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Madhya Pradesh High Court · body

2010 DIGILAW 1223 (MP)

Rajkumari Yadav v. Indian Oil Corporation Ltd.

2010-12-10

R.S.JHA

body2010
ORDER R.S. Jha, J. 1. The Petitioner has filed this petition assailing the legal validity of communication dated 28-7-2005 by which the Petitioner has been informed that the Respondents have decided to hold reinterview/screening for the purpose of allotment of Dealership under the Kisan Seva Kendra. 2. The brief facts, leading to the filing of the present petition, are that the Respondent authorities i.e. the Indian Oil Corporation issued an advertisement on 21-5-2005 inviting applications for appointment of dealer/operator for the purpose of establishing and running a Kisan Seva Kendra at Village Bhangarh, Tehsil Bina, District Sagar. In terms of the advertisement the Kisan Seva Kendra at Village Bhangarh was to be allotted to an open category woman candidate. Pursuant to the aforesaid advertisement, the Petitioner along with other applicants submitted their application and also attended the interview which was held on 14-7-2005 pursuant to which a merit list was prepared in which the Petitioner was placed at Serial No. 1 having secured 52 out of 85 marks i.e. more than 60% marks. The meritlist was published on 14-7-2005, a copy of which has been filed as Annexure P-3. 3. It is stated that instead of allotting the Kisan Seva Kendra to the Petitioner as per the merit list prepared by the Respondents, no action was taken by the Respondents as a result of which the Petitioner approached this Court by preferring a Writ Petition No. 14592/2005 which was finally disposed of by order dated 28-11-2005 with a direction to the Respondents to decide the matter, keeping in mind the policy circular dated 4-9-2003, before 31-12-2005. 4. As the order was not complied with by the Respondents, Contempt Petition No. 480/2006 was filed which was ultimately disposed of by order dated 1-3-2006 with a direction to the Respondents to comply with the order within three months from 1-3-2006. The application for review, filed by the Respondent Company, MCC No. 357/2006 was also disposed of in terms of the order passed by this Court in W.P No. 14592/2005, by order dated 7-7-2006. 5. The application for review, filed by the Respondent Company, MCC No. 357/2006 was also disposed of in terms of the order passed by this Court in W.P No. 14592/2005, by order dated 7-7-2006. 5. It is stated that instead of the Respondent authorities taking further steps for issuing an order of allotment in favour of the Petitioner, who has duly been selected in accordance with the policy, the Petitioner was informed by the impugned communication dated 28-7-2005 vide consequential letter dated 31-8-2005 that the Respondent Company had decided to conduct a re-interview for three locations including Village Bhangarh from which the Petitioner had been selected and placed at Serial No. 1. On 16-11-2006 the Petitioner again received a letter dated 7-11-2006 informing her that the interview held on 14-7-2005 had been cancelled and fresh interview has been scheduled for 23-11-2006. It is, however, stated by the parties that in view of the interim order passed by this Court on 2-12-2006 no re-interview has been held and the matter stands as it is as on date. 6. It is submitted by the learned Counsel for the Petitioner that the Petitioner has been awarded 61.17% marks i.e. more than 60% marks which is the minimum eligibility criteria prescribed for considering the application for allotment of Kisan Seva Kendra under the policy of the Respondents to a candidate belonging to the open category. It is also stated and not disputed by the learned Counsel for the Respondents that amongst all the applicants the Petitioner was the only one who obtained more than 60% marks and was, accordingly, placed at Serial No. 1 in the select list. It is further submitted that the Respondents propose to hold a reinterview on the ground that the selection of the Petitioner was not in accordance with the policy by stating that the minimum eligibility percentage for women of any category reserved or unreserved is 50% and not 60% and in such circumstances all the other candidates, i.e. those who are placed at Sr. Nos. 2 & 3 are also required to be considered along with the Petitioner for allotment of the Kisan Seva Kendra as they too have obtained more than 50% marks. 7. Nos. 2 & 3 are also required to be considered along with the Petitioner for allotment of the Kisan Seva Kendra as they too have obtained more than 50% marks. 7. It is submitted that the aforesaid decision of the Respondents is apparently erroneous and contrary to their own policy inasmuch as the minimum percentage prescribed for eligibility of an unreserved open category candidate, be it male or female, is 60% and, therefore, the decision of the Respondents to conduct reinterview is contrary to the policy and deserves to be quashed and the Respondents are required to consider the case of the Petitioner, who is the sole eligible person as per the select list, for allotment of the Kisan Seva Kendra. The Petitioner further submits that the second ground on which the Respondents seek to hold reinterview is that there is a difference of less than 5% marks between the candidate at Sr. No. 1 and that of other candidates which is also contrary to the policy as there is no such criteria or prescription therein. On the aforesaid grounds, the Petitioner has sought for quashing the impugned communication and decision of the Respondents to hold reinterview. 