# Kumud Vishwakarma v. Union of India & Ors. 2064 INDIAN LAW REPORTS ALLAHABAD SERIES

- **Citation:** (2016) 5 ILRA 2063
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-05-13
- **Bench:** V.K. Shukla, Umesh Chandra Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kumud-vishwakarma-v-union-of-india-ors-2064-indian-law-reports-allahabad-series-43923
- **Pages:** 20

## Headnote

A.S.G.I., Sri Nitin Chandra Mishra, S.C., Sri Sanjiv Singh, Sri Seema Singh, Sri V.K. Singh

.................................

Misapplication of Clause 9(b) of IOCL Brochure for Retail Outlet Dealership - Corpus Fund
Priority Benefit Not Extendable to Candidates Who Did Not Apply Under Corpus Fund Scheme -
Letter of Intent Quashed - Petitioner Kumud Vishwakarma applied for IOCL retail outlet dealership at
Naval Pur Chauraha, District Deoria (reserved for general women category) in response to advertisement
dated 26.10.2011; one of six candidates, Smt. Suman Sinha, applied for corpus fund facility under Clause 9(b)
of the Brochure; pursuant to Smt. Suman Sinha's application, IOCL excluded marks under "capability to
provide infrastructure and facilities" and "capability to arrange finance" for all candidates including those who
had not applied under the corpus fund scheme - on this basis, Priyanka Jaiswal (who secured '0' marks for
land/infrastructure) was accorded rank 1 while petitioner was placed at rank 3; Held, Clause 9(b) is a special
provision in favour of widows and unmarried women above 40 years without earning parents who specifically
request corpus fund facility - the priority evaluation methodology (excluding the two parameters for other
women candidates) applies only for the purpose of determining the priority of the corpus fund applicant over
other women candidates; once the corpus fund applicant (Smt. Suman Sinha) failed to make place for herself
on priority merit, inter-se merit of remaining candidates who did not apply under corpus fund scheme must be
examined on full 100 marks under Clause 13.1.1 without exclusion of any parameters; extending the exclusion
to all candidates even when corpus fund applicant fails, defeats the very purpose of Clause 9(b), dilutes merit
without promoting the protective objective and is ipso facto impermissible; construction that suppresses the
mischief of defeating merit in garb of misinterpretation of Rules must be preferred; Clause 9(b) must be read
in favour of candidate who actually applied for consideration of candidature under corpus fund scheme and
not in favour of candidate who did not even apply under corpus fund scheme. (Paras 1-17)

Land Offered by Selected Candidate Found Unsuitable by Land Evaluation Committee -
Suitability of Land Is Essence of Project Under Clause 14 - What Cannot Be Achieved Directly
Cannot Be Achieved Indirectly - Letter of Intent Quashed - Fresh Decision Directed - Selected
candidate Priyanka Jaiswal offered land for retail outlet which was found unsuitable by the Land Evaluation
Committee; Clause 14 of the Brochure provides that availability of suitable land for setting up of retail outlet
at advertised location is the "essence of the project"; land and details offered along with the application alone
are to be considered for this purpose and applicant will not be given the opportunity to offer any other land
subsequently; what could not be achieved directly - awa

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5 All. Kumud Vishwakarma Vs Union Of India & Ors.

2063
28. Pushtaini Kastakars and Non Pushtaini Kastakars have been classified based on the situation
qua the incumbents who were original residents of the area, which formed part of the NOIDA Authority,
and on account of acquisition of their land as a result thereof, of their existing place of living agriculture
land was being taken away and they were likely to be rendered landless and would have to face irreparable
hardship, since their land itself was being acquired and the second class of incumbents were such, who
have shifted to Noida after the Authority in question has been constituted.

29. The NOIDA Authorities, in their wisdom, have proceeded to classify two category of tenure
holders based on original resident, whose land has been acquired and from the class of persons who have
shifted to Noida after the Authority in question has been constituted. Additional compensation and exgratia amount has been given as rehabilitation bonus to those farmers whose land has been recorded in the
revenue records as on 17.04.1976 i.e. the date of constitution of NOIDA Authority and it was not at all part
of the compensation but it was an additional compensatory amount so that they can rehabilitate
themselves.

30. In the present case, the classification that has been so made cannot be said to be arbitrary or
unreasonable, inasmuch as, on one hand there are such tenure holders, who have been the original
residents, whose land has been got recorded in the revenue records before the constitution of NOIDA
Authority and who has to be rehabilitated and on the other hand, there is another class of tenure holders,
who are not at all the original residents but have subsequently migrated after the constitution of NOIDA
Authority, in view of this, once such is the factual situation that is so emerging, then the classification in
question that has been so carried out, has to be accepted as reasonable classification having direct nexus
with the object sought to be achieved that is proper rehabilitation of original residents i.e. sons of soil of the
area, who are likely to become landless due to acquisition of their land, in view of this, the challenge that
has been so made on the basis of discrimination, cannot be accepted by us and has to be overruled.

