THE HON’BLE Ms. JUSTICE G. ROHINI WRIT PETITION No.26290 OF 2009 Dated: 25.08.2010 Between: Smt. Kavitha Gurrala … Petitioner And 1. Bharat Petroleum Corporation Limited, rep. by Its Chairman & Managing Director, Mumbai And 2 others. … Respondents THE HON’BLE Ms. JUSTICE G. ROHINI WRIT PETITION No.26290 OF 2009 ORDER : The 1st respondent – Bharat Petroleum Corporation Limited (hereinafter referred to as ‘the Corporation’) – issued a notification inviting applications from the eligible candidates for appointment as Distributor of Domestic L.P.G. at Nandyal under the category - Open (Women). In response to the same, the petitioner and the 3rd respondent had applied and both of them were called for interview along with other eligible candidates. The interviews were held on 10.8.2009 and the 3rd respondent herein who was awarded the total marks of 96.27 was empanelled as the first candidate and the writ petitioner who was awarded the total marks of 90.3 was empanelled as the second candidate. At that stage, the present writ petition has been filed seeking a declaration that the action of the respondents 1 and 2 in selecting and proceeding to appoint the 3rd respondent as the Distributor for Domestic LPG at Nandyal is arbitrary and illegal. It is primarily contended by the petitioner that the selection of the 3rd respondent was not in conformity with Clause-17 of the Eligibility Criteria envisaged in the notification as the 3rd respondent was a leading medical practitioner in Nandyal town and she was also running a Nursing Home under the name and style of Neravathi Hospital. It is also contended that as the 3rd respondent had failed to enclose along with her application the registered gift deed in respect of the land shown for construction of show-room but had only produced a notarized gift deed, which was not permissible as per Column 13B1 of the application form, the Selection Committee committed an error in awarding her the full marks of 10. While alleging that the 3rd respondent was only holding a General Power of Attorney in respect of the land shown for the godown as on the date of the application and that she had furnished false information under Clause 13A1 of the application form, it is further contended by the petitioner that the 3rd respondent was not entitled to the 25 marks awarded to her under column 13A1. In the counter-affidavit dated 16.1.2010 filed on behalf of the Corporation, it is stated that the compliance with the requirement under Clause-17 has to be ensured at the time of issuance of letter of appointment and that the same would be followed by the Corporation before issuing the letter of appointment. So far as the petitioner’s contention that the Selection Committee committed an error in awarding 10 marks to the 3rd respondent under Column 13B is concerned, it is explained that the information provided by the 3rd respondent under column 13B1 was verified during the field investigation and it was observed that the document was a notarized gift deed and accordingly the marks were reduced to 7 from 10. Even after the reduction of marks, the 3rd respondent continued to maintain the first position in the merit panel and therefore the selection of the 3rd respondent cannot be held to be arbitrary or illegal. In the additional counter-affidavit dated 12.7.2010 filed by the 2nd respondent, it is stated that the 3rd respondent in her application under Column 13A1 mentioned the date of registration of the sale deed/mutation/gift/lease as 29.10.2007 and basing on the information furnished in the application form, she was awarded 25 marks for godown. At the time of field verification the 3rd respondent furnished a registered General Power of Attorney dated 29.10.2007 executed by one Saradamani in favour of the 3rd respondent giving absolute transferable rights and possession in respect of the property. It was ascertained in the field verification that the 3rd respondent is in possession of the property. The 3rd respondent filed a separate counter-affidavit contending that the writ petition is not maintainable as the petitioner had an alternative and efficacious remedy under Rules 21 and 22 of the Brochure on Distributor Selection issued by the Bharat Petroleum Corporation Limited according to which an applicant aggrieved by the selection can send his complaint to the area office / state office in which the interviewed distributorships location is located. As the said clause provides that if any letter of intent is issued pending disposal of such grievances, the letter of intent would be kept in abeyance, it is contended that without availing such an efficacious alternative remedy the present writ petition cannot be maintained. While alleging that the husband of the writ petitioner is an existing non-domestic LPG dealer of the respondents 1 and 2 and he has been carrying on business from Shop No.2/396, C.P. Complex, Nandyal, it is further contended that as per Clause 4.4 of the Brochure, the petitioner herself was not eligible for appointment as a distributor. So far as the allegation that the 3rd respondent’s selection was erroneous and illegal, it is stated that as Clause 17 requires that the selected person if employed, has to resign the employment before issuance of letter of intent and as the 3rd respondent was neither employed nor any letter of appointment was given to her, the disqualification sought to be attributed was untenable. So far as the information furnished by the 3rd respondent under Column 13B of the application form it is contended that the land shown by her for construction of show-room was the joint family property in the hands of her husband and that her husband was one of the members of her family unit. It is further stated that her husband had given a notarized affidavit to the effect that he had no objection for constructions of show-room on the said land and thus the requirement was fully satisfied and the marks rightly awarded to her in accordance with Clause 14. It is also stated