IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 02.08.2010 CORAM: THE HONOURABLE MS. JUSTICE K.B.K.VASUKI W.P.No.19537 of 2009 1.Mrs.Amalorpavam 2.S.Jesu Ashok ... Petitioners Vs. 1.Indian Oil Corporation Limited Rep. by Chief Area Manager Marketing Division Indane Area Office No.500, Anna Salai, Teynampet, Chennai – 600 018. 2.G.Thilagar, C/o.Chief Area Manager, Marketing Division, Indane Area Office, No.500, Anna Salai, Teynampet, Chennai – 600 018. ... Respondents PRAYER: Petition filed under Article 226 of the Constitution of India praying to issue a Writ of Declaration, declaring that the action of the first respondent in placing the second respondent in the first position for award of Indane Gas Distributorship for Tambaram Area, as illegal and consequently direct the first respondent to place the petitioners in the first position and award the Indane Gas Distributionship for Tambaram Area to the petitioners. For Petitioners : Mr.Balan Haridas For Respondents : Mr.P.N.Radhakrishanan for R1 Mr.V.Rama Jagadeesan for R2 O R D E R The writ petition is filed for declaring the action of the first respondent/Indian Oil Corporation Limited in placing the second respondent in the first position for the award of Indane Gas Distributorship for Tabaram area as illegal and consequently direct the first respondent to place the petitioners in the first position https://hcservices.ecourts.gov.in/hcservices/ and award the Indane Gas Distributorship for Tabaram area to the petitioners. 2. The brief facts leading to the filing of writ petition are as follows: The first respondent/Indian Oil Corporation Limited floated an advertisement on 06.02.2008 calling for applications individually and on partnership basis for Indane Gas Distributorship for Tambaram area and the first petitioner individually and the petitioners 1 and 2 jointly applied for the same. The first petitioner individually and petitioners 1 and 2 jointly along with other applicants were called for personal interview and duly attended the interview on 27.04.2009. The interview is followed by declaration of results on the very next day on 25.07.2009, as per which, the second respondent herein was awarded 92 marks and was placed in the first position and the first petitioner in her individual capacity and the petitioners 1 and 2 on partnership basis are awarded 91 and 90 marks and were placed in the second and third position respectively. Immediately, thereafter, the petitioners sent notice and legal notice to the first respondent on 26.07.2009 and 31.07.2009 raising serious grievance against the manner of evaluation and against awarding lesser marks to the petitioners as partners in respect of their capability to provide finance and the same was replied by the first respondent on 15.07.2009, wherein the method of evaluation adopted was for the reasons set out therein fully supported, which has compelled the petitioners to approach this court by way of this present writ petition for the reliefs as stated above. 3. According to the learned counsel for the petitioners, the evaluation criteria adopted by the first respondent is different from the one contrary to the selection norms prescribed by the first respondent and had the norms been strictly adhered to the petitioners would have been awarded full marks for the capability to provide finance and they would have been consequently placed in the first position and the failure to do so has led to an illegal decision, which is unfair, biased, arbitrary and without justification. On the other hand, the leaned counsel for the official and individual respondents would seriously oppose the claim of the petitioners not only by questioning the right of the petitioners to question the award of marks done by the scrutiny committee but also by defending the quantum of the marks awarded to the second respondent. It is contended on behalf of the first respondent that the applications of all the candidates were scrutinised by the separate committee constituted for the purpose and there is no allegations of malafide raised either against the first respondent or against the committee and the petitioners have hence no locus-standi to maintain the present writ petition by questioning the norms prescribed by the first respondent for award of distributorship. It is also his definite stand that the evaluation criteria for capability to provide finance https://hcservices.ecourts.gov.in/hcservices/ are four sub-factors and while the first three sub-factors such as funds position, ability to arrange loan and assets to be assessed on the basis of the capacity of one partner and the same to be treated as belonging to the partnership and the last sub-factor under the heading 'income' shall be evaluated on the basis of average of the individual partners, as per the clarification issued by Deputy General Manager circulated to All State Heads in his proceedings dated 07.04.2005 in SL/1601. It is further contended by the first respondent that as the second petitioner has not furnished any particulars in the joint application regarding his income, the partners are awarded 2.5 marks, which is the average of full marks i.e., five prescribed for such sub- factor. 4. The learned counsel for the petitioners as well as the learned counsel for the respondents have also cited catena of judgments in support of their respective contentions in this regard. Heard the rival submissions made on both sides and perused the relevant records made available herein. 