CWP No.12990 of 2005 (O&M) [1] IN THE HIGH COURT FOR THE STATES OF PUNJAB & HARYANA AT CHANDIGARH ***** CWP No.12990 of 2005 (O&M) Dated: 3rd August, 2011 Sh. Jasbir Singh … Petitioner Versus Hindustan Petroleum Corporation Limited and Ors. … Respondents ***** CORAM: HON’BLE MR. JUSTICE K. KANNAN Present: Mr. Akshay Bhan, Advocate with Mr. Animesh Sharma, Advocate, for the petitioner. Mr. Raman Sharma, Advocate, for the respondents No.1 and 2. Mr. K.K. Kahlon, Advocate, for respondent No.3. ***** 1. Whether reporters of local papers may be allowed to see the judgment? YES/NO 2. To be referred to the reporters or not? YES/NO 3. Whether the judgment should be reported in the digest? YES/NO K. KANNAN, J.(Oral) 1. The petitioner, who was an applicant for allotment of dealership in LPG Gas with Hindustan Petroleum Corporation, challenges the allotment ultimately made to the third respondent. The contention of the petitioner was that in terms of advertisement issued on 02.02.2004 and the priorities mentioned as regards the choice of persons, the petitioner as the dependent son of a member of the Armed Forces, who died-in-harness, was entitled to be CWP No.12990 of 2005 (O&M) [2] considered ahead of the claims of the third respondent, who fell below his rank as a person who claimed as a dependent of a defence personnel. Responding to the petitioner’s challenge, the first respondent-Corporation gave out the reason that the petitioner had been awarded less marks in the interview after consideration of all the relevant data supplied in the application and the criteria applied for awarding such marks in terms of the guidelines already issued for selection of retail outlet dealership. It was also contended that the petitioner was not found suitable for selection since he did not have any proof of availability of property while the third respondent had definite documentary evidence for the same. The third respondent, who is the ultimate beneficiary had, apart from affirming the contentions of the Corporation, also contended that the interview had been concluded and notified in August, 2004 and the third respondent had actually taken a property on lease paying rent @ Rs.2,000/- per month and put up a construction at a cost of Rs.10,00,000/-. At the time when the petition was filed, letter of intent had already been issued and the outlet had also become operational. The petitioner was guilty of laches and he cannot, therefore, have any right. According to third respondent, the petitioner also did not have the requisite qualification as dependent son of an Army Personnel since the petitioner was about 45 years of age and was supporting his college-going children at the time of application, while on the other hand, the third respondent was just about 23 years and his dependency on his father cannot be doubted. 2. The learned counsel appearing for the petitioner placed at the forefront of his arguments, among candidates belonging to defence personnel category, the order of priority mentioned in the advertisement was: CWP No.12990 of 2005 (O&M) [3] “b) Defence Personnel Category (DC): Defence Personnel means personnel of armed forces (viz. Army, Navy, Airforce) and will cover widows/ dependents of those who died in war, war disabled/ disabled on duty, widows/ dependent of those members of Armed Forces who died in harness due to attributable causes and disabled in peace due to attributable causes. Candidate belonging to this category should be sponsored by Director General of Resettlement, Ministry of Defence, GOI. Following is inter-se priority for DC category (i) Widows/ dependents of posthumous gallantry award winner. (ii) War widows/ dependents of those who dies in war. (iii) War disabled/ disabled on duty. (iv) Widows/ dependents of those who dies in harness due to attributable causes. (v) Disabled in peace due to attributable causes. Certificate of Eligibility issued for one particular distributorship is not valid for another distributorship.” 3. According to him, the petitioner was the son of a war veteran, who died while serving in the Indian Army during the 1971 Indo-Pak war and he was entitled to be considered favourably to the exclusion of any other candidate. If the issue was only with reference to inter se preference then, I have no doubt in my mind that the petitioner was entitled to be awarded the dealership. It must be noticed that the advertisement sets out several parameters and the issue of inter se priority would apply only if the candidates tied at the same place in terms of relative merits. In this case, admittedly, there were only two candidates that stood for consideration finally when yet another applicant by name Kulwant Kaur, had not turned up in the interview and fell out of the zone of reckoning. The contention of the learned counsel Mr. Bhan appearing for the petitioner that when he was found suitable then, there was no scope for taking the candidature of the third respondent. CWP No.12990 of 2005 (O&M) [4] 4. The interpretation as contended by the petitioner is also untenable because it makes irrelevant the several other criteria laid down for selection, which cannot be the objective of spelling out inter se preference. As we have seen above, if the petitioner was ahead in terms of the status as a dependent of the Army Personnel that died-in-harness, such a consideration could have been taken only after taking note of all relevant criteria set through the advertisement. The learned counsel argued that assignment of marks for various information elicited in the application was introducing a new criterion, which was not set forth in the advertisement. The learned counsel refers to a decision of this Court in “Dr. (Mrs.) Sangeeta v. State of Punjab and others, 2010(4) SCT 465” states that a change of criteria after advertisement is not permissible. In the above case, while dealing with the selection and appointment to the posts of Aurvedic Medical Officer, this Court held that new criteria arbitrarily framed after advertisement to suit the ‘favourite candidates’ were bad in law. 5. The proposition of law is well taken but the argument that there had been any change in criteria during the process of selection does not appear to be correct. The contention raised by the Corporation was that in the brochure issued by it, there was a definite guideline about the manner of assessment of marks and on such reckoning the third respondent was