Punjab-Haryana High Court
Meenakshi Yadav vs Indian Oil Corporation Ltd. And Another on 1 October, 2013
Author: Rameshwar Singh Malik
Bench: Rameshwar Singh Malik
CWP No.13911 of 2012 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH.
CWP No.13911 of 2012
Date of Decision : 1.10.2013
Meenakshi Yadav .....Petitioner
Vs.
Indian Oil Corporation Ltd. and another ....Respondents
...
CORAM : HON'BLE MR. JUSTICE RAMESHWAR SINGH MALIK ...
Present : Mr. Amit Jhanji, Advocate for the petitioner.
Mr. Ashish Kapoor, Advocate for the respondents.
...
1. To be referred to Reporter or not ?
2. Whether the judgement should be reported in the Digest ?
...
RAMESHWAR SINGH MALIK, J The present writ petition is directed against the impugned communication dated 29.6.2012 (Annexure P-16) issuing show cause notice to the petitioner for cancelling her Letter of Intent dated 26.2.2010 (Annexure P-
5). The petitioner also seeks a writ of mandamus directing the respondents to withdraw the impugned communication dated 15.4.2010 (Annexure P-10), whereby Letter of Intent issued in favour of the petitioner, was kept in abeyance.
Sahni Greesh2013.10.28 10:01 I attest to the accuracy and integrity of this document High Court, Chandigarh CWP No.13911 of 2012 2
Facts first.
In response to the advertisement dated 9.11.2007 (Annexure P-1) issued by the respondents, petitioner submitted her application (Annexure P-2) for LPG Distributorship of M/s Indian Oil Corporation Limited at Village Badshahpur, Distt. Gurgaon. Petitioner also attached with her application all the requisite documents pertaining to her educational qualification and experience, so as to show her eligibility. The application including the attached documents was running into more than 45 pages from pages 33 to 78-B of the paper book. After close scrutiny of the application alongwith documents attached thereto, the petitioner was found eligible and she was called for interview, vide letter dated 8.8.2009 (Annexure P-3).
Petitioner appeared for the interview before the Selection Committee on the scheduled date and time alongwith originals of all the documents enclosed with her application, as directed vide Annexure P-3. On the basis of interview held by the Selection Committee, merit list was prepared and the petitioner was placed at No.1 as per letter dated 27.8.2009 (Annexure P-4). Consequently, Letter of Intent was issued in favour of the petitioner, vide letter dated 26.2.2010 (Annexure P-5), asking the petitioner to complete all the formalities for proposed LPG Distributorship. Petitioner was also informed vide letter dated 12.3.2010 (Annexure P-6) that the State Management has approved the name of the proposed distributorship as "M/s Badshahpur Indane".
Proceeding on legitimate expectation, petitioner started constructions, applied to different departments seeking registration certificates like under Section 11 of the Haryana Value Added Tax Act 2003, Bharat Sanchar Nigam Limited, National Insurance Company etc., which is clear from Sahni Greesh 2013.10.28 10:01 I attest to the accuracy and integrity of this document High Court, Chandigarh CWP No.13911 of 2012 3 Annexure P-7 (colly) and Annexure P-8 (colly). Petitioner completed the construction and set up the office as per photographs Annexure P-9 (colly). In the meantime, respondents got conducted a Field Investigation Report at the site, so as to satisfy themselves about the progress made by the petitioner for commissioning the distributorship. The Field Investigation Report was found upto the mark.
After the petitioner had completed all the formalities, including the completion of construction, setting up of office, completing all other official formalities for the purpose of commissioning the distributorship at the site, investing huge amount, respondents issued letter dated 15.4.2010 (Annexure P-10) pointing out that a `VIP Reference' has been received and till a final decision is taken with regard to the complaint (Annexure P-11), further progress for commissioning of the distributorship will be kept in abeyance. Petitioner submitted representation Annexure P-12 (colly). Respondent no.2 constituted a Field Investigating Committee and got conducted the enquiry into the matter. Petitioner was asked to submit the complete information again, which she did. Petitioner was directed to appear in the office of Chief Vigilance Officer of respondent no.1. As many as 11 questions were asked from the petitioner, which she replied. Statement of the petitioner in question- answer form was recorded on 9.9.2010 (Annexure P-13). Petitioner sought information under the Right to Information Act, which was supplied to her vide Annexure P-14 (colly). She made further representations as Annexure P-15 (colly), repeatedly clarifying her stand, but no action was being taken. Instead of allowing the petitioner for commissioning of the distributorship, respondents issued the impugned show cause notice dated 29.6.2012 (Annexure P-16) proposing to cancel the Letter of Intent dated 26.2.2010. Hence, this writ Sahni Greesh 2013.10.28 10:01 I attest to the accuracy and integrity of this document High Court, Chandigarh CWP No.13911 of 2012 4 petition.
Notice of motion was issued and in the meantime, passing of the final order was stayed. Respondents appeared and filed their written statement. Petitioner filed her rejoinder to the written statement filed on behalf of the respondents.
