Madras High Court
K.Gayathri vs The General Manager (Marketing ... on 22 April, 2014
Author: M. Sathyanarayanan
Bench: N. Paul Vasanthakumar, M.Sathyanarayanan
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 22.4.2014
CORAM
THE HONOURABLE MR. JUSTICE N. PAUL VASANTHAKUMAR
AND
THE HONOURABLE MR. JUSTICE M.SATHYANARAYANAN
WRIT APPEAL Nos. 400 and 401 of 2013
and M.P.Nos.1 and 1 of 2013 in both WAs.
K.Gayathri ... Appellant in both WAs.
Vs.
1. The General Manager (Marketing Division)
Bharat Petroleum Corporation Ltd.,
No.1, Ranganathan Garden
11th Main Road
Anna Nagar
Chennai - 600 040.
2. Territory Manager (Retail)
Bharat Petroleum Corporation Ltd.,
Athur & Kadapari Village
Karur - 639 002.
3. Hemalakshmi
4. The Executive Engineer
TANGEDCO Ltd.,
Mettur Electricity Circle
Omalur, Salem District.
5. The Assistant Engineer, O & M
TANGEDCO Ltd.,
Jalakandapuram North
Salem District.
6. The Junior Engineer, O & M
TANGEDCO Ltd.,
Jalakandapuram North
Salem District. ... Respondents in both WAs.
Writ Appeals filed under Clause 15 of the Letters Patent against the order made in W.P.Nos.2010 and 23543 of 2012, dated 4.12.2012.
For Appellant : Mrs.Hema Sampath
Senior Counsel
Mr.S.Packiaraj
For Respondents 1 & 2 : Mr.O.R.Santhanakrishnan
For Respondent No.3 : Mr.K.Selvaraj
For Respondents 4 to 6 : Mr.S.K.Raameshuwar
*****
JUDGMENT
(Judgment of the Court was delivered by M. SATHYANARAYANAN, J.) The petitioner in W.P.Nos. 2010 and 23543 of 2012 is the appellant herein.
2. Both writ petitions pertain to award of LPG dealership to the third respondent, viz., Hemalakshmi and aggrieved by the same, the unsuccessful appellant, viz., writ petitioner had filed the above writ appeals. Both the writ petitions came to be dismissed by a common order dated 4.12.2012 and hence these appeals.
3. The facts of the case would disclose that the appellant herein as well as the third respondent had applied for retail outlet petroleum products based on the Advertisement issued by the first respondent dated 16.9.2011 and the retail outlet is to be located in Surapalli Village in Salem District. The respective applications submitted by the appellant as well as the third respondent were evaluated and the appellant was awarded 100.49 marks and the third respondent was 102.51 marks and the results were published on 12.1.2012 and challenging the said order, the appellant herein filed W.P.No.2010 of 2012. The appellant herein after the publication of the above said results had submitted a representation dated 14.1.2012 questioning the mode of awarding of higher marks to the third respondent and the said representation was rejected by the second respondent on 6.2.2012 and challenging the same, the appellant herein filed W.P.No.23543 of 2012 and as already stated above, both the writ petitions came to be dismissed on merits on 4.12.2012.
4. The learned Senior Counsel appearing for the appellant in both the writ petitions would vehemently contend that the official respondents had rejected the application stating that high tension wires are passing through the third respondent's land and that is a disqualification per se and in that event, the third respondent ought not to have awarded dealership and consequently they ought to have declared that the appellant had secured necessary marks for awarding the dealership. The learned Senior Counsel for the appellant has also invited the attention of this Court to the letter dated 7.2.2012 written by the fifth respondent, wherein it has been stated that high tension wire as well as low tension wire were taken in the same pole and both lines are passing through the private property in Survey Nos.96/2 F1, 96/1 B and further invited the attention of this Court to the rough sketch given by the said official and also invited the attention of this Court to the letter dated 24.3.2012 sent by the fourth respondent, wherein it has been stated that with regard to the request made by the third respondent for shifting the lines, estimate has been prepared.
5. Therefore, it is vehemently contended by the learned Senior Counsel appearing for the appellant that since the said communication sent by the officials of Tamil Nadu Electricity Board would disclose that both high tension and low tension wires are passing through the third respondent's land, she ought to have been awarded lesser marks.
