Case: Mohd. Mustafa Ali Khan Vs. Secretary, Department of Petroleum Central Government of India and Others

B.H. MARLAPALLE, J.Allotment of a retail outlet by the Indian Oil Corporation in favour of respondent No. 4 is in issue in this petition filed and argued by the party in person who was also one of the applicants for the said dealership. Before we proceed to deal with the facts, it would be necessary to mention that the petitioner being party in person, his pleadings have been sketchy all along and we had made attempts to consider the pleadings as set out not only in the petition memo, but the subsequent affidavit, additional affidavits and written submissions, etc. It further needs to be mentioned that in support of these pleadings, the petitioner has brought on record necessary documents and copies of all these affidavits, and written submissions along with annexures thereto were served on the respective parties from time to time. The factual matrix leading to this petition is as under :2. The Indian Oil Corporation released an advertisement in some of the local newspapers on 2-4-1993 for allotment of retail outlet dealership at Nanded town and more particularly within the municipal limits of the said town. In response to the advertisement, the petitioner as well as respondent No. 4 and others had submitted their applications along with supporting documents as stated in the advertisement within the time limit prescribed in the month of April/May, 1993. However, there was no progress thereafter for about two years. It appears that in all 52 applications were received by the Oil Company and 27 of them were found to be eligible for being interviewed. The Oil Selection Board (respondent No. 2) arranged interviews on 19-10-1995 and out of 27 applicants called for the interview, only 18 candidates remained present for the interview, including the petitioner as well as the respondent No. 4. The petitioner did not hear anything further after this interview. However, later on the allotment came to be issued in favour of respondent No. 4 on 31-1-1996 which indicated that the petitioners case was not considered and, therefore, he approached this Court.3. Another applicant by name Ajaykumar Surajkumar Jaju had filed Writ Petition No. 2817/96 and this petition came to be dismissed in default on 8-10-1998.4. The petitioner contends that though the allotment letter was issued in favour of respondent No. 4 on 31-1-1996, he did not have any infrastructure at his disposal at that time and on 24-5-1996. One Shri Shirish Patil who happens to be the grand son of Shri Shankarrao Chavan, Home Minister in the Union Cabinet during the relevant period, purchased agricultural land in Survey No. 98 of Village Dhanegaon and, this land, by way of an agreement, was in turn taken over by respondent No. 4. Location of the outlet was not within the Municipal limits and even though the Nanded Municipal Council was subsequently converted in Nanded Wagala Municipal Corporation 1997, the said location of the outlet is beyond 6.5 kms. from the Corporation limits. The dealership was allotted to the respondent No. 4 solely because of political considerations and his selection by respondent No. 2 was predetermined. The petitioner, more particularly, contends that respondent No. 4 is the maternal cousin of one Shri Sanjay Londhe who is the son-in-law of Shri S.B. Chavan and the said respondent was working as a Manager with M/s. Ujwal Metal Works Pvt. Ltd., belonging to Shri Ashok Chavan, son of Shri S.B. Chavan, during the period from 1991-92 to 1993-94. After he applied for dealership in response to the advertisement issued by the Indian Oil Corporation, respondent No. 4 came to be engaged with Miss Rupali, the niece of Mrs. Kusumtai Shankarrao Chavan and he, thereafter, started working with M/s. Sai Krupa Petroleum, Nanded which is owned by Smt. Snehalata Patil, daughter of Shankarrao Chavan and during this period, respondent No. 4 was staying in the house of Smt. Patil as a member of the family. The petrol pump allotted to Smt. Patil came to be quashed and set aside pursuant to the decision of the Supreme Court and subsequently, she purchased the same in auction sale. The petitioner alleges that respondent No. 4 was given dealership for political considerations and has furnished a list of family members, near relations and/or supports of Shri Shankarrao Chavan who have been allotted dealership by the Oil Companies under his influence and they are as under :1. M/s. Ujwal Gas Service Ashok s/o. 1980 Bharat Petr- LPG Distributor, Nanded. Shankarrao oleumCorpn.Chavan 2. M/s. L.T. More, Indian L.T. More 1982 I.O.C.Oil Dealer Umerga, Brother-in-law Dist. Usmanabad. of Shri S.B. Chavan.3. M/s. Sainath Services Suresh Garje, 1984 I.O.C./Petrol Pump, Nashik. Ex- Manager ofUjwal Gas Services.4. M/s. Raj Petroleum H.M. Pomnrde Hadgaon, Dist. Nanded relation of Shri 1987 B.P.C.S.T. More5. M/s. Bhavani Petro- S.K. Nimbalkar leum, Vasrani, Dist. Secretary of 1988 I.O.C.Nanded. S.S.B. Educa-tion Society, Nanded.6. M/s. Saibaba Automo- Mr. Phazge 1988 I.O.C.biles Bhokar Fata, follower of Shri Dist. Nanded S.B. Chavan.7. M/s. Saikrupa Petro- Mrs. Snehlata 1994 H.P.C.leum, Nanded. Patil daughterof S.B. Chavan. 