IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.5795 of 2010 1. TRIBHUWAN KUMAR S/O PRABHUNATH SINGH R/O MOH ADHIWAKTA NAGAR, WARD NO. 14, P.S.GOPALGANJ, DISTT-GOPALGANJ-PETITIONER Versus 1. THE UNION OF INDIA THROUGH SECRETARY, MINISTRY OF OIL & NATURAL GAS GOVERNMENT OF INDIA 2. THE SENIOR AREA MANAGER, INDIAN OIL CORPORATION INDANE AREA OFFICE,SHAHI BHAWAN, EXHIBITION ROAD, PATNA 3. BRAJESH CHANDRA MISHRA S/O UMA SHANKAR MISHRA R/O VILL CHAWAHI, P.S.MANJHAGARH, DISTT-GOPALGANJ-----------RESPONDENTS ----------- For the petitioner :M/S Basant Kr.Choudhary,Sr.Advocate Arvind Kumar II, Advocate For the Respondent No.3 :M/S J.P.Shukla,Sr.Advocate Satish Chandra Mishra, Nurul Hoda, Advocates For the I.O.C. :M/S Anil Kumar Jha, Sr.Advocate Sanat Kr.Mishra, Advocate ----- 6. 27.9.2010 I.A.No.6010 of 2010 The interlocutory application has been filed by the petitioner challenging the letter of intent dated 7.6.2010 which has been issued by the respondent Indian Oil Corporation in favour of private respondent No.3 during the pendency of the writ application. In the facts and circumstances of the case, the prayer for amendment in the relief portion is allowed. I.A.No. 6010 of 2010 is, accordingly, disposed of. Heard learned counsels for the petitioner, for the respondent Indian Oil Corporation and the private respondent No.3 as also learned Central Government Counsel. 2 The petitioner has come to this Court for quashing the selection list dated 15.7.2009 issued by the Senior Area Manager, Indian Oil Corporation, Indane Area Office, Patna by which the respondent No.3 has been selected and given the first position in the panel for L.P.G. distributorship at Gopalganj for open category and for consequential directions. The petitioner and the other candidates applied against the advertisement for L.P.G. distributorship at Gopalganj for open category published in daily newspaper on 17.10.2007. In the selection list the respondent No.3 Brajesh Chandra Mishra was placed at Serial No.1 and the petitioner at Serial No.2. Admittedly the respondent No.3 is a practicing Advocate at Gopalganj. The petitioner, therefore, filed a complaint objecting to the award of 2.5 marks to the respondent No.3 for experience as a result of which the respondent No.3 could secure 96.33 marks as against 96.00 marks allotted to the petitioner out of a total of 100 marks. It is the case of the petitioner that the complaint of the petitioner was rejected without giving him any opportunity to substantiate the same. Learned counsel for the petitioner submits that respondent No.3 is a practicing Advocate of Gopalganj 3 Courts and in this regard he refers to a bail bond which the respondent No.3 has signed as an Advocate on 29.6.2009. He also refers to a certificate issued by the Treasurer, District Bar Association, Gopalganj which shows that an amount of Rs. 4,200/- at the rate of Rs.100/- per month has been deposited in the period from January, 2006 to June, 2009 in the Advocates’ Welfare Fund by the respondent No.3. He also refers to another certificate from the authorities of the District Bar Association dated 31.7.2009 in which it is stated that the respondent No.3 is a member of District Bar Association, Gopalganj having an Enrolment No.2380/96 and he contested for the post of a member of Executive Committee of the District Bar Association, Gopalganj and was declared elected for the said post for the sessions 2005 to 2007 and continued as such. It is also pointed out by learned counsel that the experience certificate shown by the petitioner as having been issued by one Ali Imam, partner of Gopalganj Petroleum, Dealer of Indian Oil on 12.11.2007 stating that the respondent No.3 has worked as Manager from 23rd September, 2002 to 13th December, 2005 in the said Petrol Pump is not correct in view of the document obtained by 4 the petitioner from the Commercial Taxes Department which shows that one Ali Imam had signed the document on behalf of the Petrol Pump as the authorized Manager in the statement filed on its behalf from 2002 to 2005. It is also submitted by learned counsel that the certificate was misleading and meant to mislead since the subsequent stand has been taken that respondent No.3 was working on honorary basis whenever he found free time from his professional work, whereas no such statement is to be found in the original certificate. As a matter of fact, according to learned counsel, it has been stated by the office of the Superintendent of Labour, Gopalganj that during the period 2002 to 2005 no one was working on the post of Manager at Gopalganj Petrol Pump. In view of the aforesaid facts it is urged by learned counsel that a false certificate was produced by respondent No.3 before the respondent authorities showing himself to be a Manager of the said Gopalganj Petrol Pump on the basis of which he has been given 2.5 marks for experience; whereas none at all could have been allotted to him. It is also urged by learned counsel that the complaint of the petitioner has been rejected by letter dated 5.3.2010 without giving any opportunity to him by the grievance 5 cell; whereas under Clauses 21 & 22 of the brochure for selection of L.P.G. distributorship applicable in the present matter it is clearly provided that opportunity shall be given to the complainant to submit details of allegation with a view to substantiate the allegation along with the supporting documents and on the said response the complaint will be examined by the Oil Company. Learned counsel also submits that the letter of appointment dated 