Madras High Court
P.Sivakami vs Indian Oil Corporation on 27 March, 2013
Author: Chitra Venkataraman
Bench: Chitra Venkataraman, S.Vimala
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 27/03/2013 CORAM THE HONOURABLE MRS.JUSTICE CHITRA VENKATARAMAN and THE HONOURABLE MRS.JUSTICE S.VIMALA W.A.(MD)No.685 of 2012 P.Sivakami .. Appellant Vs 1.Indian Oil Corporation, Rep.by General Manager, Indian Oil Bhavan, Nungambakkam High Road, Chennai. 2.The Senior Area Manager, Indian Oil Corporation Ltd., Madurai Area, Race Course Road, Chockikulam, Madurai-625 002. 3.R.Geethanjali .. Respondents Appeal filed under Clause 15 of Letters Patent, against the order passed by this Court in W.P.(MD)No.2068 of 2012 dated 30.08.2012. !For Appellant ... Mr.Yashod Vardhan, Senior Counsel for for Mr.T.V.Badrinarayanan ^For Respondents... Mr.M.Vallinayagam, Senior Counsel for Mr.K.Muralidharan for R1 and R2 Mr.Mubarak Ahamed for M/s.Ahamed Associates for R3 :JUDGMENT
(Judgment of the Court was delivered by CHITRA VENKATARAMAN, J.) The present writ appeal is by the writ petitioner, challenging the order of the learned single Judge dated 30.08.2012 made in W.P.(MD)No.2068 of 2012, rejecting the prayer of the writ petitioner for issuance of a writ of certiorarified mandamus to quash the order of the second respondent in Ref.MAO/763/11 dated 15.02.2012 and consequently direct the respondents to issue Indane Distributorship to the appellant for Kayathar, Tuticorin District for open category (women).
2.The respondent-Indian Oil Corporation and the other two oil companies jointly issued an advertisement calling for applications for the award of LPG Distributorship in Kayathar, Tuticorin District. One of the requirements for an eligible candidate to apply for, is stated in Column-12 of the advertisement, which reads as under:
Item No. Instructions Supporting Documents to be provided by applicant at the time of verification 12 Experience: Minimum one year experience in the capacity of supervisor/Manager/proprietor/ partner involved in running a business / organisation will be considered. Provide information based on the type of experience.
I - Direct Sales / Home delivered product in case experience is in the products or services which are delivered at residence of customer like LPG cylinders. II - Other Petroleum Products III - Any other trade.
Experience certificate should be supported by Salary slips / appointment letter or any other document which can establish the claim of experience.
The writ petitioner / appellant applied for distributorship vide application dated 17.07.2010, wherein as against Column-12, it is stated as under:-
Type of experience Name and address of the establishment / Institution etc. Period From Period To Number of years Direct Sale / Home delivered products (including LPG distributorship) THIRUPATHI GAS SERVICE, 517, THEPPAKULAM STREET, ETTAYAPURAM-628 902.2009 2010 1
Other Petroleum products Any other Trade NATIONAL ENGINEERING COLLEGE 2000 2010 10 Instructions were issued to the Interviewing Committee in matter of awarding of marks on the criteria prescribed based on the Valuation. As far as the experience criteria is concerned, the marks to be awarded reads as under:
Parameter Description Max. Marks individual including partnerships Max Marks non-individual Entities Evaluation Experience Direct Sale / Home Delivered products (including LPG distributorship) or 4 8 Other petroleum products 3 6 Any other trade 2 4 Sub Total maximum marks 4 8 Marks to be awarded based on the information given in application for experience of running or working in an establishment for minimum one year. Marks will be awarded on the quality rather than amount of experience. The quality of experience will be judged based on the response to the questions related to experience in Direct Sale, Home Delivered products, Trade of petroleum products, hospitality / service industry etc. by the candidates in the interview. Personality Assessment on the following parameters Communication / articulation skills, Polite, presentable and well mannered. Enthusiasm / energetic / self-confidence / convincing power 2 Not applicable Assessment based on observation and leading questions.