Learned counsel for the petitioner submits that the petitioner has been treated by the respondents in the most arbitrary manner. They have glaringly violated the provisions of clause 12.1 of their own guidelines contained in Annexure P-1. He further submits that it was neither a case of concealment nor that of misrepresentation. Respondents have not disputed the genuineness of the qualification certificates and also the experience of the petitioner. There was no scope of any VIP Reference in the guidelines issued by the respondents. No allegation of malafide was even alleged against any of the members of Selection Committee or the petitioner. Similarly, there was no allegation of any connivance between the members of the Selection Committee and the petitioner. He next contended that the Member of Parliament had no locus standi in the matter for more than one reasons. He was not one of the applicant. He hails from a different State. He has not disclosed the source of information. He also submits that since the respondents have virtually decided the matter finally, issuing the impugned show cause notice was only a formality and in the given facts of the case, the present writ petition would be maintainable even against the show cause notice. To substantiate his arguments, he relies upon judgements of the Hon'ble Supreme Court in Sajeesh Babu K Vs. N.K. Santhosh and others, 2012(12) SCC 106 and Virender Chaudhary Vs. Bharat Petroleum Corporation and others, 2009 (1) SCC 297, order dated 16.9.2008 passed by a Division Bench of this court in Sahni Greesh 2013.10.28 10:01 I attest to the accuracy and integrity of this document High Court, Chandigarh CWP No.13911 of 2012 5 CWP No.15681 of 2007 (M/s Shree Gomukh Marketing Pvt. Ltd. Vs. Hindustan Petroleum Company Ltd. Panipat and another). Finally, he prays for setting aside the impugned show cause notice, by allowing the present writ petition.
Per contra, learned counsel for the respondents submits that the petitioner submitted some extra documents of experience, which cast suspicion because the time period thereof was overlapping. He further submits that the petitioner has approached this court, impugning only a show cause notice. The writ petition was not maintainable at this stage, being pre-mature. To buttress his arguments, learned counsel for the respondents relies upon a judgement of the Hon'ble Supreme Court in Special Director and another Vs. Mohd. Ghulam Ghouse and another 2004 (3) SCC 440. He prays for dismissal of the writ petition.
Having heard the learned counsel for the parties at considerable length, after careful perusal of the record of the case and giving thoughtful consideration to the rival contentions raised, this court is of the considered opinion that action of the respondents is arbitrary on the face of it. Keeping in view the given fact situation of the present case, the instant writ petition deserves to be allowed with costs. To say so, reasons are more than one, which are being recorded hereinafter.
It has gone undisputed on record that after scrutiny of the application and documents submitted therewith, the petitioner was found eligible. She was called for interview. Petitioner appeared for interview before the Selection Committee on the scheduled date and time. After evaluation of comparative merits of the candidates on the basis of parameters laid down for the said purpose, the petitioner was found most suitable candidate and she was Sahni Greesh 2013.10.28 10:01 I attest to the accuracy and integrity of this document High Court, Chandigarh CWP No.13911 of 2012 6 placed at Sr.no.1 of the merit list prepared by the Selection Committee at Annexure P-4 dated 27.8.2009.
Thereafter, a Field Investigation was got conducted. The Field Investigating Team visited the premises of the petitioner, conducted the physical verification about all the relevant aspects of the matter and came to the conclusion in favour of the petitioner. Everything was found in order and nothing objectionable was found against the petitioner. After getting themselves satisfied, respondents issued the Letter of Intent proposing to offer LPG Distributorship to the petitioner at the site in question, vide communication dated 26.2.1010 (Annexure P-5). Petitioner started making investment at the site by raising construction and seeking different kinds of certificates from all the concerned departments.
As per the terms and conditions of Letter of Intent (Annexure P-5), petitioner completed all the formalities, so as to prepare herself for commissioning the distributorship, thereby proceeding on a legitimate expectation of getting final permission for commissioning the distributorship. However, when the petitioner was ready in all respects for commissioning the distributorship, respondents issued letter dated 15.4.2010 (Annexure P-10) and the relevant part thereof, reads as under :-
" Sub : Proposed LPG distributorship at Badshahpur, District Gurgaon.
Madam, This is in reference to the Letter of Appointment (LOI) Ref :
KAO/New LPG/Badshahpur dt.26/2/2010 issued to you wherein you were advised to complete all the formalities as stated in the LOI with regards to commissioning of LPG distributorship. Sahni Greesh 2013.10.28 10:01 I attest to the accuracy and integrity of this document High Court, Chandigarh CWP No.13911 of 2012 7
Our State Office has informed us that they have received a VIP Reference with regards to issuance of LOI to you. Till such time a final decision is taken with regard to the complaint, further progress for commissioning of the distributorship is kept in abeyance."
The petitioner represented to the respondents and also sought the information, as to what was the `VIP Reference', as pointed out in the above said letter dated 15.4.2010. She came to know about the letter dated 5.1.2010 (Annexure P-11) written by the Member of Parliament, Supaul (Bihar). The relevant contents of letter Annexure P-11, read as under :-
" I came to know from reliable sources that inspite of the following discrepancies in the documents submitted by Smt. Meenakshi Yadav, GM, DSO has ordered for the release of LOI in her favour.
- The business experience shown by the candidate is of the same duration during which the candidate has acquired academic qualifications of PGDBM and Ph.D How this can be possible ? IOCL should have registered a case against her as well as the firm who has fabricated such documents to get an undue benefit. A company can issue certificate to take tax exemption benefit but cannot be allowed to take advantage of such matters for defeating the intent of govt. guidelines.
