Allowed

Shri Pundalik Tukaram Chowgule v. Union of India through the Secretary, Petroleum Dept., and 5 Ors.

Bombay HC5 Nov 2012WP/497/2011

Case brief

AI extract

What is this about?

The court quashed the rejection of the petitioner's documents for a retail dealership tender. It held that where the tender notice did not specify the mode or authority for attesting financial documents (like Fixed Deposit Receipts), self-attestation accompanied by a declaration was permissible, especially since originals were required to be produced for verification at the interview stage.

What did the court decide?

Rule made absolute; merit list set aside; respondents directed to reassess petitioner's documents and allocate appropriate marks as per procedure, subject to verification of originals at interview.

Shri Pundalik Tukaram Chowgule Vs Union of India… — Service and Employment | Bombay HC (2012)

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IN THE HIGH COURT OF BOMBAY AT GOA

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WRIT PETITION NO. 497 0F 2011

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Shri Pundalik Tukaram Chowgule, s/o. Shri Tukaram Babu Chowgule, aged about 44 years, A/P Madilage (Budruk), Tahisil Bhudargad, Dist. Kolhapur, 416 209 and presently in Goa ….. Petitioner.

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V e r s u s

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1 Union of India

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Through the Secretary, Petroleum Department, New Delhi.

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2 Hindustan Petroleum Corporation Ltd. Having its registered office at Petroleum House, 17, Jamshedji Tata Road, Churchgate, Mumbai – 400 020 and Vasco Regional Office Retail at PO Box 48, F.L. Gomes Road, Vasco-da-Gama, Goa – 403 802 Through its Managing Director

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3 Senior Regional Manager, Hindustan Petroleum Corporation Ltd. Vasco Regional Office Retail at PO Box 48, F.L. Gomes Road,

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Vasco-da-Gama, Goa – 403 802

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	2	WP497/11
4	Smt. Rajashri Vijay Sawardekar D/o. Shri. Shrikant Chavan, aged abt 32 years, Rajigare Galli, At: Koor Post, Koor, Taluka Bhudargad, Dist. Kolhapur,
	Maharashtra – 416 209
5.	Shri Nandakumar Sadashiv Dessai, S/o. Shri Sadashiv Joti Dessai, aged abt 34 years, At-Post-Sheloli, Taluka Bhudargad,
	Dist. Kolhapur, Maharashtra -416 210
6	Shri. Prakash Aanadrao. Abitkar, S/o. Shri Anandrao D. Abitkar, Aged abt 36 years, 1666,	….Deleted
	Behind Abitkar Complex,
	Gargoti, Taluka Bhudargad, Dist. Kolhapur, Maharashtra – 416 209	….. Respondents.

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Mr. S.D. Padiyar, with Mr. P. Arolkar, Advocates for the petitioner. Mr. C.A. Ferreira, Assistant Solicitor General, for respondent no.1. Mr. A.D. Bhobe, Advocate for respondents no. 2 and 3.

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Mr. Parag Rao, Advocate for respondent no.4

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CORAM : S. J. VAZIFDAR & U. V. BAKRE, JJ.

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RESERVED ON :09/10/2012

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PRONOUNCED ON :05/11/2012

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JUDGMENT (PER S.J. VAZIFDAR,J):

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Respondents no. 2 and 3 are the Hindustan Petroleum Corporation Limited (hereinafter referred to as 'HPCL') and its Senior Regional Manager. Respondent no.4 is one Smt. Rajashri Vijay Sawardekar who has been held to be the successful tenderer.

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The petitioner seeks a writ of certiorari to quash and set aside a merit list and the selection process for a Retail Outlet Dealership and a letter of intent dated 19/08/2011 issued by respondent no.2 for the proposed Retail Outlet Dealership in favour of respondent no.4. The petitioner has also sought a writ of mandamus directing respondent no.2 to undertake the process of selection for the said dealership afresh from amongst the eligible candidates. The petitioner has sought the reassessment / revaluation of the marks allocated to him under the criteria 'Liquid cash in the form of bank Fixed Deposit etc.' under the heading 'capability to arrange the finance'.

