Hon'ble A.P. Sahi, J Hon'ble V.K. Birla, J Both the petitioners in the present petition had applied for award of distributorship for Liquefied Petroleum Gas at Dhanpur in District Chandauli. The Advertisement dated 7.9.2007 has been brought on record through a supplementary-affidavit dated 16.4.2012. The petitioners claim themselves to be eligible and were also interviewed on 21.5.2010. The Respondent No.4 was also an applicant and the result of the selection were declared on 22.5.2010 in which the petitioners were indicated at Serial No.2 in the Select Panel and respondent No.4 was at Serial No.1.
This petition questions the said selection on the ground that the respondent No.4 was ineligible and secondly the marks awarded to him as against the experience claimed by him was not in accordance with the guidelines provided in the brochure. It is also the case of the petitioners that the respondent No.4 had filed a false experience Certificate which also appears to be forged and, therefore, any marks awarded on the basis of such experience Certificate also deserves to be discarded.
On a challenge being raised in the present writ petition, this Court on 6.1.2011 passed the following interim order:-
"Issue notice pending admission.
Notice on behalf of the respondent no.1 has been accepted by the Additional Solicitor General of India in this Court. Notice on behalf of the respondent nos. 2 and 3 has been accepted by Shri Prakash Padia. Notice on behalf of the respondent no.4 has been accepted by Shri S.P. Singh, who has filed his Vakalatnama on behalf of the said respondent. Notice on behalf of the respondent no.5 has been accepted by the learned Standing Counsel. Therefore, no notice need be sent to the respondents.
Learned counsel for the respondents may file counter affidavit within four weeks. Rejoinder affidavit may be filed by the next date fixed in the matter.
List this case on 25.2.2011.
Heard on the question of grant of interim relief.
Having regard to the facts and circumstances of the case and having considered the submissions made by the learned counsel for the parties, it is provided that the re-interview, pursuant to the impugned order dated 12.11.2010 (Annexure-1 to the Writ Petition) may be held, and the result of such re-interview may also be declared but such result will not be given effect to until further orders of the Court."
The Respondent No.4 came up giving his explanation with regard to his experience that he had obtained his experience at M/s. Vijay Gas Service which was an Agency allotted to the widow of his younger brother Late Capt. V.P. Singh (Veer Chakra-1971 War). It is his case that he being the Member of the family and in those difficult family circumstances had taken up the task of managing the said Gas Service for which he was paid a certain amount. The experience Certificate dated 2.10.2007, therefore, became the bone of contention between the petitioners and the contesting respondent No.4. The petitioners allege that the said Certificate is absolutely false inasmuch as the respondent No.4 came to be appointed as a doctor in the Provincial Medical Services in November, 1976, and, therefore, his claim of such experience up to 2002 under the said Certificate was absolutely incorrect. The other contention of his ineligibility was also taken to be a ground that he could not have applied being in government service. It is undisputed that the respondent No.4 retired from service on 30.6.2008 much prior to the passing of the impugned orders.
The Petitioner No.1 - Satya Narain Dubey moved a representation/complaint before the General Manager after the results were declared on 12.7.2010 making the aforesaid allegations and substantiating it with other representations in support thereof.
When the said applications had not been disposed of, the petitioners filed a writ petition, being Civil Misc. Writ Petition No.35585 of 2010, which was disposed of on 1.7.2010, directing the General Manager to dispose of the said complaint of the petitioners by a speaking order. On receipt of the said complaint, the matter was disposed of by the impugned order dated 12.11.2010. While disposing of the complaint, it was found that the experience Certificate was issued by M/s Vijay Gas Service to the respondent No.4 and there was no concealment or suppression of information. However, it was observed that the award of marks to the respondent No.4 was not inconsonance with the policy guidelines. It was further found that as per the policy guidelines of the Corporation, an applicant, who is in a government or a private job, is not required to obtain prior permission before applying from his employer for LPG distributorship. However, on being selected one may have to resign from the job before being appointed as a distributor.
One more complaint was filed by Sri Pradeep Pratap Singh alleging incorrect award of marks for the educational qualification possessed by the Respondent No.4 which representation was rejected by the same order holding that the respondent No.4 was qualified to be appointed 15 marks under the head of educational qualification.
There was yet another complaint of Rajesh Singh, which was also rejected.
Consequently, the panel was set aside and a direction for re-interview for the all eligible candidates, who had appeared in the interview conducted earlier, was to be held. It is at this stage that the present writ petition was filed and the re-interview was got conducted. The interim order was passed on 6.1.2011 as quoted herein above where after the reinterview was held on 22.1.2011. The merit panel was again declared holding the respondent No.4 to be entitled to the award of dealership placing him at serial No.1.
