M.Senthilkumar v. The Chairman Indian Oil Corporation Ltd.

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 22.10.2009CORAM: THE HONOURABLE MR.JUSTICE P.JYOTHIMANIW.P.No.4944 of 2009M.Senthilkumar.. Petitioner Vs.

The Chairman Indian Oil Corporation Ltd. Corporate Office 3079/3, JB Tito Marg Sadiq Nagar, New Delhi – 110 049.

The Senior Area Manager Indian Oil Corporation Marketing Division, Indane Area Office 8/1079, Avinashi Road Coimbatore – 641 018.

N.Balasubramaniam Indian Oil Corporation Marketing Division, Indane Area Office 8/1079, Avinashi Road Coimbatore – 641 018... RespondentsPRAYER: Petition under Article 226 of the Constitution of India forissue of a writ of Certiorarified Mandamus to call for the selectionof LPG Distributorship insofar as Sl.No.99, Dharmapuri made inadvertisement published on 6.2.2008 in "The Hindu" and other dailiesand quash the said selection and to consequently direct respondents 1and 2 to select and appoint the petitioner as Distributor for Dharmapuri Sl.No.99 of the Advertisement dated 6.2.2008.For Petitioner: Mr.Venkatachalapathy, Sr.Counselfor M/s.M.SriramFor Respondents: Mr.P.N.Radhakrishnanfor respondents 1 and 2Mr.K.Ravichandra Baabufor 3rd respondent https://hcservices.ecourts.gov.in/hcservices/ ORDERThis writ petition is directed against the selection of LPGDistributorship in relation to Sl.No.99 at Dharmapuri made in theadvertisement published in "The Hindu" and other dailies on 6.2.2008and also for a direction against respondents 1 and 2 to select andappoint the petitioner as distributor for Dharmapuri.2.1.

The selection of the third respondent is, therefore, assailed on the following grounds: (a) that the same is in violation of Articles 16, 19 and21 of the Constitution of India(b) that the selection is tainted with malafide; (c) that the second interview conducted by respondents 1and 2 is without jurisdiction; and(d) that the petitioner having been given full marks inthe first interview, his marks were reduced in thesecond interview for the purpose of accommodating thethird respondent.3.1. In the counter affidavit filed on behalf of respondents 1and 2 it is stated that the applications received from the candidatesare forwarded to the Dealer Selection Committee or the InterviewCommittee consisting of senior officers of respondents 1 and 2 and inthe present case it was sent to the Senior Manager (LPG Sales), the https://hcservices.ecourts.gov.in/hcservices/ Senior LI Sales Manager and the Senior Plant Manager, Calicut Plant.

4. It is the case of the third respondent in the counteraffidavit that the selection has been done in accordance with thepolicy of respondents 1 and 2. It is his case that the thirdrespondent is more experienced than the petitioner and that he ishaving two years of working experience in a Distributorship agency of Indian Oil Corporation and that he is now working for the Indian OilCorporation on contract basis for data collection works in respect ofmore than 100 distributors at Coimbatore area by running a firmcalled "Shree Software Solutions" and therefore, the third respondentis more experienced than the petitioner who is a new person to thefield, having a small scale industry only in manufacturing bleachingpowder, which has nothing to do with the LPG distributorshipactivities and therefore, the evaluation of experience by the Committee is perfectly valid.5.1. Before referring to the respective contentions of thelearned counsel, it is relevant to point out that the policy forselection of LPG Distributorship has been changed to some extent in April, 2005, by which for reviewing the evaluation in cases where thedifference between first and second empanelled candidates is veryless, it was evolved to refer the matter to the Screening Committeeof the State from where the Interview Committee was sourced.

Theexisting criteria for evaluation of the candidate during interviewhas certain elements like "personality", "business ability/acumen"and "experience" which depends on the assessment of the InterviewCommittee members. The Screening Committee, which is formulated forthe first time in the year 2005, in addition to what the FirstInterview Committee decides, re-interviews in the following cases: "1. Wherever the difference of marks between the firstand other candidates is less than 5% of the marks scoredby the first candidate.2. Wherever the differences of marks between thequalifying marks and the marks secured by the firstcandidate is within 5% of the marks obtained by thelatter. "5.2. It is also stated in the said policy that in cases wherethe matter is referred to the Screening Committee of the State, theresult of the Interview Committee is kept in abeyance and will bedeclared in 30 days or on any other date, as decided by the competentauthority.