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There is absolutely no doubt that justice and equity are in favour of the petitioner who was admittedly eligible to bid for the dealership. More important, the grant of reliefs in the

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petitioner's favour is clearly in the interest of HPCL and thereby in public interest. Indeed, a rejection of this petition would be detrimental to public interest as it would deny HPCL the benefit of the services of the most suitable candidate to run the retail outlet for a long period initially for 15 years which is extendable. The respondents admit that the petitioner was eligible to apply for the dealership. The only question is whether the petitioner's application contains the following hyper technical flaw, disentitling him to any marks in respect of one criterion.

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The applications for the dealership were to be evaluated on the basis of various criteria. The estimated financial requirement was a mere Rs.10 lakhs. The applicant's capacity to provide finance was to be assessed. The criterion in this regard was captioned : 'Liquid cash in the form of bank fixed deposits etc.'. The applicants were in the first instance to furnish attested copies of documents, evidencing their capacity to provide finance and to produce the originals thereof at the interview.

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As against the estimated required investment of Rs.10 lakhs, the petitioner had Fixed Deposit Receipts alone of over Rs.11 crores issued by the Bank of Baroda. He was, however, awarded nil marks under the criterion 'Liquid cash in

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the form of bank fixed deposits etc.' on the ground that the copies of the Fixed Deposit Receipts were not “duly attested”. We have held that the FDRs were duly attested and the petitioner's documents are bound to be considered while evaluating his application qua the said criterion.

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What we have held, in a nutshell, is this. The advertisement did not specify the mode or manner of attestation of such documents. This and indeed several of the terms and conditions read together establish that selfattestation of such documents was permissible. There is absolutely no danger in so construing the provision of the tender conditions as in any event the attestation is subject to verification with the originals. The petitioner accordingly attested the FDR's himself.

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The facts are not in dispute. Respondent no.1 published on 16/06/2010 a notice for the appointment of Retail Outlet Dealers for various districts and under various categories. The petitioner and respondent no.4 applied under the open category at the same location. Column K stipulated Rs.10,00,000/- excluding the cost of land as the estimated investment required from the applicants. The publication contains detailed terms and conditions in the form of notes,

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general terms and conditions and prescribed the application form and the format of the affidavit to be filed by the applicants. Several of these terms and conditions were relied upon on behalf of the petitioners and the respondents. They by consent handed over the relevant provisions thereof. The same incorporates the brochure issued by respondent no.2 – HPCL for selection of petrol – diesel Retail Outlet Dealers (applicable for MS/HSD Dealership advertisement from March, 2010). We have proceeded on the basis that “Note” (ix) incorporates HPCL's brochure. The relevant provisions of the notice and the brochure as handed over by consent read as under :-

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“NOTICE FOR APPOINTMENT OF RETAIL OUTLET DEALERS

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Hindustan Petroleum Corporation Limited proposes to appoint

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dealer for retail outlet dealership at the following locations.

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Sr. No.	Name of Location	Categor y	Proposed to be developed on Company owned basis, refer note (iii) below	Estimated investment required from Applicant Rs. Lacs excluding cost of land.
A	B	D	G	K
133	Koor to Gargoti LHS	OP	Yes	10

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7. Scrutiny of application form:

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The valid application received up to the time/ date specified in the advertisement will be scrutinized by a team of officers and the candidate found eligible as per the eligibility criteria and other terms and conditions will be called for a personal interview. The document submitted by the applicant along with the application form will be scrutinized and the land details/ document will be evaluated by a team, including a site visit as may be necessary to establish the suitability of the offered land, if any, for setting up of a retail outlet. Ineligible applicant will not be called for the interview and will be advised in writing along with reason for the rejection of their application.

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8. Evaluation of candidates

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For Individual Candidates including partnerships: Each candidate will be assessed under the following parameters.

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a) Capability to provide land and infras	tructure/ facilities
35 marks
b) Capability to provide finance	25 marks
c) Education qualification	15 marks
d) Capabilityto generate business	10marks

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e) Age 4 marks
f) Experience 4 marks
g) Business ability/ acumen 5 marks
h) Personality2 marks
Total 100marks

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iv. The marks awarded to the candidates placed in the merit panel, displayed on the notice-board by the selection committee after their interview shall be subject to scrutiny, subsequently by a Senior officer of the Corporation on whose satisfactory report, the Head Zone shall ratify the displayed Merit Panel, which then only shall be considered to be final.

