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2011 DIGILAW 950 (GAU)

Dharitry Devi v. Indian Oil Corporation Ltd.

2011-12-02

BROJENDRA PRASAD KATAKEY

body2011
JUDGMENT B.P. Katakey, J. 1. This writ petition is directed against the Revised Merit Panel dated 8th June, 2000 prepared by Indian Oil Corporation Limited (IOCL) containing the list of empanelled candidates for LPG Distributorship at Bordowa in the district of Nagaon under Open Category (Women). A notice inviting applications for appointment of LPG Distributors of IOCL in various places in Assam including Bordowa in the district of Nagaon against the Open Category (Women) was published in a local English daily in its publication dated 26th February, 2008, pursuant to which the writ petitioner and the respondent No. 4, apart from others, submitted their applications for appointment as LPG Distributor at Bordowa in the district of Nagaon. An interview was, thereafter, conducted at Guwahati on 16th July, 2009, where the petitioner, the respondent No. 4 and the other candidates appeared, on which date, a list of empanelled candidates, in accordance with the marks secured, was published. The petitioner having secured 90.5 marks was placed at serial No. 1 in the merit list. The respondent No. 4, who secured 89.5 marks was placed at serial No. 2 in the said merit list. The respondent No. 4 being not satisfied with the result of the interview filed a complaint on 27th July, 2009, in terms of the policy circulars issued laying down the procedure for handling the grievance/complaint with regards to the selection of dealers/distributors, contending inter-alia that there has been an error in the marks awarded by the Committee vis-a-vis the documents submitted by the respondent No. 4. The General Manager, North Eastern Integrated State Office of IOCL, Guwahati, pursuant to the said policy circular, nominated an Investigating Officer on 3rd February, 2010, who submitted the report on 29th September, 2010 recommending re-evaluation of the applications, which was approved by the General Manager on 18th October, 2010 and accordingly, nominated another 3 (three) Members L-1 Committee for re-evaluation of the applications filed by the different applicants including the respondent No. 4. The said L-1 Committee submitted the revised evaluation report alongwith the justifications for change in the marks awarded by earlier L-1 Committee to the candidates including the respondent No. 4. The said L-1 Committee submitted the revised evaluation report alongwith the justifications for change in the marks awarded by earlier L-1 Committee to the candidates including the respondent No. 4. The Screening Committee thereafter, reviewed the reasons/justifications given by the L-1 Committee for change of the marks and having found that the revised marks as awarded to the applicants by the second L-1 Committee are as per the guidelines issued for evaluation of candidates, accepted the same. While the marks secured by the petitioner after re-evaluation remains same i.e. 90.5, the marks secured by the respondent No. 4 increased from 89.8 to 93. The final list of empanelled candidates, by taking into account the marks awarded by the second L-1 Committee and marks awarded by the L-2 Committee in the interview component, was, thereafter, prepared and published on 8th June, 2011 placing the respondent No. 4 at serial No. 1 and the writ petitioner at serial No. 2 of the merit list and consequently declared the result. The petitioner has been informed about the Revised Merit Panel by the General Area Manager of Indian Oil Corporation Limited vide communication dated 10th June, 2011. Hence, the present petition. 2. I have heard Mr. Y.S. Mannan, learned counsel for the petitioner, Mr. S.N. Sarma, learned senior counsel for the respondent Nos. 1 to 3 and also Mr. Borthakur, learned counsel appearing for the respondent No. 4. 3. The petitioner has challenged the revised list of empanelled candidates dated 8th June, 2011 on the ground of violation of the policy circulars dated 11th February, 2004 and 29th April, 2010 issued by the. IOCL, on 2 (two) counts, namely non adherence of the time limit fixed for disposal of the complaint and re- evaluation of the marks secured by different candidates by the second L-1 Committee, constitution of which is different from the earlier L-1 Committee. Mr. IOCL, on 2 (two) counts, namely non adherence of the time limit fixed for disposal of the complaint and re- evaluation of the marks secured by different candidates by the second L-1 Committee, constitution of which is different from the earlier L-1 Committee. Mr. Mannan, learned counsel referring to the policy circular dated 11th February, 2004, more particularly, Clauses 3.4 and 5.0 has submitted that since the said policy circular fixes the time limit of 7 (seven) working days, extendable by not exceeding 15 (fifteen) days in case of complicated complaints, for submission of