16.9.2002 filed subsequently by respondent No.3 shows that he has been engaged as Manager on honorary basis but the said fact was not disclosed in the application filed by respondent No.3 and thus the same amounts to an attempt to secure more points by misleading the respondent authorities. It is also urged by learned counsel that respondent No.3 being an Advocate could not have applied for L.P.G. distributorship as he should have first surrendered his licence and until his licence was surrendered his case ought not to have been considered in view of the decision of this Court in the case of Sri Bimal Kumar Jain vs. Sri Umesh Narayan & Ors. : 2004(2) PLJR 9, in paragraphs 5 & 6 of which it has been held as follows : 6 “5. Umesh Narayan happens to be no other person but a member of Bar, an Advocate. The plain issue is whether an Advocate can also become an agent of the Indian Oil Corporation to run a retail business for the sale of its products, petrol, diesel, etc. Clearly, the principles on which a person is called to the Bar to practise as an advocate restrain him from holding any office of profit and indulging in business as these are not the functions of a lawyer. A lawyer cannot be in a business and simultaneously be an Advocate. If this were so then that lawyer will be abusing his licence and the fact that he functions as a business man will entitle the Bar Council to cancel his licence to act in a court of law. It may also tantamount to professional misconduct. 6. It is contended on behalf of the opposite party that should he be granted a licence then he will hang up his licence. This plea has an element of champerty in it. If the opposite party is so interested to join business trade and industry and a franchise as a petrol dealer is one such business, then he will first have to surrender his licence to the Bar Council and cease to be an Advocate. In the circumstances, if the Court below has granted an injunction on the ground that a person can be Advocate and business man both, then clearly the court below is in error and its order(s) is also illegal.” It is also submitted by learned counsel that issuance of letters of intent after the Corporation was given notice of the writ petition and the writ petition was filed, is not proper and the same cannot affect the rights of the petitioner and such L.O.I. should be cancelled. In support 7 of the same he relies upon a decision of this Court in the case of Jai Prakash Pandey vs. The Union of India & Ors. : 2004(1) PLJR 617, in the relevant portion of the second paragraph 5 of which it has been held as follows : “5. Under such circumstances, I am of the view that denial of giving preference to the petitioner in the matter of selection of candidate by the Dealer Selection Board and appointment of dealership by issuing L.O.I. after the Corporation was given notice of the writ petition and the writ petition was filed, cannot be said to be fair and proper. It is well settled that any action taken during the pendency of the writ petition is subject to the final outcome of the writ petition.” Learned counsel for the respondent No.3, on the other hand, opposes the stand of the petitioner stating that it was open to the respondent No.3 to have worked on an honorary basis in the petrol pump although he was an enrolled Advocate and the same is not prohibited by Rule 49 of the Bar Council of India Rules which provides that an Advocate shall not be a full-time salaried employee of any person, government, firm, corporation or concern, so long as he continues to practise, and shall, on taking up any employment, intimate the fact to the Bar Council on whose roll his name appears, and shall thereupon cease to practise as an advocate so long as he continues in such employment. It is urged by learned counsel that the same 8 clearly does not prohibit even a part-time employment not to speak of a purely honorary employment. It is urged that respondent No.3 has worked free for the period of three years only to get the necessary experience. It is also urged by learned counsel that the writ court does not normally interfere with the decision of the administrative authorities in a matter of present type relating to selection of a candidate and the only interference permissible is in the decision making process if the same is found to be arbitrary and unsustainable in law. It is urged that the authorities having decided the matter on the basis of the materials on the record this Court ought not to sit in appeal over the same and come to a different conclusion. In support of the said stand he relies upon a decision of this Court in the case of Dhananjay Singh vs.The Union of India & Ors.: 2010(1) PLJR 59 in paragraph 5 of which, it has been held as follows : “5. Firstly, there appears to be still a persisting misconception about jurisdiction of this Court to interfere in such matters under Article 226 of the Constitution. The jurisdiction of judicial review has a limited scope when it comes especially to contractual matters. This Court does not sit in appeal over the decision of the authorities as if, it were an appellate authority. It is generally on two grounds that judicial review is entertained by this Court. It is either for the purposes of a wrong committed in the 9 decision making process but not the decision itself or where the decision is per se arbitrary and unsustainable in law. As would be apparent, the petitioner wanted this Court to sit more as an appellate authority to revise the judgment of the Corporation. That in my view is not this court’s