Case: Mohd. Mustafa Ali Khan Vs. Secretary, Department of Petroleum Central Government of India and Others

in business. Under the head Full time working dealer, Shri Nautiyal assessed the said candidates by giving marks varying from 8 to 10; whereas he gave 25 out of 30 marks to respondent No. 4. Similar observations could be made in respect of other assessment heads. Coming to the assessment made by Justice Dayal (Retd.), he ensured that the total marks secured by other candidates varied from 11 to 22 and respondent No. 4 was given 80 marks out of 100. Even, otherwise, between respondent No. 4 and other short-listed candidate Shri Anand Chavan, one fails to understand how the learned Chairman made so much of distinction between the social work and social service honour. Under the remarks column for Shri Chavan, he observed that the candidate was engaged in social work; whereas in respect of respondent No. 4 he observed that he had social service honour. One does not know what are these honours and in the absence of original application forms which were to be submitted by respondent No. 3, we are not able to understand what weighed so heavily in the minds of the learned members of the Selection Board in respect of respondent No. 4 alone. Even if all the four factors are rationally viewed vis-a-vis the candidates qualifications and the observations made in remark column by Justice Dayal (Retd.) there is absolutely no rationale for alarmingly high difference of marks given to other Graduate candidates and respondent No. 4 who was only Diploma holder in Engineering and at the relevant time, admittedly, either he was working with M/s. Ujwal Metal Works Pvt. Ltd., or with Sai Krupa Petroleum. For his personality, business ability and Salesmanship, Justice Dayal (Retd.) gave 25 out of 30 marks and for full time working dealer he gave 26 marks out of 30 notwithstanding the fact that the information as required under column 13 of the prescribed application form was furnished by all the candidates and was found to be in order by the Oil Company, holding them eligible. There can be no doubt that there is bound to be a variation in the assessment quantified in terms of marks, but the variation should be reasonable and discernible from the record. In the instant case, the swing of marks given to respondent No. 4 by both the learned Members was so high that it smacked of apparent favouritism. The selection was, obviously, predetermined. The process of interview was only a formality and that too not completed by all the members, but by only two of them. The dissent shown by the third member by refusing to sign the mark sheets could be a pointer to the whole selection process.15. We are conscious of our limitations in sitting in appeal over the process of selection. However, the record that has been shown to us and the assessment details that we have reproduced hereinabove in respect of some of the candidates, do make out a case strongly suggesting that there could not be any other conclusion, but to hold that the selection process was arbitrary, irrational and vitiated on account of total lack of application of mind. We are, therefore, left with no alternative but to hold that the selection of respondent No. 4 as made by respondent No. 2 Board, is unsustainable for the subject retail outlet dealership at Nanded.16. The issue does not end here itself. As per the terms of selection and in fact, the first letter of allotment dated 31-1-96 issued to respondent No. 4 he was called upon to complete the formalities for commissioning of the dealership within four months. However, he has, obviously acquired the land sometimes in June-July 1996 because Shri Shirish Patil purchased the said land for the first time from a widow by sale deed dated 24-5-1996 notwithstanding the fact that the said land was a subject matter in pending R.C. As. 27/94, 40/94 and 11/95 and subsequently, respondent No. 4 signed an agreement with the said Shri Shirish Patil for taking over that piece of land on lease. The N.O.C. came to be issued by the Collector of Nanded for the first time on 23-8-96. This time schedule clearly goes to show that respondent No. 4 could not build the infrastructure by complying with the conditions of letter of allotment as well as those stipulated in the prescribed application form. The affidavit-in-reply filed by respondent No. 3 in this regard is far from being satisfactory and there are reasons to believe that the officials had acted in furtherance of the cause of respondent No. 4.17. The location of the subject retail outlet was to be within the Municipal limits of Nanded and on the Nanded-Hyderabad Highway, as per the advertisement. The petitioner has brought on record a certificate issued by the competent authority stating that the location of the outlet commissioned by respondent No. 4 pursuant to the impugned allotment order is within the Village Panchayat limits of Danegaon and beyond a distance of 6.5 kms. from the newly constituted Nanded-Wagala Municipal Corporation. The affidavit-in-reply filed by respondent No. 3 states (without any documentary support) that the city limits extend to a distance of 5 kms. from Municipal limits and even if this is accepted for the time being, it is evident that the location of the subject outlet is certainly beyond the Municipal limits and contrary to the terms of the advertisement issued by respondent No. 3. This is one more pointer to show that the officers of respondent No. 3 Oil Company went out of their way to assist the respondent No. 4. It was incumbent upon these officials to confirm the location criteria as per their advertisement before the final agreement was signed by respondent No. 4 with the Oil Company, specially when it was made known to him that issuance of allotment letter was subject to the outcome in the present petition. The officials obviously slept over, not out of ignorance, but solely in connivance with respondent No. 4.