31. Consequently, challenge made sans merit, and all the writ petitions are dismissed accordingly.

32. No order as to cost
----------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.05.2016

BEFORE

THE HON'BLE V.K. SHUKLA, J.
THE HON'BLE UMESH CHANDRA SRIVASTAVA, J.

Writ C No.- 6760 Of 2014

Kumud Vishwakarma ...Petitioner
Versus
Union of India & Ors. ...Respondents
2064 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Petitioner:
Sri Mahendra Singh, Sri Keshari Nath Tripathi, Sri M.D. Singh Sekhar

Counsel for the Respondents:
A.S.G.I., Sri Nitin Chandra Mishra, S.C., Sri Sanjiv Singh, Sri Seema Singh, Sri V.K. Singh

.................................

Misapplication of Clause 9(b) of IOCL Brochure for Retail Outlet Dealership - Corpus Fund
Priority Benefit Not Extendable to Candidates Who Did Not Apply Under Corpus Fund Scheme -
Letter of Intent Quashed - Petitioner Kumud Vishwakarma applied for IOCL retail outlet dealership at
Naval Pur Chauraha, District Deoria (reserved for general women category) in response to advertisement
dated 26.10.2011; one of six candidates, Smt. Suman Sinha, applied for corpus fund facility under Clause 9(b)
of the Brochure; pursuant to Smt. Suman Sinha's application, IOCL excluded marks under "capability to
provide infrastructure and facilities" and "capability to arrange finance" for all candidates including those who
had not applied under the corpus fund scheme - on this basis, Priyanka Jaiswal (who secured '0' marks for
land/infrastructure) was accorded rank 1 while petitioner was placed at rank 3; Held, Clause 9(b) is a special
provision in favour of widows and unmarried women above 40 years without earning parents who specifically
request corpus fund facility - the priority evaluation methodology (excluding the two parameters for other
women candidates) applies only for the purpose of determining the priority of the corpus fund applicant over
other women candidates; once the corpus fund applicant (Smt. Suman Sinha) failed to make place for herself
on priority merit, inter-se merit of remaining candidates who did not apply under corpus fund scheme must be
examined on full 100 marks under Clause 13.1.1 without exclusion of any parameters; extending the exclusion
to all candidates even when corpus fund applicant fails, defeats the very purpose of Clause 9(b), dilutes merit
without promoting the protective objective and is ipso facto impermissible; construction that suppresses the
mischief of defeating merit in garb of misinterpretation of Rules must be preferred; Clause 9(b) must be read
in favour of candidate who actually applied for consideration of candidature under corpus fund scheme and
not in favour of candidate who did not even apply under corpus fund scheme. (Paras 1-17)

Land Offered by Selected Candidate Found Unsuitable by Land Evaluation Committee -
Suitability of Land Is Essence of Project Under Clause 14 - What Cannot Be Achieved Directly
Cannot Be Achieved Indirectly - Letter of Intent Quashed - Fresh Decision Directed - Selected
candidate Priyanka Jaiswal offered land for retail outlet which was found unsuitable by the Land Evaluation
Committee; Clause 14 of the Brochure provides that availability of suitable land for setting up of retail outlet
at advertised location is the "essence of the project"; land and details offered along with the application alone
are to be considered for this purpose and applicant will not be given the opportunity to offer any other land
subsequently; what could not be achieved directly - awarding dealership to candidate whose offered land
was found unsuitable - has been sought to be achieved indirectly through misapplication of Clause 9(b);
letter of intent issued in favour of Priyanka Jaiswal is accordingly not subscribed, the same is quashed and set
aside; Indian Oil Corporation Ltd. directed to take decision afresh in accordance with law preferably within two
months from the date of production of certified copy of this order. (Para 18)

Writ Petition Allowed - Letter of Intent Quashed - Indian Oil Corporation Directed to Take
Fresh Decision Within Two Months

Case Law Discussed:
Smt. Rakhi Thareja vs. Union of India, Civil Misc. Writ Petition No. 12281 of 2010

(Delivered by Hon'ble V.K. Shukla, J.)
5 All. Kumud Vishwakarma Vs Union Of India & Ors.

2065
1. Kumud Vishwakarma is before this Court seeking quashing of the order dated
16.12.2013 passed by General Manager, Indian Oil Corporation Ltd. Gomti Nagar, Lucknow,
wherein complaint preferred on behalf of petitioner has been rejected and further prayer has been
made for issuing writ in the nature of mandamus commanding and directing the Authority
concerned, not to give letter of intent to respondent no.5 Priyanka Jaiswal or pass any other suitable
order.

