IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON WEDNESDAY, THE 7TH SEPTEMBER 2011 / 16TH BHADRA 1933 WP(C).No. 7494 of 2010(J) ------------------------- PETITIONER: --------------- SAHIRA BASHEER, W/O.K.M.ABDUL BASHEER, "BAITHUL AYSHA", OPP: TAGORE COLLEGE, VIDYA NAGAR, KASARAGOD - 671 123. BY ADV. SRI.DEVAN RAMACHANDRAN SRI.S.MOHAMMED AL RAFI RESPONDENTS: --------------- 1. THE INDIAN OIL CORPORATION LTD., REPRESENTED BY ITS GENERAL MANAGER, PANAMPILLY AVENUE, PANAMPILLY NAGAR P.O., KOCHI - 682 036. 2. THE CHIEF AREA MANAGER, INDIAN OIL CORPORATION LTD., PANAMPILLY AVENUE, PANAMPILLY NAGAR P.O., KOCHI - 682 036. 3. DEPUTY GENERAL MANAGER, INDIAN OIL CORPORATION LTD., PANAMPILLY AVENUE, PANAMPILLY NAGAR P.O., KOCHI - 682 036. ADV. SRI.E.K.NANDAKUMAR SRI.A.K.JAYASANKAR NAMBIAR SRI.K.JOHN MATHAI SRI.P.BENNY THOMAS SRI.P.GOPINATH THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07/09/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) No.7494 OF 2010 APPENDIX PETITIONER'S EXHIBITS EXT.P1 : TRUE COPY OF THE NEWSPAPER ADVERTISEMENT DATED 27.12.2007 EXT.P2 : TRUE COPY OF THE APPLICATION DATED 22/01/2008 SUBMITTED BY THE PETITIONER. EXT.P3 : TRUE COPY OF THE COMPLAINT SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT. EXT.P4 : TRUE COPY OF THE JUDGMENT DATED 09.01.2009 IN W.P.(C) 729/09 PASSED BY THE HON'BLE COURT. EXT.P5 : TRUE COPY OF THE ORDER ISSUED BY THE 2ND RESPONDENT. EXT.P6 : TRUE COPY OF THE JUDGMENT DATED 31.07.2009 IN W.P.(C) NO. 6947/2009 AND 11599/09 PASSED BY THIS HON'BLE COURT. N EXT.P7 : TRUE COPY OF THE ORDER NO.CAO/G/04 DATED 08.10.2009 BY THE 2ND RESPONDENT, DISQUALIFIED 1ST RANK HOLDER SINDHU JOSEPH. EXT.P8 : TRUE COPY OF THE ORDER NO. KESO/LPG/57 DATED 22.02.2010 ISSUED BY 3RD RESPONDENT. EXT.P9 : TRUE COPY OF THE STATEMENT OF PETITIONER'S BANK ACCOUNT. EXT.P10 : TRUE COPY OF THE GUIDELINE ISSUED BY THE 1ST RESPONDENT. EXT.P11 : TRUE COPY OF THE NOTICE FOR APPOINTMENT OF LPG DISTRIBUTORS PUBLISHED ON 30.07.2011 IN THE HINDU DAILY. /TRUE COPY/ P.S. TO JUDGE. P.R. RAMACHANDRA MENON, J. .............................................................................. W.P.(C) No. 7494 OF 2010 ......................................................................... Dated this the 7th September , 2011 J U D G M E N T Disqualification of the petitioner in the selection for LPG distributorship under the 'open' (women) category in Kasaragod district, with reference to Ext. P1 Notification and Ext.P2 application, for not maintaining the amounts in deposit in the Bank for a minimum period of three months, so as to assess the financial capability of the candidate concerned as stipulated in Clause 14 (particularly clause 14.2) is the issue involved. 2. The first respondent 'Company' issued Ext.P1 notification dated 27.12.2007 inviting applications for LPG Distributorship under the particular category for the area as aforesaid. In response to the said advertisement, the petitioner submitted Ext. P2 application. After considering the credentials of the W.P.(C) No. 7494 OF 2010 2 applicants, the respondent Company prepared a list of empanelled candidates wherein the petitioner was ranked as No.2, while rank No.1 was assigned to one Sindhu Joseph. 3. The placement given by the respondent Company was stated as wrong, in so far as the candidate who was enlisted as rank No.1, according to the petitioner, was not at all eligible for the distributorship; as the godown and showroom shown by her was outside the limits of Kasaragod town. As this was contrary to the norms framed by the first respondent, the petitioner preferred Ext. P3 complaint dated 23.12.2008, invoking the remedy under the Grievance/Complaint Redressal System formulated by the Company. Since nothing transpired in the positive, the petitioner approached this Court by filing W.P.(C) 729 of 2009, which was disposed of as per Ext.P4 judgment dated 09.01.2009 directing the first respondent to consider Ext.P3 and pass appropriate orders, after hearing the parties concerned. 4. Though a personal hearing was held pursuant to Ext. P4 on 20.02.2009, Ext. P5 order dated 24.02.2009 happened to W.P.(C) No. 7494 OF 2010 3 be passed reiterating the stand, which according to the petitioner, was a non- speaking order and hence put to challenge again by filing W.P.(C)6947 of 2009. While so, the first rank holder by name Sindhu Joseph, approached this Court by filing W.P.(C) 11599/09 for giving effect to the selection and to direct the respondent Company to award the distributorship to her. This matter was considered along with W.P.(C) 6947 of 2009 filed by the petitioner and both the writ petitions were disposed of , as per Ext.P6 judgment dated 31.07.2009, whereby Ext. P5 order passed by the respondent Company was set aside and the second respondent was directed to consider the matter afresh, after hearing the petitioners in both the cases. 