IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN TUESDAY, THE 12TH APRIL 2011 / 22ND CHAITHRA 1933 WP(C).No. 26105 of 2009(G) ---------------------------------- PETITIONER(S): -------------------- JOSEPH.T,KANIYARAKATHU HOUSE, KURAVILANGAD.P.O,KOTTAYAM. BY ADVS. SRI.K.GOPALAKRISHNA KURUP SRI.A.K.HARIDAS RESPONDENT(S): -------------------- 1. THE UNION OF INDIA REPRESENTD BY THE SECRETARY TO GOVERNMENT,MINISTRY OF PETROLEUM, NEW DELHI. 2. THE INDIAN OIL CORPORATION LTD.,REGISTERED OFFICE, G-9,ALIYAVAR JUNG MARG,BANDRA (EAST), MUMBAI. 3. INDANE AREA OFFICE,INDIAN OIL CORP; LTD, PANAMPILLLY AVENUE,PANAMPILLY NAGAR, COCHIN-36, REP; BY THE CHIEF AREA MANAGER,INDANE AREA OFFICE, PANAMPILLY NAGAR,COCHIN-36. 4. ALICE KURIAN,THAZHATHEL,KURAVILANGAD.P.O.,KOTTAYAM. R1 BY SRI.T.P.M.IBRAHIM KHAN,ASST.SOLICITOR R2 & R3 BY ADV. SRI.E.K.NANDAKUMAR SRI.K.JOHN MATHAI SRI.P.BENNY THOMAS SRI.A.K.JAYASANKAR NAMBIAR SRI.P.GOPINATH R4 BY ADV. SRI.SHAJI P.CHALY THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27/10/2010, ALONG WITH WPC NO. 33209 OF 2009 THE COURT ON 12/04/2011 DELIVERED THE FOLLOWING: svs W.P.(C). NO. 26105/2009 APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER DATED 31/01/2008. P1(a):COPY OF THE AFFIDAVIT FILED ALONG WITH EXT.P1 APPLICATION. P2: COPY OF THE LETTER DATED 26/05/2009 ISSUED FROM THE OFFICE OF THE 3RD RESPONDENT. P3: COPY OF THE LETTER DATED 01/07/2009 SENT BY THE PETITIONER TO THE 3RD RESPONDENT. P4: COPY OF THE JUDGMENT DATED 04/08/2009 OF THIS HONOURABLE COURT IN WPC. NO.19408/2009. P5: COPY OF THE REPRESENTATION TO THE CHAIRMAN, I.O.C. DATED 14/08/2009. P6: COPY OF THE POSTAL RECEIPT EVIDENCING DISPATCH OF EXT.P5. P6(a):COPY OF THE ACKNOWLEDGEMENT CARD EVIDENCING RECEIPT OF EXT.P5 BY THE CHAIRMAN, I.O.C. P7: COPY OF THE REPRESENTATION SENT TO THE CHIEF AREA MANAGER. P8: COPY OF THE REPLY SENT BY THE CHIEF AREA MANAGER. P9: COPY OF THE APPLICATION SUBMITTED BY THE 4TH RESPONDENT. RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ P.A. TO JUDGE. svs P.N. RAVINDRAN, J. ------------------------------- W.P.(C) Nos. 26105 & 33209 of 2009 ------------------------------- Dated this the 12th day of April, 2011 J U D G M E N T These writ petitions relate to the appointment of Liquefied Petroleum Gas distributor (LPG distributor for short) at Kuravilangad in Kottayam District. They were, therefore, heard together and are being disposed of by this common judgment. The brief facts of the case are as follows:- W.P.(C) No.26105 of 2009 2. The petitioner, a law graduate and a business man by profession applied for appointment as LPG distributor pursuant to Ext.R3(a) notification issued by the Indian Oil Corporation Ltd. in the Malayala Manorama daily dated 29.12.2007, inviting applications from eligible persons for appointment as LPG distributor at Kuravilangad in Kottayam District and at other places. As per the notification inviting applications, every applicant was required to submit along with the application an affidavit in the format prescribed in Annexure-A thereto. The petitioner had therefore submitted along with his application (Ext.P1) the original of Ext.P1(a) affidavit dated 29.1.2009 attested by a notary. By Ext.P2 letter dated 26.5.2009, the Chief Area Manager of the Indian Oil Corporation Ltd. at Cochin informed the petitioner that he has not been found eligible for award of the distributorship for the W.P.(C) No.26105 & 33209 of 2009 2 reason that the affidavit submitted by him is not as per the format in Annexure-A. The petitioner thereupon sent Ext.P3 letter dated 1.7.2009 wherein he pointed out that the affidavit is in the proper format, that it was attested by a notary and that he is eligible to apply for distributorship. He thereafter filed W.P.(C) No.19408 of 2009 in this Court challenging Ext.P2. By Ext.P4 judgment delivered on 4.8.2009, this Court disposed of the said writ petition with a direction that in the event of the petitioner approaching the appropriate authority of the Indian Oil Corporation Ltd. within two weeks raising the contentions raised in the writ petition, the competent authority shall take an appropriate decision in the matter within three weeks thereafter. The petitioner thereupon submitted Ext.P5 representation dated 14.8.2009 to the Chairman of the Indian Oil Corporation wherein he stated that though he had failed to mention his name beneath the signature in the affidavit and had also not struck off the names of other oil companies in paragraph 6 of the affidavit, they are inconsequential clerical mistakes. In that representation, he requested the Chairman of the Indian Oil Corporation to consider his application on the merits or to issue a direction in that regard. Thereafter, on coming to know that the interview for selecting the W.P.