Rajasthan High Court - Jaipur
Bharat Petroluem Corp Ltd Anr vs Smt Sumitra Devi And Anr on 17 February, 2014
Author: Ajay Rastogi
Bench: Ajay Rastogi
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
O R D E R
DB Civil Special Appeal (W) No.368/2013
Bharat Petroleum Corporation Ltd. & Anr.
Vs.
Smt. Sumitra Devi & Another
Judgment reserved on 29.01.2014
Date of Judgment : 17.02.2014
Hon'ble Mr. Justice Ajay Rastogi
Hon'ble Mr. Justice JK Ranka
Mr. JP Gupta, for appellants.
Mr. SL Sharma,
Mr. SS Ola, for respondents.
BY THE COURT (Per Hon'ble Rastogi), J.
Instant intra court appeal has been filed against the judgment of the ld. single Judge dt.22.1.2013 directing the appellant to award 32 marks to which war widow/dependents of those who died in war are entitled falling in defence category while preparing inter se priority and thereafter evaluate the case of respondent-petitioner in terms of policy for allotment of retail outlet dealership of petrol/diesel in terms of advertisement dt.17.9.2011.
The relevant facts culled out from the record are that the applications were invited for allotment of retail outlet dealership by the appellant vide advertisement dt.17.9.2011 published in Rajasthan Patrika and other news papers. Instant controversy is in relation to subject location for Harsoli, Tehsil Mundawar, District Alwar.
It is not disputed that the respondent-petitioner who is a war widow submitted her application for allotment of retail outlet dealership and being eligible participated in the process in terms of guidelines issued by the appellants duly published for Selection of Petrol/Diesel Retail Outlet Dealership dt.15.9.2011 and appeared before the interview board on 9.1.2012.
It is to be noted that she was the only applicant who had participated for subject location, however, her application was rejected after awarding her 11.98 marks. On her representation made to the grievance committee, it was placed before the scrutinizing committee and so also before high level committee to conduct reevaluation of the marks awarded to her as per dealer selection guidelines and the committee submitted its report dt.18.5.2012 and the final marks awarded to the respondent-petitioner was 10.33 out of 40 marks and accordingly was not considered to be qualified for award of dealership and that was subject matter of challenge by filing writ petition before the ld. single Judge.
After taking note of the material which came on record and the submissions made by respective parties, the ld. single Judge disposed of the writ petition vide its impugned judgment dt.22.1.2013 and observed that there is some discrepancy in award of marks for various heads. At the same time, further observed that as per the policy for allotment of outlet dealership for defence category, while preparing inter se priority, war widow/dependents of those who died in war are entitled to secure 32 marks which in fact was not awarded to the respondent petitioner whereas; it should have been awarded being war widow and accordingly evaluation should be made and the appellant under impugned judgment is directed to reevaluate the candidature of the respondent-petitioner for allotment of retail outlet dealership.
The main thrust of counsel for the appellant is that selections are to be made strictly in accordance with the guidelines issued for allotment of retail outlet dealership dt.15.9.2011 which was in vogue at the time of advertisement dt.17.9.2011 and in terms of guidelines those who are falling in defence category, under the eligibility criteria, educational qualification is matriculation or recognized for all categories except FF PMP OSP and (DC). At the same time, they are excluded while evaluating the parameters of education, land and finance and they are not to be assessed under the parameters of capability to provide land and infrastructure/facilities and capable to arrange finances as such their evaluation has to be made out of 40 marks excluding marks for land and finance and as regard parameters for education, application of DC category may not be rendered ineligible if he/she does not hold minimum qualification i.e. matriculation or recognized equivalent, all such applicants may be assessed on these parameters. As regards Clause-15 which relates to inter se priority for DC categories, it could be invoked if candidate secured minimum qualifying % marks become eligible for inter se priority. In the instant case, when there was none except the present respondent-petitioner, there was no inter se priority and unless candidate secure minimum qualifying percent of marks which in the instant case was 40 and respondent-petitioner was expected to secure minimum 20 marks to her credit and such candidates who secure minimum qualifying marks alone become eligible for in inter se priority and entitled to be awarded 32 marks for war widow/dependents of those who died in war could be invoked and this what the scrutinizing committee on its re-evaluation submitted its report dt.18.5.2012 and the decision taken by high power committee based on the report submitted by scrutinizing committee being in conformity with the guidelines issued by the Oil Company for allotment of outlet dealership and this has been completely misread by the ld. single Judge while passing the order impugned and that requires interference of this Court.
