Allowed

Shivayya Gagigeyya Bichagattimiath v. Indian Oil Corporation Ltd.

Karnataka HC8 Jun 2022WP/121079/2020

Case brief

AI extract

What is this about?

The High Court of Karnataka quashed the rejection of the petitioner's candidature for a Retail Outlet Dealership reserved for OBC candidates. Although the petitioner failed to produce the certificate by the deadline, he had been declared eligible earlier and the certificate was subsequently issued. The court directed the corporation to declare the petitioner eligible and allot the dealership upon

What did the court decide?

The writ petition was allowed; the rejection communication was quashed; subsequent allotments were annulled; the petitioner is directed to produce the OBC certificate to obtain the Retail Outlet Deale

Shivayya Gagigeyya Bichagattimiath Vs Indian Oil… — Service and Employment | Karnataka HC (2022)

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W.P.No.121079 of 2020

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 8^TH DAY OF JUNE, 2022

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BEFORE

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THE HON'BLE MR JUSTICE R.DEVDAS

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WRIT PETITION NO. 121079 OF 2020 (GM-RES)

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BETWEEN:

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Digitally
signed by
VINAYAKA
B V
VINAYAKA Location:
B V Dharwad
Date:
2022.06.10
17:40:29
+0530

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SHIVAYYA GAGIGEYYA BICHAGATTIMIATH AGE: 53 YEARS, OCC: AGRICULTURE, R/O: AKKIPETH, III CROSS, NEAR VENKATESHWAR TEMPLE, OLD HUBBALLI, HUBBALLI-580024.

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…PETITIONER

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(BY SRI. SHIVASAI M PATIL, ADVOCATE)

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AND:

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INDIAN OIL CORPORATION LTD., BELAGUM DIVISION OFFICE, KHANAPUR ROAD, TILAKAWADI, BELAGAVI CITY-59006.

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KISHAN MERWADE S/O ISHWARSA MERWADE AGE: 45 YEARS, OCC: NOT KNOWN R/O : LAKSHMANASA NAGAR MULGUND ROAD, GADAG.

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…RESPONDENTS

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(BY SRI. C. V. ANGADI , ADVOCATE FOR R1; R2 PARTY-IN-PERSON HELD SUFFICIENT VIDE ORDER DATED 08.06.2022)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUION OF INIDA PRAYING TO A WRIT OF CERTIORARI OR ANY OTHER ORDER OR DIRECTION QUASHING THE IMPUGNED COMMUNICATION REF.NO. 15454499086925, DATED 08.06.2019 ISSUED BY THE RESPONDENT AS PER ANNEXURE-"J" AND ETC.

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W.P.No.121079 of 2020

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THIS WRIT PETITION COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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R.DEVDAS J., (ORAL):

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The petitioner, who sought for allotment of Retail Outlet Dealership in Huballi city, is before this Court seeking to quash the impugned communication dated 08.06.2019 at Annexure-J, whereby the petitioner was informed that his candidature has been found ineligible since he did not submit the required documents within stipulated time.

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Learned Counsel for the petitioner submits that

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although the impugned communication does not specify as to what was the required document which was not submitted, it is not disputed that in the earlier communication dated 05.04.2019, it was brought to the notice of the petitioner that he had failed to produce the OBC certificate and therefore, the reason for which the candidature of the petitioner was rejected is that he failed to produced the OBC certificate. Learned Counsel for the petitioner submits that it is not disputed by the petitioner that Retail Outlet which was sought to be allotted by the respondent-Corporation was reserved for an OBC candidate. It is also not disputed that in the Application Form

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W.P.No.121079 of 2020

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filled and uploaded by the petitioner, he had mentioned that he belongs to OBC category. Nevertheless, after the name of the petitioner was picked in the draw from among the eligible candidates for allotment of Retail Outlet Dealership, the petitioner was informed by a communication dated 05.04.2019 at Annexure-G that he has to produce the original OBC certificate. To this, the petitioner gave a reply dated 22.04.2019 at Annexure-H stating that he had applied to the Revenue Department seeking OBC certificate. However, his daughters viz., Swetha and Gowramma were already issued with OBC certificates and therefore on the strength of such certificates having been issued to the daughters, the petitioner had made a declaration in the application that he possessed the OBC certificate.

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Learned Counsel submits that the petitioner being an agriculturist never had an occasion to seek OBC certificate. On the other hand, during the admission of his daughters to the schools and colleges, the petitioner had obtained OBC certificates for his daughters. Nevertheless, Annexure-K, is a communication dated 03.01.2020 made by the TahsildarGrade-II, Hubballi, stating that the Caste and Income

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W.P.No.121079 of 2020

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certificate bearing No.RD003857956613 dated 04.02.2019 issued in the name of the petitioner is genuine and correct. It is clarified that the petitioner belongs to the Veerashaiva Lingayatha caste of category III-B of the backward classes. This information was also sought to be provided by the petitioner in terms of the communication dated 14.01.2020 at Annexure-L to the respondent–Corporation. Nevertheless, since, no positive reaction came from the respondentCorporation, the petitioner filed this writ petition seeking to quash the impugned communication dated 08.06.2019 and to issue a direction to the respondent-Corporation to include the petitioner in the list of candidates eligible for draw of lots and accordingly, permit the petitioner to participate in the draw to be held on 22.01.2020. Learned counsel would further submit that during the course of these proceedings, the petitioner obtained a caste certificate and copy of the same has been furnished along with memo dated 03.02.2020.