that by way of abundant caution and to avoid any controversy the mother of her husband had gifted that property in favour of her husband by a notarized affidavit and the said gift was later made by a registered document and the same was in sufficient compliance of the relevant clause relating to the availability of suitable land for construction of godown/show-room. I have heard the learned counsel for both the parties. So far as the first ground raised by the petitioner that the 3rd respondent, being a leading medical practitioner is not eligible to make the application as per Clause-17 of the Notice for Appointment of LPG Distributors is concerned, it is necessary to refer to Clause-17 which reads as under : “17. PERSONAL SUPERVISION BY DISTRIBUTORS A Person selected for the distributorship shall be paying full attention towards day to day working of the distributorship by personally managing the affairs of the distributorship. He/she will not be eligible for taking up any other employment. If the selected person is already employed he/she will have to resign from the employment.” It is alleged by the writ petitioner that the 3rd respondent who is a regular medical practitioner cannot devote her full attention towards the working of the distributorship and therefore unless she gets her practice suspended before the Medical Council of India and gets the registration of her Nursing Home cancelled, she is not eligible to make the application. A plain reading of Clause-17 shows that the person selected for distributorship cannot take up any other employment and that the person shall be paying full attention towards day-to-day working of the distributorship by personally managing the affairs of the distributorship. Clause 17 further provides that in case the selected candidate is already employed, he will have to resign from the employment. There is nothing in Clause-17 to infer that such resignation from the employment shall be before making the application. As a matter of fact, Clause-7 of the Brochure on Distributor Selection issued by the Corporation, which was filed by the petitioner herself along with the writ petition, made it clear that the selected person if already employed will have to resign from the employment before issuance of letter of appointment. Hence the petitioner’s contention that the 3rd respondent is not eligible to make an application on the ground that she is a regular medical practitioner and that she is running a private Nursing Home which is registered before the Director of Medical & Health Officer, Kurnool is untenable. The 3rd respondent in her counter- affidavit stated that she is not in employment with any person and that being a medical graduate she is associated with her husband who is also a Doctor. She also undertook that she would pay full personal attention to the day-to-day working of the distributorship and would personally manage the business and if required she would also inform the same to any authority including the Medical Council of India or A.P. Medical Council at the appropriate time. As the 3rd respondent is not employed anywhere and having regard to her undertaking given in the counter-affidavit that she would pay full personal attention to the day-to-day working of the distributorship, the petitioner’s contention that the 3rd respondent is not eligible even to make the application cannot be accepted. The next two contentions urged on behalf of the petitioner are: (1) that the 3rd respondent was not entitled to 10 marks under Column 13B1 for the land shown for LPG show-room, and; (2) that the 3rd respondent had furnished false information under column 13A1 with regard to the land for LPG godown and therefore no marks could have been awarded to her. As per the Selection Process and Evaluation Criteria mentioned in Clause-11 of the Notice for Appointment of LPG Distributors, total marks of 100 are provided on different parameters and so far as the capability to provide infrastructure is concerned, 35 marks are earmarked. The basic infrastructure facilities required for operation of LPG Distributorship are provided under Clause-13 which included (i) godown for storage of filled LPG Cylinders and (ii) show-room located in the area of operation. Clause 14.2 of the Brochure on Selection of Distributors issued by the Corporation shows that the applicant’s capability to provide infrastructure, has been sub-divided as the capability to provide infrastructure for LPG godown and the capability to provide infrastructure for show-room allocating 25 and 10 marks respectively. Clause 14 of the Notice for Appointment of LPG Distributors read with Clause 14.2 of the Brochure on Selection of Distributors further shows that different categories have been made among the applicants for assessment of their capability to provide godown, basing upon the information and prescribing the maximum marks separately for each category as under: (i) the applicants who have clear title/registered sale deed for suitable godown / land for construction of godown - 25 marks. (ii) the applicants who have a firm commitment from the land owner for purchase/lease – 18 marks (iii) the applicants who can arrange it - 10 marks. Similarly for the purpose of show-room, based on the information furnished in the application the maximum marks of 10, 7 and 5 have been prescribed for the 3 categories stated above respectively. In the instant case, the 3rd respondent was admittedly awarded the maximum marks of 25 by the Selection Committee for her capability to provide land for godown and similarly she was awarded the maximum marks of 10 for her capability to provide land for show-room. The said marks were awarded assuming that she had clear title for the land shown for the godown and the show-room on the basis of the information furnished in her application. However subsequently on field verification having found that the document dated 30.10.2007 mentioned in the application for the purpose of show-room was only a