IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN MONDAY, THE 19TH SEPTEMBER 2011 / 28TH BHADRA 1933 WP(C).No. 35564 of 2009(M) -------------------------- PETITIONER(S): --------------- VIJAYAKRISHNAN.A., AGED 30, S/O. ARU.V., GURUKRIPA, MANNATUTHARA, THIRUVALATHUR POST, KODUMBA, PALAKKAD-678 555. BY ADV. SRI.DINESH R.SHENOY SRI.G.HARIKRISHNAN (TRIPUNITHURA) RESPONDENT(S): --------------- 1. THE INDIAN OIL CORPORATION LTD., A REGISTERED COMPANY REGISTERED UNDER THE COMPANIES ACT WITH ITS REGD. OFFICE AT G-9, ALI YAVAR JUNK MARG, BANDHRA EAST, MUMBAI-400 051 AND ITS KERALA STATE OFFICE AT IOC LTD. PANAMPILLY AVENUE, PANAMPILLY NAGAR, COCHIN-36, REP ITS GENERAL MANAGER, -DO- -DO- 2. THE DEPUTY GENERAL MANAGER (LPG), IOC LTD., PANAMPILLY NAGAR, COCHIN - 36. 3. SMT. SHEEJA.P., KALARIKKAL HOUSE, KECHARI POST, THRISSUR DISTRICT. BY ADV. SRI.E.K.NANDAKUMAR FOR R1 & R2 BY ADV. SRI.K.S.MADHUSOODANAN FOR R3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16.8.2011, THE COURT ON 19.9.2011 DELIVERED THE FOLLOWING: APPENDIX IN W.P.(C) NO.35564 OF 2009 EXT.P1 TRUE PHOTOCOPY OF THE NOTIFICATION ISSUED BY FIRST RESPONDENT CONTAINING THE TERMS AND CONDITIONS OF LPG DISTRIBUTORSHIP PUBLISHED IN THE HINDU DATED 27.12.2007. EXT.P2 TRUE PHOTOCOPY OF LETTER DTED 24.11.2008 ISSUED TO THE PETITIONER. EXT.P3 TRUE PHOTOCOPY OF THE STATEMENT OF MARKS PUBLISHED BY THE FIRST RESPONDENT DATED 25.9.2009. EXT.P4 TRUE PHOTOCOPY OF THE LETTER DATED 23.11.2009 ISSUED BY THE DEPUTY GENERAL MANAGER AND PUBLIC INFORMATION OFFICER, IOC. EXT.P5 TRUE PHOTOCOPY OF THE LETTER DATED 2.12.2009 ISSUED BY THE DEPUTY GENERAL MANAGER, LPG, IOC LTD. EXT.P6 TRUE PHOTOCOPY OF THE CERTIFICATE ISSUED TO THE PETITIONER IN THE BCDE EXAMINATION. EXT.P7 TRUE PHOTOCOPY OF THE DIPLOMA CERTIFICATE ISSUED TO THE PETITIONER IN INFORMATION TECHNOLOGY. EXT.P8 TRUE PHOTOCOPY OF THE APPLICATION FOR LPG DISTRIBUTORSHIP SUBMITTED BY THE 3RD RESPONDENT. RESPONDENT'S EXTS: EXT.R3(a) PHOTOCOPY OF THE CERTIFICATE BEARING NO.4071/A1/2001/ CADA DATED 30.9.2004. EXT.R3(b) PHOTOCOPY OF THE BROCHURE FOR SELECTION OF H.P. GAS DISTRIBUTORS EFFECTIVE FROM 1.7.2007. EXT.R1(a) TRUE COPY OF THE BROCHURE PUBLISHED BY THE FIRST RESPONDENT COMPANY IN JUNE, 2007 PRESCRIBING NORMS FOR SELECTION OF LPG DISTRIBUTORSHIP. //TRUE COPY// P.A. TO JUDGE. P.N. RAVINDRAN, J. ------------------------------- W.P.(C) No.35564 of 2009 ------------------------------- Dated this the 19th day of September, 2011 J U D G M E N T The selection of the third respondent for appointment as Liquified Petroleum Gas Distributor (hereinafter referred to as 'LPG Distributor' for short) at Kottayi in Palakkad District by the Indian Oil Corporation Ltd. is under challenge in this writ petition. The brief facts of the case are as follows:- 2. By Ext.P1 notice published in the Hindu daily dated 27.12.2007, the Indian Oil Corporation Ltd., the Bharat Petroleum Corporation Ltd., and the Hindustan Petroleum Corporation Ltd., invited applications from eligible persons belonging to various categories for appointment as LPG Distributor at various locations in the State of Kerala including Kottayi in Palakkad District. The distributorship of the Indian Oil Corporation at Kottayi was reserved for persons belonging to the Scheduled Castes. Pursuant to Ext.P1 notification, the petitioner, the third respondent and 13 others submitted applications. They were interviewed on 17.12.2008 and 4.9.2009 and Ext.P3 list of empanelled candidates was published. The third respondent who secured 22.84 marks was ranked first, the petitioner who secured 22.83 marks was ranked second and W.P.(C) No.35564 of 2009 2 Sri.Srinivasan.K. who secured 21.75 marks was ranked third in the order of merit. The petitioner, a graduate who has also passed the B.Ed. degree examination felt aggrieved by the award of the first rank to the third respondent. He raised a complaint before respondents 1 and 2. After examining the said complaint, the second respondent sent Ext.P5 letter dated 2.12.2009 informing him that there is no merit in the challenge to the award of the first rank to the third respondent. The instant writ petition was thereupon filed on 9.12.2009 challenging Exts.P3 and P5 and seeking the following reliefs:- a) A writ of certiorari quashing Exhibit P5 letter dated 2/12/2009 issued by the 2nd respondent and Exhibit P3 mark list published by the first respondent in so far as relates to the mark awarded to the petitioner and the 3rd respondent. b) A writ of mandamus or any other appropriate writ, order or direction directing the 1st respondent to review the ranking given to the petitioner and the 3rd respondent in accordance with the standards prescribed under Exhibit P1 brochure and give the appropriate ranking to W.P.(C) No.35564 of 2009 3 the petitioner to which he is entitled. c) A writ of mandamus or any other appropriate writ, order or direction directing appointment of the petitioner as distributor for LPG at Kottayai Palakkad District under SC category. 