IN THE SUPREME COURT OF INDIA                             CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS……..……………..OF 2010. (Arising out of SLP (C) Nos. 21029-30 of 2008)

Smt. Moumita Poddar                                                     … Appellant

VERSUS

Indian Oil Corporation Ltd & Anr.                               …Respondents

J U D G M E N T

SURINDER SINGH NIJJAR, J.

1. Leave granted.  

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  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:

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  1

offered  was  “Dealer  owned”.  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:  

“NOTICE Appointment of Retail Outlet Dealer

Indian Oil  Corporation Limited (Marketing  division)  Invites  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:

Sl.  No.

Location Revenue  Dist.

Type of D’ship  Co. Owned/  

Dealer owned

Category

1. Ranirbazar West  Tripura

Dealer owned OP  (Women)

2 .

Agartala West  Tripura

Company  owned  

ST  (Women)

Important Note (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  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  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  the Company for taking the offered land from the applicant.”  

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“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 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  Retail  Outlet  Dealer  in  

Open  Category  (Women)  for  the  location  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 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  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 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.  

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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  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 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 I.O.C. Limited in  

[Assam Oil  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.”

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  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:  

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“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  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.”

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.   

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 which had been submitted by her in her  

above said application. On 11.06.2004, the appellant was informed by  

Depot Manager (Marketing), Kunjaban, Agartala, of the 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 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  subsequently  

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informed  of  the  date  for  the  said  inspection  of  land.   However,  the  

appellant did not receive any such intimation nor was any inspection  

ever carried out by the said Survey Team.  

8. The appellant has highlighted that the proposed inspection was of  

paramount significance in ascertaining the 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.   

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  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  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.  

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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/  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 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 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  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 by  

the learned Single  Judge that  lease deed dated 18.3.2004 was not in  

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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  

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:   

   “True,  this  agreement  apparently  refers  to  the  earlier  Tenancy Agreement dated 16/3/2004 and purports to 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 28/5/2005 throw  any light on the existence of this documents even though it  was projected to have been executed as early 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  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  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,  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 non for  proper  assessment  on  the  suitability  or  otherwise  of  the  lands offered by the respective candidates, the respondent  No.1  and  the  Selection  Committee  constituted  by  it  have  violated the guidelines contained in the Brochure issued by  

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the IOC Ltd. and have not taken into account the relevant  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  lese.  Upon those findings, I have 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,  contended by Mr. D.B. Sengupta, the learned senior counsel  for the respondent No.1, that the 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  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  passed  by  legislatures  and  deviation  from  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 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 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 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  

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money had been spent by respondent No.2 in establishing the retail  

outlet.  It  was also considered to be irrelevant  by the  learned Single  

Judge that the retail outlet has been functioning regularly and to the  

benefit  of  general  public.  It  was  held  that  if  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  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 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 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/ 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.1-13161  dated  15.12.2004  and  the  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 to  wind up the Retail Outlet Dealership is question within 30  (thirty) days of the receipt of this judgment at her own cost of  

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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.”   

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 judgment of  the learned  

Single Judge was set aside by the impugned judgment dated 30.5.2008.  

The Division Bench 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.

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.  

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 so as to form the  

basis for deciding the eligibility of respondent No.2 for the award of 25  

marks in the 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.  

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15. The  Division  Bench  accepted  the  finding  of  the  learned  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.  

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 circular dated 4.9.2003 would show that the  

said circular comprehensively lays down the norms for dealer selection  

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 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. It was, therefore,  

held that since the policy circular dated 4.9.2003 held the field on the  

date  of  the  interview/selection  on  16.6.2004,  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  

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learned  Single  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 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  

non 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 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 infrastructure/facilities” the existence of  

the document which has to be accepted will not materially influence the  

end  result,  i.e.,  the  award  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  

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 (C) No.256 of 2004 filed  

by Payel Biswas was also dismissed by the learned Single Judge. Her  

grievance in the writ petition was against the failure of respondent No.1  

to  conduct  spot  verification  of  the  land  offered  by  the  candidates  

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including  her  own.  Her  candidature  was,  however,  rejected  on  the  

ground  that  her  husband  is  a  partner  of  M/s.  Biswas  and  Sons  an  

existing 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.  

