Madras High Court
R. Revathi vs The Government Of India, Represented By ... on 13 August, 2002
JUDGMENT K.P. Sivasubramaniam, J.
1. The petitioner prays for the issue of a writ of certiorarified mandamus to call for the records of the third respondent relating to the paper publication dated 16.7.2000 inviting fresh application for the grant of Dealership in respect of retail outlet at Pondicherry, Chennai-17, to quash the same and consequentially direct respondents 2 to 4 to conduct selection on the basis of the applications received up to 23.3.1999 pursuant to the earlier publication and to grant dealership to the petitioner.
2. According to the petitioner, she belongs to Scheduled Tribe community. With the hope of stabilising herself and her family, she was making repeated applications for dealership of petrol bunks. The third respondent invited application for the grant of dealership in respect of outlet at Pondy Bazar, Chennai, and the application forms were to be submitted to the third respondent on 22.3.1999. The petitioner applied and submitted the application form on 22.3.1999. She satisfied all the conditions which were prescribed. However, no interview was conducted pursuant to the said application. Subsequently, there was a change in the Government in the Centre and after the assumption of the Office by the present Government, applications were invited afresh. Respondents 2 and 3 are bound to process the applications which were submitted in March, 1999 within a reasonable time. But the respondents, only with a view to enable the persons of their choice who had not applied earlier to be selected, had again invited fresh applications in July, 2000 for the very same petrol bunk. The action of the respondents inviting fresh applications was without any proper reason. Though the petitioner could have challenged the said action as arbitrary, however with the hope that the selection will be held in a fair and proper manner, she did not challenge the same, but obtained new application form and applied afresh. She was called for interview on 21.11.2000. According to the petitioner, the interview was made a mere formality and an eye-wash. On 22.11.2000, the fourth respondent published a list of shortlisted candidates showing the names of Narayanaswamy (5th respondent), Padmini (6th respondent), and Vinod Kumar (7th respondent) as shortlisted candidates. The petitioner states that all the said applicants are only fresh applicants who did not apply earlier. The final candidate had not been announced on the date of filing of the writ petition. According to the petitioner, the entire exercise was motivated only for the purpose of paving way for choosing friends of the new Government. The selection lacks transparency and there was no proper evaluation system. The selection was arbitrary and capricious and the respondents were predetermined and had also fixed the candidate to be selected. The action of the respondents was vitiated and tainted by mala fides.
3. Subsequently in W.M.P.No.2200 of 2001, the petitioner sought for impleadment of respondents 5 to 7 being the shortlisted candidates and the 8th respondent who is the husband of the sixth respondent and is also a Member of Parliament. Notice was issued to the said respondents and separate counters have been filed by respondents 6 and 8 in the petition for impleadment as well as in the writ petition and the petition is being allowed. It may be stated here that the sixth respondent had been declared as a successful candidate. The allegation in the impleadment petition is that the sixth respondent being the wife of the 8th respondent, a Member of Parliament, had been shown favouritism and selected with the active connivance and instructions of respondents 1 to 3. It is further stated that the sixth respondent has not properly specified the income criteria namely, that the annual income of the candidate and the spouse should not exceed Rs.2,00,000/- per annum and that the income of both of them would be much more than the prescribed limit.
4. In the counter of the third respondent, the averments regarding reissue of the advertisement is dealt with. It is stated that as a result of the ensuing General Election, it was decided by the Government not to proceed further with the fresh advertisements or further processing of the selection. There were no extraneous or personal motives in having postponed the selection and in having called for fresh applications. The sixth respondent was also an applicant in the advertisement of March, 1999. On the issue of income criteria, it is stated that such disputed questions of fact cannot be gone into in a writ petition.
5. The Chairman of the Selection Board has filed separate counter. He has contended inter alia, that the applications are scrutinised by the oil companies and if the applications are completed they are forwarded to the Board for interview and selection. Candidates are examined by the Board with reference to the following for which maximum marks have been fixed.
