1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 26.04.2011 CORAM: THE HONOURABLE MR.JUSTICE B.RAJENDRAN Writ Petition (MD)No.1573 of 2011 P.Subbiya ... Petitioner Vs. 1.The Executive Director (TN & P) Indian Oil Corporation Ltd., (Marketing Division), Indian Oil Bhavan, No.139, Mahatma Gandhi Road, Chennai. 2.The General Manager (LPG) Indian Oil Corporation, LPG Distribution, Nungambakkam Main Road, Chennai – 600 034. 3.The Senior Area Manager, Indian Oil Corporation, No.2, Race Course Road, Chokkikulam, Madurai – 625 002. 4.A.Mohamed Sulaiman ... Respondents Prayer: Writ Petition is filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Certiorarified Mandamus, calling for the entire records pertaining to the proceedings of the order with regard to the Letter of Intent issued by the 3rd respondent vide Ref.MAO/613/10, dated 30.09.2010 in connection with the allotment of LPG distributorship at Kayalpattinam, Thoothukudi District and quash the same and consequently direct the 3rd respondent to allot the same to the petitioner. For Petitioner : Mr.R.Anand For Respondents 1-3 : Mr.K.Muraleedharan For 4th Respondent : Mr.R.Vijayakumar O R D E R The writ petition has been filed challenging the allotment of the LPG distributorship granted to the fourth respondent. https://hcservices.ecourts.gov.in/hcservices/ 2 2.The main grievance of the petitioner is that in the interview he was declared as the highest mark holder and his name found in the first place in the panel. But thereafter, by virtue of proceedings, dated 11.02.2010, even though he is not eligible to be selected, in view of the discrepancies in certain documents given by the petitioner to the authorities concerned his application is rejected. Against the original rejection of his selection, he had already filed a writ petition in W.P.(MD) No.13182 of 2010. Unfortunately, no stay was granted and the writ petition is still pending. Thereafter, the Corporation has awarded the contract in favour of the fourth respondent by virtue of the impugned order, dated 30.09.2010. The present writ petition has been filed challenging this order and interim order has been granted. He would mainly challenge that without deciding the rejection order which is impugned in the earlier writ petition, the impugned order has been passed. Therefore, he has come forward with this writ petition. 3.Learned counsel for the respondents 1 to 3 would contend that the writ petition itself is not maintainable as per clause 21 and if any person is aggrieved against the grant of LPG distributorship, he has to prefer an appeal before the appellate authority namely, the Director or Executive Director of the Corporation. Without doing so, the petitioner has filed this writ petition and whereas as against the original order, the petitioner has also already preferred an appeal before the appellate authority on 19.04.2010 and therefore, the writ petition is not maintainable. Even otherwise, as per clause 16, when the marks are given at the time of interview, after the selection process only, then the verification will be done and only at that point of time of verification it is found out these discrepancies and rightly the petitioner's application was rejected which is now admittedly as against which the appeal has already been preferred. Therefore, this is only a consequential order when no interim order has granted in the earlier writ petition, the authority has got legal right to issue consequential order and when the consequential order has already been issued, the writ petition is not maintainable. 4.The successful bidder, the fourth respondent herein would contend that subsequent to the order of grant, he has invested huge amount and he has also made all arrangements for conducting the LPG distributorship. Therefore, he prayed that interim stay already granted by this Court may be vacated and the writ petition may be dismissed. 5.Heard the submissions made by the learned counsel on either side and perused the materials available on record. 6.The only point which arises for consideration in this writ petition is whether the writ petition at this stage is maintainable or not. The writ petitioner is only aggrieved against the order passed by the selection committee for grant of LPG distributorship. Insofar as the orders passed by the https://hcservices.ecourts.gov.in/hcservices/ 3 selection committee, there are catena of decisions which categorically say that the process of selection is entirely vests only with the selection committee which even consists of retired High Court Judge. The reasoning of the selection committee cannot be interpreted by any Court. 7.Insofar as it relates to the challenge to the allotment of petroleum products, there is also an appeal provision as per the Division Bench decision of this Court and I have followed the said decision in E.Joshua Livingston Vs.The Senior Divisional Retail Sales Manager, Indian Oil Corporation, Trichy Divisional Office and others made in W.P.No.27344 of 2009, dated 02.03.2011. 8.In the decision of this Court reported in (K. Indira vs. Union of India, rep. By its Secretary, Ministry of Petroleum and Natural Gas, New Delhi and others) (2006) 3 M.L.J. 492 this Court held that judicial review is permitted only on the established grounds of mala fide, arbitrariness or unreasonableness. It was also held in that judgment that the Board, which is vested with the functions of selection, is an independent entity consisting of retired Judges and retired Civil Servants possessing necessary expertise and experience to perform them and therefore, there is minimal scope for alleging mala fide against such a body. In this case, admittedly, the petitioner has not alleged mala fide in the awarding of marks by the corporation in favour of the third respondent herein and therefore, the decision of the corporation to award marks in favour of the third respondent need not be interfered with. 9.In the decision of the Honourable Supreme Court in Civil Appeal No. 6798 of 2002 (arising out of SLP (C) No. 4705 of 2003) dated 28.08.2003 between (K.Vinod Kumar vs. S. Palanisamy and others) it has held in para-14 as follows:- "The law is settled that over proceedings and decisions taken in administrative matters, the scope of judicial review is confined to the decision making process and does not extend to the merits of the decision taken. No infirmity is pointed out in the proceedings of the selection Board which may have the effect of vitiating the selection process. The capability of the appellant herein to otherwise perform as an LPG distributor is not in dispute. The High Court was not, therefore, justified in interfering with the decision of the Selection Board and the decision of the BPCL to issue letter of allotment to the appellant herein." 