IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 20.07.2010 CORAM : THE HONOURABLE MR. JUSTICE V. DHANAPALAN W.P.No.11021 of 2010 A.Vijayan ... Petitioner vs. 1. The Chief Area Manager, Marketing Division, Indian Oil Corporation Ltd., No.500, Anna Salai, Teynampet, Chennai 600 018. 2. The Distributor Selection Commission, Indian Oil Corporation, Indane Area Office, No.500, Anna Salai, Teynampet, Chennai 600 018. 3. R.Kavitha ... Respondents Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of certiorarified mandamus, calling for the letter of the 1st respondent dated 11.02.2010 addressed to the petitioner, quash the same and also direct him to award the LPG Distributorship at Chetpet, Tiruvannamalai District under open category to the petitioner. For Petitioner : Mr.B.Jawahar for M/s.S.Sounthar For Respondents: Mr.Abdul Saleem, for R1 & R2 for M/s.Anand, Abdul & Vinodh Associates Mr.G.Ethirajulu for R3 O R D E R This writ petition is filed challenging the letter of the 1st respondent dated 11.02.2010 addressed to the petitioner and for a https://hcservices.ecourts.gov.in/hcservices/ direction to the 1st respondent to award the LPG Distributorship at Chetpet, Tiruvannamalai District under open category to the petitioner. 2. It is the case of the petitioner that on 06.02.2008, the 1st respondent herein invited applications for award of Distributorship of Indane Gas at Chetpet Town in Tiruvannamalai District under open category. Pursuant to the said invitation, the petitioner submitted his application on 10.03.2008 and the same was received by the 1st respondent herein. The 1st respondent through his letter dated 26.06.2009 called the petitioner to appear before the 2nd respondent for an interview on 28.07.2009. As per the guidelines of the Company, the selection power is vested with the 2nd respondent. On 28.07.2009, the petitioner appeared before the 2nd respondent for the interview and on 29.07.2009, the results were published by the 2nd respondent, in which the petitioner secured 90.00 marks and was empanelled as first. The 3rd respondent who had secured 86.33 marks was empanelled as second. According to the petitioner, within 10 days from the date of interview, the committee conducted a field investigation. As per the guidelines, if any candidate is aggrieved with the results of the committee, he may submit his representation within a period of 30 days from the date of interview. After the first field investigation, the committee conducted a second field investigation on 10.09.2009. 3. The petitioner would further submit that the 1st respondent published a second empanelled result on 17.11.2009 based on the representation of the 3rd respondent, in which also, the petitioner was empanelled as first, whereas the 3rd respondent was awarded 3 marks in addition to 86.33; thereby, in the second result her marks were increased to 89.33, even then, the 3rd respondent was in the second place. It is the grievance of the petitioner that when he was eagerly awaiting the Letter of Intent (LOI), all of a sudden, the 1st respondent sent a letter dated 11.02.2010 declaring the petitioner as an ineligible candidate for award of L.P.G. Distributorship. According to the petitioner, the said letter is impugned in the present writ petition and that in the impugned letter, the 1st respondent has stated that during the field investigation conducted by the committee on 10.09.2009, it was observed that he has withdrawn money from his S.B. Account No.764753455, Indian Bank, Vandavasi on 27.05.2009, which is less than 3 months from the date of application and before interview. Hence, he was declared as an ineligible candidate. Before issuing the impugned letter, the 1st respondent did not issue any show cause notice. Hence, the petitioner had no opportunity to explain the default. Having no other alternative, he has approached this court. 4. In the counter filed on behalf of respondents 1 and 2, it is stated that Indian Oil Corporation Ltd. (in short 'IOC) is a Government of India Company incorporated under Section 617 of the https://hcservices.ecourts.gov.in/hcservices/ Companies Act, 1956 and a Public Sector Enterprise of the Government of India under the administrative control of the Ministry of Petroleum & Natural Gas, and it is engaged in marketing petroleum products through retail network and has been enjoying the market leadership. According to the respondents, the writ petition is not maintainable and it is devoid of merits on both factual and legal aspects, as the issues raised involve disputed question of facts and therefore, the same can be decided only before a Civil Court after letting in evidence of the issues concerned and the petitioner cannot seek a remedy in this matter under Article 226 of the Constitution of India. Further, there cannot be any re-appreciation or reappraisal of 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. 