Calcutta High Court (Appellete Side)
Mr. Olive Ghosh vs Indian Oil Corporation Ltd. (Md) Ors on 12 March, 2013
Author: Aniruddha Bose
Bench: Aniruddha Bose
Form No. J(2)
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Aniruddha Bose
W.P. No. 4568(W) of 2012
CAN No. 3086 of 2012
CAN No. 8280 of 2012
Mr. Olive Ghosh
Vs.
Indian Oil corporation Ltd. (MD) Ors.
Advocates for the Petitioner: Mr. Jayanta Kumar Mitra (Sr.
Advocate)
Mr. A. K. Chakraborty
Mr. Amlan Jyoti Sengupta
Advocates Indian Oil
Corporation: Mr. Arunava Ghosh
Mr. M. S. Yadav
Advocates for the Respondent
No. 7: Mr. S N. Mookherjee (Sr. Advocate)
Mr. Ratanko Banerjee
Ms. Lapita Banerjee
Mr. S. Sharma
Judgment On: 12th March, 2013.
ANIRUDDHA BOSE, J.:-
1. In this writ petition, dispute is over selection of a dealer to a retail dealership outlet of the Indian Oil Corporation (the oil company) on Jessore road near the Kolkata Airport Gate No. 1. Advertisement inviting application for this vacancy was published on 30th December 2009. The Petitioner and the private respondents, being respondent Nos. 7, 8 and 9 were all applicants thereof. Of these three private respondents, the respondent No.7 has mainly contested this writ petition. The writ petitioner appeared in the interview along with the other candidates, and on evaluation of their candidature on the basis of particulars supplied by the individual applicants, a merit panel was published on 12th May, 2010. The writ petitioner found his position on top of the panel, having been awarded 59 marks. The respondent No. 7 was in the second position, with 58.10. The position of the respondent No. 8 was third, having been awarded 58, whereas the respondent No. 9 had obtained 57.62. In a brochure issued by the oil company on 1st July 2009 pertaining to selection of petrol/diesel retail outlet dealers, the selection procedure on the basis of which points are awarded to the individual has been specified. A copy of this brochure has been made annexure to an application taken out by the respondent no. 7, being CAN No. 3086 of 2012, which has been marked "P- 13".
2. There are certain minimum eligibility criteria prescribed in the said brochure, which the petitioner and the private respondents appear to have fulfilled. Further, eight parameters have been laid down, providing for maximum marks to be awarded in respect of individual applicants against each of them. As per the prescribed procedure, applicants are individually marked on the basis of their qualification, experience and/or performance against each of these parameters, and the merit panel was prepared on the basis of total computation of marks obtained by them against each of these eight heads. These parameters have been disclosed in clause 13.1.1 of the brochure. The application, being CAN No. 3086 of 2012 was filed for vacating an interim order passed in this matter on 6th March,, 2012, which was subsequently directed to be extended. By an order passed on 11th May, 2012, that application was directed to be treated as affidavit-in- opposition to the main writ petition. The writ petitioner has filed affidavit- in-reply to affidavit. The table contained in the said Clause 13.1.1 specifies:-
Sr. No. Parameter Maximum Marks: Maximum Marks: Non-
Individuals including Individual Entities partnerships a Capability to provide 35 35 land and infrastructure/ facilities Capability to provide 25 b finance 25 c Educational 15 0 qualifications d Capability to generate 10 25 business e Age 4 4 f Experience 4 4 g Business 5 7 ability/Acumen h Personality 2 0 Total 100 100
3. In this case at the initial stage, the break-up of the 59 marks awarded to the petitioner comprised of 29 marks under the head "capability to provide finance". For "educational qualification", awarded marks were 12. Against the head "age", he obtained 2 whereas in respect of "capability to generate business", 10 marks were awarded to him. In respect of "experience", he was awarded the maximum marks, being 4, and under the next head, "business ability/acumen" again he obtained 4 marks. For "Personality", he scored 2. The respondent No. 7 was his main rival in relation to the selection process, and in this proceeding, reassessment of the marks awarded to the petitioner resulted in alteration of the merit list, with respondent No. 7attaining the top position in the panel after such reassessment. This exercise of reassessment by the oil company has been assailed by the petitioner. The respondent No. 7 under the said heads was awarded 24.60, 15, 4, 7.53, 4, 2 and 0.67 marks respectively, bringing his total to 58.10.
