IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 02-03-2011 C O R A M THE HONOURABLE MR. JUSTICE B.RAJENDRAN WP No. 27344 of 2009 and M.P. No. 1 of 2009 E. Joshua Livingston .. Petitioner Versus 1. The Senior Divisional Retail Sales Manager Indian Oil Corporation Limited Trichy Divisional Office "Triveni" Third Floor B-35, Shastri Road, Thillai Nagar Trichy – 620 018 2. The Dealer Selection Committee Indian Oil Corporation Limited Trichy Divisional Office "Triveni" Third Floor B-35, Shastri Road, Thillai Nagar Trichy – 620 018 3. S. Sri Mouthucomarassamy 4. The Executive Director (Tamil Nadu & Pondicherry) Indian Oil Corporation Limited (Marketing Division) Indian Oil Bhavan No.139, Mahatma Gandhi Road Nungambakkam High Road Chennai – 600 034 .. Respondents Writ Petition filed under Article 226 of The Constitution of India praying for a Writ of Mandamus, directing the respondents 1, 2 and 4 herein to delete the name of the third respondent from the first rank in view of his defective parameters with respect to (a) capability to provide finance (b) capability to general business and (c) Experience by replacing the petitioner herein in the first rank so as to appoint him as the dealer to the Retail Outlet of Indian Oil Corporation at Marapalam Junction, Puducherry Town, Puducherry Union Territory. https://hcservices.ecourts.gov.in/hcservices/ For Petitioner : Mr. N. Jothi for Mr. M.C. Govindan For Respondents : Mr. Abdul Saleem for M/s. Anand, Abdul and Vinod Associates for R1 Mr. V.T. Gopalan, Senior Counsel for Mrs. Radha Gopalan for R3 No appearance for RR2 and R4. ORDER The petitioner, a Masters Degree Holder in Business Management, would contend that he possess enough experience with respect to the operational functions and sale of petroleum products. Pursuant to an advertisement dated 01.03.2009 published by the fourth respondent calling upon applications to offer dealership of various outlets, the petitioner submitted his application seeking dealership of the outlet located at Marapalam Junction in the revenue District of Union Territory of Puducherry. The offer made by the fourth respondent is an open category dealership and the petitioner applied in time on 05.04.2009. Thereafter, the first respondent sent a letter dated 06.10.2009 calling upon the petitioner to appear before the second respondent for an interview on 24.10.2009. The interview with respect to Marapalam Junction outlet was held on 23.10.2009 and 24.10.2009 in which the petitioner participated along with others. Even according to the petitioner, there were as many as 25 applicants participated in the interview conducted by the second respondent for obtaining the dealership. After interview, on the same day, marks obtained by individual applicants were published. As per the result published by the respondents 1 and 2, the third respondent was awarded 63.47 marks and placed in the first rank and the petitioner was given 62.47 marks and placed in the second rank. According to the petitioner, the difference in the marks secured by him and the third respondent was only 0.70 marks as against the total marks fixed at 65.00. 2. According to the petitioner, the second respondent, without proper appreciation, awarded higher marks to the third respondent which he is not entitled to. It is further averred that the petitioner would have been the highest mark holder and he alone should have been chosen for award of the dealership. According to the petitioner, 65 marks was segregated into seven categories, which was further divided into sub-headings. The petitioner gave a comparative statement of the marks obtained by him and the third respondent under each category in the affidavit filed in support of the writ petition and contends that the award of higher marks to the third respondent is https://hcservices.ecourts.gov.in/hcservices/ arbitrary and illegal. Therefore, the petitioner challenges the selection of the third respondent on the ground that the third respondent was arbitrarily awarded more marks towards (i) capability to provide finance (total 25 marks) (ii) capability to generate business (total 10 marks) and (iii) experience (maximum 4 marks). 3. The learned counsel for the petitioner pointed out that the second respondent committee erred in awarding full total 25 marks to the third respondent under the category of capability to provide finance. According to the learned counsel for the petitioner, in the letter submitted by the third respondent from various banks namely Indian Overseas Bank, ICICI Bank and (iii) Indian Bank, the banks have not specifically indicated the exact extent of credit facility, which they may grant to the third respondent in the event of the dealership is granted in his favour. Therefore, according to the learned counsel for the petitioner, this is not in consonance with the appendix A2 and the non-mentioning of extent of loan amount to be offered by the banks to the third respondent will disentitle the third respondent from getting full marks. According to the learned counsel for the petitioner, such a clear requirement is mandated under Appendix A2 which is a pre-requisite condition to assess the capability of the third respondent to provide finance and it is lacking in the case of the third respondent. Therefore, five marks allotted to the third respondent under this category has to be deleted and in that event, the marks secured by the third respondent will be reduced and consequently the petitioner will become eligible for grant of the award of the dealership. 