IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 4-12-2009 Coram THE HONOURABLE MRS.JUSTICE R.BANUMATHI AND THE HONOURABLE MR.JUSTICE N.PAUL VASANTHAKUMAR W.A.No.1573 of 2009 & M.P.Nos.1 and 2 of 2009 W.A.No.1574 of 2009 & M.P.Nos.1 and 2 of 2009 W.P.No.16814 of 2009 R. Kalaivani ... Appellant in both Writ Appeals and Petitioner in Writ Petition. Vs. 1. The Chairman, Indian Oil Corporation Ltd., Corporate Office, 3079/3, JB Tito Marg, Sadiq Nagar, New Delhi – 110 049. 2. The Executive Director, Indian Oil Corporation Ltd., Indian Oil Bhavan, G9, A/1 Yavar Jun Marg, Bandra East, Mumbai. 3. The Executive Director, Tamil Nadu State Office, Indian Oil Corporation Ltd., Marketing Division, 139, Nungambakkam High Road, Chennai -600 034. 4. The Senior Area Manager, Indian Oil Corporation Ltd., Marketing Division, Indane Area Office, 8/1079, Avinashi Road, Coimbatore – 641 018. https://hcservices.ecourts.gov.in/hcservices/ 5. The Dealer Selection Committee, rep.by its Members, Indian Oil Corporation Ltd., Marketing Division, Indane Area Office, 8/1079, Avinashi Road, Coimbatore – 641 018. 6. Latha Selvaraj 7. Rajan Nanditha ... Respondents in both Writ Appeals and Writ Petition Both the writ appeals are preferred under Clause 15 of the Letters Patent against the orders of the learned single Judge dated 18.9.2009 made in M.P.No.1 of 2009 and M.P.No.2 of 2009 respectively, in W.P.No.16814 of 2009. The writ petition is filed under Article 226 of the Constitution of India, praying this Court to issue a writ of certiorarified mandamus calling for the records dated 25.7.2009 empanelling the candidates for Indane Distributorship by the fifth respondent and quash the same and consequently direct the fifth respondent to assign four marks to the petitioner under the "Experience Parameter" on the basis of the certificates produced by the petitioner on 23.7.2009 under Clause 14.2 of the brochure for selection of Indane Distributorship and thereupon finalise the merit panel. For Appellants/Writ Petitioner : Ms.G.Thilakavathi For Respondents 1 to 5 : Mr.Abdul Saleem for M/s.Anand, Abdul & Vinodh For 6th Respondent : Mr.AR.L.Sundaresan, Senior Counsel for Ms.AL.Gandhimathi For 7th Respondent : Mr.A.K.Kumarasamy COMMON JUDGMENT N. PAUL VASANTHAKUMAR, J. The appellant in both the writ appeals filed W.P.No.16814 of 2009 praying for quashing the order dated 25.7.2009 of the 5th respondent empanelling the candidates for Indane Gas Distributorship and for consequential direction to the 5th respondent to assign four marks to the petitioner under "Experience Parameter" on the basis of the certificate dated 23.7.2009 produced by her under Clause 14(2) of the https://hcservices.ecourts.gov.in/hcservices/ brochure for selection of Indane Gas Distributorship. 2. Pending disposal of the writ petition, the appellant/writ petitioner filed M.P.No.1 of 2009 seeking interim injunction restraining respondents 1 to 4 from confirming the Indane Distributorship to the 6th respondent, and M.P.No.2 of 2009 seeking direction to the 4th respondent to produce the application of 31 applicants, whose names are furnished in the Annexure to the petition along with 7th respondent's application and to examine the non-grant of marks under the experience parameter for all the 31 applicants in comparison to that of 7th respondent. 3. The above said two miscellaneous petitions – M.P.Nos.1 and 2 of 2009 in W.P.No.16814 of 2009 were dismissed by the learned Single Judge by common order dated 18.9.2009, against which W.A.Nos.1573 and 1574 of 2009 are preferred. 4. When the writ appeals came up for hearing, the learned Counsels appearing for the parties agreed for hearing the main writ petition also along with the writ appeals so that the controversy can be resolved one way or the other. Therefore, by consent of the parties, the writ petition itself is taken up for final disposal. 5. The case of the writ petitioner is that the first respondent issued a notification calling for applications for the Distributorship of Indane Gas at Gobichettipalayam, Erode District on 6.2.2008 under the Open Category, reserved for Women. The appellant/writ petitioner applied for the said Distributorship by submitting her application. Appellant/Writ Petitioner and others were called for interview by the 5th respondent Committee. According to the Appellant/Writ Petitioner, under the heading 'Experience', even though four marks are to be awarded, the writ petitioner was not awarded any mark, even though she had produced experience certificate. The results of the interview was announced on 25.7.2009, wherein the appellant/writ petitioner was not empanelled, whereas the 6th respondent was placed at first; 7th respondent was placed at third; and one S.Ezhilarasi was placed at second in the selection list. As the appellant/writ petitioner's name was not empanelled, she has filed the above writ petition contending that for her experience, she was not awarded any mark and if four marks are awarded based on her experience certificate, she will be selected. According to the petitioner, non-awarding of marks for her experience based on the certificate produced is arbitrary. 