HON’BLE SRI JUSTICE SRI GHULAM MOHAMMED AND HON’BLE SRI JUSTICE NOOTY RAMA MOHANA RAO W.A.No. 236 of 2011 & W.A.No.1095 of 2011 ORDER (Per Hon’ble Sri Justice N.Ramamohana Rao) Both these writ appeals can be dealt with together as they are directed against the same judgment rendered by the learned single Judge allowing the writ petition preferred by the 1st respondent herein directing the Indian Oil Corporation (appellant in WA Sr No. 80156 of 2011) to take steps in accordance with the Circular dated 7.4.2005 and complete the exercise of selection of dealer as early as possible. Heard Sri O.Manohar Reddy and Sri T.Srinivas, learned counsel for the appellants and Sri Aditya Krishna, learned counsel for the respondent – writ petitioner. The Indian Oil Corporation (henceforth referred to as `the Oil Company’) has issued a notiﬁcation on 1.10.2007 for award of LPG Distributorship at various places in the State including the one at Ravulapalem in East Godavari District. The writ petitioner as well as the 4th respondent –appellant, applied amongst others. Interviews were conducted on 14.2.2009. The respondent – writ petitioner was placed at Sl. No. (1) in the merit panel. The case of the 4th respondent – appellant has been rejected on certain technical grounds, forcing him to institute WP No. 3021 of 2009 in this court. Upon contest, the said writ petition was allowed by a learned single Judge on 15.12.2009. The Oil Company as well as the respondent – writ petitioner carried the matter by way of Writ Appeal Nos. 8 of 2010 and 61 of 2010. Both were dismissed on 22.2.2010 by a Division Bench. The Oil Company then carried the matter by preferring Special Leave Petition to the Supreme Court, which was dismissed on 1.10.2010 ﬁnding no merit therein. Thus, the case of the 4th respondent – appellant was required to be considered by the Oil Company. Now his name was placed at Sl No. (1) in the merit panel and the respondent – writ petitioner has been relegated to the 2nd position in the merit panel, as per the revised merit panel published on 28.1.2011. The respondent-writ petitioner sought for the matter to be placed before the Review Committee as per the Circular dated 7.4.2005, through his representation dated 9.2.2011. Seeking reference to the Review Selection Committee, in terms of the Circular dated 7.4.2005, the WP No. 4168 of 2011 came to be instituted by the respondent. That was allowed by the learned single Judge as noticed supra giving rise to these two appeals. Learned counsel for the appellants would contend that in the instant case, interviews were held on 14.2.2009 and by the said date, the Oil Company, through its communication dated 31.12.2008 has withdrawn the system of reference/review of the evaluation by a Screening Committee. Therefore, the direction issued by the learned single Judge would amount to directing the Oil Company, to act upon the Circular dated 7.4.2005 which has been superseded. Therefore, the direction issued by the learned single Judge is not sustainable. It is further contended that the 4th respondent-appellant having been placed at Sl. No. (1) in the merit list has acquired a right to be appointed as a Dealer and that right cannot be taken away by seeking a reference or review of the evaluation by repeating the selection process all over again. It is further contended by Sri O.Manohar Reddy, learned counsel for the appellants that performance at the interviews is dependant upon various factors including the relaxed nature of taking the said test by the candidates and the objective manner of conducting the test by the interviewing committee. If a candidate is subjected to an otherwise avoidable pressure on his mind, his performance at the interview can be affected. This apart, a repeat performance may not ensure the same quality of judgment by a diﬀerent committee. Thus, allowing subjectivity to replace an objective assessment made in the past, therefore, the direction issued by the learned single Judge deserves to be set aside. Sri O.Manohar Reddy, learned counsel for the appellants has also placed reliance upon the judgment rendered by a learned single Judge of Madras High Court on 2.8.2010 in WP No. 19537 of 2009, which arose in identical circumstances. He therefore commends the reasoning adopted by the learned single Judge of Madras High Court for our acceptance. Before we proceed any further, we consider it appropriate to notice the following from the Circular issued by the Oil Company on 7.4.2005. “Sub:- Transparency in Selection of Dealers It has been observed that in certain cases of dealer selection the diﬀerence in marks secured by the 1st and other candidates is very low. The existing criteria for evaluation of the candidate during interview has certain elements like “personality”, “Business ability/Acumen”, “experience”, etc. which depend on the personal assessment of the interviewing Committee members. There is a possibility of error in the personal judgment of a person with regard to the above attributes, which become signiﬁcant in case the diﬀerence between the 1st and 2nd empanelled candidate is very low as well as the cases where the candidate is short of qualifying marks for a very narrow margin. In order to review the evaluation of the attributes involving personal judgment, based on certain suggestions made by Vigilance Department, it is decided that the cases of selection of dealership of following type may be referred to the Screening Committee of the State from where the Interview Committee was sourced. The constitution and role of the Screening Committee will be in line with our Policy Circular No. 65702, dated 11.2.2004. 