4. Main dispute in this writ petition is over award of marks to the petitioner under the head experience, where he scored the maximum. After publication of the merit list, Shyamal Kumar Mondal, one of the applicants had came to this Court alleging arbitrary evaluation of candidature of the petitioner by filing a writ petition, which was registered as W.P. 13336(W) of 2010. In that writ petition, he had also alleged lack of transparency in the evaluation process. Contention of Shyamal Kumar Mondal in that proceeding was that in respect of educational qualification, he obtained highest marks and he ought to have been selected considering his performance against other parameters. No interim order was passed in that writ petition, but direction for filing affidavit had been given. It appears that during the interim period, the respondent No. 7 had made complaint to the oil company in terms of Clause 18 of the prescribed norms over assessment made in respect of the petitioner. The said complaint was made on 17th May, 2010, a copy of which has been made Annexure "P-4" of CAN 3086 of 2012. On receiving such complaint, the oil company sought clarification on certain disclosures made by the petitioner along with his application. In particular, detail was asked for in respect of his disclosure of having completed one and half years full time post-graduate management course (July 2007-June 2009 session) from the NSHM Centre of Management & Development Studies, Kolkata. The petitioner was also asked to clarify on four issues pertaining to his working as manager in a retail outlet, "Gopal Traders" of the same oil company. In the application format, a copy of which has been annexed as "P1" to the writ petition, column 8 and 9 related to disclosures relating to experience. The questions contained in the application format and the disclosure of the petitioner against these columns were:-
"8.Do you have business/selling experience? If yes, give full details: Yes, I am in retail trade of tyres and balleries (Trade license, appointment letter from MRF & Dealership certificate from Exide are attached.
9.Do you have experience of supervision of personnel? If yes, give full details: Yes, I have been working not only as a business man but also as a manager for Gopal Traders a dealer of IOC at Rajarhat (Experience certificate from Gopal Traders and attendance register of Gopal Trading are enclosed)."
The copy of the certificate from Gopal Traders has been annexed at page 33 of the writ petition. It is recorded in this certificate that the petitioner has been functioning as the manager of the outlet since 3rd August, 2007. The certificate is dated 29th January 2010, and has been signed by the proprietress of the said firm, Manju Ghosh. In course of hearing before me, it transpired that she is the mother of the petitioner.
5. The clarifications sought for and reply given by the petitioner have been indicated in a sheet signed by the petitioner as well as two officers of the oil company, which has been made Annexure 'P-4' to the writ petition. The queries raised and answers given by the petitioner are:-
Q1 In your application dtd. 05.02.10, you have indicated that you have completed 1 ½ year full time PGPRM course (July 2007 to June 2009 session) from NSHM Centre of Management and Development Studies, Kolkata. In this connection, please clarify the following:-
a) Class timings-
b) Date/Month till which regular classes were held-
c) Start date of final examination-
d) Last date of final examination-
e) % age of attendance required to write the final examination-
f) Your % age attendance-
g) Journey time from home / workplace to said Institute & back to your home or work place-
A1 The reply is:-
a) From 10.00 hrs to 16.00 hrs Monday to Friday.
b) Regular classes were held from July 2007 to July 2008, after that I was placed in Reliancedigital Retail Ltd. in Mumbai as a part of Summer Placement from July 2008 to October 2008 (copy attached). After October 2008, there are seminars, lectures of visiting faculties, personality development workshop etc. and no regular classes took place till the end of the course.
c) Started in 2nd week of March 2009, I do not remember the exact date.
d) 75% was the required attendance.
e) It must have been above the required attendance as I was allowed to write my final examination.
f) About 45 minutes one way (by private car) from
home/workplace to Institute.