(a) Personality, business ability and salesmanship 20 marks.
(b) Capability to arrange finance 15 marks. (c) Educational qualification and General level of intelligence 20 marks. (d) Capability to provide infrastructure facilities, land, godown, show-room, etc. 35 marks. (e) General assessment 20 marks. Total 100 marks.
6. It is further stated that marks are awarded by Chairman, Member 1, Member 2 in the mark list separately and the total marks awarded by all the three are totalled and average is worked out. Candidate scoring highest mark is placed as No.1 in the merit panel and the candidates scoring second and third places are also included in the panel. The merit panel is finalised and is forwarded to the Oil Company within 24 hours. Therefore, selection of candidates are done strictly in accordance with the procedure and the guidelines formulated by the Government of India. In the present case, each of the candidates were interviewed and the selection was based on the relative marks obtained by the candidates during the interview. The Committee cannot afford to investigate as to the veracity of the contents of the applications submitted by each applicant. There is no possibility of selecting a particular candidate in a predetermined manner. The Oil Companies have also reserved their rights to cancel a dealership in the event of finding any of the applicant having given any false affidavit and after full investigation is done. Therefore, according to the Chairman, the selection has been done as per the procedure laid down in the said context and just because one of the eligible candidates, has not been selected she cannot assume that she should have been selected. The selection is done after evaluating their relative merits and therefore, cannot be called as an eye-wash.
7. The sixth respondent has filed a counter in the writ petition itself denying all the allegations. She would contend that the petitioner having applied in terms of the second advertisement and having taken part in the selection, and interview, was not justified in raising the contention regarding the validity of the subsequent advertisement. The decision by the Government for calling fresh applications was a policy decision and the same cannot be questioned. The petitioner took a chance and if she had been selected she would not have complained about reissue of the advertisement. There is no basis for the allegation of lack of transparency. The petitioner has unnecessarily dragged the name of her husband (8th respondent) and was trying to politicise the issue. She has satisfied eligibility criteria and it was false to state that they had abused their official position. There were no mala fides nor violation of any guideline.
8. The eighth respondent in a separate counter, had denied the allegations of mala fides as well as the allegation that the income of himself and the sixth respondent would exceed Rs.2,00,000/-. The allegation of favouritism in favour of the sixth respondent, is also denied.
9. A reply affidavit has been filed by the petitioner contending that her allegation that the issue of subsequent advertisement itself was only for favouring interested persons has not been specifically denied. Counter affidavits do not contain any information regarding the mutual qualifications and marks given to the candidates and as to why the petitioner was found ineligible. The petitioner has also asserted that the short listed candidates including the sixth respondent were not among the applicants for 1999 advertisement.
10. Though the writ petition was heard earlier and orders were reserved, considering that the files relating to the selected candidates were given only subsequently and the file relating to the petitioner was furnished some time thereafter by learned counsel for respondents 3 and 4, I had listed the hearing of the writ petition again and permitted the contesting parties to peruse the records and heard their further arguments.
11. The points which arise for consideration after hearing the parties, as raised by the petitioner, may be enumerated as below:-
(1) Calling for fresh applications by second advertisement itself was to oblige the selected candidates.
(2) Maximum income criteria namely, the limits of Rs.2,00,000/- per annum has been violated by the sixth respondent and real income of her family has been suppressed.
(3) The criteria said to have been adopted by the Committee was most irrational and irrelevant. 35 marks have been assigned under the head of "capability to provide infrastructural facility" which is irrelevant considering that the impugned selection relates only to appointment to an outlet/Petrol Bunk already available. It is further alleged by the petitioner that the marks given by the Chairman are one sided and determined to unduly favour the sixth respondent and grave irregularities are evident in the marks granted at least by the Chairman.
