IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT :- THE HONOURABLE THE CHIEF JUSTICE MR.H.L.DATTU & THE HONOURABLE MR. JUSTICE A.K.BASHEER FRIDAY, THE 5TH DECEMBER 2008 / 14TH AGRAHAYANA 1930 WA.No.2333 of 2008 ---------------------------------- AGAINST THE JUDGEMENT IN WPC.32842/2005 Dated 18/09/2008 .................... APPELLANT/ PETITIONER:- ------------------------------------- M.I.RAVEENDRAN, AGED 60 YEARS, S/O.M.C.ITTIYATHI, RESIDING AT MANGALAMUNDAKKAL HOUSE, PERINGASSERI P.O. IDUKKI DISTRICT. BY ADV. SRI.K.RAMAKUMAR (SR.) SRI.T.RAMPRASAD UNNI SMT.SMITHA GEORGE RESPONDENTS/RESPONDENTS:- ----------------------------------------------- 1. THE DIVISIONAL MANAGER, IBP COMPANY LTD., ETTOOR-CHACKOO CHAMBERS, PALARIVATTOM, KOCHI. 2. THE I B P COMPANY LTD., REPRESENTED BY ITS MANAGING DIRECTOR, KOCHI. 3. ISSAC T.DEVASSIA, THEREKAPLACKAL HOUSE, KOOVAPALLY P.O., THODUPUZHA 4. ARUN BALE M., MUTHANATTE HOUSE, PERINGASSERY, THODUPUZHA. R1 & R2 BY STANDING COUNSEL.SRI.C.S.DIAS R3 BY ADV.SRI.K.K.CHANDRAN PILLAI. THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 05/12/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: H.L.DATTU, C.J. & A.K.BASHEER, J. ----------------------------------------------------- W.A.No.2333 of 2008 ---------------------------------------------- Dated, this the 5th day of December, 2008 JUDGMENT Basheer, J. Appellant had, in response to a notification issued by respondents 1 and 2, applied for dealership in petroleum products at Thodupuzha in Idukki District. After the selection process, respondent No.3 was appointed as the dealer. 2. The decision of the company (respondent No.2) was questioned by the appellant in the writ petition filed under Article 226 of the Constitution of India, contending inter alia that, neither respondent No.3 nor respondent No.4 was eligible to be placed in the select list ahead of him for appointment, and in fact, the appellant ought to have been given the dealership. The above contention was rejected by the learned Single Judge. Hence, this writ appeal. 3. Shorn of unnecessary details, the following relevant facts may be briefly noticed. 4. As mentioned earlier, the appellant, respondent Nos. 3 and 4 and a few others had submitted application for dealership of petroleum products at Thodupuzha in response to the notification issued W.A.No.2333/2008 -2- by respondent No.2. It is the admitted position that, the applications submitted by the aspirants were processed and the eligible candidates whose applications were found in order were invited for interview. Respondents 1 and 2 had prepared Ext.P3 “Average Comparative Statement of the Performance of the Candidates” who were interviewed on October 25th, 2005. In the said statement, respondent No.3 was placed at Sl.No.1 since he had obtained more marks as compared to the other candidates. Respondent No.4 in the writ petition was placed at Sl.No.2 and the appellant herein appeared in the list at Sl.No.3. Thereafter, the company had published the short list pursuant to the decision taken by the Dealer Selection Committee shortlisting respondent No.3 for appointment as the retail outlet dealer. Ext.P4 is the said short list. 5. Appellant had sought to quash Ext.P3 and P4. The other prayer in the writ petition was to issue a writ of mandamus to respondents 1 and 2 to reject the applications submitted by respondents 3 and 4 and to appoint appellant as the retail dealer. 6. In the counter affidavit filed by the company it was asserted that the selection process was completed after carefully examining the applications and the relevant documents produced by the W.A.No.2333/2008 -3- candidates and also on the basis of the marks obtained by the candidates in the interview. In the counter affidavit filed by respondent No.3, he had also refuted the allegations made against him by the appellant. 7. The learned Single Judge, after considering the rival contentions of the parties found that, there was no material to show that respondent No.3 was not eligible for appointment as the dealer. It was further noticed by the learned Judge that, the appellant had not even produced the guidelines for selection in order to enable the court to consider the merit or validity of the contention raised by the appellant that neither respondent No.3 nor respondent No.4 was eligible for being placed higher in the rank list above the appellant. 8. Sri.K.Ramakumar, learned senior counsel for the appellant submits that, the learned Single Judge was not justified in dismissing the writ petition without considering the documents produced by the appellant. Learned senior counsel has invited our attention to some of the documents which were produced by the appellant albeit belatedly, along with an Interlocutory Application which is not even seen numbered by the Registry. 9. One document produced by the appellant is the notification issued by the company way back in the year 2005. The next W.A.No.2333/2008 -4- document is the communication sent by the company to the appellant directing him to appear for the interview along with necessary documents. Yet another document is the communication received by the appellant from the company in response to certain queries made by the appellant under the Right to Information Act. 10. It is contended by the learned senior counsel that, the above documents ought to have been kept in view while considering the contentions in the writ petition. 11. It is pertinent to note that, the writ petition was filed in the year 2005. The case came up for final hearing on September 18, 2008 as is revealed from the judgment. The Interlocutory Application referred to by us was filed by the appellant on the day when the writ petition was taken up for hearing. It is significant to note that, the appellant had not even produced the notification along with the writ petition in order to enable the Court to consider the question whether respondent Nos.3 and 4 were not at all liable to be considered for selection for one reason or the other. In the absence of such a vital document it was obviously not possible for the Court to consider any of the so called contentions raised by the appellant. 12. The primary contention now raised by the appellant in W.A.No.2333/2008 -5- this appeal is that at the time of his appointment, respondent No.3 was a member of Kudiathoor Grama Panchayat, and therefore he should not have been selected. Such a contention was not raised in the writ petition. It cannot be assumed that the appellant would not have been aware of the fact that respondent No.3 was a member of the local statutory body at the time of selection. We have carefully perused clause 8 (a) of the notification, which only stipulates that the applicant in the event of his appointment as dealer, shall not hold any post. We are afraid that the contention now raised by the appellant relying on clause 8 (a) is totally misconceived. 13. The allegation raised against respondent No.4 is that he did not produce a “financial capacity certificate”. As noticed by us already, no relevant documents were produced by the appellant along with the writ petition or thereafter. He had not filed reply affidavit to the counter affidavit filed either by respondent No.1 or respondent No.3. 14. In our view, it is too late in the day for the appellant to contend for the position that the learned Single Judge ought to have considered the documents produced by the appellant at the time when the writ petition was taken up for hearing. Any how we have considered those documents carefully. Even after considering the above documents, W.A.No.2333/2008 -6- we are unable to persuade us to quash Exts.P3 and P4 or to issue a direction to the company to re-do the selection process. In our view, the contention raised by the appellant in this regard is wholly untenable and misconceived. 15. It is on record that, after completing the selection process, respondent No.3 was given dealership and he has been functioning as a dealer for the last three years. In that view of the matter also, we do not find any justification to exercise our discretionary jurisdiction under Article 226 of the Constitution of India and undo or unsettle the settled position. The writ appeal fails, and it is accordingly dismissed. (H.L.DATTU) CHIEF JUSTICE (A.K.BASHEER) JUDGE MS