:^ 4 n /) ^ ^ IN THE HIGH COURT OF JUDICATURE OF CHHATTISGARH AT BILASPUR W.P.NO. ^.3fi OF 2004 / WRIT PETITION UNDER ARTICLE 22'6 OF THE CONSTITION OF INDIA PETITIONER ».. Ll-t>^f^< ^p^ . .^-% ll^&^' •^^-.y PRAKASH LAXMEY, S/0. SHRI HAR PRASAD LAXMEY, •' AGED ABOUT 27 YEARS R/0. RAJASVA COLONY, CHANTIDHI, BILASPUR, TAHSIL & DISTRICT BILASPUR (C.G.) v M^ RESPONDENTS VERSUS 01) ^- 02) ^' 03) (^- 04) ^ INDIAN OIL CORPORATION LIMITED, ACTING THROUGH EXECUTIVE DIRECTOR (RETAIL) INDIAN OIL COMPANY BUILDING, ALI ZANG ROAD G-9 BANDRA (EAST) MLHVGBAI -51 (M.S.). GENERAL MANAGER MADHYAPRADESH INDIAN OIL CORPORATION LIMITED, STATE OFFICE, 16 ARERA HILLS, JAIL ROAD, BHOPAL (M.P.). DIVISIONAL MANAGER INDIAN OIL CORPORATION LIMITED, "INDIAN OIL BHAVAN" RAJIV GANDHI MARG (VIP ROAD) P.0. RAVIGRAM, TELIBANDHA, RAIPUR (C.G.). SENIOR DIVISIONAL MANAGER (RETAIL SALES) INDIAN OIL CORPORATION LDMITED, "mDIAN OIL BIIAVAN" RAJIV GANDHI -r/ :5) / MARG (VIP ROAD) P.0. RAVIGRAM, TELIBANDHA, RAIPUR (C.G.). SHATRUGHAN LAL CHAUHAN, S/o. NOT KNOWN, AGED ABOUT 30 YEARS, R/o. VILLA<rE KARMANDI, TAHSIL NAVAGARH, DISTRICT JANJGIR-CHAMPA/C.G.). WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA FOR ISSUANCE OF APPROPRIATE WRIT / WRITS, ORDER / ORDERS DIRECTION/DIRECTIONS ETC. Writ Petition No.638of 2004 Prakash Laxiney Versus - Indian Oil Corporation SE four.others TH Sd/- , L.C.BHADOO Judge ^.« 8.7.2005 p • ^- Wnt Petition Mo. 638 of 2004 Prakash Laxm.cy - Versus - Indian Oil Corporation & four others Present; - Mr. K.A. Ansari, Senior Advocate with Mr. R.L. Bajpai, Advocate: For the petitioner Mr.Bhisnia Kingar, Advocate: For respondent Nos 1 to 5 L.C. (Passed on d_&^July, 2005) 1. By this writ petition under Articles 226 Ss 227 of the Constitution of India the petitioner has challenged the selection of respondent No.5 ruade by respondents-Iadian Oil Corporation for awarding of dealership ofretail outlet of respondents-Corporation to be established at Mungeli Road, Bilaspur. 2. Brief facts, as set out in the lietition, necessarv for the disposal of this petition are that the respoadents-Indian Oil Corporation, for establishing a retail outlet at Mungeli Road, Bil'aspur decided to award the dealership to a suitable candidate and for that purpose published an advertiseinent in the daily newspaper dated 12,9.2000 inviting applications froin the eligible candidates on the term.s & conditions set out in the said advertisenient. The residents of Shahdol, Korea, Korba, Janjgir-Chainpa, Saipur, Durg, Dindori, Kawardha, Sarguja and Bilaspur districts were entitled to apply for the said dealership aiid c. further condition was that onlv it was reserved for the nieiabers of scheduled caste, It v,Ta.s also niade clear that a preference \vill be giveu to the candidate, who is the resident of saine district where the retail outlet is to be established, if other things being equal. In response to the said advertiseinent the petitioner, respondent No.5 and som.e other candidates applied for the allotnient of said dealership. The petitioner's case is that he is a law graduate and in response to the said advertisem.ent he applied for said dealership. Initially, interview was fixed on 8.10.2003 but it was cancelled because of enforceiaent of Model Code of Conduct on account of Assenibly Election for the year 2003. Thereafter, the interviev/ 'wa.s held on 12.1.2004 in the office ofrespondent No.3 andin the said interview respondent No.5 wras selected. As per Para 5.9 of the petition respondent No.5 after the interviemr stated that he \vill be selected and after com.pletion of interview when the list was published on 13.1.2004 the claiin of respondent No.5 was proved true 'because he was selecte;d and placed at Sr. No.l. The petitioner is the resident of Chantidih, Bilaspur, whereas respondent No.5 is resident of Village Karinaiidi, Tahsil Navagarh, District Janjgir-Chainpa, therefore, the petitioner was entitled for preference and priority. Therefore, it has been prayed that the selection of respondent No.5 be quashed. 3. Reply has been filed on behalf of respondent Nos. 1 to 4 and also on behalf of respondent No.5 in which it has been inentioned that the selection ofrespondent No.5 was based on the inerit at the interview and this Court cannot exercise the judicial .review for re-appreciation or reappraisal ofthese luaterials and factors or their relative weighing or evaluation of coiaparative merits of the competing candidates. Ultimately, it has been prayed that the petition of the petitioner deserves to be disiuissed. 4, Respondent No.5 has denied the allegation that after interview he has.made any claim that he will be selected c. Y and has further inentioned in the return that being foiind ineritorious at the interview he has been selected. 5. I have heard Mr. K.A. Ansari, learned Senior Counsel for the petitioner 8s Mr. B, Kingar, Counsel for respondent Nos. 1 to 5. 