IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 22.10.2009 CORAM: THE HONOURABLE MR.JUSTICE P.JYOTHIMANI W.P.No.4944 of 2009 M.Senthilkumar .. Petitioner Vs. 1. The Chairman Indian Oil Corporation Ltd. Corporate Office 3079/3, JB Tito Marg Sadiq Nagar, New Delhi – 110 049. 2. The Senior Area Manager Indian Oil Corporation Marketing Division, Indane Area Office 8/1079, Avinashi Road Coimbatore – 641 018. 3. N.Balasubramaniam Indian Oil Corporation Marketing Division, Indane Area Office 8/1079, Avinashi Road Coimbatore – 641 018. .. Respondents PRAYER: Petition under Article 226 of the Constitution of India for issue of a writ of Certiorarified Mandamus to call for the selection of LPG Distributorship insofar as Sl.No.99, Dharmapuri made in advertisement published on 6.2.2008 in "The Hindu" and other dailies and quash the said selection and to consequently direct respondents 1 and 2 to select and appoint the petitioner as Distributor for Dharmapuri Sl.No.99 of the Advertisement dated 6.2.2008. For Petitioner : Mr.Venkatachalapathy, Sr.Counsel for M/s.M.Sriram For Respondents : Mr.P.N.Radhakrishnan for respondents 1 and 2 Mr.K.Ravichandra Baabu for 3rd respondent https://hcservices.ecourts.gov.in/hcservices/ ORDER This writ petition is directed against the selection of LPG Distributorship in relation to Sl.No.99 at Dharmapuri made in the advertisement published in "The Hindu" and other dailies on 6.2.2008 and also for a direction against respondents 1 and 2 to select and appoint the petitioner as distributor for Dharmapuri. 2.1. It is stated that the first respondent has floated an invitation for appointment of LPG Distributorship in Tamil Nadu and Sl.No.99 is allotted to the Indian Oil Corporation and reserved for Scheduled Caste candidate under the type urban rural. The petitioner is stated to have applied with all necessary requirements. There were two other applicants, one Thirunavukkarasu and the third respondent – N.Balasubramaniam. The said Thirunavukkarasu was allotted Chengalpattu distributorship and therefore, he is not in the contest. 2.2. All the three persons were called for interview fixing the date on 18.12.2008 at 1.00 pm. It is the case of the petitioner that all the three persons have secured the same marks. As per the condition, if more than one person gets equal marks, the youngest person among them should be selected and according to the petitioner he, being the youngest, ought to have been selected. However, respondents 1 and 2 have again called for a second interview on 6.2.2009 and the petitioner was given less marks and the third respondent was preferred. 2.3. It is the case of the petitioner that the selection of the third respondent is tainted with malafide, since he is employed on contract basis in data collection and his experience in the Indian Oil Corporation has been taken into account. 2.4. The selection of the third respondent is, therefore, assailed on the following grounds: (a) that the same is in violation of Articles 16, 19 and 21 of the Constitution of India (b) that the selection is tainted with malafide; (c) that the second interview conducted by respondents 1 and 2 is without jurisdiction; and (d) that the petitioner having been given full marks in the first interview, his marks were reduced in the second interview for the purpose of accommodating the third respondent. 3.1. In the counter affidavit filed on behalf of respondents 1 and 2 it is stated that the applications received from the candidates are forwarded to the Dealer Selection Committee or the Interview Committee consisting of senior officers of respondents 1 and 2 and in the present case it was sent to the Senior Manager (LPG Sales), the https://hcservices.ecourts.gov.in/hcservices/ Senior LI Sales Manager and the Senior Plant Manager, Calicut Plant. It is the Dealer Selection Committee which has called for interview which is conducted by the Committee based upon the guidelines and procedures issued by the Government of India, Ministry of Petroleum and Natural Gas. 3.2. On completion of the interview, a merit panel consisting of the names of three candidates who have secured the highest marks given by the Interview Committee are displayed on the notice board specifying the names in the order of merit. In cases where the difference of marks between the first and other candidates is less than 5% of the marks scored by the first candidate and whenever the difference of marks between the qualifying marks and the marks secured by the first candidate is within 5% of the marks obtained by the latter, as per the policy there is a review of evaluation based on personal judgment and the same is referred to the Screening Committee of the State from where the Interview Committee was sourced and in those cases, the decision of the Interview Committee is kept in abeyance and the notice board will specify that the results will be declared in 30 days or any other date as decided by the competent authority. 