8. M/s. Satya Sai R.J. Jankiram- 1994 I.O.C.Enterprises, Uravakonda, ayya brother of Dist. Anantpur, A.P. Satya Sai Baba9. M/s. Saiseva Gas Agency Arjun Piraji 1995 I.O.C.Basmat Dist. Parbhani. Ingole,10. Satya Sangh Petroleum Shri B. Kinhal- 1995 B.P.C.Biloli Dist. Nanded. kar father of the Minister in Maharashtra Cabinet.11. M/s. Renukadevi Gas R.K. Pachpute 1995 I.O.C.Agency Nanded. M.L.A. from Kinwat, Dist. Nanded.12. M/s. Gundawar Gas B.N. Gundawar 1996 I.O.C.Agency Hingoli. Brother of V.N. (LPG)Gundawar, M.P. in 10th Lok Sabha.13. M/s. Birajdam Gas V.D. Biradar ex- 1996 I.O.C.Agency, Degloor, manager of Ujwal Dist. Nanded. Gas Services.The petitioner further contended that the members of the Oil Selection Board who conducted the interviews on 19-10-95 at Mumbai did not consider the relevant factors as set out in the advertisement for selection of the proposed dealer of the retail outlet. The petitioner alleges that the Chairman of the Selection Board Justice Dr. Parmeshwar Dayal (Retired) was close relation of Capt. Satish Sharma and he was, therefore, influenced by the decision of Shri Sharma who was then the Minister for Petroleum and Natural Gas in the Union Cabinet. Other Member Shri R.S. Nautiyal was a native of the Ministers home district viz. Dehradoon and petrol dealership granted to his wife from the discretionary quota by Capt. Sharma came to be quashed and set aside by the Apex Court in the case of (Common Cause v. Union of India)1, A.I.R. 1996 S.C. 3538 and the third Member was a politician from the ruling party.5. One Shri R.H. Furtado, Deputy Co-ordinator of respondent No. 2 has filed an affidavit in reply claiming to be the reply on behalf of the Indian Oil Corporation and stated that the selection of respondent No. 4 for the subject dealership at Nanded Hyderabad highway was by following the proper procedure and the said selection made by respondent No. 2 does not suffer from any illegalities or irregularities. Respondent No. 4 has also filed affidavit-in-reply and stated that when an expert body/board, namely respondent No. 2 has selected him for dealership in due process of selection, there is no case made out before this Court to interfere with the said selection. As per this affidavit, the Indian Oil Corporation issued a letter dated 23-9-96 making it clear that his appointment as retail dealer for the subject location was subject to the result of this writ petition and in the event of the Corporation withdrawing or cancelling or terminating the dealership as a result of Court decision at any stage, he shall have no claim against the Corporation for any damages or compensation due to such termination of the dealership. The defendant No. 4 has furnished a declaration cum undertaking to this effect. The respondent No. 4 further contends that he had the necessary qualifications for being selected by respondent No. 2 and though he did not dispute his relationship with the family of Shri Shankarao Chavan, his selection was purely on merits and without any political or any other considerations or influence. Though he has stated that he is a graduate in Engineering, during the course of arguments, he admitted that at the relevant time he was only a Diploma holder in Mechanical Engineering and he was working for some time with M/s. Ujwal Metal Works Pvt. Ltd.6. On behalf of respondent No. 3, that is the Indian Oil Corporation, an affidavit-in-reply has been filed opposing the petition. It is stated that the role of the Oil Company is limited in this selection and once the Oil Selection Board goes through the selection process and communicates the list of applicants selected at serial Nos. 1 and 2, the Oil Company issues a letter of intent to the candidate at serial No. 1 and in case for any reasons, such a candidate declines the offer, then only the candidate at serial No. 2 is issued a letter of intent. The Oil Selection Board had conducted interviews of 18 candidates for the subject outlet and communicated the list of selected candidates at serial Nos. 1 and 2. Respondent No. 4 was at serial No. 1 in the said select list made by respondent No. 2, Oil Selection Board and the Oil Company has acted accordingly. The affidavit admits that as per the Volume distance norms of B class of market, the retail outlet can be developed upto 5 km., of the municipal limits of the city and, therefore, the location of the retail outlet need not be within the municipal limits alone. The said outlet has commenced on 24-9-1996 and the challenge raised by the petitioner in appointing respondent No. 4 as a dealer is devoid of merits.7. During the course of hearing, we had called upon the learned Counsel for respondent No. 3 to submit before us 27 applications received in respect of the said location or the applications of 18 candidates who appeared for the interview. The learned Counsel had sought time to submit the said applications and inspite of several extensions having been granted right upto the end of February, 2001, respondent No. 3 could not submit before us these applications. We are, therefore, constrained to decide the petition in absence of these original applications and if necessary, adverse inference