At, Before the Madurai Bench of Madras High Court
By, THE HONOURABLE MR. JUSTICE M. JAICHANDREN
For the Petitioner: J. Parekh Kumar, Advocate. For the Respondents: R1-R3, K. Muraleedharan, Advocate.
(Prayer: Petition filed under Article 226 of the Constitution of India, seeking for a writ of Certiorarified Mandamus to call for the records in relating to the impugned orders of the second respondent dated 9.7.2009 in reference No.TNL/S/221 and quash the same and consequently directing the respondents to reconsider the petitioner's candidature under the sub head of 'Professional' in light of her educational qualification ie., MCA degree which comes under the category of professional/Technical instead of the sub head 'Basic' and award appropriate marks to the petitioner for her educational qualification in the interview held on 18.6.2009 for LPG Distributorship located at Kovilpatti, Tuticorin District based on the guidelines of the respondent Corporation.
W.P.(MD) No.5272 of 2009:
Prayer: Petition filed under Article 226 of the Constitution of India, seeking for a writ of Mandamus to direct the first respondent to reconsider the petitioner's candidature under the sub head of 'Professional' in light of her educational qulification ie., MCA degree which comes under the category of Technical instead of the sub head 'Basic' and award appropriate marks to the petitioner for the interview held on 18.6.2009 for LPG Distributorship located at Kovilpatti, Tuticorin District based on the guidelines of the respondent Corporation.)
C O M M O N O R D E R
Since the issues arising in the writ petitions and the reliefs sought for therein are of a similar nature, a common order is passed in the above writ petitions.
2. It has been stated that the petitioner is possessing an M.C.A. degree and she had also completed M.Phil., course. She is residing at Kovilpatti. While so, the respondent Indian Oil Corporation Limited had issued a combined notification, along with two other oil companies, namely, Bharat Petroleum Corporation Limited and Hindustan Petroleum Corporation for appointment of L.P.G. Distributorship, for various places, within the jurisdiction of Tamil Nadu and Pondicherry, on 6.2.2008, in the daily newspapers
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'Dinakaran' and 'The Hindu'. In the said notification, the respondent Corporation had called for applications for L.P.G. Distributorship, at Kovilpatti, Tuticorin District, in serial No.54 of the said notification, under the open category.3. It has been further stated that the respondent Corporation had issued the selection process and the evaluation criteria for the selection of L.P.G. Distributors. The parameters prescribed for such selection are as follows: Parameter Maximum Marksa. Capability to provide infrastructure 35 marksb. Capability to provide finance 35 marksc. Educational Qualification 15 marksd. Age 4 markse.Experience 4 marksf. Business ability 2 marks g. Personality 2 marks Total Marks 100 marks4. As per the guidelines of the respondent Corporation, the evaluation on the parameters 'a to d' are document based and the marks would be given on the basis of the information given in the application and the evaluation on the parameters 'e to g' would be done based on the personal interview. 5. The petitioner has further submitted that she had applied for L.P.G. Distributorship, along with all the necessary documents. The petitioner had received a call letter, dated 25.5.2009, asking her to appear before the Dealership Selection Committee for the interview held, on 18.6.2009. After the interview, on 18.6.2009, conducted by the Dealership Selection Committee, the merit panel for the L.P.G. Distributorship had been announced, on 19.6.2009. The petitioner had been awarded only 13 marks for her educational qualification. 12 marks had been awarded to the petitioner for her M.C.A. degree under the sub heading 'basic' and one mark had been awarded to her for her M.Phil., degree. In fact, she should have been awarded 15 marks, as she had completed the professional/technical post graduate degree of M.C.A. (Master of Computer Application) from the Madurai Kamaraj University. 6. The petitioner has further submitted that she had been placed third with the total marks of 97.54, out of 100 marks. One Ms.S.Geetha had been placed first, with the total marks of 98.56, out of 100 marks. If the petitioner's educational qualification had been considered, under the sub heading of professional/technical, as per the guidelines of the respondent Corporation, she would have been placed first with the total marks of 99.54. As such, she would have been given the Indane L.P.G. Distributorship for Kovilpatti. In spite of several representations to the respondents, including the representation, dated 22.6.2009. they had not considered the claim of the petitioner that her educational qualifications should have been considered under the sub heading professional/technical and appropriate marks ought to have been given to her based on such classification. Since the representation made by the petitioner had not been considered, she was constrained to file a writ petition before this Court, in W.P.