IN THE HIGH COURT OF JUDICATURE AT PATNA LETTERS PATENT APPEAL No.1794 of 2010 In CWJC No. 5795 of 2010 With I.A. No. 9587 of 2010 In LETTERS PATENT APPEAL No.1794 of 2010 =========================================== Brajesh Chandra Mishra - Appellant Versus The Union of India & Ors. - Respondents =========================================== Appearance: For the Appellant : Mr. Vinod Kanth, Sr. Advocate Mr. Satish Chandra Mishra, Advocate Mr. Nurul Hoda, Advocate For the Respondents:Mr. Basant Kr. Choudhary, Advocate Mr. Arvind Kr.-II, Advocate Mr. Kali Das Chatterjee, Advocate For the Union of India: Mr. Ajeet Kumar Shukla, C.G.C. =========================================== CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE JYOTI SARAN ORAL ORDER (Per: HONOURABLE THE CHIEF JUSTICE) 03/ 03.12.2010 With the consent of learned advocates this Appeal is heard and decided today. This Appeal preferred under Clause 10 of the Letters Patent arises from the judgment and order dated 27th September 2010 passed by the learned Single Judge in above C.W.J.C. No. 5795 of 2010. The subject matter of this litigation is the selection of the appellant by Indian Oil Corporation (hereinafter referred to as „the Corporation‟), for L.P.G. distributorship in Gopalganj 2 District. Pursuant to the advertisement published by the Corporation several persons including the writ petitioner and the appellant applied for such distributorship. The appellant was selected and issued a letter of intent. In the select list, the writ petitioner was at Sl. No. 2. Feeling aggrieved by the selection of the appellant, the writ petitioner approached this Court under Article 226 of the Constitution in above C.W.J.C. No. 5795 of 2010. According to the writ petitioner the appellant could not have been selected as he did not have requisite experience of dealing in petroleum products. Nevertheless, the appellant was granted 2.5 marks under the head experience giving him an advantage over the petitioner. Had the appellant been not granted that 2.5 marks for experience, it was the petitioner who would have earned the distributorship. The petitioner also claimed that the appellant being a practicing advocate could not have gained experience in petroleum products as claimed by the appellant. Besides, he could not have applied for distributorship till he was holding a license to practice as an advocate. In support of the petition, the petitioner brought on record certain documents indicating that at the relevant time one Ahmad Ali was the Manager at M/s Gopalganj Petroleum where the appellant claimed to have gained experience as a Manager. Necessarily, the appellant made a false statement that he was a Manager in the M/s Gopalganj Petroleum during the years 2002 to 2005. The certificate issued by the said M/s 3 Gopalganj Petroleum produced on the record of the petition is obviously a false document. The Corporation could not have relied upon such document to hold that the appellant had experience in petroleum products nor could it have granted any mark under the head experience. The petition was contested by the appellant. According to the appellant while he was a practicing advocate he worked at the aforesaid M/s Gopalganj Petroleum as a part time honorary Manager during his spare time and had thus gained enough experience in petroleum products. We are informed that since the receipt of letter of intent from the Corporation the appellant has surrendered his license to practice as an advocate and is concentrating on intended L.P.G. distributorship. The Corporation also has filed counter affidavit and has contested the writ petition. The Corporation denied that the experience certificate produced by the appellant was fake or false. That the marks under the head experience was awarded on the basis of his response at the time of interview. After receiving complaint against the selection of the appellant from one Smt. Sweta Singh, the matter was investigated and after due investigation the experience certificate was found to be genuine. The learned Single Judge has relied upon the judgment of this Court in the matter of Vimal Kumar Jain Vs. Shri Umesh Narain & Ors. [(2004) 2 P.L.J.R. 9] to hold that the 4 appellant could not have applied for L.P.G. distributorship while he was holding a license to practise as an advocate. The learned Single Judge has also examined the evidence on record to hold that the experience certificate produced by the appellant was not genuine and that it could not have been relied upon by the Corporation. The learned Single Judge went in great details why the said experience certificate could not have been a genuine certificate. On the basis of the aforesaid finding the learned Single Judge was pleased to allow the