4. The learned counsel for the petitioner further states that under the category of generating business (totally 10 marks), the third respondent is not entitled to five marks as awarded under the heading 'tied up volume' as he has not submitted any affidavit or any other document to show the definite intake of petrol. Even though the petitioner had submitted an application dated 29.10.2009 to the fourth respondent by invoking the Right to Information Act, the details sought for by the petitioner were not furnished, especially an affidavit said to have been filed by the third respondent. Therefore, the learned counsel for the petitioner would contend that no affidavit was filed by the third respondent at all and it would disentitle him from getting the marks, as awarded to him. 5. The third ground of attack made by the learned counsel for the petitioner in respect of the category 'experience' is that, the third respondent ought not to have been awarded 3 marks as against 4 marks. According to the learned counsel for the petitioner, even though the third respondent had produced a letter from one Anapoorani Service Station to show that he did an internship at the said service station to learn the trade/day to day business operations of the bus company and assisted the operation of the retail outlet, as per the reply furnished to the petitioner under the Right to Information Act, https://hcservices.ecourts.gov.in/hcservices/ the Assistant Inspector of Labour-I, Labour Department had stated that during the relevant point of time, the third respondent was not working as an apprentice under the said Annapoorani Service Station at Thiruvannamalai. As the third respondent did not have any experience, as required, he should not be given three marks under the category 'experience. Therefore, on all these three grounds, according to the learned counsel for the petitioner, the marks awarded in favour of the third respondent has to be reduced and the petitioner ought to have been awarded the dealership. 6. The first respondent filed a detailed counter affidavit. In the counter affidavit, the first respondent would contend that the writ petition is not maintainable as the issue involved is only a matter of fact and it should be decided only by the civil court, there cannot be any re-appreciation or re-appraisal of the relevant material factors, relative qualifications and evaluation of the comparative merits of the candidates in a writ proceeding under Article 226 of The Constitution of India. The first respondent further contends that there is an alternative remedy available to the petitioner, but without exhausting the same, the present writ petition is filed. As per the selection procedure, the petitioner can give a complaint to the Corporation within 30 days of the selection and wait for the action to be taken by the corporation after investigation. In this case, the petitioner had also given a complaint to the corporation but even before any action could be taken on the complaint, he rushed to this Court and filed the present writ petition, therefore, the writ petition is not at all maintainable. The first respondent denied the award of marks to the candidates without proper consideration. It was contended that the selection procedure was conducted in a free, fair and transparent manner. As far as the three deficiencies pointed out by the petitioner, it was contended that as per the policy of the Corporation, the third respondent had produced letters from three banks and if the quantum of amount of loan is mentioned by the bank, then marks are awarded proportionate to the amount mentioned and subject to the ceiling of 5 marks, however, if no amount is mentioned then full 5 marks are awarded. If there is lesser amount is mentioned, only then the quantum of marks will be reduced. Therefore, according to the first respondent, there is no discrepancy in awarding of marks to the third respondent under the head of capability to arrange finance. It was further contended that as per the application filed by the petitioner under the Right to Information Act, the entire copies of the application submitted by the third respondent were furnished to the petitioner with all the annexure. As far as the