will have to be drawn while dealing with the allegations made by the petitioner in respect of some of the relevant aspects which are significant in preparing the selection panel by respondent No. 2.8. The only question that is required to be considered by us in this petition is whether the selection of respondent No. 4 as made by respondent No. 2 Board for allotment of dealership and the subsequent action of the respondent No. 3 after issuing the letter of allotment dated 31-1-1996 in favour of respondent No. 4 is illegal, arbitrary and/or vitiated on any count. We are not concerned with the allegations made against any individual, including the former Home Minister, Petroleum Minister, Members of the Oil Selection Board or any of the officials of respondent No. 3, or the Oil Company, by the petitioner and, in fact, the petitioner appears to have brought on record some statements regarding the allotments of dealership either for petrol or L.P.G. in favour of the family members or relations or the supporters of Shri S.B. Chavan, former Home Minister only for the purpose to prove the political proximity of respondent No. 4 which has allegedly influenced the selection. Respondent No. 4 has not denied his relationship with the family of Shri Shankarrao Chavan and has insisted that his selection by respondent No. 2 is in no way connected with this relationship or his proximity with the former Home Minister. We do not wish to consider any of these statements while examining the selection of respondent No. 4 for allotment of dealership and we are not influenced by any of these factors.9. The advertisement for dealership published on 2-4-1993 had conditions, inter alia, as under :1) The location of the retail outlet should be within the city limits of Nanded and on Nanded-Hyderabad Highway ;2) The eligibility criteria of the applicants shall be :a) Indian Nationality ;b) minimum age 21 years and maximum age 50 years on the date of application ;c) minimum educational qualifications Matric or equivalent recognized examination passed ;d) resident of Nanded District at least for 5 years continuously prior to the date of application ;e) the family income for the financial year 1991-92 not to exceed Rs. 50,000/- ;f) should not be a dealer/distributor of any Oil Company ;3. All things being equal, the Consumer Co-operative Societies shall be given preference over the unemployed graduate applicant and amongst unemployed graduates, preference will be given to the Engineering graduates ; and4. The applications were required to be submitted in the prescribed form with all details and the documents in support of the said information to be attached therewith.10. The petitioner has brought on record a copy of the application he had submitted for the retail dealership in response to the advertisement. It would be useful to refer to the contents in paras 13, 14 and 16 of the said application and these read as under :"13. Brief Note on plans to run the dealership/distributorship:Please give a brief note indicating your plans as to how you propose to run the dealership/distributorship (in the event of the same being offered to you) and whether you would devote yourself as a whole time working dealer/distributor treating this business as your main source of income.14. What is the net monthly income you except from operating this dealership/distributorship a) after one yearb) after five years16. For Retail Outlet/2-3 Wheeler MS outlet Dealerships only :(i) Do you have a suitable site readily available or can you arrange one in the area advertised within four months If yes, please give details".Along with the said application, as many as 33 certificates were expected to be attached in support of the information furnished in the said application. The affidavit-in-reply filed on behalf of respondent No. 3 states that in all 52 applications were received in response to the said advertisement for the subject location of dealership and 27 of them were found to be eligible, which implies that these 27 applications had fulfilled the requirements as stipulated in the prescribed applications and the said information was duly furnished.11. Respondent No. 3 contends that once the applications found to be eligible, are furnished to the Oil Selection Board, it has no role to play in the selection process and after the Board submits a select panel pursuant to the selection process, the Oil Company is required to act accordingly and issue a letter of intent to the first candidate in merit, in the said select panel. If, however, the first allottee declines the offer or he is, for any reasons, found to be ineligible subsequently, the offer letter may be issued to the second applicant in the select panel. On issuing the letter of intent of such selected candidate at serial No. 1, he is required to comply with all the conditions and formalities including procurement of land and creating infrastructural facilities, within the period of 4 months and on completion of these requirements, the Oil Company appoints the said candidate as its dealer/distributor. Dealership agreement is subsequently executed between the Oil Company and the candidate. The Oil Selection Board had called 27 candidates