Q2 In the said application, you have submitted a certificate dtd. 29.10.10,
which indicates that you have functioned as Manager in IOCL Retail Outlet at M/s. Gopal Traders, Rajarhat since August 2007. In this regard, please clarify (a) for how many hours every day (b) how many days in a week and (c) till when you had been functioning as Manager in said retail outlet (d) details of the activities as Manager in said Outlet. In case, you were absent for prolonged period, the details may be given.
A2 a) During weekdays, in the morning's for 3 hrs before going to attend classes in above mentioned course and in the evenings for around 3-4 hrs after classes were over.
b) As the Retail Outlet was open for 7 days a week and 24 hours a day, I used to function for all seven days in a week. Since my Mother Smt. Manju Ghosh is the Proprietress of M/s Gopal Traders, issued to work in the Outlet for 6-7 hours even on Sundays and Saturdays also (i.e. during off days for the Institute) Q2A In your absence for attending the said PGPRM course, who used to look after the activities such as daily density check and testing of the nozzles, cleanliness, supervising the point attendants, accounts, handling banking related activities like payments to IOC & Servo Stockiest etc., placing indents for products etc. A2A There were other Managers and my father Shri Dilip Kr. Ghosh used to look after the activities.
Q3 As per said certificate dtd. 29.01.10, you had completed a "PG course in Retail while functioning as Manager" in said Outlet. Is it the same 1 ½ year full time PGPRM course (July 2007 to June 2009 session) from NSHM Centre of Management and Development Studies, Kolkata?
A3 Yes, it is the same course.
Q4 If so, please clarify how it was possible to function as Manager in said
Retail Outlet while attending classes in the PGPRM course. A4 Timings of the classes already mentioned above and my routine in the Outlet as well as attending classes did not contradict. Hence, it was possible to function as Manager in said Retail Outlet while attending classes in the PGPRM course.
6. On the basis of such clarification, the oil company reevaluated assessment of the petitioner. The petitioner was informed on 23rd February 2012 that marks awarded to him had been reevaluated and against the parameter of experience, in which he had been originally awarded 4 marks, the same was being revised to 2.33. This made his total 57.33, and in such circumstances the respondent No. 7 came to occupy the first position in the panel. In the said communication dated 23rd February 2012 a copy of which has been made annexure "P-6" to the writ petition, it was stated:-
"This is in reference to the advertisement dated 30.12.2009 for selection of Retail Outlet Dealer at Near Airport Gate No. 1 on Jessore Road, Dist. North 24 Parganas, your application dated 05.02.2010 for the same, the interview of the applicants held on 10/11/12.05.2010 and the merit panel displayed on 12.05.2010.
Thereafter, upon an investigation a complaint received, it has been noticed that in your application you have claimed to be working as Manager at the retain outlet M/s Gopal Traders, Rajarhat, Kolkata since 3rd August, 2007 as per the Certificate dated 29.01.2010. You have also claimed to have pursued Post Graduate Programme in Retail Management (PGPRM) from NSHM Centre of Management & Development Studies during the period July 2007 to June 2009. By this devotion of time in Management course you would not have been exposed to many aspects of various activities going on in the Retail Outlet in day time during normal working hours during the overlapping period of your studies and work experience as Manager i.e. during the period 3rd August, 2007 to June 2009. Thus your experience for the period 03.08.2007 to June, 2009 should not have been considered and your considerable period of experience was July, 2009 to 29th January, 2010 for which the marks awarded to you should have been 2.33 instead of awarded full 4 marks. Accordingly the total marks secured by you become 57.33.
Therefore please take a note that in view of correction in your marks, the revised merit panel has become as under:
1.Sri Amarjyoti Paul - Total marks - 58.10
2.Sri Deepak Kumar Gupta - Total marks - 58.00
3.Sri. Arup Chandra De - Total Marks - 57.62 The above is without any prejudice to the rights and contentions of Indian Oil Corporation Ltd."