(C) No.26105 & 33209 of 2009 3 distributor is scheduled to be held on 10.8.2009, the petitioner sent Ext.P7 letter dated 5.8.2009 to the Chief Area Manager, wherein he requested the Chief Area Manager to keep the interview in abeyance till the Chairman considers his representation. By Ext.P8 letter dated 8.9.2009, the Deputy General Manager informed the petitioner that his application was rejected primarily for the reason that the words “unmarried daughter(s)” were deleted from the format of the affidavit. The petitioner was informed that for this reason, his candidature cannot be considered. The instant writ petition was thereupon filed challenging Exts.P2 and P8 seeking a direction to the third respondent to consider Ext.P1 application submitted by the petitioner on the merits and to award the distributorship at Kuravilangad in Kottayam District to him. Later, the writ petition was amended by filing I.A.No.13858 of 2009 whereby the petitioner prayed for additional reliefs including an order to set aside the list of empanelled candidates prepared by the Indian Oil Corporation pursuant to the interview held on 10.9.2009 and 11.9.2009 and to direct a fresh selection to be conducted after considering all eligible applicants. 3. The main contention raised by the petitioner is that if the application submitted by him is liable to be rejected for the reason W.P.(C) No.26105 & 33209 of 2009 4 that the affidavit is defective, then the application submitted by the fourth respondent, the first empanelled candidate is also liable to be rejected for the reason that in her application (Ext.P9) Column Nos.13 (a)(1) and 13(b)(1) had not been duly filled up. Relying on the endorsements made by the officers of the Indian Oil Corporation on the second page of the proforma of Ext.P9 application that there is no documentary proof for land for shop/showroom as the details regarding the date of registration of the sale deed are not stated in the application, it is contended that the defective application submitted by the fourth respondent was entertained and therefore an opportunity ought to have been given to the petitioner to cure the defect. It is also contended that the only defect in the affidavit was that the name of the petitioner had not been given underneath his signature in the affidavit and that he had also omitted to strike off the names of other oil companies in paragraph 6 of the affidavit. It is contended that these are inconsequential omissions in view of the fact that name of the deponent is given in the affidavit and the name of the oil company is also known to the respondents. 4. A counter affidavit dated 25.9.2009 has been filed on behalf of respondents 2 and 3. In paragraph 3 thereof, it is stated that W.P.(C) No.26105 & 33209 of 2009 5 though this Court had by Ext.P4 judgment directed the petitioner to approach the competent authority within two weeks putting forward all his contentions, the petitioner did not move the Chief Area Manager, but moved the Chairman, though the Chairman is not directly concerned with the selection of distributorship. It is contended that the petitioner ought to have filed a representation before the Chief Area Manager and that having not been done within the time limit stipulated in Ext.P4 judgment, there was nothing improper in the respondents proceeding with the selection process. It is also stated that the petitioner's application was rejected for the reason that he had omitted the words “unmarried daughter(s)” in paragraph (2) of the affidavit filed by him. It is also stated that in the interview conducted on 10th and 11th of September, 2009, the fourth respondent was selected and empanelled as the candidate who has secured the maximum marks. Respondents 2 and 3 have also filed an additional counter affidavit dated 20.1.2010 wherein it is stated that Ext.P9 application submitted by the fourth respondent was not defective in material particulars and therefore there was no irregularity in accepting the application submitted by the fourth respondent or in empanelling her as the selected candidate. With W.P.(C) No.26105 & 33209 of 2009 6 reference to the defects pointed out in Ext.P9 application submitted by the fourth respondent, it is stated that as the fourth respondent had made available copies of the sale deed to show that her husband owns land and had offered it for putting up the godown, there was no defect in the application submitted by the fourth respondent. The fourth respondent has filed a counter affidavit interalia contending that as the application submitted by the petitioner was defective and was rejected, he cannot challenge the selection and empanellement of the fourth respondent. W.P.(C) No.33209 of 2009 5. The petitioner herein is another applicant who applied pursuant to the very same notification which is the subject matter of W.P.(C) No.26105 of 2009 for appointment as LPG distributor at Kuravilangad at Kottayam District. His application was entertained and he was also interviewed. After the interview, the petitioner herein was empanelled as the third ranked candidate. The third respondent herein who is the fourth respondent in W.P.