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]We are not concerned with the allegations made against any individual, including the former Home Minister, Petroleum Minister, Members of the Oil Selection Board or any of the officials of respondent No. 3, or the Oil Company, by the petitioner and, in fact, the petitioner appears to have brought on record some statements regarding the allotments of dealership either for petrol or L.P.G. in favour of the family members or relations or the supporters of Shri S.B. Chavan, former Home Minister only for the purpose to prove the political proximity of respondent No. 4 which has allegedly influenced the selection. Respondent No. 4 has not denied his relationship with the family of Shri Shankarrao Chavan and has insisted that his selection by respondent No. 2 is in no way connected with this relationship or his proximity with the former Home Minister. We do not wish to consider any of these statements while examining the selection of respondent No. 4 for allotment of dealership and we are not influenced by any of these factors.Respondent No. 3 contends that once the applications found to be eligible, are furnished to the Oil Selection Board, it has no role to play in the selection process and after the Board submits a select panel pursuant to the selection process, the Oil Company is required to act accordingly and issue a letter of intent to the first candidate in merit, in the said select panel. If, however, the first allottee declines the offer or he is, for any reasons, found to be ineligible subsequently, the offer letter may be issued to the second applicant in the select panel. On issuing the letter of intent of such selected candidate at serial No. 1, he is required to comply with all the conditions and formalities including procurement of land and creating infrastructural facilities, within the period of 4 months and on completion of these requirements, the Oil Company appoints the said candidate as its dealer/distributor. Dealership agreement is subsequently executed between the Oil Company and the candidate. The Oil Selection Board had called 27 candidates for interview onat Mumbai and only 18 of them appeared.There is no dispute that at the relevant time, Shri Naresh Pugalia was a member of Parliament of the ruling party, i.e. Congress and, Shri Nautiyal represented the weaker sections of the society. As observed earlier, his wife was allotted a dealership from the discretionary quota of the Petroleum Minister at the relevant time and the said allotment was quashed and set aside by the Apex Court in the case of Common Cause a Registered Society v. Union of India (supra). The papers of selection procedure including the assessment sheets are placed before us. These papers consist of the consolidated assessment sheets and individual assessment sheets as made by the members. It is also evident that though all the three members participated in the interview process onShri Naresh Pugalia refused to handover mark sheets prepared by him in respect of the interviews held from 9 to 19th October, 1995 and, therefore, the panel of selection for dealership was prepared and signed by only two members, viz., Mr. Justice Parmeshar Dayal (Retd.) and Shri R.S. Nautiyal.It is pertinent to note at this stage that this fact of the select panel having been prepared on the basis of the only two members assessment, has not been stated either in thefiled on behalf of the respondent No. 2 or respondent No. 3 and, on the contrary, both these affidavits emphatically state that respondent No. 4 was selected by the Oil Selection Board as constituted and that the selection procedure was in order. If the Board consisted of three members, it is incumbent that the candidates are assessed by all the three members and their respective assessment is available on record. It is possible that the members may have different views in assessing the each candidate and all the three members assessment in respect of every factor is normally totalled altogether and averaged, so as to indicate the decision of the Board in such a selection. In the instant case, the third member Shri Naresh Pugalia had apparently refused to hand over the assessment sheets prepared by him and the select panel prepared and forwarded by the Oil Selection Board to respondent No. 3 Oil Company was only on the basis of the assessment made by only two members. This itself, without anything further, has vitiated the select panel and obviously the letter of allotment datedhad been issued by respondent No. 3 on such a vitiated selection and thus it was not a selection in the eyes of law.13. On perusal of the assessment record, as made available by the Oil Selection Board in respect of the interviews held from 9th to 19th October, 1995 at Mumbai, much is required to be said. However, we do not wish to comment upon these selections so far as they relate to other locations in Maharashtra and we confine our observations in respect of the interviews held on 19th October, 1995 and for the subject location which is Nanded.14. The second member Shri R.S. Nautiyal preferred not to write anything under the remarks column and the Chairman has noted some information under the said column in respect of most of the candidates interviewed onOne of the 18 candidates by name Shri Kinhalkar S.B. was not assessed because it was observed during the interview process that his father was already a dealer of B.P.C.L. Therefore, the assessment was in respect of only 17 candidates. As observed earlier, the assessment reproduced hereinabove, is in respect of the petitioner and other ten candidates who were either Graduates or Diploma holders, though Diploma holders have no preference as compared to graduates or graduates in Engineering as per the conditions stipulated in the advertisement that was released onThe assessment reproduced hereinabove, makes out a startling revelation regarding the marks given under each head. Shri Nautiyal assessed almost every candidates by giving total marks varying from 29 to 