affidavits are concerned, as it contains personal details of the name of the persons and their address with whom business is being carried on by the third respondent and therefore, it was specifically not furnished. Whereas, the third respondent, along with the application, has duly submitted affidavits. Therefore, the marks allotted to the third respondent under the head "capability of generating business" was in line with the policy of the corporation. Similarly, the first https://hcservices.ecourts.gov.in/hcservices/ respondent would contend that though they are not aware of the letter given by the Assistant Inspector of Labour, Thiruvannamalai, the certificate produced by the third respondent issued by Annapoorani Service Station clearly indicates that the third respondent was assisting on a honorary basis and doing an internship at the outlet. The first respondent would contend that when the petitioner himself has given a detailed letter dated 11.12.2009 to the first respondent, without even waiting for any action to be taken by the first respondent, he had rushed to this Court and filed this writ petition. Therefore, the writ petition is not at all maintainable. 7. The third respondent has filed a separate counter affidavit contending that the writ petition is not maintainable. The decision or appreciation of materials by the competent authority cannot be questioned by the petitioner or it cannot be re-appreciated in a writ proceedings under Article 226 of The Constitution of India. In so far as the deficiencies pointed out by the petitioner is concerned, the third respondent would contend that as regards credit worthiness, the amount the banks would advance to him towards working capital is not in any way restricted. According to the third respondent, the banks would give whatever amount needed for his business. He would only contend that only if the banks want to put a cap on the amount that they would advance to a person, then the restricted amount will be indicated. Whereas, there is no limitation for the advancement of loan. As far as the petitioner is concerned, the banks have restricted the loan amount to Rs.90 lakhs, whereas, in the case of third respondent, it is not so and it could be even exceeding Rs.90 lakhs. According to the third respondent, as far as the deficiency pointed out by the petitioner with regard to capability of the third respondent to generate business with tied up volume with prospective customer is concerned, the third respondent would contend that he had submitted 33 affidavits from prospective customers along with the application for award of dealership and he is not aware that the affidavits have not been furnished to the petitioner or not on the basis of his application under the Right to Information Act. The affidavits were given as per the manner prescribed in Appendix A3 and therefore, the alleged deficiency pointed out by the petitioner is not correct. As far as experience is concerned, the third respondent would contend that he himself is a permit holder for stage carrier in respect of a bus plying on the interstate route "Pondicherry to Tirupati" since 08.10.2002 and the permit is produced in the typed set of papers. Therefore, the third respondent would justify the allotment of marks to him under the caption 'experience' and consequently he prayed for dismissal of the writ petition. 8. The counter affidavit of the first respondent was adopted by the respondents 2 and 4. 9. The writ petitioner had filed two separate reply affidavits for the counter affidavits filed by the respondents 1 and 3. The https://hcservices.ecourts.gov.in/hcservices/ reply affidavit for the counter affidavit of the first respondent, in nut shell, was to the effect that as per Appendix A2, it requires a commitment from the bank about an identified extent of amount and what was produced by the third respondent is only an evasive letter and it was not in conformity with appendix A2. As per serial No.179 in the advertisement, it has been clearly stated in column No.7 that the estimated working capital required is Rs.46 lakhs and therefore the third respondent should have indicated atleast this amount. When this is not forthcoming, the certificates produced by the third respondent from the banks are not valid and therefore the 5 marks allotted to the third respondent requires to be deleted. In so far as withholding of the information relating to the filing of the affidavit by the third respondent is concerned, the petitioner would contend that when the respondents 1, 2 and 4 have chosen to furnish all the information relating to the petitioner to the third respondent, withholding of information relating to the affidavit of the third respondent to the petitioner is illegal. Finally, the petitioner would contend that the trade experience, as projected by the third respondent, is not correct and he deserves no mark for the same and therefore, the writ petition deserves to be allowed. 