2. The factual matrix of the case in brief are that Indian Oil Corporation Ltd. (I.O.C.L.) is a
Company registered under the Companies Act and is a Government of India enterprise. The Indian
Oil Corporation, in its turn, has proceeded to advertise in a leading newspaper Dainik Jagran on
26.10.2011 inviting application form of various location throughout the length and width for award
of dealership for running its retail outlets. Petitioner has also proceeded to submit her application
form for award of dealership for Naval Pur Chauraha situated between Salempur to Bhagalpur
Road, SH-I, District Deoria. The said dealership is reserved for general women category candidate.
Petitioner submits that after completing all the requisite formalities, she was called for interview on
12th April, 2013 and the merit in question has been disclosed and therein select list has been
finalized wherein Smt. Priyanka Jaiswal has been shown at serial no.1, Smt. Pushpa has been
shown at serial no.2 and Smt. Kumud Vishwakarma has been shown at serial no.3. Petitioner
submits that she made a complaint before the Indian Oil Corporation Ltd. and there were other
candidates, who have also filed complaint before the Indian Oil Corporation and the Indian Oil
Corporation, in its turn, has proceeded to non-suit the claim of incumbents by mentioning that final
merit panel of subject location has been prepared as 'corpus fund' location i.e. these marks under
the head capability to arrange finance were excluded while finalizing the merit panel. Based on the
above facts and findings, view has been taken by the Indian Oil Corporation that the contention of
the complainant was irrelevant as the marks under the head capability to arrange were excluded
while finalizing the merit panel.

3. On the presentation of the writ petition in question, this Court on 7th February, 2014
proceeded to pass following order:

"Heard Sri Keshari Nath Tripathi, Senior Counsel, appeared for the petitioner and
Sri Sanjeev Singh, learned advocate, appeared on behalf of respondents no. 2, 3 and 4.

The A.S.G.I. has accepted notice for respondent no. 1.

Issue notice to the respondent no. 5 returnable at an early date.

This matter had been taken up yesterday and we had called upon the learned
counsel to assist the Court as to whether the respondent no. 5 was entitled to receive the benefits of
allotment in spite of the fact that the land offered by her, was found to be unsuitable and also as to
whether she would fall within the same category, as one of the candidates namely Smt. Suman
Sinha, who had applied under Corpus Fund Scheme.
2066 INDIAN LAW REPORTS ALLAHABAD SERIES
We have heard Sri Sanjeev Singh, who has tried to assert that in order to determine
the priority as per Clause 9(b), the marks secured by other women under the parameter of capability
of infrastructure and finance, has to be excluded and, consequently, the same was excluded for the
purpose of such consideration where after the respondent no. 5 appears to be entitled for award of
dealership.

He has further invited the attention of the Court to the relevant

remarks (tippani) under Clause 1-Ka of the advertisement to contend that even if
the land was not available with the respondent no. 5 yet according to the said instructions as
advertised two months further time can be granted to such a candidate to provide alternate land. He,
therefore, submits that the writ petition is premature and this exercise has to be undertaken at the
time of the issuance of letter of intent. He, therefore, contends that neither the respondent no. 5 is
ineligible nor any challenge can be raised so as to question of correctness of the decision dated
16.12.2013.

Sri K.N. Tripathi, learned counsel for the petitioner, submits that as per the
provisions under the brochure itself, Clause 14 categorically provides that availability of suitable
land for setting up of a Retail Outlet is the essence of the project. He, therefore, submits that in the
absence of any suitable land, the candidature of respondent no. 5 does not deserve to be considered.
He has invited the attention of the Court to the recital in the impugned order which indicates that
the Land Evaluation Committee had found the land offered by the respondent no. 5 to be
unsuitable.

At this juncture, Sri Sanjeev Singh has invited the attention of the Court that the
land further offered by respondent no. 5 was under the joint ownership with one Shiv Raj and in
such circumstances a subsequent withdrawal of consent will not in any way to take away the rights
of the respondent no. 5 to offer an alternative land which has to be done in view of the arguments
advanced herein above for the purpose of providing the land as per remarks 1-Ka.

Prima facie we are not able to agree with the submission of Sri Singh inasmuch as
the requirement of a priority being given amongst candidates, who are equal is contemplated in
order to provide benefit to such a candidate who applies under the Corpus Fund Facilities for
women.

The respondent no. 5, admittedly, has not applied under the said category and it
was one Smt. Suman Sinha alone who had applied for the same. In order to construe the provisions
of Clause 9 (b) read with remarks 1-Ka, it is clear that the same has to be read in favour of the of a
candidate who had applied under the scheme and not in favour of a candidate who has not applied
in the Corpus Fund Scheme.

In the instant case, the respondent no. 5 is being projected as a candidate entitled to
the benefit in spite of that she had not applied under the Corpus Fund Scheme.
5 All. Kumud Vishwakarma Vs Union Of India & Ors.

2067
Consequently, until further orders of this Court, we hereby provide that no letter of
intent shall be issued to the respondent no. 5 during the pendency of the writ petition.

Respondents may file counter affidavit within three weeks. Rejoinder affidavit, if
any, may be filed within a week thereafter.

List thereafter."

