1 wp-6561-10 mgn IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, CIVIL JURISDICTION WRIT PETITION NO.6561 OF 2010 Mrs. Vrushali L. Chavan ..Petitioner Vs. Hindustan Petroleum Corporation Ltd. & Ors. ..Respondents Mr. Surel S. Shah, for the petitioner. Mr. Minoo Sidodia i/b. Rustomji and Ginwala for the respondent Nos. 1 to 3. Mr. R.A. Lokhande, for respondent No.4 Mr. V.P.Sawant, for respondent No.5. CORAM: B. H. MARLAPALLE & U.D.SALVI, JJ. DATE: 29th October, 2010. P.C. On 17th August, 2009 the respondent No.1 Oil Company published an advertisement of Retail Outlet Dealers in different locations in the State of Maharashtra. At Serial No.119 of the said advertisement was a location earmarked for petrol pump on National Highway No.4 from Satara to Pune and between the revenue limits of village Bhuinj and Surur. Along with the petitioner some other applications were also received for the said location 2 wp-6561-10 and they were scrutnised. As required under the selection process all the applicants whose applications were found to be in order were called for oral interview and only four of such applicants attended the interview held on 3rd April, 2010. The provisional merit list was published on the same day and the first three applicants in the merit list were as under:- 1.Ms.Vrushali Sahebrao Biramane 2.Mrs. Monika Sarang Pore 3.Vrushali Lalit Chavan. It appears that the subject outlet dealership was reserved for a lady. The Selection Committee consisted of three members as per the guidelines for selection and published as a Brochure and all of them were rated for 300 marks (100 marks for each member). Respondent No.5 Ms.Vrushali Sahebrao Biramane had the highest score of 245.12 out of 300 marks, whereas the petitioner had a total score of 157.73 marks out of 300 and, therefore, she was third in the merit list. On the publication of the provisional merit list the petitioner submitted her representation on 30th March, 2010 to the Senior Regional Manager of the respondent No.1and under the guidelines the said complaint was required to be dealt with. By a communication dated 5th August, 2010 addressed to the petitioner the Oil 3 wp-6561-10 Company informed that her complaint was investigated by the Senior Officers appointed by the General Manager-West Zone. The Investigating Officer and the Grievance Redressal Committee submitted its report dated 28th June, 2010 and as per the same there was a change in the merit position of the petitioner. She was empaneled as candidate No.2 instead of candidate No.3. However, there was no change so far as the empaneled candidate No.1 i.e. the present respondent No.5 was concerned. Not being satisfied with the outcome of her complaint, she filed this Writ Petition on or around 16th August, 2010 and on the same day while issuing notice to the respondents returnable on 30th August, 2010, the parties were directed to maintain status quo until the next date and this order has been continued thereafter, though subsequently the petition was directed to be placed before the Division Bench in view of the Appellate Side Rules. 3. Mr. Shah, the learned Counsel for the petitioner raised two grievances viz. (1) when the petitioner's complaint was enquired into by a Committee a reasoned order was required to be passed and the communication dated 5th May, 2010 could not be said to be a reasoned order. He relied upon Clause 19 of the Guidelines for selection of Retail Outlet Dealers in support of this argument and claimed that the decision on 4 wp-6561-10 the petitioner's complaint is vitiated on that sole ground and (2) By referring to the provisional merit list published on 4th March, 2010 Mr. Shah argued before us that in the column for capability to provide infrastructure and facility the petitioner was awarded zero marks whereas the respondent No.1 was awarded 105 out of 105 marks and this rating was arbitrary and in fact contrary to the guidelines. As per Mr. Shah, the petitioner had submitted all the details to point out that she had the family land for the proposed outlet and half of the land was standing in the name of her husband whereas the remaining half plot was standing in the name of a Private Limited Company of which her husband and in-laws were the directors. As per Mr. Shah on this ground alone she was required to be given 105 out of 105 marks and not zero marks and if this improvement is done the petitioner would be No.1 in the merit list. 4. The respondent No.1 company has filed affidavit in reply and has pointed out that the complaint dated 30th March, 2010 was investigated by the committee as was required to be done in keeping with the procedure laid down under Clause 19 of the guidelines and the Committee on evaluation of the papers submitted by the petitioner regarding the land earmarked, accepted that the petitioner had a firm offer for the land and, 5 wp-6561-10 therefore, she was entitled to a score of 25 out of 35 marks and not 35 out of 35 marks. If she is awarded 25 marks out of 35, she would score 75 out of 105 marks and thus her score was corrected and the weighted average of the marks she obtained on re-evaluation was 68.25 as against the awarded score of 90.03 marks of respondent No.5. It is further pointed out that on this re-evaluation the total score of the petitioner reached to 225.98 as against the total score of respondent No.5 at 245.12 out of 300 marks and, therefore, the petitioner could not get the first place in the merit list. 5. It was submitted by Mr. Shah that even in the case of respondent No.5 the Oil Company and its Selection Committee had erred in awarding 35 marks out of 35 marks to her for the land as the documents placed on record did not indicate that the said respondent is the owner of the said land. A copy of the Agreement for Sale though registered was placed on record and, therefore, at the most it could be interpreted to be a firm offer and not ownership. Consequently the respondent No.5 was entitled only for 25 marks out of 35 marks and in that situation the petitioner would be No.1 in the merit list on re-evaluation. 