12. Point No.1: According to Mr.AR.L.Sundaresan, learned counsel for the petitioner, there was absolutely no justifiable reason for calling for fresh applications and the very motive for doing so was only to grant to the sixth respondent the agency as predetermined by the authorities. This is however, denied by the respondents. According to the respondents the reissue of the advertisement was only due to the impending General Election and instructions had been issued in the context of fresh allotment and pending advertisements where the selection had not been completed. This contention of the respondents has not been controverted by the petitioner by any convincing material. It may be that some other individuals are also enabled to take part in the selection even though they had not applied earlier. But the advantage or disadvantage arising out of the reissue of the advertisement is applicable to all the candidates and bad motives cannot be inferred merely as a result of reissue of the advertisement. It is a matter of common knowledge that whenever General Elections are announced, issues which are likely to attract public attention are postponed for the new Government to take decisions and there is nothing unusual in the higher authority having issued instructions to initiate fresh process in the case of fresh allotments and pending advertisements. The decision thus taken by the respondents is purely an administrative and political function and cannot be found fault with. This point is answered against the petitioner.
13. Point No.2:- One of the conditions of eligibility is that the applicant should have gross family income (family as defined in the application form) of not more than Rs.2,00,000/- during the last financial year namely, 1997-98. Though the petitioner has not given any details of the alleged income being in excess of Rs.2,00,000/-, the facts stated below would appear to support the allegation of the petitioner. The allegation is denied by both respondents 6 and 8 and the total income as given by the sixth respondent in the application is Rs.1,54,000/- and the following is the break-up of particulars given thereunder
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S.No. Name Property Business Agriculture Total
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Rs. Rs. Rs. Rs.
1. Self
(Applicant) 42,000/- 36,000/--- 78,000/-
2. Husband 36,000/- 20,000/- 20,000 76,000/-
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Total 1,54,000/-
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14. On observing that the particulars thus given do not include the salary of the husband of the sixth respondent, who is a Member of Parliament, I had required the counsel for the sixth respondent, to ascertain her husband's salary as on the date of the application. On 26.07.2002 when the writ petition was listed for further hearing, learned counsel had submitted a Deduction slip of 8th respondent which discloses the following features:-
(i) Gross amount of salary : Rs.4,000/-
(ii) Constituency allowance : Rs.8,000/-
(iii) Office expense allowance : Rs.3,500/-
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Total :Rs.15,500/-
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15. Of the above amounts, Constituency allowance and office expense allowance cannot be taken into account as salary and hence Rs.4,000/- (Rs.48,000/- per annum) ought to have been disclosed as monthly income of the spouse which is includible for the purpose of ascertaining the total annual income of the family. By adding Rs.48,000/- the total amount exceeds Rs.2,00,000/- namely Rs.2,02,000/-.
16. The conduct of the applicant deliberately suppressing the said income cannot be appreciated. The application itself should have been rejected due to non-disclosure and wrong statement. Even so, I would have been inclined to ignore the excess income considering that it is only marginal by Rs.2,000/- per annum and notwithstanding the suppression of the relevant particulars. But even the process of selection culminating in the selection of the sixth respondent is found to be vitiated by undue favouritism in her favour as explained below.
POINT No.3:-
17. I have already referred to the counter of the Chairman as regards the heads/subjects under which the marks had been allotted. One of the criticism of the learned counsel for the petitioner was that the allotment of 35 marks for "capacity to provide infrastructual facility, godown, show-room", etc. was not applicable to the present case as the tender related to an already existing petrol bunk. But this issue cannot affect the case of the respondents considering that both the Members and the Chairman have uniformly awarded 20 marks each for all candidates without any discrimination under the said subject. Therefore, there is neither irrationality nor discrimination as far as this particular issue is concerned.
18. But however, the manner in which the Chairman had awarded marks in favour of the sixth respondent in comparison to the marks awarded by him for all the other candidates, reflect an indefensible show of favouritism.