Grand total 100 100 Based on the details, the appellant was called for interview on 23.11.2011 before the Panel. The appellant-P.Sivakami and other participants were awarded the marks as under:
Sr.No. Name of the Candidate (Mr/Ms) CAPABILITY TO PROVIDE INFRASTRUCTURE Godown Show Room CAPABILITY TO PROVIDE FINANCE Educational Qualification Age Experience Business ability / acumen Personality Total 25 10 35 15 4 4 5 2 100 1 Gayathri K. Ineligible due to Basic Educational Qualification Certificate Not Produced 2 Kausalya D. 25 10 30 15 4 2.3 2.7 1.7 90.7 3 Koteeswari P. ABSENT 4 Santha P. ABSENT 5 Sasi Priya R. 25 10 35 15 4 2 4.3 2 97.3 6 Siraj Nisha H. 25 10 30.5 12 2 2 2.7 1.7 85.8 7 SIVAKAMI P. 25 10 35 15 4
3.7 3.7 2 98.3 8 Vanitha V. ABSENT 9 Vasuki M.V. 25 10 35 15 4 3 3.7 2 97.7 10 Githanjali R. 25 10 35 15 4 3.3 3.7 2 98
3.The case of the appellant herein is that although she was awarded the highest marks of 98.4 (shown as 98.3 in the mark sheet), ranking first among the 10 candidates, she was not considered for the grant of distributorship. On 18.02.2012, she received the proceedings dated 15.02.2012 from the second respondent holding that the experience certificate produced by her was not meeting the criteria as per the guidelines and informations in the advertisement. Thus denied of the distributorship, the appellant approached this Court contending that the rejection of her candidature is illegal insofar as it ignored the resolution of the Interviewing Committee. She further contends that as per the Experience Certificate, she is fully qualified and the marks awarded were based on the guidelines on valuation. The rejection is contrary to the report of the Valuation Committee. Hence the writ petition was filed.
4.On notice, the second respondent filed the counter affidavit before this Court wherein it was pointed out that the report of the Field Investigation Committee showed that the appellant had not worked in the capacity of Supervisor/Manager/Proprietor/ Partner. In the circumstances, when the Field Investigation Report had found that the Experience Certificate produced was not in terms of the criteria, even though good marks were obtained, rightly her claim was rejected.
5.In considering the rival claims, learned single Judge pointed out to paragraph-12 of the Instructions to Candidates in the Application Form requiring the qualification for application for the grant of LPG distributorship that the candidates should have experience in the capacity of Supervisor/Manager/Proprietor/ Partner. The information indicated the type of experience that one should have, namely in Direct Sale, Home Delivered products, Trade of petroleum products, hospitality / service industry etc. Admittedly the appellant was only a part-time employee working between 5.30 p.m. and 7.30 p.m. In the circumstances, learned single Judge held that she did not satisfy the criteria. Learned single Judge further pointed out that when the Interview Committee interviewed the appellant, the marks were awarded based on the performance of the candidate and there was no scope for verifying the credentials / documents produced. Consequently, referring to the Field Investigation Report given by the Field Investigation Committee, this Court rejected the writ petition. Aggrieved by the same, the present writ appeal has been filed.
6.Learned senior counsel appearing for the writ appellant submitted that the appellant filed the documents in support of her experience in the Thirupathi Gas Agency. There she was working as part-time Booking Clerk between 5.30 p.m. and 7.30 p.m., and there was no suppression of any material fact when she applied for the grant of distributorship. He further stated that when the evaluation process clearly lay emphasis on quality of experience rather than the count of experience, and the Interview Committee was totally satisfied of the quality of experience of the appellant, it is not open to the respondents herein to reject the candidature of the appellant. Given the fact that the Interviewing Committee had awarded marks upon subjective satisfaction in an objective manner, knowing fully well that the appellant has part-time experience only, the eligibility of the appellant to have the distributorship cannot, in any manner, be rejected. Commenting on the Investigation Committee's Report, he further pointed out that all facts were truly stated before the respondents herein and hence, the reasoning of the Investigation Committee as though she had suppressed her experience is totally unwarranted. On the question as to whether a part-time nature of work would confer any eligibility on the appellant, learned senior counsel placed reliance on the decision in the unreported judgment of the Hon'ble Supreme Court in Civil Appeal No.7599 of 2012 arising out of SLP (C) No.13499 of 2011, dated 19.10.2012, wherein the Apex Court had pointed out that in the absence of any mala fides alleged against the experts in the Selection Committee, the evaluation on the experience could not be rejected. It is further stated that as per the guidelines, there is no distinction between the part-time and full time experience in the capacity of Supervisor/Manager for the purpose of conferring the eligibility to seek distributorship of LPG. Thus, going by the decision of the Apex Court, the criteria adopted by the respondents in rejecting the appellant's name is totally unsustainable.