3. It is contended that while the petitioner, a graduate with B.Ed. degree qualification was awarded only 11 marks, the third respondent, who has only a B.Tech degree was awarded 15 marks for educational qualifications. Yet another contention raised is that while the petitioner had managerial experience in a business concern which was dealing with coal and liquified petroleum gas and had produced experience certificate in proof of his experience, the third respondent who did not have any such experience was given marks on that count. Yet another contention raised is that the husband of the third respondent is an employee of the the Bharat Petroleum Corporation Ltd. and that the third respondent has been preferred on account of the undue influence exerted by her husband. On these grounds, it is contended that the selection of the third respondent overlooking the superior claim of the petitioner is arbitrary and illegal. 4. The first respondent has filed a counter affidavit dated W.P.(C) No.35564 of 2009 4 4.8.2011. Relying on Ext.R1(a) brochure, it is contended that marks for educational qualification were awarded based on the information furnished by the applicants in the application, that graduates are entitled to 10 marks and an additional one mark, it they possess any additional degree or diploma and that irrespective of the number of additional degrees/diplomas, an applicant is entitled only to one mark over and above the marks awarded for the basic qualification. It is also contended that the petitioner who is a graduate with the B.Ed. degree was awarded 11 marks while the third respondent, an engineering graduate was awarded 15 marks as per the stipulations in the guidelines. Regarding the award of marks for experience, it is stated that the third respondent was awarded only one mark having regard to the training experience that she had in Command Area Development Authority, Thrissur, while the petitioner was awarded 4 marks. It is contended that the petitioner who was awarded marks in terms of the guidelines and whose total score is only 22.83 marks as against 22.84 marks awarded to the third respondent cannot therefore have any reason to be aggrieved. 5. The third respondent has filed a counter affidavit dated W.P.(C) No.35564 of 2009 5 4.3.2011 reiterating the contentions raised in the counter affidavit filed by the first respondent. The third respondent has stated that the difference of 0.01 mark between the marks awarded to the petitioner and the third respondent is on account of the higher educational qualification which the third respondent possesses and that marks have been awarded strictly in accordance with Ext.R1(a) brochure having regard to the qualifications and experience which the candidates possess. The third respondent has also denied the allegation that she was peferred for the reason that her husband is an employee of the Bharat Petroleum Corporation Ltd. The third respondent has also stated, with reference to the contention raised by the petitioner in ground 5 of the writ petition that the third respondent was not entitled to be awarded any mark for experience, that she was rightly awarded one mark for experience “in any other trade”. 6. The petitioner has filed a reply affidavit dated 18.7.2011 wherein relying on Ext.P8, the application submitted by the third respondent for appointment as LPG Distributor, it is contended that she has not claimed any experience in the application and therefore the award of one mark under the head “experience” is W.P.(C) No.35564 of 2009 6 arbitrary and illegal. The petitioner contends that if the mark awarded to the third respondent under the head “experience” is excluded from consideration, the petitioner will become the first rank holder eligible for appointment as LPG Distributor. 7. I heard Sri.Dinesh R.Shenoy, learned counsel appearing for the petitioner, Sri.E.K.Nandakumar, learned standing counsel appearing for respondents 1 and 2 and Sri.K.S.Madhusoodanan, learned counsel appearing for the third respondent. The learned counsel for the petitioner contended that even assuming that being a B.Tech degree holder, the third respondent was awarded 15 marks for educational qualification as against 11 marks awarded to the petitioner, the award of one mark to the third respondent under the head “experience” was uncalled for, having regard to the fact that the third respondent did not claim any such experience in the application form and admittedly had no experience in the direct sale of home delivered products including LPG or any other petroleum product or in any other trade. Per contra, the learned counsel appearing for the respondents contended that the third respondent had experience as a trainee in the Command Area Development Authority, Thirussur, after W.P.