10. In the reply filed by the petitioner to the counter of the third respondent, he would contend that the third respondent has not followed the appendix clearly. The experience gained in the retail trade of petroleum product alone should make an applicant eligible to get 4 marks and there is no scope for awarding 3 marks either to the son or husband of the permit holder of a stage carrier. In this case, as the permit stands in the name of the the mother of the third respondent, the third respondent is not entitled to get any marks under this head. According to the petitioner, as per the notification, there cannot be any award of any marks to a person who was holding a permit to run stage carrier. Therefore, the petitioner would contend that at best, under the category 'others' the third respondent is eligible to get only one mark and not three marks. As far as the business generation is concerned, the third respondent did not have any business experience at all and therefore, the marks awarded are not correct. 11. The third respondent has filed a rejoinder to the reply affidavit filed by the writ petitioner reiterating the contentions raised in the counter affidavit. Ultimately, it was contended that the writ Court would not embark upon the factual matters or to re- appreciate material particulars under Article 226 of The Constitution of India. Above all, the third respondent would mainly contend that the petitioner, having given a complaint to the respondents 1, 2 and 4 and availed the opportunity of an alternative remedy, he ought not to have filed the present writ petition. In the notification issued by the first respondent, under the column relating to experience, it was categorically indicated that the relevant experience in the related petroleum trade/transport/automobiles will also be considered as https://hcservices.ecourts.gov.in/hcservices/ experience. Therefore, the experience of the third respondent in transport business is a relevant circumstance which will entitle the third respondent to fetch 3 marks. Further, the permit which stood in the name of his mother was transferred in his name in the year 2002 after the death of his mother. It was also contended that the permit is still alive and it is valid up to 30.12.2012 and not expired on 01.06.2004 as stated by the petitioner. 12. Heard the counsel on either side and perused the material records. The main ground of attack by the petitioner in so far as the selection process is that even though he participated in the selection process as per the notification issued by the first respondent, the committee, the second respondent, had awarded marks in favour of the third respondent which is not in accordance with the notification in so far as it relates to (a) letter ensuring the credit worthiness (b) experience and (iii) matters in respect of purchase to be made by third parties or the agreement of sale of the products. 13. As far as the first deficiency alleged by the petitioner with regard to eligibility or capability or resourcefulness of the third respondent in the financial matters is concerned, the learned counsel for the petitioner argued that though the third respondent had produced letters from the Indian Overseas Bank, Puducherry, which was enclosed in page No.66 of the typed set of papers, it was not indicated therein as to the quantum of loan amount that would be advanced to the third respondent in the event of the dealership awarded in his favour. A perusal of the certificate dated 08.05.2009 issued by the Indian Overseas Bank, Puducherry would clearly indicate that the third respondent is a customer in the branch for the last 20 years and he is not enjoying any credit facilities as on that date. It was further stated that if the dealership is allotted in favour of the third respondent, the bank may be willing to extend credit facilities subject to their usual norms and conditions. The certificate was signed by the Chief Manager of the Bank. Another certificate issued by ICICI Bank in favour of the third respondent was also enclosed in the typed set of papers. In this certificate, it was stated that the third respondent is maintaining fixed deposit of Rs.50 lakhs and that they can grant more loan facility to their client subject to the terms and conditions as prevalent from time to time. The fixed deposit receipt for Rs.50 lakhs issued by the ICICI Bank in favour of the third respondent was also annexed in the typed set of papers. The amount was deposited on 14.05.2009 and the fixed deposit was made for a period of one year and one month i.e., upto 08.06.2010. The third letter issued by the Indian Bank, Puducherry dated 12.05.2009 would indicate that the third respondent is a customer of the branch for the last 14 years and he is enjoying credit facilities namely (i) Savings