7.Learned senior counsel appearing for the respondent-Corporation submitted that the Field Investigation Report clearly pointed out that the appellant did not satisfy the criteria on the experience front for the grant of LPG distributorship. On the admitted fact that she was only working as Booking Clerk and in the face of clear norms given in the advertisement as regards the eligibility for grant of LPG distributorship that the candidate should have worked in the capacity of Supervisor/Manager/Proprietor/Partner in a Gas Agency, the appellant, even though obtained the maximum marks before the Interviewing Committee, did not possess the required eligibility to have the dealership. In other words, the marks awarded on the ground of experience would be of no consequence once experience of the candidate fails to meet the standards given in the Advertisement at Column-12. In the light of the above, learned senior counsel submitted that the decision of the Apex Court would have no relevance to this case. He further pointed out that in the decided case, the candidate therein worked as Marketing Manager on part-time basis and he further pointed out that even as per the service sheet of the employer, she was only working as clerk. Thus, in the background of the criteria given in the advertisement, the appellant has no stand.
8.We do not find that the appellant's case merits acceptance for grant of distributorship based on the decision of the Apex Court cited supra. Admittedly, the appellant did not function either in the capacity of Supervisor or Manager or Proprietor or Partner having experience of one year. The facts in this case are distinguishable from the decided case where the applicant was working as a Marketing Manager. The issue therein related to the genuineness of the certificate produced by the applicant and the satisfaction of the requirement as given in Column-12 by the Expert's Committee. Leaving aside the question as to whether the part-time experience conferred eligibility or not, the only question as already seen is Column-12 of the advertisement. Given the fact that the criteria (already extracted earlier) prescribed working experience as Supervisor or Manager or Proprietor or Partner, on the very strength of the certificate issued by the employer that she was only a Booking Clerk, she is not eligible for the grant of distributorship.
9.Learned senior counsel appearing for the appellant pointed out that the Evaluation Committee clearly pointed out that the award of marks based on the quality of experience would score over the years / experience. On the satisfaction recorded by the Interview Committee awarding maximum marks to the appellant herein, it is not for the respondents to negate the eligibility marks, by contending that the requirements in the application had not been fulfilled. We do not find any justifiable ground to accept this line of reasoning by placing reliance on the guidelines given for evaluation of the candidates' performance by the Interviewing Committee. The question of acceptance of the report on evaluation comes only if and when a candidate satisfies the required eligibility criteria. Thus even if the Interviewing Committee is satisfied about the performance, it is always subject to the report of the Field Investigation Committee. Para-16 of the advertisement provides for field investigation on the documents submitted including the experience certificate. Given the fact that the Field Investigation Committee had clearly pointed out that the appellant had not satisfied the eligibility criteria, and that the experience claimed by the petitioner was in violation of the conditions given in Clause 16(g) and (h), the respondent-Corporation deducted 3.7 marks awarded for experience. Thus the marks originally awarded at 98.3 by the Committee was reduced to 94.6. In the background of the above facts, the appellant was denied of the first position in the merit panel and hence declared as ineligible. Although, learned senior counsel submitted that the appellant could not be alleged of suppression of material facts, yet, on her not satisfying the required qualification and she having worked only as a Booking Clerk, we do not find any justifiable ground to grant the relief as sought for by the appellant. On the admitted fact that the appellant had worked only as booking clerk, a fact which is supported by the employer, we have no hesitation in confirming the order of the learned single Judge and rejecting the writ appeal.
10.In the result, the writ appeal stands dismissed. Consequently, M.P.(MD)Nos.1 and 2 of 2012 and 1 of 2013 are closed. No costs.
KM To
1.The General Manager, Indian Oil Corporation, Indian Oil Bhavan, Nungambakkam High Road, Chennai.
2.The Senior Area Manager, Indian Oil Corporation Ltd., Madurai Area, Race Course Road, Chockikulam, Madurai-625 002.