S.Kumutha vs M.Regina Parvin Banu, & Ors.

This writ appeal by the third respondent in W.P.(MD) No.13063 of 2011 is directed against the order, dated 03.08.2012, by which the writ

petition filed by the first respondent / writ petitioner was allowed and the appellant / third respondent was held to be disqualified for being granted

LPG Dealership and a consequential direction was issued to consider the claim of the first respondent / writ petitioner.

Heard Mr.T.V.Ramanujam, learned Senior Counsel appearing for Mr.T.V.Badrinathan, learned counsel for the appellant, Mr.B.Saravanan,

learned counsel for the first respondent and Mr.K.Muralidharan, learned Standing Counsel for I.O.C., appearing for the respondents 2 and 3.

For the sake of convenience, the parties in this appeal shall be referred to as per the description in the writ petition. Thus, the appellant will be

called as the third respondent, the first respondent will be called as the writ petitioner and the respondents 2 and 3 will be called as the respondents

1 and 2.

The writ petitioner challenged the grant of LPG Dealership to the third respondent primarily on three grounds. Firstly, the third respondent has

produced a bogus experience certificate stating that she was employed in Sri Shanmuga Service Station, H.P.C.Dealer, Dindigul, for the period

from 02.03.2004 to 31.03.2005 and from 01.04.2005 to 31.12.2006, when in fact she was a student in Oxford Engineering College, Trichy,

pursuing her B.E.Computer Science Engineering, which course she joined on 22.07.2002 and completed on 24.05.2006. Therefore, it was

contended that as per the Experience Certificate issued by Sri Shanmuga Service Station, the third respondent was a full-time employee and if it is

so, she could not have pursued the full-time B.E.Course in a College situated in Trichy, when H.P.C.Dealer was in Dindigul, which is more than 90

Kms., from Trichy. Therefore, in terms of Clause 19(g) and (h) of the General Conditions in the advertisement, the third respondent''s application

ought to have been outrightly rejected by the respondent - Oil Corporation.

The next ground is that the third respondent does not fulfill the income criteria with regard to herself and her spouse and supportive documents

were not produced and the team of officials, who conducted the field verification, appear to have been very obliging to the third respondent, which

is evident from the field verification report.

Further, it is contended that the experience certificate issued itself is a bogus document, since the said Dealer''s licence was suspended on

30.08.2005 and was terminated on 23.06.2006 and the Field Verification Officers'' report that the fact regarding the genuineness of the experience

certificate could not be verified, no credence could have been granted to the third respondent based on such certificate. Further, the report also

clearly reveals that the minimum deposit to be maintained has not been complied with, yet the Field Investigation Officers have made certain

remarks, which appear to advance the case of the third respondent.

The learned Single Judge was convinced with the case as projected by the writ petitioner and allowed the writ petition and also issued a

direction to the respondent - Oil Corporation to consider the case of the writ petitioner as she was ranked No.2 in the merit list. The respondent -

Oil Corporation has not challenged the order passed by the learned Single Judge, but following the same, terminated the dealership granted to the

third respondent and as of now, the third respondent is operating based on the order of stay granted in this appeal.

The learned Senior Counsel appearing for the third respondent submitted that two experience certificates have been issued, one from Sri

Shanmuga Service Station and the other one is from Star Agro Add and the Field Investigation Officers verified the certificates and have recorded

their opinion and under Article 226 of the Constitution of India, this Court cannot as a Court of first instance decide whether the experience

certificate is bogus or not. Further, it is submitted that in terms of brochure with regard to the parameters, more particularly, pertaining to

experience, marks will be awarded based on the information given in application for experience of running or working in an establishment for

minimum one year and such marks will be awarded on the quality rather than amount of experience and it will be judged based on the response to

the questions related to experience.

It is further submitted that the evaluation will be done in terms of Clause 14 of the brochure, which clearly shows that the maximum mark that

can be allotted for experience is 4 and the evaluation on the parameter will be done based on the interview and therefore, the certificate given by

the third respondent is not in any manner relevant for the purpose of evaluating the petitioner''s experience and awarding marks.

Further, it is submitted that the Field Investigation Officers have enquired and found that Sri Shanmuga Service Station is inoperative and were

unable to check the status of experience, but they checked with M/s.Star Agro Add, Dindigul and the experience with the said Company was

found satisfactory. Further, with regard to the annual income and the amount to be maintained in the Bank account have also been thoroughly

verified and there cannot be a rowing enquiry into the decision taken by the experts.

Further, it is submitted that the letter, dated 20.06.2011, is not an order, but it is a decision taken by the respondent - Oil Corporation and the

same cannot be put to challenge. Further, it is submitted that when the earlier writ petition filed by the writ petitioner, in W.P.(MD) No.3038 of

2009, was disposed of on 25.04.2011, the representation given by the writ petitioner on 07.03.2009, was already disposed of on 25.06.2009

and this was not brought to the notice of the Court and that is why, the Court directed the authorities to dispose of the appeal within the time

frame. Only in the writ appeal filed against the said order, in W.A.(MD) No.645 of 2011, liberty was granted to give a fresh representation and

based on which, a communication was sent to the petitioner on 21.10.2011, which is impugned in the writ petition. Therefore, it is submitted that

the evaluation of the petitioner''s experience being based only on oral interview, the certificate cannot be a reason to reject the third respondent''s

candidature. Further, the respondent - Oil Corporation in the proceedings, dated 21.10.2011, have found that even after deducting the marks

awarded to the third respondent for experience and income criteria, still the third respondent would secure higher marks than the writ petitioner

and there is no error in the decision of the respondent - Oil Corporation.

