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2001 DIGILAW 566 (JHR)

Satish Kumar Sinha v. Indian Oil Corporation Ltd.

2001-08-14

SUDHANSU JYOTI MUKHOPADHAYA

body2001
ORDER S.J. Mukhopadhaya, J. 1. The petitioner has challenged the select panel dated 20th April, 2001, as contained in Annexure 4, issued by the then Selection Board, Dhanbad, wherein the name of 5th Respondent Mrs. Poonam Singh has been shown as first selected candidate, name of petitioner Satish Kumar Sinha. as a third selected candidate and another Mamta Kumari, as the second selected candidate for dealership of M/s. Indian Oil Corporation Ltd. (IOCL for short) for the location of "Urwan More", Hazaribagh. 2. According to the petitioner, in the year 1999, the IOCL commissioned a Retail Outlet of the liquid Petroleum Products in the form of Fuel at Urwan More, Hazaribagh and petitioner being selected in interview held on 13th October, 1999, was provided with letter of allotment dated 5th November 1999. It was allowed for a period of one year extended by another year from 6th November, 2000 to 5th November, 2001 on contract basis. 3. Subsequently, a re-advertisement was issued on 2nd September, 2000 in different newspapers by IOCL calling for applications for Retail Outlet at different places, including Urwan More, Hazaribagh. It was issued in continuation of earlier advertisement dated 16th May, 1998. A Booklet containing relevant provisions regarding selection of dealer was published by IOCL. The petitioner and others applied and after interview held on 19th April. 2001, the impugned panel was issued by Dealer Selection Board, Dhanbad on 20th April, 2001. The selection of 5th Respondent as first recommendee has been challenged by petitioner on different counts, as highlighted in the synopsis and quoted hereunder : (A) As per the norms/Regulation the interview Board should consist of three members (Eg. one Chairman, one Chief Manager of Oil Corporation and one Chief Manager of another Oil Corporation), while at the time of conducting interview, only two members were present. Third member was not present there. (B) As per the norms/Regulations the entire selection procedure has to be completed within a period of 145 days from the date of publication of advertisement. In the instant case advertisement was published on 2.9.2000 and Interview was conducted on 19.4.2001 and 20.4.2001, i.e. after a lapse of 230 days. (C) As per the norms/Regulations the names of the selected candidates should be published in alphabetical order, which has not done here. In the instant case advertisement was published on 2.9.2000 and Interview was conducted on 19.4.2001 and 20.4.2001, i.e. after a lapse of 230 days. (C) As per the norms/Regulations the names of the selected candidates should be published in alphabetical order, which has not done here. (D) As per the norms/Regulations experience in the live of dealership has to seen but in the present case it has been totally overlooked. The petitioner is at present running the same outlet (petrol pump) on contract basis, and has gained a good experience while respondent No. 5 is totally unknown of this live. She is at present running a constructor company. (E) As per the norms/Regulations the Family income of the candidate should exceed Rs. 2,00,000/- per annum, but in the instant case the husband of the petitioner is SDO in Rusal Engineering Organisation under Jharkhand Government and his monthly income, is more than 20,000/- per month Respondent No. 5 is herself a income Tax payee. 4. The respondents, on appearance, have filed their counter affidavit and opposed the prayer. They mainly relied on the amended guidelines for selection of Retail Outlet dealer as circulated, vide Office Memorandum dated 9th October, 2000 issued by the Ministry of Petroleum and Natural Gas, Government of India. 5. At this stage, it is pertinent to mention that State comprehensive guidelines for selection of Retail Outlet Dealership were published, from time to time, including the publication made vide letter No. P-19011/ 56/95-1OC(11) dated 14th October, 1998. One of the guidelines has been enclosed by the petitioner without any date enclosed as Annexure 3 to the writ petition. 6. The petitioner mainly placed only aforesaid guidelines, as Annexure 3 to assail the selection, but respondents have taken plea that the earlier guidelines having superseded by guidelines for selection dated 9th October. 2000, the legality and propriety of selection cannot be tested on the basis of old guidelines. 7. In this respect, the counsel for the petitioner submitted that the earlier guidelines of 1997-98 being in vogue, the date of re-advertisement was made (2nd September, 2000), the procedure laid down in the old guidelines to be followed, process of selection having initiated. 2000, the legality and propriety of selection cannot be tested on the basis of old guidelines. 