6. Mr. Ansari, learned Sr. Counsel for the petitioner argued that the petitioner being the resident of Bilaspur ought to have been given preference, whereas respondent No,5, \v'ho is resident of Janjgir-Champa district was given preference and selected, therefore, selection was bad. He further argued that after interview respondent No.5 claiinied that he will be selected and ultiinately, he was selected, therefore, the selection of respondent No.5 is bad. He further argued tb.at no reason has been assigned by the selection board that how they have aw^arded niore nuiubers to respondent No.5 in c-oiaparison to tbe petitioner., He further argued that the selection board awarded ruore nurubers in order to favour respoiident No.5. Therefore, on this ground also the selection of respondent No.5 is liable to be quashed. Learned Sr. Counsel placing reliance on the decisions of the Hoii'ble Apex Court in the inatters of Common Cause, A Registered Society Vs Union of India and others reported in (1996} 6 Supreme Court Cases 530 8s Shivsagar Tiwari Vs. Uaion of India and others reported in (1996J 6 Supreme Court Cases 558 as also the decision of Patna Hieh Court in the niatter ol'Anil Kumar Singh Vs. Union of India and others reported in AIR 2001 Patna 56 argued that in view of above decisions the selection of respondent No,5 be quashed. 7. On the other hand, counsel for respondents vehemently opposed the argument advanced by learned Sr. Counsel for the petitioner and argued that the petitioner was entitled for preferential treatnient only when th.e other tbings are equal, but when the other things were not equal the petitioner cannot claini preference on the basis of said condition. He further argued that selection t. com.m.ittee was consisting of experts in the field and they awarded the numbers after assessing the uiaterial and perforniance of the candidate at the iuterview. There is no allegation against the board m.em.bers regarding bias, inala fide or favouritisiu, as such the petition is liable to be dism.issed. 8. The law on the point regarding judicial review in the niatter of award of dealership was considered by the High Court of Calcutta in the matter of Chinmoy Sarkar and etc. Vs.Md. Shaniat Hossain and etc. reported in AIR 1990 Calcutta 412. In that case also the similar point was regarding award of dealership ofpetroleuni products and the Court held that "High Court in V/rit Jurisdiction cannot sit in appeal over the selection of a Dealer for a Retail outlet made by the Board. However, the exerci.se of sv.ch jurisdic'tion and the judicial reviewability of sv.ch selection are subject to the idell-known limitations. Ifthe selection is vitiated by an arbitrary or irrational exercise of power or by jnala fides or is based on no m.aterials or inade on the basis of irrelevant materials or by ignoring relevant facts including eligibility, the Writ Court would and should, on proof of the relevant facts, grant an appropriate relief. Hoiuever. it is not the- Writ Court to delve deep into the records ofthe Board or the Corporation and to examine the validity of the rival claims upon appreciation afresh ofthe materials on such record and, on the basis of such reappraisal, to decide whether the selection was properly made and to give effect to such decision by the issue ofa Writ. The Hon'bleApex Court in the matter of K Vinod Kumar Vs. S. Palanisamy and others reported in (2003} 10-Supreme Court Cases 681 held that " without raising specifi.c plea impugning the rrianner of marking and mala fide exercise of discretion, the Court cannot interfere in the selection made by the selection committee. In Para 7 ofthejudgmenttheHonble Apex Court has pbserved, "the dealer selection board must satisfy the requirenients of a bona fide administrative decision arrived at in a fair manner. There are no m.cila L-. fides alleged against the Dealer Selection Board or the President or any meniber thereof. There is no spec.ific plea raised iinpugning the manner of marking. It appears that all the three members ofthe Board including the President conducted the proceeclings, and each one of them gave mcirks expressing his ou'n assessnient ofthe merits ofthe applicants. The irtarKs given by the three u'ere then totaled and arranged in the order of m.erit. In the absence of a particul.ar procedure orformula having been prescribed for the Board to follow, no fault can be found with the manner in which the proceedings were conducted by the Board. The Board is entrusted with the task of finding out the best-suitable candidate and, so long as the power is exercised bona fide, the Board is free to devise and adopt its own procedure subject to satisfying the test of reasonableness and fairness. There is no avernient that the procedure adopted by the'Board ivas arbitrary. unfair or unreasonable. Therefore, the selection of candidate niade by the selection couiiuittee based on their expertise, past experlence and particularly involved in selection process cannot be challenged in a casual m.anner. In order to assail selection of respondent No.5, the petitioner is required to raise specific plea and established with niaterial that exercise of selection was niala fide or selection was arbitrary and irrational exercise of power and sarae is based on no iiiaterial or based on the basis of irrelevant factors or by ignoring the relevant factors including eligibility, unless the petitioner is able to proof and establish the above m.ala fides or irregularities in the selection the Writ Court cannot scrutinize and exaiuine the selection in its own niethod exercising