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2022 DIGILAW 809 (CAL)

Sadhana Singh v. Union of India

2022-06-06

AMRITA SINHA

body2022
JUDGMENT : 1. In response to an advertisement published in the daily newspaper by Indian Oil Corporation Limited (hereinafter referred to as ‘the Company’) on 30th December, 2009, the petitioner applied for being appointed as Retail Outlet Dealer for the area between Baghajatin and Ganguly Bagan on Raja S.C. Mallick Road (existing retail outlet) in the open category reserved for women. 2. According to the petitioner the application was made in the prescribed format along with all supporting documents including the valuation report of the property and income tax return for the year 2009-10 showing her income as Rs. 4,34,674/-. An interview was held on 13th May, 2010 and a panel of eligible candidates was published on 14th May, 2010. 3. Being dissatisfied with the manner of preparation of the panel the petitioner submitted a representation before the concerned authority of the Company requesting detailed breakup of the marks according to which the panel was prepared. The Company published an amended panel of selected candidates on 12th November, 2010 disclosing the breakup of the marks of the candidates. The earlier panel and the amended panel were different. 4. The petitioner submits that she has not been awarded any marks under the heading ‘fixed and movable assets’ and under the heading ‘income’. The petitioner submits that as she possessed enough fixed and movable assets she ought to have been awarded the total marks under the heading ‘fixed and movable assets’ and as her income is more than rupees three lakh per annum she is entitled to be awarded full marks under the heading ‘income’. 5. The petitioner contends that if marks were awarded under the aforesaid two headings, then she would have been the first candidate in the panel. 6. It has been contended that marks were allotted and panel was prepared contrary to the policy of the Company. 7. Being aggrieved by the act of the Company the petitioner filed representation before the Company praying for rectifying/recasting the panel in accordance with the procedure laid down in the advertisement. In response to the said representation the petitioner was intimated that the panel was prepared on the basis of the maximum marks of forty excluding the marks allocated under the parameters ‘capability to provide infrastructure and facilities’ and ‘capability to provide finance’. In response to the said representation the petitioner was intimated that the panel was prepared on the basis of the maximum marks of forty excluding the marks allocated under the parameters ‘capability to provide infrastructure and facilities’ and ‘capability to provide finance’. It was intimated that since marks obtained under the parameter ‘capability to provide finance’ was not relevant for the said vacancy, marks obtained under the said heading has not been considered. 8. The petitioner submits that the first empanelled candidate has already tendered her resignation and the candidature of the second empanelled candidate was being considered for appointment as dealer. The second empanelled candidate secured lesser marks than the petitioner out of the total 65 marks. 9. The petitioner argues that the procedure in which the candidates have been marked is in contradiction with the brochure for selection for retail outlet dealer published by the Company and also contrary to the advertisement. 10. The petitioner contends that the rules of the game cannot be changed after the game is over. 11. In support of the submission regarding changing the rules of the game the petitioner has relied upon the decision of the Hon’ble Supreme Court in the matter of Bishnu Biswas & Ors. –vs- Union of India & Ors. reported in (2014) 3 WBLR (SC). 12. The petitioner prays for issuance of a writ of Mandamus commanding the respondents, inter alia, to cancel/withdraw and/or set aside the panel dated 12th November, 2010 and to grant retail outlet dealership in her favour. 13. The respondent Company has opposed the submissions and the prayer of the petitioner. The respondents rely upon Clause 9 of the brochure dated 1st July, 2009 for selection of petrol/diesel retail outlet dealer which deals with ‘corpus fund facilities for women’. 14. Clause 9(b) of the brochure reads as follows: “Subject to the application and request, widows and unmarried women above 40 years of age, without earning parents, for locations reserved for women will not be judged under the heads “capability to provide infrastructure and facilities” and “capability to provide finance”. These applicants will be required to indicate in the application form itself whether they will like to avail the facilities. These applicants will be required to indicate in the application form itself whether they will like to avail the facilities. In case this is not indicated in the application form, it will be construed that such applicants would like to get evaluated in line with other applicants i.e. they should also be assessed under the heads “capability to provide infrastructure and facilities” and “capability to provide finance”. For determining the priority to be given to such candidates over other women candidates, the marks secured by other women under these two parameters will be excluded by the total marks secured by them.” 15. In the present case all the candidates were assessed out of maximum 40 marks as per the Corpus Fund Scheme wherein it has been indicated that even if one eligible candidate indicates her desire to avail the Corpus Fund Facility, evaluation of all the candidates will be made out of maximum 40 marks. The evaluation has been made against the criteria ‘educational qualification’, ‘capability to generate business’, ‘age’, ‘experience’, ‘business ability/acumen’, and ‘personality’. Candidates have not been assessed under the heading ‘capability to provide finance’. 