for interview on 19-10-1995 at Mumbai and only 18 of them appeared. The Oil Selection Board, after completing procedure of selection, issued a Strictly Confidential communication dated 16-1-1996, advising the respondent No. 3 that the following two applicants were finally recommended in order of merit in respect of the subject location, i.e. Nanded :Name of Candidate Address1. Mr. Hambarde Dasrao Uttamrao C/o. Shri S.S. Warudkar(Appln. No. 5981) M/s. Ujwal Metals Pvt. Ltd. B-19, M.I.D.C. Area, Dhanegaon, Nanded-431 6003.2. Mr. Anand Shankarrao Chavan 68, Ganesh Nagar,(Appln. No. 5979) Nanded-431 602.As per the said communication, respondent No. 3 was requested to take further necessary action to finalise the retail outlet as per the policy guide lines and the said letter was issued as per the approval of the Chairman of the Oil Selection Board (Maharashtra, Goa, Daman and Diu). Pursuant to the said communication, respondent No. 3 admittedly issued allotment order in favour of respondent No. 4 on 31-1-1996.12. From the record, it is clear that the Oil Selection Board consisted of the following members :1) Jutice Dr. Parmeshwar Dayal (Retd.) - Chairman,2) Shri R.S. Nautiyal - Member,3) Shri Naresh Pugalia - Member.There is no dispute that at the relevant time, Shri Naresh Pugalia was a member of Parliament of the ruling party, i.e. Congress and, Shri Nautiyal represented the weaker sections of the society. As observed earlier, his wife was allotted a dealership from the discretionary quota of the Petroleum Minister at the relevant time and the said allotment was quashed and set aside by the Apex Court in the case of Common Cause a Registered Society v. Union of India (supra). The papers of selection procedure including the assessment sheets are placed before us. These papers consist of the consolidated assessment sheets and individual assessment sheets as made by the members. It is also evident that though all the three members participated in the interview process on 19-10-1995, Shri Naresh Pugalia refused to handover mark sheets prepared by him in respect of the interviews held from 9 to 19th October, 1995 and, therefore, the panel of selection for dealership was prepared and signed by only two members, viz., Mr. Justice Parmeshar Dayal (Retd.) and Shri R.S. Nautiyal.It is pertinent to note at this stage that this fact of the select panel having been prepared on the basis of the only two members assessment, has not been stated either in the affidavit-in-reply filed on behalf of the respondent No. 2 or respondent No. 3 and, on the contrary, both these affidavits emphatically state that respondent No. 4 was selected by the Oil Selection Board as constituted and that the selection procedure was in order. If the Board consisted of three members, it is incumbent that the candidates are assessed by all the three members and their respective assessment is available on record. It is possible that the members may have different views in assessing the each candidate and all the three members assessment in respect of every factor is normally totalled altogether and averaged, so as to indicate the decision of the Board in such a selection. In the instant case, the third member Shri Naresh Pugalia had apparently refused to hand over the assessment sheets prepared by him and the select panel prepared and forwarded by the Oil Selection Board to respondent No. 3 Oil Company was only on the basis of the assessment made by only two members. This itself, without anything further, has vitiated the select panel and obviously the letter of allotment dated 31-1-1996 had been issued by respondent No. 3 on such a vitiated selection and thus it was not a selection in the eyes of law.13. On perusal of the assessment record, as made available by the Oil Selection Board in respect of the interviews held from 9th to 19th October, 1995 at Mumbai, much is required to be said. However, we do not wish to comment upon these selections so far as they relate to other locations in Maharashtra and we confine our observations in respect of the interviews held on 19th October, 1995 and for the subject location which is Nanded. The oral interview was for 100 marks, divided under four heads, viz.(1) Personality, business ability andsalesmanship - 30 marks ;(2) Capacity to arrange finance andcapability to provide facilities - 20 marks ;(3) Full time working dealer - 30 marks ;(4) General assessment & extra curricular activities - 20 marks.The second head, viz. capacity to arrange finance and capability to provide facilities was not applicable to the SC/ST dealership/distributorships and, admittedly, the said dealership was from open category. The third factor of assessment, viz. full time working dealer, was obviously based on the statements furnished in column No. 13 of the prescribed application form. The assessment sheet also carried a column of remarks and under the said column, only the Chairman has written certain information about educational qualifications, agricultural land holdings, business/income etc. Let us set out these assessment details as made by Justice Dr. Parmeshwar Dayal and Shri R.S. Nautiyal respectively in respect of the petitioner and 10 other candidates