5. The claim made by the petitioner is seriously opposed by the respondents by firstly questioning the maintainability of this writ petition. The respondents have by relying upon the judgments of Apex Court and our High Court reported in i)1995 (II) CTC 286 Division Bench of the High Court of Madras V.Chandran Vs. Oil Selection Board and others ii)(2003) 10 Supreme Court Cases 681 K.Vinod kumar Vs. S.Palanisamy and others iii)(2010) 1 MLJ 167 M.Senthilkumar Vs. Chairman Indian Oil Corporation Ltd., and iV) (2010) 1 MLJ 742 Division Bench of High Court of Madras R.Kaliavani Vs. Chairman, Indian Oil Corporation Ltd., and others opposed the locus-standi of the petitioners to maintain the writ petition mainly on the ground that the petitioners having participated in the selection process with full knowledge of the evaluation criteria method and having become unsuccessful cannot be permitted to raise any complaint against the selection process. 6. It is true that, in all the four cases referred above, the challenge made before the court of law is against the selection process made known to the applicants and such challenge made by the petitioners, who participated in the selection unsuccessfully with full knowledge of the selection process is negatived by Hon'ble Apex Court and our High Court as one not maintainable and devoid of merits. But even while doing so, the Supreme Court and Division Bench of our High Court is in the authority reported in 1995 (II) CTC 286 and (2003) 10 Supreme Court Cases 681 have unequivocal terms observed that the scope of judicial review is confined to the decision making process and does not extend to the merits of the decision so taken and https://hcservices.ecourts.gov.in/hcservices/ the court is concerned with as to whether the selection process is vitiated by any error or not. The cases dealt with by our Division Bench and Single Bench of our High court as mentioned above are relating to award of distributorship and the final decision of the Oil Selection Board was challenged mainly by questioning the quantum of the marks awarded that is against the decision taken on merits and the same is decided against the writ petitioners therein. There is absolutely no quarrel over the legal proposition so laid down in the judgments. 7. However, the reading of the main grievance raised in the writ petition would disclose that though it appears to be against the quantum of marks awarded, the first petitioner individually and the petitioners 1 and 2 as partners in the evaluation process, the basis for the relief is not the award of marks but the mode adopted for awarding such marks. In short the writ petition is not against the evaluation criteria and the mode of evaluation stipulated in the brochure relating to the award of Indane Gas distributorship but against the mode of evaluation adopted which is according to the petitioners in contravention of the mode stipulated in the brochure and the consequential award of lesser marks to the petitioners as partners. Hence, I am of the considered view that the real challenge herein is that the selection process adopted is contrary to the selection process prescribed and is made public to the candidates concerned. If that is so, the observation of Apex court and our High Court in the judgments above cited do well support the maintainability of the present writ petition. Hence the first objection raised on the side of the respondents has to necessarily fail. 8. Regarding the claim of the petitioners on merits the Brochure dated June 2007 is supplied to the candidates concerned in this regard, in and under which guidelines are issued covering very many factors relating to the award of distributorship. The clauses relevant to decide the issue involved in this writ petition are clauses 14, 14.1 14.2 and the same are for better understanding and appreciation extracted 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. https://hcservices.ecourts.gov.in/hcservices/ 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. 14.1.Allocation of marks on various parameters based on documents will be carried out as per the information given in the application. Parameter Sub head Description Max Marks Evaluation Capability to provide infrastructure and facilities (as on the date of application Suitable land for LPG storage godown/ godown Owns @ - Having clear title/ Registered Sales Deed of the suitable land/godown 25 Based on the information & statement given in the application OR Firm offer @@- Having agreement to purchase/lease suitable land/ godown 18 Based on the information & statement given in the application OR Can arrange 10 Based on the information & statement given in the application Suitable land/shop for showroom Owns @ Having clear title/Registered Sales Deed of the suitable land/shop for showroom 10 Based on the information & statement given in the application OR Firm offer @@- Having agreement to purchase/ suitable land/shop for showroom 7 Based on the information & statement given in the application OR Can arrange 5 Based on the information & statement given in the application Sub total maxim marks 35 https://hcservices.ecourts.gov.in/hcservices/ Parameter Sub head Description Max Marks Evaluation Capability to provide finance Financially sound Funds (a) Amount in saving accounts in Bank.(as on date of application) (b) Free and unencumbered fixed deposits in scheduled banks or any other documents/resource which can be readily converted to liquid cash to cover working capital/infrastructure requirements (as on date of advertisement) 18 Based on the information given in the application (Fds/NSCs/Shares/any other investment bonds in the name of self or family members as defined above under relationship clause) Award 0.1 marks on every unit of Rs.10,000/- or more in multiples of Rs.10,000/- and amounts less than complete unit of Rs.10,000/- will not be considered for award of marks. Maximum marks- 18.Rs.18,00,000 & above 18.0 marks Capability to provide finance continued... Ability to arrange loan (c) Bankers/Financial institution certificate for credit worthiness and willingness to extend loan, if required. (as on date of application) 7 Based on the letter from Bank/Financial Institution sent with the application. 