Rajasthan High Court - Jodhpur
Smt. Radha Joshi vs . Indian Oil Corporation Limited & Ors. on 1 May, 2015
Author: Sangeet Lodha
Bench: Sangeet Lodha
SMT. RADHA JOSHI VS. INDIAN OIL CORPORATION LIMITED & ORS.
(S.B.CIVIL WRIT PETITION NO.8014/12)
1
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
ORDER
SMT. RADHA JOSHI VS. INDIAN OIL CORPORATION LIMITED & ORS.
(S.B.CIVIL WRIT PETITION NO.8014/12) Dated:- 1st May, 2015.
HON'BLE MR.JUSTICE SANGEET LODHA Mr.Rajesh Joshi, for the petitioner.
Mr.O.P.Mehta, for the respondent-IOCL.
1. This writ petition is directed against order dated 6.7.12 issued by the Deputy General Manager (LPG) LPG Group, Rajasthan State Office, Indian Oil Corporation Limited (IOCL), whereby the empanelment of the petitioner for grant of LPG Distributorship, stands cancelled on account of discrepancy/misrepresentation of facts.
2. The relevant facts are that the Public Sector Oil Companies including IOCL invited applications for award of LPG Distributorship for various locations in the State of Rajasthan through an advertisement published in newspaper on 13.3.10. The petitioner and several others applied for award of Indane LPG Distributorship for the location at Sandwa, District-Churu in the category-Open (Women). After scrutiny of the applications, SMT. RADHA JOSHI VS. INDIAN OIL CORPORATION LIMITED & ORS.
(S.B.CIVIL WRIT PETITION NO.8014/12) 2 the petitioner was called for interview. The Selection Committee after conducting interviews and evaluation of the merits and demerits of the candidates, awarded the marks under different heads as per the guidelines and norms laid down in the Brochure issued by the Public Sector Oil Companies. As per the statement of the marks prepared by the Selection Committee, the petitioner had scored highest marks than the other candidates and accordingly, was placed in first position. The petitioner secured 98.17 marks whereas, the second and third empanelled candidates secured 94.50 and 91.67 marks respectively.
3. At this stage, on the basis of the complaint lodged regarding submission of false Experience Certificate by the petitioner, IOCL proceeded to investigate the matter. Vide notice dated 12.3.12 issued by the Senior Manager (E), RSO, IOCL, Rajasthan State Office, the petitioner was directed to produce inter alia following documents in proof of genuineness of the Experience Certificate:
(i) Proof of the attendance and the timing for working as Manager for period of 04.04.2004 to 15.10.2005 at M/s Raj Gas Agency, NH-89, Nokha, Bikaner Road, Dist:Bikaner.
(ii) Proof for monthly salary drawn.
(iii) Copy of Balance sheet with Income Tax Return showing the salary received during the above period.
(iv) Documents with the signature for period of
04.04.2004 to 15.10.2005 as a proof for working at M/s Raj Gas Agench, Nokha, Bikaner.
SMT. RADHA JOSHI VS. INDIAN OIL CORPORATION LIMITED & ORS.
(S.B.CIVIL WRIT PETITION NO.8014/12) 3
4. In response to the said notice, the petitioner furnished the information and documents vide communication dated 20.3.12. The petitioner clarified that she was employed with M/s. Raj Gas Service, Nokha rendering Managerial Services with the working time 3 p.m. to 8 p.m. for the period from 4.4.04 to 15.10.05 and was not employed as Manager as such. The petitioner produced the salary certificate issued by the employer in support of her Experience Certificate. That apart, in response to the communication of IOCL, M/s. Raj Gas Service also clarified the position with regard to the petitioner's employment and also furnished the documents in support thereof.
5. On the basis of the discrepancies/misrepresentation of facts, observed during the investigation vis-a-vis the information provided by the petitioner in her application form, the respondent-IOCL proceeded to cancel the empanellment of the petitioner vide order dated 6.7.12 issued by the Deputy General Manager (LPG), IOCL, Rajasthan State Office. The discrepancies/misrepresentation as pointed out in the said order read as under:
"Experience:- As per our advertisement dated 13-03- 2010, for the subject parameter, the applicant has to serve an establishment/institution for minimum one year in the capacity of supervisor/Manager/proprietor/partner involved in running a business/organization and his/her experience should be for Director Sales/Home delivered product ( in case experience is in the products or services SMT. RADHA JOSHI VS. INDIAN OIL CORPORATION LIMITED & ORS.
