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the High Court has granted the Writ of Mandamus directing the Indian Oil Company to allot the dealership of the site located at Thane Belapur Road, Village Mahape, Navi Mumbai, Maharashtra to Shri Ashok Shankarlal Gwalani (hereinafter referred to as the “respondent”) we have no other option but to set aside the order of the High Court. Accordingly, the order and judgment dated 29.9.2010 passed by the High Court of Bombay is set aside with a liberty to the Competent Authority to re-advertise the petrol/diesel retail outlets in question and to make a fresh selection in accordance with law. The appeal is allowed with aforesaid observation and directions. There shall be no order as to costs.

REPORTABLE

English: The supreme court of india. Taken abo...

English: The supreme court of india. Taken about 170 m from the main building outside the perimeter wall (Photo credit: Wikipedia)

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 9101 2012.
(Arising out of SLP(C) No.31932 of 2010)
SR. DIVISIONAL RETAIL SALES MANAGER,
INDIAN OIL CORPORATION LTD.
THROUGH POA HOLDER & ORS. . . APPELLANT(S)
VERSUS
ASHOK SHANKARLAL GWALANI . .RESPONDENT(S)

 

 

 

J U D G M E N T
SUDHANSU JYOTI MUKHOPADHAYA, J.
Leave granted.
2. The present appeal has been filed against the impugned order
dated 29th September, 2010 passed by the Bombay High Court in Writ
Petition No. 5032 of 2010 wherein the High Court has granted the Writ
of Mandamus directing the Indian Oil Company to allot the dealership of
the site located at Thane Belapur Road, Village Mahape, Navi Mumbai,
Maharashtra to Shri Ashok Shankarlal Gwalani (hereinafter referred to
as the “respondent”)
3. The relevant facts as pleaded by the appellant are as follows:
On 11th June, 2005, the Indian Oil Corporation Limited
(hereinafter referred to as the “Company”) published a proclamation in
leading newspapers and invited applications for grant of petrol/diesel
retail outlets (dealership) for various locations in the State of
Maharashtra. The respondent on 14th July, 2005, amongst others applied
for the same. Interviews were conducted on 9th-10th December, 2005.
One Mr. Nilesh L. Kudalkar was placed at the top of the merit panel
while the respondent was placed second and one Mr. K. Srinadha Rao was
third. However, since the difference between the marks of the top
three candidates was within 5%, the result of the interview was kept
in abeyance in accordance with the policy of the company dated April 7,
2005. A Screening Committee was established which reviewed the
markings and carried out another interview of the three candidates.
The result was declared on 4th April, 2006 and Mr. Nilesh L. Kudalkar
was first in the merit panel.
4. Being aggrieved respondent and Mr. K. Srinadha Rao both made
complaints on 10.4.2006 and 19.4.2006 respectively to the company
alleging irregularities in the selection process. In accordance
with the policy dated 1st September, 2005, an investigation was made
by the Company into the allegations made by them. It was found,
among other things, that the respondent and Mr. Srinadha Rao had not
been marked correctly as regards their financial capability and that
both had failed to provide the attested documents as had been
specifically required under the advertisement. Since the
allegations in the complaints were found to have merit, the
selection was cancelled and all the candidates were to be called for
re-interview. In the meantime, on 28th April, 2006, one Mr.
Pritesh Chhajed, who was an M&H Contractor operating on the site
filed Civil Suit No. 230/2006 before the Thane Sr. Division Court
seeking an injunction against the company from terminating the
contract and evicting him from the land. He was unsuccessful in the
same and filed an appeal before the Bombay High Court which was
dismissed by the High Court on 27th June, 2008 and he was asked to
vacate the site by December 31, 2008.
5. Re-interviews were conducted on 22nd and 24th December, 2008. The
respondent was found to be the only candidate in the merit panel.
However, complaints were received from Mr. Pritesh Chajjed (who had
also appeared in the interviews) on 26th December, 2008 and from Mr.
K. Srinadha Rao on 16.12.2008, 23.12.2008, 30.12.2008, 2.01.2009 and
10.02.2009. Again on 30.12.2008, a one man Inquiry Commission was
appointed to investigate the allegations contained in the
complaints. Also on 14.1.2009, Mr. Nilesh L. Kudalkar filed a Writ
Petition vide no. 113 of 2009 against the company for cancelling the
merit list and declaring him to be the no.1 candidate. The High
Court of Bombay was pleased to dismiss the aforementioned writ
petition in April, 2009.
6. In the meantime, the inquiry instituted by the Company revealed that
the complaints made by various persons had merit.
7. Therefore, on 6th August, 2009, the appellants sought approval from
their management for re-advertisement of the location. On 18th
August, 2009, the Company management advertised for re-interview of
all the candidates including scrutiny of all documents from the
initial stage in order to remove all errors from the selection
process. Since the code of conduct for elections was in force, the
re-interview was deferred till its withdrawal.
8. In December, 2009, the L-1 Committee was appointed before which the
applications along with other documents of all ten eligible
candidates were placed. The Committee submitted its report. The
candidature of the respondent was rejected on the ground that the
‘Relationship Affidavit’ was not as per the format.
