CWP No. 2858 of 2009(O&M) 1 CWP No. 9983 of 2011(O&M) IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH CWP No. 2858 of 2009(O&M) Date of decision: September 7,2011 Navpreet Kaur ....... Petitioner Versus Indian Oil Corporation through its Manager and another ........Respondents CWP No. 9983 of 2011(O&M) Naresh Kumar ....... Petitioner Versus Indian Oil Corporation through its General Manager and another ........Respondents CORAM: HON'BLE MR. JUSTICE K. KANNAN Present:- Mr. Salil Sagar, Senior Advocate with Mr. Samrath Sagar, Advocate for the petitioner in CWP No.9983 of 2011 and for respondent No.2 in CWP No.2858 of 2009. Mr. Girish Agnihotri, Senior Advocate with Mr. Binayjeet Sheoran, Advocate, Mr. Vijay Pal, Advocate and Mr. Arvind Seth, Advocate for the petitioner in CWP No.2858 of 2009 and for the respondent in CWP No.9983 of 2011 Mr. Ashish Kapoor, Advocate and Mr. Mahipal Singh, Advocate for the respondent No.1. **** 1. Whether reporters of local papers may be allowed to see the judgment ? 2. To be referred to the reporters or not? 3. Whether the judgment should be reported in the digest? K. Kannan, J (oral). 1. Both these writ petitions are connected. Writ CWP No. 2858 of 2009(O&M) 2 CWP No. 9983 of 2011(O&M) petition 2858 of 2009 is at the instance of the petitioner in response to a notice issued by the Corporation that her application for awarding of LPG distributorship was rejected since she had not attached Annexure -A (affidavit) along with a medical certificate. The writ petition was filed on an express averment that the documents had been indeed attached and at the time when the Court ordered notice on 25.2.2009, the Court directed that the petitioner would also be interviewed for LPG distributorship on the terms that she was fully eligible. As it turned out on an appraisal of all relevant factors the petitioner appears to have secured the highest marks on the basis of documents and the appraisal done at the interview. The petitioner in CWP No. 9983 of 2011 has been ranked 2 and he has his own grievance that certain marks have not been properly awarded and he must have ranked as number 1. In any event the success or otherwise of the person ranked number 2 would depend on an adjudication whether the petitioner in CWP No.2858 of 2009 is entitled to favourable consideration or not. 2. On an issue of fact of whether the petitioner had submitted all the documents which were set out in the advertisement, I had called for and secured the original file from the Corporation. The check list of scrutiny of application as regards the petitioner-Navpreet Kaur brings out that two documents namely Annexure-A(affidavit) and the medical certificate had not been attached. If it were to be contended that this check list cannot reflect the true state of affairs and this could have been entered wrongly, the petitioner has appended her own index. All documents that she had sent along with her application are also available for inspection. Along with her application the petitioner has submitted 23 documents and duly paginated, in that document No.7 is purported to be a health certificate at page 13 which is OPD Slip from the hospital. It is not a medical CWP No. 2858 of 2009(O&M) 3 CWP No. 9983 of 2011(O&M) certificate. Amongst none of the other documents is there a reference to submission of Annexure-A (affidavit). I cannot therefore accept the contention that the petitioner had submitted all the documents which had been set out in the advertisement. 3. Learned Senior Counsel for the petitioner has four contentions to make i) All the documents had been sent and since there was no particular proforma to be filled up for medical certificate, the document submitted must have been accepted. As regards the affidavit in Annexure-A, copy of the document which is produced before the Court would show that stamp papers had been purchased just about that time with distinct numbers and a reference to the Notary who had attested the documents had also been made; ii) in the manner of evaluation neither the affidavit nor the medical certificate has any relevance and therefore there could be no sanctity to these documents even if it were to be assumed that they were not sent; iii) the interview itself had not commenced at that time and when these documents were produced subsequently that should have been accepted and no prejudice could have been caused to any other candidate; iv) there was no specific condition made anywhere in the advertisement that submission of all documents were mandatory and if any document had not been sent, the application was liable for rejection. 4. As regards the contention that there was no proforma for a medical certificate and therefore the OPD slip could have been accepted, it defies logic that the certificate could ever be misunderstood by the applicant to include even an OPD slip. Learned Senior counsel for the petitioner would state that in subsequent years even the requirement of the medical certificate had been removed as inessential. I cannot allow that to prevail for, if the document had not been sent, it will be no answer for a person to state that no particular proforma was CWP No. 2858 of 2009(O&M) 4 CWP No. 9983 of 2011(O&M) prescribed. The Medical Council Regulation of 2003 lays down that only an approved medical practitioner registered with the Medical Council is competent to issue a certificate. An OPD slip could not be equated to medical certificate nor it could be stated that the petitioner was ignorant, for, ignorance of law is not an excuse. Assuming that the medical certificate itself is not very relevant, contention that the non-filing of affidavit could also be treated as irrelevant since evaluation is not undertaken on the basis of the affidavit again, in my view, misses the point. The affidavit is not a formality but the affidavit states the essentials of a person's basic eligibility to