- The lease deed attached with the application for godown land and shop is not registered but the L-1 committee appointed for scrutinizing the papers deliberately ignored this thing and awarded full marks under the head to facilitate the selection of Sahni Greesh 2013.10.28 10:01 I attest to the accuracy and integrity of this document High Court, Chandigarh CWP No.13911 of 2012 8 the candidate. Moreover, lease deed document does not have the signature of the co-owner of the land and hence whole document is unreliable. This needs to be thoroughly investigated that on what basis company officials ignored all these discrepancies while allotting the marks at the L-1 stage which is normally do not happen and has been followed in respect of other cases.
- The land is also under the acquisition process of Haryana govt.
and hence cannot be said to a clear title of land.
- The valuation report of the property is also not from a authorized valuer and hence marks awarded under this head is not justified."
A bare reading of the above said letter would show as if the author thereof was having the knowledge of minute details about the selection process and the documents of the petitioner, as well. However, no source of information had been disclosed. The tenor of this letter shows as if its author was sitting in appeal over the selection made by the competent authority. Interestingly, exactly the same questions were put to the petitioner by the Field Investigating Committee, as posed in the above said complaint letter (Annexure P-11).
The statement of the petitioner recorded in question-answer form on 9.9.2010 appended as Annexure P-13, reads as under :-
"Q1. Please introduce yourself.
A1. Myself Meenakshi Yadav W/o Shri Bharat Singh Yadav R/o 323 Narnaul Road, Rewari.
Q2. What is your qualification ?Sahni Greesh
2013.10.28 10:01 I attest to the accuracy and integrity of this document High Court, Chandigarh CWP No.13911 of 2012 9 A2. B.S.C. B.Ed. MA, PGDBA and Ph.D. Q3. You have done B.Ed. From MDU Rohtak, was it full time course or part time ? What is the duration of the course ?Which year you completed the course ?
A3. This is the full time course. 1 year course (1998-1999) and completed in 1999.
Q4. About your qualification in PGDBA, Please state whether it was regular or correspondence course ? What is the duration of the course ? Which year you completed the course ?
A4. This one is correspondence course duration is 2 years 2003- 2005 completed in 2005.
Q5. About MA English, please state whether it was regular or correspondence course ? What is the duration of the course ? Which year you completed the course ?
A5. This is the distance education and attended the classes on Sunday and holidays. The duration of the course is 2 years (2001- 2002) and completed the course in 2002.
Q6. Have you submitted some of the undated experience certificates to the FIR committee ?Can you recall ?
A6. I cannot recall the undated certificates submitted by me. Q7. Have you not submitted any salary slip/appointment letter to FIR committee as per general instruction in the advertisement to the applicant for making LPG distributorship application ? Do you have those papers ?
A7. I have not submitted any salary slips or any appointment letter to FIR committee. I was not asked to submit that by the FIR Sahni Greesh 2013.10.28 10:01 I attest to the accuracy and integrity of this document High Court, Chandigarh CWP No.13911 of 2012 10 committee. Yes we have appointment letters which we have submitted later in the month of July 10 to FIR committee. Q8. Was it possible to have various experience certificate with concurrent time period ?
A8. Yes, it is possible because all the businesses for which the experience certificates have been submitted along with application form were run from one place i.e. Our home and all the businesses are our family businesses. Area of concern of both the businesses are almost same i.e. Rewari and Gurgaon.
Q9. You did not submit partition deed to FIR committee during first visit. Is it correct ? Do you want to tell something ? A9. Yes, it is correct because the people who have partition deed was not available at the time of FIR committee visit. After he came, we submit the same to the concern office.
Q10. In lease deed submitted alongwith application form only one co owner has made the document. Where is the consent of co owner at the time ?
A10. Yes, Smt. Savita Yadav had made the document of lease deed because we had taken the portion of Smt. Savita Yadav only. The share of both the co owners was partitioned earlier to lease deed i.e. in 30.10.2007 by the both co owners i.e. Smt. Savita Yadav and Smt. Santosh Yadav. Therefore consent of Smt.Santosh Yadav was not required.
Q11. Do you want to say anything more ?
A11. Yes, nothing to add any more."
From the narration of facts recorded herein above, following three Sahni Greesh 2013.10.28 10:01 I attest to the accuracy and integrity of this document High Court, Chandigarh CWP No.13911 of 2012 11 important questions of law fall for consideration of this court :-
(i)Whether the respondents have violated the provisions of clause 12.1, while entertaining the complaint after the stipulated period ?
(ii)Whether present one was a case of concealment or misrepresentation on behalf of the petitioner, particularly when the genuineness of documents of the petitioner was not disputed ?
(iii)Whether in the absence of any allegation of malafide or connivance against any of the three members of the Selection Committee or the petitioner, action of the respondents while issuing letter dated 15.4.2010 (Annexure P-10) and show cause notice dated 29.6.2010 (Annexure P-16) was unreasonable and arbitrary being violative of Article 14 of the Constitution of India.