It is also stated that "the Screening Committee of the State, as referred to above, should once again re-interview thecandidates on all the parameters of selection who fall into thecategory (1) and (2) above and submit their recommendations withreference to the recommendations made by the Interview Committee".5.3. Thereafter, based on the recommendations of the ScreeningCommittee as well as the Interview Committee, the State Head, to whom https://hcservices.ecourts.gov.in/hcservices/ it is referred, will take further action and the decision of the State Head is notified for information of all the candidates on thenotice board and also on the website.5.4. The policy circular dated 11.2.2004 issued by the firstrespondent-Corporation also provides for grievance redressalmechanism in respect of the selection of distributors. Under thesaid grievance redressal mechanism, the said Screening Committee isconstituted which categorizes the complaints into three, viz.,(i) Anonymous complaints which do not have thename/address of the complainant.

(ii) Complaints having name and address of thecomplainant but not having verifiable supportingdocuments/issues. (iii) Complaints having verifiable supporting documentsor having such issues in the complaint, which can beverified and the Committee feels no need to refer thematter back to the complainant.5.

Elaborate procedure of investigation, etc. to be effectedby the Screening Committee for disposal of the complaints is alsostipulated in the above policy circular.

On fact it is true, as it is seen in the records submitted bythe first respondent, that in the first interview while oneThirunavukkarasu.R., who is stated to have been allotted Chengalpattuand therefore not in the race, was awarded 29 marks and the thirdrespondent, N.Balasubramaniam was awarded 29 marks, the petitionerwas awarded 28 marks and the first panel was notified in the noticeboard on 19.12.2008 with a remark in the bottom "result kept inabeyance as the difference of marks between 1st to 3rd candidates isless than 5%".

Therefore, when the Interview Committee found as per thepolicy that the difference of marks between the three candidates isless than 5%, it has referred the matter to the Screening Committeemaking declaration as per the policy to keep the result of the Interview Committee in abeyance.

The contention of the learned Senior Counsel for thepetitioner, Mr.Venkatachalapathy is that even in the first interview, while the third respondent has been awarded 4 marks for experience, the petitioner has been awarded only 2 marks even though thepetitioner has produced various records to show that he has gotsufficient experience as a distributor and therefore, the awarding ofmark in that regard is improper. First of all, it is his contentionthat the marks are to be awarded for experience based on thematerials available and not on the basis of whims and fancies of the Interview Committee members. https://hcservices.ecourts.gov.in/hcservices/

As it is seen in the typeset of papers filed by thepetitioner, the petitioner has been registered as a Small ScaleIndustrialist in manufacturing cleaning powder and that registrationis on 31.1.2005. It is based on that the petitioner claims to haveexperience. For the purpose of appointment as Distributor for LPG,it is not known as to whether the registration as a Small ScaleIndustrialist in manufacturing cleaning powder is relevant or not. Even though it is true that experience has to be ascertained based onthe documents produced, the relevancy or otherwise of such documentsfor arriving at the experience of participants for the purpose ofawarding the distributorship, especially in cases where thedifference of marks is so narrow between the candidates, is for the Committee which consists of the Senior Officers of first and secondrespondents to decide and not for this Court to dictate. Theconsideration of this factor is entrusted to the subjectivesatisfaction of the appointing authority who are experienced in thefield and the assessment of documents produced before suchauthorities is for them to decide and Courts are not experts todirect such authorities to act as per its understanding. Thepresent illustration is apt one in that regard. This Court cannotdecide as to whether the registered Small Scale Industrialist inmanufacturing Cleaning Powder can be treated as a person withexperience for the purpose of acting as a distributor of LPG, eventhough on layman's view it can be always brushed aside saying thatthere is absolutely no connection between the manufacturing of Cleaning Powder and LPG distributorship. The contention of thelearned Senior Counsel that in manufacturing Cleaning Powder some ofthe byproducts are remotely connected with the LPG is for theauthorities to appreciate and not for this Court.

The reference of the matter to the Screening Committee inthis case cannot be held to be malafide, since the policy is clearand on the facts and circumstances of the case, the differencebetween the three candidates is less than 5%. In accordance with thepolicy, the reference to the Screening Committee cannot be said to beagainst the policy of the first respondent also. As stated above, the purpose of referring to the Screening Committee for the secondtime is to enable the Screening Committee to decide proper personsamong the candidates who have secured very close marks. It is not asif the Screening Committee has to approve whatever the InterviewCommittee, as Original Authority, has held. As enumerated in thepolicy, it is open to the Screening Committee to act as a re-scrutinyauthority.

A reference to the marks shows that while the petitioner gottotal 28 marks in the first interview, he was given only 27.5 marksby the Screening Committee. It is seen that under the caption"business ability/acumen" when the Interview Committee has granted 5marks out of 5 marks to the petitioner, the Screening Committee has https://hcservices.ecourts.gov.in/hcservices/ given 4.5 marks. The other marks have not been changed. Thepetitioner is given 27.5 marks while the third respondent, who wasgiven 29 marks by the Interview Committee, was given the same markagain and inasmuch as one Thirunavukkarasu, who has been given 30marks by the Screening Committee, has been selected for some otherarea, the third respondent is declared to have been selected.

