High Court
Case Details
WP(C) 2698/2012 BEFORE THE HON’BLE MR JUSTICE UJJAL BHUYAN Judgment & Order (Oral) By way of this petition, under Article 226 of the Constitution of India, petitio ner seeks a direction to the respondent Nos. 1 & 2 not to issue allotment order of Servo Stockist (Industrial) in favour of respondent No. 3 and if issued, to q uash the same. Further prayer made is for a direction to the respondent Nos. 1 & 2 to make fresh allotment by strictly following the eligibility criteria provid ed in the advertisement notice dated 07.07.2011 and the modified guidelines cove ring such selection. 02.
Legal Reasoning
Case of the petitioner is that Indian Oil Corporation Ltd. (IOC) issued an advertisement which was published in the newspaper, ’The Assam Tribun e’ on 07.07.2011, inviting applications from eligible candidates for appointment of Servo Stockist (Industrial) at location Guwahati within town/area Guwahati i n the Revenue District of Kamrup in the State of Assam. Eligibility conditions w ere specified in the said advertisement. Both the petitioner and respondent No. 3 submitted applications pursuant to the aforesaid advertisement. As a matter of fact, only 2 individuals i.e., petitioner and respondent No. 3 had submitted ap plications. Interview was held on 05.09.2011. Petitioner could come to know ther eafter that respondent No. 3 was given the first rank, whereas petitioner was pl aced in the second position. When petitioner submitted objection and also submit ted application under the Right to Information Act, 2005, he was permitted to vi sit the office of respondent No. 2 on 29.02.2012 and was allowed to have a glanc e at the marks obtained by the petitioner and respondent No. 3 which the petitio ner had jotted down. Petitioner found that under certain heads he was given very low marks or no marks at all as compared to very high marks given to respondent No.3. Aggrieved, petitioner had submitted a representation dated 12.03.2012 req uesting respondent Nos. 1 & 2 to reconsider the assessment of both the candidate s and also drew the attention of the authorities to the provisions of the modifi ed policy guidelines for selection of Servo Stockist (Industrial) issued on 08.0 8.2011, which apparently were not followed in the selection in question. 03. nt writ petition has been filed. As the above representation failed to elicit any response, prese 04. Contention of the petitioner is that while he had furnished loca tion within Guwahati City for exclusive use of Servo Stockist (Industrial), resp ondent No. 3 had shown land for such use in village Abhoypur under Mouza Sila Si nduri Ghopa at North Guwahati, which is outside the limits of Guwahati Municipal Corporation (GMC) area. On this count itself, candidature of respondent No. 3 o ught to have been cancelled. Yet the Selection Committee awarded 20 marks to res pondent No. 3 under this head at par with the petitioner. Petitioner also conten ds that respondent No. 3 was undeservingly given higher marks under various sele ction criteria heads. As a result, respondent No. 3 had secured 78 marks out of 120, whereas petitioner had secured 56.67 marks out of 120. It is the further co ntention of the petitioner that as per modified policy guidelines dated 08.08.20 11, the maximum marks have been scaled down from 120 to 100 because of scaling d own of marks in respect of various selection criteria heads. This aspect was com pletely overlooked by the Selection Committee, which vitiated the selection proc ess. Respondent Nos. 1 & 2 have filed common affidavit. Stand taken i 05. s that the advertisement dated 07.07.2011 for selection of Servo Stockist (Indus trial) was for the location at Guwahati, town/area Guwahati in the Revenue Distr ict of Kamrup. There was no mention in the advertisement that the location shoul d be within the municipal limits of GMC. However, as per master plan for Guwahat i Metropolitan area published vide Notification No.GMDA/MP/1/98/Part-I /103, dat ed 07.07.2009, Abhoypur village under Sila Sinduri Ghopa Mouza is included withi n the Guwahati Metropolitan area. Therefore, contention of the petitioner that l and offered by respondent No. 3 is outside Guwahati town/area has been disputed and denied. Regarding allegation of awarding of disproportionate marks by the Se lection Committee, it is stated that marks were awarded by the members of the Se lection Committee based on their assessment of the respective candidates. Respon dent Nos. 1 & 2 have further stated that since the advertisement was issued as p er existing policy guidelines dated 01.12.2008, assessment of the candidates wer e made as per the said guidelines and not as per modified guidelines dated 08.08 .2011, which are not applicable in the present case. 06. Respondent No. 3 in his affidavit while disputing and denying th e contentions of the petitioner has stated that on 23.05.2012, IOC had issued le tter of appointment in his favour to operate Servo Stockist (Industrial) and to furnish bank guarantee. Thereafter, a Servo Stockist (Industrial) agreement date d 28.01.2013 was executed between respondent Nos. 1 & 2 on one hand and responde nt No. 3 on other hand.