apply for distributorship and gives appropriate information to the Interviewing Authority to decide to call the person for interview. In other words, the affidavit is the basic norm on which the entire consideration of whether the selection could be made. It is another way of saying that it is the foundation on which the entire edifice could be built. This Court had an occasion to deal with this issue in Ms. Reena Devi Vs. The Indian Oil Corporation Ltd.and others in CWP No. 16286 of 2009 where this Court referring to the affidavit , the Court observed as follows:- “Concededly, the petitioner had not submitted this affidavit along with her application form. As per the counsel for the petitioner, this is highly technical or super technical objection and could not consider that material to result in disqualification of the petitioner. As per the counsel, financial capacity of the petitioner to run this retail outlet, her educational qualification and other such things are more important compared to the condition of submitting of relationship affidavit. Counsel would point that the petitioner is a postgraduate and had Rs.12 lacs to show in her deposit whereas a candidate who is allotted this retail outlet has no finances to show and is just a Matriculate. In my view, the question of considering the comparative merit of applicants would arise if the CWP No. 2858 of 2009(O&M) 5 CWP No. 9983 of 2011(O&M) petitioner had been considered eligible and had made her application fulfilling all the requirements. To urge that requirement of filing the affidavit is only a technical requirement, is misplaced. This requirement is important aspect and cannot be termed as technical requirement but is an essential condition right incorporated in the brochure.” I will therefore, discard the contention that the affidavit was not essential and this need not have been sent. I have already held that the contention that the affidavit had been sent could not be true, for, in the list of documents that the petitioner has indexed the affidavit does not find a place. 5. The further point that is required to be seen is, if, after all an interview had not taken place at the time when she had filed the writ petition and by the time when the interview was done, the petitioner had filed all the documents that ought to be sufficient fulfillment of the requirement. Learned counsel refers to a judgment again of this Court in Smt. Harsimran Kaur Vs. Union of India and another in CWP No.2690 of 2009, which points out to a situation where the Court had allowed for application to be filled up for pages 4 and 5 and directed that filled up application be treated along with other papers and consider the candidature of that person. In the abovesaid case, there is a line of reasoning that so long as the interview had been conducted, no prejudice could arise. In that particular case, the observations were in the context of pages which had been found missing from the file and there was definite cause to suspect that the documents went missing in the custody of the Corporation. In this case if the index had shown that the petitioner had sent the affidavit in the prescribed form, but the Corporation had contended that the affidavit has not been received, then it would give a scope for CWP No. 2858 of 2009(O&M) 6 CWP No. 9983 of 2011(O&M) suspecting that the document could have gone missing only in the custody of the Corporation. On the other hand, there is no reference as having been appended along with the application. The above said decision will, in my view, therefore not apply. 6. Learned Senior counsel for the petitioner states that if on merit, the petitioner has obtained highest marks it will be unfair to reject her candidature on a technical view that documents had not been received before the cut off date. In requiring the documents to be sent before a date, the Corporation puts all persons on a level playing field. If the contention that after all, documents had been given before the interview and therefore no candidate could have been prejudiced were to be accepted then there could be no logic in fixing any cut off dates. Dates could be extended to even admit of a situation of the Corporation being compelled to receive application today, for after all, till date, no allotment has been made. A cut off date is not a date which can be extended by a Court at its whims. It is to enable a definite class of persons who would obtain reckoning as candidates from among whom the successful candidate could be picked up. 7. Learned Senior counsel for the petitioner would argue that there is no mandatory requirement for these documents to be filed. I cannot accept this contention when especially the advertisement contains a clause that runs as under:- “Application received after the cut off date including postal delay, and those without accompanying valid documents including application fee or incomplete in any respect will not be considered and no correspondence will be entertained by IOC in such cases whatsoever.” The absence of any document would definitely disqualify a person. The mandatory requirement of the affidavit and its importance is seen from the CWP No. 2858 of 2009(O&M) 7 CWP No. 9983 of 2011(O&M) fact that even in the body of advertisement, the proforma for the affidavit has been prescribed. 8. For all the reasons, the petitioner is not entitled to a favourable consideration and the writ petition No.2858 of 2009 would be require to be dismissed. Consequently, the person who stood 2nd would be required to be treated as number 1 candidate. I do not think it is necessary to examine whether the marks ought to have been more. Even without any such appraisal, if the first candidate is removed from ranking, the second candidate would be entitled to such allotment. Writ petition No. 9983 of 2011 would consequently stand allowed. (K. KANNAN) JUDGE September 7 , 2011 archana