(MD) No. 5272 of 2009, praying for the issuance of a writ of Mandamus to direct the first respondent to reconsider the petitioner's candidature, under the sub heading of professional, as she had obtained an M.C.A. degree, which comes under the category of 'technical' instead of 'basic'. Thereafter, the impugned order had been passed, on 9.7.2009, stating as follows:?This has reference to your telegram dated 22.6.2009 addressed to Senior Area Manager, IOC, Chennai, on the subject. A screening committee appointed by the competent authority has investigated your complaint. On thorough investigation, it has been reported that the marks awarded by the scrutiny committee in respect of your qualification (MCA) is in line with the selection guidelines, since MCA being a course not appearing in the courses listed in S.No.14.1 of the Brochure against the parameter ?Professional Courses?. Also, MCA is not a 4 year course after 12th standard (+2).?7. In such circumstances, the petitioner has preferred the present writ petition, in W.P.(MD) No.8324 of 2009, before this Court, under Article 226 of the Constitution of India. 8. The learned counsel appearing for the petitioner had submitted that the order of the second respondent, dated 9.7.2009, impugned in the writ petition, in W.P.(MD) No.8324 of 2009, is contrary to law and it is also in violation of the guidelines prescribed by the respondent Corporation and it is also against the principles of natural justice. The second respondent had passed the impugned order, dated 9.7.2009, without referring to his earlier order and without cancelling the same. Even though the M.C.A. degree of the petitioner should have been considered, as a professional/technical course, the respondent had failed to consider the same accordingly, for the awarding of marks. In fact, the All India Council for Technical Education had issued a notification, dated 14.9.2006, in respect of the prior approval of the technical institutions, under Section 23(1), read with sections 10 and 11 of the All India Council for Technical Education Act, 1987. From the said notification, it is clear that the M.C.A. degree course comes under the purview of technical/technology. Further, the Institutions, which are conducting M.C.A. degree courses, have to obtain the prior approval of the All India Council for Technical Education. Further, the University of Madras had called for admissions for the courses conducted by them, including the M.C.A. Course, stating that it is a professional course. From the various decisions of the Courts of law, it could be found that the M.C.A. degree course should be considered as a professional/technical course and therefore, 15 marks ought to have been awarded to the petitioner, as per the guidelines prescribed by the respondent Corporation. Accordingly, the petitioner ought to have been selected for the grant of Indane Distributorship for Kovilpatti, in Tuticorin District. 9. In the counter affidavit filed on behalf of the respondents, the averments and the allegations made by the petitioner have been denied. It has been stated that as per the notification, dated 6.2.2008, issued in the daily newspapers, namely, 'Dinakaran' and 'The Hindu' for the appointment of L.P.G. Distributorship, under item No.10, it had been clearly mentioned that all enclosures should be attached with the applications. Further, in the applications to be submitted by the candidates for being granted the L.P.G. Distributorship, it has been clearly stated that the applicant has to enclose the attested copies of the various certificates and that the original documents should be produced at the time of the interview. Detailed guidelines had been given in the brochure given to the candidate and in the website of the oil corporations. The M.C.A. degree obtained by the petitioner had been evaluated by a team of three officers, as per the prescribed guidelines. The three officials constituting the selection committee had followed all the rules of the Corporation, as well as the information given by the applicants, as per the criteria contained in the brochure, on distributor selection. 10. It has been further stated that all the parameters had been considered by the officials concerned, based on the documentary evidence available in support of the claims made by the candidates. After considering all the aspects, the selection committee had placed Ms.S.Geetha in the first position, as she had secured 98.56 marks and the petitioner herein had been placed in the third position, as she had secured 97.54 marks. In such circumstances, Ms.S.Geetha, had been selected for the L.P.G. Districtshipship, under the freedom fighter's category. 11. It has been further stated that the selection of Ms.S.Geetha is based purely on merit, and on the basis of the information given by her in the application and based on the personal interview held at Madurai, on 18.6.2009. If the petitioner had been aggrieved by the selection made by the Selection Committee, she should have lodged a complaint at the area office/state office, in which the interview for the distributorship had been conducted, within a period of one month from the date of the declaration of the result, in accordance with clause 21.1 of the selection procedure. Without resorting to the alternative remedy, available to the petitioner, she had filed the present writ petition before this Court, under Article 226 of the Constitution of India. 12. It has been further stated that the representation of the petitioner, dated 22.6.2009, had been forwarded, in accordance with the 'Grievance Redressal Mechanism' provided under clause 12 of the notice issued, on 6.2.2008, for the appointment of L.P.G. Distributorship for Kovilpatti, in Tuticorin District. 13. It has been further stated that the three senior officers, constituting the scrutiny committee had scrutinised the applications. The interviews for the candidates had been held, between 17.6.2009 and 19.6.2009, and the selection had been in accordance with the rules and the regulations of the Indian Oil Corporation. The selection had been made based on an objective evaluation, without any bias or favouritism. 