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GENERAL TERMS AND CONDITIONS:

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(d) No addition/ deletion/ alteration will be permitted in the application once it is submitted.

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(e) No additional documents whatsoever will be accepted or considered after the cut off date of the application.

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(h) In respect of documents/ certificates, only attested copies are to be attached along with the application. Originals of such documents/ certificates will have to be brought at the time of interview, if called for.

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APPLICATION FOR HPCL RETAIL OUTLET (PETROL PUMP) DEALERSHIP

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Give details of source of funds: (to be provided by all applicants)

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The details to cover free & unencumbered Bank accounts/ Govt. Securities/ fixed deposits, bankers/financial institution certificate for credit worthiness(in the enclosed Appendix A2 / loans, UTI, NSC, Bonds, Shares of public limited companies etc., details of other assets like immovable property (land, building etc.). Movable properties like vehicle etc., any other sources of income like from interest, rent, business etc. (please attach proof in all cases). The details under “Finance” may be provided in the following format: (Attach Separate

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sheet as required)

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Type	Details of	Name of	Relationship	Amount
	a/c No.	the holder
	etc			(Rs.)

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NOTE: “Affidavits are to be enclosed in original”. In

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respect of all other certificates/ documents, duly attested Photo copy/ true Copy ONLY need to be attached along with the application. However, originals of all these will have to be brought at the time of interview, if called for.

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18. UNDERTAKING:-

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I undertake to produce Originals of all the attachments enclosed with this application at the time of interview, if called and am aware that in the event I fail to produce the Originals, my application for dealership will be disqualified

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AFFIDAVIT FOR INDIVIDUALS & PARTNERS

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I hereby verify that what has been stated above is true to the best of my knowledge and belief and nothing material has been concealed thereof. If any information/declaration given by me in my /our application or in any document submitted by me/us in support of application for the award of Retail Outlet dealership or in this affidavit shall be found to be untrue or incorrect or false, Hindustan Petroleum Corporation Ltd would be within its rights to withdraw the letter of intent/ terminate the dealership (if already appointed) and that we would have no claim, whatsoever, against Hindustan Petroleum Corporation Ltd for such withdrawal/termination.

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BROCHURE

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Guidelines for Selection of Retail Outlet Dealers

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2. Mode of selection of dealers

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(a)……………………………………………………………………………

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Persons meeting the eligibility criterion can apply and the selection will be made from amongst eligible applicants after the due process of technical evaluation of RO sites, interview and post selection scrutiny.

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9. Application form:

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e) Original of the Affidavits and attested copies of the other supporting documents should be submitted along with the completed application form, duly signed.

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g) No addition / deletion / alteration will be permitted in the application form after cut-off date for submission of applications.

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h) No additional documents whatsoever will be accepted or considered after the cut off date for submission of application.

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15. Interviews

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The candidates should produce originals of the documents submitted by them with the application, at the time of interview failing which the applicants will be rendered ineligible. The candidates will have to submit an Affidavit, again as per Appendix- A or Appendix – A1 as applicable

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prior to the interview, signed and notarised not earlier than 3 working days prior to the date of interview, failing which the candidate will be considered as ineligible and will not be interviewed by the selection committee. A committee comprising of three officers of HPCL will scrutinise the applications and evaluate for the parameters based on the documents submitted by the candidates along with their applications. Thereafter, the interview shall be held for all the eligible candidates for the non- document based parameters by a three member selection committee nominated by the competent officer of the corporation.

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16. Norms for evaluating the candidates:

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b) Allocation of marks on various parameters:

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Paramet er	Subhead s	Description	Max Marks	Evaluation
Finance	Financiall	Ready		Based on the
(Max. 25	y sound	availability of		Verification of
marks)		Finance (20		the supporting
both for		marks)		documents
individual				submitted by
&				the applicant
non				along with his
individual				application.
		Liquid cash in	12	Valuation report
		the form of		duly certified by
		bank balance,

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Fixed deposits,		Govt. approved
shares of listed		values in
companies etc.		support
Fixed and	4	of assets is
movable assets		necessary.
includes own
land, buildings,
shops, house,
vehicles, etc.
Income	4
includes agricultural
income,
business
income,
interest, rent,
royalty, etc.
duly supported
by documentary
evidence.