7. Two questions fall for determination in this writ petition. The first is whether it was permissible on the part of the oil company to re-evaluate the marks awarded to the writ petitioner. Secondly, whether such reevaluation was carried out or not in a proper manner. In course of hearing, my attention has been brought to Clause 18 of the selection norms contained in the said brochure on the strength of which the oil company claims to have undertaken this process of reevaluation. The said clause provides:-
"(A) An aggrieved person may send his/her complaint to IOC at the address of the customer service cell displayed at the nearest retail outlet of IOC. Complaints can also be lodged on the website of IOC. Complaints against dealer selection received after 30 days from the date of declaration of the result of the interview will not be entertained under any circumstances
(i) Anonymous/pseudonymous complaints will not be investigated and will be field without taking any action on the same
(ii) On receipt of a complaint a letter will be sent by IOC to the complainant through Registered Post., asking him to submit details of allegation with a view to prima facie substantiate the allegations along with supporting documents, if any within 30 days. Response of the complainant will be examined by IOC and if it is found that the complaint does not have specific and verifiable allegations, the same will be filed. The complainant will be clearly advised that the complaint will be examined by IOC and if it is established that the complaint does not have any substance, the same will be liable for legal action.
(B) When a decision is taken to investigate the complaint, the investigation will be done by one Senior Official of Oil company and will pass speaking order after giving due opportunity to the complainant etc. Copy of the speaking order will be given to all concerned. Thereafter, decision on the complaint will be taken under:-
i. Complaints not substantiated: The complaint will be filed and the complaint will be advised accordingly.
ii. Established complaint: Action will be taken as under:
a) In case the selection process for a location was found to be not in accordance with the laid down guidelines, the merit panel will be cancelled and all the eligible candidates will be re-interviewed based on documents available on record.
b) In case the dealer selection was done as per the laid down guidelines and the complaint against the first empanelled candidate is established, action will be taken to cancel the selection of the 1st empanelled candidate and issuance of LOI to the next candidate in the merit panel. Similar action will be taken in case of established complaint against second empanelled candidate also.
c) In case of established complaint against all the merit panel candidates, the merit panel will be cancelled and the location will be re-advertised, if found feasible by the Oil company."
8. In this case, the dispute revolves around assessment of performance of the writ petitioner in relation to experience. The manner in which experience of individual applicants is required to be evaluated is reflected in a table under Clause 13.1.1 of the said brochure. It is provided in this clause:-
Experience Business (i)For Individual Based on
(Max. 4 experience Retail trade of furnishing of
marks for Petroleum Products documentary
4
individual evidence to
and non- establish
individuals relevant
experience. Full
marks for
experience of 1
year and
proportionately
for experience of
Related petroleum 3
less than 1
trade/transport/
year.
Automobiles
In case of
individual,
(ii)For Non-individual
experience of
Retail tradeoff
Petroleum
4 petroleum
Automobile/Transport
products will
Service
include
Any sector other than
2
experience of
mentioned above
1 having worked
as manager in a
Retail Outlet or
COCO
Contractor.
9. So far as the question of power or authority of the oil company is concerned for reevaluating the assessment made of the petitioner, Clause 18 provides for the procedure for dealing with such complaints. Moreover, in my opinion, it would be within the power or jurisdiction of any selection body to reverify their own assessment of a particular candidate, if complaint is received alleging faulty selection process, unless of course, such exercised is expressly prohibited. On this count, I do not find any fault with the action of the oil company. Thus, I shall confine my examination in this proceeding on the point as to whether it was permissible on the part of the oil company to downgrade their assessment of the petitioner's experience in terms of their evaluation norms. Marking of the petitioner in respect of experience was reevaluated on the reasoning that it was not possible for him to function as manager at the retail outlet simultaneously with his participation in the post-graduate programme in retail management. The petitioner had completed the course in the session commencing in the month of July 2007 and ending in the month of June 2009. It was also disclosed by him that he had functioned as manager in the said retail outlet since August 2007. It was observed in the communication pertaining to revision of merit panel that because of his devotion of time in the management course, he could not have been exposed to many aspects of different important activities going on in the retail outlet during the normal daytime working hours as that would have overlapped with his class hours in the institute. In his clarification, the petitioner had disclosed that his classes were held between "10 hrs. to 16 hrs., Monday to Friday" and he worked for about three hours in the retail outlet in morning and for about three or four hours in evening after the classes were over. He was in Mumbai for about four months between the month of July and October, 2008, as he was given summer placement in Reliance Digital Retail Ltd. during that period. The oil company deducted from his experience period the entire length of time he had been pursuing the postgraduate programme. His experience was reassessed for the period between July 2009 and 29th January 2010, by which time he had completed the said programme and on proportionate basis his marks were reduced in terms of the evaluation norms.