Counsel for appellant further submitted that the guidelines have been published for allotment of outlet dealership to maintain transparency in the decision making process and to rule out the unguided discretion for award of marks under each head which could be awarded by the committee constituted for holding selection for allotment of retail outlet dealership and it was not the case of the respondent-petitioner that the members of the committee were either biased or prejudiced in the case of respondent-petitioner and if marks have been awarded in each head after due evaluation based on relevant material one has to trust that the committee has exercised its discretion in conformity with the parameters laid down under the guidelines for allotment of retail outlet dealership and in the absence of the action being arbitrary or not in conformity with the mandate of Art. 14 of the Constitution, the ld. single judge was not justified in interfering in the decision making process and direction for reevaluation of the application of respondent petitioner after awarding 32 marks of inter se priority and to reevaluate the marks originally awarded in other heads, is not legally sustainable and deserves to be quashed.
Counsel for respondent-petitioner while supporting the order of the ld. single Judge contended that the finding which has been recorded is in conformity with the guidelines issued by the appellant for allotment of retail outlet dealership and detailed reasons have been assigned in support thereof and it does not call for interference in the intra court appeal by this Court.
We have heard counsel for the parties and with their assistance examined the material on record.
Before we examine the controversy which has been raised for our consideration, it will be appropriate to first take note of the relevant clauses of Brochure for Selection of Petrol/Diesel Retail Outlet Dealers circulated by Oil Company dt.15.9.2011 invoked for allotment of retail outlet dealership of petrol/diesel in reference to the advertisement dt.17.9.2011. The relevant clauses reads ad infra-
4. Eligibility Criteria
(a) Eligibility criteria for individuals
(i) Nationality: Should be Indian national.
(ii) Age: As on the date of application, (In completed years) not less than 21 years and not more than 65 years. However, in respect of 'FF' category, upper age limit is not applicable.
(iii)Educational Qualifications:
Minimum Matriculation or recognized equivalent for all categories except FF, PMP, OSP & DC categories. However, persons applying under these categories will be evaluated for this criterion. Defence Category (DC): The following persons will be eligible-
. Widows/dependents of Posthumous gallantry award winners.
. War widows/dependents or those who died in war.
. War disabled.
. Widows/dependents of those who died in harness due to attributable causes.
. Disabled in place due to attributable causes.
The inter-se priority under this category will be in the above order. Certificate to be produced from Directorate General of Resettlement (DGR), Ministry of Defence, Government of India sponsoring the candidate for the dealership for which he/she has applied. Certificate of eligibility issued for one dealership is not valid for another dealership and therefore a candidate can be considered to be eligible only if he/she has been sponsored for the particular location with reference to current advertisement.
Inter-se Priority:
. Widows/dependants of Posthumous gallantry award winners . Widows/dependents of persons having died in action.
. Personnel disabled on duty.
. Widows/dependents of persons who died while in service; and . Disabled in peace due to attributable causes.
- Freedom Fighters (FF):
Persons applying for dealerships under this category should attach a certificate or Tamrapatra or an attested copy of the Pension Order issued by the Accountant General in pursuance of the sanction letter from the Ministry of Home Affairs Govt. of India of their having been Freedom Fighters.
