IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR :: J U D G M E N T :: (1) Pawan Kumar Paliwal Vs. Union of India & Ors. D.B.Civil Special Appeal (W) No.33/2008 (2) Bharat Petroleum Corporation Ltd. Vs. Union of India & Ors. D.B.Civil Special Appeal (W) No.616/2009 DATE OF JUDGMENT :::: 18th May 2010 PRESENT HON’BLE MR.JUSTICE PRAKASH TATIA HON’BLE MR.JUSTICE DINESH MAHESHWARI Dr. Sachin Acharya, for the appellant in SAW No. 33/2008 Mr. Sunil Beniwal, for the appellant in SAW No. 616/2009 Dr. P.S. Bhati ] Mr. V. K. Mathur ], for the respondents. .... Reportable BY THE COURT: (Per Dinesh Maheshwari, J.) These two intra-court appeals, directed against the same order dated 21.01.2008 whereby the learned Single Judge of this Court has allowed the writ petition (CWP No.3625/2005) preferred by the contesting respondent, involving similar questions on the same set of facts, have been finally heard at this stage; and are taken up for disposal by this common judgment. By the order impugned, the learned Single Judge has upheld the challenge made by the respondent Dr. Rakesh Bhandari (the writ petitioner) to the selection of the appellant of SAW No. 33/2008 Pawan Kumar Paliwal for dealership of the retail outlet of the appellant of SAW No. 616/2009 Bharat Petroleum Corporation Ltd. (‘BPCL’) at “Kelwa (NH-8)”, Rajsamand, with the findings that there 1 had been arbitrariness and extraneous considerations prevailing in award of marks by the Selection Committee; and, while setting aside the impugned selection of the appellant Pawan Kumar Paliwal, has directed that the writ petitioner Dr. Rakesh Bhandari, standing next in merit, be awarded the dealership of the outlet in question with execution of agreement in his favour. Aggrieved, the successful candidate and the petroleum company have preferred these appeals essentially with the submissions that the learned Single Judge has proceeded on irrelevant considerations and has not been justified in interfering with the selection in question. The facts and background aspects relevant for the issues involved in these appeals could be noticed in brief as follows: On 10.02.2005, the appellant BPCL issued an advertisement for appointment of dealers at several of its outlets. The writ petitioner Dr. Rakesh Bhandari and the other appellant Pawan Kumar Paliwal offered their candidature, with several other aspirants, for the aforesaid outlet at Kelwa (NH-8), mentioned at item No. 79 in the advertisement; they were interviewed on 11.06.2005 by the Selection Committee comprising of three members; and the result was declared the same day wherein the appellant Pawan Kumar Paliwal was placed at merit No. 1 with 86.9 percent marks whereas the writ petitioner Dr. Rakesh Bhandari was placed at merit No. 2 with 85.1 percent marks. Aggrieved and dissatisfied with such an unfavourable result, the writ petitioner Dr. Rakesh Bhandari filed the writ petition (wherefrom have arisen these appeals) while alleging that the selection process had been arbitrary and unfair where he was kept 2 marginally lower and the appellant Pawan Kumar Paliwal was deliberately awarded higher marks. In order to substantiate his allegations of unfairness and arbitrariness in the award of marks, the writ petitioner particularly referred to the facts that under the same advertisement, the appellant Pawan Kumar had also offered his candidature for another outlet mentioned at item No. 29 in the advertisement, having location at Neemuch Road, Chittorgarh; and, in the interviews held on 03.06.2005 in relation to the said outlet at Neemuch Road, the appellant Pawan Kumar was awarded much lower marks than the marks as awarded to him for the selection in question for Kelwa outlet. The petitioner essentially contended that when the selections were conducted for the same company BPCL, under the same advertisement, for the same category of persons, and on the same criteria and guidelines, it was inexplicable that in relation to the outlet in question at Kelwa (NH-8), the same candidate, i.e, the appellant Pawan Kumar, was awarded higher marks on various parameters than those awarded to him in relation to the outlet at Neemuch road. The writ petitioner referred to various identical items in the respective evaluation sheets for the two outlets aforesaid; and pointed out the particular areas of substantial variation in the marks awarded to the appellant in the two interviews, with higher marks in the interview in question for Kelwa outlet as held on 11.06.2005 than those awarded to him in the interview for Neemuch Road outlet as held on 03.06.2005. 