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Note:

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1. The maximum marks i.e., 25 under the parameter “Finance” will be proportionately distributed in the ratio of maximum marks of 12, 4, 4, 5 under each sub-parameter and this ratio will be applied on the total finance requirement advertised for each location. The applicant will qualify for full

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marks if the actual fund available based on the documents submitted by the applicant is either equal to or more than the proportionate maximum fund requirement worked out as above under each sub-parameter and pro-rata for lower availability of fund.

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Liquid Cash: Following will be considered :

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·Funds/Deposits with Bank/ Registered Companies/ Postal Schemes/Saving Accounts.

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Shares of listed Companies in D-mat form (@60% of market value on last working day of previous month of application). Valuation certificates to be provided.

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National Savings Certificates etc; (@ redemption value on date of application. Valuation certificates to be provided).

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Mutual Funds @ 60% of NAV on last working day of previous month of application. Valuation certificates to be provided

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Bonds: Redemption value on date of application. Valuation Certificates to be provided.

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(f) The maximum marks i.e., 25 under the parameter

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“Finance” will be proportionately distributed in the ratio of maximum marks of 12, 4, 4, 5 under each sub-parameter and this ratio will be applied on the total finance requirement advertised for each location. The applicant will qualify for full marks if the actual fund available based on the documents submitted by the applicant is either equal to or more than the proportionate maximum fund worked out as above under each sub-parameter and prorata for lower availability of fund.”

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(emphasis supplied)

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4(A) The petitioner filed his application for the said dealership on 13^th July, 2010. At the request of the Court, a copy of the complete application was tendered in Court by respondent no.2–HPCL. We will refer to the relevant aspects of this application while dealing with the rival contentions. Suffice it to state at this stage that the main controversy is as to whether the petitioner had filed along with the application attested copies of the Fixed Deposit Receipts( FDR's).

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(B) HPCL by a letter dated 8^th September, 2010 requested the petitioner to appear before the Dealer Selection Committee for an interview on 23^rd September,2010. The

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petitioner was directed to bring the original documents of all the enclosures as stipulated in the advertisement and submitted by him with his application, failing which it was stated that he would be rendered ineligible. The letter further stated that the petitioner must submit a fresh affidavit in Appendix 'A' as published in the advertisement prior to the interview, signed and notarized not earlier than three working days prior to the date of interview, failing which it was stated that he would be considered as ineligible and would not be interviewed by the Selection Committee. A format of the affidavit was enclosed. It is important to note that it was specifically stated that the affidavit must be notarized. The significance of this is that where HPCL required documents to be notarized it stated so. The terms and conditions requiring the documents in support of the financial status to be attested did not specify that an attestation must be by a Notary.

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On 23^rd September,2010, respondent no.2 published a provisional merit list in respect of seven candidates. Respondent no.1 was placed first on the list and the petitioner was placed fourth on the list. The list discloses the marks obtained by the applicants in respect of each of the criteria. The criteria included capability to provide infrastructure and facility,

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capability to arrange finance, educational qualification, age, capability to generate business, experience, business ability / acumen and personality.

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The criterion pertaining to “Capability to arrange the finance” was divided into four sub-criteria namely “Liquid Cash in the form of bank Fixed Deposits etc.”, “Fixed and movable assets”, “Income” and “Letter ensuring Loan/Credit worthiness”. The dispute in this petition pertains to the marks allocated for the criteria “Liquid Cash in the form of bank Fixed Deposits etc.”

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The petitioner was given “Nil” / “Zero” marks for this criterion. If, as claimed by the petitioner, he is entitled to 36 marks instead of “Zero” he would stand first in the merit list. Respondent no.4 was given 36 marks for this criterion. We are not concerned at this stage as to whether the petitioner is entitled to 36 marks or not. We are only concerned with whether the documents submitted by the petitioner were in accordance with the terms and conditions and are liable to be considered by respondent no.2 – HPCL for evaluating the petitioner's application under the category “Liquid cash in form of bank Fixed Deposit etc.” If this question is answered in the affirmative in favour of the petitioner - it is for respondent no.2 after taking

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into consideration the documents, to allocate the appropriate marks in accordance with its procedure.

