumstances. It was a case where allotment of
E retail outlets or petroleum products had been made by a
Minister in violation of all norms while exercising his
discretionary powers for making the allotments. These
allotments had been made in the absence of any guidelines.
The circumstances were such that this court was constrained
F to make the observations relied upon by the learned Single
Judge which are as under:
"23. So far as the fifth question is concerned, it is no doubt
true that the appellants have invested considerable amount
in the business and have operated it for about eight years
G
but even on equitable considerations, we do not find any
equity in favour of the appellants. The conduct of the
Minister in making the discretionary allotments has been
found to be atrocious, in the very three-Judge Bench
decision of this Court and in relation to similar allotments
H
MOUMITA PODDAR v. INDIAN OIL CORPORATION 935
LTD. [SURINDER SINGH NIJJAR, J.]
made by the said Minister in favour of 15 persons who A
were respondents in common cause case. This Court
came to hold that the allotments of the public property had
been doled out in an arbitrary and discriminatory manner
and the appellants had been held to be beneficiaries of
such arbitrary orders and allotments. The question of B
granting the allottees relief on equitable consideration did
not arise at all, for the same reasons in a case like this, a
sympathetic consideration on the ground of equity w.ould
be a case of misplaced sympathy and we refrain from
granting any relief on any equitable consideration. In our c
view, the appellants do not deserve any equitable
consideration."
The above observations make it abundantly clear that this
Court was dealing with a situation where the concerned
Minister had bestowed undue favour on the appellants in that D
case. Such is not a situation in the present case. Therefore,
the aforesaid observations would be of little assistance to the
appellant herein.
32. The facts and circumstances of this case are not such E
where this court would be reluctant to come to the aid of a
selected candidate, against whom there are no allegations of
manipulation or any undue favour having been shown to her. In
our opinion, this is not a case of such an exceptional nature
where equitable considerations would be impermissible. The F
peculiar facts of this case are such that it would be appropriate
for the Court to take into consideration the subsequent events,
in order to do complete justice between the parties. In the case
of Kedarnath (supra) this Court delineated the circumstances
in which the subsequent events could be taken into G
consideration in the peculiar facts and circumstances of a
particular case. It was emphatically observed as follows:
"16. In our opinion, by not taking into account the
subsequent event, the High Court has committed an error
H
936 SUPREME COURT REPORTS (2010] 9 S.C.R.
A of law and also an error of jurisdiction. In our judgment, the
law is well settled on the point, and it is this: the basic rule
is that the rights of the parties should be determined on
the basis of the date of institution of the suit or proceeding
and the suiUaction should be tried at all stages on the
B cause of action as it existed at the commencement of the
suit/action. This, however, does not mean that events
happening after institution of a suiUproceeding, cannot be
considered at all. It is the power and duty of the court to
consider changed circumstances. A court of law may take
c into account subsequent events inter a/ia in the following
circumstances:
(1) the relief claimed originally has by reason of subsequent
change of circumstances become inappropriate; or
D (i1) it is necessary to take notice of subsequent events in
order to shorten litigation; or
(iii) it is necessary to do so in order to do complete justice
between the parties.
E (Re Shikharchand Jain v. Digamber Jain Praband Karini
Sabha, SCC p.681, para 10.)"
In view of the above, we find that the course adopted by
the Division Bench was appropriate, as well as being legally
F correct.
33. It appears to us that the learned Single Judge wrongly
brushed aside the observations made by this Court, in the case
of Rashpal Malhotra (supra) wherein it is observed as follows
.-
G
"7. It has to be borne in mind that this is an appeal under
Article 136 of the Constitution. This Court in Heavy
Engineering Corporation Ltd., Ranchi v. K. Singh and
Co., Ranchi expressed the opinion that although the
H power;; of this Court were wide under Article 136 it couid
MOUMITA PODDAR v. INDIAN OIL CORPORATION 937
LTD. [SURINDER SINGH NIJJAR, J.]
not be urged that because leave had been granted the A
court must always in every case deal with the merits even
though it was satisfied that the ends of justice did not justify
its interference in a given case. It is not as if, in an appeal
with leave under Article 136, this Court was bound to
decide the question if on facts at the later hearing the court s
felt that the ends of justice did not make it necessary to
decide the point. Similarly in Baigana v. Deputy Collector
of Consolidation this Court expressed the view that this
Court was more than a court of appeal. It exercises power
only when there is supreme need. It is hot the fifth court of c
appeal but the final.court of the nation. Therefore, even if
legal flaws might be electronically detected, we cannot
interfere save manifest injustice or substantial question
of public importance. "
D
"It has to be borne in mind that this Court in exercising its
power under Article 136 of the Constitution acts not only
as a court of law but also as a court of equity and must
subserve ultimately the cause of justice." (Emphasis E
supplied)
These observations are f" ·Hy applicable to the present
case.