entitled to a better grade. This argument is attacked as fallacious by the petitioner and I have no difficulty in accepting such an objection since the brochure itself was released only in the year 2005 and on the showing of the first respondent, the selection had been made even on 2nd August, 2004. Evidently, the grading as mentioned in the brochure could not have been adopted at all for the selection. The learned counsel appearing for the Corporation is quick to realize the error CWP No.12990 of 2005 (O&M) [5] and points out that even before the brochure was introduced, there had been guidelines issued on 19.08.2003 on the basis of which nearly 255 outlets had been commissioned. This argument is again refuted by the counsel appearing for the petitioner stating that these guidelines were not even referred to in the advertisement. If the advertisement issued, sets out the eligibility criteria as also various requirements for judging suitability, I do not believe that it is necessary to reproduce the guidelines. The guidelines do not supplant the requirements of the eligibility criteria set out in the advertisement but they merely provide the basis for the ultimate decision taken in the manner of appraisal of the candidates. There is no bar for relying on the yardstick applied for their appraisal within the parameters already stipulated in the advertisement. 6. The learned counsel appearing for the petitioner Mr. Bhan would argue that the advertisement referred to in the advertisement was the capability to provide infrastructural facilities and the petitioner had given the information in the application that he would purchase a plot after the allotment was made. This, according to him, was not wholly irrelevant for even as per the marks alleged to have been awarded, the petitioner has been awarded marks taking the prospect of purchase of property as relevant. The learned counsel would point out to the terms of advertisement that set out the godown specifications and showroom specifications that merely posed a query whether the candidate could arrange for the same in the location advertised, if selected. According to him, an affirmation of such ability was itself sufficient and it was wrong on the part of the Corporation to find a candidate unsuitable by the fact that the document was not produced. CWP No.12990 of 2005 (O&M) [6] 7. While I accept the contention that the advertisement did not require the actual possession of property, the suitability of a candidate to provide for infrastructure could only come through an objective assessment of how such an affirmation is made by a candidate. Inevitably, it has to depend on whether there was adequate proof adduced at the time of interview. It must be noticed that the petitioner was not considered ineligible for being called for the interview. Its affirmation that he could arrange infrastructure was sufficient to give the first reckoning for being called. At the interview, if the Corporation had decided to assign marks on definite proof offered through documentary evidence, I cannot say such an appraisal is arbitrary. In this case, the third respondent produced proof of his possession through a lease deed in respect of the property where the godown was proposed to be established. If at the interview, the third respondent had been found as most suitable by the objective material placed before the Interview Committee then, the higher marks assigned to the third respondent for the total reckoning cannot be faulted. I cannot find fault with the Interview Committee looking for objective material for an assertion that he could arrange a property if, he would have been awarded the dealership. 8. The third respondent has also staged a march over the petitioner by the assessment of a relative better assessment obtained for the business acumen. The counsel argued that the petitioner had been awarded only 3 marks for the business acumen whereas, the third respondent had been awarded 7 marks, it shall not become possible for me to assess how the business ability of the third respondent was assessed better over the petitioner. One interviewer has awarded 2 marks to the third respondent, 1 mark to the petitioner, another interviewer has awarded 1 mark to the petitioner and 2 CWP No.12990 of 2005 (O&M) [7] marks to the third respondent while yet another interviewer has awarded 3 marks to the petitioner and 1 mark to the third respondent. Overall, the three interviewers have awarded more marks to the third respondent for assessment of business ability than the petitioner. The Court cannot substitute that judgment and enter into the realm of reappraisal on a quality such as ‘business acumen’. All the interviewers have assessed the third respondent higher than the petitioner in terms of the marks. 9. Even apart from the relative merits as assessed by the Interview Committee, there is one more reason why I think the petitioner cannot be preferred. The third respondent brings evidence for the fact that subsequent to letter of intent and before filing of the writ petition, the third respondent had already invested about Rs.10,00,000/- for construction of the godown. Photographs have also been filed along with the reply. The learned counsel states that the letter of intent was issued only on 5th July, 2005 and the writ petition had been filed on 18th August, 2005 itself and, therefore, there was no delay. The counsel appearing for the third respondent, however, would argue that the results have been announced immediately after interview was conducted and the petitioner did not file the writ petition till the letter of intent was issued to challenge the selection of the third respondent. While the petitioner may have been led to believe that before issuance of letter of intent, he could not have come to the Court, we cannot discard the event of the third respondent incurring expenses to construct a godown, when the result of his selection was put up in August, 2004 itself. It shall not be just and fair to let go a waste of such investment and the expenses that the third respondent had incurred by taking a property on lease even from February, 2004. CWP No.12990 of 2005 (O&M) [8] 10. The preference of the third respondent over the petitioner’s claim had valid and sufficient grounds and I do not find any error in such a selection. The writ petition ought to fail and the same is dismissed. August 03, 2011 ( K. KANNAN ) Rajan JUDGE