4.1. It is further stated in the counter that after the interview and publication of the merit panel, Field investigation was conducted on the writ petitioner, who was the first empanelled candidate, on 10.09.2009, by a committee of two officers who have considerable experience in such works, and it was found that the information given in the application is at variance on the following item: "As per the application, the bank balance in Indian Bank (S.B. A/c No.764753455) shown by the applicant is Rs.20,01,000/- as on 10.03.2008. During verification, it was found that the balance available as on 27.05.2008 is only Rs.1,000/-. The above balance was not maintained for three months from the date of application or the interview date." In view of the same, a communication dated 11.02.2010 was sent to the writ petitioner stating that he had violated the condition imposed in clause 14.2 of the application form, and therefore, he is ineligible for the award of the LPG Distributorship. 4.2. According to the respondents 1 and 2, the petitioner is well aware of the conditions mentioned in the application form. It has been clearly mentioned in clause 14.2 that "the amount mentioned should remain in the Bank for a minimum period of three months from the date of application or the interview date, whichever is earlier." The date of application is 10.03.2008 and the date of interview is 28.07.2009. The amount of 20,00,000/- mentioned in the application dated 10.03.2008, which was in the petitioner's Bank Account was withdrawn on 27.05.2008 i.e. within three months from 10.03.2008. Hence, being a clear case of violation of the conditions of selection, the petitioner was rendered ineligible and was not issued with the Letter of Intent. Since during the field investigation the fact having been proved with the Bank Statement, nothing more was required. https://hcservices.ecourts.gov.in/hcservices/ 4.3. Respondents 1 and 2 would further state that no favouritism was shown to any candidate and it was only for the reason that the petitioner had rendered himself ineligible by not following the conditions mentioned in clause 14.2 of the application, the LOI was not issued to the petitioner. It is submitted that the marks given by the L1 committee in respect of funds is 18. The marks given by the L1 committee are based on the details given in the application. As per the instructions to the candidate, the amount mentioned in the application as Item No.14.2 should be maintained in the Bank for a minimum period of three months from the date of application or till the date of interview, whichever is earlier. The petitioner has withdrawn the amount from the bank before the completion of three months and the bank balance as on 27.05.2008 was only Rs.1,000/-. In view of the same, the petitioner is not eligible for 18 marks which were given by the L1 committee under the head "Funds"; hence, he is not the first candidate in the merit panel. On this ground, respondents 1 and 2 pray for dismissal of the writ petition. 5. The 3rd respondent, who is also one of the applicants for dealership of Distributorship of Indane Gas at Chetpet Town in Tiruvannamalai District, has filed a counter affidavit. She has stated that respondents 1 and 2 at the time of interview wrongly assessed her eligibility and awarded lower marks and ranked her in the second place. Therefore, she made a representation to respondents 1 and 2 and subsequently, the mistake was rectified and correct marks of 89.33 was awarded to her. However, on further investigation and verification, it was found that contrary to the regulation, the petitioner herein withdrew the deposit amount made in the Bank which is one of the mandatory conditions for applying and selection for dealership of Gas Agency. Since the petitioner herein violated the mandatory requirement, respondents 1 and 2 rightly unsuited the petitioner for the dealership. Therefore, the petitioner has no locus standi to file the present writ petition. 5.1. The 3rd respondent would further state that the 1st respondent herein rejected the application for the dealership of Gas Agency of the petitioner in his office proceedings dated 11.02.2010 by assigning valid reason of violating clause 14.2 of the Regulation contained in the application. However, the petitioner kept quiet till the month of May and filed the above writ petition hurriedly during vacation. The 3rd respondent has also stated that the petitioner herein filed a suit in O.S.No.24 of 2010 through one P.Panneerselvam and one N.Sivakumar on the file of the Vacation Judge, Tiruvannamalai in a representative capacity on behalf of the people of Savarapondi Village against her and her Land Lord for permanent injunction restraining them from constructing