report after making investigation by the Investigating Officer and 3(three) weeks from the date of receipt of the complaint, for timely disposal of the complaint received by the State Office, the authorities are bound to decide the complaints within the time fixed and no decision on such complaint can be taken after expiry of the time limit fixed for that purpose. According to the learned counsel, the respondent No. 4, lodged the complaint on 27th July, 2009 and the Investigating Office submitted the report only on 29th September, 2010, though the General Manager, North Eastern Integrated State Office of IOCL nominated the Investigating Officer on 3rd February, 2010, i.e. more than 7 (seven) months from the date of nomination, thereby beyond the time limit fixed by clause 3.4 of the policy circular dated 11th February, 2004 for submission of report after investigation. It has also been submitted that the time frame envisaged in clause 5.0 for deciding the complaint within 3 (three) weeks from the date of receipt of the same has also been violated, having reevaluated the marks allotted by the earlier L.-I Committee on 6th May, 2011 and declaring the revised list of empanelled candidates on 8th June, 2011, though the respondent No. 4 lodged the complaint on 27th July, 2009. The learned counsel, therefore, submits that there being infraction of the policy circulars relating to the time limit fixed for disposal of the complaint, the revised list of empanel candidate is vitiated. 4. The learned counsel, therefore, submits that there being infraction of the policy circulars relating to the time limit fixed for disposal of the complaint, the revised list of empanel candidate is vitiated. 4. Referring to the guideline dated 29th April, 2010 for handling the grievance/complaint with regards to the selection of dealers/distributors issued by the IOCL, more particularly Clause 2.2, it has also been submitted that the same L-1 Committee, which earlier allotted the marks to different candidates, is required to make the re-evaluation, as the guideline does not envisage such re-evaluation by another L-1 Committee. It has been submitted that admittedly the constitution of the second L-1 Committee being different from the constitution of the earlier L-1 Committee, the re-evaluation done by the second L-1 Committee and consequent revision of list of empanelled candidates prepared and published on the basis of such re-evaluation is contrary to the guideline issued by the respondent IOCL. Mr. Mannan submits that since it is a case of re- evaluation of the marks allotted by a Committee, the same Committee consisting of the same members has to do the exercise of re-evaluation, which cannot be done by a Committee consisting of different members, as has been done in the instant case. The learned counsel, therefore, submits that the revised list of empanelled candidates, therefore, requires to be interfered with on that count also. 5. Mr. Sarma, learned Sr. counsel appearing for the respondent IOCL, per contra, has submitted that non-adhering to the time limit stipulated in the policy circulars for re-evaluation of the marks earlier awarded to various applicants, would not vitiate the re-evaluation and the decision taken by the authority on the basis of such re-evaluation as non- adherence of such time limit would not create any right in favour of the writ petitioner. It has also been submitted that under the policy guideline, if there is any mistake in awarding the marks by the L-1 Committee, or the L-1 Committee in awarding the marks did not follow the guideline issued for that purpose, such mistakes can be rectified under the policy circulars issued by the authority, as has been done in the instant case, on the basis of the complaint filed by the respondent No. 4. The learned senior counsel further submits that the marks to which the respondent No. 4 was entitled to having not been awarded by the earlier L1 Committee, the said mistake has been rectified by the 2nd L1 Committee after re-evaluation in terms of the guideline issued. Relating to the submission of the petitioner about the requirement of reevaluating the marks secured by different applicants by the L1 Committee consisting of the same members, it has been submitted by the learned senior counsel that the guideline dated 29.04.2010 issued for handling the grievance/complaint with regard to the selection of dealers/distributors, issued by IOCL does not envisage the requirement of re-evaluation by the L-1 Committee consisting of the same, members, rather it is evident from clause 2.2(c) of the said guideline dated 29.04.2010 that the L-1 Committee consisting of the members other than the members consisting the earlier L1 Committee can re-evaluate the marks earlier allotted and award marks after re-evaluation. It has also been submitted that because of the integration of the Assam Oil Division of the Corporation with the Marketing Division of IOCL