3 While asserting that he was standing higher in merit on all the relevant parameters but was kept marginally lower at the second place, the writ petitioner contended that the selection process had been arbitrary and unfair where the appellant was awarded higher marks with manipulation of the evaluation process in flagrant violation of rules of fairness; and, seeking intervention of the Court, prayed for the following reliefs:- “A/ By an appropriate writ order or direction, the respondents may kindly be directed to re-evaluate the particular retail outlet dealership at serial no. 79 of the advertisement while keeping in consideration the guidelines to be followed strictly. B/ By an appropriate writ, order or direction, the result declared by the respondent company as Annexure-4 may kindly be quashed and set-aside and consider the candidature of the petitioner afresh by keeping in consideration the applications already submitted by all the applicants. C/ By an appropriate writ, order or direction, the respondents may kindly be directed to follow the criteria and parameters laid down in the guidelines (Annex-3) strictly and effectively. D/ By an appropriate writ, order or direction, the respondents may kindly be directed to consider the respondent no.3 on the same footing as that of Annexure-5 and the petitioner’s evaluation may be assessed by considering his experience in the petroleum trade and his over all excellence. E/ By an appropriate writ, order or direction, the respondent no.1 and 2 may kindly be directed to conduct a detailed investigation into the manipulation and those guilty may be severely punished for tarnishing the image of the company. F/ Any other appropriate writ, order or direction which this Hon’ble Court may deem just and proper in the facts and circumstances of the case may kindly be passed in favour of the petitioner. G/ Writ petition filed by the petitioner may kindly be allowed with costs.'' It may be pointed out that at the initial stage, the writ petitioner had impleaded one Shri P.Lohani who was a common member of 4 the Selection Committee in relation to both the outlets at Neemuch Road and Kelwa but later, his name was deleted from the array of parties with the petitioner waiving the allegations of mala fide against him. The appellants herein, by way of separate replies to the writ petition, refuted the allegations of manipulation and arbitrariness in award of marks in the selection in question; and stated their explanations and reasons for variation of marks in relation to the appellant Pawan Kumar in the two interviews. The learned Single Judge while considering the writ petition, requisitioned the original record of the interviews held for the two outlets and after hearing the parties, proceeded to decide the matter by the impugned order dated 21.01.2008. The learned Single Judge took note of the submissions made on behalf of the parties particularly on the allegations based on the variation in marks as awarded to the appellant Pawan Kumar in the aforesaid two different interviews and so also the explanations put forward by the present appellants on such variation in marks and in denial of the allegations of arbitrariness and favourtism. The learned Single Judge in the first place noticed that the scope of interference in such matter in the writ jurisdiction was limited to the extent of seeing fairness or non-arbitrariness in decision making process and that the Court cannot sit as an appellate Court or Reviewing Authority or Section Committee but observed,- “…if the facts stare in the face and point out to the glaring discrimination or exercise of discretion by such authorities in arbitrary and whimsical manner, even within the aforesaid limited scope under Article 226 of the Constitution of India, this Court can interfere in such cases and look into the 5 record at the instance of the petitioner and find out whether the decision making process has been fair and reasonable or not.” With reference to the original record of the selection proceedings and the submissions made by the parties, the learned Single Judge proceeded to compare the marks as awarded to the appellant Pawan Kumar Paliwal in relation to his candidature for Neemuch Road outlet where he remained unsuccessful and for Kelwa (NH-8) outlet where he was placed at merit No. 1; and found the two set of marks at substantial variance on various items like ready availability of finance, project report, and business ability and acumen, where he was awarded higher marks for Kelwa outlet in comparison to those awarded for Neemuch Road outlet, though under the same guidelines and on the same set of documents. The learned Single Judge found such variation in marks entirely inexplicable; and rejected the explanation stated on behalf of the appellants that in relation to the components pertaining to availability of finance parameter, original documents were not produced in the earlier interview for Neemuch Road outlet but were produced in the later interview for Kelwa outlet; and that certain items of marks like project report and business ability and acumen depended on the answers given by the candidate to the leading questions put by the particular Selection Committee. The learned Single Judge dilated on the aspects relating to difference of marks as under:- “11. In the present case it appears as is apparent from the marginal difference of marks between the two parties, namely, the petitioner and private respondent No. 3, that difference in marks in different areas of awarding such marks in accordance with the guidelines contained in Annex. 