a godown for storage of Gas Cylinders in the suit property and since no injunction was granted in I.A.No.107 of 2010, the petitioner has chosen to file the present writ petition to take a chance. https://hcservices.ecourts.gov.in/hcservices/ 5.2. It is also the submission of the third respondent that no question of opportunity will be given to the petitioner when he had admittedly violated the mandatory requirement stipulated in the Regulation prescribed in the application. The petitioner himself in clause 16 of the application has given a declaration. Therefore, the question of violation of principles of natural justice will not arise in the case of the petitioner coupled with the fact that the defect pointed out by the 1st respondent for rejecting his application is on the face of the record produced by the petitioner. The Bank Statement clearly substantiates the defect on the part of the petitioner. 5.3. It is the further case of the 3rd respondent that the Bank transaction and the withdrawal of deposit amount from the petitioner's account itself is a conclusive proof for rejecting the petitioner's application. The document produced by the petitioner violates the mandatory condition prescribed in the application and the declaration given by the petitioner. Therefore, no further opportunity need be given to the petitioner to rectify the mistake and the act of suppression committed by him. 6. Heard Mr.B.Jawahar, learned counsel for the petitioner; Mr.Abdul Saleem, learned counsel appearing for respondents 1 and 2 and Mr.G.Ethirajulu, learned counsel for the 3rd respondent. 7. Learned counsel for the petitioner would contend that the 1st respondent failed to issue show cause notice to the petitioner before issuance of the impugned letter and the same is in violation of the principles of natural justice. He would further contend that the 1st respondent failed to see that the non-fulfillment of requirement will only reduce the marks, even on reduction, the petitioner may have a fair chance to come in the first place, by making a representation. He would submit that the petitioner only transferred the amount from his account to the accounts of his family members, who are also business personalities and that the transfer is only intra-transfer between the family members, not inter-transfer with third parties, hence, it will not amount to withdrawal. 7.1. It is also submitted by the learned counsel for the petitioner that the petitioner had deposited the amount in S.B. Account on 10.03.2008 and transferred it on 27.05.2008 nearly after 78 days; again he had deposited the money in his account on 27.08.2009; on the date of field investigation, i.e. on 10.09.2009, the amount was in the Bank. The cumulative period of deposit goes more than three months; hence the petitioner fulfilled the requirement in column 14.2 of the application and moreover, it does https://hcservices.ecourts.gov.in/hcservices/ not say anything about the continuous period of deposit, hence, there is no violation of requirement stated in clause 14.2 of the application. 8. Per contra, learned counsel for respondents 1 and 2 would submit that as per the instructions to the candidate, the amount mentioned in the application as Item No.14.2 should be retained till the date of interview or three months from the date of application, whichever is earlier. But, the petitioner has withdrawn the amount from the Bank before the completion of three months and the Bank balance as on 27.05.2008 was only Rs.1,000/-. In view of the same, the petitioner is not eligible for 18 marks which are to be given by the L1 Committee under the head "Funds", hence, he is not the first candidate in the merit panel. He would contend that the petitioner is trying to interpret the conditions mentioned in the application according to his requirements and under no circumstances withdrawal of the amount, either its transfer into his family members account or the depositing of the same again, can come to his rescue as admittedly he has violated condition 14.2 of the application. 8.1. Learned counsel for respondents 1 and 2, in support of their case has relied on a decision of this court reported in (2006) 3 MLJ 492 in the case of K.Indira vs. Union of India, Ministry of Petroleum and Natural Gas, New Delhi and others, relevant portion of which is extracted here under: 13. Considering the facts and circumstance of the case, it is not proper for this court to go deep into the records of the Board or Corporation and to examine the validity of the rival claims upon appreciation afresh, of the materials on such record and, on the basis of such reappraisal, to decide whether the selection was properly made or not. In this context, it would be relevant to look into the decision of a Division Bench of the Calcutta High Court in Chinmoy