9. On 3rd June, 2010, respondent was communicated about the rejection
of his application.
10. Being aggrieved respondent filed a writ petition being WP(C) No.
5032 of 2010 before the Bombay High Court on 17.6.2010 praying inter
alia for issuing of an appropriate writ directing the appellants to
allot the dealership at the site as per the advertisement dated
11.6.2005 and setting aside the letter dated 3.06.2010 to enforce
the decision of the Selecting Committee dated 24.12.2008, which was
allowed by the impugned order.
According to the appellants, considering that all the former merit
panels were vitiated on account of grave errors, including complaints
received with regard to all the interviews, the Company is desirous of
undertaking the selection process de novo by re-advertising the
location.
11. Learned counsel for the appellant submitted that on 8th December,
2009, L-I Committee was nominated in view of the complaints filed
by one Srinadhrao and Shri Pritesh Chajed. These complaints were
thoroughly investigated and report dated 24th March, 2009 was
received by the Company. Pursuant to the said report the Company
decided to look into the matter from the scrutiny level and to re-
interview all the candidates so as to remove the defects in the
selection process. Re-scrutiny of all the applications was made and
during that process the documents including the application
submitted by the respondent found to be suffering from deficiencies.
It was contended that the affidavit submitted by the respondent was
not as per the format and, therefore, his application was liable to
be rejected as per the policy. Consequently, the impugned letter was
issued to the respondent.
12. The aforesaid fact was disputed by the learned counsel appearing on
behalf of the respondent. They invited the affidavit filed by the
Company in Writ Petition No. 113 of 2009 wherein they supported the
selection process as well as the merit list prepared by the
Selection Committee on 24.12.2008. In the said affidavit, the
allegation that the respondent was less meritorious was denied by
the Company. The stand of the Company was that the decision to
award dealership to the respondent did not suffer from any manifest
error, equity, fair play and justice. In the said case, the
Company pleaded that the decision in favour of the respondent was
transparent and was not motivated on any consideration other than
probity. The said case was filed by second person challenging the
selection of the respondent. The Division Bench of the Bombay High
Court after hearing both the parties vide order dated 17th April,
2009 in Writ Petition No. 113 of 2009 held that the High Court could
not sit in appeal over the decision of the selection committee and
the decision is not arbitrary. The Court further held that the writ
petitioner of the said case (Writ Petition No. 113/2009) having
participated in the subsequent selection without any protest, could
not revert back to the earlier selection process.
13. On 17th September, 2012, after hearing both the parties, this Court
requested the learned Attorney General who was appearing on behalf
of the Company to give us the reasons in detail for cancellation of
the first and second rounds of the selection process held by the
authorities concerned. The learned Attorney General after meeting
with the representative of the Company in his office on 22nd
September, 2012 and after going through the relevant papers of
interviews submitted a report; the relevant portion of which reads
as under:-
“ In respect of the first round of the selection process,
in which interviews were conducted on 9th land 10th December,
2005, the Screening Committee had released the results on
4.4.2006 subsequent to which complaints received from Shri Ashok
Shankarlal Gwalani on 10.04.2006 and from Shri K. Srinadha Rao
on 19.4.2006. The General Manager, Maharashtra State Office of
the Indian Oil Corporation appointed an inquiry committee to
investigate the complaints. Based on the Inquiry Report, which
was submitted on October 7, 2006, the Maharashtra State Office
prepared a Note dated 17.10.2006 which was finally approved and
endorsed on November 7, 2006 by which a decision was taken in
accordance with existing guidelines to re-interview eligible
candidates as the merit panel had been vitiated due to errors in
evaluating financial parameters of the candidates in the merit
panel which resulted in a change in the merit panel. A typed
copy of the Note dated 17.10.2006 has been annexed by the
petitioner in the Application to bring on record facts,
subsequent events and documents, marked as Annexure P-5 thereto.
4. In respect of the second round of the selection process, in
which interviews were conducted on December 22-24, 2008, two
complaints were received from Shri Pritesh Chhajed on
26.12.2008 and from Shri K.Srinadha Rao on 16.12.2008 with a
reminder on 10.1.2009. An inquiry report was prepared by
investigating officer on 24.3.2009 which was finalized by the
Maharashtra State Office vide Note dated 13.4.2009. In relation
to the complain of Shri Pritesh Chhajed, it was found that
after giving benefit to the complainant, the following position
emerged:
“a) Even if it is considered giving benefits to the
complainant candidates Sri Pritesh J. Chajjed as eligible
based on enquiry findings, the number one empanelled
candidate remains unchanged as 1st in the Merit Panel,
however, the panel will get changed by adding other
qualified candidates in 2nd rank at least.
b) The other two complainant candidates would be ranked
hypothetically as below”