(C) No.26105 of 2009 was ranked first and the fourth respondent herein who is not a party to the other writ petition was ranked second. The third respondent was awarded 88.67 marks, the fourth respondent was W.P.(C) No.26105 & 33209 of 2009 7 awarded 87.40 marks and the petitioner was awarded 86 marks. In this writ petition also, the main contention raised is that as the third respondent had not furnished the details regarding ownership of land for locating the godown or the show room, her application was defective and therefore, for capacity to provide infrastructure, the award of 25 marks to her is illegal. Like wise, it contended that though the third respondent had not given the details regarding the show room, 10 marks were awarded on that count also and that it is illegal. The petitioner also challenges the award of marks to the third respondent on other grounds including the capacity to provide finance. The award of marks to the fourth respondent is also under challenge. The petitioner has also raised a contention by way of an affidavit dated 9.3.2011 that though the additional third respondent had stated in column 14.2 of the application that the sum of Rs.16,26,908/- is lying to the credit of the third respondent's husband in State Bank of Travancore, her husband withdrew the sum of Rs.14 lakhs on 15.2.2008 and therefore she is ineligible to get the distributorship. It is stated that like wise, the fourth respondent's husband had also withdrawn a substantial amount from the bank within three months from the date of the application and therefore she is also ineligible. W.P.(C) No.26105 & 33209 of 2009 8 Respondents 1 and 2 who are the Indian Oil Corporation Ltd. and its Chief Area Manager have filed a counter affidavit justifying the award of marks on various grounds. The third respondent has filed a counter affidavit justifying her empanellment. 6. I heard Sri.K.Gopalakrishna Kurup, learned Senior Advocate appearing for the petitioner in W.P.(C) No.26105 of 2009, Sri.T.R.Harikumar, learned counsel appearing for the petitioner in W.P.(C) No.33209 of 2009, Sri.E.K.Nandakumar, learned standing counsel appearing for the Indian Oil Corporation Ltd., Sri.Shaji P.Chaly, learned counsel appearing for the fourth respondent in W.P. (C) No.26105 of 2009 who is also the third respondent in W.P.(C) No.33209 of 2009 and Sri.C.S.Manilal, learned counsel appearing for the fourth respondent in W.P.(C) No.33209 of 2009. The main contention raised by Sri.K.Gopalakrishna Kurup, learned Senior Advocate appearing for the petitioner in W.P.(C) No.26105 of 2009 is that if for submitting a defective affidavit, the application submitted by the petitioner is liable to be rejected, the application submitted by the fourth respondent in W.P.(C) No.26105 of 2009 was also liable to be rejected as she had not given the date of registration of the sale deed in column Nos. 13(a)(1) and 13(b)(1) though she had claimed that W.P.(C) No.26105 & 33209 of 2009 9 her husband holds land where the godown and show room can be located. Alternatively, the learned counsel contended that the petitioner has no daughters and therefore the affidavit cannot be said to be defective. Sri.T.R.Harikumar, the learned counsel appearing for the petitioner in the connected case, apart from reiterating the contentions raised in the writ petition also contended with reference to column No.14.2 of the application submitted by the third respondent in W.P.(C) No.33209 of 2009 (4th respondent in W.P.(C) No.26105 of 2009) that as the third respondent's husband had withdrawn the sum of Rs.14 lakhs on 15.2.2008, which is within three months from the date of the application, she is liable to be disqualified. The learned counsel also contended that the fourth respondent's husband has also like wise withdrawn money from the savings bank deposit and therefore the fourth respondent is also liable to be disqualified. Per contra, the learned counsel for the respondents contended that as the affidavit submitted by the petitioner in W.P(C) No.26105 of 2009 was defective, his application was rightly rejected and he cannot therefore challenge the empanelment of candidates who had submitted valid applications. With reference to the application submitted by the fourth respondent in W.P(C)No.26105 of W.P.(C) No.26105 & 33209 of 2009 10 2009 it was contended that the application was in order and that the omission to furnish the date of registration of the title deed in favour of the fourth respondent's husband is not fatal. 7. I have considered the submissions made at the Bar by the learned counsel on either side. Ext.R3(a) produced in W.P.