19. Generally speaking in matters like the selection for such agencies, after all the applications are scrutinised and invalid applications are eliminated, it can be safely assumed that the comparative merits between candidates and the difference in qualifications between each other would be only narrow and marginal. Ultimately the candidate who scores the highest marks would be only slightly above the others and will be declared as successful. In the present case, 50 candidates have appeared for the interview and a perusal of the marks given by the First Member shows that the marks given by him range between maximum of 66 and minimum of 40. In the case of one Nilofer who had apparently done badly, 36 marks had been given. The sixth respondent has been awarded 56 marks. As far as the second Member is concerned, the maximum mark given by him is 64 and 50 is the minimum mark. In the case of Nilofer 48 marks have been given. The sixth respondent has been awarded 58 marks. In contrast, the marks given by the Chairman reflect a predetermined approach to downgrade all the candidates as against the sixth respondent and to put the sixth respondent on top so disproportionately so as to offset the marks given by the other two Members. Out of 50 candidates, he has given 40 marks to 32 candidates and 45 marks to 17 candidates and 85 marks to the sixth respondent alone. The assessment by the Chairman is glaringly colourable and not based on rational material for having awarded marks in favour of the sixth respondent, in such a disproportionate manner. The fact that 40 marks have been given for 32 candidates and 17 candidates should have been given 45 marks also disclose a mechanical and indifferent valuation which is not based on relevant criteria. A comparative reference to the marks given by the other two Members reveals a more purposeful and serious assessment of the qualifications of each of the candidate. The Chairman's approach appears to be bent upon placing the sixth respondent at the highest level disproportionately and place the remaining 49 candidates at a very low level.
20. The fact that the Chairman had given marks in a lopsided manner can be easily demonstrated by the marks awarded by him under the head of Educational qualification and General Level of Intelligence which carries a maximum of 20 marks. The following tabular statement will expose unreasonable gifting of marks in favour of the sixth respondent by the Chairman:-
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Candidates and qualification Chairman Member-I Member-II
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1. Petitioner, B.Com. and Professional Diploma in 10 9 14 Software
2. Narayanaswami (R.5) P.U.C.,Typewriting Higher Grade English and 10 10 11 Tamil
3. Padmini (R.6) 20 8 12 B.Sc., Shorthand & Typewriting Tamil and English.
4. Vinod Kumar (R.7) 10 14 15 (Master of Business Administration)
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21. It is rather strange that Vinod Kumar, seventh respondent herein, a holder of Degree of Master of Business Administration which is a more appropriate and suitable qualification for running a business concern and with the disclosed experience of having been a management trainee in Indian Rayons and Escorts Ltd. and also worked as a General Manager in a Company, could have been awarded only (by Chairman) 10 marks as against 20 marks in favour of the sixth respondent who is only a B.Sc. Graduate. Out of the aforementioned four individuals Vinod Kumar has been given highest marks namely, 14 and 15 respectively by first and second Members which is perfectly rational and logical. Under the head of "Personality, business ability, salesmanship, the Chairman has awarded only five marks each for all the 49 candidates while 20 marks have been awarded only in favour of the sixth respondent. Likewise, under the head of "Capacity to arrange finance" in contrast with five marks awarded in favour of 47 candidates and 10 marks in favour of two candidates, 15 marks have been awarded in favour of sixth respondent by the Chairman. As regards general assessment, while Chairman has awarded only five marks to 48 candidates, 10 marks have been given to sixth respondent and another individual.
22. In short, the Chairman had indulged in an exercise of selection with the only idea of selecting the sixth respondent and in order to offset the marks awarded by the other two members, he has gone out of the way and awarded very low marks to all the remaining 49 candidates and disproportionately high marks in favour of sixth respondent. In the assessment of the first Member, the sixth respondent comes only 22nd in ranking along with three others who have scored the same marks. In the assessment of the second Member, the sixth respondent is placed 20th in ranking along with four others scoring the same marks. It is a matter of regret that the Chairman should have chosen to adopt an arbitrary and injudicious approach. At the same time I should also place on record, appreciation which the first and second Members deserve for their objective and fair approach notwithstanding the extraneous odds in favour of the sixth respondent.