An amendment application assailing the said award of dealership afresh in the reinterview to the respondent No.4 has been challenged through an application supported by an Affidavit dated 21.10.2011. The ground taken is that the candidature itself of the respondent No.4 reflected ineligibility and that it ought to have been cancelled at the very outset under clause 2.1 of the circular dated 29.4.2010. This circular has been filed as Annexure-SA-3 to the supplementary-affidavit dated 16.4.2012. Another document, which has been pressed into service is the note-sheet dated 28.10.2010 which was prepared in relation to the complaint which indicates that the award of marks which had been earlier given to the respondent in the previous interview, was not in accordance with the norms.
However, the said issue now becomes irrelevant in view of the re-interview held, except for the fact that the re-interview has not only been challenged through the amendment application filed by the petitioner but also a fresh writ petition No.3031 of 2011 filed by the respondent No.4 himself questioning the action of the Indian Oil Corporation in proceeding to hold a re-interview. The petitioners, therefore, contend that if the respondent No.4 is also aggrieved by the order of re-interview then in that event, the petition deserves to be allowed on the aforesaid grounds.
When the matter was heard and the learned counsel for the petitioner had advanced his submissions on all the grounds aforesaid, Sri V.K. Singh, learned Senior Counsel assisted by Sri R.C. Tiwari for the respondent No.4, urged that the writ petition filed by the respondent No.4 being Writ Petition No. 3031 of 2011 would be rendered academic in view of the subsequent interview having been conducted and the results thereof having been declared in favour of the respondent No.4. Thus, it is only the writ petition No.74781 of 2010 with it's Amendment Application that now deserves to be considered and in the light of the findings recorded by the Corporation even after conducting the fresh interview, the selection of Respondent No.4 cannot be faulted with.
Learned Counsel for the petitioner has relied on the judgment in the case of Shiv Kant Yadav Vs. Indian Oil Corporation and others, (2007) 4 SCC 410, contending that any incorrect information having been tendered, dis-entitles the respondent No.4 of his candidature. A further reliance has been placed on the judgment in the case of B.R. Chowdhury Vs. Indian Oil Corporation and others, (2004) 2 SCC 177, to substantiate the said submission.
Apart from this, the learned Counsel for the petitioner has also urged that the experience Certificate indicates receipt of remuneration @ Rs.6,000/- per month whereas in the counter-affidavit filed to the Amendment Application, he has stated that he worked in M/s Vijay Gas Service without any remuneration. This contradiction in the Affidavit has also been urged by the learned Counsel for the petitioner to contend that not only an incorrect information has been given before the Corporation but a wrong Affidavit has also been filed before this Court which dis-entitles the Respondent No.4 from pressing his candidature or supporting his selection.
Learned Counsel for the Indian Oil Corporation Sri Prakash Padia has supported the action of the Corporation and has justified the passing of the impugned order dated 12.11.2010 on the basis of the investigation report dated 28.10.2010 and has also supported the fresh selection which has been held on re-interview on 22.1.2011 on the ground that the marks which had been incorrectly awarded in the previous Interview, the said error has now been set right and there is no discrepancy in the selection. He, therefore, contends that the cause raised through the Amendment Application also deserves to be rejected. He has relied on the judgment of the Apex Court in the case of Sajeesh Babu K. Vs. N.K. Santosh and others, AIR 2013 SC 141 (Paragraph No.18), to urge that the marks awarded by the experts do not deserve to be interfered with in the exercise of jurisdiction under Article 226 of the Constitution of India. He submits that the evaluation has been carried out in accordance with the norms which has been brought on record through the supplementary-counter-affidavit of the respondent No.4 dated 27.11.2011, and the evaluation by the Selection Committee based on Interview is on the quality, rather than the amount of experience based on the response to the questions related to experience as indicated therein. He, therefore, submits that this is purely within the realm of the selection panel as to how it found the experience of the respondent No.4 to be capable of being awarded the marks which has already been awarded by the Selection Panel. He submits with the aid of the aforesaid judgment of the Apex Court that this evaluation by the expert Committee according to the ratio laid down therein may not be subject to any judicial review.
He further submits that the experience Certificate has been genuinely issued from the source where it is claimed. He contends that the information given in the Certificate has been verified and the note-sheet dated 28.10.2010, which has been relied upon for passing the order dated 12.11.2010, contains the correct status of the said Certificate. He, therefore, submits that the allegation that it is a false Certificate or forged Certificate is absolutely an incorrect allegation. He contends that the advantage or otherwise to the respondent No.4 arising out of such a certificate is an altogether different matter of evaluation on the basis of facts alleged but the same cannot be termed in any way as a forged or false Certificate as alleged by the petitioner.