Taking the first question first, clause 12.1 and relevant part of clause 11 contained in notice for appointment of LPG Distributorship (Annexure P-1), read as under :-
"11. Selection Process and Evaluation criteria The LPG distributor will be selected on the basis of evaluation of all eligible applicants on the following parameters.
a. Capability to prove infrastructure 35 marks
b. Capability to provide finance 35 marks
c. Education qualifications 15 marks
d. Age 4 marks
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CWP No.13911 of 2012 12
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 are document based and will be done on the basis of information given in the application. The evaluation on the parameter e to g will be done based on the interview. On verification if it is found that the information given in application is incorrect/false/misrepresented then the applicants candidature will stand cancelled and will not be eligible for distributorship."
12.1 A representation/complaint shall be entertained only if it is received by the office concerned within a month from the date of declaration of result."
A bare reading of the above said provisions would show that clause 11 deals with the selection process and evaluation criteria. The parameters for evaluation are based on documents. The second part of clause 11 talks about the verification of the information given in the application. Further, clause 12.1 provides the outer limit of time, after which no complaint shall be entertained and the time prescribed is one month from the date of declaration of result. However, in the present case, the result of interview was declared vide Annexure P-4 dated 27.8.2009, whereas the first impugned communication (Annexure P-10) came to be issued by the respondents, as late as on 15.4.2010, which was hopelessly time barred. It is so said because the guidelines containing the selection process, evaluation criteria and maximum Sahni Greesh 2013.10.28 10:01 I attest to the accuracy and integrity of this document High Court, Chandigarh CWP No.13911 of 2012 13 time limit for entertaining any complaint within one month from the date of declaration of result, as depicted from Annexure P-1, are not only meant for the contesting candidates, but are also binding on the respondents. Having said that, this court feels no hesitation to conclude that while entertaining a time barred complaint, the respondents have acted without jurisdiction and glaringly violated their own guidelines, because of which the impugned action has been found to be wholly unreasonable and unjust, which cannot be sustained. The first question, therefore, is answered in favour of the petitioner and against the respondents.
Now coming to the 2nd question, petitioner submitted a self contained application alongwith all the requisite documents vide Annexure P-2 running into more than 45 pages. All the certificates pertaining to the educational qualification as well as the documents pertaining to the experience were attached by the petitioner alongwith her application. Since the family of the petitioner was already in the similar business for quite some long time, she give the relevant details in this regard, which are available at page 53 of the paper book and read as under :-
" Our family is in business of transportation at Indian Oil Corporation Ltd., Rewari since 1996. We are in the business of transportation of petroleum products. We have 18 tank trucks in our family, out of which 17 tank trucks are attached with Indian Oil Corporation Ltd., Rewari Terminal and other locations. I am looking after the business since my marriage i.e. April 2000.
My husband had operated acoco named "Coco Nangal Teju"
for period 30.9.2003 to 11.2.2004. During that period I also with my husband keep supervision of pump activities. After that my Sahni Greesh 2013.10.28 10:01 I attest to the accuracy and integrity of this document High Court, Chandigarh CWP No.13911 of 2012 14 mother in law got the dealership of the aforesaid R.O. (now Shree Shyam Auto Fuels) since than I am working as a Manager of the pump. I have complete knowledge of daily activities of pump i.e. Inspection of dispensing units, taking density of products, keeping the records update.
At the aforesaid site there was a pump named "Teju Service Station" whose monthly sale was less than 100 K.L. but as we starting our R.O. at the same site our average monthly upliftment is more than 400 K.L. which proves our capability.
We have a mineral water unit at Rewari (now it is shifted to village Garhi, Gurgaon. We are supplying our product in the market of Gurgaon District. I am looking after sales and marketing of the product since April 2004. We are producing packaged drinking water in 20 ltrs. Jars. We are supplying the product from door to door, as well as corporate clients. For this purpose we have 4 nos. of Autos (Three Wheelers) and 2 Tata 407 trucks.
Also my husband is appointed the marketing agent 1 ltr. Packed kerosene of M/s Indian Oil Corporation Ltd. in the district of Gurgaon and Faridabad. For this purpose, we are maintaining infrastructure consist of 2 trucks and 8 autos (Three Wheelers).
We have arranged the land for godown and showroom for the proposed distributorship on lease for 15 year from our family friends and his wife. Showroom is situated on Gurgaon-Sohna Road, Badsahpur and space for godown is Approx. 9.9 K. from showroom.
Sahni Greesh 2013.10.28 10:01 I attest to the accuracy and integrity of this document High Court, Chandigarh CWP No.13911 of 2012 15
Applicant (Meenakshi) Note : Experience Certificate from the pump and Shree Shyam Aqua Pvt. Ltd. attached)"
It goes without saying that at every stage of the selection process, documents and information supplied by the petitioner were repeatedly scrutinised and were found in order. Field Investigation Report was got conducted and the same was also found in favour of the petitioner. In compliance of the communication dated 8.8.2009 (Annexure P-3), the petitioner produced the originals of all the documents enclosed with her application, including proof of age, educational qualifications and experience etc. at the time of interview, before the Selection Committee. All the documents of the petitioner were compared with the originals. Genuineness of each and every document was duly established. No objection of any kind, whatsoever, was raised by any of the respondent authorities. In this view of the matter, it is unhesitatingly held that the present one was not a case of concealment or misrepresentation on the part of the petitioner. There was no scope, whatsoever, to level any kind of allegation against the petitioner at any point of time during the entire selection process. In fact, the petitioner was found as a genuine, bonafide and eligible candidate fulfilling all the eligibility conditions, including the evaluation criteria. Thus, the 2nd question posed above is decided against the respondents and in favour of the petitioner.