(C) No.35564 of 2009 7 undergoing the B.Tech degree course which makes her eligible for the award of one mark under the head “experience” and that only one mark was awarded to the third respondent as against the permissible maximum of two marks, and therefore, it cannot be contended that the award of marks to the third respondent under the head “experience” is uncalled for. 8. I have considered the submissions made at the Bar by the learned counsel on either side. The marks awarded to the candidates ranked first, second and third are as follows:- Sl.N o Name of Candidate Educati onal Qualific ation Age Experie nce Business Ability/ Accumen Pers onal ity Total 5 SHEEJA.P (Third respondent) 15 4 1 1.67 1.17 22.84 6 VIJAYAKRISHNAN.A (Petitioner) 11 4 3.5 3 1.33 22.83 7 SRINIVASAN.K 10 4 2 3.75 2 21.75 The third respondent did not admittedly claim any experience in coloumn 12 of the application which she had left blank. She had also not claimed in the application form that she has experience in the direct sale of home delivered products (including LPG distributorship) or any other petroleum product or in any other trade. In the note W.P.(C) No.35564 of 2009 8 below coloumn 12 of Ext.P8 application, it is stipulated that marks will be awarded based on the information given in the application and on answers to leading questions in connection with experience claimed during interview. It is also stipulated that if on verification, it is found that the information given is incorrect/false/misrepresented, then the applicant's candidature will stand cancelled. It is not in dispute that the third respondent had left coloumn 12 of the application blank and had no experience in direct sale of home delivered products (including LPG distributorship), or other petroleum products or in any other trade. However, relying on the stipulations in the guidelines produced as Ext.R1(a), it is contended that evaluation of experience will be done based on the interview and that experience in direct sale of home delivered products, trade of petroleum products, hospitality/service industry etc. will be considered as experience for award of marks. In Ext.P1, the notification inviting applications, it is stipulated as follows:- “11. Selection Process and Evaluation criteria The LPG distributor will be selected on the basis of evaluation of all eligible applicants on the following parameters. Parameter Maximum Marks a. Capability to provide infrastructure 35 marks W.P.(C) No.35564 of 2009 9 Parameter Maximum Marks b. Capability to provide finance 35 marks c. Educational Qualifications 15 marks d. Age 4 marks f. Experience 4 marks g. Business ability/acumen 5 marks h. Personality 2 marks Total marks 100 marks. The evaluation on the parameters a to d are based on documents produced and will be done on the basis of information given in the application. The evaluation on the parameters f to h will be done based on the interview. On verification if it is found that the information given in application is incorrect/false/misrepresented then the applicants candidature will stand cancelled and will not be eligible for distributorship.” Paragraph 14 of Ext.R1(a) brochure reads as follows:- 14. NORMS FOR EVALUATING THE CANDIDATES The LPG distributor will be selected on the basis of evaluation of all eligible applicants on the following parameters. a. Capability to provide infrastructure 35 marks b. Capability to provide finance 35 marks c. Educational Qualifications 15 marks d. Age 4 marks e. Experience 4 marks f. Business ability/acumen 5 marks g. Personality 2 marks Total marks 100 marks W.P.(C) No.35564 of 2009 10 Paragraph 14.2 of Ext.R1(a) brochure in so far as it is relevant reads as follows:- 14.2. Evaluation based on Interview. Parameter Sub Head Description Max Marks Evaluation Experience Direct Sale /Home Delivered products (including LPG distributorship) or Other Petroleum Products or Any other Trade Sub Total maximum marks 4 3 2 4 Marks to be awarded based on information in the application for experience of running or working in an establishment for minimum one year. Marks will be awarded on the quality rather than amount of experience. The quality of experience will be judged based on the response to the questions related to experience in Direct Sale, Home Delivered products, Trade or petroleum products, hospitality/service industry etc. by the candidates in the interview. It is relying on the stipulations in paragraph 11 of Ext.P1 notification inviting applications and paragraph 14 and 14.2 of Ext.R1(a) brochure that the learned counsel for the respondents contended that even if W.P.