who are graduates in different disciplines and two of them are Diploma holders in Engineering.A) Assessment made by Justice Dr. Parmeshwar Dayal (Retd.)No. Name Qualifi- Marks given Total Remarks.cations under each markshead1. Md. MustafaA.K.H. MD Agri.Alikhan land 8(petitioner) S.S.C. 5 5 6 5 21 acres.2. Ajay S. Jaju B.E. 5 4 6 6 21 Dependenton father(Retd.)3. Torodekar B.E. 4 3 2 2 11 ConsultancyB.V. Agr. land 15 ares.RequisiteCert. ofprofessionalincome notfiled.4. Anand S. B.Sc. 6 5 5 6 22 Agr. landChavan M.B.A. 51/2 acres.Social work.5. Hanbarde D.M.E. 25 15 26 14 80 Agr. land 12D.U. acres, socialservicehonour.6. Shailesh B.Sc. 5 6 5 5 21 Agr. land 12Deshmukh acres.7. Surjeet 4 3 2 2 11 Tyre dealer.Singh B.Com. Agr. land 25acres. Requ- isite certifi-cate of agr. income not filed.8. Amarnath B.Com. 4 3 2 2 11 Dependent Rajurkar on father (Retd.) was in service Org. certs. of qualifica tions and age not shown .9. Kangala Repairing inS.R. D.E.E. 5 5 6 4 20 electrical board.10. Omprakash Chalikwar B.Com. 6 6 4 5 21 Film distri-butor.11. Mh. A. CivilKhan. B.A. 6 6 4 4 20 Contractor.(approved.)B) Assessment made by Shri R.S. Nautiyal.No. Name Qualifi- Marks given Total Remarks.cations under each markshead1. Md. MustafaA.K.H. MD Alikhan (petitioner) S.S.C. 9 5 10 6 30 --2. Ajay S. B.E. 10 5 8 7 30 --Jaju 3. Tordodekar B.E. 10 5 8 7 30 --B.V. 4. Anand S. B.Sc. 10 6 8 8 32Chavan M.B.A. --5. Hanbarde D.M.E. 24 14 25 13 76 D.U. --6. Shailesh B.Sc. 8 5 10 7 29Deshmukh --7. Surjeet Singh B.Com. 9 6 8 6 29 --8. Amarnath B.Com. 10 4 10 6 30 --9. Kangala S.R. D.E.E. 10 5 9 6 30 --10. OmprakashChalikwar B.Com. 9 6 9 5 29 --11. Mh. A. Khan. B.A. 9 6 9 7 31 --14. The second member Shri R.S. Nautiyal preferred not to write anything under the remarks column and the Chairman has noted some information under the said column in respect of most of the candidates interviewed on 19-10-1995. One of the 18 candidates by name Shri Kinhalkar S.B. was not assessed because it was observed during the interview process that his father was already a dealer of B.P.C.L. Therefore, the assessment was in respect of only 17 candidates. As observed earlier, the assessment reproduced hereinabove, is in respect of the petitioner and other ten candidates who were either Graduates or Diploma holders, though Diploma holders have no preference as compared to graduates or graduates in Engineering as per the conditions stipulated in the advertisement that was released on 2-4-1993. The assessment reproduced hereinabove, makes out a startling revelation regarding the marks given under each head. Shri Nautiyal assessed almost every candidates by giving total marks varying from 29 to 32; whereas for respondent No. 4 he gave 76 marks out of 100 marks. Under the personality, business ability and salesmanship column, he rated the above referred candidates by giving marks from 8 to 10 out of 30 marks; whereas, for respondent No. 4 he gave 24 marks inspite of the fact that he was not in business. Under the head Full time working dealer, Shri Nautiyal assessed the said candidates by giving marks varying from 8 to 10; whereas he gave 25 out of 30 marks to respondent No. 4. Similar observations could be made in respect of other assessment heads. Coming to the assessment made by Justice Dayal (Retd.), he ensured that the total marks secured by other candidates varied from 11 to 22 and respondent No. 4 was given 80 marks out of 100. Even, otherwise, between respondent No. 4 and other short-listed candidate Shri Anand Chavan, one fails to understand how the learned Chairman made so much of distinction between the social work and social service honour. Under the remarks column for Shri Chavan, he observed that the candidate was engaged in social work; whereas in respect of respondent No. 4 he observed that he had social service honour. One does not know what are these honours and in the absence of original application forms which were to be submitted by respondent No. 3, we are not able to understand what weighed so heavily in the minds of the learned members of the Selection Board in respect of respondent No. 4 alone. Even if all the four factors are rationally viewed vis-a-vis the candidates qualifications and the observations made in remark column by Justice Dayal (Retd.) there is absolutely no rationale for alarmingly high difference of marks given to other Graduate candidates and respondent No. 4 who was only Diploma holder in Engineering and at the relevant time, admittedly, either he was working with M/s. Ujwal Metal Works Pvt. Ltd., or with Sai Krupa Petroleum. For his personality, business ability and Salesmanship, Justice Dayal (Retd.) gave 25 out of 30 marks and for full time working dealer he gave 26 marks out of 30 notwithstanding the fact that the information as required under column 13 of the prescribed application form was furnished by all the candidates and was found to be in order by the Oil Company, holding them eligible. There can be no doubt that there is bound to be a variation in the assessment quantified in terms of marks, but the variation should be reasonable and discernible from the record. In the instant case, the swing of marks given to respondent No. 4 by both the learned