3 has been caused for extraneous or inexplicable reasons. 6 The explanation given by the learned counsel for the respondents that since the original documents for immovable property was produced by the respondent No. 3 on 11.6.2005 for Kelwa outlet and therefore, he was award- ed 18 marks as against 12 marks on the previous date 3.6.2005 does not impress this Court. It is clear stipulation in advertisement Annex. 1 that application once submitted with all the relevant documents will not be allowed to be changed in any manner. Production of original documents at the time of interview does not affect grant of marks. Either on the basis of photocopies of the documents, no marks could be awarded to the respondent No. 3 at all or relying upon those photocopies, if marks were to be awarded, then they should have been awarded on 3.6.2005 as well, even in absence of original documents. The respondents have also not pleaded the said reason of bifurcation of marks in three headings regarding ready availability of finance in column No. (vi) of the guidelines in Annex. 4 and 5 as the reason for difference of marks to respondent No. 3. Yet assuming for argument sake that this difference was caused on account of production of original documents on later date by the respondent No. 3, the same in the opinion of this Court could not alter marks of respondent No. 3. The production of original documents was only for verification and authentication of papers already submitted and said produc- tion of original documents could not alter the marks to be awarded. Similarly, if same project report could yield only 2 marks in column No. (x) on 3.6.2005 for said respondent No. 3, how could those marks can go upto 3 on 11.6.2005. Similarly, the difference in marks in column (xiv) relating to business ability and acumen rising from 2.5 to 5 for respondent No. 3 is also not supported by any plausible reason or explanation. The petitioner who not only marched much higher than respondent No. 3 in ready availability of finance, 20 marks as against 18 marks to respondent No. 3 and educational qualification - column No. 8-15 marks as against 10 was thus deliberately pushed down by the Selection Committee on 11.6.2005 marginally by less than 2 marks 86.9 to respondent No. 3 as against 85.1 to the petitioner.” Accordingly, the learned Judge held the selection of the appellant vitiated for having been made on extraneous considerations where he was awarded higher marks for Kelwa, marginally above the writ petitioner. The learned Single Judge held,- “13. Having gone through this record and comparative award of marks under different headings in consonance with conditions of advertisement and guidelines for award of such marks contained in Annex. 3, this Court is satisfied that the decision of Selection Committee of the respondent- Company to award said outlet of Kelwa in pursuance of 7 interview held on 11.6.2005 in favour of respondent No. 3 is arbitrary and smacks of extraneous reasons, having gone into such decision making process. This is ex-facie and without any hair splitting exercise. The difference in marks of respondent No. 3 for these two dates is thus found to be without any reasonable basis or nexus.” While observing that though the Selection Committee had discretion to award the marks upto the maximum as allocated in different headings as per the guidelines but such difference cannot be made arbitrarily and whimsically; and while distinguishing the decision in the case of Mrs. Shakun Arora Vs. Union of India & Ors.:2006(1) Current Diwani Reports 694 as relied upon by the present appellants, the learned Judge said,- “….There is no dispute from the side of the private respondent that same set of documents were available with both the applications for both these outlets in question. In other words, it is not the case of the respondents either the BPCL or the private respondent No. 3 that different documents or project report or papers relating to availability of finance etc. were made available for two different outlets on 3.6.2005 and 11.6.2005. Thus, apparently for same set of documents if the Selection Committee comprising of two different members, one being common in two selection interviews, cannot give marks at such varied level which ultimately results in pushing down the petitioner at marginally lower place to give him second rank in over all list.” As a result of the findings aforesaid, the learned Single