3.3. The papers relating to the candidates selected by the Interview Committee are then forwarded to the State Selection Committee through the Divisional Retail Head and the State Selection Committee once again interviews the said candidates on all parameters of selection falling within the two categories supra. The recommendations of the State Selection Committee with reference to the recommendations made by the Interview Committee are forwarded to the State Head who decides upon further action based on the recommendations. This policy of selection is only to ensure that the selection is subject to a re-scrutiny whenever the difference in marks scored by the first few candidates is very narrow. This is only for the purpose of maintaining fairness in selection. 3.4. It is stated that in the first interview the petitioner's name was in the third position and as per the policy it was referred to the State Screening Committee and there was a re-interview based on which the third respondent was awarded more marks and selected. It is also denied that the third respondent has no experience. It is stated that the marks awarded for experience is based on the documents produced by the candidates and the performance of the candidates in the interview. The second interview was conducted purely based on the policy and it is also denied that the second interview was conducted only to favour the third respondent. The question of awarding the distributorship to the youngest candidate will arise only when there is tie in the marks after scrutiny by the second committee. It is not admitted that the petitioner's mark was reduced wantonly. https://hcservices.ecourts.gov.in/hcservices/ 4. It is the case of the third respondent in the counter affidavit that the selection has been done in accordance with the policy of respondents 1 and 2. It is his case that the third respondent is more experienced than the petitioner and that he is having two years of working experience in a Distributorship agency of Indian Oil Corporation and that he is now working for the Indian Oil Corporation on contract basis for data collection works in respect of more than 100 distributors at Coimbatore area by running a firm called "Shree Software Solutions" and therefore, the third respondent is more experienced than the petitioner who is a new person to the field, having a small scale industry only in manufacturing bleaching powder, which has nothing to do with the LPG distributorship activities and therefore, the evaluation of experience by the Committee is perfectly valid. 5.1. Before referring to the respective contentions of the learned counsel, it is relevant to point out that the policy for selection of LPG Distributorship has been changed to some extent in April, 2005, by which for reviewing the evaluation in cases where the difference between first and second empanelled candidates is very less, it was evolved to refer the matter to the Screening Committee of the State from where the Interview Committee was sourced. The existing criteria for evaluation of the candidate during interview has certain elements like "personality", "business ability/acumen" and "experience" which depends on the assessment of the Interview Committee members. The Screening Committee, which is formulated for the first time in the year 2005, in addition to what the First Interview Committee decides, re-interviews in the following cases: "1. Wherever the difference of marks between the first and other candidates is less than 5% of the marks scored by the first candidate. 2. Wherever the differences of marks between the qualifying marks and the marks secured by the first candidate is within 5% of the marks obtained by the latter." 5.2. It is also stated in the said policy that in cases where the matter is referred to the Screening Committee of the State, the result of the Interview Committee is kept in abeyance and will be declared in 30 days or on any other date, as decided by the competent authority. It is also stated that "the Screening Committee of the State, as referred to above, should once again re-interview the candidates on all the parameters of selection who fall into the category (1) and (2) above and submit their recommendations with reference to the recommendations made by the Interview Committee". 5.3. Thereafter, based on the recommendations of the Screening Committee as well as the Interview Committee, the State Head, to whom https://hcservices.ecourts.gov.in/hcservices/ it is referred, will take further action and the decision of the State Head is notified for information of all the candidates on the notice board and also on the website. 