6. The Senior Area Manager of the Indian Oil Corporation/4th respondent has filed counter affidavit stating that as per the advertisement inviting applications, marks were awarded on the basis of the performance in the interview with regard to the experience and not by mere production of experience certificate. In the counter https://hcservices.ecourts.gov.in/hcservices/ affidavit it is further stated that 31 candidates who attended the interview were awarded 'nil' mark for experience. It is also stated that the petitioner having taken part in the selection and on coming to know that she was not selected, had chosen to submit a representation on 28.7.2009 and therefore she is not entitled to challenge the mode of selection after taking part in the selection process in terms of the notification. 7. Heard the learned counsel for the appellant/writ petitioner as well as respective counsels for the respondents. 8. The point for consideration in this case is whether the writ petitioner/appellant is right in contending that by merely producing experience certificate, she is entitled to claim marks under the heading 'experience'. 9. The notification issued by the Indian Oil Corporation inviting applications under which the petitioner also applied clearly contains the norms for the award of marks. In Clause 14 it is stated 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 The evaluation on the parameters 'a' to 'd' above will be done on the basis of the information given in the application. The evaluation on the parameter 'e' 'f' & 'g' will be done based on the interview." (Emphasis Supplied) From the perusal of the above clause it is evident that marks for experience will be awarded based on the interview, and not on the basis of any experience certificate. Clause 14(2) is also relevant for deciding the issue, which reads thus, https://hcservices.ecourts.gov.in/hcservices/ 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 of petroleum products, hospitality/service industry, etc. By the candidates in the interview. From the above clause also it is evident that four marks are to be awarded for experience and 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 by the candidates in the interview. Thus, it is clear that notification is very specific with regard to the award of marks for experience i.e, marks are awarded for experience only on the basis of the response to the questions relating to the experience and not on the basis of certificate. Thus, the contention of the appellant/writ petitioner that merely because she has produced experience certificate she should be awarded four marks under the heading 'Experience Parameter' is unsustainable. 10. According to the 4th respondent, 77 candidates appeared for interview and 46 candidates were given marks for experience and 31 candidates were not awarded marks for experience based on the interview. Petitioner is one among the 31 candidates. Thus, there is no discrimination or any arbitrariness on the part of the 4th respondent in awarding marks for experience. 11. As rightly contended by the learned counsel for the 4th respondent, the appellant/writ petitioner applied for Dealership of Indane Gas based on advertisement inviting applications, which is the rule of selection. Appellant/writ Petitioner knows fully well that https://hcservices.ecourts.gov.in/hcservices/ marks will be awarded for experience on the basis of interview and not on the basis of mere production of certificate. The appellant/writ petitioner also taken part in the selection by appearing in the interview without any demur. Having failed to get selected she has now chosen to challenge the mode of selection, particularly the award of marks under the heading 'Experience'. The said conduct of the petitioner is clearly against the principles of estoppel. 12. (a) In the decision reported in AIR 2002 SC 790 (G.N.Nayak v. Goa University) the question considered was as to whether a candidate, who applied pursuant to the notification and after taking part in the interview without protest, can be permitted to contend that the eligibility criteria were wrongly framed. The Supreme Court held that such candidate is not entitled to challenge the mode of selection after participating in the interview since because he was not selected. (b) Same is the view taken by the Supreme Court in the Decision reported in AIR 2008 SC 5 (Union of India v. S.Vinodh Kumar). In paragraphs 18 and 19, the Supreme Court held thus, "18. It is also well settled that those candidates who had taken part in the selection process knowing fully well the procedure laid down therein were not entitled to question the same. (See Munindra Kumar v. Rajiv Govil.) (See also Rashmi Mishra v. M.P. Public Service Commission.) 