Brijendra Singh Gurjar vs Indian Oil Corporation Limited and Others

S.K. Gangele, J.—The petitioner has filed this petition against the allotment of a retail outlet in favour of the respondent No. 3 and letter of intent dated 12-07-2012 (Annexure P-9). The respondent No. 1 invited applications for opening retail outlet at the location SH-19 Soni under open category. The petitioner and other persons submitted their applications for allotment of retail outlet. The petitioner was called for interview along with the respondent No. 3. After interview, in the final selection the respondent No. 3 was placed at Serial No. 1 because he received 75.40 marks out of 100 and the petitioner was empanelled at Serial No. 2 because he received 72.23 marks out of 100. The petitioner submitted a complaint to the appropriate authority and pleaded that experience certificate submitted by the respondent No. 3 was not proper because he had been doing internship during the aforesaid period from Homoeopathic Medical College, Jabalpur, hence, the selection of the respondent No. 3 is arbitrary and illegal. The complaint was investigated by the authority and thereafter it was rejected. Subsequently, a letter of intent dated 12-07-2012 (Annexure P-9) was issued in favour of the respondent No. 3.

The question for consideration in this petition is that whether the petitioner and the respondent No. 3 have been awarded proper marks or not? Selection of retail outlet dealership by the respondent No. 1 is based on the terms and conditions mentioned in the brochure published on 2nd September, 2011. In accordance with the aforesaid guideline, for individual 4 marks is to be awarded on the basis of experience certificate to the effect that the individual has experience of retail trade of petroleum products having worked as Manager in a retail outlet or COCO Contractor. The petitioner also submitted an experience certificate, copy of which has been filed along with the petition. In accordance with the aforesaid certificate, the petitioner had worked as Assistant Manager. In my opinion, the petitioner has rightly been awarded "0" [zero] marks because he had not worked as Manager. The respondent No. 3 submitted an experience certificate of Baureshwar Kisan Sewa Kendra, Village Surpura, Tahsil Ater, District Bhind copy of which has been filed as Annexure P/4. In the aforesaid certificate, it has been mentioned that the respondent No. 3 had worked at Baureshwar Kishan Sewa Kendra as Manager from June-1999 to June-2011. In the aforesaid certificate, there is no mention to the effect that what was the salary of the respondent No. 3.

The complaint was investigated by the authority and the authority has verified the fact that at the relevant time, the respondent No. 3 had been completing his internship from Gwalior and Principal of Anushree Homoeopathic Medical College & Hospital, Jabalpur informed the authority of the respondent No. 2 that the respondent No. 3 was granted permission to complete his internship from Gwalior and the period of internship is of 4-6 hours during 24 hours.

The authority who has enquired the complaint, has recorded following findings in regard to experience certificate of the respondent No. 3 and the period of internship.

Experience certificate and Appendix-A submitted by No. 1 empanelled candidate Shri Brijesh Singh Rajpoot are forged.

� Experience certificate from M/s. Baureshwar Kisan Sewa Kendra, Dated 25.02.2011 has been submitted alongwith the application form. During my visit to Gwalior I met the proprietor of M/s. Baureshwar Kisan Sewa Kendra Shri Ashok Singh Narwariya who confirmed that the certificate has been issued by him and Shri Brijesh Singh Rajpoot worked as a Manager at his RO.

The complainant has attached photocopy of internship completion certificate of State Council of Homeopathic, Madhya Pradesh, Bhopal from Anushree Homeopathic Medical College & Hospital, Jabalpur (MP). The period of internship is mentioned as 14.05.2009 to 15.05.2010 and the experience certificate of M/s. Baureshwar Kisan Sewa Kendra, dated 25.10.2011 is for the period June-2009 to June-2011. To investigate/examine the matter further the matter was taken up with the Principal of concerned college through Shri Anil Dhapodkar, AM(RS) who took up the matter vide letter IOC/JDO dated 02.04.2012. The matter was followed up through Shri Anil Dhapodkar, AM (RS) Jabalpur.