since there has been a lot of re-arrangement of personals along with their posts, it was not possible to continue with the same L1 Committee, for which a new L1 Committee was constituted for the purpose of re- evaluation on the basis of the documents submitted by all the applicants and in terms of the guidelines relating to the marketing procedure issued. Constitution of the 2nd L1 Committee in any case, according to the learned counsel, is not contrary to the policy guidelines issued by the IOCL. The learned Sr. counsel further submits that though the respondent No. 4 was entitled to more marks under the head "Education" in terms of the guideline for evaluation issued by the Corporation dated 29.06.2007, she was awarded lesser marks by the earlier L-1 Committee. Similarly under the said guideline though the respondent No. 4 was entitled to more marks under the sub-head "Funds" under the head "Capability to provide finance", she was allotted lesser marks by the L-1 Committee, which necessitated re-evaluation of the marks allotted by the L-1 Committee and the revision of the same, consequently revision of the list of empanelled candidates. The learned Sr. The learned Sr. counsel, therefore, submits that there is no illegality committed in re-evaluation and also the publication of revised list of empanelled candidates for appointment as distributor at Bordowa in the district of Nagaon, Assam. 6. The learned counsel appearing for the respondent No. 4 supporting the arguments advanced by the learned senior counsel for the IOCL, has also submitted that the earlier L-1 Committee denied the respondent No. 4 the marks to which she was entitled to under the guidelines dated 29.06.2007 issued by the authority for allotment of the marks, which necessitated filing of the complaint, re-evaluation and publication of the revised list of empanelled candidates. According to the learned counsel the respondent No. 4's right to get the marks which she deserves cannot be defeated for infraction of the guideline issued by the IOCL relating to the time limit to be maintained for disposal of such complaint, more so, when the purpose of fixing the time limit is only to facilitate early disposal of complaint, infraction of which does not create any right in favour of the writ petitioner. It has also been submitted that the policy circulars issued by the respondent authority do not envisage the re-evaluation by the same L1 Committee, which is evident from the language used in clause 2.2(c) of the policy guideline dated 29.04.2010. 7. I have considered the submissions of the learned counsel for the parties and also perused the pleadings of the parties apart from the records produced by the learned Sr. counsel appearing for the respondent IOCL. 8. The IOCL issued the policy circular dated 11.02.2004 relating to the procedure for handling of grievances/complaints with regard to selection of dealers/distributors. Under the said policy circular, on receipt of a complaint/grievance, with regard to the selection, a screening committee consisting of State Retail Head and the State LPG Head is required to be constituted to screen the complaints. The Screening Committee is required to categorize such complaints broadly under three heads, namely, anonymous complaint, complaints having names and addresses but not having verifiable supporting documents/issues and the complaints having verifiable supporting documents/issues, which can be verified. The Screening Committee, thereafter, is to submit the report to the State Head. In case of the complaints having specific and verifiable allegation, the investigating officer is required to be appointed, if the Screening Committee recommends for investigation. The Screening Committee, thereafter, is to submit the report to the State Head. In case of the complaints having specific and verifiable allegation, the investigating officer is required to be appointed, if the Screening Committee recommends for investigation. The investigating officer, thereafter, is to submit the report along with finding and the specific recommendation which ultimately is to be put up for final decision before the State Head. 9. The guideline dated 29.04.2010 issued by the IOCL stipulates the procedure in handling the complaints against the selection of dealers/distributors, which are in addition to the aforesaid policy guideline issued on 11.02.2004. Clause 2.2 of the policy guideline dated 29.04.2010 provides that where there is complaint relating to the error in evaluation by the L1 Committee, which error is established in document based evaluation by L1 Committee, re-evaluation of all the applicants by L1 Committee is to be arranged. It also provides that during re-evaluation, L1 Committee will record justification for any change in marks for every candidate under any parameter. The result of the re-evaluation is thereafter required to be examined by a Committee of the State Retail Head and State LPG Head, for which the said Committee may interact with the L1 Committee involved in re-evaluation. It further provides that when there is an allegation of error in evaluation by L-1 Committee, there will be no re-interview and the marks allotted by L2 Committee (on interview based parameters) will be considered for revised result. In case there is change of ranking in merit panel, revised mark-sheet and the panel is to be prepared and published thereafter. 