32; whereas for respondent No. 4 he gave 76 marks out of 100 marks. Under the personality, business ability and salesmanship column, he rated the above referred candidates by giving marks from 8 to 10 out of 30 marks; whereas, for respondent No. 4 he gave 24 marks inspite of the fact that he was not in business. Under the head Full time working dealer, Shri Nautiyal assessed the said candidates by giving marks varying from 8 to 10; whereas he gave 25 out of 30 marks to respondent No. 4. Similar observations could be made in respect of other assessment heads. Coming to the assessment made by Justice Dayal (Retd.), he ensured that the total marks secured by other candidates varied from 11 to 22 and respondent No. 4 was given 80 marks out of 100. Even, otherwise, between respondent No. 4 and othercandidate Shri Anand Chavan, one fails to understand how the learned Chairman made so much of distinction between the social work and social service honour. Under the remarks column for Shri Chavan, he observed that the candidate was engaged in social work; whereas in respect of respondent No. 4 he observed that he had social service honour. One does not know what are these honours and in the absence of original application forms which were to be submitted by respondent No. 3, we are not able to understand what weighed so heavily in the minds of the learned members of the Selection Board in respect of respondent No. 4 alone. Even if all the four factors are rationally viewedthe candidates qualifications and the observations made in remark column by Justice Dayal (Retd.) there is absolutely no rationale for alarmingly high difference of marks given to other Graduate candidates and respondent No. 4 who was only Diploma holder in Engineering and at the relevant time, admittedly, either he was working with M/s. Ujwal Metal Works Pvt. Ltd., or with Sai Krupa Petroleum. For his personality, business ability and Salesmanship, Justice Dayal (Retd.) gave 25 out of 30 marks and for full time working dealer he gave 26 marks out of 30 notwithstanding the fact that the information as required under column 13 of the prescribed application form was furnished by all the candidates and was found to be in order by the Oil Company, holding them eligible. There can be no doubt that there is bound to be a variation in the assessment quantified in terms of marks, but the variation should be reasonable and discernible from the record. In the instant case, the swing of marks given to respondent No. 4 by both the learned Members was so high that it smacked of apparent favouritism. The selection was, obviously, predetermined. The process of interview was only a formality and that too not completed by all the members, but by only two of them. The dissent shown by the third member by refusing to sign the mark sheets could be a pointer to the whole selection process.15. We are conscious of our limitations in sitting in appeal over the process of selection. However, the record that has been shown to us and the assessment details that we have reproduced hereinabove in respect of some of the candidates, do make out a case strongly suggesting that there could not be any other conclusion, but to hold that the selection process was arbitrary, irrational and vitiated on account of total lack of application of mind. We are, therefore, left with no alternative but to hold that the selection of respondent No. 4 as made by respondent No. 2 Board, is unsustainable for the subject retail outlet dealership at Nanded.16. The issue does not end here itself. As per the terms of selection and in fact, the first letter of allotment datedissued to respondent No. 4 he was called upon to complete the formalities for commissioning of the dealership within four months. However, he has, obviously acquired the land sometimes in1996 because Shri Shirish Patil purchased the said land for the first time from a widow by sale deed datednotwithstanding the fact that the said land was a subject matter in pending R.C. As. 27/94, 40/94 and 11/95 and subsequently, respondent No. 4 signed an agreement with the said Shri Shirish Patil for taking over that piece of land on lease. The N.O.C. came to be issued by the Collector of Nanded for the first time onThis time schedule clearly goes to show that respondent No. 4 could not build the infrastructure by complying with the conditions of letter of allotment as well as those stipulated in the prescribed application form. Thefiled by respondent No. 3 in this regard is far from being satisfactory and there are reasons to believe that the officials had acted in furtherance of the cause of respondent No. 4.17. The location of the subject retail outlet was to be within the Municipal limits of Nanded and on theHighway, as per the advertisement. The petitioner has brought on record a certificate issued by the competent authority stating that the location of the outlet commissioned by respondent No. 4 pursuant to the impugned allotment order is within the Village Panchayat limits of Danegaon and beyond a distance of 6.5 kms. from the newly constitutedMunicipal Corporation. Thefiled by respondent No. 3 states (without any documentary support) that the city limits extend to a distance of 5 kms. from Municipal limits and even if this is accepted for the time being, it is evident that the location of the subject outlet is certainly beyond the Municipal limits and contrary to the terms of the advertisement issued by respondent No. 3. This is one more pointer to show that the officers of respondent No. 3 Oil Company went out of their way to assist the respondent No. 4. It was incumbent upon these officials to confirm the location criteria as per their advertisement before the final agreement was signed by respondent No. 4 with the Oil Company, specially when it was made known to him that issuance of allotment letter was subject to the outcome in the present petition. The officials obviously slept over, not out of ignorance, but solely in connivance with respondent No. 4.