One other point which has been raised by the learned SeniorCounsel for the petitioner is about paragraph 11 of the advertisementissued by the first respondent calling for applications fordistributorship, by which Sl.No.99 granted to Indian Oil Corporationhas been reserved for a Scheduled Caste candidate. In the saidparagraph 11 which speaks about the selection process and evaluationcriteria, the parameters and maximum marks are given as follows: Parameter Maximum Marksa. Capability to provide infrastructure35 marksb. Capability to provide finance35 marksc. Educational qualifications15 marksd. Age4 markse. Experience4 marksf. Business ability/acumen5 marksg. Personality2 marks Total marks100 marksIn the note annexed to the said parameters it is stated as follows: "The evaluation on the parameters 'a' to 'd' above aredocument based and will be done on the basis ofinformation given in the application. The evaluation onthe parameter 'e' to 'g' will be done based on theinterview. On verification if it is found that theinformation given in application is incorrect/false/misrepresented then the applicants candidature willstand cancelled and will not be eligible fordistributorship. "

From the above it is clear that the evaluation regardingparameters 'a' to 'd' is by documents, while regarding parameters'e' to 'g' which relate to experience, business ability/acumen andpersonality, it is to be decided by the Interview Committee duringthe time of interview. While in respect of parameters 'a' to 'd'when marks are expected to be given based on the documents andinformation, the same can be ascertained by anyone, in respect ofparameters 'e' to 'g', it is for the Interview Committee which hasbeen constituted for the purpose of deciding for the benefit of thefirst respondent and other Corporations like the Bharat Petroleum https://hcservices.ecourts.gov.in/hcservices/ Corporation, etc. to decide the best suitable persons and relevancyor irrelevancy of documents produced for the purpose of experience. Again what is "business ability/acumen" is to be decided in thecontext of LPG distributorship which can be done only by theexperienced persons in the filed of petroleum and the parameter"personality" is also to be linked with the distributorship for whichthe contract is entered and not any other personality. Theadvertisement also speaks about the brochure which is to be suppliedto the participants.

The learned Senior Counsel would also rely upon the brochurein paragraph 14.2 regarding evaluation based on interview. Inrespect of experience for which four maximum marks are given, thesub-heads under which marks should be given and evaluation is done isstated as follows: ParameterSub HeadDescriptionExperienceDirect Sale/Home Delivered products(including LPG distributorship)or Other Petroleum productsorAny other Trade15. A reference to the method of evaluation stated in thebrochure shows that the same is judged based on response toquestions, which is subjective satisfaction of the members of the Interview Committee. There cannot be any hard and fast rule for thepurpose of deciding about the hospitality/service, industry, etc. asit is shown in the evaluation method and in such circumstances, thereis absolutely no contradiction between the advertisement and thebrochure and it can never be said that any favour has been done toany person, including the third respondent.

There is absolutely no substance in the contention regardingthe violation of Article 14 of the Constitution of India. Inasmuch asin the selection process there is neither any suspicion nor patentillegality, it cannot be said that the decision is arbitrary orillegal.

There is one another aspect which has to be considered inthis case as submitted by the learned counsel for the thirdrespondent, Mr.Ravichandra Baabu. The petitioner cannot pleadignorance about the relevant policy regarding the distributorshipwhich is being issued from time to time by the Government of India. As per the policy, as stated above, when the first respondent isentitled to refer the matter to the Screening Committee and having https://hcservices.ecourts.gov.in/hcservices/ known about the same the petitioner has applied for distributorshipand has failed in his efforts to get selected as per thequalification and therefore, has chosen to approach this Court byfiling the writ petition. A similar situation was considered by the Hon'ble Apex Court in Union of India and another v. N.Chandrasekharanand others, AIR 1998 SC 795 = [1998] 3 SCC 694, wherein the ApexCourt has held as follows: "13. We have considered the rival submissions in thelight of the facts presented before us. It is not indispute that all the candidates were made aware of theprocedure for promotion before they sat for the writtentest and before they appeared before the DepartmentalPromotion Committee. Therefore, they cannot turn aroundand contend later when they found they were not selectedby challenging that procedure and contending that themarks prescribed for interview and confidential reportsare disproportionately high and the authorities cannotfix a minimum to be secured either at interview or inthe assessment on confidential report.... "

This was considered in the context of the principles ofestoppel by N.Paul Vasanthakumar,J. in Dr.S.Rajesh v. State of TamilNadu, [2009] 1 MLJ 1103 as follows: "16. In the impugned order, the respondent onlyreiterates the clause contained in the instructions tocandidates, which the petitioners also undertook toabide by while filling their application forms. Theyhave participated in the examination, attendedcounselling and also subjected themselves for selectionafter accepting all the terms and conditions, joinedtheir course of study and completed their course ofstudy. "

In such circumstances, the petitioner having not obtainedfavourable orders relating to distributorship cannot be expected togo back to challenge the validity or otherwise of any of theprovisions of the advertisement or policy or brochure.