the power like appellate court. The nurubers which have been awarded by the selection board are avii'arded after assessing tlie perform.ance of the candidate at the interview, his intellect, caliber, conduct, nianner of reply of question, his experience in the field of business and other relevant factors, therefore, the writ court cannot sit on siich a decision as appellate court. lO.Based on the above principle, if we exaniine the facts of present case, as far as the ground of resident of sanie district is concerned, it was luade clear in the advertiseiaent itself that preferential treatinent will be ;iven to a candidate only when the other things are equal. In the present case, in interview respondent No.5 secured 109 m.arks, whereas the petitioner secured 105 inarks, therefore, other things were not equal, as siich the petitioner was not entitled for preferential treatnient. ll.As far as the allegations inade in Para 5.9 of tbe petition that just after the interview respondent No.5 m.ade a claiui that he will be selected is concerned, nierely on the ;round it cannot be held that the selection of respondent No.5 was not on nierit. As has been held by the Hon'fole Apex Court in the niatter of K. Vitiod Kuniar (Supra) in the first instance, the petitioner is required to niade a specific plea in the petition and thereafter, he has to prove and establish the saiue with niaterial. The petitioner has levelled bald allegation without any niaterial and he had not been able to establish tlie sam.e. Even otherwise, after interview, if any candidate ruade a claiin that he will be selected that cannot be considered that his selection is m.alafide or he has claiiued that he will be selected by any nianipulation or innuence. In fact, candidate ruay inake such a claim on the basis of his perforniance at the interview also. Unless such a claim. is based on irrelevant consideration or uial-practices, it cannot be held to be a bad, Therefore, I do not find any siibstance in this ground also. 12.As far as the argument of learned Sr. Counsel for the petitioner that no reason has been assigned for awarding more marks to respondent No.5 in comparison. to the petitioner is concerned, sa.me is also without any merit, There is 110 allegation in the petition that the selection board has not followed the procedure or guidelines, which 1 they were required to follow or the selection board has exercised their power in an arbitrary & inalafide manner. The selection board has fixed the norins & guidelines for awardiiig the numbers at the illterview and as per that various factors like personality, business caliber & acuinen, salesiiianship, capability to arrange finance, educational qualifications, general intellect and general level of intelligence etc. were to be taken into consideration, under each head separate nuiabers were fixed and after assessing the inaterial on record and also the perforniance of candidate at the interview three nieinbers coiuniitted including Chairiuan & two meiubers awarded . iiumbers under each head based on their assessinent at the interview. As such power the arguinent advanced by learned Sr. Counsel for the petitioner that the board has exercised its power in a malafide irianner is without nierit. The petitioiier has uot raised any specific plea in the petition that how the manner of assessiuent 85 award of nuinber to 'the candidate at the interview was defective, biased, or contrary to the settle procedure, IS.Now coming to the judginents cited by learned counsel for the petitioner. In the matter of Coiniuon Cause (supra) the Hoii'ble Apex Court cancelled the award of dealership based on the discretionary quota of the Bffinister on the ground that the dealership was awarded exercising the discretionary power to favour the persons related to the politicians, nienibers of ail selection board, officials in the niinistry in a cloistered and stereotyped inanner without any guidelines or criteria. Therefore, the court held that the said exercise of discretionary power was arbitrary, discriniinatory aud niala fide and quashed the selection. Siniilarly, in the matter Shivsagar Tiwari [supra] the Hon'ble Apex Court reached to the conclusion that the Minister of Urban Development allotted the shops and stalls to his own employees and domestic servants without following any policy or criteria, therefore, the Court held that the allotmeuts were arbitrary, amouiits to misuse of power and that is why the ordered for •w ^. ,-"^ cancellation. Whereas, in the present case no such allegation is there. In the inatter of Anil Kuinar Singh (supra) the Patna High Court reached to conclusion that the respondent was not found to be resideat of Village where the dealership was to be granted as per the conditions, tfaerefore, held that the selection was Biade in violative Qf the condition in advertisement and that is why the CourJ-. quashed theselection. -In the present case there are no such allegations, therefore, all the above threejudgnients are ofno help fo the petitioner. Jn the result, I ain of the opinion that the writ petition has no merit, saine is liable to be disinissed and; it| is hereby disinissed. Sd/- , L.C.BHADOO Judge o%.07.2!Q05- 1 :L« i|s|lian/- •"^.-, ^;!. ••...^"