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Mr. Padiyar, the learned counsel appearing on behalf of the petitioner submitted that the filing of attested documents as per the general conditions is not an essential or mandatory condition. It is according to him only directory. He submitted that even assuming that the petitioner had not submitted the documents in accordance with the above provisions he could not on that ground alone be held to be ineligible. The requirement of the minimum financial capacity, he agrees is an essential condition. What he contends is that the furnishing of the proof thereof at the stage of filing the application is not an essential condition. He further submitted that even if it was mandatory it was not necessary for the applicant to comply with the condition at the stage of the filing of the application. It could have been complied with at the stage of the interview.

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Mr. Bhobe, the learned counsel appearing on behalf of respondents nos.2 and 3 – HPCL and its Senior Regional Manager - submitted that the petitioner has not been held to be ineligible to apply for the dealership. He stated that even assuming that the petitioner had not supplied attested copies,

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relating to the criterion “Liquid Cash in the form of bank Fixed Deposits etc.”, he could not be considered to be ineligible. The petitioner was in fact considered eligible.

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This appears to be so. Note -2 stipulates the “Eligibility Criteria”. The eligibility criteria relates to the applicant's nationality, age and educational qualification. Any eligible person is entitled to apply against the open category. The petitioner and respondent no.4 applied under the open category. Note – 2 further disqualifies individuals including partnership firms who do not meet the multiple dealership norms. Respondent no.2 – HPCL admits that the petitioner fulfills the eligibility criteria. It is for that reason that the petitioner's application has in fact been evaluated. In other words, the petitioner has not been held ineligible to apply.

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Indeed, the mark sheet establishes that the HPCL did consider the petitioner eligible. This is evident from the fact that the petitioner has been granted marks at the interview. Had HPCL considered the petitioner ineligible he would not have been invited for the interview and his application would not have been evaluated/ assessed at all. Admittedly, the petitioner's application was assessed and evaluated. This is further evident from the fact that his name even appears on the merit list.

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In any event in view of Mr. Bhobe's contention that the petitioner is not ineligible and was not founded to be ineligible by HPCL for applying for the dealership, it is not necessary to consider Mr. Padiyar's arguments as regards the petitioner's eligibility.

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The applications of the eligible candidates were evaluated in accordance with the above terms and conditions. What has in fact happened is that the petitioner has in respect of one of the criterion namely “Liquid Cash in the form of bank Fixed Deposits etc.” been granted 'Nil' marks. Thus, while the petitioner was held to be eligible to apply he was not granted any mark for this criterion as according to respondent no.2 – HPCL / Selection Committee he had not tendered documents duly attested. These documents were required to evaluate the petitioner in respect of this criterion. The only question therefore is whether the documents submitted by the petitioner ought to have been considered by HPCL while evaluating the petitioner's application in respect of the criterion relating to “Liquid Cash in the form of bank Fixed Deposits etc.”

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Mr. Padiyar firstly contended that once the applicant was

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called for the interview it must be presumed that the documents were in conformity with the requirements. He submitted that if they were not the petitioner would not have been called for the interview.

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The first submission is not well founded. It confuses an applicant's eligibility to apply for the dealership with the conditions for the evaluation of the various criteria. We have already noted that the petitioner was eligible to apply for the dealership. Once he is found eligible to apply for the dealership he is bound to be invited for the interview. The documents being in conformity with clause (h) of the General Terms and Conditions is not a condition of eligibility. Thus being called for an interview does not indicate that the documents were in conformity with clause(h). This requirement is relevant before the committee that evaluates the applications of the eligible candidates on the documents based parameters.

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Mr. Bhobe rightly relied upon clause 15 of the brochure which contains the guidelines for selection of Retail Outlet Dealers. HPCL had committees at two levels for evaluating the applications. At the first level, a committee comprising of three officers of HPCL scrutinize the applications

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and evaluate the same for the parameters based on the documents submitted by the candidates along with their applications. Thus, at this stage, the committee not only scrutinized the applications but also evaluated the same. Marks were allotted to the applications in respect of the various criteria.

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At the next level, interviews are held for all the eligible candidates for the “Non–document based parameters” by the three members selection committee nominated by the competent officer of HPCL. That interview committee therefore is not concerned with the “document based parameters”. The criterion of “Liquid Cash in the form of bank Fixed Deposits etc.” is a document based parameter. The interview committee therefore does not concern itself with the same.