23. Mr.R.Subramanian, learned counsel for 6th respondent very strenuously contended that the fact that the two members had acted fairly would prove the fact that the Committee had acted fairly. I am unable to agree. The manner in which marks had been given by the Chairman, had clearly ensured the resultant swing in favour of the sixth respondent. Bias for or against a person, even by one of the three Members is sufficient to establish lack of fairness which is clearly demonstrated by the marks given by the Chairman.
24. Learned counsel also took me through the counter of the official respondents and contended that the entire selection process had been fairly conducted and in a transparent and open manner. I have also taken into account the submissions of learned counsel for the official respondents who have denied ulterior motives in the selection of the sixth respondent. They would also contend that the process of selection was in an open manner and marks have been given independently by each Member of the Committee on their own assessment independently and hence cannot be interfered with.
25. Learned counsel for the sixth respondent also very elaborately contended on the scope of the interference by this Court in the process of selection under Article 226 of the Constitution of India.
26. Reliance is placed on the judgment of this Court in V. CHANDRAN v. OIL SELECTION BOARD AND THREE OTHERS . A Division Bench of this Court held that no irregularities had been pointed out in the conduct of the interview and therefore, it was not possible for this Court to disagree with the process of appreciating and weighing the various factors, materials and rival merits of their claims which is the primary function of the Selection Board.
27. Reference was also made to the judgment of the Supreme Court in KULDIPCHAND v. STATE OF HIMACHAL PRADESH (A.I.R.1977 S.C., 2628). That was a case of State service and the Supreme Court held that the question as to whether a candidate was fit for a particular post or not was within exclusive field of Selection Committee. I am inclined to hold that the above judgments were rendered in the context of the factual matrix of the respective cases. It is true that when it comes to the selection or assessment of an individual for appointment or for the grant of licence to an individual, this Court will not normally interfere under Article 226 of the Constitution of India and exercise its own individual assessment so as to interfere with the process of selection and assessment by the selection committee consisting of competent persons. But when allegations of favouritism and mala fides are made and glaring materials are made available exposing an unfair and colourable exercise of discretion, this Court will be failing in its duty to close its eyes and pretend ignorance of facts which stare on the face of the record. Interference in the grant of agency either for L.P.G. or for Petroleum products are not unusual in deserving cases such as the following:-
(1) S.R.RAMASAMY v. CHIEF DIVISIONAL OFFICER, I.O.C. & OTHERS (W.P.No.5132 of 1991 dated 11.3.1992 - D.Raju, J. (as he then was).
(2) The above order was confirmed by a Division Bench in W.A.No.427 OF 1992 etc. (K.RAMANATHAN v. S.K.RAMASAMY & ORS.) (3) S.JOHN SUNDARARAJ v. OIL SELECTION BOARD, MADRAS-34 & ORS. (W.A.No.1165 of 1996 dated 13.3.1997)(Division Bench).
28. It is settled proposition of law as held by the Supreme Court right from the case of KRAIPAK,A.K. v. UNION OF INDIA followed by a catena of decisions that the shadow of difference between administrative and quasi judicial functions is very thin and it is unsafe to describe or compartmentalise any action of the executive as purely administrative and that therefore,beyond the jurisdiction of this Court. To turn a blind eye, when the said facts disclose glaring show of favouritism, would result in injustice and this Court is not without jurisdiction to undo injustice in appropriate cases.
29. While parting with this writ petition, I should also mention that in such cases, the official respondents ought to take a proper stand in defending the cases. While dealing with the allegations of the petitioner about the income of the candidates and regarding any other factual particulars disclosed either in the application or in the affidavit, the official respondents appear to take sides by unnecessarily pleading for the selected candidates. After all, the official respondents cannot be blamed if any applicant chooses to give wrong declaration or particulars. When the petitioner alleges any suppression of facts, then the official respondents should be fair enough to state that such matters would be investigated and if the allegations are found to be true, appropriate action would be taken thereon. But the stand of the third respondent, the Chief Divisional Manager is rather deplorable. While dealing with the allegation relating to the income of the sixth respondent, he would contend that it was a disputed question of fact requiring elaborate investigation, and this Court cannot go into those disputed question of facts, nor investigate the same and that the question of income of the eighth respondent cannot be decided in the writ jurisdiction.