 
|Name of |Marks by the|Marks by |% marks |Empanelmen|% marks |Empanelmen|
|the |L1 committee|the L2 |allotted |t by |evaluated|t after |
|candidate | |committee |by |interview |if |deviations|
| | | |interview |committee |deviation|taken into|
| | | |committee | |s taken |considerat|
| | | |(out of | |into |ion |
| | | |total 65 | |considera|(analysis)|
| | | |marks) | |tion | |
|Shri Ashok|41.78 |5.2 |72.38% |1 |NA | |
|Gwalani | | | | | | |
|Shri |35.67 |7.4 |Ineligible|Ineligible|66.26% | |
|Pritish | | |(42.07) | | | |
|Chhajed | | |(66.26) | | | |

|Shri K. |31.00 |6.9 |58.30 |Not |NA | |
|Shrinadhar| | | |qualified | | |
|ao | | | | | | |
|Shri |32.85 |5.8 |59.46 |Not |NA | |
|Keshavrao | | | |qualified | | |
|Gopairao | | | | | | |
|Shinde | | | | | | |

Based on evaluation by L1 (Annexure A) and L2 (Annexure B)
committee the mark sheet as complied by the interview committee
(Annexure C), the marks awarded to the complainant Sri Pritosh
Chhajjed is computed in the above table, though the same was
not declared by the committee due to his ineligibility.)
Considering that the marks allotted by L1 (35.67) and L2 (7.4)
to Sri Pritish Chajjed is added, he gets 66.26% marks (i.e.
43.07 out of 65) and would have become 2nd in the merit panel
whereby the original merit panel dated 23.12.08 undergoes a
change with two candidates in the merit panel instead of one
empanelled candidate and thus the selection gets vitiated.
Hence, as per policy in vogue, since the above referred
selection gets vitiated and also there are other eligible
candidates available, the location should be reinterviewed with
all the eligible candidates.
c) From the records, it is also observed that the location
Mahape had been originally advertised on 11.6.2005 against which
based on interview, the first merit panel was declared on
4.4.4006, thereafter there were complaints and after
investigation as per grievance redressal procedure and the
decision by the competent authority, re-interview of all the
eligible candidates was conducted on 22.12.08 to 24.12.2008 and
accordingly the above referred merit panel dated 24.12.2008 was
declared by the interview committee. The selection process for
this location remained inconclusive for the last four years and
is yet to be concluded. Further it is also observed that this
will be a case of 2nd re-interview with all the eligible
candidates for the same location. In all likelihood, based on
the above investigation details and analysis, there may not be
any further change in the merit panel in respect of the first
empanelled candidate. Additionally, there may be other
candidates who may come in the panel in the 2nd and 3rd
position. Though as per policy in vogue re-interviews
recommended.”
5. In view of this, the following recommendations were put up for
final verdict by the competent authority in the matter:-
“ 1. Since the above referred selection process on
investigation gets vitiated and also there are other eligible
candidates available, the location should be re-interviewed with
all the eligible candidates as per selection guidelines in
vogue.
2. However, the competent authority, i.e. State Head, MSO
while giving the final order in the above investigation (vide
report dated 6.2.2009 and 24.3.2009 by Sri R. Ganeshan as placed
below), may also like to take a view on the facts given in para
(c) above, whether to continue with the existing merit panel
dated 24.12.08 with the lone candidate whose position is not
disturbed as per above analysis remaining as 1st empanelled
candidate or to go for re-interview as per extant guidelines.
3. Action is recommended in view of the lapses by the DO
Coordinating officer and interview committee (L2) for not
accepting the duplicate of original marksheet as detailed above
in the IO’s report in tabulation.