(C) No.26105 of 2009 which is the notification issued by the Indian Oil Corporation Ltd. requires every applicant to submit a notorised affidavit in the format prescribed in Annexure-A. In paragraph 2 of Ext.R3(a), it is stipulated that the applicant should (a) be an Indian by Nationality (b) not be less than 21 years of age on the date of application (c) be a Matriculate or recognised equivalent (not applicable to FF/OSP category) (d) be a resident of India (e) fulfil Multiple dealership/distributorship norms and (f) be having sound physical and mental health. It is stated that Multiple Dealership/Distributorship norms mean that none of the individuals would be entitled to a new dealership/distributorship if any other individual in a 'family unit' already holds a dealership/distributorship or Letter of Indent for the dealership/distributorship of a Public Sector Oil Company. It is also stated that only one retail outlet/dealership or distributorship of a Public Sector Oil Company will be allowed to a W.P.(C) No.26105 & 33209 of 2009 11 family unit. The term 'family unit' has been defined in the case of a married person/applicant to consist of the individual concerned, his/her spouse and their unmarried son(s)/daughter(s). In the case of an unmarried person/applicant, the 'family unit' consists of the individual concerned, his/her parents and his/her unmarried brother (s) and unmarried sister(s). In the affidavit, the applicant has to state as follows in paragraph 2:- “That I am unmarried. That neither I, nor my Father, Mother, unmarried brother(s), unmarried sister(s) have dealership/distributorship or hold Letter of Intent for Retail Outlet or SKO-LDO dealership or LPG distributorship of any Oil Company. OR That I am married. That neither I nor my spouse, unmarried son(s)/unmarried daughter(s) have dealership/distributorship or hold letter of intent for Retail Outlet or SKO- LDO dealership or LPG distributorship of any Oil Company.” 8. In the affidavit submitted by the petitioner in W.P.(C) No.26105 of 2009, a copy of which is on record as Ext.P1(a), he has stated as follows in paragraph 2. “2. That I am married. That neither I nor my spouse, unmarried son have dealership/distributorship or hold letter of W.P.(C) No.26105 & 33209 of 2009 12 intent for Retail Outlet or SKO-LDO dealership or LPG distributorship of any Oil Company.” Paragraph 2 of the affidavit submitted by the petitioner is not in accordance with the prescribed format. The words “unmarried daughter(s)” are singularly lacking in of the affidavit filed by the petitioner. I have in W.P.(C) No.6964 of 2009 considered the question whether the defects in an affidavit filed along with the application for LPG distributorship can be allowed to be rectified. It was held that applicants who have not filed affidavits as required cannot be heard to contend that they should be given an opportunity to cure the defect. I also held that in the absence of any provision in the notification empowering the officers of the Indian Oil Corporation to permit defects to be cured, it would not be prudent or right to permit such correction for the reason that it may give rise to unfair practices. Paragraph 2 of the affidavit filed by the petitioner ought to have been in the following terms:- That I am married. That neither I nor my spouse, unmarried son(s)/unmarried daughter(s) have dealership/distributorship or hold letter of intent for Retail Outlet or SKO- LDO dealership or LPG distributorship of any Oil Company. W.P.(C) No.26105 & 33209 of 2009 13 In the affidavit filed by him (Ext.R1(a) produced in W.P.(C) No.26105 of 2009) the petitioner has left out the words “unmarried daughter (s)”. The affidavit submitted by him was not in the prescribed format. It cannot therefore be said that the rejection of the application submitted by the petitioner was illegal. 9. That takes me to the question whether as contended by the petitioners, the fourth respondent in W.P.(C) No.26105 of 2009 who is also the third respondent in W.P.(C) No.33209 of 2009 and the fourth respondent in W.P.(C) No.33209 of 2009 are liable to be disqualified for the reason that a portion of the amount mentioned in column 14.2 of their applications was withdrawn within three months from the date of the application. Paragraph 14.2 of the application reads as follows:- 14.2 AMOUNT IN THE BANK (in case of married applicant family is – self, spouse unmarried son(s)/ daughter(s); in case of unmarried applicant family is – self, parents and unmarried brother(s)/unmarried sister(s). Attach affidavit as per format given in Annexure-C. The amount mentioned should remain in the bank for minimum period of three months from the date of application or the interview date whichever is earlier.” (emphasis supplied) It is expressly stipulated that the amount mentioned against column 14.2 should remain in the bank for a minimum period of 3 months W.P.(C) No.26105 & 33209 of 2009 14 from the date of the application or the date of the interview, whichever is earlier. The applications submitted by respondents 3 and 4 in W.P.(C) No. 33209 of 2009 are dated 31.1.2008 and 30.1.2008 respectively. As per the application submitted by the fourth respondent in W.P.