notarized gift deed in favour of the 3rd respondent’s husband, the marks awarded for show-room were reduced to 7 from 10. However there was no change in the 25 marks awarded for godown. Thus according to the respondents, the 3rd respondent had secured the total marks of 93.27 and therefore she continued to maintain the first position among the selected candidates. The question that arises for consideration is whether the action of the Corporation in awarding the maximum marks of 25 for godown and 7 for show-room to the 3rd respondent and thus empanelling her as the first candidate is in accordance with law. The Application form for LPG Distributorship contained Column 13A and Column 13B in which the applicants have to furnish the particulars of the godown for storage of LPG cylinders and show-room for LPG distributorship respectively. Column 13A1 which deals with the godown for storage of LPG cylinders is extracted below: 13A1 Do you have a suitable land at or within 15 km from the advertised location for LPG godown or LPG godown readily available owned/leased (15 yrs minimum) in your own name or in name any member of your ‘Family Unit’ Yes/No Please strike off what is not applicable Note: (‘Family Unit’ in case of married applicant, shall consist of applicant, his/her spouse and their unmarried son(s)/daughter(s). In case of unmarried applicant, ‘Family Unit’ shall consist of applicant, his/her parents and his/her unmarried brother(s)/sister(s). If yes to 13A1, provide the following details and notarized affidavit as per Annexure-C. Lands in the name of Relationship with applicant Date of registration of sale deed/ mutation/ gift/lease Address of the location of the land for LPG godown Khasra No /Survey No. Dimensions L*B in M Distance form advertised location(in km) The learned Standing Counsel appearing for the Corporation has placed before this Court the record containing the original application submitted by the 3rd respondent. The record reveals that under Column 13A1 the 3rd respondent, having ticked ‘Yes’ furnished the details of the land for construction of LPG godown as under : -- The land is in the name of the 3rd respondent. -- The date of registration of sale deed/mutation/gift/lease - 29.10.2007. -- Address of the location of the land - N.H.18, Nandyal. -- Khasra No./Survey No. - 348 pye. -- Dimensions – 40 m x 27 m. -- Distance from advertised location – 1 Km. The record also shows that in the Check List for scrutiny of applications it was recorded that the 3rd respondent did not furnish any document in proof of the land shown by her for godown. In the counter-affidavit filed on behalf of the Corporation, it is stated that on the basis of the information furnished in the application (document dated 29.10.2007) the 3rd respondent was awarded the maximum marks of 25 by the Selection Committee for the land shown for godown. Subsequently at the time of field verification the said document was found to be a registered General Power of Attorney dated 29.10.2007 executed by one N. Saradamani, w/o. Neravati Sriramulu in favour of the 3rd respondent. It was found that the said Power of Attorney was executed by the mother- in-law of the 3rd respondent giving absolute transferable right and possession in respect of the said property and that the 3rd respondent was found to be in possession and therefore the 3rd respondent was rightly awarded the full marks of 25 for godown. However, it is alleged by the writ petitioner that the owner of the said land Smt. Saradamani, w/o. N.Sreeramulu was not related to the 3rd respondent and she was in no way concerned to the 3rd respondent or her husband. While referring to the contents of the said document, dated 29.10.2007 under which Smt. Saradamani executed a General Power of Attorney in favour of the 3rd respondent together with possession authorizing the 3rd respondent to manage the said property, to sell the same to others on behalf of the executant, to execute registered sale deeds to mortgage the said property or to lease out the same and to execute all necessary forms and to appear in any Court with regard to litigations in respect of the property and to conduct the same, the learned Senior Counsel appearing for the writ petitioner contended that the 3rd respondent did not acquire a clear title to the property by virtue of the said General Power of Attorney and therefore awarding her the full marks of 25 for the land shown for godown was erroneous. It is also contended that as the 3rd respondent suppressed the fact that she was holding only GPA but claimed title to the land as if it was her own property which was subsequently found to be incorrect in the field verification, the Corporation ought to have held that the 3rd respondent had furnished false information and therefore on that ground her candidature should have been cancelled. However, the learned Senior Counsel appearing for the 3rd respondent while placing before this Court a Registered Sale Deed dated 17.9.2009 executed in favour of the 3rd respondent in respect of the very same land shown in the application for construction of the godown, contended that there cannot be any dispute as to the absolute rights possessed by the 3rd respondent in respect of the said land. Even assuming that the plea of the 3rd respondent is correct, the said sale deed was executed on 17.9.2009 i.e., subsequent to the 3rd respondent’s application. As on the date of the application, the 3rd respondent was admittedly holding only a General Power of Attorney. It was specifically mentioned in Column 13A of the Application Form that the applicant should furnish the particulars specified thereunder for assessment of the applicant’s capability to provide infrastructure as on the date of the application. Therefore the 3rd respondent was required to furnish the particulars as on the date of the application and only those particulars should be taken into consideration for assessment of the 3rd respondent’s capability to provide godown. The title