(S.B.CIVIL WRIT PETITION NO.8014/12) 4 which are delivered at residence of customer like LPG cylinders/Other Petroleum Products/Any other trade.
As claimed by you in your application, you had worked with M/s. Raj Gas Service, Nokha for one year & six months i.e. from 04.04.2004 to 15.10.2005.
During the investigation of complaint, you have confirmed to our investigating officer vide your letter dated 20.03.2012 that you had not worked in the capacity of Manager but worked as Managerial consultant at the subject distributorship. As such, you do not fulfill the norms of our advertisement.
Moreover, during the same period, you were a regular student of B.Sc. at Govt. M.S.College (P.G.), New Gajner Road, Bikaner. As such being a regular student for subject educational qualification and as confirmed by you vide your letter dated 20.03.2012, you were not attending the distributorship at its normal working hours for getting the business of Director Sales/Home delivered product (in this case LPG cylinders)."
Hence, this petition.
6. Learned counsel for the petitioner submitted that in column 12 of the application form, which relates to the experience of the candidate applying for award of distributorship, it is nowhere stated by the petitioner that she was in employment of M/s. Raj Gas Service, Nokha as Manager. Learned counsel submitted that in the Experience Certificate issued, it is certified by her employer that during the period from 4th April, 2004 to 15th October, 2005, the petitioner has rendered Managerial service. Learned counsel submitted that on the information being sought, it was further clarified by the petitioner as well as by her SMT. RADHA JOSHI VS. INDIAN OIL CORPORATION LIMITED & ORS.
(S.B.CIVIL WRIT PETITION NO.8014/12) 5 employer that the petitioner never worked in the capacity of the Manager but worked as Managerial consultant at the subject distributorship. Learned counsel urged that as per the evaluation criteria laid down for award of marks under the head of 'Experience', the marks are awarded on the basis of the quality rather than on the basis of amount of experience and it is specifically laid down therein that the quality of the experience will be judged based on the response to questions related to experience in direct sale, home delivered products, trade of petroleum products, hospitality/service industry etc. by the candidate in the interview and therefore, nothing turns on the question that the petitioner has not worked as full time Manager with her employer. Learned counsel submitted that the petitioner has been awarded '3 marks' for the para meter of 'Experience' obviously on the basis of her performance during the interview by the Selection Committee comprising of three officials of the IOCL, who were well qualified and experienced in assessing the required experience and therefore, the conclusion drawn by the respondent-IOCL arbitrarily regarding the discrepancies/ misrepresentation of the facts based on investigation made in the back of the petitioner, cannot be made basis for cancellation of the petitioner's empanelment for award of distributorship in question. In support of the contentions, learned counsel has SMT. RADHA JOSHI VS. INDIAN OIL CORPORATION LIMITED & ORS.
(S.B.CIVIL WRIT PETITION NO.8014/12) 6 relied upon a decision of the Hon'ble Supreme Court in the matter of "Sajeesh Babu K. vs. N.K.Santhosh & Ors.", (2012) 12 SCC 106. Learned counsel urged that the requirement of the experience is not necessary requirement to determine the eligibility of the candidate to apply for award of dealership and therefore, even the marks awarded to the petitioner under the head of "Experience" are not taken into consideration, the petitioner's first position as empanelled candidate is not disturbed and therefore, there is no reason as to why the petitioner empanelment should be cancelled on account of alleged discrepancies/misrepresentation of the facts, which are not proved on the basis of any cogent evidence on record.
7. On the other hand, the counsel appearing for the respondent-IOCL submitted that in a note appended under the column no.12, which relates to experience of the candidate, it is specifically provided that the marks will be awarded based on the information given in the application and on the answer to leading questions in connection with the experience claim during interview and further that on verification of the document, if it is found that the information given is incorrect/ false/misrepresented then the applicant's candidature shall stand cancelled and will not be eligible for distributorship. Learned counsel submitted that even as per clause 23 of the Brochure SMT. RADHA JOSHI VS. INDIAN OIL CORPORATION LIMITED & ORS.