Legal Reasoning
07. Heard Mr. A Sattar, learned counsel for the petitioner and Mr. M K Choudhury, learned Senior Counsel assisted by Mr. N Baruah, learned counsel fo r respondent Nos. 1 & 2. Also heard Mr. R Dubey, learned counsel for respondent No. 3. 08. Learned counsel for the petitioner submits that respondent No. 3 does not fulfill the basic criteria of having land to set up the Servo Stockist (Industrial) within Guwahati town/area. The land offered by him is outside the municipal limits of GMC and is under a Panchayat. Therefore, the authority made a patent error in selecting respondent No. 3 above the petitioner. He also submi ts that on an assessment of the comparative merit of the candidature of both pet itioner and respondent No. 3, it would be clear to any reasonable person that pe titioner is a better candidate and ought to have been preferred over respondent No. 3. He further submits that the Selection Committee members were totally obli vious of the modified policy guidelines, which were in force when the interview was held. He, therefore, prays for quashing of allotment in favour of respondent No.3 and seeks fresh consideration. 09. Opposing the above submissions of learned counsel for the petiti oner, Mr. Choudhury, learned Senior Counsel appearing for respondent Nos. 1 & 2 submits that as per Govt. Notification dated 07.07.2009 as referred to above, Ab hoypur village under Sila Sinduri Ghopa Mouza is included within the Guwahati Me tropolitan area. The advertisement did not mention that the land offered for est ablishing such Servo Stockist (Industrial) should be located within the municipa l limits of GMC. Therefore, the contention of the learned counsel for the petiti oner that land offered by respondent No. 3 is outside Guwahati is contrary to th e record and is not tenable. He has also referred to the averments made in parag raph 10 of the counter-affidavit and has contended that there is no infirmity in the award of marks by the Selection Committee. Mr. Choudhury further submits th at in absence of attributing any malafides to the Selection Committee members, p etitioner would be precluded from lodging any challenge to the selection, he hav ing participated therein. Members of the Selection Committee have also not been made parties to the proceeding, he submits. He has placed the relevant record fo r consideration of the Court. 10. Similar is the submission made by Mr. R Dubey, learned counsel f or respondent No. 3, who submits that as the respondent No.3 was found better qu alified than the petitioner, the Selection Committee selected him and such selec tion does not suffer from any infirmity. Question of application of modified gui delines would not arise, as those came into effect subsequent to the advertiseme nt, he submits. 11. Submissions made have been considered. I have also perused the r elevant record. 12. From the pleadings as well as from the submissions made by learn ed counsel for the petitioner, it is seen that the challenge to appointment of r espondent No. 3 as Servo Stockist (Industrial) is basically on two grounds. Firs tly, the land offered by respondent No. 3 is not within the municipal limits of Guwahati and, secondly, the selection stood vitiated by award of improper and ex cessive marks in favour of respondent No. 3, because of overlooking of modified guidelines, which had, in the meanwhile, come into force. 13. Coming to the first ground of challenge, a perusal of the advert isement dated 07.07.2011 shows that IOC proposed to appoint Servo Stockist (Indu strial) at location Guwahati with town/area as Guwahati in the Revenue District of Kamrup. The way the location has been described, it is clearly indicative of the fact that IOC was looking at a larger area and not looking to set up the sto ckistship within an extended area. Had it not been so, it would have been specif ied as Guwahati Municipal area or area within the jurisdiction of GMC. In fact, the letter of appointment issued to the respondent No. 3 shows a large area of o peration covering a whole lot of districts. On the contrary, as per Govt. Notifi cation dated 07.07.2009, placed on record by respondent Nos. 1 & 2, Abhoypur vil lage in Sila Sinduri