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During the course of these proceedings, respondent-

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Corporation informed this Court that in a subsequent allotment, a person by name Mr. Kishan Marwade was allotted the Retail Outlet Dealership, which was earlier allotted to the petitioner.

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W.P.No.121079 of 2020

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Therefore, the petitioner filed an impleading application to implead the said Mr.Kishan Marwade. Though notice was served on Mr. Kishan Marwade, he did not appear before this Court. Therefore, while permitting the petitioner to implead Mr.Kishan Marwade as respondent No.2, this Court also held that the notice served on respondent No.2 is sufficient.

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Learned Counsel for the respondent-Corporation submits that in terms of the Brochure of the respondentCorporation for selection of dealer for regular and rural Retail Outlets dated 24.11.2018 at page No.12 where a note regarding submission of documents by the selected candidates is provided for, it is clear that all certificates/documents required for meeting eligibility/specific eligibility criteria should be in possession of the applicant and valid as on date of filing of the application. Coupled with these requirement, it is submitted that the petitioner has in fact made a declaration in the application stating that all information given in the application is true and correct. Learned Counsel submits that at column No.15 of the application an undertaking is also given by the petitioner that eligibility for Retail Outlet Dealership will be processed based on the information given in the application.

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W.P.No.121079 of 2020

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However, on verification, if it is found that information given by the applicant is false or misrepresented, then the applicant’s candidature will stand cancelled and that the applicant will be declared ineligible for allotment of Retail Outlet Dealership. The petitioner has also declared that he is in possession of the supporting documents in original in respect of the information given by the petitioner in the application and if selected, failure to present documents in original will result in cancellation of the selections due to submission of false/ unsupported information in the application. The learned Counsel submits that the petitioner has given a false information or misleading information by stating that he is in possession of the original OBC certificate, which the petitioner was admittedly not possessing as on the date of filing the application.

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Learned Counsel for the respondent-Corporation seeks

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to place reliance on the following judgments:

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(1) SHIV KANT YADAV VS. INDIAN OIL CORPORATION AND OTHERS (2007) 4 SCC 410;

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(2) AVTAR SINGH VS. UNION OF INDIA AND OTHERS (2016) 8 SCC 471; AND

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(3) INDIAN OIL COPROTAION LIMITED AND OTHERS VS. RAJ KUMAR JAH AND OTHERS,

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W.P.No.121079 of 2020

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RENDERED BY THE HIGH COURT OF PATNA, (2012) 2 PLJR 783.

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Per contra, learned Counsel for the petitioner draws

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attention of this Court to RAM KUMAR GIJROYA Vs. DELHI SUBORDINATE SERVICES SELECTION BOARD AND ORS. (2016) 4 SCC 754 to contend that under similar circumstance where the appellant before the Hon’ble Supreme Court has submitted that OBC certificate after the cut off date, the Hon’ble Supreme Court held that the appellant therein who had declared himself as a Scheduled Caste candidate, was in fact a Scheduled Caste candidate by birth and not by acquisition of the category by any other event happening at a later stage.

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Heard the learned Counsels and perused the petition papers.

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The issue as noticed is quite simple. The question is whether the candidature of the petitioner could be rejected by the respondent-Corporation on failure of the petitioner to produce the OBC caste certificate.

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No doubt, on the plain reading of the Brochure and the contents of the application, which were filled and uploaded

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W.P.No.121079 of 2020

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by the petitioner, it is clear that the petitioner was required to possess an OBC certificate and having been selected and when called for verification of the original documents and other information furnished by the petitioner, the petitioner was required to furnish the original OBC caste certificate.

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The respondent-Corporation cannot be faulted for rejecting the candidature of the petitioner on the nonproduction of the original certificate at the hands of the petitioner. However, going by the decision of the Hon’ble Supreme Court in the case of RAM KUMAR GIJROYA (supra), it is seen that the Hon’ble Supreme Court has held that merely because the caste certificate was not produced or sought to be produced subsequent to the cut off date, that would not take away the eligibility of the petitioner who had declared that he belongs to the OBC category and eventually the OBC caste certificate has been issued in favour of the petitioner. It was therefore held by the Hon’ble Supreme Court that a certificate issued by the competent authority certifying the caste of a person is only an affirmation of fact which is already in existence. The purpose of such certificate is to enable the authorities to believe in the assertion of the candidate that he