5. Pursuant to Ext.P6 verdict, the parties were heard and on satisfying the actual facts and figures, the respondent Company found that the first rank holder by name Sindhu Joseph was not liable to be enlisted and accordingly, she was disqualified as per Ext.P7 order dated 08.10.2009. It was thereafter, that the respondent Company conducted 'field investigation' of the showroom and godown proposed by the W.P.(C) No. 7494 OF 2010 4 petitioner. But after field verification, the petitioner was served with Ext. P8 order dated 22.02.2010 observing that there was clear violation of Clause 14.2 of Ext.P1 Notification, as the petitioner had not maintained the deposit in her bank account for a minimum period of 'three months', as stipulated and hence was disqualified, which in turn is under challenge in this writ petition. 6. A detailed counter affidavit has been filed from the part of the respondents pointing out that the averments and allegations raised by the petitioner are not correct or sustainable under any circumstance. It is stated that disqualification of the writ petitioner was strictly in terms of the relevant clause contained in the Notification and the norms formulated and published vide Ext.P10 Brochure (though the same is not stated as complete, last page being missing). It is stated that the marks were awarded to the petitioner based on the contents as given in Ext.P2 application form, particularly with regard to the amount in deposit, awarding 0.1 mark for every unit of Rs.10000/- as stipulated in the norms and it was only after the W.P.(C) No. 7494 OF 2010 5 'field verification' that the actual position was brought to light. It was thus revealed that the petitioner, contrary to the stipulation under Clause 14.2 had not maintained the bank account for a minimum period of 'three months', she having withdrawn substantial amount from the account in the meanwhile, thus resulting in rejection of the candidature. 7. Mr. Devan Ramachandran, the learned counsel for the petitioner with all his vehemence sought to assail the action of the respondents. It was asserted that the petitioner had deposited more than Rs.19 lakhs in three accounts, particulars of which have been given in page 5 of Ext. P2 application preferred by her on 22.01.2008. It is stated that, though a sum of Rs.10 lakhs had been withdrawn from her account on 12.03.2008, the same was redeposited within 48 hours on 14.03.2008 and that the said amount was there in the deposit for more than three months. The learned Counsel submitted that infringement of Clause 14.2, if any, cannot attract disqualification, which, on the other hand can only be in respect of any fraud or misrepresentation with regard to the facts given in the W.P.(C) No. 7494 OF 2010 6 application, which is not the position in the instant case. The second contention is that the amount was in deposit under three different accounts, the first one in the name of the petitioner and the other two accounts, in the name of her husband. The amount withdrawn on 12.03.2008 was only from her personal account, however leaving more than Rs.Two lakhs as still the balance available in the said account, while the amounts in deposit in her husband's account were left intact. As such, the respondent Company ought to have awarded marks in respect of the actual amount available in deposit, at the rate as stipulated by the norms, instead of rejecting the candidature of the petitioner in toto after disqualifying her, which is stated as a venomous exercise. The third and final submission made by the learned Counsel is that Clause 14.2. of Ext. P1 norms stipulating the necessity to maintain the amount in deposit for a minimum period of 'three months', does not say that the same should be continuous. The amount was withdrawn by the petitioner only for a period of 'two days' and even after replenishment on 14.03.2008, it remained intact thereafter and thus remaining for W.P.(C) No. 7494 OF 2010 7 more than three months from the date of the application, which certifies the financial credibility of the appellant. It is stated that the purpose behind Clause 14 is only to assess the 'financial capability' of the candidate concerned and as such, the respondents ought to have made an objective assessment in this regard where they have gone wrong. 8. Mr. Paulose C. Abraham, the learned counsel appearing for the respondents submits that the contentions raised by the petitioner are rather puerile, when there is no dispute with regard to the withdrawal of substantial amount in deposit, after submitting the application. The learned Counsel submits that the marks were to be awarded on the basis of the contents of the application taking the same on the face value, which was the basis for the selection and empanelment. Field verification was only a subsequent process to confirm the actual traits before awarding the dealership/distributorship. By virtue of Clause 15 and 16 of Ext.P10 Brochure, it was for the candidate to have ensured that all the '11' conditions as stipulated were fulfilled and if there was any lapse or violation in any manner, the candidate W.P.