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L.P.A. No. 469 of 2010 -1- In the High Court of Punjab and Haryana at Chandigarh L.P.A. No. 469 of 2010 Date of Decision: July 21 , 2011 Hindustan Petroleum Corporation Limited and others ---Appellants versus Vishal Singh and another ---Respondents LPA No. 656 of 2010 Varinder Kumar ---Appellants versus Vishal Singh and others ---Respondents Coram: HON'BLE MR. JUSTICE M.M.KUMAR HON'BLE MR. JUSTICE GURDEV SINGH *** Present: Mr. Anil Malhotra, Advocate, for the appellant (in LPA No. 469 of 2010 and for respondent Nos. 2 to 4 in LPA No. 656 of 2010) Mr. Puneet Kumar Bansal, Advocate, for Mr. Kanwaljit Singh, Sr. Advocate for the appellant (In LPA No. 656 of 2010 and for respondent No. 2 in LPA No. 469 of 2010)
L.P.A. No. 469 of 2010 -2- Mr. Hitesh Garg, Advocate for Mr. Rakesh Gupta, Advocate, for respondent No. 1(in both the appeals) *** 1. To be referred to the Reporter or not? 2. Whether the judgment should be reported in the Digest? Gurdev Singh. J. 1. Feeling aggrieved by the selection of Varinder Kumar (Appellant in LPA No. 656 of 2010 and respondent No. 2 in LPA No. 469 of 2010), by the Hindustan Petroleum Corporation Limited (hereinafter referred to as “HP”) as a retail outlet dealer at Gurgaon City, Vishal Singh, writ petitioner- respondent No. 1 filed writ petition No. 5818 of 2009 for the issuance of the appropriate writ in the nature of certiorari for quashing that selection and letter dated 12.6.2008(Annexure P-7), vide which the complaint made by him was rejected and also for the issuance of appropriate writ in the nature of mandamus directing the HP to grant him four marks on account of experience and then to re-examine the entire selection list for allotment of the retail outlet dealership and to allot the same to him, being more meritorious than Varinder Kumar. The writ petition was allowed by the learned Single Judge, vide order dated 16.3.2010. The petitioner was awarded four marks for the experience and HP was directed to consider him afresh amongst all the eligible candidates and to take fresh decision within a period of two weeks from the date of the receipt of the copy of the order. Against that order, HP and Varinder Kumar have filed the above noted Letters Patent Appeals under Clause X of the Letters Patent, in which they prayed for setting aside that order. 2. Advertisement (Annexure P-2) was issued by the HP for appointment of retail outlet dealership in different cities, including Gurgaon. The guidelines for selection, including evaluation criteria, was contained in the
L.P.A. No. 469 of 2010 -3- brochure (Annexure P-3), which was made available at the cost of ` 50/-. As per that criteria, four marks were to be awarded for business experience. For experience in retail trade of petroleum products, four marks were to be awarded and that experience was to be taken into consideration on furnishing of documentary evidence, along with the application, to establish the relevant service and Managerial/Supervisory experience of one year. As per the said advertisement issued on 16.7.2007, the petitioner, Varinder Kumar and others applied for that retail outlet dealership in the city of Gurgaon. The Selection Committee after following the parameters for selection, as mentioned in the brochure, selected the candidates and the list of selected candidates was displayed on the notice board and the website. Different marks, which were allocated for experience etc., were mentioned in the said result. In view of the marks so allocated, Varinder Kumar was selected and the retail outlet dealership was allotted to him. On 10.12.2007, the petitioner filed a complaint projecting his grievance regarding the non awarding of the marks for business experience. That complaint was rejected on 12.6.2008. The Letter of Intent was issued to Varinder Kumar on 30.9.2008. 3. The petitioner pleaded in the writ petition that he had been doing the business of running a retail outlet of IBP Company and had the experience of running that dealership from 30.1.2003 to 1.11.2006. Thereafter, he had withdrawn from the partnership to devote more time to his other business. He was actually running a petrol outlet at Gurgaon. He had better experience than Varinder Kumar, who had submitted only the experience certificate of one of the retail outlet dealership indicating that he had worked as Sales Promoter with Santi Service Station, New Delhi, from 1.6.2005 to 31.7.2006. That certificate appears to be procured. He submitted the Dealership Agreement with his application and had the actual experience of successfully running the