4. Counter Affidavit has been filed, in the present case, and therein a precise stand has been
taken that the order passed by General Manager, Indian Oil Corporation Ltd. dated 16.12.2013 is
strictly in line with policy guidelines with respect to retail outlet dealership selection and entire
selection has been made in fair, transparent and reasonable manner and Smt. Suman Sinha has
submitted her application under scheme of corpus fund facility meant for widow candidate and in
view of this, the candidature of every candidate has been considered on the parameters that has
been fixed and accordingly, no interference is required to be made in the present case.

5. Counter Affidavit filed on behalf of Priyanka Jaiswal, is also on the same lines
mentioning therein that action has been taken strictly in consonance with paragraph 9 (b) of the
Brochure and as per the paragraph 7 of the advertisement.

6. To this Counter Affidavit, Rejoinder Affidavit has been filed and thereafter present Writ
Petition in question has been taken up for final hearing and disposal with the consent of parties.

7. Shri H.N. Singh, Senior Advocate assisted by Shri Mahendra Singh, Advocate submitted
that, in the present case, the Indian Oil Corporation has acted contrary to the guidelines as has been
prescribed in the matter of petrol/diesel retail/outlet dealership and the incumbent who has been
sought to be selected, though her merit status is lower as compared to the petitioner but by
misreading and misapplication of provision of Clause 9 (b) undue favour has been extended to her
and in view of this, writ petition in question deserves to be allowed.

8. Shri Sanjeev Singh, learned Counsel representing Indian Oil Corporation as well as Shri
Nitin Chandra Mishra, Advocate appearing for the selected candidate, on the other hand, contended
that once one of the candidate has proceeded to apply for consideration of her candidature under
the corpus fund category, then the candidature of each and every candidate was to be considered
ignoring the marks secured by other women candidate under the two parameters namely
"Capability to provide infrastructure and facilities" and "Capability to provide finance" and on the
said parameters Priyanka Jaiswal, on merit, has been selected and as such, there is no infirmity in
the order dated 16.12.2013.

9. In order to appreciate the respective arguments that have been so advanced, the relevant
extract of the brochure dealing with selection of dealership of Petrol/Diesel Retail Outlet Dealers
dated 01.03.2012 is being looked into. Clause 1 of the said Brochure deals with Identification of
locations. Clause 2 of the said Brochure deals with Mode of selection of dealers. Clause 3 of the
2068 INDIAN LAW REPORTS ALLAHABAD SERIES
said Brochure deals with Reservation for Retail Outlet (RO) Dealerships. Clause 3.1 of the said
Brochure deals with the Percentage reservation, State wise, for various categories and Clause 3.2
of the said Brochure deals with Reservation for women that provides 33% of the dealerships in
each category will be reserved for Women. Clause 4 of the said Brochure deals with Eligibility
Criteria. Clause 8 of the said Brochure deals with Scheme of Financial Assistance to SC/ST
category dealerships under 'Corpus Fund' Scheme. Clause 9 of the said Brochure deals with corpus
fund facilities for women. Clause 13 of the said Brochure deals with Interview. Clause 13.1.1 of
the said Brochure deals with Norms for Evaluating the candidates. Clause 14 deals with preference
for applicants offering suitable land. Relevant clauses i.e. Clauses 8, 9, 13.1.1. and 14 of the said
Brochure are being quoted below:

"8. SCHEME OF FINANCIAL ASSISTANCE TO SC/ST CATEGORY
DEALERSHIPS UNDER 'CORPUS FUND' SCHEME:

Financial assistance will be given to persons belonging to Scheduled Castes and
Scheduled Tribes on award of dealerships by IOC as under:

(a). In respect of locations reserved for SC/ST categories, IOCwill make available
a Retail outlets ready with all basic facilities at its own cost. Therefore the applicants belonging to
SC/ST categories applying against locations covered under 'Corpus Fund Scheme' are not expected
to offer land and infrastructure/facilities and finance.

(b). IOC will also provide adequate working capital loan for a fulloperation cycle
of the operation of the dealerships. Both the working capital as well as 11% annual interest thereon
will be recovered in 100 equal monthly instalments commencing from 13th month of
commissioning of the Dealership.

(c). The allottees will have to pay a Licence Fee to IOC asapplicable from time to
time.

(9). CORPUS FUND FACILITIES FOR WOMEN

(a). War widows will be eligible for the faclilities as mentionedunder para 8 above.

(b). Subject to the application and request, widows andunmarried women above 40
years of age, without earning parents, for locations reserved for women will not be judged under
the head "capability to provide infrastructure and facilities" and "capability to provide finance".
These applicants will be required to indicate in the application form itself whether, they will like to
avail the Corpus Fund Facilities. In case, this is not indicated in the application form, it will be
construed that such applicants would like to get evaluated in line with other applicants i.e. they
should also be assessed under the heads "Capability to provide infrastructure and facilities" and
"capability to provide finance". For determining the priority to be given to such candidates over
5 All. Kumud Vishwakarma Vs Union Of India & Ors.