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The norms for evaluating the candidates are specified in clause 16 of the brochure reproduced above. These terms must be read with clause (h) of the General Terms and Conditions and the “NOTE” contained in the Application Form set out earlier. They require such documents to be duly attested. The emphasis is on the applicants furnishing copies and not originals at the stage of filing the application.

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Mr. Bhobe's submission is well founded to the extent that the evaluation committee at the first level cannot be faulted for not granting any marks in the event of an applicant not furnishing the documents as required by the terms and conditions. If an applicant does not furnish documents in accordance with the above terms and conditions, the selection committee cannot be faulted for not taking them into consideration while evaluating his application qua the corresponding / relevant criteria. The committee is not bound to invite an applicant to rectify a defect or to furnish additional documents.

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We are not concerned here with a case where a committee / HPCL permits the applicant to subsequently rectify any error by furnishing further or appropriate documents. Whether the committee / HPCL is entitled to do so in a given case is an entirely different matter with which we are not concerned in this petition. The question, therefore, as to whether the condition of furnishing attested documents in respect of the said criteria is mandatory or merely directive does not arise and is irrelevant. The petitioner admittedly neither tendered further documents subsequently nor sought leave of the committee to do so. It is not necessary therefore to consider the effect, scope and applicability of clauses (d) and (e) of the

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General Terms and Conditions which do not permit additions, deletions or alterations in the application once it is submitted and also do not permit additional documents after the cut off date of the application.

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This brings us to Mr. Padiyar's alternative submission. He submitted that in any event the petitioner had enclosed along with his application duly attested documents entitling his application to be evaluated qua the criterion “Liquid Cash in the form of bank Fixed Deposits etc.”.

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Mr. Padiyar relied upon the following certification by the petitioner under cover of which he enclosed photocopies of Fixed Deposit Receipts issued by the Bank of Baroda in his favour of an aggregate amount of about Rs. 11 crores:-

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“DETAILS OF SOURCES OF FUNDS

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I Mr. Pundalik Tukaram Chowgule declare

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to Hindustan Oil Corporation Ltd. that I am having my own funds for the security deposit, set up and running the proposed activity of Retail Outlet Dealership of Hindustan Petroleum Corporation Ld. at

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Koor to Gargoti LHT, District Kolhapur.

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With reference to the above I declare and

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undertake that, I am the sole proprietor of “Chowgule Developers” firm and having Bank Deposit in the names of “Chowgule Developers” and myself. I have my own funds for the security deposit, set up and running the proposed activity. There is no need of Bank finance for the activity if the Retail Outlet dealership is allotted to me. For the proof of my own funds I enclosed herewith the xerox copies of the Bank Fixed Deposit Receipts are attached to this letter.” (emphasis supplied)

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This certificate is issued and signed only by the petitioner. Enclosed with and attached to the certificate is a tabular statement containing the details of the Fixed Deposit Receipts issued by the Bank of Baroda as also the photo copies of the Fixed Deposit Receipts referred to therein. The date of maturity of most of them was 25^th February, 2011 i.e. almost one year after the application. There were about 22 Fixed Deposit Receipts aggregating to a face value of about Rs.11 crores. The maturity value would indeed be much higher as 20 of the Fixed Deposits carried interest at the rate of 9% per annum and only two Fixed Deposits of Rs. 5 lakh each carried interest at the rate of 4% per annum.

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That the petitioner satisfies the financial requirements of only Rs. 10 lakhs stipulated in the notice is beyond doubt. This is of course subject to verification with the originals. The procedure prescribed provides for such verification. The question is whether the certificate which we have quoted above along with the enclosures / attachments thereto namely the tabular statement and photo copies of the Fixed Deposit Receipts satisfies clause (h) of the general terms and conditions which reads as under :

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“(h) In respect of documents/ certificates, only attested copies are to be attached along with the application. Originals of such documents/ certificates will have to be brought at the time of interview, if called for. ”

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Mr. Bhobe and Mr. Rao contended that the said certificate along with the annexures thereto do not satisfy the requirement of clause (h) of the General Terms and Conditions as the petitioner did not furnish / enclose along with the application copies of the Fixed Deposit Receipts attested by a Notary or by a Class I Gazetted Officer. Self attestation is not permissible. Even if it is permissible, the same is not there. They further contended that the certificate does not constitute an

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attestation as the individual Fixed Deposit Receipts were not attested. In other words, the attestation was not endorsed upon the individual copies of the Fixed Deposit Receipts.