Sarkar vs. Md. Shaniat Hossain AIR 1990 Cal. 412, wherein, in paragraph 4, it was held thus : "4. Now, it must be pointed out at the outset that this court in writ jurisdiction cannot sit in appeal over the selection of a Dealer for a Retail Outlet made by the Board. True, the corporation and the Board are amenable to the writ jurisdiction since they are "State" within the meaning of Article 12 and also "authority" or "person" within the meaning of Article 226, and what is involved in the selection for Retail Dealership of articles of monopoly business carried on by a wholly-owned Government Company. However, the exercise of such jurisdiction and the judicial reviewability of such selection are subject to well-known limitations. https://hcservices.ecourts.gov.in/hcservices/ If the selection is vitiated by a arbitrary or irrational exercise of power or by mala fides or is based on no materials or by ignoring relevant factors including eligibility, the Writ Court would and should, on proof of the relevant facts, grant an appropriate relief. However, it is not for the Writ Court to delve deep into the records of the Board or the corporation and to examine the validity of the rival claims upon appreciation afresh of the 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 of a Writ. It cannot be overlooked in this connection that the Board, which is vested with the function of selection, is an independent entity. It is a high level body consisting of a retired High Court Judge and a retired Civil Servant. Ordinarily, there would be minimal scope for alleging mala fides against such a body although it can conceivably be alleged and proved in a given case that the selection made by it is otherwise vitiated." 14. In this case, the third respondent, after considering the materials on record, personal assessment on merits, business ability, capacity etc., of the applicant has prepared a panel according to their merits, hence, judicial review would be permissible only on the established grounds like mala fide, arbitrariness or unreasonableness. In this case, I do not find any such grounds. In the absence of such grounds and the fact that the Board, which is vested with the functions of selection, is an independent entity consisting of retired Judges and retired Civil Servants possessing necessary expertise and experience to perform their duty properly, there is only minimal scope for alleging mala fide against such a body. As mentioned above, such elements like mala fide, arbitrariness and unreasonableness were not effectively canvassed and proved by the petitioner. In this context, it would be useful to refer the decision of a Division Bench of this court in V.Chandran vs. Oil Selection Board, Tamil Nadu, Pondicherry and Andaman and Nicobar Islands, Madras and others, AIR 1996 Mad. 87, wherein, in paragraph 14, it was held thus : "14. As already seen, the first respondent Board is a high level body consisting of a retired Judge of this court, one retired Deputy Accountant General and former member and acting Chairman of Tamil Nadu Public Service Commission and another https://hcservices.ecourts.gov.in/hcservices/ respectable person. The first respondent, after considering the materials on record and the personal assessment on merits, business ability, capacity etc., of the applicants, has prepared a panel according to their merits and granted the Distributorship to the 4th respondent by the Letter of Indent dated 29.03.1994. The process of appreciating and weighing the various factors, materials and rival merits, is the function of the 1st respondent Board, which is having the necessary expertise and experience to perform its duties properly. In our view, there cannot therefore be any re-appreciation or re-appraisal of 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. " 8.2. An unreported judgment delivered by the First Bench of this court on 03.03.2010 in W.A.No.223 of 2010, wherein it is held as follows : "10. ... It is not a case that there were no applicants. There are applicants who have given all the particulars as per the advertisement. A Public body has to go as per the norms that they had advertised. They cannot digress from that when other people are waiting in the queue with all their papers and applications. Surely a public body cannot depart from what they have advertised. 11. In the circumstances, there was no reason for the learned Judge to review the order that he had passed earlier. The appeal is, therefore, allowed. The order passed in the review application is set aside and the review application stands dismissed. The order passed in the writ petition dismissing it remains as it is. Consequently, the connected miscellaneous petition is closed. There will be no order as to costs." 