7 marks in case no Credit worthiness certificate from bankers/financial institutions but Funds are more than 20 lakhs as mentioned at (a) & (b) above. Otherwise marks to be awarded on the basis of certificate from bankers/financial institutions as under:- Range of loan Rs. Marks to be awarded >=2 lac to < 4 lac 1 >=4 lac to < 6 lac 2 >=6 lac to < 7 lac 3 >=7 lac to < 8 lac 4 >=8 lac to < 9 lac 5 >=9 lac to < 10 lac >=10 lac 6 7 https://hcservices.ecourts.gov.in/hcservices/ Parameter Sub head Description Max Marks Evaluation Assets (d) Fixed and other assets (as on date of advertisement) 5 Based on information of application. 5 marks in case no immovable and moveable property but funds are more than 20 lakhs as mentioned at (a & (b) above. Other wise marks to be awarded as under. Range of assets value Marks to be awarded >=3 lacs < 6 lacs 1 mark >=6 lacs <9 lacs 2 mark >=9 lacs <12 lacs 3 marks >=12 lacs < 15 lacs 4 marks >=15 lacs 5 marks Income (e) Income from all sources such as salary, property, business, agricultural, interest, dividend, rent earnings, royalty etc. per annum 5 Based on information of application. Income as per Income Tax Return of the last financial year and or affidavit on income Maximum Marks 5. Award 0.1 marks on every unit of Rs.10,000/- or more in multiples of Rs.10,000/- and amounts less than complete unit of Rs.10,000/- will not be considered for award of marks. Sub total maximum marks 35 * In case of LPG distributorships reserved under SC/ST category, there will be no evaluation on Land and Financial capabilities. ** Age, Educational Qualification and personality shall not be applicable in case of Govt. Organisations/Corporations/Undertakings, Public Ltd. Companies, Cooperative Societies and Private Companies and full marks shall be awarded. @ Own means having clear ownership title of the property or on long leased (minimum 15 yrs) in the name of family member as defined in eligibility criteria/multiple distributorship norm duly supported by documents https://hcservices.ecourts.gov.in/hcservices/ @@ 'Firm offers' means an agreement on stamp paper for sale or lease (minimum 15 years) between the applicant and the owner duly supported by documents. In respect of partnerships, all partners will have to attend the interview together and they will be evaluated individually for individual parameters like age, educational qualification etc. The land and finance owned by any one of the partners will be treated as the same being owned by the firm as a whole for evaluation purposes. Every thing being equal, preference will be given to unmarried women above 40 years of age without earning parents and widows for LPG distributorship locations reserved for women. In case of two or more applicants scores same marks, then applicant who has scored more marks based on documents shall be placed above the other person in the merit panel. In case two or more applicants scores same marks based on documents and in interview, then the applicant who is younger in age shall be placed above the other applicant in the merit panel. A candidate has to get minimum 40% marks after interview for being included in the merit panel. In case no candidate gets 40% marks, then the location will be re-advertised." 9. The plain reading of the guide lines set out in the brochure relating to various columns such as parameter, sub head, description, maximum marks and evaluation method do not specifically mention the basis for awarding marks i.e., individually or as partners as to whether the marks shall be awarded individually or otherwise. This aspect is only covered in the sub-clauses given below the tabular column at page 11 of the brochure emphasised in bold letters by this Court. The same would in clear terms specify the mode of evaluation in respect of the applications filed by the partners as per which all the partners will attend the interview together and they will be evaluated individually for individual parameters such as age, educational qualification etc. It is further specifically stated therein that in respect of parameters relating to finance, the lands and finance owned by any one of the partners will be treated as the same being owned by the firm as a whole for evaluation purpose. 10. The learned counsel for the petitioners have strongly relied upon this particular clause in support of the petitioners claim as to how the finance aspect of the partners ought to have been assessed on the basis of any one of the partners and as to how the process adopted by the first respondent as openly admitted in the reply notice dated 15.09.2009 and in the counter filed herein is different from the one set out in the brochure and as to how the decision arrived at by https://hcservices.ecourts.gov.in/hcservices/ adopting such erroneous process is also equally erroneous. 11. It is now not in serious dispute that the brochure dated July 2007 is the one issued to the candidates and the guidelines and instructions set out therein are applicable to the selection under dispute. It is equally not in issue that such guidelines and instructions have the force of law and are to be strictly adhered to without any deviation. However, the respondents have attempted to introduce one document purported to be letter of clarification so as to give different interpretation to clauses 14, 14.1 and 14.2 as set out in the brochure and as extracted above 12. The letter of clarification dated 7.4.2005 signed by Deputy General Manager circulated to All State Heads in his proceedings dated 07.04.2005 in SL/1601 is enclosed at pages 5 and 6 of the type set filed on behalf of the first respondent herein. It is no doubt true that the document above referred to contains one such clarification to the effect that the financial capability, ability to arrange loan and assets should be evaluated on the combined strength of all the partners and under the head "income" partners should be evaluated individually and marks should be awarded on individual strength. It is further stated therein that educational qualification, age, business ability, and personality should be individually