Members was so high that it smacked of apparent favouritism. The selection was, obviously, predetermined. The process of interview was only a formality and that too not completed by all the members, but by only two of them. The dissent shown by the third member by refusing to sign the mark sheets could be a pointer to the whole selection process.15. We are conscious of our limitations in sitting in appeal over the process of selection. However, the record that has been shown to us and the assessment details that we have reproduced hereinabove in respect of some of the candidates, do make out a case strongly suggesting that there could not be any other conclusion, but to hold that the selection process was arbitrary, irrational and vitiated on account of total lack of application of mind. We are, therefore, left with no alternative but to hold that the selection of respondent No. 4 as made by respondent No. 2 Board, is unsustainable for the subject retail outlet dealership at Nanded.16. The issue does not end here itself. As per the terms of selection and in fact, the first letter of allotment dated 31-1-96 issued to respondent No. 4 he was called upon to complete the formalities for commissioning of the dealership within four months. However, he has, obviously acquired the land sometimes in June-July 1996 because Shri Shirish Patil purchased the said land for the first time from a widow by sale deed dated 24-5-1996 notwithstanding the fact that the said land was a subject matter in pending R.C. As. 27/94, 40/94 and 11/95 and subsequently, respondent No. 4 signed an agreement with the said Shri Shirish Patil for taking over that piece of land on lease. The N.O.C. came to be issued by the Collector of Nanded for the first time on 23-8-96. This time schedule clearly goes to show that respondent No. 4 could not build the infrastructure by complying with the conditions of letter of allotment as well as those stipulated in the prescribed application form. The affidavit-in-reply filed by respondent No. 3 in this regard is far from being satisfactory and there are reasons to believe that the officials had acted in furtherance of the cause of respondent No. 4.17. The location of the subject retail outlet was to be within the Municipal limits of Nanded and on the Nanded-Hyderabad Highway, as per the advertisement. The petitioner has brought on record a certificate issued by the competent authority stating that the location of the outlet commissioned by respondent No. 4 pursuant to the impugned allotment order is within the Village Panchayat limits of Danegaon and beyond a distance of 6.5 kms. from the newly constituted Nanded-Wagala Municipal Corporation. The affidavit-in-reply filed by respondent No. 3 states (without any documentary support) that the city limits extend to a distance of 5 kms. from Municipal limits and even if this is accepted for the time being, it is evident that the location of the subject outlet is certainly beyond the Municipal limits and contrary to the terms of the advertisement issued by respondent No. 3. This is one more pointer to show that the officers of respondent No. 3 Oil Company went out of their way to assist the respondent No. 4. It was incumbent upon these officials to confirm the location criteria as per their advertisement before the final agreement was signed by respondent No. 4 with the Oil Company, specially when it was made known to him that issuance of allotment letter was subject to the outcome in the present petition. The officials obviously slept over, not out of ignorance, but solely in connivance with respondent No. 4.

Decision:
1[ds]We are not concerned with the allegations made against any individual, including the former Home Minister, Petroleum Minister, Members of the Oil Selection Board or any of the officials of respondent No. 3, or the Oil Company, by the petitioner and, in fact, the petitioner appears to have brought on record some statements regarding the allotments of dealership either for petrol or L.P.G. in favour of the family members or relations or the supporters of Shri S.B. Chavan, former Home Minister only for the purpose to prove the political proximity of respondent No. 4 which has allegedly influenced the selection. Respondent No. 4 has not denied his relationship with the family of Shri Shankarrao Chavan and has insisted that his selection by respondent No. 2 is in no way connected with this relationship or his proximity with the former Home Minister. We do not wish to consider any of these statements while examining the selection of respondent No. 4 for allotment of dealership and we are not influenced by any of these factors.Respondent No. 3 contends that once the applications found to be eligible, are furnished to the Oil Selection Board, it has no role to play in the selection process and after the Board submits a select panel pursuant to the selection process, the Oil Company is required to act accordingly and issue a letter of intent to the first candidate in merit, in the said select panel. If, however, the first allottee declines the offer or he is, for any reasons, found to be ineligible subsequently, the offer letter may be issued to the second applicant in the