The first and foremost aspect, which has to be taken note of is that the grant of dealership / distributorship by a public enterprise in favour of

the citizens has to be done in a transparent manner, without giving any room for any complaint or grievance. We are conscious of the fact that quite

sometime ago, the Honourable Supreme Court cancelled all dealerships / distributorships granted by various Oil Companies, who were

Government of India Enterprises, after having found that such allotment were whimsical, tainted with mala fide and for certain other vested reasons.

Thus, the interpretation given to the terms and conditions mentioned in the brochure are to be strictly adhered to and there can be no compromise

or via media adopted by the officials while scrutinizing the application.

Clause 23 of the Brochure on Selection of Indane (LPG) Distributors - March 2010 clearly states that if any information furnished by the

applicant is found to be false at any point of time before or after appointment as a dealer, the allotment shall be cancelled forthwith and

distributorship terminated in case commissioned. Thus, we are required to see as to whether the third respondent has furnished false information at

the time of submitting her application.

The fact that the third respondent was a student pursuing her B.E.Computer Science Engineering Course in a College at Trichy between

22.07.2002 and 24.05.2006 is not in dispute. Thus, a full-time student, who was studying at Trichy could not have been in full-time employment at

Dindigul, which is more than 90 Kms., away from Trichy. If we are to accept the stand that it was a part-time employment, it would be a ridiculous

position as no reasonable person would take up a part-time employment and travel everyday more than 180 Kms., and the total remuneration,

which the third respondent appears to have got during the relevant period was Rs. 55,500/- and the average daily wage would be about Rs.152/-.

Thus, the plea raised by the third respondent lacks bonafide.

One more contention raised was that the certificate issued by Sri Shanmuga Service Station is not the only certificate, but another certificate

issued by Star Agro Add was also given, which was verified by the officials of the inspection team.

We have perused the Field Inspection Report, wherein it is reported that on enquiry M/s.Sri Shanmuga Service Station, HPC RO Dealer,

found to be inoperative, therefore, the officer was unable to check up the status of experience. With regard to the certificate of M/s.Star Agro

Add, it was stated that experience with the said Company found satisfactory. It is not in dispute that Sri Shanmuga Service Station''s dealership

was suspended on 30.08.2005 and terminated on 23.06.2006. Therefore, the plea raised by the third respondent that the writ petitioner was

employed till 31.12.2006 is false.

The contention raised by the learned Senior Counsel appearing for the third respondent is that this Court cannot act as a Court of first instance

to decide whether a document is bogus or not. We have not embarked upon an exercise to examine whether the service certificate was bogus or

not, but we have gone by the statement made in the certificate and found that the certificate is unacceptable and lacks credibility. Unfortunately, the

Field Investigation Officers applied their mind to this aspect and mechanically submitted a report that the certificate could not be verified as the

dealership had been terminated. Exercise should have been undertaken to see when the dealership was terminated, was he suspended earlier etc.

Thus, there is a clear abdication of the responsibility on the part of the respondent - Oil Corporation.

Moving on the next issue with regard to the annual income, from the information furnished by the third respondent along with application, we

find that her annual income is Rs.1,63,000/- and that of her spouse is Rs. 1,34,390/-. There is a gross discrepancy in the figures, when we look at

the field verification report, it is stated that the income of the third respondent''s spouse is Rs.4,42,000/-. A certificate from the Chartered

Accountant has been furnished for Rs.5,47,961/-. It is not clear as to before which authority, the Chartered Accountant''s certificate was

produced. As per the terms and conditions, all documents should be annexed along with the application. The statement made by the Field

Investigation Officers is absolutely vague and perversity and it is writ large on the face of the report. Equally so is the observation in respect of the

statement of account produced from the Bank. On reading of the report, we find that there was a clear attempt on the part of the officers to

somehow ensure that the third respondent satisfies the parameters. The attitude of the Field Investigation Officers in this regard requires to be

deprecated. Therefore, on the ground relating to the income particulars, the third respondent ought to have been disqualified.

Further, the perversity of the manner in which, the respondent has acted is so very evident on a bare perusal of the order, dated 21.10.2011.