5.4. The policy circular dated 11.2.2004 issued by the first respondent-Corporation also provides for grievance redressal mechanism in respect of the selection of distributors. Under the said grievance redressal mechanism, the said Screening Committee is constituted which categorizes the complaints into three, viz., (i) Anonymous complaints which do not have the name/address of the complainant. (ii) Complaints having name and address of the complainant but not having verifiable supporting documents/issues. (iii) Complaints having verifiable supporting documents or having such issues in the complaint, which can be verified and the Committee feels no need to refer the matter back to the complainant. 5.5. Elaborate procedure of investigation, etc. to be effected by the Screening Committee for disposal of the complaints is also stipulated in the above policy circular. 6. On fact it is true, as it is seen in the records submitted by the first respondent, that in the first interview while one Thirunavukkarasu.R., who is stated to have been allotted Chengalpattu and therefore not in the race, was awarded 29 marks and the third respondent, N.Balasubramaniam was awarded 29 marks, the petitioner was awarded 28 marks and the first panel was notified in the notice board on 19.12.2008 with a remark in the bottom "result kept in abeyance as the difference of marks between 1st to 3rd candidates is less than 5%". 7. Therefore, when the Interview Committee found as per the policy that the difference of marks between the three candidates is less than 5%, it has referred the matter to the Screening Committee making declaration as per the policy to keep the result of the Interview Committee in abeyance. 8. The contention of the learned Senior Counsel for the petitioner, Mr.Venkatachalapathy is that even in the first interview, while the third respondent has been awarded 4 marks for experience, the petitioner has been awarded only 2 marks even though the petitioner has produced various records to show that he has got sufficient experience as a distributor and therefore, the awarding of mark in that regard is improper. First of all, it is his contention that the marks are to be awarded for experience based on the materials available and not on the basis of whims and fancies of the Interview Committee members. https://hcservices.ecourts.gov.in/hcservices/ 9. As it is seen in the typeset of papers filed by the petitioner, the petitioner has been registered as a Small Scale Industrialist in manufacturing cleaning powder and that registration is on 31.1.2005. It is based on that the petitioner claims to have experience. For the purpose of appointment as Distributor for LPG, it is not known as to whether the registration as a Small Scale Industrialist in manufacturing cleaning powder is relevant or not. Even though it is true that experience has to be ascertained based on the documents produced, the relevancy or otherwise of such documents for arriving at the experience of participants for the purpose of awarding the distributorship, especially in cases where the difference of marks is so narrow between the candidates, is for the Committee which consists of the Senior Officers of first and second respondents to decide and not for this Court to dictate. The consideration of this factor is entrusted to the subjective satisfaction of the appointing authority who are experienced in the field and the assessment of documents produced before such authorities is for them to decide and Courts are not experts to direct such authorities to act as per its understanding. The present illustration is apt one in that regard. This Court cannot decide as to whether the registered Small Scale Industrialist in manufacturing Cleaning Powder can be treated as a person with experience for the purpose of acting as a distributor of LPG, even though on layman's view it can be always brushed aside saying that there is absolutely no connection between the manufacturing of Cleaning Powder and LPG distributorship. The contention of the learned Senior Counsel that in manufacturing Cleaning Powder some of the byproducts are remotely connected with the LPG is for the authorities to appreciate and not for this Court. 10. The reference of the matter to the Screening Committee in this case cannot be held to be malafide, since the policy is clear and on the facts and circumstances of the case, the difference between the three candidates is less than 5%. In accordance with the policy, the reference to the Screening Committee cannot be said to be against the policy of the first respondent also. As stated above, the purpose of referring to the Screening Committee for the second time is to enable the Screening Committee to decide proper persons among the candidates who have secured very close marks. It is not as if the Screening Committee has to approve whatever the Interview Committee, as Original Authority, has held. As enumerated in the policy, it is open to the Screening Committee to act as a re-scrutiny authority. 