10.In Haryana Financial Corporation and another vs. M/s. Jagdamba Oil Mill and another reported in (2002) 1 CTC 503, in para-14, the Hon'ble Supreme Court has held as follows:- https://hcservices.ecourts.gov.in/hcservices/ 4 "14.The fairness required of the Corporations cannot be carried to the extent of enabling them from recovering what is due to them. The matter can be looked at from another angle. The corporation is an independent autonomous statutory body having its own constitution and rules to abide by, and functions and obligations to discharge. As such in the discharge of its functions, it is free to act according to its own light. The view it forms and decisions it takes are on the basis of the information in its possession and the advice it receives and according to its own perspective and calculations. Unless its action is mala fide, even a wrong decision by it is not open to challenge. It is not for the Courts or a third party to substitute its decision, however, more prudent, commercial or businesslike it may, for the decision of the Corporation. As was observed by this Court in U.P. Financial Corporation and others vs. Naini Oxygen and Acetylene Gas Limited and another 1995 (2) SCC 754, commercial matters the Courts should not risk their judgments for the judgments of the bodies to whom that task is assigned....... 11.Useful reference could be made to a decision of this Court made in W.P. No. 11021 of 2010 dated 20.07.2010 in respect of the award of distributorship by the Indian Oil Corporation Limited wherein this Court held that in writ jurisdiction under Article 226 of the Constitution of India, this Court cannot sit in appeal over the selection of a candidate made by the corporation for grant of award of retail outlet. If the selection process is vitiated by arbitrary or irrational exercise of power or by malafide or based on no material error or by ignoring relevant factors including eligibility, the writ Court, on proof of such relevant facts, may grant the appropriate relief. However, it is not for the writ Court to dwell deep into the records of the corporation and examine the validity of rival claims upon appreciation afresh of the materials on such record and on the basis of such re appraisal to decide whether the selection was properly made and to give effect to such decision by the issue of a writ. In para-18, it was held as follows:- "18.In the case on hand, the Distributor selection committee/authority, which is vested with the function of selection of dealers, is an independent entity. The said committee, after considering the materials on record and the personal assessment on merits, business ability, capacity etc., of the applicants, has selected third respondent for grant of distributorship and issued the Letter of Indent dated 05.04.2010, following the disqualification of the petitioner. The process of appreciating and weighing various factors, materials and rival merits is the function of the Distributor Selection Committee, which is having necessary https://hcservices.ecourts.gov.in/hcservices/ 5 expertise to perform its duties properly. Therefore, in my view, there cannot be any re-appreciation or re-appraisal of relevant material factors, relative qualifications and evaluation of the comparative merits of the candidates in a writ proceedings under Article 226 of The Constitution of India. As such, the proceedings of the first respondent, impugned herein, cannot be faulted with." 12.Yet another decision reported in 2010 Writ.L.R.897 (The Senior Area Manager, Indian Oil Corporation Limited and another Vs.M.Natesan), the Division Bench of this Court has held that a public body cannot depart from what they have advertised. The relevant portion of the judgment is extracted hereunder: "10.Mr.Abdul Saleem, learned counsel appearing for the appellants states that in view thereof, 1.78 marks granted by the Selection Committee towards experience will get deleted after the field verification, in which case, the respondent's marks will become less than that of V.Shanthi, whose papers will have to be examined. There were in all 46 applicants. It is not a case that there were no applicants. There are applicants who have given all the particulars as per the advertisement. A public body has to go as per the norms that they had advertised. They cannot digress from that when other people are waiting in the queue with all their papers and applications. Surely a public body cannot depart from what they have advertised". Thus, it would clearly indicate that the verification is done after a later period and once on verification any discrepancy is found, the marks get deleted. Therefore, the petitioner cannot have any grievance at all. 13.In such view of the matter, the writ petition at this stage is not maintainable. Apart from the fact that the petitioner himself had stated that as per the appeal provision, the petitioner has already preferred an appeal before the appellate authority on 19.04.2010 and the same is pending. Therefore, once the petitioner has availed the appellate remedy opportunity before the appellate authority, the writ petition is not maintainable. The appellate authority shall consider the appeal filed by the petitioner on merits and pass orders in accordance with law, within a period of three months from the date of receipt of a copy of this order. 14.For the foregoing reasons, the writ petition is dismissed. Interim stay already granted stands vacated. No costs. Consequently, connected miscellaneous petitions are closed. Sd/- Assistant Registrar(C.O) /True Copy/ Sub-Assistant Registrar https://hcservices.ecourts.gov.in/hcservices/ 6 To 1.The Executive Director (TN & P) Indian Oil Corporation Ltd., (Marketing Division), Indian Oil Bhavan, No.139, Mahatma Gandhi Road, Chennai. 2.The General Manager (LPG) Indian Oil Corporation, LPG Distribution, Nungambakkam Main Road, Chennai – 600 034. 3.The Senior Area Manager, Indian Oil Corporation, No.2, Race Course Road, Chokkikulam, Madurai – 625 002. +One CC to Mr.K.Muraleedharan, Advocate, SR.No.15301 sms rl/5c – 23.5.2011 Writ Petition (MD)No.1573 of 2011 26.04.2011 https://hcservices.ecourts.gov.in/hcservices/