6. Per contra, the learned standing counsel appearing for respondents 4 to 6 (TANGEDCO) has invited the attention of this Court to the common counter affidavit filed in these writ appeals and would submit that during the year 2008, one number of HT Line shifting application was received from one Sugumaran, father-in-law of the third respondent herein and estimate for shifting the same was sanctioned by the Executive Engineer, Operation and Maintenance, Omalur, vide his sanction order dated 20.11.2008 and the HT Pole and line was shifted along the highways road and the work completion report was submitted by the Assistant Engineer, Operation and Maintenance and from 13.4.2009 onwards, there is no HT lines or poles in the property owned by the third respondent and the same is located in the highways road only. It is further stated in the said counter affidavit that the estimate was prepared by the Executive Engineer, Omalur on 24.3.2012 to shift the HT poles located in the highways road a little away from the property owned by the third respondent and since no payment was made in terms of the estimate prepared, the work was not taken up and ultimately it was taken up and completed on 8.2.2013 and at present, there is no HT line passing through the third respondent's land, as the same was shifted in April, 2009 to the highways road. Therefore, it is contended by the learned standing counsel for the fourth respondent (TANGEDCO) that at present, there is no HT line passing through the third respondent's land.
7. The learned counsel appearing for the first respondent has invited the attention of this Court to the brochure and would submit that in case of rural retail outlets, the qualifying factor for a location to be considered rural would be that it should not be on State Highways/National Highways as on the date of advertisement and also drawn the attention of this Court to the Clauses 13 and 14. In Clause 14, if there is no Low Tension Over Head line passing through in respect of city/towns and highway/others, the applicant will be awarded 3 marks and as per Note No.2, the application in respect of offered land will not be evaluated. If the high tension overhead line passes over the plot, it will be considered as a disqualification. The learned standing counsel has also invited the attention of this Court to the evaluation chart at Page No.28, wherein it has been stated that 31.5 marks was awarded in favour of the third respondent and 31.9 marks was awarded in favour of the appellant and overall the third respondent was awarded 102.51, whereas the appellant has awarded 100.49 marks and since she secured more marks than the appellant, the dealership was awarded in her favour and also contended that in a fair and proper manner, the third respondent was awarded dealership and in the absence of any allegation or mala fide, the selection done by the first respondent cannot be challenged and since she was placed in No.2, whereas the third respondent was placed in No.1 position, dealership was awarded in favour of the third respondent.
8. The learned standing counsel appearing for the first respondent has also drawn the attention of this Court to an unreported judgment of this Court dated 4.12.2009 made in W.A.Nos.1573 and 1574 of 2009, wherein similar issue arose for consideration and the Division Bench of this Court in which one of us (NPVJ) as a member taken into consideration the judgment rendered by the Honourable Supreme Court of India reported in AIR 2002 SC 790 (G.N.Nayak vs. Goa University), AIR 2008 SC 5 (Union of India vs. S.Vinodh Kumar) and (1995) 2 MLJ 458 (DB) (V.Chandran vs. Oil Selection Board) and held that no mala fide being alleged against the respondents, viz., Indian Oil Corporation Ltd and the appellant having been treated like any other candidates, who participated in the interview and in the selection process, cannot turn around and question the selection process and dismissed both the writ appeals. It has been further held in the said decision that since the expert body has evaluated in the process and in the absence of any allegation against the land owners, the said decision cannot be interfered with and it is the submission of the learned standing counsel for the first respondent that the above said cited judgment is squarely applicable to the facts of the case and hence prays for dismissal of these writ appeals.
9. Mr.K.Selvaraj, learned counsel appearing for the third respondent has invited the attention of this Court to the typed set of documents filed and would submit that as per the letter of the Junior Engineer, dated 28.8.2012, neither high tension or low tension lines are passing through the land of the third respondent situated in Survey Nos.96/1B and 96/2F1 and the said fact was taken into consideration by the first respondent while evaluating the respective applications submitted by the appellant as well as the third respondent in a fair and proper manner, the third respondent was selected as she secured more marks than the appellant and dealership was given to the third respondent. The appellant has chosen to make a challenge to the said selection process.
10. This Court carefully considered the rival submissions and on perusal of the materials placed in the form of typed set of papers as well as the judgment relied on by the learned counsel for the first respondent, is of the view that both the writ appeals are liable to be dismissed for the following reasons:
11. It is the stand of the appellant herein that the high tension lines are passing through the land of the third respondent and no marks are to be awarded for dealership. However, in the counter affidavit filed on behalf of respondents 4 to 6/EB officials, it is clearly disclosed that the application was made for shifting the high tension line and it was shifted as early as in the year 2009, much prior to the notification dated 15.9.2011 issued by the first respondent. The counter affidavit filed on behalf of the first respondent would also disclose that at the time of evaluation by the their expert official, no overhead lines or low tension lines were passing through the third respondent's land and in any event, if such high tension line was passing through the land of the third respondent, she would have been disqualified, and since their evaluation was done in a fair and proper manner,the third respondent was selected.