(S.B.CIVIL WRIT PETITION NO.8014/12) 7 issued, if any information furnished by applicant is found to be false at any point of time before or after appointment as dealer, the allotment will be cancelled forthwith and distributorship terminated in case commissioned. Accordingly, learned counsel submitted that on the investigation being made, the information furnished by the petitioner being found wrong, the cancellation of the empanelment of the petitioner is in conformity with the policy of IOCL. Learned counsel submitted that the candidates applying for LPG Distributorship were informed under clause 12 of the General Instructions regarding 'experience' that requisite experience would be minimum one year, in the capacity of Supervisor, Manager/Proprietor or Partner involved in running/working the business and therefore, the petitioner who was admittedly engaged as 'Managerial consultant' as part time employee and was not at all involved in functioning and operating business of M/s. Raj Gas Service, was not entitled for any marks under the parameter of 'Experience'. Learned counsel submitted that the petitioner has claimed that she acquired the experience during the period from 4.4.04 to 15.10.05, however, during that period, she was regular student of B.Sc. at Government Maharani Sudarshan College for Women, Bikaner and she passed out B.Sc. III Examination in 2006, which has been confirmed by the Principal of the College. Learned counsel SMT. RADHA JOSHI VS. INDIAN OIL CORPORATION LIMITED & ORS.
(S.B.CIVIL WRIT PETITION NO.8014/12) 8 submitted that a student of B.Sc. is required to attend practical classes upto 14:30 hours in B.Sc. III and upto 15:50 hours in B.Sc.II and thus, the petitioner could not have attended M/s. Raj Gas Service during its normal working hours for getting the experience claimed by her. Learned counsel submitted that Nokha is situated more than 60 kms. away from Bikaner and therefore, it was practically impossible for the petitioner to discharge her duties as an employee of M/s. Raj Gas Service during the period specified. Accordingly, learned counsel submitted that in view of the discrepancies/misrepresentation of the facts, observed during the investigation, the order impugned passed by IOCL cancelling the empanelment of the petitioner cannot be said to be illegal or arbitrary so as to warrant interference by this court in exercise of its extra ordinary jurisdiction under Article 226 of the Constitution of India. In support of the contention, learned counsel has relied upon the decisions of the Hon'ble Supreme Court in the matter of "Shiv Kant Yadav vs. Indian Oil Corporation & Ors.", AIR 2007 SC 1534 and "Sanjay Kumar Shukla vs. M/s. Bharat Petroleum Corporation Ltd. & Ors.", 2014(1) WLC (SC) Civil 365.
8. Replying the arguments of the learned counsel appearing for the respondent-IOCL, learned counsel for the petitioner submitted that the alleged investigation was conducted by the SMT. RADHA JOSHI VS. INDIAN OIL CORPORATION LIMITED & ORS.
(S.B.CIVIL WRIT PETITION NO.8014/12) 9 IOCL in the back of the petitioner and the petitioner was never apprised about any material on the basis of which the cancellation of empanelment is sought to be justified by the respondent-IOCL. Learned counsel submitted that the petitioner's categorical stand is that she was not working with the employer as Manager as such but was rendering the Managerial Services during the hours specified and therefore, the contention raised on behalf of the respondent that since the petitioner was pursuing the studies of B.Sc., she could not have attended the duties as an employee of M/s. Raj Gas Service, is absolutely without foundation. Learned counsel submitted that it is settled law that the validity of the order must be judged on the basis of the reasons so mentioned in the order impugned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. In this regard, learned counsel has relied upon a decision of the Hon'ble Supreme Court in the matter of "Mohinder Singh Gill & Anr. vs. The Chief Election Commissioner, New Delhi & Ors.", 1978(1) SCC, 405.
9. I have considered the rival submissions and perused the material on record.
10. Indisputably, the merit panel for award of the LPG Distributorship was to be prepared from amongst the candidates appearing for interview and therefore, as per clause 13 of the SMT. RADHA JOSHI VS. INDIAN OIL CORPORATION LIMITED & ORS.