2069
other women candidates, the marks secured by other women under these two parameters will be
excluded from the total marks secured by them.

(c). On their application and subject to satisfaction of IOC,unmarried women
above 40 years of age without earning parents and, widows, selected for dealership in all categories
including those which are not reserved for women will be entitled to financial assistance under the
Corpus Fund as mentioned under Para 8 above.

13.1.1. NORMS FOR EVALUATING THE CANDIDATES:

(I) The eligible applicants will be evaluated out of a total of 100 marks through a 3
tier process comprising the following steps:

The offered land will be evaluated as per laid down parameters by the 'Land
evaluation committee' which will in turn decide the marks in respect of parameter 'Capability to
provide land and infrastructure/facilities' which carries a maximum mark of 35.

'Level-1 Committee' will scrutinise the documents and allocate marks with regard
to documents based parameters out of a maximum of 56 marks (for individuals)/53 (for non
individuals).

'Interview committee' will carry out personal interview and award marks out of the
remaining maximum 9 marks (for individuals)/12 (for non individuals) based on specified
parameters and complete the selection process.

(ii) The evaluation of eligible applicants will be carried out based on the following
broad parameters:

Sr
No.
Parameter
Maximum Marks :
individuals
including
partnership
Maximum Marks :
Non
individuals
Entities
a.
Capability to provide land and
infrastructure/facilities
35
35
b.
Capability to provide finance
25
25
c.
Education qualification
15
0
d.
Capability to generate business
10
25
e.
Age
4
4
2070 INDIAN LAW REPORTS ALLAHABAD SERIES
f.
Experience
4
4
g.
Business ability/ Acumen
5
7
h.
Personality
2
0

Total
100
100

* Not applicable for cases where the prospective dealer is not required to offer / arrange land
and Finance.

Allocation of marks on various parameter
Parameter
Sub
Description
Max
Evaluation

Heads

Mark
s

Capability to
provide Land and
infrastructure /
facilities ( Max. 35
marks applicable to
individual and non -
individual)
Suitable
land
for
retail
outlet
'A' site
Having clear title to land "own
land" / Regd. Sale deed as on
date of application.
'B' site
Having clear title to land "own
land" / Regd. Sale deed /
having land on long lease
(regd) for a minimum period of
19 years 11 months as on date
of application.
35

35
Based on
verifying the
documents
submitted and
evaluation of
committee as
explained in Pt..
14 and 15 below
'A' site
Having "firm offer " of land
for purchase
'B' site
Having "firm offer " of land
for purchase/ long lease
25

25

 Capability

to
provide
Financi
ally
 Ready
 availability of
Finance (20 marks)

Based on
verifying the
5 All. Kumud Vishwakarma Vs Union Of India & Ors.

2071
Finance( Max. 25
marks applicable to
individual and non -
individual)
sound
Liquid cash in the form of bank
balance, Fixed deposits, shares
of listed companies etc.
12
documents
submitted
valuation
report duly
certified bt
Govt Approved
Valuers in
support of assets
is necessary.
Fixed and movable assets
includes own land buildings,
shops, house, vehicles, etc
4
Income includes agricultural
income, business income
interest, rent royalty, etc. Duly
supported by documentary
evidence.
4

Parameter
Sub heads
Description
Max
Mark
s
Evaluation
Note:-
1.
Marks will be awarded in proportion to Capability/ Availability offunds as
compared to requirement ( as indicated in advertisement)
2.
The finance owned by the family unit will also be considered asbelonging
to the applicant subject to applicant providing a consent letter from the
concerned member from the family unit on notarised affidavit. The family unit
is already defined in para 6 above . With regard to source of funds declared by
the applicant in the application form , it is necessary that the same would be
made available for the RO development purpose as and when required. The
applicant should submit an affidavit( Appendix A or A1) in this regard. In case
the candidate fails to make available the funds committed at the time when

it is actually required or could not substantiate during the interview/ at a later
date. The candidature/ dealership is liable to be cancelled.
3. Cash jewellery and instruments where the ownership cannot be established
will not be considered as 'Liquid Cash' or Assets.
2072 INDIAN LAW REPORTS ALLAHABAD SERIES
Credit
worthiness
Letter ensuring credit:Bank/
Financial institution/
individuals/ party's letter
ensuring credit / credit
worthiness certificate from
scheduled Bank / Financial
institutions.
5
Credit worthiness
certificate(Appendix- A2)
from scheduled Bank /
Financial institutions and/
or expressing willingness to
extend loan if required.
Educational
Qualificati
on (Max.
15 marksin
case of
individual)
1
Based on the educational
qualification

proof
provided by the applicant
the following marks will be
awarded to
(i) Individual

Based on documentary
evidence by furnishing
certificate/ mark sheet from
Board / University
Examination as applicable.
(a) Post Graduation in
management
(b) Diploma in
management from Indian
Institute of Management
(c) Graduation in
Engineering
(d) Graduation in Law
(e) Chartered Accountant
15
2
(a) Post Graduation in any
other field not
covered in Para (1) above
(b) Graduation in any other
field not covered in
Para (1) above
Cost Accountant
Company Secretary
Diploma

in
Engineering
12
--do--
3
Matriculation
10
--do--

(ii) Non - individual
candidates will not be
evaluated for education
parameter
0
5 All. Kumud Vishwakarma Vs Union Of India & Ors.