12. It is also the stand of the first respondent in their counter affidavit that the evaluation was carried out by the Inspection Committee comprising three officials and after proper ascertainment of the evaluation of the site only, the dealership was awarded in favour of the third respondent.
13. Though it is vehemently contended by the learned Senior Counsel appearing for the appellant that the fifth respondent has actually harped upon the communication sent under the Right to Information Act, in the light of the stand taken by respondents 4 to 6, which include the Assistant Engineer, Operation and Maintenance, TANGEDCO, Jalakandapuram in their counter affidavit, there is no doubt that at the time of evaluation, neither high tension nor low tension lines were passing through the land of the third respondent.
14. The very same issue was considered by a Division Bench in the common judgment dated 4.12.2009 made in W.A.Nos.1573 and 1574 of 2009 and though the issue putforth was with regard to the experience certificate, it was the stand of the appellant therein that with regard to her experience, marks have not been awarded; whereas the successful candidate was awarded marks, and the said aspect was taken into consideration and it was held that the evaluation done by the expert body, cannot be normally interfered with and once the applicant having participated in the selection process, cannot turn around and make a challenge to the selection process unless she alleges mala fide against the concerned officials. In the considered opinion of the Court, the ratio laid down in the above said case, as extracted below, is squarely applicable to the facts of this case.
" 15. From the above discussion, it is clear that in terms of the guidelines, the Selection Committee consisting of three 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.
15. The Honourable Supreme Court of India in the decision reported in 2012 (10) SCALE 546 (Sajeesh Babu K. vs. N.K.Santhosh & Others) has held that the courts would not normally interfere with the evaluation of the selection process which is being done by an expert body unless there being mala fide. It is relevant to extract the paragraphs 15 and 18 of the said judgment which read as under:
18. It is clear that in a matter of appointment/selection by an Expert Committee/Board consisting of qualified persons in the particular field, normally, the courts should be slow to interfere with the opinions expressed by the experts, unless there is any allegation of mala fides against the experts who had constituted the Selection Committee. Admittedly, in the case on hand, there is no allegation of mala fides against the three 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."
16. This Court, on an independent application of mind and the materials placed on record, is of the considered opinion that the first respondent, at the time of evaluation submitted by the appellant as well as by the third respondent, had found that no high tension/low tension lines were passing through the land of the third respondent and in fact, the local inspector attached to the first respondent, had also inspected the lines in question and evaluated the same and awarded marks accordingly. The appellant did not make any serious allegation of mala fide acts on the part of the first respondent while doing the evaluation and it is a settled position of law that the allegation of mala fide is to be alleged and it is also strict to proof and the said ingredients are lacking. It is also well settled position of law that the evaluation done by the expert body cannot normally be interfered, unless the exercise is tainted with arbitrariness or mala fide acts. In this case, both the elements are lacking. The learned Single Judge has taken into consideration of the legal aspect and rightly arrived at a decision to dismiss both the writ petitions and this Court finds no merits in these writ appeals.
17. In the result, both the writ appeals are dismissed, confirming the common order made in W.P.Nos.2010 and 23543 of 2012, dated 4.12.2012. No costs. Consequently, connected miscellaneous petitions are closed.
Index : Yes (N.P.V., J.) (M.S.N.,J.)
Internet : Yes 22.4.2014
kb
To
1. The General Manager (Marketing Division)
Bharat Petroleum Corporation Ltd.,
No.1, Ranganathan Garden
11th Main Road
Anna Nagar
Chennai - 600 040.
2. Territory Manager (Retail)
Bharat Petroleum Corporation Ltd.,
Athur & Kadapari Village
Karur - 639 002.
3. The Executive Engineer
TANGEDCO Ltd.,
Mettur Electricity Circle
Omalur, Salem District.
4. The Assistant Engineer, O & M
TANGEDCO Ltd.,
Jalakandapuram North
Salem District.
5. The Junior Engineer, O & M
TANGEDCO Ltd.,
Jalakandapuram North,Salem District.
N. PAUL VASANTHAKUMAR, J.
AND
M. SATHYANARAYANAN, J.
kb
W.A.Nos.400 & 401
of 2013
22.4.2014