16. It has been submitted that according to Clause 18 of the brochure dated 1st July, 2009 there is a grievance/complaint redressal system. 17. Clause 18(A) of the brochure mentions that an aggrieved person may send his/her complaint to the Company within 30 days from the date of declaration of the result of the interview. Complaints received after 30 days of the date of declaration of the result of the interview will not be entertained by the Company. 18. It has been contended that the petitioner did not lodge any complaint within the time specified in the brochure and she filed the present writ petition nearly seven months after the publication of the amended panel. 19. It has been denied that there has been any change in the rules of the game as alleged or at all. In this connection the respondents rely upon the policy guideline dated 1st March, 2011 which has been issued as a clarification of paragraphs 9(b) and 9(c) of the brochure dated 1st July, 2009. 20. It has been submitted that the writ petition suffers from non-joinder of necessary parties and the same is liable to be dismissed on that ground alone. In this connection the respondents rely upon the policy guideline dated 1st March, 2011 which has been issued as a clarification of paragraphs 9(b) and 9(c) of the brochure dated 1st July, 2009. 20. It has been submitted that the writ petition suffers from non-joinder of necessary parties and the same is liable to be dismissed on that ground alone. The empanelled candidates have not been impleaded as party respondents in the present writ petition and any order passed herein may affect the rights of such candidates. 21. It has been argued that the petitioner being an unsuccessful candidate has filed the present writ petition with a view to stall the selection process and the Company is left with no other alternative but to run the dealership by engaging adhoc dealers. 22. Prayer has been made for dismissal of the writ petition. 23. I have heard and considered the rival submissions made on behalf of both the parties. 24. It appears that the advertisement in question was published in the year 2009. The panel in question was published initially in May 2010 and the amended panel was published in November 2010. The petitioner has alleged that there has been violation in the manner in which marks ought to have been awarded to the candidates. None else apart from the petitioner has come up with this allegation. 25. The petitioner has not come up with any instance to show that she has been discriminated in any manner vis-à-vis the other candidates who have been empanelled. The Company has asserted that all the candidates were evaluated uniformly and the evaluation has been made strictly in accordance with the manner as prescribed in the brochure. 26. Assuming, but not admitting, that the allegation of the petitioner is correct, if any order is passed in the present writ application, the same is certainly going to affect the candidature of the other empanelled candidates. For reasons best known to the petitioner, the other empanelled candidates whose rights may be adversely affected, if any order is passed in the present writ petition, have not been impleaded as party respondent(s). 27. It will not be proper to enter into the nitty-gritty of the manner of awarding of marks or to interfere with the impugned panel in the absence of the other empanelled candidates. 28. 27. It will not be proper to enter into the nitty-gritty of the manner of awarding of marks or to interfere with the impugned panel in the absence of the other empanelled candidates. 28. The vacancy in question could not be filled up in view of the pendency of the writ petition and the interim order passed herein. In the meantime, more than twelve years have elapsed. Situation has changed a lot in the interregnum. None of the eligible candidates has approached this Court praying for a direction to implement the panel in question. The Court has not been made aware of any proceeding initiated by any of the empanelled candidates exercising their rights. 29. The Company also does not seem to have any interest to conclude the selection process which was initiated in the year 2009. The Company chose to file the affidavit in opposition in the present case after a lapse of nearly ten years. It seems that none, but the petitioner, is interested in the selection process. Pendency of the selection process will not ensure to the benefit of either of the parties. 30. It is settled law that no indefeasible right accrues in favour of a candidate by mere enlistment of name in the list of selected candidates. Letter of appointment has not been issued in favour of any candidate till date. Right(s) of none of the candidates will be impinged if the impugned panel is not given effect to by the Company. 31. In such a situation, I am of the opinion that, the vacancy in question is required to be filled up by way of a fresh selection process to be conducted by the Company in strict adherence to the selection brochure. The entire selection process initiated by the Company by virtue of the advertisement dated 30th December, 2009 be treated as cancelled. All the candidates who were empanelled in the said selection process shall be intimated by the Company about the cancellation of the said selection process. Steps shall be taken by the Company to fill up the vacancy strictly in accordance with law, at the earliest. 32. Writ petition stands disposed of. 33. Urgent photostat certified copy of this judgment, if applied for, shall be given to the parties as expeditiously as possible on compliance of all necessary formalities.