assessed for the partners and marks be awarded accordingly and the average of the marks obtained by the partners should be taken for deciding the position of partnership application in the merit panel. The leaned counsel for the respondents have also by relying upon the judgment of our Supreme Court reported in 2008 (4) SCC 171 in Dhananjay Malik and others Vs. State of Uttaranchal and others argued that the government is by way of administrative instruction empowered to fill up the gap and supplement rules and issue instruction not inconsistent with the rules already framed if rules are silent on any particular point. Our apex court has in the judgment above referred to by following the earlier judgment of Constitution Bench of Supreme Court reported in AIR 1967 SC 1910 in Sant Ram Sharma Vs. State of Rajasthan clearly laid down so. However, in my considered view, the observation so made by the Supreme Court are not in applicable to the present case which stands distinguishable on facts and on issues. 13. As rightly referred to above the guidelines contain in the brochure in this regard are very clear in its terms. There is absolutely no lacuna or ambiguity regarding the mode of evaluation of parameter of finance which requires further clarification on the particular aspect. The Brochure contains all the particulars about the maximum information based on which and the manner in which the marks to be awarded. The conjoint reading of clauses 14.1 and 14.2 along with sub clause contained therein would not leave any doubt or ambiguity in the matters above referred to. As a matter of fact the first respondent has in the reply notice dated 15.09.2009 enclosed at https://hcservices.ecourts.gov.in/hcservices/ pages 12 and 13 of the typed set filed on behalf of the first respondent only referred to the instructions contained in the brochure and para 4 at page 2 of such reply notice proceeds as if as per application serial no 14.1 the ground "annual income of financial year" would be taken as individual score and average would be arrived at as per selection guide lines. It is further stated in para 5 of the same reply notice that as per application serial no 14.1 in respect of the first petitioner/ individual application the first petitioner is given full marks for the parameter 'income' whereas the second petitioner could in the joint application obtain no marks as no income was mentioned in the application and average of 2.5 was awarded under the head income making the total 32.5 and the marks so awarded is in line with the selection guide lines. 14. This court would at the risk of repetition like to mention that the selection guide lines as referred to in the reply notice is nothing but the guide lines set out in the brochure of June 2007 which is admittedly made applicable for the present selection. Only in this context the letter dated 07.04.2005 is to be necessarily looked into. 15. It is note worthy to mention that the last paragraph of letter dated 7.04.2005 clearly says that the same shall form part of the evaluation criteria circulated as Annexure – C vide SL/1601 dated 24.11.2004. It is submitted by the learned counsel for the first respondent that the clarification referred to herein though was sought for in relation to the selection held during 2004 and the same is though being adopted for the subsequent years, not admittedly incorporated in the brochure circulated during subsequent years particularly in brochure of July 2007. Neither in the counter nor in the course of argument herein the learned counsel for the first respondent is able to offer any reason for not suitably modifying clauses 14.1 and 14.2 as per this clarification. Had it been carried out, the petitioner has no case at all herein. It is to be recollected herein that the reply notice issued on behalf of the first respondent has also not referred to this clarification but only referred to application Serial No.14.1 the reading of which does not support the explanation sought to be given in the reply notice and in the counter filed herein. 16. If this aspect in viewed in the light of disclaimer clause 24 of this brochure that the corporation may revise the contents of this brochure from time to time without giving any notice the same will lead to an inference that the clarification so issued is only meant for the particular selection held during 2004 and the first respondent has not thought fit to adopt the same selection process for the subsequent years and the clarification was hence deliberately not incorporated in the guide lines for the subsequent years. It is further strenuously argued on the side of respondents that despite the https://hcservices.ecourts.gov.in/hcservices/ contra instructions contained in the brochure the selection process adopted for all these years is only on the basis of clarification but the same is not supported by any valid document herein. while referring to disclaimer clause 24 the learned counsel for the respondents 1 and 2 argued that as per the disclaimer clause the contents of the brochure are only for general information and the same should not be contended as policy documents and it cannot be legally quoted and Indian Oil Corporation is the final authority for giving any clarification or interpretation on the contents given in the brochure if need be and at its discretion and the corporation may revise the brochure from time to time without giving any notice. Such argument is not legally acceptable as the respondents cannot be permitted to take shelter under this class to act contrary to the instructions contained in the brochure which has as per the settled legal position, the force of law and to be strictly adhered to without any deviation. If that is so, the first respondent ought to have without any deviation, strictly adhered to the guidelines set out in the brochure in the matter of mode of evaluation. 17. Even assuming it to be true that the selection process is as per