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. In all such cases, the panel ﬁnalised by the Interview Committee should not be declared and the result should be kept in abeyance. It should be displayed on the notice board and also hosted on the website that “the result is kept in abeyance and will be declared in 30 days or on any other date, as decided by the Competent Authority.” The Interview Committee after completion of the interviews, shall arrange to hand over the recommended panel along with the mark sheets of all the candidates to the Divisional Retail Head who, in turn, will ensure to forward the same to the State Head for further action as outlined in this circular. The Screening Committee of the State, as referred to above, should once again re-interview the candidates o n 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. Based on the recommendation of the Screening Committee, a decision may be taken by the State Head with regard to further action including rectification of marks/merit panel, if required. Such decision of the State Head should be notiﬁed for the information of all the candidates by passing it on the notice board and hosting it on the website. The decision in this regard must be expedited and notiﬁed for the information of the candidates within 30 days from the date of the original interview. This may be implemented with immediate effect. This additional measure for lending more transparency in the selection system should be suitably incorporated in the brochure and also in the website.” It would also be appropriate to notice the contents of the Circular dated 31.12.2008, which reads as under: “This is further to Circular No.RO/8002 dated 7.4.2005 on subject. The System of reference/review of the evaluation by a Screening Committee stands withdrawn in all cases, with immediate eﬀect. Interview committee (L-2), henceforth will not kept the result in abeyance but declare the results immediately after interview is completed. However, cases where results have been kept on hold for interview by Screening Committee, the existing system will be followed and early disposal of all pending cases, as per existing guidelines will be ensured. This issues with the approval of Dir (M).” The Circular dated 7.4.2005 is a measure adopted for securing greater transparency to the entire process of selection of dealers by the Oil Company. This Circular has taken into account and consideration the possibility of error margin in the judgment of a person (a candidate) with regard to the attributes, chosen to form part of the selection criteria. Therefore, the Oil Company after careful analysis and assessment of the suggestions made by its Vigilance department decided that in cases where the diﬀerence of marks between the ﬁrst and the other candidates in the panel is found to be less than 5% and in cases where the diﬀerence of marks between the qualifying marks and the marks secured by the first candidate is less than 5%, in such cases, the panel ﬁnalised by the Interview Committee should not be declared and the result should be kept in abeyance. The Interview Committee was required to hand over the recommended panel along with mark sheets of all the candidates to the Divisional Retail Head, who in turn will forward the same to the State Head for placing it before the Screening Committee of the State, who would once again interview the candidates on all the parameters of selection and submit their recommendations so that an appropriate decision can be taken in the matter by the State Head. Most signiﬁcant feature of the Circular dated 7.4.2005 is the recognition by the Oil Company of the possibility of error of judgment by the Interview Committee. Yet, signiﬁcantly, the Circular has decided to give a fresh look at the whole process, only in cases where the margin was around 5%. In all other cases, no such necessity was considered or felt by the Oil Company to give another look to the selection process. The Circular dated 7.4.2005, therefore, has brought absolute fairness into the whole selection process. It is intended to ensure that no genuine candidate suﬀers, all on account of a possible error of judgment on the part of the Interview Committee. The transparency in the selection process envisaged by the Circular dated 7.4.2005 commends for instantaneous acceptance. After all, the Oil Company, being a State for the purpose of Article 12, wants to create an absolute level playing ﬁeld in the matter of selection of Dealers by it. Notwithstanding the fairly relevant and objective criteria evolved for the selection process, the Circular dated 7.4.2005, had only brought forth an added