Ghopa Mouza is included within Guwahati Metropolitan area, as it has been included in the master plan for greater Guwahati. That being the position, the challenge made on the above ground lacks substance. Coming to the second ground of challenge, it is seen that neithe 14. r the Selection Committee nor members of the Selection Committee have been made parties to the present writ petition. In their absence, it would neither be prop er nor fair to examine the challenge to the selection proceeding. It needs no re -statement that petitioner having participated in the selection process, cannot turn around subsequently to contend that marks given by members of the Selection Committee were erroneous or that marks ought to have been awarded by the Select ion Committee on the basis of modified policy guidelines and not as per existing policy guidelines. Allegation made by the petitioner of awarding disproportiona tely higher marks to respondent No. 3 has been answered by respondent Nos. 1 and 2 in detail in their counter-affidavit. Relevant portion of paragraph 10 of the said affidavit which deals with award of marks to the petitioner under various heads is as under : - (cid:28)a. Zero marks were awarded to the petitioner under the head of ’Sales person’ a s the petitioner did not produce any proof of employment in the presence of the interview committee, as required under the (cid:28)Guidelines to Candidates (cid:29) portion, e nclosed with the Application Form. b. Zero marks were awarded to the petitioner under the head of ’Experience’ as t he petitioner did not produce adequate proof of having relevant experience in lu be/industrial business in the presence of the interview committee, as required u nder the (cid:28)Guidelines to Candidates (cid:29) portion, enclosed with the Application Form. c. Zero marks were awarded to the petitioner under the head of ’Delivery Vans’ a s the petitioner did not produce any proof that he was in possession of a delive ry van. On the contrary the petitioner only produced a proforma/quotation from I ndustrial Farm and Equipment, along with his willingness to buy a delivery van o f 2 MT capacity. Hence, the interview committee did not award any marks under th is head, because as per the (cid:28)Guidelines to Candidates (cid:29) portion, enclosed with th e Application Form, marks can only be awarded if the candidates is in physical p ossession of the delivery van. d. Marks under the head of personality/communication and articulation skills/ en thusiasm/energetic/polite and well mannered etc. are subjective and awarded by t he interview committee based on leading questions asked to the candidates at the time of interview. Be that as it may, I submit that such marks are awarded by a competent panel/committee, best placed to award these marks, and in the absence of malafides and/or bias etc. alleged against the interview committee itself, t hese may not be challenged by the petitioner, by way of writ petition under Arti cle 226 before this Hon’ble Court. e. Marks under the head of ’candidate’s approach/ attitude/capability/business a cumen/ management of people’ are also subjective and awarded by the interview co mmittee based on leading questions asked to the candidate at the time of intervi ew. Be that as it may, I submit that such marks are awarded by a competent panel /committee, best placed to award these marks, and in the absence of mala fides a nd/or bias etc. alleged against the interview committee itself, these cannot be challenged by the petitioner, in these writ proceedings before this Hon’ble Cour t. (cid:29) It has also been contended in the said affidavit of respondent Nos. 1 & 2 that since advertisement dated 07.07.2011 was issued as per existing policy guideline s dated 01.12.2008, the question of applying modified guidelines to the selectio n would not arise as the same was notified on 08.08.2011 after the advertisement was published on 07.07.2011. 15. For the aforesaid reasons, this Court is not inclined to accept the contention of the petitioner. Both the grounds of challenge accordingly fail . Writ petition lacks merit and is hereby dismissed. No costs. 16. Record produced by learned Standing Counsel is returned back.