_____________________________________________ Marks
Educational Para Based on the educational Based on documentary
Qualification no. qualification proof provided evidence by furnishing Max.15 marks by the applicant, the following certificate/mark sheet
marks will be awarded- from Board/University/
1. (i) Post Graduation in Management recognized institution
(ii) Diploma in Management from as applicable.
Indian Institute of
management
(iii) Graduation in Engineering
(iv) Graduation in Law 15
(v) Chartered Accountant
_______________________________________________
2. (i) Post Graduation in any other 12
field not covered in para
(1) above.
(ii) Graduation in any other field
not covered in para (1) above.
(iii) Cost Accountant.
(iv) Company Secretary
(v) Diploma in Engineering.
3. Matriculation 10
____________________________________________________________
15. Inter-se-priority for DC and PMP categories-
Candidates securing minimum qualifying % of marks will be eligible for inter-se priority marks as given below. Such candidates will be selected after considering the following inter-se priority marks as allowed by the competent authority.
(a) For Defence Category (DC) Priority I Widows/dependents of posthumous Gallantry Award Winners 40 marks Priority II War Widows/dependents of 32 marks those who died in war Priority III War disabled 24 marks Priority IV Widows/dependents of those who 16 marks died in harness due to attributable causes Priority V Disabled in peace due to 8 marks attributable causes (b) for PMP Category (PMP) Priority I Widows/dependents of posthumous Gallantry Award Winners 40 marks Priority II Widows/dependents of persons 32 marks having died died in action Priority III Persons disabled on duty 24 marks Priority IV Widows/dependents of persons 16 marks who died while in service Priority V Disabled in peace due to attributable causes 8 marks ______________________________________________________ 16. Results of the Interview:
(a) After completion of the Interview for a location, result along with detailed marks scored will be displayed on the notice board of the interviewing location. This list will contain the names of all the candidates who appeared for the interview in descending order of marks scored as a percentage of applicable marks for that category along with the details of marks scored by each candidate under various parameters. The minimum qualifying marks for any candidate to be eligible for consideration for award of dealership would be 60% of the applicable marks in respect of OPEN category. In respect of reserved categories including OPEN (W), the minimum qualifying marks would be 50% of the applicable marks. If none of the candidates scored the minimum qualifying marks as above, the location will be declared as no candidate found suitable. Otherwise a maximum of 3 candidates starting with sl.no.1 in the list published on the notice board will be treated as included in the merit panel for award of dealership for that location. This result will also be available on the web site of the oil company.
(b) Empanelment in case of tie: In case of a tie, a candidate getting higher marks in the following four parameters put together will get preferences over other/s.
Sl. No. Parameters
1. Capability to provide land and infrastructure/facilities
2. Capability to provide Finance
3. Educational qualification
4. Age In case of tie in parameters as mentioned in the table above, the applicant who is younger in age shall get preference over other/s.
The above will also apply to Corpus Fund locations and other such locations (where applicant is not required to offer/arrange for land/Finance) where applicants are not evaluated under parameter 1 & 2 mentioned in the above table.
The guidelines have been published by the Oil Companies for allotment of outlet dealership certainly for maintaining transparency in their decision making process and the applicant who had participated in the selection process for allotment of retail outlet dealership must know the criteria on which candidate has been evaluated by the Dealers Selection Committee constituted for evaluation of the incumbent who had participated in the selection process.
In the instant case the present respondent-petitioner being a war widow was the only applicant for a location advertised under the defence category and was exempted from evaluation of the parameters like education, land and finance and war widows falling in defence categories are not to be assessed under the parameters and capabilities to provide land and infrastructure/facilities and capabilities to arrange finance and their evaluation is made against 40 marks excluding the marks for land and finance.