6. These recommendations were studied/reviewed by the new Retail team
at the MSO and comments were prepared on 29.07.2009, which were
approved on 3.08.2009:
1. Since vitiation in the selection process has been
established, as recommended, it is agreed/recommended that
the location should be re-interviewed as per the extant
policy guidelines.
2. In view of Sr. No.1 above, in which vitiation in the
selection process has been established and re-interview
recommended, in order to have transparency in selection it is
recommended that re-interview be done with all the eligible
candidates as per the extant policy guidelines.
3. Chief Manager (RS), MSO has proposed action against the DO Co-
ordinating and the L2 Committee. Our comments are as under:
In this case the candidate had brought the Duplicate copy
of the original, which in its strictest sense is not the
original. Logically duplicate copy of the documents should
have been considered as original for the purpose
verification. This could/should have been got confirmed by
the coordinating officer and implemented.
However it appears that the DO coordinating
officer/L2Committee has strictly gone by the policy
guidelines in this regard to verify the attested copy of
the document submitted with the application, from the
Original to be brought by the candidate at the time of
interview. Therefore technically the DO coordinating
Officer/L2 Committee has strictly followed the guidelines.
ED MSO has detailed his views & finally opined as follows
in:
“In order to avoid any further complication and to give
fair chance to everyone, in my opinion this selection
process should be cancelled and the location should be Re-
advertised. Since there is no specific policy in this
regard it is suggested that HO opinion may be sought.”
14. From the pleading of the parties as noticed above and the record,
the following facts emerges:-
(a) The proclamation was made on 11.6.2005 i.e. more than
seven years ago but till date no person has been granted the
dealership in question.
(b) The first interview was conducted on 9th-10th December,
2005 in which one Mr. Nilesh L. Kudalkar was placed at the top
of the merit panel while the respondent was placed second and
one Mr. K. Srinadha Rao was third. When complaints were made
against the selection as well as an allegation of irregularity
in the process, after investigation, the Company found that the
respondent and Mr. Srinadha Rao had not been marked correctly
and both failed to provide the attested documents as had been
specifically required under the advertisement and therefore the
first selection was cancelled.
(c) The second re-interview was called for and conducted on
22nd and 24th December, 2008. In the said re-interview the
respondent was the only eligible candidate in the merit panel.
On the basis of the complaints made by other persons a one man
Inquiry Commission was appointed. On the basis of the report of
the Investigating Officer dated 6.2.2009 and 24.3.2009, it was
found that there were lapses by the DO Coordinating Officer and
the interview committee (L2), in not accepting the duplicate of
the original mark-sheet of a candidate as detailed in the
Inquiry Officer report in tabulation.
(d) The record further shows that the respondent submitted a
representation before the Chairman of the Company on 24.8.2009
with the reminder filed on different dates including the one
dated 23.1.2010. The Senior Divisional Retail Sales Manager by
communication dated 3.06.2010 informed the respondent that “on
perusing the application and the accompanying documents it is
observed that Relationship Affidavit not as per format. We
regret that in view of the same your application is found
ineligible.”
In the aforesaid background, the DGM (RC) by its note dated
13.8.2009 rejected the opinion submitted by the Office for re-
interview.
15. It is not clear as to how the assessment was made by the
authorities as apparent from the investigation report (Annexure-R6).
The Investigating Officer in the summary of investigation submitted his
conclusion, the relevant potion of which reads as follows:
“Summary of Investigation:
Based on documents provided/handed over by DO, as also
application the policy guidelines RO/6002 dt. 7.4.2005 & 4.4.2006
the following is the conclusion:
A) L-1 Committee has not strictly followed the guidelines
regarding signing of all documents for assessment.
However, irrespective of this deviation, L-1 Committee
has considered all documents for assessment.
B) In case of ‘Liquid Cash in the form of Bank Fixed Deposit
etc. and ‘Fixed and Movable Assets” as detailed in my report, for
financial capability, the L-1 Committee, Screening Committee has
given weight-age to documents of family members/ relatives even
though ‘No Consent’ affidavit/letter is available. Therefore, in
my final assessment, in line with the policy ‘No weight-age has
been given to documents without consent. Therefore final marks
have undergone change. Hence in line with the above the final
result is as under:
As per Interview Committee (in line with merit):
|Sr.No|Name of candidate |Total |
|. | |marks |
|1 |Shri Nilesh Laxmikant |56.50 |
| |Kudalkar | |
|2 |Dr Ashok Shankarlal |55.33 |
| |Gwalani | |
|3 |Shri K. Srinadharao |54.33 |
As per Screening Committee (in line with merit):
|Sr.No|Name of candidate |Total |
|. | |marks |
|1 |Shri Nilesh Laxmikant |59.0 |
| |Kudalkar | |
|2 |Shri K. Srinadharao |57.0 |
|3 |Dr Ashok Shankarlal |52.0 |
| |Gwalani | |