Bank (ii) Savings Bank NRE Account and (iii) Locker facility. It was further stated that in case dealership is allotted by Indian Oil Corporation to the third respondent, they will extend need based working capital to him subject to the third respondent https://hcservices.ecourts.gov.in/hcservices/ fulfilling the norms of the bank. The auditors certificate is also produced wherein the movable and immovable assets of the third respondent, details of their value was also mentioned, which would indicate that the value of the assets, both movable and immovable properties, put together was Rs.6,86,63,663.00, which is including the balance with Central Provident Fund Singapore to the tune of Rs.1,68,47,132 in the name of the third respondent and Rs.50 lakhs deposited with ICICI Bank under a fixed deposit. The third respondent had also given a letter stating that the working capital for the investment is from his savings and he had transferred from his savings account into fixed deposit in ICICI Bank, Indira Gandhi Square Branch, Puducherry. It was also stated that the fixed deposit is for Rs.50 lakhs for a period of 395 days. The third respondent also would state that he will be using the fixed deposit for his working capital and he has also other source of funds which can also be used for his working capital. All these letters, auditors report, valuation are all submitted by the third respondent along with the application for grant of dealership. The petitioner had obtained the copies of these documents by submitting an application under Right to Information Act. The original application along with the relevant enclosures submitted by the third respondent for grant of dealership before the respondents/corporation was produced before this Court and the learned counsel for the petitioner also verified the same in the open Court. 14. The contention of the learned counsel for the petitioner is that though the documents are produced, the banks have not issued certificate that the actual working capital amount can be extended or loan will be granted and as per the norms, 46 lakhs should be the working capital, but the letters or certificates issued by the bank in favour of the third respondent does not specify Rs.46 lakhs and therefore, the third respondent has not fulfilled the criteria and consequently the marks given to him under this head is incorrect. The learned counsel for the petitioner would further contend that no amount is mentioned in the letters issued in favour of the third respondent by the banks and therefore it will not qualify the third respondent for getting any marks or in the alternative, definitely, marks should not be given to the third respondent or lesser marks should be given. Whereas, the certificates issued by the banks in favour of the petitioner had specifically indicated the amount which they have agreed to sanction as loan especially the sum of Rs.46 lakhs which was indicated in the notification issued by the first respondent and therefore, the petitioner stands in a different footing. Therefore, if the marks awarded to the third respondent is reduced, then the difference of marks between the petitioner and the third respondent, being 0.70 will go and consequently, the petitioner will be the proper person to be awarded the dealership. 15. This argument of the learned counsel for the petitioner is totally not in consonance with the criteria fixed by the corporation. The petitioner in the writ petition produced the guidelines and https://hcservices.ecourts.gov.in/hcservices/ appendix for selection of dealership. In the argument, it was pointed out by the learned counsel for the third respondent that the guidelines which were produced by the petitioner along with the typed set of papers relates to Kisan Seva Kendra or KRK scheme as identified by the Indian Oil Corporation Limited, whereas for the selection process, the correct guidelines issued by the department is a brochure titled "Selection of Petrol/Diesel Retail Outlet Dealers" issued on 1st July 2009. The said brochure was produced by the respondents corporation for perusal of this Court. The corporation also produced the Circular No. 6009 (DSG) dated 6th September 2005 issued by the Indian Oil Corporation Limited. The said Circular dated 06.09.2005 was addressed to the State Retail Heads enclosing the FAQ at Annexure A relating to the selection process. 16. As per the brochure dated 01.07.2009, in so far as capability to provide finance is concerned, 25 marks were earmarked to individuals. This heading was sub-divided into several categories such as i) Liquid Cash 12 marks ii) Movable/Immovable Assets 4 marks iii) Income 4 marks iv) Bank letter 5 marks 17. The 25 marks was bifurcated in this way. It is evident that under the heading Credit worthiness, 5 marks was earmarked, for which letters / certificates from the banks have to be produced.