7. In this respect, the counsel for the petitioner submitted that the earlier guidelines of 1997-98 being in vogue, the date of re-advertisement was made (2nd September, 2000), the procedure laid down in the old guidelines to be followed, process of selection having initiated. On the other hand, according to the respondents, before actual selection, the old guidelines of 1997-98 having superseded by guidelines dated 9th October, 2000, the new guidelines is to be followed, which has nothing to do with selection. 8. To appreciate the case, as advanced by the parties, one should avert to the relevant provisions of old guidelines (Annexure 3 of 1997-98). as quoted hereunder : "8. Income for all categories.--The candidates gross income including that of his/her spouse/dependant children put together should not be more than Rs. 2,00,000/- per annum. In case the candidate happens to be dependent on his/her parents, their income would also be taken into consideration for computing the total income. 12(V). SELECTION PROCEDURE : (a) A retired Judge of a High Court or retired Distt. Judge Chairman (b) An Officer not below the rank of Chief Manager of one/concerned Oil Company Member (c) An Officer not below the rank of Chief Manager of another Oil Company Member Norms for evaluation the candidates : The DSB will judge the inter-se suitability of the candidates on the following basis : (a) Personality, Business ability and salesman ship 30 Marks (b) Capability to arrange finances 20 Marks (c) Educational Qualification & General level of Intelligence 20 Marks (d) Capability to provide infrastructure and facilities (land, godown, showroom, etc.) 15 Marks (e) General assessment 15 Marks Total 100 Marks Time frame for selections : Selection of dealer/distributor for a dealership/distributorship will be finalised within a period of 145 days from the date of advertisement : (a) Notice of advertisement 45 days (b) Scrutiny of applications 30 days (c) Despatch of applications to DSB Office 5 days (d) Scrutiny by DSB 15 days (e) Preparation/Issue of call letters 10 days (f) Minimum notice period to candidate for interview 15 days (g) Interview/Selection 9 days Sub Total 129 days (h) Forwarding the panel of Oil Co. 1 day (i) FIR by Oil Company 10 days (j) Issue of LOI after FIR 5 days Total 145 days In no case, issue of LOI should take more than 165 days from the date of advertisement. On the other hand, the following stipulations made in the guidelines issued on 9th October, 2000 : In supersession of earlier communications, the guidelines for selection of dealers/distributors of oil marketing companies, from the date of issue of this OM, will be as under Disqualification : The candidate will be disqualified if he/she is : (i) not an Indian National, (ii) not of prescribed age, (iii) not possessing prescribed educational qualification, (iv) not fulfilling the prescribed residency criteria, (v) having multiple dealership, (vi) convicted by Court of law. (vii) of unsound mind, (viii) not a full time dealer/distributor, (ix) having income more than Rs. 2 lakh per annum, or (x) guilty of wilfully giving wrong information. 3.6. Quorum of DSB : The quorum for the Board will be of two Members, which shall include the chairman and one Member from any Oil Company. 3.13.1. Selection of dealer/distributor for a dealership/distributorship will, be finalised within a period of 145 days from the date of advertisement, the details of which are given as under : (a) Notice of advertisement 45 days (b) Scrutiny of applications 30 days (c) Dispatch of applications to DSB Office 5 days (d) Scrutiny by DSB 15 days (e) Preparation/Issue of call letters 10 days (f) Minimum notice period to candidates for inter views 15 days (g) Interview/Selection 9 days Sub Total 129 days (h) Forwarding the panel to the Oil Company 1 day (i) Field Investigation Report (FIR) by Oil Company 10 days (j) Issue of LOI after FIR 5 days Total 145 days. All efforts would be made to issue of LOI within a period of 165 days from the date of advertisement. 9. From the aforesaid guidelines, there appears to be two major changes. In the earlier guidelines of 1997 (Annexure 3), the quorum was of three Members Selection Board, including Chairman, whereas from the subsequent guidelines of 9th October, 2000, the quorum for the Board is of two Members, including the Chairman and one Member of Oil Company. 10. 9. From the aforesaid guidelines, there appears to be two major changes. In the earlier guidelines of 1997 (Annexure 3), the quorum was of three Members Selection Board, including Chairman, whereas from the subsequent guidelines of 9th October, 2000, the quorum for the Board is of two Members, including the Chairman and one Member of Oil Company. 10. In the earlier guidelines of 1997 (Annexure 3), a mandatory time frame for selection was laid down, wherein it was stipulated that, in no case LOI should take more than 165 days from the date of advertisement. On the other hand, in the subsequent guidelines dated 9th October, 2000, the period of 165 days was made directory, not mandatory, as it was stipulated that all efforts would be made to issue LOI within a period of 155 days from the date of advertisement. 