Having considered all the submissions raised, we find that note-sheet which was prepared on investigation after the complaint was made dated 28.10.2010 and which has been filed alongwith the supplementary-affidavit dated 16.4.2012, investigated the entire complaint threadbare. It was found that the experience Certificate had been genuinely issued.
We also find now after the pleadings on record that the respondent No.4 had got the Certificate from no-one-else than the wife of the brother of Respondent No.4, who had been awarded the distributorship of M/s Vijay Gas Service after her husband had laid down his life in the 1971 Indo-Pak War. The proximity of the relationship of the respondent No.4 with Smt. Kalpana Singh, the owner of M/s Vijay Gas Service and his contention that since she had become a widow at very early age with small children, the possibility of the respondent No.4 rendering assistance to her in managing the day-to-day affairs of the distributorship was worth believing. We have not found any material to the contrary brought on record by the petitioners in order to negative the said finding.
It, therefore, appears that the petitioner has taken a stand that since the respondent No.4 was a student of MBBS course at Moti Lal Nehru Medical College, Allahabad, as a day scholar, as such, he could not have rendered any such assistance at M/s Vijay Gas Service Allahabad. This has been denied by the respondent No.4 explaining it in his counter-affidavit to the Amendment Application dated 20.1.2014 and also in the paragraph of Writ Petition No.303 of 2011. The aforesaid averments have been replied to in paragraph Nos.7 and 8 of the Rejoinder-Affidavit by contending that this period of experience between 1973-76 was in the third, fourth and fifth year of his MBBS course when a compulsory duty in hospital is also envisaged. Consequently, the respondent No.4 could not run the business of distributorship even while he was a student of MBBS course day scholar. The information therefore given in the Certificate is absolutely wrong and the experience Certificate ought to have been rejected which entails cancellation of the very candidature of the respondent No.4.
We are unable to agree on this issue inasmuch as except for these averments, no material has been brought forth to indicate that while pursuing his course, he did not contribute towards the business either in the morning or late evening hours for his experience. Even otherwise, the experience is only of one year and not 3 years. The issue of attending hospital duties in the third year therefore pales into insignificance. Apart from this, the stand taken by the respondent No.4 and the Corporation about the quality of experience is also supported by the guidelines that have been brought on record through the supplementary-counter-affidavit dated 27.11.2011 where the marks to be awarded is on the quality, rather than the amount of experience. This criteria which is contained as Appendix-C to the Circular dated 29.6.2007 fixing the norms for evaluation has not been countered by the petitioners by any other material. To the contrary, the same has been supported by the counsel for the respondent - Indian Oil Corporation coupled with the ratio of the decision in the case of Sajeesh Babu K (supra).
The facts of the said decision also indicates that the candidate therein was pursuing a M.Tech. Course and simultaneously claimed gaining experience. The Supreme Court clearly ruled, relying on the aforesaid guidelines of evaluation that such an assessment being of an expert Committee, the same is not open to any further judicial review by the High Court.
Applying the aforesaid principles, we find that the factum of issuance of the certificate could not be dislodged by the petitioners and the genuineness of the contents of such a Certificate has been evaluated as is evident from the note-sheet dated 28.10.2010 after a direction was issued by this Court on 1.7.2010 to find out the correctness or otherwise of the same. Consequently, the veracity of the Certificate and it's contents have both been examined and we do not find any perversity in the same as alleged by the petitioners either in the writ petition or in their Affidavits filed in support of the Amendment Application to dislodge the same. We are, therefore, not inclined to accept the contentions so raised.
Sri V.K. Singh has urged that the acceptance of the remuneration and any incorrect assertion or receipt of remuneration would, therefore, not be at all relevant in view of the aforesaid facts that are on record. We agree with the same and, therefore, we do not find any good ground to interfere with either the order dated 12.11.2010 or the subsequent fresh Interviews that have been held on 22.1.2011 pursuant to the said order awarding the dealership to the respondent No.4.
So far as the issue relating to the status of the respondent No.4 as government servant is concerned, in view of the stand taken by the Corporation and the relevant guidelines applicable, we do not find any bar under the open category for a government servant applying for award of LPG distributorship. Not only this, the employer - State Government has also filed a counter-affidavit indicating that if it was a violation of the service condition of his employment, an appropriate action can be taken under the service rules, but Respondent No.4 has already retired on 30.6.2008 much prior to the empanelment declared on 12.11.2010 and subsequently on 22.1.2011. The same therefore also does not attract any ineligibility for applying for a LPG distributorship.
The aforesaid issue, therefore, also does not in any way call for interference by us under Article 226 of the Constitution of India.
The writ petition lacks merits and is, accordingly, dismissed.
Dt. March 21, 2014 Irshad