10. On behalf of the petitioner, legality of the said action has been challenged. It has been pointed out by Mr. Mitra, learned Senior Counsel appearing for the petitioner that there was inordinate delay in revising the merit panel even after receiving the complaint. The panel was published on 12th May, 2010, and the revision was made on 23rd February 2012. The impugned decision is also challenged on the allegation of violation of the principles of natural justice in that no opportunity of hearing was given to the petitioner at the time of revising the merit list. The decisions of the Supreme Court in the cases of Ramana Dayaram Shetty Vs. International Airport Authority of India (AIR 1979 SC 1628), East Coast Railway & Anr. Vs. Mahadev Apparao & Ors. [(2010)7 SCC 678] and Reliance Energy Ltd. Vs. Maharashtra Road Development Corporation [(2007)8 SCC 1] have been relied upon to assail the decision of the oil company as being arbitrary. The other authority relied upon on behalf of the petitioner is the decision of the Supreme Court in the case of Mahinder Singh Gill Vs. Chief Election Commissioner (AIR 1978 SC
851).
11. On behalf of the oil company reference was made to paragraph 17.2 which relates to validity of merit panel as also recasting of the same. This clause stipulates:-
"The merit panel will be valid for a period of one year from the date of commissioning of the dealership. If within this period, the dealership offer to the first empanelled candidate is to be withdrawn for any reason whatsoever or the dealership is terminated on account of wrong statement made in the application or any other reason like proven ineligibility (due to complaint etc.) of the dealer or proven malpractice, IOC will have the option of awarding dealership to the next candidate in the merit panel if he/she meets the eligibility criteria and after necessary Field verification."
Referring to this clause, it was submitted on behalf of the oil company that it was permissible on their part to revise the panel within the term of its validity and award the dealership to the next candidate in the merit panel.
12. There is another feature of this case to which my attention was drawn by the learned counsel for the petitioner. In the writ petition filed by Shyamal Kumar. Mondal, in which the same selection process had been assailed by another applicant, the oil company had used an affidavit. The writ petitioner was impleaded in that proceeding as respondent no. 4. In paragraph 7 of that affidavit filed on behalf of the oil company, affirmed by one Molay Kumar chatterjee, it has been stated:-
"The marks allotted to the petitioner on different parameters have also been displayed including all other applicants. As such there is no question of favoring any applicant. I say that a detailed field investigation has been done by the competent authority for the respondent no. 4 and all claims made in the applicant vis-à-vis the documents provided by him has established his candidature and panel in the position and the letter of intent shall be issued to him in due course."
13. Referring to this affidavit, which was affirmed on 4th January, 2012, it was contended by Mr. Mitra that little beyond a month thereafter, the respondent oil company could not have had come to an altogether different finding. On behalf of the oil company on the other hand, it was submitted that after complaint was received pertaining to the panel prepared by them, they reexamined the matter and upon obtaining particulars they realized that the writ petitioner was not available in the retail outlet during normal working hours for a long stretch of time on the basis of which he has claimed to have acquired experience. It was also submitted that there was no disclosure by the writ petitioner as to when daily density check as well as nozzle test were being conducted at the outlet and particulars of conducting his usual business there. Actual experience of the writ petitioner was doubted, as it was stated by him in his clarification that during his absence, the duties of the manager used to be discharged by other managers, including his father and on an working day, he could have engaged himself for about seven and half hours. Moreover, the certificate of experience was given by his mother only. It was in these circumstances, the panel was recast in terms of Clause 17.2 of the said brochure, it was argued on behalf of the oil company.