Judge allowed the writ petition and, while setting aside the selection of the appellant Pawan Kumar Paliwal, directed further that the dealership in question be awarded to the writ petitioner Dr. Rakesh Bhandari. The learned Single Judge issued the writ in the following terms:- “15. Thus, the present writ petition deserves to be allowed and the same is accordingly allowed. The allotment of outlet of Kelwa (NH 8) Dist. Rajsamand in pursuance of interview by the Selection Committee held on 11.6.2005 in favour of respondent No. 3 is set aside. The petitioner thus, becomes entitled to be given the said retail outlet at Kelwa being next in merit. The respondent No. 2 - Company shall accordingly undertake requisite formalities for execution of agreement 8 with the petitioner being at serial No. 2 in the said list for aforesaid outlet at Kelwa for award of said retail outlet to the petitioner. The said exercise in this regard by the respondent-company may be made within a period of one month from today.” Assailing the order aforesaid, the petroleum company BPCL and so also the allottee Pawan Kumar have preferred these intra- court appeals with the submissions that the learned Single Judge has erred in allowing the writ petition and in issuing the direction aforesaid for award of dealership in favour of the writ petitioner; and that the writ petition founded on vague, frivolous, and baseless allegations of unfairness and favouritism ought to have been dismissed. The learned counsel for the appellant contended that the learned Single Judge has proceeded on irrelevant considerations while allowing the writ petition on the assumption that the Selection Committee had acted unfair in awarding the appellant Pawan Kumar Paliwal higher marks for Kelwa (NH-8) outlet in comparison to the marks for Neemuch Road, Chittorgarh outlet. According to the appellants, the reasons for difference in two set of marks so awarded to the appellant had been clearly and adequately explained when it was pointed out that in relation to the parameter of ‘ready availability of finance’, 12 marks were to be awarded for ‘liquid cash availability’, 4 marks were for ‘fixed and movable assets’ and 4 for ‘income’; and in the interviews held on 03.06.2005, the appellant Pawan Kumar though secured 12 marks for ‘liquid cash availability’, but did not get any mark on other items relating to ‘fixed and movable assets’ and ‘income’ because of non-production of the original documents regarding immovable property etc. whereas in the interviews held on 11.06.2005, he was awarded further marks in relation to ‘fixed and 9 movable assets’ and ‘income’ when he produced the original documents for verification. Further, according to the appellants, in relation to business ability and acumen and so also project report, the evaluation process included leading questions to the candidates and hence, the possibility of different marks in different interviews cannot be ruled out as based on answers to such leading questions. The learned counsel for the appellants contended that in the given set of guidelines and basis of awarding the marks, there could be natural variation of marks for the same candidate in two different interviews; that merely for such difference in marks in the two interviews, selections cannot be held vitiated; that there had not been any infirmity and procedural irregularity in the selection process; and that the learned Single Judge has exceeded the scope of judicial review in such matters while analysing the marks awarded and while assuming that the appellant had been awarded the marks higher than deserved. The learned counsel further contend that the learned Single Judge exceeded the jurisdiction in issuing mandatory directions for award of dealership to the writ petitioner though such directions were not within the scope of jurisdiction of the writ Court nor were even prayed for by the writ petitioner who only asked for directions for re-evaluation. The learned counsel for the contesting respondent (writ petitioner) has vehemently opposed the submissions made on behalf of the appellants and strongly supported the order impugned with the submissions that in the given set of facts and circumstances, the writ issued by the learned Single Judge remains just and proper and calls for no interference. The learned counsel has particularly 10 contended that the explanation in regard to the substantial variation in the marks for ‘ready availability of finance’ has been thoroughly unsatisfactory and unacceptable. According to the learned counsel, the advertisement and the guidelines made it clear that the documents once submitted could not be substituted or altered and when the marks were to be awarded on the same criteria and the same documents, there could not have been variation in such marks in the two interviews. The learned counsel further submitted that