dimension to the fairness of the selection procedure. No exception thereto can be countenanced from any quarters. When we perused the communication dated 31.12.2008, it undoubtedly makes the position clear that the system of reference/review of the evaluation by a Screening Committee has been withdrawn with immediate effect. However, the 2nd paragraph of the said communication made it clear that wherever the results have been kept on hold for the interviews to be undertaken once again by the Screening Committee, the existing system envisaged by the Circular dated 7.4.2005 will be followed. In other words, the Circular instruction dated 7.4.2005 has not been completely superseded as was contended by the learned counsel for the appellants. Only that part of the Circular dated 7.4.2005 which required further reference/review of the evaluation by a Screening Committee has been withdrawn with eﬀect from 31.12.2008. Even then, pursuant to the notiﬁcation dated 1.10.2007, wherever the selections were kept on hold, the Circular instructions dated 7.4.2005 are given eﬀect to and acted upon beyond 31.12.2008. In the instant case, since the interviews were conducted on 14.2.2009, the learned counsel for the appellants would strenuously submit that the letter dated 31.12.2008 which withdrew the reference/review system should be complied with. We are not in a position to agree with the said contention for the reasons that follow hereinafter. The selection and preparation of merit list or its publication will not create any indefeasible right in favour of the selected/meritorious candidates. (Jatendra Kumar v. State of Punjab[1]) The mere selection will not create any right in favour of a candidate who oﬀered by submitting his application for selection as a dealer. In the absence of any such enforceable right, a meritorious candidate cannot object to a reference or review, which is essentially an In-house procedure envisaged by the Circular dated 7.4.2005. Even otherwise, errors of judgments are liable to be corrected by any In-house procedure. That is not alien to the system of law with which we are governed, particularly when the State or its instrumentalities are involved in the decision-making process. The fundamental principle is no injustice should be allowed to prevail or conversely no genuine case should suﬀer all due to human error of judgment. Therefore, no exception need be taken to the procedure envisaged by the Circular dated 7.4.2005, being asked to be acted upon even beyond 31.12.2008. Further, the Circular dated 7.4.2005 was holding the ﬁeld as on 1.10.2007 when the Oil Company invited the applications for selection of dealers. That was withdrawn, to the extent indicated supra, on 31.12.2008. Therefore, a procedure which was in vogue and in operation at the time when the applications were invited on 1.10.2007 has been directed to be acted upon by the learned single Judge (K.Manjusree v. State of A.P.[2]). Therefore, no exception need be drawn to the view entertained by the learned single Judge. The additional contention canvassed by Sri O.Manohar Reddy, that a candidate may not repeat his excellent performance at the interview once again, deserves no serious consideration. Going by the dismal percentage of marks set apart for assessment of the performance of candidates, such apprehensions entertained by the appellant are ill-founded. Most importantly, the assessment at the interview is only on the personality traits and the suitability of the candidate to be chosen as a dealer. It shall not stand on the same footing as that of a selection of candidates for public employment or entrustment of any other onerous task or duties. Therefore, we do not find any merit in the said contention. The further contention of the learned counsel Sri O.Manohar Reddy that the judgment of the learned single Judge of the Madras High Court, be adopted, with great respect, we are unable to subscribe to the reasoning adopted by the learned single Judge of the Madras High Court. The learned single Judge of the Madras High Court has pointed out that the contents of the Circular dated 7.4.2005 are not incorporated in the brochure published in 2007, which was supplied to all the applicants and hence the criterion contained in the said Circular are deemed to be not applicable to the selections undertaken after 2007. When, we perused the relevant portion of the Circular dated 7.4.2005, it only envisaged a Review/Reference mechanism in certain limited circumstances. That is an “in-house corrective mechanism”. No right of a candidate can be said to be impacted by such a corrective measure. It is devised as a part of extended transparency scheme of selection of dealers. Hence, we are of the opinion, that it does not impact the rights of any candidates. Since we are of the opinion that the learned single Judge has exercised the discretion properly, we do not ﬁnd any merit in these appeals and they are accordingly dismissed at the admission stage. No costs. ___________________________ GHULAM MOHAMMED,J ___________________________ NOOTY RAMA MOHANA RAO, J Date:1.12.2011 knk [1] (1985) 1 SCC 122 [2] (2008) 3 SCC 512