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The submissions are not well founded. The notice dated 16^th June,2010 does not prescribe the mode of attestation of these documents. It does not require the documents to be attested by a Notary or a Class I Gazetted Officer as contended by Mr. Bhobe . Mr. Bhobe submitted that normally documents must be attested by a Notary or a Class I Gazetted Officer. As the mode of attestation is not prescribed, it is necessary first to consider the nature of attestation contemplated in the notice. Documents may be attested by a Notary and by a Class I Gazetted Officer. However, they are not the only persons who are entitled to attest documents. Attestation is permissible by anyone in the manner required either by law or otherwise. Employers for instance often require the attestation of school leaving certificates by the school authorities. A contractor may be required to produce documents certified / attested by his bank. Nothing stopped respondent no.2 even in this case in requiring the Fixed Deposit Receipts to be attested by the bank. They were not bound to insist upon such documents being attested only by a Notary or a Class I Gazetted Officer.

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It is important to recall that HPCL required the affidavit to be filed by the applicants to be notarized. The NOTE at the foot of the format of the affidavit set out earlier in contrast merely required the documents to be attested without specifying the mode of attestation or the person who is to attest it. Thus where a document was to be notarized or attested in a particular manner it was so stipulated. It would follow therefore that applicants were free to attest documents in any manner where the mode of attestation was not prescribed.

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We are, therefore, unable to accept the contention that as per the terms and conditions contained in the notice, the said documents could be attested only by a Notary or a Class I Gazetted Officer.

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The next question then is whether the applicants could attest their own documents.

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Self attestation of documents is not unknown. There are several institutions private and public that require selfattestation. The Goa Public Service Commission, the passport authorities, OCI Forms, applications for visas stipulate self attestation of documents or photographs. That they specify self

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attestation makes no difference. If the mode of attestation is not stipulated we see no reason to restrict the same especially in this case for reasons we will shortly indicate.

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Black's Law Dictionary defines the word 'Attested copy' and the term 'attest ' as under :

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“ Attested copy ” : see 'Attest'

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“ Attest ” : To bear witness to; to bear witness to a fact; to affirm to be true or genuine; to act as a witness to; to certify; to certify to the verity of a copy of a public document formally by signature; to make solemn declaration in words or writing to support a fact;”

¶156

There is nothing that prevents a person from affirming his own statements to be true or to certify something to his knowledge himself.

¶157

The question then is whether the terms and conditions in the present case contemplated self attestation of the document by the applicants. Considering the facts and circumstances of the case we think they did.

¶158

Firstly, as discussed earlier, the terms and conditions did not specify the mode of attestation or that the attestation was to be by any particular person or authority. As we also

¶159

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mentioned, when a document was to be attested in a particular manner HPCL so specified as in the case of the affidavit being required to be notarized.

¶161

The reason for this is also to be found from the terms and conditions themselves.

¶162

For instance the terms and conditions required the applicants to furnish the originals of the said attested documents at the time of the interview. Clause 18 of the application in so far as is relevant to this issue reads as under :

¶163

“18. UNDERTAKING:-

¶164

I undertake to produce Originals of all the attachments enclosed with this application at the time of interview, if called and is aware that in the event I fail to produce the Originals, my application for dealership will be disqualified.”

¶165

HPCL was therefore aware that there is no danger of the attestation being dishonest as in any event the applicants could have been called upon to produce the originals at the time of the interview. If the terms did not provide for the production of originals in all probability the applicants would have been

¶166

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required by HPCL to have the documents attested in a particular manner and by a particular authority. That HPCL did not do so and the fact that it provided for the originals being produced at the time of interview is a clear indication that HPCL was satisfied with the attestation being in any form and by any authority or person including the applicants themselves.