(C) No. 7494 OF 2010 8 was liable to be disqualified; more so in view of Clause 19(g) of Ext.P1 Notification. The learned Counsel also submits that a similar issue has already been considered by this Court on more than one occasion and interference has been declined, as per the judgments in W.P.(C)Nos. 37706 of 2009, 33209 of 2009 and 27099 of 2009 . 9. The merit of the contentions has to be examined in the above background, particularly with regard to the relevant clauses of Ext. P1 Notification/Ext.P2 application and General conditions as contained in Ext.P10 Brochure. Ext.P1 Notification itself says that 'detailed guidelines', including detailed criteria for evaluation as given in the Brochure, can be collected in the manner as specified therein and that, it is also available in the relevant website. Paragraph 19(g) says that, if any statement made in the application or in the documents enclosed therewith or subsequently submitted in pursuance of the application by the candidate at any stage, is found to be incorrect or false, the application is liable to be rejected, without assigning any reason and in case the applicant has been appointed as a distributor, W.P.(C) No. 7494 OF 2010 9 the distributorship is liable to be terminated in such cases. The candidate/distributor shall have no claim whatsoever against the respective Oil Company. Ext.P10 is admittedly the Brochure/ 'detailed guidelines' issued by the Company. Since the last page is stated as missing, a full text is made available by the respondent Company. 10. The dispute centers around, with reference to Clause 14 (14.1 and 14.2) which refers to the “Capability to arrange Finance”. The said clauses are extracted below: “ 14.Capability to Arrange Finance Please note that marks will be awarded to applicant on capability to arrange finance based on the information given by the applicant on the Gross Annual Income, Amount in Savings Bank Account, Value of investments in FD/Shares/MF etc. value of assets and ability to get loan from Banks/Financial Institution. On verification if it is found that the information given by the applicant is incorrect/false/misrepresented then the applicant's candidature will stand cancelled and will be ineligible for this LPG distributorship. 14.1. Gross Annual Income of Last Financial Year. Rs............ W.P.(C) No. 7494 OF 2010 10 Amount in words................... Income pertaining to last Financial Year. Attach notorized affidavit as per Annexure B. 14.2 Amount in the Bank ( In case of married applicant family is-self, spouse unmarried son(s)/ daughter(s); in case of unmarried applicant family is-self, parents and unmarried brother(s)/ unmarried sister(s). Attach affidavit as per format given in Annexure-C. The amount mentioned should remain in the bank for minimum period of three months from the date of application or the interview date which ever is earlier. Sl. No Name of Bank SB A/C No. Name of Account Holder Relation with applicant Amount as on date of advertisement Mention above details for the number of Accounts held Total Rs.(in figures and words) of Amount as on date of application. The requirement in this regard is incorporated under Clause 14 of Ext.P2 application as well, specifically insisting that the 'amount in deposit' should remain in the Bank for a minimum period of 'three months' from the date of application or till the date of interview, whichever is earlier. 11. The factual position as to withdrawal of a sum of Rs. 10 W.P.(C) No. 7494 OF 2010 11 lakhs from the 'amount in deposit' maintained by the petitioner on 12.03.2008, i.e. within three months from the date of submitting Ext.P2 application dated 21.01.2008, is not in dispute. The challenge is more in respect of the consequences to follow, more so, when the said amount withdrawn on 12.03.2008 is stated as re-deposited on 14.03.2008. True, the object of 'Clause 14' stipulating to have the amount in deposit maintained in the bank account for a minimum period of three months or till the date of interview, whichever is earlier, is to assess the 'financial capability' of the applicant. Based on the capacity to effect the deposit and to maintain the same as aforesaid, evaluation has to be made as given in paragraph 14 of Ext. P10 Brochure specifying the allocation of marks. As per the said provision, 0.1 mark has to be awarded for every unit of Rs.10000/- in deposit and the maximum marks allocable are limited to '18.' The petitioner projected her candidature with reference to the higher financial capability, having effected a deposit of Rs.19 lakhs in the account, the particulars of which have been given under Clause 14.2 of Ext. P2 application. It was W.P.