One another submission made by the learned Senior Counselfor the petitioner, by which the learned counsel has brought to thenotice of this Court that in few cases when the empanelled candidatesgot difference in marks of less than 5% the matter was not referredto the Screening Committee and only in the present case the methodhas been adopted to deny the legitimate right of the petitioner andtherefore, the petitioner is discriminated and the same is violativeof Article 14 of the Constitution of India is also liable to berejected. The law is well settled that what is conferred as afundamental right under Article 14 of the Constitution of India is a https://hcservices.ecourts.gov.in/hcservices/ positive right and cannot be attempted to be enforced in a negativemanner saying that in respect of some other persons rules have notbeen followed and therefore, the rules should be disobeyed in thecase of the petitioner also. That was reiterated by the SupremeCourt in the latest judgment in State of Bihar v. Upendra NarayanSingh, [2009] 5 SCC 65 as follows: "67. By now it is settled that the guarantee of equalitybefore law enshrined in Article 14 is a positive conceptand it cannot be enforced by a citizen or court in anegative manner. If an illegality or irregularity hasbeen committed in favour of any individual or a group ofindividuals or a wrong order has been passed by ajudicial forum, others cannot invoke the jurisdiction ofthe higher or superior Court for repeating ormultiplying the same irregularity or illegality or forpassing wrong order – Chandigarh Administration and Anr. v. Jagjit Singh and Anr., [1995] 1 SCC 745; JaipurDevelopment Authority, Jaipur v. Daulat Mal Jain and Ors., [1997] 1 SCC 35; Union of India v. J.V. Subhaiahand Ors., [1996] 2 SCC 258; Gursharan Singh v. New DelhiMunicipal Committee, [1996] 2 SCC 459; State of Haryanav. Ram Kumar Mann, [1997] 3 SCC 321; Faridabad CT ScanCentre v. D.G. Health Services and Ors., [1997] 7 SCC752; Style (Dress Land) v. Union Territory, Chandigarhand Anr., [1999] 7 SCC 89, State of Bihar and Ors. v.Kameshwar Prasad Singh and Anr. [2000] 9 SCC 94; Unionof India and Anr. v. International Trading Co. and Anr.,[2003] 5 SCC 437; and Directorate of Film Festivals and Ors. v. Gaurav Ashwin Jain and Ors., [2007] 4 SCC 737."

The above said view was reaffirmed in General Manager, Uttaranchal Jal Sansthan v. Laxmi Devi and others, [2009] 7 SCC 205in the following manner: "34. Submission of the learned Counsel that personssimilarly situated have been appointed is again of notmuch relevance. Apart from the fact that the High Courtin its impugned judgment did not proceed on the saidbasis, it is now well settled that Article 14 of the Constitution of India carries with it a positive effect. Equality clause cannot apply in a case where it arisesout of illegality. Moreover, grant of appointment oncompassionate ground has its own limitations as it is anexception to the mode of regular appointment. "In such view of the matter, there is absolutely nothing tointerfere in this case in respect of the selection process effectedby respondents 1 and 2 regarding the distributorship in respect ofSl.No.99 of the advertisement dated 6.2.2008. The writ petition https://hcservices.ecourts.gov.in/hcservices/ fails and the same is dismissed. No costs. Consequently, M.P.Nos.1and 2 of 2009 are closed. Sd/-Asst. Registrar/True Copy/Sub. Asst. RegistrarsasiTo.1. The Chairman Indian Oil Corporation Ltd. Corporate Office 3079/3, JB Tito Marg Sadiq Nagar, New Delhi – 110 049.2. The Senior Area Manager Indian Oil Corporation Marketing Division, Indane Area Office 8/1079, Avinashi Road Coimbatore – 641 018.+ 1 CC to Mr.P.N.Radhakrishnan, Advocate, SR.55606+ 1 CC to Mr.K.Ravichandran, Advocate, SR.55578+ 1 CC to Mr.G.Duraisamy, Advocate, SR.55448W.P.No.4944 of 2009MBS(CO)EM/26.10