9. Learned counsel appearing for the 3rd respondent would contend that the Bank Statement and the withdrawal of deposit amount from the petitioner's account itself is a conclusive proof for rejecting the petitioner's application. Therefore, no further opportunity need be given to the petitioner to rectify the mistake and the suppression committed by him. https://hcservices.ecourts.gov.in/hcservices/ 10. I have given careful consideration to the submissions made by the learned counsel on either side and perused the materials available on record. 11. For deciding the writ petition, it is of utmost relevance to refer to Clause 14.2 of the application form. As per the said clause, the amount mentioned in the application form should remain in the bank for a minimum period of three months from the date of application or the interview date whichever is earlier. 12. In this case, the date of application is 10.03.2008 and the date of interview is 28.07.2009. The amount of Rs.20,01,000/- mentioned in the application which was in the petitioner's Bank Account was withdrawn on 27.05.2008, which was within three months from 10.03.2008 i.e., the date of application, which condition was one of the mandatory requirements for applying and selection for dealership of Gas Agency. This fact was known during the investigation upon the verification of Bank Statement of the petitioner. This being a clear case of violation of the conditions of selection for award of distributorship of Indane Gas, the petitioner was rendered ineligible and was not issued with the letter of intent. In view of the said violation of the condition, the petitioner was not issued with Letter of Intent. In addition, the petitioner has also given a declaration in Clause 16 of the application stating that on verification by the Oil Company if it is found that the information given by the petitioner is incorrect/false/misrepresented, then his candidature would stand cancelled and he would be declared ineligible for LPG Distributorship. The petitioner has also admitted in his affidavit that on 27.05.2008, he transferred the amount from his account to the accounts of his family members. In those circumstances, the respondents 1 and 2 have rightly nonsuited the petitioner for dealership. Also, pursuant to the disqualification of the petitioner, the third respondent, who was one of the applicants for dealership of distributorship of Indane Gas at Chetpet Town in Tiruvannamalai and next in merit to the petitioner, was issued with Letter of Intent. 13. A question has been raised by the learned counsel for the petitioner that before issuance of the impugned letter, a show cause notice is required to be issued to the petitioner and in the absence of the same, the impugned letter is in violation of principles of natural justice. 14. In this connection, it is to be stated that the issue in question is governed by Clause 14.2 prescribed in the application form and it is mandatory. The petitioner has also given a declaration in Clause 16 and therefore in case of any violation, it will be governed by the said clause. It is also a settled legal position that principles of natural justice is not a straitjacket https://hcservices.ecourts.gov.in/hcservices/ formula and it is to be seen where it is required to be followed. When it is a matter of the contract or agreement and if it is governed by a particular regulation, then the question of following the principles of natural justice will have to be looked into in the manner as prescribed in the regulations. 15. One more aspect to be seen in this matter is that the petitioner has contended that even assuming that there is a violation of Clause 14.2, only reduction of marks can be given and it will not disentitle the petitioner to be issued with a letter of intent. According to the learned counsel for the petitioner, the petitioner is awarded 90.00 marks whereas the third respondent is awarded 89.33 marks and as the marks awarded to the third respondent are lower to the petitioner the claim of the petitioner cannot be rejected. In this case, the respondents/authorities have reduced 18 marks for not keeping the funds as contemplated under the clause/regulation and even assuming that there may be a variation in reduction of marks for the funds position, it could not be a matter, which can be tilted in favour of the petitioner, because the mark variation between the petitioner and the third respondent is only a fraction. 16. It is well settled by a Division Bench of this Court in The Commissioner, Coimbatore Corporation v. A.Thangavelu and Others, 2005 (1) CTC 481, that the rules of natural justice are not a straitjacket formula and are not inflexible. The Supreme Court, in Haryana Financial Corporation v. Kailash Chandra Ahuja, 2008 (9) SCC 31, has held that it is settled law that principles of natural justice have to be complied with, only