jurisdiction.” It is also urged by learned counsel that the only requirement on the part of the respondent authorities is to exercise the power bona fide and it is for the respondent authorities to decide the procedure to be adopted so as to find out the most suitable candidate and the only requirement is that the procedure adopted should be reasonable and fair. In support of the same he relies upon a decision of this Court in the case of Dibyendu Mohan vs. Hindustan Petroleum Corporation Limited & Ors. : 2004(1) PLJR 498 in the relevant part of paragraph 14 of which it has been held as follows : “14. I find substance in the submission of Mr.Sinha. Recently in the case of K.Vinod Kumar vs. S.Palanisamy, reported in 2003(4) PLJR (SC) 175, the Apex Court, while dealing with the appointment of LPG Distributors in which also Dealer Selection Board is entrusted with the task of finding out the best suitable candidate, held that so long as the power is exercised bona fide, the Board is free to devise and adopt its own procedure subject to satisfying the test of reasonableness and fairness.” 10 He also relies upon similar observations made by the Apex Court in the case of Ramana Dayaram Shetty vs. The International Airport Authority of India and others : AIR 1979 SC 1628 and in the case of M/s. Master Marine Services vs. Metcalfe & Hodgkinson Pvt. Ltd. & Anr. : 2005(3) PLJR 97 (SC). It is also urged by learned counsel that the function of the Selection Committee is purely administrative and thus it is not required to give reasons in support of its assessment of the merits of the candidates as laid down in paragraph 7 of the decision of the Supreme Court in the case of National Institute of Mental Health & Neuro Sciences, vs. Dr.K.Kalyana Raman and others : AIR 1992 SC 1806. It is also contended by learned counsel that the respondent No.3 having been issued a letter of intent on 7.6.2010 by the respondent Oil Company and directed to comply the same within six months as a result of which huge amount of investment has been made by respondent No.3, it would not be proper to cancel the same to the re- detriment of the respondents. Learned counsel for the respondent Oil Company makes similar submissions in support of his stand. It is 11 urged by him that there is no error of jurisdiction by the Indian Oil Corporation in the matter of selection. The complaint filed by the petitioner as also the candidate at serial No.3 of the selection list was investigated and the allegations have been found not substantiated. He further urges that there is no allegation of mala fide or favoritism against the respondent authorities. The respondent Corporation being a commercial organization in business it is for it to decide as to who is the most suitable candidate for the said purpose and its decision ought not to be interfered with. Learned counsel also strongly relies upon the guidelines laid down in the Process of Selection of L.P.G. distributors, in paragraph 14.2 of which in the criteria of experience it has been provided that marks are to be awarded on the quality rather than the 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 candidate in the interview and thus according to learned counsel the certificate alone was not the relevant factor and the candidates having been questioned by the members of the 12 L2 Committee marks awarded by them based on the quality of experience on the response from the respondent No.3 and the petitioner and others are not open to challenge. It is urged by him that the L3 Committee also found the documents to be correct and under such circumstances no case is made out for interference with the decision of the respondent authorities. I have considered the submissions made by learned counsels for the parties. Two issues arise on the basis of submissions made by the parties. The first is whether the respondent No.3 being a practicing Advocate of a Court of law ought to have been considered for the grant of L.P.G. distributorship licence. It is true that the Bar Council of India Rules are silent on this point but on the basis of what has been held by this Court in the case of Bimal Kumar Jain (supra) it appears that the same is not permissible. Learned counsel for the respondent Oil Company fairly pointed out that against the said decision of this Court an S.L.P. was filed but the same was dismissed. It appears that in the present matter the same plea is being taken by the respondent No.3. Learned counsel for respondent No.3 as a matter of fact admits that respondent No.3 has not surrendered his licence to the Bar Council and ceased to be 13 an Advocate rather he relies upon paragraph 7 of the brochure which provides that the selected candidate for distributorship will have to resign the other employment before issuance of letter of appointment and since at present only the letter of intent has been issued and will be subsequently followed by letter of appointment it is only then that the respondent No.3 will be required to surrender his licence. It is thus evident that the action of respondent No.3 is not in terms of what has been decided by this Court in Bimal Kumar Jain’s case (supra). The principal issue however still remains as to whether the experience certificate submitted by respondent No.3 could have been relied upon by the respondent authorities for granting him any marks under the category of experience. Paragraph 14.2 of the brochure states that the marks for experience is to be awarded based on information in the application for experience of running or working in an