(C) No. 7494 OF 2010 12 accordingly that, the same was considered by the respondent Company who awarded the maximum marks of '18' in respect of the amount in deposit to the tune of Rs. 19 lakhs. Later, the credentials of the petitioner necessitated to be verified by conducting a 'field verification' on disqualification of the first rank holder by name Sindhu Joseph( pursuant to Ext.P6 judgment of this Court dated 31.07.2009 followed by Ext. P7 order dated 08.10.2009). It was in the course of such exercise, that the correct factual position came to be noted by the respondent Company that after submitting Ext. P2 application dated 22.01.2008, the petitioner had withdrawn a substantial amount of Rs.10 lakhs on 12.03.2008, though the same was subsequently re-deposited on 14.03.2008. The petitioner was found as not eligible to have the undue benefit extended to her, in having allotted '18' marks in respect of the 'financial capability', which resulted in disqualification of the candidate as per Ext.P8. 12. Coming to the question whether the respondent Company was bound to have allotted marks as provided under W.P.(C) No. 7494 OF 2010 13 Clause 14.1 allocation specified in Ext.P10 Brochure in respect of the available amount in deposit (minusing the amount withdrawn by the petitioner on 12.03.2008 ), it is to be noted that no such stipulation is specified anywhere in the norms for selection. The relevant clause specified that the financial capability will be based on the deposit in the Bank (or with reference to such other credentials, as specified, which however are not applicable in the instant case as the specific case of the petitioner stands confined to financial capability to be assessed with reference to the amount in deposit). Ext.P2 application contains a 'declaration' under Clause 16 in the following terms : “16. Declaration by the Applicant. I am aware that inter se suitability of candidates will be decided by evaluation of candidates on the document based marks and interaction (interview). Evaluation on document based marks will be done based on the information given by me/us in this application. On verification by the Oil Company, if it is found that the information given by me/us is W.P.(C) No. 7494 OF 2010 14 incorrect/false/ misrepresented then my/our candidature will stand cancelled and I/we will be declared ineligible for LPG distributorship. I also confirm that I am in possession of the supporting documents in original for the information given by me in this application and if selected failure to present these documents in original will result in cancellation of selection due to submission of false/unsupported information in documents. I am fully aware that if I am unable to make Godown duly approved by the Chief Controller of Explosives on the land/godown indicated in the application and or Showroom as per the oil company's standard layout on the land/shop indicated in the application herein above after selection then the allotment of distributorship made to me will automatically stand cancelled. I am fully aware that I will not be appointed as LPG distributor if I am employed . I shall have to resign from the service and produce proof of acceptance of my resignation from my employer before issuance of Letter of Appointment. That, if selected, I undertake that I will be depositing an Interest free Security W.P.(C) No. 7494 OF 2010 15 deposit as per the policy of the Corporation. (Not applicable for distributorships reserved for SC/ST category) I have read the condition for distributorship mentioned in the advertisement and confirm that I fulfil the eligibility criteria for the LPG distributorship I have applied in this application.” Ext.P2 application is dated 22.01.2008 and by virtue of the relevant clause, particularly Clause 14.2 of Ext. P1 notification ( as reproduced in Ext. P2 application as well), the deposit had to be maintained for a minimum period of three months, the necessity of which was well known to the petitioner, who has given the declaration, as aforesaid. After subscribing the signature to such declaration and after making the respondent Company believed that the amount will be in deposit for a minimum of period of three months or till the date of interview, it was not open to her to have had a 'U' turn and withdraw any portion of the amount from the said account that too, without the consent, concurrence or information given to the Company, who awarded the full '18' marks, taking the quantum of deposit on W.P.(C) No. 7494 OF 2010 16 its face value. 