writ petition, and to quash the selection of the appellant. The Corporation is directed to take a fresh decision in the matter in view of the decision of the Court. Therefore, the present Appeal. Learned advocate Mr. Vinod Kanth has appeared for the appellant. He has submitted that the learned Single Judge has erred two fold. He has submitted that the judgment in the matter of Vimal Kumar Jain (supra), nowhere states that before exploring opportunity elsewhere, a lawyer should surrender his license. He admits; “a lawyer cannot be in a business and simultaneously be an advocate.” However, it would be preposterous to say that in anticipation of receiving a distributorship the appellant ought to have surrendered his license before he applied for such distributorship. He has next contended that the learned Single Judge has erred in weighing the evidence to come to the 5 conclusion that the experience certificate produced by the appellant was false. He has submitted that the learned Single Judge could not have exercised the jurisdiction under Article 226 of the Constitution to sit in appeal over the decision of the Corporation. Learned advocate Mr. Chatterjee has appeared for the Corporation. He has supported the Appeal. He has relied upon the selection manual particularly paragraph 14.2 which provides for evaluation based on interview. He has submitted that the evaluation in respect of experience is based not on certificate but the manual provides “….. The quality of experience will be judged based on the response to the questions related to experience in Direct Sale, Home Delivered products, Trade of petroleum products, hospitality/service industry etc. by the candidate in the interview.” He has submitted that the selection is based on the subjective satisfaction arrived at by the interviewing committee. The learned Single Judge could not have sat in appeal over the subjective satisfaction recorded by the interviewing committee. He has further submitted that as per the set procedure the Corporation carries out a field investigation in respect of the selected candidate. It is only after the field investigation the selected candidate is issued the letter of intent. In the present case, the certificates produced by the appellant were found to be genuine including the experience certificate. 6 He has, therefore, been issued the letter of intent. True a lawyer cannot be in a business and simultaneously be an advocate. We do agree with learned counsel Mr. Kanth. An advocate so long as he holds a sanad to practice is not entitled to embark upon any other profession, business or occupation. However, it does not mean that so long as he holds a sanad he cannot explore the opportunities elsewhere. In the present case all that the appellant did was exploration of the opportunity outside the legal profession. Unless he were awarded the L.P.G. distributorship, he did not need to surrender the sanad merely because he intended to accept L.P.G. distributorship. We see no illegality in the appellant‟s making application for L.P.G. distributorship while he was holding a sanad to practise as a lawyer. Until he was awarded the distributorship and he started the business he was not required to surrender the sanad. As to the validity of the experience certificate and the marks given to him under the head experience , we believe that the Corporation had the last word. Unless mala fides were alleged and established or unless there were a glaring/apparent defect in the award of marks, no Court exercising power of judicial review under Article 226 of the Constitution should interfere in the matter. The Court is not supposed to sit in appeal over the decision of the Corporation. It 7 is beyond the jurisdiction of the Court exercising power of judicial review to re-examine materials and to arrive at its own conclusion contrary to the decision of the Corporation. In our opinion, the learned Single Judge ought not to have examined the validity of the experience certificate produced by the appellant to hold it to be a false document after an indepth reasoning process. Once the Corporation had examined the materials, had investigated the genuineness of the experience certificate, had believed the same to be true, the learned Single Judge ought not to have re-examined the materials to hold that the experience certificate was not genuine. We are of the opinion that the challenge to the selection of the appellant is without any merit. We, therefore, allow this Appeal. The impugned judgment and order dated 27th September 2010, passed by the learned Single Judge in C.W.J.C. No. 5795 of 2010 is set aside. C.W.J.C. No. 5795 of 2010 is dismissed. The parties will bear their own cost. S.Sb/- (R.M. Doshit, CJ.) (Jyoti Saran, J.)