establishment for minimum one year. The experience certificate supplied by the respondent No.3 shows that he has worked as Manager since 23.9.2002 to 13.12.2005. The certificate is not qualified by stating that he was working only during the spare time that he could find from his professional work and rather gives 14 impression that he was managing the petroleum outlet as Manager. In common parlance, Manager means a person who is over-all in-charge of the affairs of the organisation. The other important aspect of the said certificate is that it has not been issued immediately after discontinuance of the work of the respondent No.3 at the petrol pump on 13.12.2005 rather it has been issued on 12.11.2007, i.e., after the publication of the advertisement on 17.10.2007 inviting applications from eligible candidates. Considering the fact that there was no mention about the position being honorary in the said certificate, it goes to show that the same has been obtained subsequent to the advertisement for getting the benefit under the head of experience. There is no record of the Gopalganj Petroleum dealership to show that the respondent No.3 was actually working there in any capacity, much less as Manager. All the documents before the Commercial Taxes Department have been signed by another person Md.Ahmad Ali as the authorized Manager and not by respondent No.3. No records have been or could have been produced to show that the respondent No.3 was working at the petrol pump. 15 In my view, any such certificate issued by an owner of a petrol pump cannot be taken at its face value unless it is supported by some collateral evidence to show that the person in whose favour it has been issued was actually working in the said petrol pump. The best evidence in such matter would be books of account and salary slips, etc. which go to show that the person was actually working in the said out let. In the absence of such collateral evidence no credence should be attached to such certificates as any person can procure the type of certificate as has been brought herein by the respondent No.3. Such certificates issued by small private business men ought not to have been given any credence. In the present matter the situation is much worse since the respondent No.3 was a practicing Advocate of the Gopalganj Courts and it is difficult to accept that he had actually worked at the said petrol pump in the absence of any unimpeachable document to show the same and further keeping in view the fact that the experience certificate was not obtained immediately after termination of the so-called honorary employment but after the publication of the advertisement. So far as the different decisions cited by learned counsel for the respondent No.3 are concerned, there can 16 be no doubt that this Court does not sit in appeal over the decision of the administrative or other authorities and normally it is only the decision making process which is under consideration in the writ jurisdiction. If, however, in the said process decision is sought to be taken on the basis of the materials which ought not to have been considered at all by any reasonable man in the given facts and circumstances then the said decision itself is liable to be struck down as arbitrary and unreasonable. In my view, not only the decision of this Court in Bimal Kumar Jain’s case (supra) is applicable but any such experience certificate produced by a person who is in by profession an Advocate totally unconnected otherwise with the business in question must be looked at with suspicion and not accepted unless properly corroborated. That not having been done any marks allotted on the basis of such experience certificate must be held to be arbitrary and unreasonable and hit by Article 14 of the Constitution. The question of answering the question before the interview committee can only arise if the experience certificate itself is found to be genuine. If the same does not inspire any confidence at all then there can be no question of granting any marks for experience. In the said 17 circumstances, the question of bona fide or mala fide becomes wholly irrelevant, as also the question of providing any reason. The authority is only required to act as a reasonable person in the given circumstances, which it has not done in the present case. This Court also does not find any force in the submission of learned counsel for respondent No.3 that since the letter of intent has been issued on 7.6.2010 and the respondent has incurred a huge expenditure already his candidature ought not to be cancelled. Once the writ petition has been filed any action of the authorities would be subject to the result of the writ petition. It is not a case where the petitioner has acted with any delay so as to allow the arising of any rights before filing of the writ petition. In the present matter the issuance of L.O.I. has been taken in full knowledge that the decision of the authorities is under challenge before this Court and thus no benefit can accrue in favour of respondent No.3 in view of issuance of L.O.I. and of any expenditure incurred by him pursuant to the same. In the light of the aforesaid discussions, the writ application is allowed. The selection list dated 15.7.2009 in so far as it relates to respondent No.3 is quashed as also the 18 Letter of Intent issued pursuant to it and the respondent authorities of the Indian Oil Corporation are directed to take a fresh decision in the matter in the light of what has been held by this Court in this order. (Ramesh Kumar Datta,J.) Spal/