11. A reference to the marks shows that while the petitioner got total 28 marks in the first interview, he was given only 27.5 marks by the Screening Committee. It is seen that under the caption "business ability/acumen" when the Interview Committee has granted 5 marks out of 5 marks to the petitioner, the Screening Committee has https://hcservices.ecourts.gov.in/hcservices/ given 4.5 marks. The other marks have not been changed. The petitioner is given 27.5 marks while the third respondent, who was given 29 marks by the Interview Committee, was given the same mark again and inasmuch as one Thirunavukkarasu, who has been given 30 marks by the Screening Committee, has been selected for some other area, the third respondent is declared to have been selected. 12. One other point which has been raised by the learned Senior Counsel for the petitioner is about paragraph 11 of the advertisement issued by the first respondent calling for applications for distributorship, by which Sl.No.99 granted to Indian Oil Corporation has been reserved for a Scheduled Caste candidate. In the said paragraph 11 which speaks about the selection process and evaluation criteria, the parameters and maximum marks are given as follows: Parameter Maximum Marks a. Capability to provide infrastructure 35 marks b. Capability to provide finance 35 marks c. Educational qualifications 15 marks d. Age 4 marks e. Experience 4 marks f. Business ability/acumen 5 marks g. Personality 2 marks Total marks 100 marks In the note annexed to the said parameters it is stated as follows: "The evaluation on the parameters 'a' to 'd' above are document based and will be done on the basis of information given in the application. The evaluation on the parameter 'e' to 'g' will be done based on the interview. On verification if it is found that the information given in application is incorrect/false/ misrepresented then the applicants candidature will stand cancelled and will not be eligible for distributorship." 13. From the above it is clear that the evaluation regarding parameters 'a' to 'd' is by documents, while regarding parameters 'e' to 'g' which relate to experience, business ability/acumen and personality, it is to be decided by the Interview Committee during the time of interview. While in respect of parameters 'a' to 'd' when marks are expected to be given based on the documents and information, the same can be ascertained by anyone, in respect of parameters 'e' to 'g', it is for the Interview Committee which has been constituted for the purpose of deciding for the benefit of the first respondent and other Corporations like the Bharat Petroleum https://hcservices.ecourts.gov.in/hcservices/ Corporation, etc. to decide the best suitable persons and relevancy or irrelevancy of documents produced for the purpose of experience. Again what is "business ability/acumen" is to be decided in the context of LPG distributorship which can be done only by the experienced persons in the filed of petroleum and the parameter "personality" is also to be linked with the distributorship for which the contract is entered and not any other personality. The advertisement also speaks about the brochure which is to be supplied to the participants. 14. The learned Senior Counsel would also rely upon the brochure in paragraph 14.2 regarding evaluation based on interview. In respect of experience for which four maximum marks are given, the sub-heads under which marks should be given and evaluation is done is stated as follows: Parameter Sub Head Description Experience Direct Sale/Home Delivered products (including LPG distributorship) or Other Petroleum products or Any other Trade 15. A reference to the method of evaluation stated in the brochure shows that the same is judged based on response to questions, which is subjective satisfaction of the members of the Interview Committee. There cannot be any hard and fast rule for the purpose of deciding about the hospitality/service, industry, etc. as it is shown in the evaluation method and in such circumstances, there is absolutely no contradiction between the advertisement and the brochure and it can never be said that any favour has been done to any person, including the third respondent. 16. There is absolutely no substance in the contention regarding the violation of Article 14 of the Constitution of India. Inasmuch as in the selection process there is neither any suspicion nor patent illegality, it cannot be said that the decision is arbitrary or illegal. 