 

 
As per Investigation (in line with merit):
|Sr.No|Name of candidate |Total |
|. | |marks |
|1 |Dr Ashok Shankarlal |56.78 |
| |Gwalani | |
|2 |Shri K. Srinadharao |53.63 |
|3 |Shri Nilesh Laxmikant |48.52 |
| |Kudalkar | |

From the aforesaid report, it is clear that the Interview
Committee, Screening Committee and the Investigation Officer assessed
the three candidates in three different groups due to which the
position of the candidates changed in the merit list prepared by the
Interview Committee, Screening Committee and the investigation Officer.

 
16. In the present case, the High Court has not noticed and
discussed the aforesaid facts and without discussing the further
developments as taken place after 24.12.2008, directed the appellants
to issue the Letter of Intent in favour of the respondent. Though the
High Court noticed the stand taken by the appellants that the
‘relationship affidavit’ submitted by the respondent was not as per
format, it failed to discuss the effect of such an incomplete affidavit
in the matter of selection.
17. Generally, if an irregularity is detected in the matter of
selection or preparation of a panel it is desirable to have a fresh
selection instead of re-arranging the panel which is found to be
vitiated. The Authority empowered to appoint, is the competent
authority to decide as to whether the panel should be discarded and
there should be a fresh selection in view of the facts narrated above.
In such circumstances, the High Court under Article 226 of the
Constitution of India ought to not have interfered with the decision of
the competent authority in canceling the selection.
18. For the reasons aforesaid, we have no other option but to set
aside the order of the High Court. Accordingly, the order and judgment
dated 29.9.2010 passed by the High Court of Bombay is set aside with a
liberty to the Competent Authority to re-advertise the petrol/diesel
retail outlets in question and to make a fresh selection in accordance
with law. The appeal is allowed with aforesaid observation and
directions. There shall be no order as to costs.

 
………..………………………………………..J.
( SWATANTER KUMAR )

 

 
………………………………………………….J.
(SUDHANSU JYOTI MUKHOPADHAYA)
NEW DELHI,
DECEMBER 14, 2012.
———————–
21

 

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