8. The learned Counsel for the Respondent Company submits that the Petitioner along with other women candidates were considered for allotment of the Kisan Seva Kendra at Village Bhangarh and the Petitioner was accordingly placed at Sr. No. 1 as she has got more than 60% marks. It is stated that subsequently on scrutiny it was found that as per the policy of the Respondents the minimum qualifying percentage for women for reserved category was 50% which fact had not been considered by the selection committee and in such circumstances it was decided that the matter be taken up for reinterview as the selection of the Petitioner, taking 60% as minimum eligible criteria, was not in accordance with the policy. The learned Counsel for the Respondents further submits that the difference of marks between the Petitioner and others was also less than 5% and in such circumstances it was thought fit to conduct a reinterview for maintaining transparency and fairness in the process of allotment of Kisan Seva Kendra and, therefore, the Respondent authorities by the impugned communication decided to hold reinterview and had cancelled the select list in which the Petitioner had been placed at Sr. No. 1. 9. No. 1. 9. The learned Counsel appearing for the Petitioner and the Respondents submit and state that the criteria on the basis of which selection of the candidate for dealership has to be made is the policy, a copy of which has been filed by the Petitioner as Annexures P-4 & P-5. 10. I have heard the learned Counsel for the parties at length. Before adverting to the rival submissions of the learned Counsel for the parties it would be appropriate to consider various clauses of the policy to ascertain the true and correct position in respect of reservation and the minimum eligible percentage prescribed therein. A perusal of Annexure P-l, which is the advertisement issued by the Respondent Company, it is clear that Village Bhangarh is stated at Sr. No. 75 therein and has been reserved for open category women applicants. From a further perusal of the advertisement it is clear that the minimum qualifying marks for the open category candidate is 60% whereas the minimum qualifying marks of the reserved category candidate is 50%. Clauses 6.1 and 6.1.1 of the policy circular dated 4-9-2003, a copy of which has been filed along with the petition as Annexure P-4, which provides for common guidelines for all categories, is in the following terms: 6.1 Reservation Reservation for different sections of the Society will be as under: SC/ST 25% Defence Personnel 8% Freedom Fighter 2% Outstanding sportspersons 2% Paramilitary/Police/Govt. Personnel 8% Physically handicapped personnel 5% Open Category 50% 6.1.1 Reservation for women: 33% of the dealerships in all categories mentioned above will be reserved for women belonging to that category. 11. The brochure for selection of petrol/diesel retail outlet dealership published by the Respondents on 1-11-2004, copy of which has been filed along with the petition as Annexure P-5, further provides the percentage of reservation for various categories, in para 3.1 as under: 3.1 The percentage reservation, State wise, for various categories is as under: Scheduled Castes/Scheduled Tribes (SC/ST) 25% Physically Handicapped Persons (PH) 5% Paramilitary/Police/Govt. Personnel (PMP) 8% Defence Personnel (DC) 8% Freedom Fighters (FF) 2% Outstanding Sports Persons (OSP) 2% Open (OP) 50% The dealerships in each category will be reserved for Women belonging to that category. Other things being equal, unmarried woman above 40 years of age without earning dependents and widows will be given preference over others in all women categories. 12. Personnel (PMP) 8% Defence Personnel (DC) 8% Freedom Fighters (FF) 2% Outstanding Sports Persons (OSP) 2% Open (OP) 50% The dealerships in each category will be reserved for Women belonging to that category. Other things being equal, unmarried woman above 40 years of age without earning dependents and widows will be given preference over others in all women categories. 12. The eligibility criteria for various reserved categories prescribed in the aforesaid brochure is in the following terms: ELIGIBILITY CRITERIA FOR VARIOUS RESERVED CATEGORIES: (a) Scheduled Castes/Scheduled Tribes (SC/ST). Those recognised as Scheduled Castes/Scheduled Tribes (SC/ST) under the Constitution of India. (b) Physically Handicapped Persons (PH) The person should be orthopaedically handicapped to the extent of a minimum of 40% permanent/partial disability of either upper or lower limbs or 50% permanent/partial disability of both upper and lower limbs together. For this purpose, the standards contained in the 'Manual for Orthopaedic Surgeon in evaluating Permanent Physically Impairment brought out by the American Academy of Orthopaedic Surgeons, USA and published on its behalf by the Artificial Limbs Manufacturing Corporation of India, G.T. Road, Kanpur, shall apply. Deaf, Dumb and blind persons will also be eligible to apply for all Dealerships under this category. Totally paralysed and Mentally unsound persons will not be eligible to apply under any category. (c) Defence Personnel (DC) (a) Widows/dependents of Posthumous gallantry award winners. (b) War widows/dependents of those who died in war. (c) War disabled. (d) Widows/dependents of those who died in harness due to attributable causes. (e) Disabled