19. We  have  heard  both  the  appeals  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 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 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  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.  

14

Even otherwise it could not have been relied upon as the same was not  

registered.  According to learned senior counsel, mere notarization would  

not make it a valid lease, as it was for a term 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 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  

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  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 over and the letter of intent having been  

issued  to  respondent  No.2.  Learned  counsel  further  submitted  that  

criteria for evaluation of candidates are elaborately stated in the policy  

15

circular dated 4.9.2003. On the basis of this circular, respondent No.1  

had issued the advertisement dated 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 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  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  

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 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  

16

reference to the pleadings of the 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 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 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 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  

No.2 has been correctly given 25 marks. The decision of the selection  

committee,  according  to  him,  is  not  against  the  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  

17

compared to the 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  having  taken  advantage  of  the  same  parameters  cannot  

possibly complain of any breach of Article 14 of the 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  

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 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  the  learned  Single  Judge  through additional  

affidavit  dated  27.7.2005.  It  was,  however,  wrongly  not  taken  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 this, learned counsel submitted that the appellant  

18

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 judgments of this  

Court,  viz.  :-  Kedarnath Agrawal   & Anr  .  Vs. Dhanraji  Devi & Anr.  

( [2004] 8 SCC 76 paragraphs 16-31 ),  Rashpal Malhotra Vs. Satya  

Rajput (  [1987]  4  SCC  391),  Municipal  Board  of  Pratabgarh Vs.  

Mahendra Singh Chawla  (  [1982] 3 SCC 331 ),  Taherakhatoon Vs.  

Salambin  Mohammad (  [1999]  2  SCC  635  )  and  A.M.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 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  

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  from land 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  

19

been made uniformly applicable to all the candidates and therefore the  

selection cannot be held to be arbitrary or violative 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 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  important  note  stated  that  applicants  

already having land and 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 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 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  

20

dated  4.9.2003.  There  could  be  no  deviation  therefrom.  This  circular  

provides elaborate guidelines. The selection procedure is as follows:  

“SELECTION PROCEDURE:

5.2.1 Advertisement: Selection of dealers will  be done through advertisement in  the newspapers.

5.2.2 Application processing Fee:

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:

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.   

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 be given by the  State Head.

5.3         Preparation of Panel:

The Selection Committee will prepare a panel of 3 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 :

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  

21

like, he refuses to accept the dealership, is 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  

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 Clause 7.1 which is as under:

“7.1    Evaluation Parameters:  The selection committee will Interview the candidates as per  the following evaluation criteria:  

Retail Outlet:

Sr.  No.

Parameters Marks

Retail  Outlet

SKO- LDO

a. Capability to provide land and  infrastructure /facilities

35 35

b. Capability to provide finance 25 35

24. The detailed evaluation system is provided in 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 dealer  :   

The  evaluation  criteria  has  been  designed  as  under  to  maintain  uniformity,  objectivity,  transparency  and  the  methodology of  assessment  has been designed for  ease of  quantification.

Each candidate during the interview will be assessed by the  Selection Committee broadly under the following parameters:

22

Retail Outlet

a. Capability to provide land and infrastructure/ facilities       35 marks

b. Capability to provide finance     25 marks  c. Educational qualifications     15 marks d. Capability to generate business     10 marks e. Age       4 marks f. Experience                4 marks g. Business ability / acumen                5 marks h. Personality                2 marks Allocation of marks on various parameters  