Coming to the 3rd question posed herein above, it has been found to be a matter of record that the genuineness of the educational qualifications, experience certificates and other particulars of the petitioner had never been in doubt. Even during the course of hearing, learned counsel for the respondents Sahni Greesh 2013.10.28 10:01 I attest to the accuracy and integrity of this document High Court, Chandigarh CWP No.13911 of 2012 16 could not raise any doubt on the genuineness of the documents of the petitioner. Once it is so, there was no room for doubt about the genuineness of the candidature of the petitioner and the documents supplied by her alongwith her application. Thus, in the absence of any doubt about the genuineness of the documents qua educational qualification and experience of the petitioner, action taken by the respondents was not only unjust, unreasonable and arbitrary, but the same was without jurisdiction, as well, therefore, cannot be sustained.
Another ancillary question that arises for consideration of this court is, as to what could be the scope of a VIP Reference and that too, much after the lapse of outer time limit for entertaining any such complaint. During the course of hearing, when a pointed question was put to learned counsel for the respondents in this regard, as to how a VIP Reference will find place in the selection process, he had no answer. Similarly, learned counsel for the respondents could not furnish any plausible explanation as to how a Member of Parliament from Supaul (Bihar) would have any justifiable reason to make such a reference as contained in Annexure P-11 dated 5.11.2011, about the selection process for a location in the State of Haryana. There seems to be some other reason and one need not to go too far to find out the same. However, this court restrains from commenting any further on this issue.
Principle of legitimate expectation evolved by the Hon'ble Supreme Court a few decades ago, is clearly attracted in the present case. While issuing Letter of Intent in favour of the petitioner vide Annexure P-5 dated 26.2.2010, petitioner was asked to complete the formalities. Immediately thereafter, petitioner started doing the needful. Proceeding on the principle of legitimate expectation, petitioner invested huge amount in raising the Sahni Greesh 2013.10.28 10:01 I attest to the accuracy and integrity of this document High Court, Chandigarh CWP No.13911 of 2012 17 construction, setting up the office and other necessary infrastructure, so as to enable herself for commissioning the distributorship. Thus, no fault can be found with the petitioner in this regard, as well. On the other hand, action of the respondents while issuing the impugned communication dated 15.4.2010 (Annexure P-10) based on a VIP Reference was wholly without jurisdiction, while keeping the commissioning of the distributorship of the petitioner, in abeyance.
Principle of estoppel shall also apply against the respondents and in favour of the petitioner. After having found the petitioner fully eligible, competent and entitled for the LPG distributorship, she was rightly placed at Sr.No.1 in the merit list as per Annexure P-4. Thereafter, Letter of Intent was rightly issued in favour of the petitioner, vide Annexure P-5 dated 26.2.2010 asking the petitioner to procure a suitable piece of land, to provide a show room, make all financial and other arrangements for operating the distributorship, infrastructure for home delivery of LPG cylinders and making all out efforts for commissioning the distributorship. Petitioner proceeded further on a bonafide approach trying to comply with the terms and conditions of Letter of Intent Annexure P-5 meticulously, as well as in their true letter and spirit. Once the petitioner has invested the huge amount for the above said purpose changing her position, the respondent authorities would be estopped from passing the impugned orders and taking impugned action, thereby adversely affecting the valuable rights of the petitioner, which had accrued in her favour.
Viewed from any angle, the impugned action taken by the respondents cannot be said to be just and reasonable by any stretch of imagination. Another aspect of the matter, which shows that the respondent Sahni Greesh 2013.10.28 10:01 I attest to the accuracy and integrity of this document High Court, Chandigarh CWP No.13911 of 2012 18 authorities proceeded on a prejudicial approach was that in the impugned communication dated 29.6.2012 (Annexure P-16), it has been observed at page 129 of the paper book that several complaints were received against the petitioner, whereas in the impugned communication dated 15.4.2010 (Annexure P10), it is only one VIP Reference, which was based on the letter Annexure P-11.
Further, in the impugned communication dated 29.6.2012 (Annexure P-16) it is observed at page 130 of the paper book that the misrepresentation regarding experience and higher qualifications of the petitioner was established and also that she has given false undertaking in her application. These observations made in the impugned show cause notice (Annexure P-16) leaves no manner of doubt that the respondent authorities had concluded the matter against the petitioner and the impugned action was complete. Issuing of the impugned show cause notice, in such a situation, had been left only as a formality. In these circumstances, having been fully satisfied and with a view to advance the cause of justice, this court is of the considered view that present one is a fit case for entertaining this writ petition against the show cause notice, while exercising its jurisdiction under Article 226 of the Constitution of India.