11. The first issue raised by the petitioner is that during the interview only two members were present and not the third member, in terms with 1997 guidelines (Annexure 3). It is not alleged that the Chairman was not present nor It is alleged that Member of the Oil Company was not present. The only allegation is of shortage of one member of the quorum of three. 12. Stand of the respondents is that the interview having been held after 9th October. 2000, the subsequent guideline was followed and two members in terms with the said guideline held interview. 13. Now the question arises as to which of the guideline out of two i.e. 1997 guideline (Annexure 3) or the 9th October, 2000 guideline (Annexure A) is to be followed. 14. It is true that the advertisement was issued on 2nd September, 2000, i.e. prior to guidelines dated 9th October, 2000. Thus, the process of selection had already been started. However, in such case merely the old procedure was followed and not the rest. 15. The issue as to whether there will be quorum of two members of Board or three members is not the procedure of selection. It is merely constitution of a selection Board Which can be varried by competent authority. In the circumstances, as variation of quorum of the Board does not amount to change of procedure of selection, the stand taken by the respondents is to be accepted. The quorum stipulated under the guideline dated 9th October, 2000 has been rightly followed. It is merely constitution of a selection Board Which can be varried by competent authority. In the circumstances, as variation of quorum of the Board does not amount to change of procedure of selection, the stand taken by the respondents is to be accepted. The quorum stipulated under the guideline dated 9th October, 2000 has been rightly followed. This apart the petitioner having appeared before such Selection Board and having not been recommended as the first candidate, now can not challenge the constitution of the Board as is the settled law. 16. The second question raised relating to completion of selection within a stipulated period. It is well known that a time frame of selection can not be termed as a procedure of selection. It depends on the nature of selection and it is for the competent authority to give a time frame. It may be mandatory or directory in nature, as the case may be. 17. In the circumstances a time frame being not a procedure of selection, the guideline issued on 9th October, 2000 is to be followed for the purpose of time frame, which was in vogue at the time of interview and no mandatory provision having been made therein to issue LOI within a stipulated period, the recommendation in question can not be held to be illegal on the ground that it was issued beyond the period of 165 days. 18. The third plea taken is that the name of candidates to be published in alphabetical order is not required to be discussed in details, as it will not change the merit position of one or other candidate as evaluated and placed by the Selection Board. 19. The fourth question raised relating to experience in the live of dealership as raised by the petitioner is not required to be answered in the present case, as no provision has been made to give preference to an experienced person over others. 20. The counsel for the petitioner highlighted the last issue relating to income of family of 5th respondent. It was pleaded that the earning of the husband of the 5th respondent being more than Rs. 20,000/- per month, apart from independent earnings of 5th respondent who merely receives interest of about Rs. 52,000/- per annum, in terms with the provisions of guideline the name of the 5h respondent should have been excluded. 21. It was pleaded that the earning of the husband of the 5th respondent being more than Rs. 20,000/- per month, apart from independent earnings of 5th respondent who merely receives interest of about Rs. 52,000/- per annum, in terms with the provisions of guideline the name of the 5h respondent should have been excluded. 21. The 5th respondent has controverted the fact and has enclosed relevant evidence in support of earning of her family. The letter issued by the Government of Bihar dated 23rd October, 2000, has been enclosed as Annexure B to suggest that the earning of her husband is less than Rs. 1,20,000/- per annum and reliance was also placed on the Income tax record to suggest that the income of the 5th respondent in the year, 2000-2001 was about Rs. 52,000/- total which comes to much less than Rs. 2,00,000/- i.e. about Rs. 1,60,000-70,000/-. 22. In view of evidence led by 5th respondent and as it relates to disputed question of fact, relating to earning of 5th respondent, the submission made on behalf of the petitioner can not be accepted. 23. From the facts aforesaid, it will be evident that no case has been made out on behalf of the petitioner to interfere with the recommendation dated 20th April, 2001. 24. Accordingly, the writ petition is dismissed and interim order of stay passed earlier is vacated. 25. Writ petition dismissed.