14. Mr. S.N. Mookherjee, learned senior counsel appeared in this matter on behalf of the respondent No. 7, whose name came on top of the panel after it was revised. He seeks dismissal of the writ petition on equitable ground as well as on merit. In this matter, interim order was originally obtained by the petitioner on 6th March, 2012, upon obtaining leave of the Court to apply for such prayer without service on all the respondents, pleading urgency. The term of that interim order was till 15th March, 2012. It is claimed on behalf of the respondent no. 7 that on 12th March, 2012, copy of a caveat sought to be filed by him was served on the writ petitioner. The interim order was extended until further order at the instance of the petitioner on 14th March, 2012, but the said extension order was obtained without notice upon the respondent no. 7. In the writ petition when it was moved, the respondent No. 7 was impleaded but at that point of time it was described in the cause title that his address was not known to the petitioner. It was only on 11th July 2012 full description of the respondent No. 7 was given.
15. On merit, respondent no. 7 has alleged suppression of material fact as regards dual function of the petitioner as manager as well as a student. Relying on a decision of the Supreme Court in the case of S. P. Chengalvaraya Naidu Vs. Jagannath [(1994)1 SCC 1] and a Bench decision of the Delhi High Court in the case Satish Khosla Vs. Eli Lilly Ranbaxy Ltd., 1998 DLT-71-1, he has submitted that the petitioner had suppressed material fact before the oil company, and also acted fraudulently in obtaining extension of the interim order without service of notice on the respondent no. 7 and on these counts his writ petition should be dismissed. The other judgment relied upon by Mr. Mookherjee on this point is a decision of a Division of this Court in the case of Barbara Tailor Bradford Vs. Sahara Media Entertainment Ltd. [2004 (1) CHN 448] on the same point. His further submission is that mere empanelment does not confer upon any of the empanelled candidate right of selection. The judgment relied upon on this point is the case of Union of India Vs. S. S. Uppal [(1996)2 SCC 168]. This point has also been urged by the oil company.
16. Mr. Mookherjee has also taken me through clause 19.2 of the brochure which stipulates that if any information furnished by the applicant is found to be false at any point of time before or after appointment of a dealer, his allotment could be cancelled and dealership terminated.
17. Combined reading of clauses 17.2, 18(B)(ii)(b), 19.2 contained in the said brochure shows that it was permissible for the oil company to reevaluate the assessment of an intended dealer on the basis of complaint received. Thus, I do not find any fundamental breach in initiation of the process of reevaluation in this matter. Merely because in another writ petition, the oil company in their affidavit had disclosed that selection of the petitioner was done in a proper manner would not forfeit their right to reexamine the disclosures made by the petitioner, on complaint made by another applicant. It would constitute an independent exercise. If such finding of the oil company was reflected in their affidavit in the case of Shyamal Kumar Mondal upon considering the very materials on the basis of which revision of panel was sought to be done, then the question of issue estoppel could have had arisen. But that is not the case here. The question which requires to be addressed in this matter, however, is as to whether the exercise of lowering of marks awarded to the petitioner was proper or not, having regard to the reasons disclosed by the oil company. The decisions of the Supreme Court in the cases of International Airport Authority (supra), East Cost Railway (supra) and Reliance Energy Ltd. (supra) all lay down a singular principle that the administrative authorities in all circumstances would have to act in a reasonable manner and shall not mete out discriminatory treatment to individuals equally placed. The first and the third authorities are in the field of public contract whereas the second decision arises out of dispute in relation to recruitment in public employment, but the basic ratio of all these authorities remains the same.
18. In the instant case allegation against the petitioner is of suppression of material facts. But I do not find any material fact has been suppressed in the instance case. The petitioner had disclosed the fact that he was working as a manager for Gopal Traders and that he had undertaken a retail management course. The genuineness of the certificate issued by Gopal Traders, of which he was a manager, was sought to be questioned as it was his own mother who had issued this certificate as proprietress of the said firm. Learned counsel for the respondents also pointed out that there were other managers as well who performed the managerial duties in his absence. The other deficiency on the basis of which the marks awarded to him was reduced was that during the day he was pursuing the management programme.