(S.B.CIVIL WRIT PETITION NO.8014/12) 10 Guidelines, the eligible candidates were interviewed by a Selection Committee comprising of three officials of the IOCL. As per clause 14 of the Guidelines, the selection of the candidate for award of LPG Distributorship was to be made on the basis of evaluation of all eligible applicants as per the evaluation parameters laid down, which read as under:
S.No. Parameter Max Marks Max Marks Non-
individual Individual entities
including
partnership
Capability to provide
1 infrastructure and facilities* 35 35
2 Capability to provide finance* 35 35
3 Educational qualifications 15 0
4 Age of individual 04 15
5 Experience 04 8
6 Business ability/acumen 05 7
7 Personality 02 0
Total 100 100
11. The marks under the parameter "Experience" were to be awarded on the basis of the evaluation criteria set out in the Guidelines contained in the Brochure, which may also be beneficially reproduced:
SMT. RADHA JOSHI VS. INDIAN OIL CORPORATION LIMITED & ORS.
(S.B.CIVIL WRIT PETITION NO.8014/12)
11
Parameter Description Max Max Evaluation
Marks Marks
Individual non-
Including Individu
partnershi al
ps Entities
Experience Direct Sale/Home 4 8 Marks to be awarded
Delivered based on information
products given in the
(including LPG application for
distributorship) or experience of running
or working in an
establishment for
minimum one year.
Other Petroleum 3 6 Marks will be
products or awarded on the
quality rather than
Any other Trade 2 4 amount of experience.
Sub Total 4 8 The quality of
Maximum Marks experience will be
judged based on the
response to the
questions related to
experience in Direct
Sale, Home Delivered
products, Trade of
petroleum products,
hospitality/service
industry etc. by the
candidate in the
interview.
12. It is not disputed before this court that the requirement of experience of running or working in an establishment for maximum one year is for the purpose of evaluation of experience possessed by the candidate and it is not the eligibility criteria as such determining the eligibility of the candidate to apply for the award of distributorship. In other words, the candidature of an applicant is not liable to be rejected on account of his not SMT. RADHA JOSHI VS. INDIAN OIL CORPORATION LIMITED & ORS.
(S.B.CIVIL WRIT PETITION NO.8014/12) 12 possessing the requisite experience of one year as specified. That apart, it is pertinent to note that though there is a requirement of experience of running or working in establishment or for a minimum one year, the marks under the parameter of 'Experience' are awarded on the quality of experience rather than amount of experience, which is judged based on response to the question related to experience in direct sale, home delivery products, trade of petroleum products, hospitality/service industry etc. by the candidate in the interview. Thus, obviously, the marks were awarded by the Selection Committee comprising of three officials of the IOCL to the candidates aspirant for award of distributorship in question, who appeared for interview, strictly in accordance with the Guidelines laid down for evaluation under the parameter of 'Experience'.
13. Indisputably, in column no. 12 of the application form, the petitioner has nowhere stated that she has worked as Manager with her employer M/s. Raj Gas Service as full time employee rather, she has mentioned therein that she has worked with M/s. Raj Gas Service, Nokha (HP Gas Dealer) during the period from 4.4.04 to 15.10.05 for a period of one and half years. It is true that the petitioner has not disclosed her working hours but then, it is nowhere provided in the Guidelines that the experience must SMT. RADHA JOSHI VS. INDIAN OIL CORPORATION LIMITED & ORS.
(S.B.CIVIL WRIT PETITION NO.8014/12) 13 have been acquired by the candidate by working as full time employee. Further, it was not even the requirement that the candidate must disclose his actual working hours during the period he was in employment. Thus, on the basis of the information furnished in the application form or the documents attached thereto, it cannot be said that the petitioner attempted to misrepresent the facts. It is true that the petitioner was not working as Manager as such but the fact remains that she was employed to discharge the duties of Managerial Consultant and therefore, it cannot be said that the services rendered by the petitioner are not akin to the nature of services which makes a candidate entitled for award of marks under the parameter of 'Experience'.
14. A perusal of the order impugned reveals that the conclusion of misrepresentation of facts on the part of the petitioner has been drawn solely on the basis that the petitioner at the relevant time was pursuing the studies of B.Sc. It is observed that the petitioner being a regular student pursuing the studies of subject educational qualification, she could not have attended the duties at the place of her employment during normal working hours for acquiring the experience of direct sale/home delivery products. It is not even the case of the petitioner that she was discharging duties during normal working SMT. RADHA JOSHI VS. INDIAN OIL CORPORATION LIMITED & ORS.