claimed under a registered sale deed which was executed after the date of application is not relevant and cannot be taken into consideration. The fact that the 3rd respondent was put in possession under the document dated 29.10.2007 is also of no consequence since the contents of the said document i.e., General Power of Attorney made it clear that the possession was handed over to the 3rd respondent authorizing her to deal with the said property for the purposes specified therein. The law is well-settled that such a General Power of Attorney irrespective of possession cannot be a proof of title. Hence as on the date of the application the 3rd respondent cannot be said to have possessed clear title to the land shown for construction of godown and the maximum marks of 25 ought not to have been awarded to her. At the most the 3rd respondent could have been awarded 18 marks under the category of “firm offer” or 10 marks under the category “capability to arrange for LPG Godown”. It is also relevant to note that since the 3rd respondent was holding only a General Power of Attorney in respect of the land shown for godown, she ought to have revealed the same in Column 13A1. However the 3rd respondent had furnished the details under column 13A1 showing the said land as her own land with clear title. Moreover she did not enclose the copy of the document. As noticed above, under no circumstances the said land can be treated as the 3rd respondent’s own land with clear title as on the date of the application. Hence the information furnished by the 3rd respondent indisputably amounts to incorrect / false information. It has been made clear in the Foot Note to Column 13A of the Application Form that in case any false information is given, the applicant would be disqualified for distributorship. The said Note is extracted hereunder: “Marks will be awarded to applicant either on ownership or firm offer or can arrange for LPG godown / land for LPG godown based on the information given by the applicant. On verification, if it is found that the information given above is incorrect / false / misrepresented, then the applicant’s candidature will stand cancelled and will not be eligible for distributorship.” In the light of the above said provision specified in the Application form itself, the 3rd respondent’s candidature ought to have been cancelled in terms of the Note appended to Column 13A. Coming to the land shown by the 3rd respondent for show-room, the record reveals that the following details/particulars were furnished by the 3rd respondent in Column 13B1 of the Application: -- Land for show-room / show-room is in the name of - Dr. N. Vinod Kumar. -- Relationship with the applicant - husband. -- Date of registration of sale deed/mutation/gift/lease - 30.10.2007. It is pleaded by the 3rd respondent that the said property is the joint family property in which her husband Dr. N.Vinod Kumar had a share by birth. It is contended that the 3rd respondent’s husband being one of the members of the 3rd respondent’s family unit, the 3rd respondent had rightly shown the said property for construction of show-room and that her husband had also given a notarized affidavit to the effect that he had no objection for construction of show-room on the said land. It is also contended that the said gift was later made by a registered document and as on today there is a registered gift deed in favour of the husband of the 3rd respondent. The learned Senior Counsel appearing for the 3rd respondent contended that as per the Mithakshara Law the 3rd respondent’s husband being a member of the joint family acquired absolute rights by birth and therefore the 3rd respondent had rightly shown the said property under Column 13B1. The learned counsel has relied upon the decision of the Supreme Court in SWADESH RANJAN SINHA v. HARADEB BANERJEE[1] in support of his contention. However the learned Senior Counsel appearing for the writ petitioner contended that no such gift deed could have been executed in favour of one of the members of the joint family and at any rate even assuming that Smt. N. Vasundharamma is the manager of the joint family she is not competent to execute such a gift deed without the consent of the other family members. It is also contended that as the husband of the 3rd respondent did not have full share in such joint family property, the 3rd respondent was not entitled to the maximum marks of 10 for the land shown under Column 13B1 for construction of show-room. As noticed above, it has been conceded by the respondents 1 and 2 themselves that the full marks of 10 were wrongly awarded by the Selection Committee and that having found in the field verification that the property was a joint family property and the document shown by the 3rd respondent was only a notarized gift deed in favour of her husband, the marks were reduced to 7. Though the marks so awarded cannot be held to be erroneous, the conduct of the 3rd respondent in not revealing the fact that the property shown is the joint family property, particularly furnishing the details under Column 13B1 as if the said land stands in her own name, in my considered opinion amounts to misrepresentation attracting the disqualification. Thus the 3rd respondent suffered a disqualification on the ground of furnishing false information both under column 13A1 and column 13B1 of the Application and therefore her candidature ought to have been cancelled by the Corporation. This is not a case where the marks are to be awarded on the subjective satisfaction of the Selection Committee, but specific criteria has been prescribed in the notification itself for assessment of the capability of the applicants to provide the infrastructure. As such the Corporation which is an instrumentality of the State, is bound to make the selections in strict compliance with the notified parameters. However the record reveals that the selection of the 3rd respondent was made quite contrary to the notified criteria. Hence the