10. A guideline laying down the norms for evaluating the candidates both by L-1 and L2 Committees, under different parameters for distributorship, was framed on 29.06.2007, on the basis of which the L-1 and L2 Committees are required to allot the marks out of total marks of 100. Out of the said total marks of 100, 35 maximum marks is allotted for "capability to provide infrastructure facilities", 35 marks for "capability to provide finance", 15 marks for "educational qualification" and 4 marks for "age" by the L1 Committee. The maximum marks that can be awarded by the L2 Committee out of 100 is 11. The aforesaid 4 parameters, in which the L1 Committee is to award marks, is divided into different sub-heads. The maximum marks that can be awarded by the L2 Committee out of 100 is 11. The aforesaid 4 parameters, in which the L1 Committee is to award marks, is divided into different sub-heads. In the instant case, the re- evaluation having been done in respect of the parameter "capability to provide finance" and "educational qualification", the sub-head under the said parameters are only taken note of 35 marks for the parameter "capability to provide finance" is sub-divided to 18 marks for "financially sound-funds", 7 marks for "ability to arrange loan", 5 marks for "assets" and 5 marks for "income". As per the said guideline, if an applicant is matriculate/SSC/10th passed, he is to be awarded 7 marks and in case of 12th passed 8 marks in case of graduate 10 and in case of post graduate and higher qualification 12 marks, out of 15 marks allotted for that purpose. It also provides that for additional qualification of any diploma or degree, one has to be awarded 1 additional mark for additional qualification. An applicant, who has professional degree like any technical decree, law etc. he is entitled to 15 marks. 11. The L1 Committee, which Committee is not required to interview the applicants, but to award marks on the basis of the aforesaid parameters, based on the documents submitted by different applicants, initially awarded 33 marks out of maximum 35 under the parameter "capability to provide finance" and 12 marks out of maximum 15 under the parameter "educational qualification" to the petitioner and 31.8 and 10 marks under the said parameters, respectively, to the respondent No. 4. Taking into account the marks allotted by the said L1 Committee under other parameters, while the petitioner secured 84 out of maximum of 89, the respondent No. 4 secured 80.8 marks out of the maximum mark of 89. The L2 Committee awarded 6.5 and 9 marks to the petitioner and the respondent No. 4 respectively and thus taking into account the marks awarded by both the L1 and L2 Committee, the petitioner shown to have secured 90.5 marks as against 89.8 marks secured by the respondent No. 4, thereby placing the petitioner in the first position of the merit list. 12. 12. As notice above, the respondent No. 4 being aggrieved by the marks awarded by the L1 Committee lodged the complaint which was scrutinized by the Screening Committee, and thereafter the investigation, was carried out by the investigating officer appointed for that purpose. The State Head having accepted the recommendation of the investigating officer decided to re- evaluate the marks awarded to different applicants by the L-1 Committee and accordingly an L1 Committee was constituted who reevaluate the marks based on the documents supplied by different applicants along with their bids and has found that though the respondent No. 4 was entitled to 17.6 marks, out of 18 marks under the sub-head "fund", she was given 15.4 marks by the earlier L1 Committee. Similarly under the parameter "educational qualification" additional mark of 1 for the additional qualification was not awarded to the respondent No. 4 by the earlier L1 Committee though she was entitled to the same and accordingly revised the marks to 17.6 in place of 15.4 under the sub-head "fund" and total 11 marks under the parameter "educational qualification", thereby awarding the total 84 marks out of the maximum of 89 marks instead of 80.8 marks allotted by the earlier L1 Committee. Taking into account the marks allotted by the L2 Committee, while the marks secured by the petitioner remains to be same i.e. 90.5, the marks secured by the respondent No. 4 was increased to 93 from 89.8. Consequently the revised list of empanelled candidates was prepared and published by the authority concerned. 