2073
Age (Max.
4 marks-
for
individual
and Non-
individual
Completed
in years as
on date of
application
(Completed
no in years
of
existence as
on date of
application
Marks will be awarded on
the following basis : (i) for
Individual

Based on documentary
evidence (Matriculation or
Secondary school leaving
certificate, Passport, PAN
Card, Identity card issued
by Election Commision or
an Affidavit
21 years and more but less
than 26 years
2
26 years and more but less
than 46 years
4
46 years and more but less
than 56 years
2
56 years and more but less
than or equal to 65 years

(ii) For non -individual
1

Less than 3 years
More than 3 years but
less than 5 years
More than 5 years

0

2

4
Based on documentary
evidence
Capability
to generate
business (
Max. 10
marks- for
individual
and 25 for
non-
individual)
Tapping of
sales
volume
from family

/
firm
business
Assessments on tie up with
prospective
customers(Based on
Affidavit in Appendix-A3
produced with the
application). Tie up of 1/3rd
or higher volume of the
quantity indicated in the
advertisement will qualify
for full marks and
proportionate for lower
volume.-
(i) For Individuals
(ii) For Non-Individuals
5
12
Production of documents
and based on the volume of
tied up quantity as per
Affidavit from prospective
customers.
2074 INDIAN LAW REPORTS ALLAHABAD SERIES
Project
Report
Based on the project report
for realising sales potential
submitted by the applicant.
(i) For Individuals
(ii) For Non-Individuals
3
8

Based on the evaluation of
the project report
Assessme nt

by
interview
committee
Overall judgement of
candidate's ability to
generate
business
including future plans for
growth.
(i) For Individuals
(ii) For Non-Individuals
2
5

As per the assessment of
selection committee based
on leading questions during
interview

Parameter
Sub heads
Description
Max
Marks
Evaluation
Note: Sales potential as estimated by Oil Companies will be indicated in the advertisement
against each location. The candidate , while applying, will have to submit an affidavit (
Appendix - A3) from the prospective customers, in support of his claim with regard to his
ability to tap the sales potential from the prospective customers. It will be clearly indicated in
the affidavit ( Appendix - A3) that such prospective customers has not given similar consent
to any other applicant for the concerned location. The indicative parameters in this regard are
as under:
Tied up volume with transporters/ Taxi / Rickshaw Operators/ Transporters/ Transport
Association/ private cars/ agricultural equipment/ mining / earth moving equipment/ Own
vehicles/equipments/ machinery, tie up with industries regarding requirements or power
generation etc. In case the affidavit is not factual or not substantiated during interview/at later
date, the candidature/ dealership is liable to be cancelled.
Experienc e
(Max. 4
marks for
individual
and non
individuals
Business
experience
(i) For individual
 Retail

trade

of
Petroleum products
4
Based on furnishing of
documentary evidence to
establish relevant
experience. Full marks for
experience of 1 years and
proportionately for
experience of less than 1
Related petroleum trade /
transport / automobiles
3
Hospitality/

Service industry/
FMCG
2
5 All. Kumud Vishwakarma Vs Union Of India & Ors.

2075

Others
(i) For Non - Individual
Petroleum
automobiles/ Transport
Service Any sector other
than mentioned above
1
4
2
1
year.
In case of individual,
experience of Retail trade of
petroleum products will
include experience of having
worked as Manager in a
Retail Outlet or COCO
Contractor.
Business
Ability /
acumen
(Max. 5
Marks for
individual
and Max. 7
marks for
non
individuals
)
Assessment by
interview
Committee
(a) Marks will be awarded
based on project report/
leading questions with
regard to earlier handling
of business as well as
response to specific
situation related queries as
under:
Management of people
Management

of
finance/ infrastructure
Trade related
For individual
For No- Individual

(b) Based on proven
ability/ acumen as in
earlier/ existing business
For individual
For No- Individual
3
4

2
3
2076 INDIAN LAW REPORTS ALLAHABAD SERIES
Personalit y
(Max. 2
marks for
For
individual
and 0 for
No-
Individuals
)

Assessment of the
committee on the
following parameters: -

(i)For individual
Communicati-
on/ articulation skills

Polite, presentable
and
well mannered

Enthusiasm/
energetic/ medical history

Self
Confidence / convincing
Power

(ii) For No- Individual
Non individual
candidates will not be
evaluated for parameter
personality
2