in peace due to attributable causes. The inter se priority under this category will also be in the above order. Certificate to be produced from Directorate General of Resettlement (DGR), Ministry of Defence, Government of India sponsoring the candidate for the dealership for which he/she has applied. Certificate of eligibility issued for one dealership is not valid for another dealership and therefore a candidate can be considered to be eligible only if he/she has been sponsored for the particular location with reference to current advertisement. In case of any doubt DGR should be consulted before calling the candidate for interview. (d) Outstanding Sports Persons (OSP) The following persons will be eligible. Arjuna Awardees. Winners of Medals at Olyrnpics/Asiad Commonwealth Games and Recognized World Champions. National Adventure Awardees. (e) Paramilitary/Police/Govt. Personnel (PMP) The following persons will be eligible. In case of any doubt DGR should be consulted before calling the candidate for interview. (d) Outstanding Sports Persons (OSP) The following persons will be eligible. Arjuna Awardees. Winners of Medals at Olyrnpics/Asiad Commonwealth Games and Recognized World Champions. National Adventure Awardees. (e) Paramilitary/Police/Govt. Personnel (PMP) The following persons will be eligible. The personnel of Paramilitary/Police Personnel including persons having served in BSF, CRPF, CISF, ITBP, Railway Protection Force, Special Reserved Police, Special Armed Police, Coast Guards, Assam Rifles, etc. as designated by Central Government and Police Forces of the States. Customs and Central Excise Department, Narcotics Control Bureau, Enforcement Directorate, Economic Intelligence Bureau, Directorate General of Anti-Evasion and Directorate of Revenue Intelligence and those serving in different Departments of Central/State Governments who are incapacitated or disabled while performing their duties will be eligible under this category. In case of death, while performing duties, their widows/dependents will also be eligible under this category. Inter-se Priority: (a) Widows/dependents of Posthumous gallantry award winners. (b) Widows/dependents of persons having died in action. (c) Personnel disabled on duty. (d) Widows/dependents of persons who died while in service; and (e) Disabled in peace due to attributable causes. (f) Freedom Fighters (FF) Persons applying for dealerships under this category should attach a certificate or Tamrapatra or an attested copy of the Pension Order issued by the Accountant General in pursuance of the sanction letter from the Ministry of Home Affairs, Govt. of India of their having been Freedom Fighters. 13. The criteria for evaluation of candidates which has further been preserved in the policy is to the following effect: 7. Evaluation of candidates Each candidate during the interview will be assessed by the Selection Committee broadly under the following parameters: a. Capability to provide land and 35 marks infrastructure/facilities. b. Capability to provide finance 25 marks c. Educational qualifications 15 marks d. Capability to generate business 10 marks e. Age 4 marks f. Experience 4 marks g. Business ability/acumen 5 marks h. Personality 2 marks Total marks 100 marks Minimum qualifying marks (for OP category 60% of the applicants) applicable marks Minimum qualifying marks 50% of the (for reserved category applicants) applicable marks. 14. A conjoint reading of the aforesaid clauses of the policy makes it clear that the Respondents have enumerated as many as 7 reserved categories i.e. SC/ST, Defence Personnel, Freedom Fighter, Outstanding Sportspersons, Paramilitary/Police/Govt. Personnel, Physically handicapped personnel and Open Category. 14. A conjoint reading of the aforesaid clauses of the policy makes it clear that the Respondents have enumerated as many as 7 reserved categories i.e. SC/ST, Defence Personnel, Freedom Fighter, Outstanding Sportspersons, Paramilitary/Police/Govt. Personnel, Physically handicapped personnel and Open Category. This fact is also clear from a perusal of Clause 6.1 of the Policy Circular and Clause 3.1 of the brochure and the eligibility criteria for various reserved categories as prescribed by the Respondents. It is further clear that woman is not one of the prescribed reserved categories and that separately 33% of the dealerships in the above 7 categories has been horizontally reserved for women belonging to that category. It is further clear from a perusal of the criteria for evaluation of candidates that the minimum qualifying marks for OP category applicants, i.e. Open Category Applicant is 60% of the applicable marks while the minimum qualifying marks for reserved category applicant is 50% of the applicable marks. It is also undisputed mat the dealership outlet in the instant case to be established at Village Bhangarh is reserved for an open category women. 