¶168

Further still, clause 18 of the application form also provides that in the event the applicant failing to produce the originals, the application itself would be disqualified. In other words, the failure to produce the originals would not merely disentitle the applicant from being allocated marks for the criterion to which the documents relate but to the drastic consequence of disqualifying the application itself. Thus, the failure to furnish the originals would disqualify the applicant even if he were to score the highest mark, even after the deletion of the marks in respect of the criterion to which the documents apply. In the present case for instance, if an applicant who received Nil / Zero mark for the criterion “Liquid Cash in the form of bank Fixed Deposits etc.”, but scored the highest in the aggregate even otherwise, his application itself would be dismissed for having failed to produce the originals. This is another reason why HPCL probably did not consider it

¶169

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¶170

necessary to prescribe any particular mode of attestation or for the attestation of such documents by any particular person.

¶171

The least that must be said in favour of the petitioner is that the terms and conditions are not clear as to who is entitled to attest the documents and as to the manner of attestation thereof. If that be so, we would be inclined and indeed would have expected HPCL to lean in favour of a construction which would lead to the most deserving candidate being appointed. It could hardly be denied by HPCL that the appointment of the most suitable candidate is in its interest and accordingly in public interest. This construction would not jeopardize the interest of HPCL in any manner for the authenticity of such documents in any event, has to be ascertained at the time of the interview. The apprehension therefore that the documents attested by the applicant could lead to a false claim is unfounded.

¶172

It was contended that the attestation did not appear on the face of the receipts.

¶173

Firstly the terms and conditions do not require the Fixed Deposit Receipts to be endorsed on the face thereof. Our

¶174

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attention was not invited to any provisions of law or practice that prohibits attestation in such a manner viz. the attestation being attached to the document and a single attestation being attached to more than one document. We see no reason then why an attestation cannot be attached to the documents - in this case the Fixed Deposit Receipts. This is precisely what the applicant had done. Nor is it necessary for an applicant to issue a separate certificate in respect of each Fixed Deposit Receipt. A composite certificate as in this case is sufficient. Any apprehension in this regard is also set at rest by the requirement of the applicant producing the originals at the interview.

¶176

The last aspect is whether the said certificate can be construed to be an attestation as required vide terms and conditions.

¶177

The certificate relied upon by Mr. Padiyar constitutes a self attestation. The petitioner, who was the applicant for the dealership, attested the genuineness of the Fixed Deposit Receipts himself. The language of the certificate satisfies the requirement of an attestation. The applicant has expressly stated that he is the sole proprietor of “Chowgule Developers” in which name the Fixed Deposit Receipts have been issued.

¶178

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¶179

He has also expressly stated that he had proof of his own funds. He enclosed therewith xerox copies of the Fixed Deposit Receipts and attached the same to the certificate. Nothing more was needed. The language is clear even if it is not elegant. A reasonable construction is that the applicant had produced the documents alongwith the certificate as “proof of my own funds”. He thereby attested the Fixed Deposit Receipts held by him.

¶180

Mr. Padiyar also relied upon the Profit and Loss Account and the returns filed under Section 139 of the Income Tax Act, 1960. He submitted that the audited Balance Sheet itself satisfies the requirement of an attestation. However, in view of what we have already held, it is not necessary to consider this aspect of the matter.

¶181

Respondent no.4 claims to have spent a sum of about Rs. 21 Lakhs after receipt of the Letter of Intent.

¶182

The Writ Petition was filed on 05/05/2011. Interim reliefs were granted on 29/03/2012. It is not possible in this Writ Petition to grant any reliefs regarding the alleged expenditure. Respondent no.4 is at liberty to and must adopt appropriate proceedings in that regard.

¶183

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In the circumstances, Rule is made absolute in terms of prayer clauses (a), (b), (c) and (d). It is clarified that the quantum of marks to be granted to the petitioner in respect of 'Liquid cash in the form of bank Fixed Deposit etc.' has to be decided by the appropriate committee. Respondents no. 2 and 3 are entitled to and must follow the entire procedure including the verification of the originals of the said documents. We have expressed no opinion on the genuineness or correctness of the Fixed Deposit Receipts. This order shall remain strayed up to and including 15/12/2012. However till then the interim order dated 29/03/2012 shall remain in force.

¶185

No order as to costs.

¶186

S. J. VAZIFDAR,J.

¶187

U.V. BAKRE,J.

¶188

Shri Pundalik Tukaram Chowgule v. Union of India through the Secretary, Petroleum Dept., and 5 Ors.

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Shri Pundalik Tukaram Chowgule v. Union of India through the Secretary, Petroleum Dept., and 5 Ors.

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