0
Assessment based on the
observation and leading
questions.

Grand Total
100

14. PREFERENCE FOR APPLICANTS OFFERING SUITABLE LAND

Availability of suitable land for setting up of KSK retail outlet at the advertised
location is the essence of the project. Wherever IOC expects the applicant to have arrange suitable
land for the dealership, the same is mentioned against each location in the advertisement. The
suitability of land will be assessed by IOC as per norms given in para 15 of Brochure. The land and
details offered along with the application alone will be considered for this purpose and applicant
will not be given the opportunity to offer any other land subsequently. The land offered by the
applicant can be in either of following category:

(a) Owned land:

The following will be considered as owned land:

(i) Land owned by the applicant exclusively

(ii) Land owned by the "family" members exclusively
5 All. Kumud Vishwakarma Vs Union Of India & Ors.

2077
(iii) Land owned by the applicant exclusively with "family" members

(iv) Land owned by the applicant along with others provided shareof applicant in
the land meets IOC's requirement.

The land falling in category (ii), (iii) & (iv) will be considered as belonging to the
applicant subject to applicant producing the consent on notarized affidavit signed by all other coowners. The definition of "Family Unit" will be as per para 6 of Brochure.

In additional to above, for locations to be developed as Dealer Owned site (marked
'Yes' in column 6 of advertisement)the land on long terms lease (for a minimum period of 19 yrs 11
months) will also be considered as owned land subject to above conditions. In other words, for
locations to be developed as Corporation Owned site (where 'Yes' is marked in column 5 of the
advertisement), leased land will not be considered.

(b) Firm Offer of land:

In addition to land covered under para (a) above, applicants also have the option to
offer land with firm offer of land from land owner/s. Such offer from land owner/s should be in the
form of notarized affidavit giving details of land, Khasra/Khatauni no., name of village/location,
ownership details etc.

NOTE:

(i) However, if an applicant, after selection on the above basis, isunable to provide
the land indicated in the application within a period of TWO months from the date of Letter of
Intent (LOI), IOCL will have the right to cancel the allotment of dealership mad to the applicant.
The suitability of the Land will be decided by IOCL. In this case IOC will provide all fixed
facilities at its cost at the site so taken from the applicant on purchase/long term lease basis.
However, there is no commitment from IOCL for taking the offered Land from the applicant.

(ii) Wherever IOC has advertised that it also expects the applicantto provide
suitable land at the advertised location to IOC on sale/long lease, their willingness to transfer such
land to IOC should be clearly indicated in the applicant under Para 12(f). Considering the location
of the land from the point of view of suitability from technical and commercial angel and rates
applicable to IOC, applicants willing to transfer the land on ownership/long term lease to IOC
would be considered. However, there is no commitment from IOC for taking the offered Land from
the applicant.
(iii) Documents For Offered Land
The applicant should furnish at least one of the following document(in support of
ownership) which should have been issued/revalidated on or after the date of advertisement: (i)
Khasra/Khatauni or any equivalent revenue document of Certificate of the land. Or (ii) Registered
2078 INDIAN LAW REPORTS ALLAHABAD SERIES
sale deed/Registered lease deed or any other type of ownership transfer deed/document in favour of
applicant.

(iv) Copy of the lease agreement or allotment letter issued by Government/SemiGovernment/Autonomous bodies like DDA, NOIDA, HUDA etc. will be considered for ownership
of land offered.
(v) In addition to documents in para (iii) and (iv) above, following additional
documents are also required, as applicable.

SN
Situation of Onwership
Share

of
applicant's
Land
Documents required
(ownership/Revenue
record)
Evaluation
as
1
Self
Full
Nil
Owned land
2
Exclusively by the "Family"
members
Nil
Notarized affidavit by
all owners in favour of
applicant
Owned land
3
Self exclusively with "Family"
members
Part
Notarized affidavit by
all co-owners in favour
of applicant
Owned land
4
Self with Others
Share

of
applicant
more
than
IOC
requirement
Notarized affidavit with
demarcation of land
(portion of land to be
given for dealership by
the
applicant)
Owned land
5
Self with Others
Share

of
applicant
more
than
IOC
requirement
Notarized affidavit
without demarcation
of land (portion of land
to be given for
dealership by the
applicant)
Firm Offer
6
Self with Others
Share

of
applicant
more
than
IOC
requirement
Notarized affidavit
Firm Offer
7
Others
Nil
Notarized affidavit
Firm Offer
5 All. Kumud Vishwakarma Vs Union Of India & Ors.

2079
8
Where the land falling is Owned
land category as described in
above category at Sr. No. from
1 to 4 is not sufficient for
development of retail outlet and
land is category 5 to 7 is also
offered to meet IOC's
requirement
Nil or Part
Document as applicable
for
category at Sr. No.1 to
4 and Document as
applicable for
category at Sr. No.5 to 7.
Firm Offer

(v) Land document will be sent to District Magistrate/District Collector for
verification of title for ownership of land before considering land for evaluation."