On a perusal of the said order, it is clear that all the discrepancies pointed out by the writ petitioner have been candidly admitted by the respondent

- Oil Corporation. However, the officials of the respondent - Oil Corporation have attempted to save their skin by giving certain reasons to justify

the selection of the third respondent. This is wholly unauthorized and the brochure does not provide for the same. If a candidate is found to have

not produced the requisite certificates and the certificate could not be verified for its genuinity, there should have been an outright rejection of the

application. The respondent - Oil Corporation cannot say that as of now, they would award zero marks under the said head, reduce the number of

marks under the income criteria and then compare the reduced mark with that of the mark awarded to the writ petitioner and state that still the writ

petitioner will not qualify. The exercise adopted by the respondent - Oil Corporation smacks of arbitrariness. Equally so is with regard to the

observations made in respect of the Bank deposit. Though it may be true that the money might be lying with the same Bank, in the field verification

report, it has been clearly stated that the amount available in the Savings Bank Account is only for 87 days as against 90 days, the minimum period

given in the advertisement. If such is the factual position, it is not known as to how the General Manager, in his order, dated 21.10.2011, more

particularly in Paragraph No.5, could have embarked upon a subsequent verification with the Bank and sought to justify the selection of the third

respondent. The exercise done by the officials of the respondent - Oil Corporation is arbitrary.

One saving feature is that the respondent - Oil Corporation did not challenge the order passed in the writ petition and implemented the said

order. Had there been a challenge to the order passed in the writ petition, this Court might have been constrained to make a very strong

observations as against the procedure adopted.

The learned Standing Counsel appearing for the respondent - Oil Corporation, while accepting that they have implemented the order passed in

the writ petition, would submit that the writ petitioner would not be automatically entitled for dealership, though he was ranked No.2 in the merit

list, as field verification has not been done in his case. We may note that the learned Single Judge, while allowing the writ petition, directed the

respondent - Oil Corporation to consider the claim of the writ petitioner for award of LPG Dealership and such consideration obviously has to be

in terms of the conditions contained in the advertisement / brochure.

The learned Senior Counsel appearing for the third respondent as well as the learned counsel appearing for the writ petitioner relied on the

decision of the Honourable Supreme Court in Sajeesh Babu K. v. N.K.Santhosh and others, reported in (2012) 12 SCC 106.

In the said case, the issue with regard to the validity of the experience certificate was one of the contentions. The case of the applicant was that

he was a part-time Marketing Manager and an Insurance Consultant while studying M.Tech. Course. The experience certificate was evaluated by

the Selection Committee and it was stated before the Court that the quality of the experience will be judged on the basis of the response to the

questions relating to the experience in direct sale, home delivered products, hospitality/service industry etc. The Court found that the person, who

had given the certificate, confirmed that the appellant was a part-time employee. Therefore, the Supreme Court pointed out that 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.

In the instant case on hand, the third respondent''s plea was that she was a full-time employee. As noticed above, the distance between

Dindigul and Trichy is more than 90 Kms., and no reasonable person will believe that a lady, who is pursuing B.E.Computer Science Engineering

Course will travel for more than 180 Kms., everyday for a daily wage of about Rs.152/-, if she had to work for all 365 days in a year. That apart,

the genuineness of the certificate issued by Sri Shanmuga Service Station was not verified as by then the dealer became inoperative as the

dealership was terminated. Therefore, the investigation officers should have made an endeavour to see as to what would be the effect of certificate

especially when it has been given by a petroleum dealer. We fail to understand as to why the investigation did not proceed in such a direction.

Thus, the decision of the Honourable Supreme Court in the case of Sajeesh Babu (cited supra) does not render assistance to the case of the third

respondent.

The learned Senior Counsel for the third respondent relied on the decision of the Division Bench in the case of R.Kalaivani v. Chair, Indian Oil

Corporation Ltd., reported in (2010) 1 MLJ 742. The point which fell for consideration in the said case was whether the writ petitioner / appellant

therein is correct in contending that by merely producing experience certificate, she is entitled to claim marks under the heading experience. After

analyzing Clause 14 of the brochure, the Court held that the marks for experience will be awarded on the basis of the interview. In the said

decision, no question arose as to the validity or genuinity of the certificate. Therefore, the said decision is not applicable to the facts of the present

case.

The Honourable Supreme Court in Shiv Kant Yadav v. Indian Oil Corpn., reported in (2007) 4 SCC 410, held that there was a requirement

to disclose the true and correct fact and in view of the undertaking that if any factual misstatement or declaration is made that permits the

cancellation of the allotment and therefore, refused to interfere with the order passed by the High Court. The third respondent herein is also a

signatory to such an undertaking.

Thus, for all the above reasons, we find no ground to interfere with the order passed in the writ petition.

In the result, the writ appeal fails and it is dismissed. The respondent - Oil Corporation is directed to consider the candidature of the writ

petitioner in accordance with the terms and conditions contained in the advertisement / brochure, within a period of four weeks from the date of

receipt of a copy of this Judgment.

As the respondent - Oil Corporation had cancelled the dealership of the third respondent, after the writ petition was allowed by passing an

order, dated 17.08.2012, on account of the dismissal of this writ appeal, the said order, dated 17.08.2012, will automatically revive and the

dealership shall forthwith vest with the respondent - Oil Corporation, who shall maintain the dealership by deputing their staff till a decision is taken

on the candidature of the writ petitioner. No costs. Consequently, connected miscellaneous petitions are closed.