L.P.A. No. 469 of 2010 -4- retail outlet of IBP. He had also been helping his mother Smt. Krishna Singh in running another outlet of HP at Gurgaon. He could not have been awarded zero mark regarding the work experience. He was bound to be awarded four marks on account of business experience possessed by him. 4. The respondents arrayed in the writ petition filed written statement in which they submitted that with the application form, the petitioner only submitted letter of selection/award dated 25.1.2003 from IBP company and letter dated 1.11.2006 from that company whereby his resignation from the retail outlet dealership was accepted. The Dealership Agreement dated 4.10.2006 was not enclosed with the application form. Letter dated 25.1.2003 did not disclose the date from which the petitioner was actually appointed as the dealer. On account of the non-production of the Dealership Agreement, zero mark was rightly awarded to him regarding the business experience. Moreover, in the selection list, the petitioner was placed at Sr. No. 8, whereas Varinder Kumar was placed at Sr. No. 2. Being much lower in rank, it cannot be said that any of his legal right has been infringed and he cannot invoke extra ordinary writ jurisdiction. Having failed to produce the documents for proving the work experience of one year, he cannot claim four marks. 5. We have heard learned counsel for both the sides. 6. While challenging the legality of the order passed by the learned Single Judge, it has been submitted by counsel for the appellants that the nature and sufficiency of proof, regarding the business experience, was to be seen by the Selection Committee and this Court cannot sit in appeal on the decision of that Selection Committee. It was required to take into consideration only those documents which were annexed with the application. It was made clear in the advertisement as well as in the brochure that no additional document, whatsoever, will be accepted or considered after the cut off date of the
L.P.A. No. 469 of 2010 -5- application, which was 20.8.2007. The petitioner, in column No. 7 of his application form, mentioned that he had been a dealer of IBP Company Limited from 25.1.2003 to 1.11.2006. The documents submitted by him with his application form were inconsistent with that statement and in fact contradicted the same. As per his educational qualification certificate, he passed LLB examination in the year 2004 from a college situated at Agra. Therefore, it cannot be said that he had the business experience during the years 2003-2004, as he could not have attended to his studies and business at two far of places at the same time. As per the Income Tax Return, which also forms part of the application, the petitioner had income only from the salary for the financial year 2004-2005. Then how it can be said that he was running any such retail outlet. Therefore, no fault can be found in the decision of the Selection Committee to the effect that no mark was to be awarded to the petitioner in respect of business experience. Thus, the order passed by learned Single Judge that the petitioner is entitled to four marks for business experience cannot be said to be legal. They also tried to submit that the learned Single Judge was not competent to pass an order awarding those marks and at the most only direction could have been issued to the concerned authority for awarding the marks as per the business experience. According to them, the retail outlet was allotted to Varinder Kumar on 30.9.2008/8.12.2008 and that is being run since that date and it will not be in the interest of justice to cancel that dealership. Moreover, even if the petitioner is awarded four marks for the business experience, he will be just at par with Varinder Kumar, who is younger in age and as per the policy of the HP, if two candidates, secure the same marks, then the candidate who is younger in age is to be preferred. 7. On the other hand, it has been submitted by learned counsel for the petitioner that the documents, filed with the application by the petitioner, were