17. There is one another aspect which has to be considered in this case as submitted by the learned counsel for the third respondent, Mr.Ravichandra Baabu. The petitioner cannot plead ignorance about the relevant policy regarding the distributorship which is being issued from time to time by the Government of India. As per the policy, as stated above, when the first respondent is entitled to refer the matter to the Screening Committee and having https://hcservices.ecourts.gov.in/hcservices/ known about the same the petitioner has applied for distributorship and has failed in his efforts to get selected as per the qualification and therefore, has chosen to approach this Court by filing the writ petition. A similar situation was considered by the Hon'ble Apex Court in Union of India and another v. N.Chandrasekharan and others, AIR 1998 SC 795 = [1998] 3 SCC 694, wherein the Apex Court has held as follows: "13. We have considered the rival submissions in the light of the facts presented before us. It is not in dispute that all the candidates were made aware of the procedure for promotion before they sat for the written test and before they appeared before the Departmental Promotion Committee. Therefore, they cannot turn around and contend later when they found they were not selected by challenging that procedure and contending that the marks prescribed for interview and confidential reports are disproportionately high and the authorities cannot fix a minimum to be secured either at interview or in the assessment on confidential report.... " 18. This was considered in the context of the principles of estoppel by N.Paul Vasanthakumar,J. in Dr.S.Rajesh v. State of Tamil Nadu, [2009] 1 MLJ 1103 as follows: "16. In the impugned order, the respondent only reiterates the clause contained in the instructions to candidates, which the petitioners also undertook to abide by while filling their application forms. They have participated in the examination, attended counselling and also subjected themselves for selection after accepting all the terms and conditions, joined their course of study and completed their course of study." 19. In such circumstances, the petitioner having not obtained favourable orders relating to distributorship cannot be expected to go back to challenge the validity or otherwise of any of the provisions of the advertisement or policy or brochure. 20. One another submission made by the learned Senior Counsel for the petitioner, by which the learned counsel has brought to the notice of this Court that in few cases when the empanelled candidates got difference in marks of less than 5% the matter was not referred to the Screening Committee and only in the present case the method has been adopted to deny the legitimate right of the petitioner and therefore, the petitioner is discriminated and the same is violative of Article 14 of the Constitution of India is also liable to be rejected. The law is well settled that what is conferred as a fundamental right under Article 14 of the Constitution of India is a https://hcservices.ecourts.gov.in/hcservices/ positive right and cannot be attempted to be enforced in a negative manner saying that in respect of some other persons rules have not been followed and therefore, the rules should be disobeyed in the case of the petitioner also. That was reiterated by the Supreme Court in the latest judgment in State of Bihar v. Upendra Narayan Singh, [2009] 5 SCC 65 as follows: "67. By now it is settled that the guarantee of equality before law enshrined in Article 14 is a positive concept and it cannot be enforced by a citizen or court in a negative manner. If an illegality or irregularity has been committed in favour of any individual or a group of individuals or a wrong order has been passed by a judicial forum, others cannot invoke the jurisdiction of the higher or superior Court for repeating or multiplying the same irregularity or illegality or for passing wrong order – Chandigarh Administration and Anr. v. Jagjit Singh and Anr., [1995] 1 SCC 745; Jaipur Development Authority, Jaipur v. Daulat Mal Jain and Ors., [1997] 1 SCC 35; Union of India v. J.V. Subhaiah and Ors., [1996] 2 SCC 258; Gursharan Singh v. New Delhi Municipal Committee, [1996] 2 SCC 459; State of Haryana v. Ram Kumar Mann, [1997] 3 SCC 321; Faridabad CT Scan Centre v. D.G. Health Services and Ors., [1997] 7 SCC 752; Style (Dress Land) v. Union Territory, Chandigarh and Anr., [1999] 7 SCC 89, State of Bihar and Ors. v. Kameshwar Prasad Singh and Anr. [2000] 9 SCC 94; Union of India and Anr. v. International Trading Co. and Anr., [2003] 5 SCC 437; and Directorate of Film Festivals and Ors. v. Gaurav Ashwin Jain and Ors., [2007] 4 SCC 737." 21. The above said view was reaffirmed in General Manager, Uttaranchal Jal Sansthan v. Laxmi Devi and others, [2009] 7 SCC 205 in the following manner: "34. Submission of the learned Counsel that persons similarly situated have been appointed is again of not much relevance. Apart from the fact that the High Court in its impugned judgment did not proceed on the said basis, it is now well settled that Article 14 of the Constitution of India carries with it a positive effect. Equality clause cannot apply in a case where it arises out of illegality. Moreover, grant of appointment on compassionate ground has its own limitations as it is an exception to the mode of regular