6. Clause 19 (a) of the Guidelines reads as under:- “19. Grievance/Complaint redressal system: 6 wp-6561-10 (a) An aggrieved person may send his/her complaint to the oil company at the address of the customer service cell displayed at the nearest retail outlet of the concerned oil company. Complaints can also be lodged on the website of the oil company. No complaints against dealer selection will be entertained after 30 days from the date of publication of the result of the interview under any circumstances. Pending disposal of complaints, issuance of LOI shall be kept in abeyance. Disposal of complaints shall be as per established complaint redressal system as specified herein below. (i) Anonymous/pseudonymous complaints will not be investigated. (ii) On receipt of a complaint, a letter will be sent by the HPCL to the complainant through Registered Post asking the complainant to submit details of allegation with a view to prima facie substantiate the allegations along with supporting documents, if any, within 30 days. The complainant will be clearly advised that the oil company will examine the complaint and if it is established that the complaint does not have any substance, he/she will be liable for legal action. The oil company will examine 7 wp-6561-10 response of the complaint and if it is found that the complaint does not have specific and verifiable allegations, the same will be filed. Sub-clause (b) therein states that when a decision is taken to investigate the complaint, the investigation will be done by one Senior Officer of HPCL and will pass a speaking order after giving due opportunity to the complainant. Efforts will be made to ensure that the complaints are disposed of within three months from the date of receipt of response of the complaint. Copy of the speaking order will be given to all concerned. Thereafter, decision on the complaint will be taken as per further procedure. Mr. Shah submitted that there was no speaking order passed after giving due opportunity to the petitioner and a copy of the speaking order was not provided to the petitioner. As per Mr. Shah, the communication dated 5th August, 2010 is not a speaking order. Though we find force in the arguments, in the totality of the circumstances in this case we are not satisfied that the same could vitiate the selection process and more particularly the re-evaluation made on the basis of the complaint submitted by the petitioner. Her complaint has been dealt with as per the procedure in the guidelines. The plot of land that she had earmarked along with her application had two parts, one in Survey No.1017 which was 8 wp-6561-10 owned by her husband and the remaining half was from Gat No.1021 which was owned by a Private Limited Company by name Shivneri Caterers Pvt. Ltd. At the same time the owner of the land in Gat No.1045 had also given a declaration that he would provide for access to enter into the proposed site. Thus we do not find any error in the decision of the Oil Company to hold that the petitioner had a firm offer regarding the plot of land which was proposed for setting up the dealership. Clause 16(b) of the guidelines states that a candidate having own land or having land on long lease (registered) for a minimum period of 15 years with a renewal option of 15 years and willing to give to HPCL on long term lease at rentals acceptable to HPCL would secure 25 marks. Mr. Shah referred to Clause 16 (c) and submitted that the land in the ownership of any family member or of the family unit ought to be held as land owned by the petitioner. We are not impressed by these submissions. Having regard to these details and the distinction between “own land” and “firm offer” of land we are satisfied that the petitioner was rightly awarded 25 marks out of 35 marks in the re-evaluation in response to her complaint. Now coming to the marks awarded to respondent No.5 for the plot of 9 wp-6561-10 land Mr. Sawant, the learned Counsel for the respondent No.5 has placed before us today the copies of additional documents and one of them is a copy of the registered sale deed dated 21st August, 2008 i.e. much before the Oil Company had released the advertisement. He has also placed on record a copy of the 7 x 12 extract showing the ownership of the petitioner has also been mutated in respect of the very same land. Thus when the application was submitted by the respondent No.5 she was the owner of the proposed land for the outlet and, therefore, we do not find any error in her score of 35 out of 35 marks. 8. We may also note that the petitioner had in fact better score in some other parameters like fixed and movable assets, experience, capability to generate business and business acumen, etc., whereas the respondent No.5 has better scores in land, availability of funds by way of fixed deposits, etc. and income. The three member Committee had done evaluation of the candidates as required under the guidelines and, therefore, the empanelment of the respondent No.5 at serial No.1 in the merit list, in our opinion, does not suffer from any error. Consequently, the merit position of respondent No.5 in the selection panel at Serial No.1 even on re- evaluation undertaken while dealing with the complaint submitted by the 10 wp-6561-10 petitioner cannot be faulted with and consequently the challenge raised by the petitioner must fail. 9. Hence, the petition is rejected. Interim order stands vacated. 10 . The oral application to continue the interim order is hereby rejected. (U.D.SALVI, J.) (B. H. MARLAPALLE, J.)