19. As the petitioner had disclosed that he was pursuing the said course, I do not think there was suppression of material fact on his part. Per se there was no disqualification of a candidate in conducting studies while working as a manager, or vice versa. But, even if there is no suppression of material fact, if selection of a candidate is done under mistake, ignoring certain fundamental shortcoming like not fulfilling an essential qualification criteria, it would be permissible on the part of a selecting body to correct the mistake. But in this case was there any such material breach? I do not think so. In the earlier part of this judgment I have reproduced from the brochure what would constitute experience. There is no disclosed criteria requiring a manager of a retail outlet of petroleum products to attend the outlet during regular working hours. There is no bar either on a candidate acquiring experience by working in his mother's firm. The criteria on the basis of which the assessment on experience of the petitioner was sought to be reevaluated was on the basis of subjective formulation of experience standards undisclosed to any individual candidate at the pre-selection stage. While not discounting the fact that he discharged his duties in Gopal Traders, it has been urged that while attending the retail outlet in the morning and evening hours, which could be termed as off-peak hours, he could not have had gathered enough experience in respect of certain essential features of the trade. Some of the particulars which it has been alleged that the petitioner did not furnish is the time of daily density check, nozzle testing, placing indent with the oil company. From the disclosure, it appears that some of the work was shared by him with other managers of the same firm. But this kind of detailed questionnaire was not required to be responded to at the application or the interview stage. It also does not appear that other candidates had been subjected to such rigorous testing process after preparation of the merit list.
20. Where performance or experience of a candidate is required to be assessed within a given range of marks, then some element of subjectivity would inevitably have to be accepted in the assessment process. But, in this case, full marks were required to be given for experience of one year. A candidate was not informed that his experience would entail working during regular hours. It is admitted position that the retail outlet where the petitioner worked was running on 24x7, 30 days a month basis. The exact number of working hours which are required to gain experience has also not been stipulated. Nor there has been any reference to any trade standard. In the absence of a pre-evolved criteria to guide assessment of experience of individual candidates, in my view, it would be impermissible to evolve such criteria after obtaining disclosure from a candidate as regards his nature and manner of gathering experience. If it was a case where a candidate was not attending the outlet at all, or had produced false working certificate, the oil company would have been entitled to reexamine his experience standard. But, here the petitioner had come forward with a reasonable explanation of devoting sufficient time to a retail outlet, as I consider seven and half hours a day to be sufficient in the absence any pre-specified standard. If such post-assessment reevaluation is permitted, then there would be scope for misuse of such power to benefit a particular candidate. In such a situation, once marks are made known to all, on complaint being made by an unsuccessful candidates, a tailored reassessment criteria may be evolved, where certain aspects of performance or qualification of an individual could be specifically targeted for downgrading, without applying retesting standards to other candidates in respect of other parameters. There would be possibility of applying arbitrary standards on different parameters by the selecting body in such a case
21. In this matter, it was also urged on behalf of the petitioner that there was violation of principles of natural justice, as at the reassessment stage, no opportunity of hearing was given to the petitioner. But as I am deciding the main issue on merit, I am not addressing that question in this judgment. Where I find fault with the petitioner in this case, however, is in not disclosing before this Court that caveat was served upon him on 12th March, 2012. The petitioner had sought to explain this failure on his part attributing it to lack of communication between the recipient of the copy of the caveat and himself I do not think the explanation is adequate. But, for that reason alone I do not think the petitioner's case should be rejected altogether as the private respondent has been heard extensively on merit and upon hearing him and the oil company I have found the petitioner's case to be sustainable in law.