The view taken by this court also finds support from the judgement of the Hon'ble Supreme Court in Sajeesh Babu's case (supra) rendered on almost identical facts. The relevant extract of the judgement, which aptly applies to the present case, is as under :-
"3. Challenging the genuineness of the experience certificates produced by the appellant herein, Shri N.K. Santhosh-Respondent No.1 herein filed a petition being W.P.(C) No. 7622 of 2010 Sahni Greesh 2013.10.28 10:01 I attest to the accuracy and integrity of this document High Court, Chandigarh CWP No.13911 of 2012 19 before the High Court of Kerala. Learned single Judge of the High Court, by judgment dated 16.03.2011, allowed the petition and quashed the distributorship granted to the appellant herein. Against the said judgment, the appellant herein filed a Writ Appeal being No. 464 of 2011 before the High Court. The Division Bench of the High Court, by impugned judgment dated 06.04.2011, dismissed the said appeal. Aggrieved by the said judgment, the appellant has filed this appeal by way of special leave before this Court.
5. It is the claim of the appellant that the Corporation, after conducting interviews and evaluating the merits and demerits of the candidates as per the procedure prescribed under the guidelines for selection of Bharat gas Distributors, selected him for grant of licence of LPG distributorship for Edavanna, Malappuram District, Kerala. It is also pointed out that as per the tabulation sheet, the appellant had scored highest marks than the other candidates with reference to qualification, experience, age, business ability and personality and was placed in the first position whereas Respondent No.3 herein was placed in the second and respondent No.1 herein was placed in the third position.
7. In order to ascertain the correctness of the decision of the Selection Committee and the order of the learned single Judge setting aside the same and remitting it for fresh consideration as affirmed by the Division Bench, it is desirable to refer to the relevant guidelines for selection of Bharat gas Distributors. It is pointed out by the Corporation, in their counter affidavit ,before Sahni Greesh 2013.10.28 10:01 I attest to the accuracy and integrity of this document High Court, Chandigarh CWP No.13911 of 2012 20 the High Court as well as in this Court that as per Clause 14 of the guidelines, 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 100 marks It is also stated in their counter affidavit that the selection of the appellant was in accordance with the guidelines and norms governing the matter and there is no extraneous consideration in selecting him as an empanelled candidate. It is further explained that the evaluation on parameters 'a' to 'd' will be done on the basis of the information given in the application and the evaluation on parameters 'e' to 'g' will be done on the basis of the interview.
14. The experience certificates issued by M/s Sree Agencies and M/s Bajaj Allianz Life Insurance Company Ltd. were evaluated by the Selection Committee. It has already been stated in the counter affidavit filed by the Corporation that the quality of experience will be judged on the basis of the response to the questions related to experience in direct sale, home delivered products, hospitality/service industry etc. by the candidates in the interview. It has also been informed to this Court that the appellant Sahni Greesh 2013.10.28 10:01 I attest to the accuracy and integrity of this document High Court, Chandigarh CWP No.13911 of 2012 21 has been awarded 4 marks for experience by the Selection Committee consisting of 3 senior officials of the Company who are well qualified and experienced in assessing the required experience for LPG distributorship. It is further asserted that after the interview, field verification had been done by the Corporation to verify the genuineness and veracity of the documents submitted by the candidate as contemplated in clause 16 of the guidelines. It is further stated that the field verification had been conducted by a team comprising of 2 officers of the Corporation and that the team had met the Proprietor as well as Manager of M/s Sree Agencies, who confirmed that Mr. Sajeesh Babu K. (appellant herein) worked with them on a part-time basis. It is the stand of the Corporation that since the persons who have issued the experience certificate admitted its issuance, the Corporation treats the same as genuine. They also reiterated and verified that the certificates of experience have no relevance in granting marks under the parameter 'experience' as the same has been awarded on the basis of the response to the questions related to experience in the relevant field.
16. From the above discussion, it is clear that in terms of the guidelines, the Selection Committee consisting of 3 experienced persons assessed the ability of the candidates with reference to the answers for their questions and awarded marks. In the absence of any allegation as to mala fide action on the part of the selectors or disqualification etc., interference by the High Court exercising extraordinary jurisdiction under Article 226 of the Constitution of Sahni Greesh 2013.10.28 10:01 I attest to the accuracy and integrity of this document High Court, Chandigarh CWP No.13911 of 2012 22 India is not warranted.
17. To strengthen the above proposition, it is useful to refer to a decision of the Constitution Bench of this Court in The University of Mysore etc. vs. C.D. Govinda Rao & Anr., AIR 1965 SC 491. The issue therein relates to one Anniah Gowda to show cause as to under what authority he was holding the post of a Research Reader in English in Central College, Bangalore. After considering the pleadings of both the parties, consultation by an expert and the stand of the University, this Court set aside the order of the High Court and dismissed the writ petition filed by the respondent therein. While considering the said issue, the following conclusion of the Constitution Bench as to the opinions expressed by the experts and interference by the Court is relevant. It is seen that in paragraph 13 of the judgment, the Constitution Bench has noted that the High Court has criticized the report made by the Board and rejecting the criticism of the High Court in such academic matters, held as under:
".......We are unable to see the point of criticism of the High Court in such academic matters. Boards of Appointments are nominated by the Universities and when recommendations made by them and the appointments following on them, are challenged before courts, normally the courts should be slow to interfere with the opinions expressed by the experts. There is no allegation about mala fides against the experts who constituted the present Board; and so, we think it would normally be wise and safe for the Sahni Greesh 2013.10.28 10:01 I attest to the accuracy and integrity of this document High Court, Chandigarh CWP No.13911 of 2012 23 courts to leave the decisions of academic matters to experts who are more familiar with the problems they face than the courts generally can be............."