19. In Chandra Prakash Tiwari v. Shakuntala Shukla, it was held: (SCC p.148, para 32) “32. In conclusion, this Court recorded that the issue of estoppel by conduct can only be said to be available in the event of there being a precise and unambiguous representation and it is on that score a further question arises as to whether there was any unequivocal assurance prompting the assured to alter his position or status — the situation, however, presently does not warrant such a conclusion and we are thus not in a position to lend concurrence to the contention of Dr. Dhavan pertaining to the doctrine of estoppel by conduct. It is to be noticed at this juncture that while the doctrine of estoppel by conduct may not have any application but that does not bar a contention as regards the right to challenge an appointment upon https://hcservices.ecourts.gov.in/hcservices/ due participation at the interview/selection. It is a remedy which stands barred and it is in this perspective in Om Prakash Shukla v. Akhilesh Kumar Shukla a three-Judge Bench of this Court laid down in no uncertain terms that when a candidate appears at the examination without protest and subsequently found to be not successful in the examination, question of entertaining a petition challenging the said examination would not arise.” It was further observed: (SCC p.149, para 34) “34. There is thus no doubt that while question of any estoppel by conduct would not arise in the contextual facts but the law seem to be well settled that in the event a candidate appears at the interview and participates therein, only because the result of the interview is not ‘palatable’ to him, he cannot turn round and subsequently contend that the process of interview was unfair or there was some lacuna in the process.”" (c) In the decision reported in (2009) 5 SCC 515 (K.A.Nagamani v. Indian Airlines) also same view was taken. Paragraphs 54 and 55 are extracted hereunder, "54. The Corporation did not violate the right to equality guaranteed under Articles 14 and 16 of the Constitution. The appellant having participated in the selection process along with the contesting respondents without any demur or protest cannot be allowed to turn round and question the very same process having failed to qualify for the promotion. 55. In Madan Lal v. State of J&K this Court observed: (SCC p.493, paras 9-10) “9. … It is now well settled that if a candidate takes a calculated chance and appears at the interview, then, only because the result of the interview is not palatable to him, he cannot turn round and subsequently contend that the process of interview was unfair…. https://hcservices.ecourts.gov.in/hcservices/ 10. Therefore, the result of the interview test on merits cannot be successfully challenged by a candidate who takes a chance to get selected at the said interview and who ultimately finds himself to be unsuccessful.” Reference may also be made to the decision of this Court in Chandra Prakash Tiwari v. Shakuntala Shukla." 13. The scope of interference by the Court under Article 226 of the Constitution of India in the matter of selection of Distributorship of Indane Gas is considered by the Division Bench of this Court in the decision reported in (1995) 2 MLJ 458 (V. Chandran v. Oil Selection Board). 14. Admittedly no male fide is alleged against the respondents by the petitioner. The petitioner, having been treated like other candidates, who participated in the interview and the Selection Committee having awarded marks for the experience on the basis of the questions put to the candidates and the answers given by them, there is no arbitrariness as alleged by the petitioner in awarding marks to 46 candidates. 15. There is no merits in the writ petition and the writ petition stands dismissed. Since the writ petition is dismissed, the writ appeals filed against rejection of interim applications in the writ petition, need not be gone into and hence both the writ appeals are also dismissed as infructuous. There will be no order as to costs both in the writ petition as well as writ appeals. Connected miscellaneous petitions are closed. Sd/- Asst. Registrar //true copy// Sub Asst.Registrar vr To 1. The Chairman, Indian Oil Corporation Ltd., Corporate Office, 3079/3, JB Tito Marg, Sadiq Nagar, New Delhi – 110 049. https://hcservices.ecourts.gov.in/hcservices/ 2. The Executive Director, Indian Oil Corporation Ltd., Indian Oil Bhavan, G9, A/1 Yavar Jun Marg, Bandra East, Mumbai. 3. The Executive Director, Tamil Nadu State Office, Indian Oil Corporation Ltd., Marketing Division, 139, Nungambakkam High Road, Chennai -600 034. 4. The Senior Area Manager, Indian Oil Corporation Ltd., Marketing Division, Indane Area Office, 8/1079, Avinashi Road, Coimbatore – 641 018. 1 cc to M/s.G.Thilakavathi, Advocate, Sr.No.66399 3 cc to M/s.Anand, Abdul & Vinodh Associates, Advocate, Sr.No.66558,66556, 66557 Common Judgment in W.A.Nos.1573 & 1574 of 2009 and W.P.No.16814 of 2009 PA {CO} TP/16.12.2009. https://hcservices.ecourts.gov.in/hcservices/