10. The factual situation that is so emerging, in the present case, is that accepted position is
that petitioner has been one of the candidate, who also proceeded to apply for grant of retail outlet
alongwith five others. Smt. Suman Sinha, one of the six candidates, proceeded to make an
application and requested therein for providing her infrastructure facilities as well as finance under
Corpus Fund Scheme. Candidature of all the candidates have been dealt with as follows:

DISPALY MARKSHEET

Type of dealership: RETAIL OUTLET SITE
DO : GORAKHPUR
Location : Within 23 km from Nawalpur Chauraha Towards Bhagalpur on Salempur to
Bhagalpur Road (SH-I)
Deoria
State : Uttar Pradesh
Cat
OP(W)
Date of Advertisement:
20.10.2011
Date of Interview
 : 12.4.2013

S
N
o.
NAME OF
CANDID-
ATE
Capability to
provide
infrastructure
and
facility
Capability to
arrange Finance
Education
Qualif
icatio
n
Capability to generate
business
Age Experience Business
Acument
Personality Total
Marks
Total
marks
out of
40
exclud
ing
land
and
finance
MERIT
PAN-
EL

Marks
Liquid
cash
in
sched
uled
bank
in the
form
of FD
Letter
Ensuing
loan/
credit
worthine
ss
certificate
Tied
up
volume
Project
Report
Over-
all
Assessme
nt

Max
Total marks 25
Total
marks 15
Total marks 10
Max Max
Max
Max
100
40

SHRI/SM
T/MS
35
20
5
15
5
3
2
4
4
5
2
100
40
2080 INDIAN LAW REPORTS ALLAHABAD SERIES
1 SMT.
ANITA
DEVI
24.5
5.19
5
12
5
0
1.08
4
4
3
1.08
N/A
30.16
2 SMT
KUMUD
VISHWAK
RMA
23.75
16
5
12
5
2
1
4
4
2.5
1
N/A
31.5
THIRD
3 PRIYANK
A
JAISWAL
0
16.91
5
12
5
2.5
1.33
2
4
4.17
1.58
N/A
32.58
FIRST
4 SMT
PUSHPA
SHARMA
0
16
5
12
5
2
1.17
4
4
3.17
1.05
N/A
32.42
SECOND
5 SMT
SHEETAL
SRIVAST
AVA

N/A

6 SMT
SUMAN
SINHA
N/A
0
5
10
5
0
1.08
4
3.33
3
1.47
N/A
27.58

* Total marks evaluated out of 40 marks only(excluding land and finance) as candidate at Sl
no. 6 has applied for corpus fund facility .
Sd/- illegible
Sd/- illegible
Sd/- illegible
12.4.13
12.4.13
12.4.13
Member 1
Member 2
Member 3

11. A bare perusal of the display of marksheet would go to show that Priyanka Jaiswal and
Smt. Pushpa Sharma, both have been awarded '0' marks in reference of providing infrastructure
facility and as far as petitioner is concerned, she has been awarded '23.75' marks and in reference of
capability to arrange finance; Priyanka Jaiswal has been awarded '16.91' marks and Smt. Pushpa
Sharma has been awarded '16' marks and petitioner has been awarded '16' marks and it is reflected
from the said display of marksheet that total marks have been evaluated out of 40 marks (excluding
land and finance), as candidate at Sl No.6 has applied for corpus fund facility.

12. Issue is as to whether the provision of Clause 9 (b) has rightly been read and
understood or it has been totally misapplied in the facts of the case.

13. Clause 9 (b) is meant for the benefit of an applicant who has applied as a widow or
unmarried women above 40 years of age, without earning parents and in case she intents to have
infrastructure facilities and finance facilities, she is required to indicate in the application form
itself as to whether she will like to avail the Corpus Fund Facilities and in case it is not indicated in
the application form, it will be construed that such applicants would like to get evaluated in the line
with other applicants i.e. they should also be assessed under the heads "capability to provide
infrastructure and facilities" and "capability to provide finance". A further mention has been made
that for determining the priority to be given to such candidates over other women candidate, the
marks secured by other women under these two parameters will be excluded from the total marks
secured by them. This particular provision has been subjected to challenge in the case of Smt.
5 All. Kumud Vishwakarma Vs Union Of India & Ors.

2081
Rakhi Thareja vs. Union of India, Civil Misc. Writ Petition No.12281 of 2010 on the ground of
being discriminatory and this Court has negated such arguments advanced by mentioning that said
provision providing classification amongst women is neither arbitrary nor discriminatory.

14. Clause 9(b) is a special provision in favour of widow and unmarried woman above 40
years of age without earning parents, who are applicant and are seeking help for Corpus Fund
Facilities. In such a situation for determining the priority to be given to such candidate over other
women candidates, the marks secured by other women under these two parameters will be
excluded. Provision in question is thus clear in its intent i.e. to extend priority to such candidate
over other woman candidate.