select panel. On issuing the letter of intent of such selected candidate at serial No. 1, he is required to comply with all the conditions and formalities including procurement of land and creating infrastructural facilities, within the period of 4 months and on completion of these requirements, the Oil Company appoints the said candidate as its dealer/distributor. Dealership agreement is subsequently executed between the Oil Company and the candidate. The Oil Selection Board had called 27 candidates for interview onat Mumbai and only 18 of them appeared.There is no dispute that at the relevant time, Shri Naresh Pugalia was a member of Parliament of the ruling party, i.e. Congress and, Shri Nautiyal represented the weaker sections of the society. As observed earlier, his wife was allotted a dealership from the discretionary quota of the Petroleum Minister at the relevant time and the said allotment was quashed and set aside by the Apex Court in the case of Common Cause a Registered Society v. Union of India (supra). The papers of selection procedure including the assessment sheets are placed before us. These papers consist of the consolidated assessment sheets and individual assessment sheets as made by the members. It is also evident that though all the three members participated in the interview process onShri Naresh Pugalia refused to handover mark sheets prepared by him in respect of the interviews held from 9 to 19th October, 1995 and, therefore, the panel of selection for dealership was prepared and signed by only two members, viz., Mr. Justice Parmeshar Dayal (Retd.) and Shri R.S. Nautiyal.It is pertinent to note at this stage that this fact of the select panel having been prepared on the basis of the only two members assessment, has not been stated either in thefiled on behalf of the respondent No. 2 or respondent No. 3 and, on the contrary, both these affidavits emphatically state that respondent No. 4 was selected by the Oil Selection Board as constituted and that the selection procedure was in order. If the Board consisted of three members, it is incumbent that the candidates are assessed by all the three members and their respective assessment is available on record. It is possible that the members may have different views in assessing the each candidate and all the three members assessment in respect of every factor is normally totalled altogether and averaged, so as to indicate the decision of the Board in such a selection. In the instant case, the third member Shri Naresh Pugalia had apparently refused to hand over the assessment sheets prepared by him and the select panel prepared and forwarded by the Oil Selection Board to respondent No. 3 Oil Company was only on the basis of the assessment made by only two members. This itself, without anything further, has vitiated the select panel and obviously the letter of allotment datedhad been issued by respondent No. 3 on such a vitiated selection and thus it was not a selection in the eyes of law.13. On perusal of the assessment record, as made available by the Oil Selection Board in respect of the interviews held from 9th to 19th October, 1995 at Mumbai, much is required to be said. However, we do not wish to comment upon these selections so far as they relate to other locations in Maharashtra and we confine our observations in respect of the interviews held on 19th October, 1995 and for the subject location which is Nanded.14. The second member Shri R.S. Nautiyal preferred not to write anything under the remarks column and the Chairman has noted some information under the said column in respect of most of the candidates interviewed onOne of the 18 candidates by name Shri Kinhalkar S.B. was not assessed because it was observed during the interview process that his father was already a dealer of B.P.C.L. Therefore, the assessment was in respect of only 17 candidates. As observed earlier, the assessment reproduced hereinabove, is in respect of the petitioner and other ten candidates who were either Graduates or Diploma holders, though Diploma holders have no preference as compared to graduates or graduates in Engineering as per the conditions stipulated in the advertisement that was released onThe assessment reproduced hereinabove, makes out a startling revelation regarding the marks given under each head. Shri Nautiyal assessed almost every candidates by giving total marks varying from 29 to 32; whereas for respondent No. 4 he gave 76 marks out of 100 marks. Under the personality, business ability and salesmanship column, he rated the above referred candidates by giving marks from 8 to 10 out of 30 marks; whereas, for respondent No. 4 he gave 24 marks inspite of the fact that he was not in business. Under the head Full time working dealer, Shri Nautiyal assessed the said candidates by giving marks varying from 8 to 10; whereas he gave 25 out of 30 marks to respondent No. 4. Similar observations could be made in respect of other assessment heads. Coming to the assessment made by Justice Dayal (Retd.), he ensured that the total marks secured by other candidates varied from 11 to 22 and respondent No. 4 was given 80 marks out of 100. Even, otherwise, between respondent No. 4 and