(C) No.35564 of 2009 11 experience was not claimed in the application, marks can be awarded for experience after interview, if it is found that the applicant possessed experience in the direct sale of home delivered products including LPG distributorship, trade of other petroleum products, hospitality/service industry etc. 9. It is not in dispute that the petitioner who possesses experience in LPG sector itself was awarded 4 marks, the maximum permissible marks for experience. The third respondent admittedly does not possess experience in the sale of home delivered products including LPG distributorship or in any other petroleum product or in the hospitality or service industry. However, the award of one mark to her under the head “experience” is justified on the ground that she had undergone Graduate Apprenticeship Training as per the Apprentices Act, 1961 from 1.9.2003 to 31.8.2004 in Command Area Development Authority, Thrissur and therefore, the said training can be equated with experience in any other trade. 10. The Command Area Development Authority is an authority constituted under the Kerala Command Areas Development Act, 1986. The said Act was enacted in implementation of a W.P.(C) No.35564 of 2009 12 programme aimed at reducing the gap between the irrigation potential created and utilised through efficient water management to maximize production by optimising the use of water and land. Paragraphs 1 and 2 of the Statement of Objects and Reasons of the Kerala Command Areas Development Act, 1986 reads as follows:- “Command Areas Development Programme aims at reducing the gap between the irrigation potential created and utilised, through efficient water management to maximize production by optimising the use of water and land. The programme envisaged all round development of the ayacut of irrigation projects, the objectives of which include modernisation, maintenance and efficient operation of irrigation system upto the out let of one cusec capacity of field channels and field drainage within the command of each out-let, development and maintenance of main and intermediate drainage system, land leveling and land shaping, lining of field channels and water courses, development of ground water for conjunctive use, selection and introduction of suitable cropping pattern, enforcement of proper system of warbandi and equitable distribution of water to individual fields, supply of inputs like seeds, fertilisers and pesticides and services including credit, preparation of individual farm plans, diversification of agriculture and soil conservation and afforestation wherever necessary. 2. The implementation of the programme involves topographical and soil surveys including aerial surveys, designing and supervision of on-farm development works, formulation and enforcement of turn scheduling of water and training of farmers. In order to ensure the smooth execution of the scheme the Authority requires statutory powers. Therefore, it is necessary to enact necessary law W.P.(C) No.35564 of 2009 13 for the purpose.” 11. Section 10 of the Kerala Command Areas Development Act, 1986 sets out the functions of the Command Area Development Authority. They include ensuring supplies of all inputs and services and arranging for credit facilities to farmers and artisans. It is relying on the services which are to be rendered by the Command Area Development Authority that the learned counsel for the respondents contended that the third respondent has experience in a service industry and therefore she was awarded one mark under the head “experience”. Ext.R3(a), the experience certificate produced by the third respondent at the time of interview discloses that the third respondent had undergone one year Graduate Apprenticeship Training as per the Apprentices Act, 1961 in Command Area Development Authority Project Headquarters, Thrissur. The details of the training undergone by the third respondent have not been set out either in the certificate or in the counter affidavit. The term 'graduate or technician apprentice' has been defined in section 2(j) of the Apprentices Act, 1961 to mean an apprentice who holds, or is undergoing training in order that he may hold a degree or diploma in engineering or W.P.(C) No.35564 of 2009 14 technology or equivalent qualification granted by any institution recognised by the Government and undergoes apprenticeship training in any such subject field in engineering or technology as may be prescribed. The term 'trade apprentice' has been defined in section 2 (q) of the Apprentices Act, 1961 to mean an apprentice who undergoes apprenticeship training in any such trade or occupation as may be prescribed. It is evident from Ext.R3(a) certificate that the training undergone by the third respondent as a Graduate Apprentice was either for the purpose of obtaining the B.Tech degree or after acquiring the B.Tech degree. On the terms of the definition, a graduate apprentice can undergo the training only in engineering or technology and not in any trade or occupation. The third respondent has no case that he had experience as a trade apprentice. As the term 'trade apprentice' has been separately defined, a graduate apprentice who has undergone graduate apprenticeship training in a subject field in engineering or technology cannot be said to have undergone apprentice training in any trade or occupation. Two among the subject fields in engineering or technology specified by the Central Government as designated trades for graduate apprentices and W.P.