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W.P.No.121079 of 2020

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belongs to a particular category and act thereon by giving the benefit to such candidate for his belonging to such category. It was also held that it is not that petitioners did not belong to that category prior to cut off date or that they acquired the status only on the date of issuance of the certificate and in view of such position, necessitating upon a certificate being tendered subsequent to the cut off date, it was held that it would be clearly arbitrary and it has no rationale objective sought to be achieved. It was therefore held that the Constitutional Benches of the Hon’ble Supreme Court in the case of INDRA SAWHNEY AND ORS. Vs. UNION OF INDIA AND ORS. (AIR 1993 SC 447) and MRS.VALSAMMA PAUL Vs. COCHIN UNIVERSITY AND OTHERS (AIR 1996 SC 1011) while interpreting Articles 14, 15, 16 and 39A of the Directive Principles of State Policy held that the object of providing reservation to the SC/ST and educationally and socially backward classes of the society is to remove inequality in public employment, as candidates belonging to these categories are unable to compete with the candidates belonging to the general category as a result of facing centuries of oppression and deprivation of opportunity. The

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constitutional concept of reservation envisaged in the Preamble of the Constitution as well as Articles 14, 15, 16 and 39A of the Directive Principles of State Policy is to achieve the concept of giving equal opportunity to all sections of the society.

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In the judgment cited by the learned Counsel for the respondent-Corporation, it can be seen that in the case of SHIV KANT YADAV (supra) cancellation of allotment of the application seeking allotment of Dealership was upheld for giving a false information regarding income. It was also held that the applicant having given false information could not complain of the action of the Corporation in latter canceling the allotment made in favour of the applicant. However, such is not the case on hand. It cannot be held that the petitioner has mislead the respondent-Corporation. True it is that the petitioner had failed to produce the original OBC certificate as required under conditions of allotment. But, as noticed hereinabove, in the case of RAM KUMAR GIJROYA (supra), similar situation fell for consideration before the Hon’ble Supreme Court and the Hon’ble Supreme Court ruled in favour of the appellant therein. In the case of AVTAR SINGH (supra) the appellant therein had not furnished the information while securing employment as to

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W.P.No.121079 of 2020

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the criminal case pending against him. Here, again the fact matrix is different. Even otherwise, the Hon’ble Supreme Court laid down certain yardstick, which could be applied depending upon the nature of post, higher post involving more rigorous criteria for all services, etc. It was held that for lower posts which are not sensitive, nature of duties, impact of suppression on suitability has to be considered by authorities concerned considering post/nature of duties/services and power has to be exercised on due consideration of various aspects. This would mean that even in the case of employment, it was held that the minor discrepancies could be ignored depending on the type of post that was sought to be filled by the authority. In the present context applying those principles, this Court would not hesitate to hold that the Retail Outlet Dealership is reserved to a person belonging to OBC category. The petitioner had brought to the notice of the respondent-Corporation that the OBC caste certificates have been issued in favour of the petitioner’s daughters. However, the petitioner had fairly submitted before the authorities that he had no occasion to seek an OBC certificate and therefore immediately after the authorities called upon the petitioner to produce the caste

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W.P.No.121079 of 2020

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certificate, the petitioner applied for certificate and there was some delay in securing the certificate.

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This Court, however, does not find any fault with the respondent-Corporation in taking a decision that since the petitioner failed to submit the certificate his candidature was rejected. The respondent-Corporation and its authorities are duty bound to follow the requirements as provided in the Brochure and standard set by the Corporation. Nevertheless, it is required to be noticed that by an interim order dated 14.12.2021, this Court had directed the respondentCorporation not to issue any letter of intent to Mr.Kishan Marwade until further orders, the Corporation was restrained from allotting the Retail Outlet Dealership to any person.

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For the forgoing reasons, this Court is of the considered opinion that the petitioner deserves to be allotted the Retail Outlet Dealership on production of the original caste certificate. Consequently, this Court proceeds to pass the following:

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ORDER

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(1) The writ petition is allowed .

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W.P.No.121079 of 2020

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(2) The impugned communication dated 08.06.2019 at Annexure-J, is hereby quashed and set aside.

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(3) Subsequent allotment, if any, made by the respondent-Corporation in respect of the Retail Outlet Dealership, for which the petitioner was selected shall stand annulled.

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(4) The petitioner is hereby directed to furnish the original OBC certificate to the respondentCorporation on or before 15.06.2022 with a covering letter.

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(5) The respondent-Corporation shall verify the same and thereafter proceed to allot the Retail Outlet Dealership to the petitioner.

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Ordered accordingly.

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In view of disposal of the main petition, I.A.No.2/2020 stands disposed of.

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SD JUDGE

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Shivayya Gagigeyya Bichagattimiath v. Indian Oil Corporation Ltd.

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Shivayya Gagigeyya Bichagattimiath v. Indian Oil Corporation Ltd.

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