othercandidate Shri Anand Chavan, one fails to understand how the learned Chairman made so much of distinction between the social work and social service honour. Under the remarks column for Shri Chavan, he observed that the candidate was engaged in social work; whereas in respect of respondent No. 4 he observed that he had social service honour. One does not know what are these honours and in the absence of original application forms which were to be submitted by respondent No. 3, we are not able to understand what weighed so heavily in the minds of the learned members of the Selection Board in respect of respondent No. 4 alone. Even if all the four factors are rationally viewedthe candidates qualifications and the observations made in remark column by Justice Dayal (Retd.) there is absolutely no rationale for alarmingly high difference of marks given to other Graduate candidates and respondent No. 4 who was only Diploma holder in Engineering and at the relevant time, admittedly, either he was working with M/s. Ujwal Metal Works Pvt. Ltd., or with Sai Krupa Petroleum. For his personality, business ability and Salesmanship, Justice Dayal (Retd.) gave 25 out of 30 marks and for full time working dealer he gave 26 marks out of 30 notwithstanding the fact that the information as required under column 13 of the prescribed application form was furnished by all the candidates and was found to be in order by the Oil Company, holding them eligible. There can be no doubt that there is bound to be a variation in the assessment quantified in terms of marks, but the variation should be reasonable and discernible from the record. In the instant case, the swing of marks given to respondent No. 4 by both the learned Members was so high that it smacked of apparent favouritism. The selection was, obviously, predetermined. The process of interview was only a formality and that too not completed by all the members, but by only two of them. The dissent shown by the third member by refusing to sign the mark sheets could be a pointer to the whole selection process.15. We are conscious of our limitations in sitting in appeal over the process of selection. However, the record that has been shown to us and the assessment details that we have reproduced hereinabove in respect of some of the candidates, do make out a case strongly suggesting that there could not be any other conclusion, but to hold that the selection process was arbitrary, irrational and vitiated on account of total lack of application of mind. We are, therefore, left with no alternative but to hold that the selection of respondent No. 4 as made by respondent No. 2 Board, is unsustainable for the subject retail outlet dealership at Nanded.16. The issue does not end here itself. As per the terms of selection and in fact, the first letter of allotment datedissued to respondent No. 4 he was called upon to complete the formalities for commissioning of the dealership within four months. However, he has, obviously acquired the land sometimes in1996 because Shri Shirish Patil purchased the said land for the first time from a widow by sale deed datednotwithstanding the fact that the said land was a subject matter in pending R.C. As. 27/94, 40/94 and 11/95 and subsequently, respondent No. 4 signed an agreement with the said Shri Shirish Patil for taking over that piece of land on lease. The N.O.C. came to be issued by the Collector of Nanded for the first time onThis time schedule clearly goes to show that respondent No. 4 could not build the infrastructure by complying with the conditions of letter of allotment as well as those stipulated in the prescribed application form. Thefiled by respondent No. 3 in this regard is far from being satisfactory and there are reasons to believe that the officials had acted in furtherance of the cause of respondent No. 4.17. The location of the subject retail outlet was to be within the Municipal limits of Nanded and on theHighway, as per the advertisement. The petitioner has brought on record a certificate issued by the competent authority stating that the location of the outlet commissioned by respondent No. 4 pursuant to the impugned allotment order is within the Village Panchayat limits of Danegaon and beyond a distance of 6.5 kms. from the newly constitutedMunicipal Corporation. Thefiled by respondent No. 3 states (without any documentary support) that the city limits extend to a distance of 5 kms. from Municipal limits and even if this is accepted for the time being, it is evident that the location of the subject outlet is certainly beyond the Municipal limits and contrary to the terms of the advertisement issued by respondent No. 3. This is one more pointer to show that the officers of respondent No. 3 Oil Company went out of their way to assist the respondent No. 4. It was incumbent upon these officials to confirm the location criteria as per their advertisement before the final agreement was signed by respondent No. 4 with the Oil Company, specially when it was made known to him that issuance of allotment letter was subject to the outcome in the present petition. The officials obviously slept over, not out of ignorance, but solely in connivance with respondent No. 4.