30. Thus, after telling this Court that this Court cannot go into the question of facts, the third respondent is also prepared to take an unsubstantiated stand to protect the interest of the sixth respondent. This relates to the allegation of the petitioner that the sixth respondent was not an applicant in response to the first advertisement. The third respondent has chosen to state in his affidavit dated 31.1.2001 that the sixth respondent was also an applicant during March, 1999 advertisement and has also given the number of the application as No.801449. This is denied again by the petitioner by filing a reply affidavit positively stating that the sixth respondent was not an applicant during March, 1999. In fact, even the sixth respondent in her two counters dated 15.2.2001 and 1.4.2001 has not taken such a stand that she was an earlier applicant. On the other hand, she has positively taken the stand that there was nothing wrong in issuing fresh advertisement. The counter dated 1.4.2001 is a joint counter by herself and her husband the 8th respondent. In the counter of the 8th respondent dated 18.03.2001 also, no such stand is taken. After the reply affidavit had been filed by the petitioner challenging the said fact and in spite of specific submission by learned counsel for the petitioner disputing the stand taken by the Chief Divisional Manager, no attempt was made by him or the 6th respondent either to file an additional counter or to produce the file relating to the application said to have been filed by the 6th respondent during March, 1999. The further curious feature is that in his own earlier counter dated 21.12.2000 in support of the petition to vacate the stay, the Chief Divisional Manager did not take the stand that the 6th respondent was also an earlier applicant. In fact, the positive stand is that no mala fides can be attributed for re-advertising. Thus it is seen that the third respondent has gone out of way to plead falsely to protect the interest of the sixth respondent. Though I had answered this issue against the petitioner, from the legal angle, parties cannot be allowed to misrepresent and plead false facts. The attitude of the third respondent is highly improper and condemnable and such conduct would only help to substantiate the allegations of mala fides and favouritism.
31. In the result, I am inclined to allow the writ petition. However, the prayer for conducting the selection on the basis of the application received up to 23.3.1999 cannot be allowed considering that I have held the said point against the petitioner. It is open to the respondents to conduct a fresh interview and to proceed further in accordance with law.
K.P. Sivasubramaniam, J.
1. Today, when the writ petition is taken up for pronouncement of the order, learned counsel for the sixth respondent states that all the allotments made during the year 2000 have been cancelled by the Government and therefore, the writ petition has become infructuous.
2. However, learned counsel for the petitioner states that the dismissal of the writ petition would be prejudicial to petitioner's interest, as in this case the petitioner has come to Court immediately after announcing name of the successful candidate and specific order of allotment was yet to be made in favour of the sixth respondent and hence the general order of cancellation said to have been issued by the Central Government in respect of allotments made after the year 2000 may not apply to the case of the sixth respondent. Counsel representing the parties are unable to state the exact scope of the announcement by the Central Government.
3. Having regard to the aforesaid circumstances, I am inclined to dispose of the writ petition as infructuous. However, it is made clear that the announcement of the sixth respondent as the successful candidate, shall however, stand set aside in view of the reasonings stated in the above order. The disposal of this writ petition as infructuous or the observations in the order will not stand in the way of the right of the sixth respondent to apply afresh for future allotment and to be considered for such allotment or the right of the petitioner to question the same in accordance with law. Learned counsel for the petitioner requests that the above order which was to be delivered in the writ petition may form part of the record and parties may be furnished with copies of the said order. Learned counsel for the sixth respondent has no objection.
4. In the result, the abovesaid order shall form part of the record. Paragraph No.31 of the order shall stand modified subject to the above observations.