34. Again in the case of Municipal Board of Pratabgarh F
(supra) this Court observed as under:-
"6. What are the options before us. Obviously, as a logical
corollary to our finding we have to interfere with the
judgment of the High Court, because the view taken by it G
is not in conformity with the law. It is at this stage that Mr
Sanghi, learned counsel for the respondent invited us to
consider the humanitarian aspect of the matter. The
submission is that the jurisdiction of this Court under Article
136 of the Constitution is discretionary and, therefore, this
H
938 SUPREME COURT REPORTS [2010] 9 S.C.R.
A Court is not bound to tilt at every approach found not in
consonance or conformity with law but the interference may
have a deleterious effect on the parties involved in the
dispute. Laws cannot be interpreted and enforced divorced
from their effect on human beings for whom the laws are
B meant. Undoubtedly, rule of law must prevail but as is often
said, 'rule of law must run akin to rule of life. And life of
law is not logic but experience'. By pointing out the error
which according to us crept into the High Court's judgment
the legal position is restored and the rule of law has been
c . ensured its pristine glory. Having performed that duty under
Article 136, is it obligatory on this Court to take the matter
to its logical end so that while the law will affirm its element
of certainty, the equity may stand massacred. There comes
in the element of discretion which this Court enjoys in
exercise of its extraordinary jurisdiction under Article 136.
D
In approaching the matter this way we are not charting a
. new course but follow the precedents of repute. In Punjab
Beverages (P) Ltd., Chandigarh v. Suresh Chand, this
Court held that the order of dismissal made by the appellant
in that case in contravention of Section 33(2)(b) of the
E Industrial Disputes Act did not render the order void and
inoperative, yet this Court did not set aside the order of
the lower court directing payment of wages under Section
33(2)( c) and affirmed that part of the order. While recording
this conclusion this Court observed that in exercise of the
F extraordinary jurisdiction this Court was not bound to set
aside every order found not in conformity or in consonance
with the law unless the justice of the case so requires. The
Court further observed that demands of social justice are
paramount while dealing with the industrial disputes and,
G therefore, even though the lower court was not right in
allowing the application of the respondent, the Court
declined to exercise its overriding jurisdiction under Article
136 to set aside the order of the l_abour Court directing
the appellant to pay certain amount to the workers.
H Following this trend in State of M.P. v. Ram Ratan, this
MOUMITA PODDAR v. INDIAN OIL CORPORATION 939
LTD. [SURINDER SINGH NIJJAR, J.]
Court while holding that the High Court was in error in A
directing reinstatement of the respondent in service, took
note of the fact that by passage of time the respondent
superannuated. The Court paid him back wages till the day
of superannuation in the round sum of Rs.10,000. In other
words, while formally setting aside the order of the High B
Court directing reinstatement, treated the respondent in
that case in service and paid him back wages because
physical reinstatement on account of passage of time was
not possible. From the academic's point of view the later
decision is the subject-matter of adverse comment but we c
feel reasonably certain that it stems from narrow
constricted view of the jurisdiction of the Court under Article
136. We adhere to our view after meticulously examining
the learned comment. Having noted that criticism, we still
adhere to the view that legal formulations cannot be
0
enforced divorced from the realities of the fact situation of
the case. While administering law it is to be tempered with
equity and if the equitable situation demands afteysetting
right the legal formulations not to take it to the logical end,
this Court would be failing in its duty if it does not notice
E
equitable considerations and mould the final order in
exercise of its extraordinary jurisdiction. Any other
approach would render this Court a normal Court of appeal
which it is not."
These observations leave no manner of doubt that the court F
would be failing in its duty if it does not take due notice of the
equitable considerations and mould the relief, to do coJi1plete
justice between the parties.
35. The aforesaid observations were reiterated in the case G
of Taherakhatoon (supra):
"19. We may in this connection also refer to Municipal
Board, Pratabgarh v. Mahendra Singh Chawla~ wherein
it was observed that in such cases, after declaring the
H
940 SUPREME COURT REPORTS [2010] 9 S.C.R.
A correct legal position, this Court might still say that it would
not exercise discretion to decide the case on merits and
that it would decide on the basis of equitable
considerations in the fact situation of the case and "mould
the final order."
B
36. In our opinion, the facts and circumstances of this case
are such that the approach adopted by the Division Bench, in
taking note of the subsequent events, was appropriate and
legally permissible. The clumsy handling of the entire selection
process by respondent No.1 ought not to result in
C disqualification of the respondent No.2 who was perhaps not
properly guided. There are no allegations made that respondent
No.2 has either manipulated the selection or that any undue
favour has been shown to her by the Selection Committee. We
also can not ignore the fact that candidates at Nos.2 and 3 of
D the panel have not challenged the selection and grant of
dealership to respondent No.2. The appellant could also not get
any relief, not being in the panel of selected candidates. It is
also to be noted that the dealership has been operating for
more than five years. It is stated to be one of the best, if not
E the topmost, outlet in the State. Entire infrastructure has been
made available with the combined efforts of respondents No.1
and 2. Closure of the dealership, at this juncture, would result
in disastrous consequences to respondent No.2. We have
already noted that the decision of the Selection Committee is
F rendered arbitrary due to non-observance of the stipulated
criteria in the Policy Circular dated 4.9.2003 and the Public
Notice dated 19.2.2004. We have also noted that it is not a
case where the selection is vitiated by proved mala fides; nor
any allegations of undue favour being shown to respondent No.2
G have been made. Even leaving aside the loss which would be
incurred by respondent No.2 it would not be possible for this
court to ignore the far reaching consequences of cancellation
of the retail outlet in the small State of Tripura where such
facilities are not in abundance. Therefore, keeping in view the
H over all public interest, we decline to exercise the extra ordinary
·-~
MOUMITA PODDAR V, INDIAN OIL CORPORATION 941
LTD. [SURINDER SINGH NIJJAR, J.)
jurisdiction of this court under Article 136 of the Constitution of A .
India for setting aside the selection made in favour of
respondent No.2.
37. Both the appeals are dismissed with no order as to
costs.
B
K.K.T. Appeals dismissed.
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