Annx-II

Principal vide their letter dated 09.04.2012 reference 82/2012 informed that:-

Mr. Brajesh Singh Rajput was granted permission to complete his internship from Gwalior after obtaining due approval from all concerned.

Internship duty is normally of 4 to 6 hours during 24 hrs.

Some students do undertake other jobs during this period. There are no specific rules in this regard.

Annx-III

Above facts were confirmed over phone also from Principal.

In view of point no. 1, a letter IDO/DM/Investigation Soni dated 19.04.2012 was written to Principal, Sofia Homeopathic Medical College, Gwalior requesting to confirm.

Whether student was a regular student and was he attending the course on daily basis.

Was the internship done at Medical College only or the course required postings at various hospitals. Duration and place at other hospital was also required.

Annx-IV

Principal, Sofia Homeopathic Medical College vide there letter SH/Me/1038 dated 20.04.2012 confirmed that Shri Brijesh Singh Rajpoot completed the internship from this college as regular student and he was posted in college OPD, Navjeevan Hospital & Bank Colony, OPD. During scheduled internship training period the duration was 4 to 5 hours per day.

Annx-V

Since there is a over lapping of period of internship and experience certificate matter was examined further. Matter was taken up with Shri Brijesh Singh Rajpoot for his comments on overlap period. Candidate vide his letter dated 15.05.2012 conveyed that he was visiting the RO during this period regularly as his requirement for internship duty was for a period of 3 to 4 hours only. Further after 2 O''clock he use to travel to Village Surpura, where M/s. Baureshwar Kisan Sewa Kendra is situated and use to come back to Gwalior after overnight stay at Surpura commuting by train and bus.

Annx-VII

Matter was discussed in detail with AM(RS) Bhopal-II SA Shri Ratandeep Singh who vide his IOM reference BHDO/Gwl/Soni dated 16.05.2012 informed that RO is operated from 06 am to 09 pm. The one way commuting time between Gwalior & RO location is about 3 hours & 15 minutes. Under the circumstances his Managerial experience from June-2009 to June-2010 is of limited period. Following has been kept in mind

Annx-VII

� Candidate has not hidden the internship as the certificate is attached alongwith the application form.

� His version of attending the RO during internship period cannot be rejected outright although the internship could be for a limited period.

� The requirement by IOC is for maximum one year experience to be able to score maximum marks. If the internship period is totally discounted still a period of one year i.e., from 16.05.2010 to June-2011 out of total period mentioned in the experience certificate, is there as experience.

From the above findings recorded by the authority, it is clear that there was overlapping period of internship and experience certificate. The candidate-respondent No. 3 informed the authority that after 2 O''clock he used to travel to village Surpura and after completing his job he used to come back to Gwalior after overnight stay at Surpura.

In my opinion, the findings recorded by the authority are arbitrary because the authority has not investigated the registers of the Centre from where the experience certificate was issued. It has also not mentioned that how much salary the respondent No. 3 had been getting when he was working as Manager, neither any pay slip was produced. There is no mention that a person shall do his work at Gwalior and complete his internship and thereafter shall return back to Bhind and work there. It appears that in order to get marks, the respondent No. 3 has submitted a false certificate. The decision of the Investigating Committee is arbitrary.

The Hon''ble Supreme Court in the case of Chairman, All India Railway Rec. Board and Another Vs. K. Shyam Kumar and Others, , has held as under in regard to power of interference by the Court in an administration decision-making process after applying the theory of proportionality.

Wednesbury applies to a decision which is so reprehensible in its defiance of logic or of accepted moral or ethical standards that no sensible person who had applied his mind to the issue to be decided could have arrived at it. Proportionality as a legal test is capable of being more precise and fastidious than a reasonableness test as well as requiring a more intrusive review of a decision made by a public authority which requires the courts to "assess the balance or equation" struck by the decision-maker. Proportionality test in some jurisdictions is also described as the "least injurious means" or "minimal impairment" test so as to safeguard the fundamental rights of citizens and to ensure a fair balance between individual rights and public interest. Suffice it to say that there has been an overlapping of all these tests in its content and structure, it is difficult to compartmentalise or lay down a straitjacket formula and to say that Wednesbury has met with its death knell is too tall a statement. Let us, however, recognise the fact that the current trend seems to favour proportionality test but Wednesbury has not met with its judicial burial and a State burial, with full honours is surely not to happen in the near future.

