Madras High Court
Daisey Bai vs The General Manager (T.N.S.O.), ... on 14 August, 2001
ORDER
1. Petitioner prays for the issue of a writ of ccrtiorarified Mandamus to call for the records relating to the order in T.N.L./S/604, dated 8.12.2000 on the file of the first respondent, quash the same and direct them to award the L.P.G. Distributorship to the petitioner.
2. The brief facts of the case are stated below:
The Indian Oil Corporation proposed to appoint Indane L.P.G. Distributors at Nithiraivillai Village, Kanyakumari District and the same was notified in the local dailies. As per this notification, a category was reserved for women. As per the eligibility criteria prescribed for the applicants as set out in that notification, Clause 8, which is relevant for the purpose of this case, is as follows:-
"8. Corporations owned or controlled by State Government/all PSUs are also eligible to apply for open category locations if they are not reserved for women only. However, restrictions relating to Annual Income, residence and multiple dealership would not be applicable to them. For the locations reserved for women:
(a) A Co-operative Society is eligible to apply, if all members are women
(b) Other things being equal, unmarried women above 40 years of age without earning parents and widows will be given priority over others."
The form relating to the rules and regulations issued by the respondent Corporation, while dealing with this particular category, states as follows:
"8. Priority and facilities to Women (Applicable for locations reserved for Women only):
Other things being equal, unmarried women above 40 years of age without earning parents and widows will be given priority over others. On their application and subject to the satisfaction of the Oil Company, unmarried women above 40 years of age without earning parents and widows will be provided the following by the Oil Company as per the prevalent policies: For LPG Distributorship:
(a) A complete LPG godown
(b) Showroom
(c) Required delivery system
(d) Two telephones without STD/ISD (Rental and call charges to be borne by the dealer)
(e) Clean Toilet Oil Companies will also provide to the selected candidate (falling in the above category) an adequate working capital for a full operation cycle for the operation of dealership / distributorship. Both the working capital as well as 11% per annum interest thereon will be recovered in 100 monthly instalments from the 13th month of commissioning of the dealership / distributorship."
3. Petitioner is qualified S.S.L.C. and is aged 57 years. Claiming dealership under the category reserved for women with priority for widows, she filed an application on 15.7.2000. She was called for an interview on 20.11.2000 and according to her, she had answered all questions correctly and she was hoping that she would be able to get a favourable allotment. She was also informed that she was the best of the candidates and that she would be sent information shortly. However, to her surprise, she did not receive any intimation and on verification, she came to know that the fourth respondent, along with two other women, have been short-listed. Earlier, she filed Writ Petition No. 21055 of 2000 for the issue of a writ mandamus to select her for the dealership. During the hearing of that case, the copy of the order of selection of the fourth respondent was furnished and in view of the stand taken by the fourth respondent in her counter, petitioner has now challenged her appointment.
4. According to the petitioner, she has all the necessary qualifications, besides having a right of priority for selection. She claims that Clause 8, which provides for priority, has been overlooked by the respondents and that she is a native of Nithiraivillai, the location of the proposed distributorship agency. She further says that she has her own suitable place with godown as additional qualification. The petitioner contends that she is more qualified than the fourth respondent and is entitled to be preferred and therefore, she has prayed for the issue of a writ.
5. On behalf of the first respondent, a counter affidavit was filed. According to them, the petitioner satisfies the minimum qualification required for attending the interview, but she did not pass the interview in order to proceed to the second stage and hence, she is not entitled to claim any priority. The counter did not deal with the other claims of the petitioner set out in the affidavit, especially grounds (e), (f) and (g) regarding her nativity qualification and with regard to the additional facilities she has got as set out in grounds (h), (i) and (j).
6. The fourth respondent, a short-listed candidate for selection, has filed a counter affidavit dated 18.4.2001. According to her, the notification for appointment of dealership for Nithiraivillai village is meant for open category for women. It is submitted that there has been no specific reservation of appointment from among women and it is not meant to be located to widows alone or only those belonging to Nithiraivillai Village alone. She further states, "The selection is based on application subject to satisfaction of authorities with reference to financial potential, educational qualification and management capacity of the candidates".