20. It is clear that in a matter of appointment/selection by an Expert Committee/Board consisting of qualified persons in the particular field, normally, the Courts should be slow to interfere with the opinions expressed by the experts, unless there is any allegation of mala fides against the experts who had constituted the Selection Committee. Admittedly, in the case on hand, there is no allegation of mala fides against the 3 experts in the Selection Committee. In such circumstances, we are of the view that it would normally be wise and safe for the courts to leave the decision of selection of this nature to the experts who are more familiar with the technicalities/nature of the work. In the case on hand, the Expert Committee evaluated the experience certificates produced by the appellant herein, interviewed him by putting specific questions as to direct sale, home delivered products, hospitality/service industry etc. and awarded marks. In such circumstances, we hold that the High Court ought not to have sat as an appellate Court on the recommendations made by the Expert Committee.
21. In addition to the same, it is also asserted by the Corporation and informed to the High Court as well as to this Court that in order to ascertain the genuineness of the contents of experience certificates Exh. P 2 and P 3, the Corporation deputed responsible persons for verification and, in fact, they met the Sahni Greesh 2013.10.28 10:01 I attest to the accuracy and integrity of this document High Court, Chandigarh CWP No.13911 of 2012 24 issuing authority and were satisfied with the correctness of their statement. In view of this aspect, we are satisfied that the learned single Judge as well as the Division Bench committed an error in interfering with the decision of the Selection Committee.
22. We have already noted that there is no allegation of mala fides against the members of the Selection Committee. Even on equity, the appellant is an unemployed M.Tech post-Graduate and the contesting respondent No.1 is working as an Assistant Engineer in the Kerala State Electricity Board, in other words, he was fully employed on the date of the selection of LPG distributorship. Looking at from any angle, the High Court was not justified in upsetting the decision of the Selection Committee, particularly, in the absence of any mala fides against them and there is no warrant for direction to re-assess the marks of the appellant afresh by excluding the marks for certificates (Exh. P 2 and P 3), particularly, in the light of the detailed explanation offered by the Corporation about the mode of selection." Similarly, in Virender Chaudhary's case (supra), the observations made by the Hon'ble Supreme Court, which can be gainfully followed in the present case, read as under :-
"20. The fifth respondent did not acquire an indefeasible right. He was selected by the Oil Selection Board. The said selection was subsequently cancelled and a letter of intent was issued in favour of the appellant in May 2004. It was not questioned immediately after issuance of the letter of intent in favour of the appellant in May 2004. In his writ application, the Sahni Greesh 2013.10.28 10:01 I attest to the accuracy and integrity of this document High Court, Chandigarh CWP No.13911 of 2012 25 fifth respondent did not question the grant of dealership in favour of the appellant. He was afforded an opportunity to amend the writ petition. He filed such an application only after 16 months. However, the writ petition itself was withdrawn and only in October 2006, the present writ application was filed. From the facts as noticed hereinbefore, there can, therefore, be no doubt that from May 2004 to October 2006, the respondent did not take any step to challenge the insurance (sic issuance) of the letter of intent granting dealership in favour of the appellant.
21. Considering the fact that starting of a business in LPG dealership requires a huge investment and infrastructure therefor is required to be provided and a large number of employees are to be appointed therefor, we are of the opinion that the High Court committed a serious error in not taking these factors into consideration in proper perspective. The impugned judgement, therefore, cannot be sustained and is set aside accordingly."
A Division Bench of this court, in M/s Shree Gurmukh Marketing's case (supra), held as under :-
" In reply, respondent no.1 has stated that in the interview held on 2.11.2006, selection was done without considering 35 marks for land and infrastructure as the land offered by all the candidates has been rejected during fresh technical inspection of the site after cancellation of the earlier selection held on 10.11.2005. Such decision was in line with the Dealers Selection Guidelines as contained in the letter dated Sahni Greesh 2013.10.28 10:01 I attest to the accuracy and integrity of this document High Court, Chandigarh CWP No.13911 of 2012 26 26.4.2005. Thus, it is argued that the petitioner has no cause to dispute the decision taken in pursuance of the interview held on 2.11.2006. In any case, the petitioner ranks lower in the merit list. The chart reflecting marks in the interview held on 10.11.2005 and 2.11.2006 shows that various parameters have been considered by the Selection Board to determine the inter-se merit. In both the selection processes, respondent No.2 is at Serial no.1, whereas the petitioner is at No.4 in the first selection process and last in the second selection process. This Court while exercising the power of judicial review, will not examine the marks given to each candidate for allotment of a commercial venture i.e. A retail outlet. It is for the Oil Company to see its business interest and to award Letter of Intent keeping in view its policies. Since all the relevant parameters have been taken into consideration, we do not find that the decision to grant the Letter of Intent to respondent no.2 is so arbitrary or unreasonable, which requires interference by this Court in exercise of its writ jurisdiction."