15. From the aforesaid, it is clear that the reservation prescribed for women is in fact horizontal reservation as it has not been separately prescribed but is a part and parcel of the reservation prescribed for the reserved category to which they belong in view of the law laid down by the Supreme Court in the case of Indra Sawhney and Ors. v. Union of India and Ors. 1992 Supp. (3) SCC 217 and Swati Gupta (Ms) v. State of U.P. and Ors. (1995) 2 SCC 560 . In other words, out of the total seats reserved for open category 33% of the dealership is to be awarded to women belonging to the open category and similarly 33% of dealership reserved for various other categories is to be allotted to women belonging to the respective reserved categories and, therefore, the minimum eligibility criteria prescribed for each of the category i.e. one of the seven as enumerated and prescribed in the policy, would respectively be applicable and would be the eligibility criteria for the woman belonging to that category. In view of the aforesaid unquestionable provisions of the policy and the law, the contention of the Respondents that reservation for women is a reservation for a separate category and therefore the eligibility criteria prescribed for the reserved categories would in toto apply to all women applicants even if they belong to the open category is per se misconceived and patently erroneous. 16. Admittedly, the minimum qualifying marks for open category applicant is 60% and the minimum qualifying marks for reserved category applicant is 50%. It is an undisputed fact that the Petitioner and the other applicants who applied pursuant to the advertisement in the instant case are all women belonging to the open category and, therefore, the eligibility criteria of obtaining minimum 60% marks would be applicable to all the open category applicants irrespective of the fact whether they are women or otherwise. A perusal of the aforesaid clauses also makes it clear that the reservation of 33% dealership in each category is a horizontal reservation which cuts into their respective categories and is not a separate vertical reservation for women and, therefore, the women applicant would draw colour from the category to which they belong and for which they apply. In the instant case, as the Petitioner and other applicants were women and have applied for allotment of the dealership reserved for open category women, they have to fulfil the eligibility criteria of obtaining the minimum qualifying marks of 60% as prescribed by the policy. 17. In view of the aforesaid analysis, I am of the considered opinion that the act of the Respondents in treating the women applicant of an open category candidate as a separate reserved category and on that count reducing the minimum eligibility criteria for allotment of dealership to 50% in respect of all women applicants irrespective of the fact that they belong to the open category or any other category is per se misconceived and patently erroneous specifically in view of the fact that the dealership in question belongs to the quota reserved for an open category candidate, male and female, and the minimum eligibility marks for an open category candidate is 60%. 18. 18. From a perusal of the impugned communication dated 28-7-2005, Annexure P-10, and order dated 7-11-2006 it is clear that the Respondent authorities, by treating the minimum eligibility marks for all women applicants, even those belonging to the open category, as 50% have cancelled the merit list and propose to redraw the merit panel by including those applicants also whose names were at Sr. Nos. 2 & 3 of the select list even though they have secured less than 60% marks and propose to reinterview the Petitioner and others. 19. It is also clear from a perusal of the policy filed by the Petitioner that there is no provision contained therein providing for conducting reinterview only on their being a difference of less than 5% marks between the selected applicants. On a specific query being made, the learned Counsel for the Respondents fairly submits that there is no stipulation in the guidelines to the effect that in case of difference of marks between applicants being less than 5%, reinterview would be conducted. The learned Counsel for the Respondents has however pointed out by placing reliance on the policy communication dated 6-1-2005, a copy of which has been filed along with the covering memo, that the Respondents have taken a decision to conduct reinterview by treating the present case to be one wherein the policy guidelines have been violated. 20. In view of the above mentioned analysis I am of the considered opinion that the minimum qualifying marks for all open category candidates, irrespective of the fact as to whether they are male or female as prescribed by the Respondent authorities in the policy, is 60% and in such circumstances the decision of the Respondents to conduct reinterview by prescribing 50% as the minimum eligibility marks for all women candidates irrespective of the fact that they belong to the open or any other reserved category is patently misconceived and is in contravention of the stipulation made by the Respondents themselves in the policy. I am also of the considered opinion that as there is no stipulation in the policy guidelines for conducting reinterview in case of difference of marks between the selected candidates having less then 5%, it cannot be said that the selection of the Petitioner or the preparation of the select list in the present case was contrary to the policy guidelines warranting holding of a reinterview and in such circumstances the impugned orders dated 7-11-2006 and 28-7-2005 deserve to be and are hereby quashed. The matter is, accordingly, remitted back to the Respondent authorities to take a decision on the basis of the previous merit list prepared by them on 14-7-2005 and take further steps strictly in accordance with law. 21. In view of the aforesaid facts and circumstances, the petition, filed by the Petitioner, stands allowed to the extent mentioned hereinabove.