7. The fourth respondent claims that she is residing at Vijaya Bhavan, Neduvoorkarai, Modaikadu Post, Kanyakumari District. According to her, among the persons called for interview, preference clause can be made use of only if other things are equal. In the present case, the age difference, qualification and development potential were far apart considering the other candidates and the fourth respondent and as such, she was rightly selected. She further states that since the petitioner depends for finance on her brother and son, she had rightly being rejected from consideration for the selection. She says that she is a native of Kanyakumari District and that she qualified for the selection. The fourth respondent, who has raised new allegations against the petitioner in the additional counter affidavit dated 18.7.2001, for which the petitioner wanted time to file a reply. However, when the matter was taken up, the counsel for the fourth respondent submitted that he is not pressing the averments made in the additional counter affidavit and therefore, the matter was heard on merits.
8. I have heard the counsel for the parties and considered the matter carefully.
9. The selection for L.P.G. distributorship has to be made as per the notification as well as the rules and regulations contained in the form issued by the Corporation. As per this notification, it is seen that the category under which petitioner had applied is mentioned as 'Open, but reserved for Women'. Further, the clause is also marked as for 'Rural' and the location is mentioned at Nithiraivillai. Apart from this, the notification specifically stated that other things being equal, widows will be given priority over others. It further says that the restrictional relating to annual income, residence and multiple dealership would not be applicable to them. Under the rules, it is seen that the Corporation itself would provide facilities like godown, showroom, etc. including the working capital. Therefore, the contention of the fourth respondent that the petitioner did not have financial resources and that she had to depend on her brother and son and therefore, she was rejected cannot be accepted. Similarly, the rule having said categorically that other things being equal, would only refer to the minimum qualifications referred to in the rules of selection namely nationality, age, educational qualification, residence and not having any other disqualifying factors. The first respondent has not stated anything as to her ineligibility for her non-selection except stating that she did not pass the interview. Neither the notification nor the rules say that selection will be on the basis of interview. As rightly contended, when the petitioner satisfies the minimum qualifications, then she should have been given priority over other persons even assuming that they have got more qualifications in reference to education, financial resources etc.
10. A copy of the guidelines provided to the court sets out the norms for evaluating the candidates under Clause 6. As per this clause, for the capability to arrange finance and educational qualification and capability to provide infrastructural facilities, marks are provided, This requirement will have no meaning since as per Clause 8 of the Rules, the Oil Company will be providing, in case of widows, a complete godown, showroom, delivery system, telephones, toilet and working capital. Therefore, I am unable to understand as to how marks can be awarded to persons who have got financial arrangements, higher educational qualification and for providing infrastructural facilities. In this manner, it is quite possible to offest the priority category. It is seen that by this evaluation, the priority given to widows can easily be offset by saying that a particular person does not have capability to provide infrastructural facility and finance, whereby 50 (35 + 15) marks can be taken away from that candidate. Thus, it could be seen that respondents 1 to 3 have proceeded to select the fourth respondent contrary to their own norms of selection and defeating the purpose for which the distributorship reserved for women for serving rural areas has been set apart. As rightly pointed out, petitioner belongs to the very same place namely Nithiraivillai and she will be in a position to serve the rural area, whereas the fourth respondent is not a widow coining under the priority category, though she belongs to the district.
11. In reference to the norms of evaluating the candidates under Clause 3. 10. 100 marks are awarded under four heads. Similarly, under Clause 3. 10. 2. the evaluation of candidates for Defence Personnel is given. As far as the Defence Personnel is concerned, they are treated as a separate class by themselves and priority mark is given for them. But, insofar as other candidates are concerned, no separate marks are set apart for priority categories. Therefore, the argument of the counsel that only if they get equal marks for the award of 100 marks, the widows will be preferred cannot be accepted. It has to be read in such a manner that the candidates viz., widows having minimum eligibility criteria must be given priority over other candidates. As pointed out in Common Cause, A Registered Society v. Union of India, , if an advertisement were to be issued and applications were to be invited for allotment of petrol outlets on the basis of auction, it would still not be possible for millions of poor unemployed persons to apply for allotment or to participate in the bid. Physically handicapped, poor, unemployed and illiterate youth cannot be accepted to participate in the auction and offer bids. Therefore, having advertised for allotment on the basis of minimum qualifications required and giving preference to widows, other things being equal, the same cannot be given a go-by by giving importance to finance, provision of infrastructural facilities and higher educational qualifications.