arbitrariness and unfairness in the award of marks being writ large on the face of the record and the explanations as put forward by the appellants being hollow and baseless, the learned Single Judge has rightly interfered and the impugned order calls for no interference. In relation to the writ issued by the learned Single Judge directing award of dealership to the writ petitioner, the learned counsel contended that the ambit of the prayers made in the writ petition had been wide enough and the writ Court had the jurisdiction to pass appropriate order to do complete justice; and in the present case, when the award of marks to the appellant Pawan Kumar had been demonstrably unfair and arbitrary and the selection was required to be set aside, the only logical course was, and has rightly been adopted by the writ Court, of award of dealership to the writ petitioner, standing next in merit. Having given a thoughtful consideration to the rival submissions and having examined the material placed on record with reference to the law applicable, we are, with respect, unable to concur with the learned Single; and unable to affirm the writ issued in this matter. 11 A comprehension of the impugned order dated 21.01.2008 makes out that the considerations that weighed heavy for the findings on arbitrariness and unreasonableness in the selection process had been that the appellant Pawan Kumar got different amount of marks under the same set of documents and under the same guidelines in the two interviews: one held on 03.06.2005 (for Neemuch Road outlet) and another held on 10.06.2005 (for Kelwa outlet); and that he was placed marginally higher than the writ petitioner in relation to the selections for Kelwa with award of higher marks in comparison to those awarded to him for Neemuch Road, Chittorgarh. We are, with respect, unable to agree with the findings recorded and the conclusions reached in the impugned order for more than one reason. First, that the entire of the consideration of the learned Single Judge has proceeded on an erroneous assumption that the set of marks awarded to the appellant in his candidature for Neemuch Road outlet was of some standard or exactitude on the basis of which the other set of marks was to be calibrated. Secondly, even if the marks for Neemuch Road outlet were taken into consideration, it appears that the basis of evaluation as stated in the guidelines (Annex.3) has escaped due consideration; particularly when as per such guidelines, the marks for the same candidate regarding a substantial number of parameters could definitely vary in different interviews. Thirdly, the reasons as assigned by the appellants while explaining the difference in the marks in the two interviews were neither pretentious nor implausible; and could not have been rejected as if sham or moonshine. These 12 are apart from the reason that the impugned order appears exceeding the scope of judicial review in such matters which is limited to consider the procedural illegality and impropriety, if any; and where the writ Court is, ordinarily, not expected to enter into the arena of the quantum of marks that is essentially for the selection body to consider and determine; and, in the present case, there are no such extraordinary or exceptional reasons wherefor the marks as awarded to the appellant in the two different interviews and the marks as awarded to the appellant and the writ petitioner in the interview in question be compared and analysed. The very basis of allegations of arbitrariness as levelled in the writ petition had been with reference to the fact that the appellant was awarded higher marks in the interviews held on 11.06.2005 for Kelwa outlet on various parameters than those awarded to him for the same parameters in the interviews held on 03.06.2005 for Neemuch Road outlet; and the learned Single Judge has proceeded to compare the two set of marks and has found awarding of higher marks for the selections in question entirely inexplicable and hence, has sustained the allegations of arbitrariness. The entire of the considerations of the learned Single Judge, with respect, got confined to one view of the matter where it was assumed that the marks as awarded to the appellant on 03.06.2005 were that of some standard and of touchstone on which the marks awarded to him in another interview could be examined by comparison. We are unable to agree on such process of comparison and calibration particularly when viewed in the light of the fact that the two selection Committees were different and various areas for awarding of marks 13 depended on leading questions too. It cannot be said that the performance of the appellant as made in the interview dated 03.06.2005 and the marks awarded therefor were final and binding on him. The either or both of the eventualities, of his performing better in the next interview; or, of the previous