Calcutta High Court (Appellete Side)
Sadhana Singh vs Union Of India & Ors on 6 June, 2022
IN THE CALCUTTA HIGH COURT
Constitutional Writ Jurisdiction
Appellate Side
Present :- Hon'ble Justice Amrita Sinha
WPA No. 10894 of 2011
Sadhana Singh
Vs.
Union of India & Ors.
For the writ petitioner :- Mr. Debabrata Saha Roy, Adv.
Mr. Pingal Bhattacharyya, Adv.
Mr. Subhankar Das, Adv.
Mr. Neil Basu, Adv.
For respondent nos. 2-5 :- Mr. Arunava Ghosh, Adv.
Mr. Manwendra Singh Yadav, Adv.
Hearing concluded on :- 06.05.2022
Judgment on :- 06.06.2022
Amrita Sinha, J.:-
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.
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.
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.
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'.
The petitioner contends that if marks were awarded under the aforesaid two
headings, then she would have been the first candidate in the panel.
It has been contended that marks were allotted and panel was prepared
contrary to the policy of the Company.
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'. 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.
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.
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.
The petitioner contends that the rules of the game cannot be changed after
the game is over.
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).
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.
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'.
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. 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."
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'.
It has been submitted that according to Clause 18 of the brochure dated 1st
July, 2009 there is a grievance/complaint redressal system.
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.
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.
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.
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.
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 ad-
hoc dealers.
Prayer has been made for dismissal of the writ petition.
I have heard and considered the rival submissions made on behalf of both the
parties.
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.
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.
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).
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.
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.
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.
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.
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.
Writ petition stands disposed of.
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.
( Amrita Sinha, J.)