As regards parameters for education is concerned, they have been exempted from holding minimum educational qualification which as per para 4(iii) is matriculation or recognized equivalent for all categories except few like FF, PMP, OSP & DC category and if exemption has been granted from holding minimum educational qualification awarding 0 marks out of 15, is a question to be considered that if candidate who is holding matriculation is awarded 10 marks out of 15 and such of the applicants who are not holding the minimum educational qualification but entitled for exemption from holding minimum educational qualification what would be the allocation of marks amongst them at least guidelines which are made available and placed on record is completely silent. At the same time, while invoking Clause-15 for inter se priority for DC & PMP categories, obviously there can be inter se priority if applicants are more than one and war widow/dependents of those who died in war are placed at priority (ii) and entitled to get 32 marks and if it is read along with final result at the time of interview referred to in para 16, the minimum qualifying marks for any candidate to be eligible for award of dealership would be 60% of the applicable marks in respect of open category and 50% of the applicable marks in respect of reserved categories including OPEN (W) and empanelment of the candidates is based on the marks awarded under different heads by the committee like capability to generate business, age, experience, business ability, personality etc. certainly it is always subjective but based on objective assessment to be evaluated by the committee.
We are not examining in regard to marks awarded in individual heads which the committee has awarded but it has to be kept in mind that if such of the applicants who participated in reserve categories, guidelines itself divulge their criteria for evaluation and being need based protection provided to the members of the reserve categories including DC the conditions are normally required for such of the persons to be relaxed if permissible under the State policy who have participated in open category adjudging capability to provide land or to arrange business infrastructure and facilities whereas; the members of the reserve categories are granted exemption particularly in the case of DC category to which we are concerned.
The object behind the scheme appears that as far as possible, allotment be fair and impartial and should be transparent in their decision making process and in conformity with the guidelines issued by the oil company.
The present respondent-petitioner being a war widow who is illiterate and against 15 marks for minimum educational qualification, admittedly 0 marks could not be awarded to her. Indisputably for the subject location, there was none, other than the present applicant, who had participated in the selection, question of inter se priority, may not have arisen, but, if she is awarded zero out of 15 marks for her educational qualification for which guidelines provide exemption, what would be the justification for evaluating educational qualification and what is going to be achieved by such evaluation by the committee, is certainly not being known to us and when guidelines itself provides that as and when there is inter se priority under Para 15, war widow, is entitled for 32 marks. We are unable to find justification for awarding zero marks for education to member of defence category, ultimately the object behind is to allot retail outlet dealership by adopting the fair & impartial procedure for preparing inter se priority amongst them and maintain transparency but if there was no candidate other than one alike in the instant case parameters for evaluation under the guidelines may remain the same and that was to be kept in mind by the selection committee while evaluating candidature of the candidate.
The ld. single Judge also examined the scheme of which reference has been made by us in details and arrived to a conclusion that at least 32 marks of inter se priority in para 15 was to be awarded to the respondent-petitioner, in our considered view it is always open for the committee to re-visit and reevaluate the marks earlier awarded keeping in view the paramount consideration that the respondent-petitioner is member of defence category, the war widow and the only applicant for subject location, parameters and the bench marks under the guidelines has to be given re-visit once again by the Committee in the facts of the instant case.
The submission made by counsel for appellant that evaluation has been made initially by selection committee and on representation was re-examined by scrutinizing committee, as well by high level committee nominated by the appropriate authority to conduct evaluation, we do find that re-evaluation has been undertaken as per dealer selection guidelines and its report is on record dt.18.5.2012 but marks have not been awarded to the war widow as noticed by us, we are not commenting upon report furnished by the committee, but we are supposed to indicate that keeping in view the over all circumstances, the category to which the applicant belong and where guidelines itself provide exemption from various parameters like capability to provide land and infrastructure/facilities, capabilities to arrange finance and exemption from educational qualification, strict parameters may be based on subjective satisfaction after objective assessment but the evaluation has to be made after harmonizing the scheme in totality.
After going through the order of the ld. single Judge, we do not find any error being committed which may require interference by this court.
Consequently, the special appeal is wholly devoid of merit and accordingly dismissed.
[JK Ranka], J. [Ajay Rastogi], J. Dsr/
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