12. In Centre for Public Interest Litigation v. Union of India, 1995 Suppl(3) S.C.C. 382, the Supreme Court laid down guidelines in making allotments; On the basis of the draft of the proposed guidelines to regulate the exercise of the allotment given by the Attorney General of India and to ensure that the exercise of discretion in making such allotment in conformity with the rule of law by excluding the likelihood of arbitrariness and minimising the area of discretion by regulating his exercise in accordance with the settled norms and guidelines, the Supreme Court indicated norms which would govern all future allotments. Their Lordships also set out the general conditions and the procedure. Though this related to the allotment of discretionary quota, the principles of fairness and transparency as set out in the said judgment will have to be followed in case of other allotments on merits also.
13. Other things being equal has to mean that a person satisfying the minimum educational qualification should be preferred over other persons of the same level. Otherwise, it will be treating unequals as equals and defeating the preference set out in the notification. Widows among women form separate class and treated so for preference. It may be possible to prefer a graduate widow to a widow having S.S.L.C. qualification. For instance, if the minimum qualification is S.S.L.C. and if there is a category for widows who are eligible, a person who has got a degree qualification ought not have been preferred, since degree qualification is not the minimum qualification required for the allotment. Suppose if it is a degree quota, then the candidates having a degree qualification will have preference over others. On the same logic, having permitted any person of the district eligible, is it open to give priority to a native of Nithiraivillai, the place of location of the L.P.G. distributorship? Likewise, the priority given to widows must be looked on the basis of minimum eligibility criteria and not on any other higher criteria available. The argument of the respondents is that only in case of a tie, i.e., both the candidates securing 50% marks, priority can be looked into cannot be accepted. In that case, the priority will be only a paper priority and will remain only on paper. In my view, the evaluation on other consideration higher than what is shown as minimum has vitiated the selection and the allotment made in favour of the fourth respondent is illegal. The contention that the fourth respondent has made all arrangements and therefore she must be preferred has no substance.
14. Counsel for the fourth respondent referred to a judgment of a Division Bench of this Court in V. Chandran v. Oil Selection Board & 3 others, for the proposition that the writ petition is not maintainable. The headnote to that judgment is actually misleading in reference to paragraph 5. As per the head note, a person not included in the panel by Oil Selection Board cannot file writ petition challenging the selection as such a person is not an aggrieved person. The Division Bench did not hold so. On the contrary, the Division Bench considered the assessment of merits of the candidates and upheld the selection. However, the Division Bench directed the Selection Board and the respondents that the functioning of the respondents must be more transparent and avoiding allegations and also free from criticism and arbitrariness. Proceedings of the Board should speak for itself. They should be regular proceedings drawn up discussing the, merits and each candidate and reasons for selecting the required number of candidates out of the several applicants. As the Board is headed by a retired Judge of the High Court, there should not be any difficulty in ensuring that the proceedings and the decision of the Board are free from arbitrariness and informed by reason. As a matter of fact, this judgment is against the respondents. In this case, respondents 1 to 3 claim confidentiality in their proceedings and there is no speaking order regarding the assessment and comparative merits of the candidates. There is no transparency in the selection. The respondents have not stated in their counter affidavit as to how the selection has been made and how the petitioner has been overlooked except stating that she did not pass in the interview. On the face of it, such a stand on the part of the respondents, especially in the light of the Division Bench judgment and directions, cannot be upheld. On this ground also, the writ petition is liable to be allowed.
15. For all the above reasons, the writ petition is allowed. The selection made in favour of the fourth respondent is hereby set aside and the petitioner, being the only widow having all the minimum required qualification, is hereby directed to be considered for selection, if she satisfies all other requirements. Consequently, the connected W.M.Ps. are closed.