22. The three decisions cited on behalf of the respondents all relate to suppression of material fact by playing fraud on Court. In the case of S. P. Chengalvaraya Naidu (supra), the plaintiff had filed a partition suit and obtained preliminary decree in respect of a property in respect of which he had relinquished all his rights by executing a release deed. When he sought to apply for final decree, the Trial Court found that the preliminary decree was obtained by fraud and dismissed the application for final decree. This decision was confirmed by the Supreme Court, and it was observed by the Supreme Court:
"We have no hesitation to say that a person whose case is based on falsehood, has no right to approach the Court..."
In the case of Satish Khosla (supra), the plaintiff had approached the Court second time without making full disclosure about the first suit and the fact that they failed to obtain ad-interim injunction in connection with the first suit. The High Court found such act to be fraud on the Court, and dismissed the second suit itself. The Bench decision of this Court in the case of Barbara Bradford Taylor (supra) also involves suppression of facts relating to institution of earlier proceeding in a subsequent proceeding. This was one of the grounds for dismissing the application of the plaintiff at the appellate stage, when in an interlocutory motion the plaintiff was refused injunction in a copyright action.
23. In this proceeding, however, I find that so far as disclosure is concerned, the petitioner has not suppressed any material fact. There is improper practise of certain degree at the time of obtaining extension of the interim order, as the petitioner had not notified the respondent no. 7 even after service of the caveat. But this flaw in the conduct of the petitioner ought not to result in dismissal of the writ petition. The petitioner has made out a strong case on merit, and by not taking action on the caveat, the petitioner cannot be said to have committed fraud of that degree which would warrant dismissal of the writ petition. The respondent no. 7, subsequent thereto had full opportunity to deal with the case of the petitioner on merit, and cannot be said to have been irretrievably prejudiced by such act on the part of the petitioner. The petitioner deserves to be penalized for this, but the penalty would not be rejected of the writ petition. I do not find the petitioner had played fraud of such degree in this case. The said authorities do not have application in the given facts of this case.
24. Now the question arises as to whether the petitioner can have any vested legal right to enforce right of selection on the strength of his empanelment. In the case of S. S. Uppal (supra), it was held that after inclusion of the name of a candidate in a select list, his appointment is not automatic and mere inclusion of the name in the panel does not confer automatic right of appointment. But, the ratio of this decision cannot be extended to authorize a selecting body to undertake an arbitrary evaluation process and claim immunity from a legal challenge by a participant who has been prejudiced in such process on the ground that such candidate does not have legal right to demand a fair selection process. Fairness in all administrative functions at all levels of the decision making process is necessary and if a potential beneficiary of a selection process comes with a complaint that he is sought to be arbitrarily excluded from the select list or being subjected to a wrongful evaluation process, it would be within the jurisdiction of the Constitutional Court to test the legality of his claim provided the person against whom he is making such complaint fulfills the criteria of being State within Article 12 of the Constitution of India. In this case it is not in dispute that the respondent oil company comes within the definition of State. A person with grievance of this nature shall not be nonsuited on the sole ground that merely being empanelled, he does not have an enforceable legal right.
25. I accordingly allow the writ petition and quash the order which has been communicated to the petitioner by the letter dated 23rd February 2012, a copy of which has been made Annexure 'P-6' to the writ petition. The respondent oil company is directed to complete the selection process on the basis of the subsisting merit list. Any interim arrangement made for running the pump shall be revoked to implement this order. But, for the remissness of the petitioner in not acting on the copy of caveat, I impose costs of Rs.10,000/- to be paid by the petitioner to the respondent No. 7.
26. The two connected applications, being CAN No. 30869 of 2012, which was filed for vacating the interim order passed in this writ petition by the respondent no. 7 and CAN No. 8280 of 2012, by which the writ petitioner himself prayed for certain interim orders also stand disposed of in the above terms
27. Urgent certified photocopy of this order be made available to the parties, if applied for, subject to compliance with all necessary requisite formalities.
(ANIRUDDHA BOSE, J.) LATER:
Prayer is made for stay of operation of this judgment by the learned Counsel appearing for the respondent no. 7. This prayer is opposed on behalf of the petitioner. On considering of such prayer I direct that there shall be stay of operation of this judgment and order for a period of two weeks.
(ANIRUDDHA BOSE, J.)