13. It is pertinent to note that the norms/rules for selection and procedure are not under challenge. It is stipulated in Clause 14 that the marks will be awarded to the applicant on the capability to arrange finance based on the information given by the applicant on the gross annual income, amount in the Savings Bank Account, value of investments in FD/Shares etc., and that on verification , if it was found that the information given by the applicant is incorrect or false or misrepresented, then the applicant's candidature will stand cancelled and will be ineligible for the LPG distributorship. It was with full sense of understanding of the contents of the relevant clauses as contained in the notification and also as specifically extracted in Ext. P2 application, that the 'declaration' given under paragraph 16 of Ext.P2 application was signed and the undertaking was given thereunder, on 22.01.2008, projecting the candidature of the petitioner. Since the petitioner admits withdrawal of Rs.10 lakhs from the deposit on 12.03.2008, the subsequent replenishment of the account on 14.03.2008 does not come to W.P.(C) No. 7494 OF 2010 17 the rescue of the petitioner, with regard to the necessity to satisfy the requirement under the relevant clause. 14. The manner in which the financial capability of the candidate has to be assessed is a matter which comes within the exclusive authority and competence of respondents. When the respondent Company insisted that the amount was to be in deposit for a minimum period of three months, it has to be read and understood as for a minimum continuous period of three months and nothing else. The concept of occasional withdrawals and subsequent redeposits in any manner, whether pursued on daily, weekly, fortnightly or monthly basis, is totally alien to the scheme of the relevant clause. When the Company insists to have the deposit intact for three months and wants to test the credentials of the candidate as to the financial capability, the said amount ought to have been kept intact for the full three months or till the date of interview, whichever is earlier. In other words, the Company was testing the capability of the candidate as to whether he/she can survive without touching the amount in deposit for three months. The conduct of the petitioner stands W.P.(C) No. 7494 OF 2010 18 revealed, when she could not resist the call to have withdrawn a substantial portion of the amount in deposit, (Rs.10 lakhs withdrawn on 12.03.2008) within the 'moratorium period'. Going by the purpose of the stipulation and the specific terms, it has to be held that there was a “deemed undertaking” on the part of the petitioner to have had kept the amount in deposit untouched for a minimum period of three months or till the date of interview (based on which, the full marks of '18' were awarded to the petitioner); which however was violated and the candidature of the petitioner necessitated to be cancelled, in view of her own conduct. 15. It is also brought to the notice of this Court that rejection of the candidature of the petitioner is not because of any fraud and that there is no such case for the respondents. It was for the inference arrived at pursuant to the 'field verification', that the declaration and undertaking given in Ext. P2 application dated 22.01.2008 with regard to the onus of maintaining the amount in the fixed deposit for a minimum period of three months stood violated, for having withdrawn a portion of the W.P.(C) No. 7494 OF 2010 19 amount in deposit; thus foreclosing the right of the petitioner to be considered in the process of selection. It is also pointed out that, this however will not prevent the petitioner from contesting for awarding the distributorship in any subsequent process of selection, subject to the satisfaction of the requirements notified, particularly vide Ext.P11 produced along with I.A.No. 13443 of 2011; particularly not being a case of 'black-listing'. 16. This Court had occasion to consider the issue with regard to granting of LPG distributorship with reference to violation of Clause 14.2 and Clause 19(g) of Ext. P1 Notification, when a similar claim, as put forth by the petitioner in W.P.(C) 37706 of 2009 was turned down declining interference and the writ petition was dismissed as per the judgment dated 12.01.2010. The said judgment was followed in similar circumstances while passing the judgment dated 12.04.2011 in W.P.(c) 33209 of 2009 and in yet another case, as per the judgment dated 24.05.2011 in W.P.(C)27099 of 2009. In the above facts and circumstances, this Court finds that the challenge raised by the petitioner against Ext.P8 order issued W.P.(C) No. 7494 OF 2010 20 by the respondent Company rejecting the candidature of the petitioner does not hold good. The writ petition is devoid of any merit and the same is dismissed accordingly. P.R. RAMACHANDRA MENON, JUDGE. lk