(S.B.CIVIL WRIT PETITION NO.8014/12) 14 hours of the business concern M/s. Raj Gas Service . Suffice it to say that the material on record in no manner leads to an irresistible conclusion that the petitioner was not working with M/s. Raj Gas Service at all and the certificate produced in this regard by her is fake and thus, on the facts and in the circumstances of the case, the conclusion regarding misrepresentation of facts drawn by the respondent-IOCL does not appear to be well founded.
15. At this stage, it will be appropriate to refer to the decisions of the Hon'ble Supreme Court relied upon by the learned counsel for the parties.
16. In Shiv Kant Yadav's case (supra), the Hon'ble Supreme Court observed that in view of the undertaking given by the candidate applying for the award of the distributorship/dealership that if any information or declaration given by him in the application or in any document submitted in support of application for award of distributorship/dealership shall be found untrue or incorrect, the IOCL would be within its right to withdraw the Letter of Intent/terminate the dealership/distributorship (if already appointed) and if the applicant is found making mis-statement or declaration the rejection of his candidature cannot be faulted with.
17. In Sajeesh Babu's case (supra), the Hon'ble Supreme SMT. RADHA JOSHI VS. INDIAN OIL CORPORATION LIMITED & ORS.
(S.B.CIVIL WRIT PETITION NO.8014/12) 15 Court while dealing with similar controversy observed :
"8. As per the guidelines, the maximum marks for experience in direct sale/home delivered products (including LPG distributorship), other petroleum products and for any other trade are 4, 3 and 2 respectively. It has been further elaborated in the guidelines that marks for the parameter 'Experience' are awarded based on the information furnished in the application for experience of running or working in an establishment for minimum one year and that too on the quality rather than amount of experience. It is the case of the Corporation that the quality of experience will be judged based on the response to the questions relating to experience in direct sale, home delivered products, trade of petroleum products, hospitality/service industry etc. by the candidates in the interview. In the counter affidavit, it is also specifically stated that the appellant has been awarded with 4 marks for the parameter 'Experience' by the Selection Committee comprising of 3 senior officials of the Corporation who are well qualified and experienced in assessing the required experience for an LPG distributor. It is further explained that 4 marks were awarded to the appellant strictly in accordance with the guidelines for the distributorship of LPG and based on the response to the questions relating to the above in the interview.
....xxxx..............xxxx
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 India is not warranted.
....xxxxx............xxxx
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.
SMT. RADHA JOSHI VS. INDIAN OIL CORPORATION LIMITED & ORS.
(S.B.CIVIL WRIT PETITION NO.8014/12) 16 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.
...xxxx................xxx.
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 is 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. Nos. P2 and P3), particularly, in the light of the detailed explanation offered by the Corporation about the mode of selection.
18. Thus, on the facts and in the circumstances of the case, where the marks have been awarded by the Selection Committee comprising of three officials of IOCL inter alia on the basis of response to the questions related to experience given by the petitioner in the interview and in absence of any cogent evidence on record showing that the petitioner deliberately SMT. RADHA JOSHI VS. INDIAN OIL CORPORATION LIMITED & ORS.
(S.B.CIVIL WRIT PETITION NO.8014/12) 17 misrepresented the facts with an intention to gain undue benefits it would not be appropriate to reject her candidature on the basis of alleged misrepresentation which is not proved by any cogent evidence on record. Moreover, as noticed above the experience is not the part of eligibility criteria which makes the candidate entitle to apply for the award of the dealership and therefore, even if the marks obtained by the petitioner are excluded from consideration for determining her merit, her first position in the panel is not disturbed inasmuch as, on 3 marks awarded under the parameter of 'Experience' being deducted from the total marks obtained by the petitioner, she remains in the first position with the total marks 95.17. Thus, viewed from any angle, in the considered opinion of this court, the decision of the respondent-IOCL in cancelling the empanelment of the petitioner for the award of the distributorship in question is not sustainable in the eyes of law.
19. In the result, the petition succeeds, it is hereby allowed. The order impugned dated 6.7.12 passed by the respondent- IOCL is quashed. The respondent-IOCL is directed to take the necessary steps for appointment of the petitioner as LPG Distributor for the location in question in accordance with the procedure laid down. No order as to costs.
(SANGEET LODHA),J.