L.P.A. No. 469 of 2010 -6- sufficient for coming to the conclusion that he had the working experience of running a retail outlet of petroleum products from 2003 to 2006. No doubt, he was student of LLB up to June 2004 in a college at Agra, but he had been attending to the retail outlet during his spare time. Even if the period up to 2004 is excluded, even then he is left with experience of more than one year, as he resigned from that dealership only in the year 2006. On the basis of the Income Tax Return, it cannot be concluded that no such retail outlet was being operated by the petitioner. In fact, there were no profits from that outlet and as such, no profits were shown in the Income Tax Return. The Selection Committee, as per the criteria laid down in the brochure, was bound to award four marks for the business experience and the learned Single Judge did not commit any such illegality while awarding those marks. Merely on the ground that Varinder Kumar is younger in age, he is not to be preferred to the petitioner as there was no such policy at the time, the dealership was awarded to Varinder Kumar. He prayed for dismissal of the appeal. 8. Learned counsel for the appellant relied upon AIR 1990 SC 434 ( D.A.Solunke and others v. B. S. Mahajan and others) wherein it was held as under:- “It will thus appear that apart from the fact that the High Court has rolled the cases of the two appointees in one, though their appointments are not assailable on the same grounds, the Court has also found it necessary to sit in appeal over the decision of the Selection Committee and to embark upon deciding the relative merits of the candidates. It is needless to emphasise that it is not the function of the Court to hear appeals over the decisions of the Selection Committees and to scrutinize the relative merits of the candidate tes. Whether a candidate is fit for a particular post or
L.P.A. No. 469 of 2010 -7- not has to be decided by the duly constituted Selection Committee which has the expertise on the subject. The Court has no such expertise. The decision of the Selection Committee can be interfered with only on limited grounds, such as illegality or patent material irregularity in the constitution of the Committee or its procedure vitiating the selection, or proved mala fides affecting the selection etc. It is not disputed that in the present case the University had constituted the Committee in due compliance with the relevant statutes. The Committee consisted of experts and it selected the candidates after going through all the relevant material before it. In sitting in appeal over the selection so made and in setting it aside on the ground of the so called comparative merits of the candidates as assessed by the Court, the High Court went wrong and exceeded its jurisdiction.” 9. He also cited AIR 1990 (Calcutta) 412 (Chinmoy Sarkar and others v. Md. Shaniat Hossain and others) in support of his contention that the High Court cannot re-appreciate the factors taken into consideration by the Selection Board after weighing various things. 10. The distinction is to be made regarding the assessment of a candidate based upon his performance in the interview and the awarding of the marks for educational qualifications etc. on the basis of the parameters laid down by the concerned authority. The awarding of the marks for the performance of a candidate in the interview, is certainly beyond the scrutiny of the Courts, unless mala fides are alleged. The assessment of a candidate on the basis of the interview, the expertise of the members of the Selection Committee/Board is involved, but when it comes to the awarding of the marks on the parameters laid down, then certainly the Court can look into the decision
L.P.A. No. 469 of 2010 -8- of the Selection Committee/Board in order to ascertain if those marks have been correctly awarded as per the laid down parameters. It does not amount to sitting in appeal on the decision of the Selection Committee. It amounts to adjudging the correctness of the marks awarded by the Selection Committee as per the laid down parameters. 11. The dispute between the parties is only regarding the awarding of the marks under the head “Business Experience”. It is mentioned in the brochure (Annexure P-3) itself how the marks were to be awarded for that experience. For retail trade of petroleum products, four marks were to be awarded, if a candidate had experience of one year. It is also very much clear from the advertisement and said brochure that the Selection Committee was to consider only the documents filed with the application and no additional documents were to be accepted. The petitioner stated in his application that he was dealer of IBP Company Limited from 25.1.2003 to 1.11.2006 and in support of that contention filed with the application, two documents. The first document was letter dated 25.1.2003 from IBP Company Limited, regarding award of retail outlet dealership at Bhadus, District Gurgaon (Haryana) to the petitioner and his partner Mrs. Manju Jain. The second is the letter dated 1.11.2006 of that company, vide which the request made by the petitioner for his resignation from that dealer ship was accepted. We do not find any merit in the contention of the counsel for the appellant that merely on the basis of these documents, it cannot be held that such a dealership was awarded to the petitioner and that he had experience in the sale of petroleum products for the requisite period, in the absence of any regular agreement between him and the concerned oil company awarding the dealership and that such a document was executed only in the year 2006. The offer was made vide this letter dated 25.1.2003 and that offer was accepted by the petitioner as is very much clear