(C) No.326105 of 2009 who is the third respondent in the connected writ petition, her husband had as on the date of the application the sum of Rs.16,26,908/- in S.B.A/c.No.57030214211 of the State Bank of Travancore. As per the application submitted by the fourth respondent in W.P.(C) No.33209 of 2009, she had the sum of Rs.2,73,681/- in her account with the Syndicate Bank and her husband had the sum of Rs.45,000/- in his account with the HDFC Bank. The petitioner in W.P.(C) No.33209 of 2009 has positively averred that the third respondent's husband withdrew the sum of Rs.14 lakhs from his account on 15.2.2008. The said averment has not been controverted. He has also stated that the fourth respondent has likewise withdrawn substantial amounts from his account within three months from the date of the application. 10. As noticed earlier, the applications are dated 31.1.2008 and 30.1.2008 respectively. The interview was held on 10.9.2009 and 11.9.2009. On terms of paragraph 14.2., the amount W.P.(C) No.26105 & 33209 of 2009 15 mentioned in column 14.2. should remain in the bank for a minimum period of three months from the date of the application or the interview date whichever is earlier. In the instant case, the date of the application is the earlier date and therefore the amount mentioned in column 14.2 should have remained in the bank for a minimum period of three months from the date of the application. In other words, in the case of the third respondent in W.P.(C) No.33209 of 2009, the amount mentioned in column 14.2 should have remained in the bank for a minimum period of three months from 31.1.2008 and in the case of the fourth respondent, for a minimum period of 3 months from 30.1.2008. It is not in dispute that third respondent's husband withdrew the sum of Rs.14 lakhs from the account mentioned in column 14.2 of the third respondent's application on 15.2.2008. Therefore, the amount in the bank as on 31.1.2008 stood reduced from Rs.16,26,908/- to Rs.2,26,908/- in a span of 15 days. In the case of the fourth respondent, it is alleged that her husband had also withdrawn a substantial amount within three months from the date of the application. A learned single Judge of this Court has in W.P.(C) No.37706 of 2009 considered paragraph 14.2. and upheld the disqualification of a candidate by the Bharat Petroleum Corporation for W.P.(C) No.26105 & 33209 of 2009 16 not maintaining the amount in the bank for a minimum period of three months from the date of the application. The relevant portion of the judgment reads as follows:- “5. The relevant clause requires the applicant to maintain the amount for a minimum period of three months from the date of application or the interview, whichever is earlier. Herein, obviously at the time of interview the above aspect was taken into consideration on the face value. After the field verification alone the true facts were found out. Therefore, the petitioner was arrayed as No.3 in Ext.P4 mainly on the basis of the information given in the application and not on the basis of any verification at that point of time. Plainly the same will not therefore confer any right to get appointment straight awar. As there is no dispute that the petitioner did not maintain the amount in the S.B.account for a period of three months from the date of application, I am of the view that the respondents were justified in passing Ext.P7. There is no illegality or irregularity in the procedure adopted. Violation of item No.14.2 in the application format was therefore taken into account by them for disqualifying the petitioner.” 11. It is evident from the materials presently on record that marks were awarded to the respective candidates based on the claim made by them in the application. Whether the said claims are factually correct or not will be known only at the time of field verification which is done after the candidates are empanelled. Marks are awarded to applicants based on the information given in the W.P.(C) No.26105 & 33209 of 2009 17 application and at that stage there is no scrutiny or verification of the details. It is only after the candidates are empanelled based on the information furnished by them in the application form that the field verification is conducted. The procedure regarding field verification is contained in paragraph 16 of Ext.P5 produced in W.P.(C) No.26105 of 2009. It is extracted below:- 16. FIELD VERIFICATION 16.1 The field verification will be conducted for 1st candidate in the merit panel. If found eligible and no complaint is pending or no stay is granted by any court, then Letter of Intent (LOI) will be issued. 16.2 If the no.1 candidate is not found suitable/fails to ful fill the terms and conditions of the award of distributorship or the award is to be cancelled for any reason whatsoever, the distributorship will be offered to the 2nd candidate in the merit panel after necessary field verification. 16.3 If the 2nd candidate also fails to full fill the terms and