In all fairness to the learned counsel for the respondents, his argument that the writ petition against a show cause notice was not maintainable, is to be noted to be rejected. Admittedly, there is no allegation of malafide either against any of the members of the Selection Committee or the petitioner. There is no allegation of any connivance between the petitioner and any of the members of the Selection Committee. In the absence of any such allegation, the VIP Reference would be nothing less than an appellate order, which was totally beyond the scope of the guidelines, selection process Sahni Greesh 2013.10.28 10:01 I attest to the accuracy and integrity of this document High Court, Chandigarh CWP No.13911 of 2012 27 and evaluation criteria. The impugned action taken by the respondent authorities on the basis of such a VIP Reference has been found to be beyond their competence, besides being unreasonable and arbitrary, which cannot be sustained.
So far as the judgement relied upon by learned counsel for the respondents in Mohd. Ghulam Ghouse's case (supra) is concerned, the same is of no help to the respondents, being clearly distinguishable on facts. The relevant observations made by the Hon'ble Supreme Court in para 6 of the judgement, read as under :-
" This court in a larger number of cases has deprecated the practice of the High Courts entertaining writ petitions questioning legality of the show cause notices stalling enquiries as proposed and retarding investigative process to find actual facts with the participation and in the presence of the parties. Unless, the High Court is satisfied that the show cause notice was totally non est in the eyes of law for absolute want of jurisdiction of the authority to even investigate into facts, writ petitions should not be entertained for the mere asking and as a matter of routine and the writ petitioner should invariably be directed to respond to the show cause notice and take all stands highlighted in the writ petition. Whether the show cause notice was founded on any legal premises is a jurisdictional issue which can even be urged by the recipient of the notice and such issues also can be adjudicated by the authority issuing the very notice initially, before the aggrieved could approach the Court. Further, when the Court passes an interim order it should be careful to see that the statutory Sahni Greesh 2013.10.28 10:01 I attest to the accuracy and integrity of this document High Court, Chandigarh CWP No.13911 of 2012 28 functionaries specially and specifically constituted for the purpose are not denuded of powers and authority to initially decide the matter and ensure that ultimate relief which may or may not be finally granted in the writ petition is accorded to the writ petitioner even at the threshold by the interim protection, not granted."
It is the settled proposition of law that peculiar facts of each case are to be examined, considered and appreciated first before applying any codified or judge made law thereto. Some times, difference of even one additional fact or circumstance can make the world of difference, as held by the Hon'ble Supreme Court in Padmausundrao Rao and another Vs. State of Tamil Nadu and others, 2002 (3) SCC 533.
Recapitulating the facts of the present case and respectfully following the law laid down by the Hon'ble Supreme Court as well as by the Division Bench of this court in the cases referred herein above, the impugned action has been found to be totally without jurisdiction. In the given fact situation of the present case, the impugned show cause notice leaves no scope of any doubt that the respondent authorities have already made up their mind and the impugned show cause notice has been issued just for the sake of a formality. The document for issuing the impugned show cause notice was nothing else but the above said VIP Reference. In this view of the factual backdrop, this court is fully convinced that the respondent authorities have proceeded on wholly misconceived and prejudicial approach, while issuing the impugned show cause notice, which was totally non est in the eyes of law for want of jurisdiction.
The above said conclusion is further fortified with the reason that the respondent authorities have already scrutinised all the documents of the Sahni Greesh 2013.10.28 10:01 I attest to the accuracy and integrity of this document High Court, Chandigarh CWP No.13911 of 2012 29 petitioner, not once but many a times. Thereafter, Field Investigation Report had been received, which was again found in favour of the petitioner. After feeling fully satisfied, the respondent authorities concluded the selection process in favour of the petitioner putting her name at Sr.No.1 in the merit list. Thereafter, the Letter of Intent was issued in favour of the petitioner asking her to proceed further for providing the infrastructure and for completing other formalities, so as to commission the distributorship. Thereafter, the VIP Reference was entertained at a belated stage much after the lapse of maximum time limit of one month provided under the guidelines in clause 12.1, reproduced above. Under such circumstances, the only irresistible conclusion is that the decision making process of the respondent authorities was illegally influenced by the above said VIP Reference, which is on the face of it arbitrary and unreasonable, thus, cannot be sustained.
No other argument was raised.
Considering the peculiar facts and circumstances of the case noted above, coupled with the reasons aforementioned, this court is of the considered view that in the given fact situation of the present case, impugned action taken by the respondent authorities has been found to be patently illegal, arbitrary and without jurisdiction, which cannot be sustained. Since the petitioner has been put to wholly unwarranted harassment, the present writ petition deserves to be allowed with costs, which are quantified at ` 30,000/-.
Consequently, the impugned communication dated 15.4.2010 (Annexure P-10) and the impugned show cause notice dated 29.6.2012 (Annexure P-16) issued by the respondent authorities are herby ordered to be set aside. Respondents are directed to grant permission and facilitate the petitioner for commissioning the LPG Distributorship at Badshahpur, District Sahni Greesh 2013.10.28 10:01 I attest to the accuracy and integrity of this document High Court, Chandigarh CWP No.13911 of 2012 30 Gurgaon, without any further loss of time and in any case within a period of three months from the date of receipt of a certified copy of this order.
Resultantly, with the observations made and directions issued as herein above, the instant writ petition stands allowed.
1.10.2013 (RAMESHWAR SINGH MALIK)
GS JUDGE
Sahni Greesh
2013.10.28 10:01
I attest to the accuracy and
integrity of this document
High Court, Chandigarh