L.P.A. No. 469 of 2010 -9- from the endorsement at the bottom of that letter itself. Merely on the ground that the regular agreement was executed in the year 2006, it cannot be held that dealership had not been awarded to the petitioner on 25.1.2003. If no such dealership was awarded, there was no question of the petitioner resigning vide letter dated 1.11.2006. 12. The question before the Selection Committee was not whether such a dealership had been awarded but the question before it was whether the petitioner had the working experience in the retail trade of petroleum products for a period not less than one year. Merely awarding of the dealership, does not mean that the petitioner was having that working experience in the trade. He was required to place on record the documents much more than these two letters. Along with the application, he also filed his educational qualifications certificate and as per that certificate, he passed part III examination of LLB in the year 2004. He was the student of Aditya College of Law, Agra, whereas the dealership was for Gurgaon. As per condition No. 7 of the letter of award dated 25.1.2003, the outlet dealership was to be operated by the petitioner personally as full time working dealer. He cannot be said to be a full time working dealer during the period he was doing his LLB at Agra. In support of his being income tax assessee, he filed with application Income Tax Return for the financial year 2005-2006. In that Income Tax Return, he had shown only income from salary to the tune of Rs. 98,400/-. No income from business or profession was shown therein. By referring to the Income Tax Return of the other partner, namely; Manju Jain, counsel for the petitioner tried to assert that such an income was required to be shown in the Income Tax Return only in case there was income from business or profession. As there was no such income from business or profession, so the same was not shown in the Income Tax Return. If that is so, then how the petitioner has contended that he was
L.P.A. No. 469 of 2010 -10- running this retail outlet. The marks were not to be awarded only on account of awarding of that outlet dealership but, were to be awarded for actual working experience. The non showing of any income from that dealership itself shows that it was not being run and as such, Selection Board correctly awarded zero mark for the business experience to the petitioner. That finding of the Selection Committee is based upon the documents filed with the application which were to be looked into by it. Therefore, the order of learned Single Judge issuing a direction for awarding four marks and for reconsidering the case of the petitioner cannot be sustained. Even if four marks are awarded to the petitioner, even then, he will come only at par with Varinder Kumar. Again it will be for the Selection Committee to select one of them. According to the counsel for the appellants, as per the directions prevailing at the relevant time, from amongst the candidates securing same marks, candidate younger in age, was being preferred. However, it was refuted by the counsel for the petitioner that such a direction was prevailing. At the time of arguments, letter dated 14.1.2010 of HP was shown to us, which contains the policy to be followed where the empanelled candidates secure same total marks resulting in a tie. As per that policy, from amongst such candidates, the candidate who is younger in age, is to get preference over the others. Though, this policy has been laid down subsequently, but the same can be a guiding factor for the Selection Committee for selecting a candidate from amongst the candidates who have secured equal marks. Admittedly, Varinder Kumar is younger in age as compared to the petitioner and in case of tie, he is to be preferred to the petitioner. 13. It is also a fact that the retail outlet is being run by Varinder Kumar after the issuance of Letter of Intent dated 30.9.2008 and letter of appointment dated 8.12.2008. It will not be in the interest of justice to upset him by issuing
L.P.A. No. 469 of 2010 -11- such like direction to the Selection Committee after such a long time. 14. Accordingly the appeals are allowed. The order passed by the learned Single Judge is set aside.
(M.M.KUMAR) (GURDEV SINGH) JUDGE JUDGE July 21, 2011 PARAMJIT