Exist ing  Head

Sub  heads

Description Marks Details/alloc ation  of  marks

Land  and  infra struc ture  

Suitable  land  for  retail  outlets

Owns  land/has  firm  offer  from  landowner /can  arrange  land

35 Marks to  be  allotted,  owns  land  and  willing  to  give  to  company:  35, has firm  offer  and  willing  to  give  to  company:  25,  owns  land and not  willing  to  give  to  company  but is willing  to  use  for  development  of  Retail  Outlet:  20,  firm  offer  but  not  willing  to  give  to  company  but is willing  to  use  for  development  of  Retail  

23

Outlet : 15 Sub total 35”

25. Both the appellant as well as respondent No.2 were 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, in view of the negative covenant contained in Clause 4 of the lease  

deed dated 18.3.2004. Furthermore in the application, 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 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 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 material. In our opinion, the Division Bench has  

24

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 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 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 the interview was conducted. Therefore, she could not  

have been allotted any marks, for her capability to provide land, in view  

of the negative covenant contained in the lease deed dated 16.3.2004.

27. A  clear  cut  procedure  has  been  laid  down  in  the  circular  

dated 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 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  

25

arrange land. Both on the date of the application and 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 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 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  

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  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 guidelines.

26

29. The  difference  between  the  circular  dated  4.9.2003  and  the  

brochure  dated  1.11.2004  is  that  under  the  latter,  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  process  which  had  been  

completed.  The  interview  in  the  ongoing  selection  has  been  held  

on 4.6.2004.  The panel, 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 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 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, 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  

27

the  ground  realities,  but  ignored  the  relevant  clauses  of  the  policy  

circular  dated  4th 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  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  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.

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 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 rejected the submission by placing  

28

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  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  

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  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  made by the said Minister in favour of 15 persons who 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 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  would be a case of  misplaced sympathy and we refrain from granting any relief  on any equitable consideration. In our 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  

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undue favour on the appellants in that 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 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 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 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 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 suit/action should be tried at all stages on the 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 suit/proceeding, cannot be considered at all.  It is the  power and  duty of the court to consider changed  circumstances.  A  court  of  law  may  take  into  account  subsequent events inter alia in the following circumstances: (i) the relief claimed originally has by reason of subsequent  change of circumstances become inappropriate; or

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(ii)  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.

(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 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 :-   

“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 powers of  this Court were wide under Article 136 it could not be urged  that because leave had been granted the 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 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 not the fifth court of 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. ”   

_ _ _ _ _ _ _   

”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  

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subserve  ultimately  the  cause  of  justice.”  (Emphasis  supplied)

These observations are fully applicable to the present case.

34. Again in the case of Municipal Board of Pratabgarh (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 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 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 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 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. 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 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 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  

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justice  are  paramount  while  dealing  with  the  industrial  disputes and, 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  Labour  Court  directing the appellant to pay certain amount to the workers.  Following this trend in State of M.P. v. Ram Ratan, this Court  while holding that the High Court was in error in 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  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  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  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  after  setting  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 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  

would  be  failing  in  its  duty  if  it  does  not  take  due  notice  of  the  

equitable considerations and mould the relief, to do complete justice  

between the parties.

35. The  aforesaid  observations  were  reiterated  in  the  case  of  

Taherakhatoon (supra):

“19. We may in this connection also refer to Municipal Board,  Pratabgarh v.  Mahendra  Singh  Chawla9 wherein  it  was  

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observed that in such cases, after declaring the 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.”

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 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 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 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 rendered arbitrary due to non-

observance of the stipulated criteria in the Policy Circular dated 4.9.2003  

and the Public Notice dated 12.2.2004.  We have also noted that it is not  

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a  case  where  the  selection  is  vitiated  by  proved  mala  fides;  nor  any  

allegations of undue favour being shown to respondent No.2 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 over all public interest, we decline to exercise the  

extra  ordinary  jurisdiction  of  this  court  under  Article  136  of  the  

Constitution of 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.      

                                ………...….…………………………J.                                [ALTAMAS KABIR]

 ……...……….………………………J.                        [CYRIAC JOSEPH]

………..…….……………………….J.                       [SURINDER SINGH NIJJAR]  

NEW DELHI: JULY 30, 2010.

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