Proportionality requires the court to judge whether action taken was really needed as well as whether it was within the range of course of action which could reasonably be followed. Proportionality is more concerned with the aims and intention of the decision-maker and whether the decision-maker has achieved more or less the correct balance or equilibrium. The court entrusted with the task of judicial review has to examine whether decision taken by the authority is proportionate i.e. well balanced and harmonious, to this extent the court may indulge in a merit review and if the court finds that the decision is proportionate, it seldom interferes with the decision taken and if it finds that the decision is disproportionate i.e. if the court feels that it is not well balanced or harmonious and does not stand to reason it may tend to interfere.

Leyland and Anthony in Textbook on Administrative Law (5th Edn. OUP, 2005) at p. 331 has amply put as follows:

Proportionality works on the assumption that administrative action ought not to go beyond what is necessary to achieve its desired results (in everyday terms, that you should not use a sledgehammer to crack a nut) and in contrast to irrationality is often understood to bring the courts much closer to reviewing the merits of a decision.

The courts have to develop an indefeasible and principled approach to proportionality, till that is done there will always be an overlapping between the traditional grounds of review and the principle of proportionality and the cases would continue to be decided in the same manner whichever principle is adopted. Proportionality as the word indicates has reference to variables or comparison, it enables the court to apply the principle with various degrees of intensity and offers a potentially deeper inquiry into the reasons, projected by the decision-maker.

In my opinion, the authority has wrongly awarded 4 marks against the experience in favour of the respondent No. 3.

Learned Senior Counsel appearing on behalf of the respondents No. 1 & 2 - Indian Oil Corporation Limited, has submitted that this Court could not interfere in the process of awarding the marks and relied on the following judgments:-

(I) Mohan Kumar Gole V. Indian Oil Corporation & Ors., 2011 (I) MPLJ 161;

(II) Prasana Kumar Vashistha Vs. Indian Oil Corporation Ltd. and Others, ;

(III) Jitendra Kumar Jain V. Union of India & Ors. ILR [2011] MP (122).

I am not in agreement with the arguments advanced by learned Senior Counsel because if the action of the authorities is arbitrary and illegal then certainly this Court has power to struck down the same after applying the theory of proportionality, it lays down that no rightful person would arrive on a finding which has been arrived by the authority.

In the present case, in my opinion, the authority has applied wrong parameters and did not consider the fact that whether any salary was paid to the respondent No. 3 or not. The authority has taken into consideration the fact that a person can work at two places within a period of 24 hours even if the work distance is 100 kilometers. It is quite unreasonable.

Learned counsel appearing on behalf of the petitioner also challenged the marks awarded to the respondent No. 3 in regard to land. It is submitted on behalf of the petitioner that the respondent No. 3 does not have his own land for establishment of retail outlet.

In regard to the aforesaid allegation, the Investigating Committee has recorded the following finding:-

Shri Brijendra Singh Gurjar

Less marks awarded to him in parameter of land.

* The land at survey no. 853 is in co-ownership with one Shri Ramhet for which consent letter has been given on affidavit. In view of this the marks awarded are in order.

The aforesaid finding is in accordance with the terms and conditions, hence, the objection in this regard raised by learned counsel for the petitioner is hereby rejected. Consequently, the petition of the petitioner is disposed of with the following directions:-

(I) That, awarding the four marks by the respondent No. 1 to the respondent No. 3 against experience is hereby quashed and the letter of intent dated 12-07-2012 (Annexure P/9) is also hereby quashed.

(II) That, the respondents No. 1 and 2 are directed to recalculate the marks accordingly and pass an appropriate order in regard to award of contract on the basis of highest marks which may be received by the candidates.

No order as to costs.