13. Clause 3.4 and clause 5.0 of the guideline dated 11.02.2004 though provides for the time frame for investigation by the investigating officer and for disposal of the complaint, non- adherence of such time limit would not defeat the right of an applicant to get the marks to which he/she is entitled to, in terms of the norms fixed by the authority for evaluating the candidates. Such non-adherence of the time limit also does not create any right in favour of an applicant, who has been selected based on error in evaluation. The time limit is stipulated in the said guideline to facilitate prompt action on the complaint so that the grievance of a complainant is redressed early. Such non-adherence of the time limit also does not create any right in favour of an applicant, who has been selected based on error in evaluation. The time limit is stipulated in the said guideline to facilitate prompt action on the complaint so that the grievance of a complainant is redressed early. That being the position, the first contention of the learned counsel for the petitioner that non-adherence to the time limit stipulated in the guideline dated 11.02.2004 vitiated the revised list of empanelled candidates, cannot be accepted and hence rejected. Moreover the earlier guideline dated 11.02.2004 has been modified by the subsequent guideline dated 29.042010, which does not stipulate any time frame. 14. Clause 2.2 of the policy guideline dated 29.04.2010 lays down the modified procedure of re-evaluation by the L1 Committee, which is quoted in its entirety:- 2.2 In other cases where complaint is substantiated due to error in evaluation by L-1 Committee: The modified procedure is as under: (a) In cases where error is established in document based evaluation (by L-1 committee), re-evaluation of all the applicants by L-1 committee will be arranged. During re-evaluation, L-1 committee will record justification for any change in marks (for every candidate under any parameter). (b) There will be no re-interview and the marks awarded by L-2 Committee (on interview based parameters) will be considered for revised result. (c) A committee of State Retail and State LPG Head will examine the re-evaluation of L-1 committee. For this purpose, if required, committee may interact with L-1 committee (involved in re-evaluation). This Committee will review reasons/justification for every change from the declared mark sheet and submit recommendations to State Head for taking a decision to rectify the marks and/or revise the merit panel. (d) Where there is CHANGE OF RANKINGS IN MERIT PANEL, revised mark sheet and panel will be displayed on the notice board/I OC website besides separate communication to all empanelled candidates (pre-revised and revised empanelled candidates) by the DRSM--AM within 7 days from receiving the decision from State Office. State Office should also communicate the decision to the complainant by way of speaking order, as is being done presently. (e) Where there is NO CHANGE OF RANKINGS IN MERIT PANEL, the decision should be conveyed by way of speaking order to the complainant by the State Office. 15. State Office should also communicate the decision to the complainant by way of speaking order, as is being done presently. (e) Where there is NO CHANGE OF RANKINGS IN MERIT PANEL, the decision should be conveyed by way of speaking order to the complainant by the State Office. 15. It is evident from the clause 2.2 of the said guideline as quoted above that in cases where error is established in document based evaluation by L1 Committee, re-evaluation of all the applicants by L1 Committee is required to be arranged. Sub-clause (c) of clause 2.2 requires a Committee consisting of State Retail and State LPG head to examine the re-evaluation of L1 Committee, for which purpose, if required the said Committee may also interact with the L1 Committee involved in re-evaluation. The language used in the said sub-clause, therefore, indicates that there can be re-evaluation by a different L-1 committee and it is not always necessary that the L1 Committee consisting of same members is to make the re-evaluation. That apart such re-evaluation/review is not a statutory re-evaluation or review but the administrative re-evaluation/review. Re-evaluation by a different L1 Committee, therefore, is not entirely impermissible. Moreover, as discussed above, though the respondent No. 4 was entitled to more marks under the sub-head "fund" under the parameter "capability to provide finance", she was allotted lesser marks by the earlier L1 Committee. Similarly the additional mark 1 for the additional qualification under the parameter "educational qualification" was not awarded to the respondent No. 4 by the earlier L1 Committee. Hence in any case the decision of the authority to award the marks to which the respondent No. 4 was entitled to cannot be said to be illegal. That being the position, I do not find any merit in the writ petition, which accordingly is dismissed. No cost.