(C) No.35564 of 2009 15 technician apprentices are Water Management and Water Resource Engineering. Having regard to the objects for which the Command Area Development Authority has been constituted, the apprenticeship training undergone by the third respondent in that authority can only be in Water Management or Water Resource Engineering. Therefore, by no stretch of imagination can it be said that the experience which the third respondent had as an apprentice was in the direct sale of home delivered products (including LPG distributorship) or other petroleum products or in any other trade. From the materials on record and the provisions contained in Kerala Command Areas Development Act, 1986, it cannot be said that the third respondent had experience in the direct sale of home delivered products including Liquified Petroleum Gas or in any other petroleum product or in the hospitality or service industry or in any other trade. As a matter of fact, she had not claimed any such experience in the application also. In the note below coloumn 12 of the application form and in paragraph 14.2 extracted above, it is stipulated that marks will be awarded based on the information given in the application and on answers to leading questions in connection with experience claimed during W.P.(C) No.35564 of 2009 16 interview. As the third respondent had not claimed any type of experience in any field, I am of the opinion that the award of marks to the third respondent under the head “experience” cannot be sustained. Though going by the terms of the notification, the application form and the brochure, the evaluation of experience is to be done at the time of interview, such evaluation can be only with reference to the experience claimed by the applicant in the application. The third respondent had not in her application claimed any experience in direct sale of home products including Liquifiled Petroleum Gas or other petroleum products or in the hospitality/service industry or in any other trade. That apart, there was no material at all before the interview board to evaluate the experience the petitioner had acquired as a graduate apprentice in the Command Area Development Authority. The Command Area Development Authority is not engaged in the hospitality or service industry or in any other trade. It was formed to ensure efficient water management for the purpose of maximising agricultural production. That apart, the third respondent had claimed apprenticeship training as an additional qualification in coloumn 9 of her application (Ext.P8). W.P.(C) No.35564 of 2009 17 The respondents have no case that apprenticeship training can be treated as an additional qualification. As the third respondent does not possess any other degree or diploma in addition to the B.Tech degree which she possesses, on the terms of Ext.R1(a) brochure, she cannot be awarded one additional mark for having undergone one year apprenticeship training in Command Area Development Authority. Such being the situation, I am pursuaded to hold that the award of one mark to the third respondent under the head “experience” was arbitrary and illegal. 12. The petitioner has in paragraph 6 of the writ petition and in ground 5 of the writ petition stated in positive terms that third respondent had no experience of the nature referred to in the notification and one mark was freely given to her. The petitioner has also alleged that if that mark is excluded from consideration, he will stand first in the empanelled list of candidates under the Scheduled Castes category for appointment as LPG Distributor. That contention is not denied or disputed by the respondents. The third respondent has no experience in the related field or in any other trade or service industry and has also not produced any experience certificate in W.P.(C) No.35564 of 2009 18 support of the contention now put forward that she had one year experience in a service industry or in any trade. I am therefore of the opinion that the petitioner is entitled to succeed. I accordingly allow the writ petition, quash Ext.P3 list to the extent it awards one mark under the head “experience” to the third respondent. Respondents 1 and 2 shall recast Ext.P3 list of empanelled candidates after deleting the marks awarded to the third respondent under the head “experience” and finalise the steps for appointment of an LPG Distributor at Kottayi in Palakkad District under the Scheduled Castes category, within three months from the date of receipt of a certified copy of this judgment. P.N. RAVINDRAN, JUDGE. nj. P.N.RAVINDRAN, J. -------------------------------------- W.P.(C) No.35564 of 2009 JUDGMENT Dated:- 19th September, 2011 --------------------------------------