14. It has been further stated that it is incorrect to say that M.C.A. course is a professional/technical course, as it is not shown as one of the courses listed in S.No.14.1 of the brochure, against the parameter 'professional courses'. Further, it is not a four year course conducted after the completion of +2 standard. In such circumstances, the writ petitions filed by the petitioner are liable to be dismissed, as devoid of merits. 15. The learned counsel appearing for the petitioner had submitted that the writ petitions are maintainable in law, as the petitioner had questioned the arbitrary action of the respondents in not considering the M.C.A. course possessed by the petitioner, as a professional/technical course. Further, the letter of intent had not been issued and therefore, it is open to the petitioner to challenge the selection process, before this Court, by way of a writ petition filed, under Article 226 of the Constitution of India.16. The learned counsel appearing for the petitioner had relied on the decision of the Supreme Court, in DEAN, GOA MEDICAL COLLEGE Vs. DR SUDHIR KUMAR SOLANKI (2001) 7 SCC 645), to state that the word 'technical' has many etymological meanings attributed to it and it takes its true colour from the text and the context. The dictionary meaning of the word 'technical' is also 'professional' and is used in contradiction with pure sciences to prepare professionals in applied sciences. 17. He had also relied on the decision of the Supreme Court in HARBANSLAL SAHNIA Vs. INDIAN OIL CORPN. LTD., (2003) 2 SCC 107), wherein it has been held that ?the rule of exclusion of writ jurisdiction, by availability of an alternative remedy, is a rule of discretion and not one of compulsion. In an appropriate case, in spite of the availability of the alternative remedy, the High Court may still exercise its writ jurisdiction in at least three contingencies: (i) where the writ petition seeks enforcement of any of the fundamental rights; (ii) where there is failure of the principles of natural justice; or (iii) where the orders or proceedings are wholly without jurisdiction, or when the vires of an Act is challenged. The present case attracts the applicability of the first two contingencies. Moreover, the petitioners? dealership, which is their bread and butter, came to be terminated for an irrelevant and non-existent cause. In such circumstances, the appellants should have been granted the relief, by the High Court itself, instead of driving them to the need of initiating arbitration proceedings?.18. Per contra, the learned counsel appearing on behalf of the respondents had submitted that the writ petitions are not maintainable in law, as the disputed issues would fall under the realm of a private contract. She had further submitted that the M.C.A. Course, obtained by the petitioner, is not a professional or a technical course, as per the guidelines issued by the respondent Corporation. No allegation has been made by the petitioner either against the respondents or against the members of the selection committee. Since the selection process had already been completed, it is not open to the petitioner to challenge the process of selection, in which she had participated, at this stage. 19. The learned counsel for the respondents had relied on the following decisions in support of his contentions: 19.1. In K.VINOD KUMAR Vs. S.PALANISAMY (2003) 10 SCC 681, the Supreme Court had held that ?the proceedings of the Dealer Selection Board must satisfy the requirements of a bona fide administrative decision arrived at in a fair manner. There are no mala fides alleged against the Dealer Selection Board or the President or any member thereof. There is no specific plea raised impugning the manner of marking. It appears that all the three members of the Board, including the President, conducted the proceedings, and each one of them gave marks expressing his own assessment of the merits of the applicants. The marks given by the three were then totalled and arranged in the order of merit. The appellant herein topped the list. In the absence of a particular procedure or formula having been prescribed for the Board to follow, no fault can be found with the manner in which the proceedings were conducted by the Board. The Board is entrusted with the task of finding out the best-suitable candidate and, so long as the power is exercised bona fide, the Board is free to devise and adopt its own procedure, subject to satisfying the test of reasonableness and fairness. There is no averment that the procedure adopted by the Board was arbitrary, unfair or unreasonable.In the proceedings and the decisions taken in administrative matters, the scope of judicial review is confined to the decision-making process and does not extend to the merits of the decision taken. No infirmity is pointed out in the proceedings of the Selection Board which may have the effect of vitiating the selection process. The capability of the appellant herein to otherwise perform, as an LPG distributor, is not in dispute. The High Court was not, therefore, justified in interfering with the decision of the Selection Board?. 19.2. In SURINDER SHUKLA Vs. U.O.I. (2008) 3 MLJ 303 (SC)), the Supreme Court had held that the Judicial review is permissible only to the extent of finding whether the process in reaching the decision has been observed correctly and not the decision as such. 19.3. This court, by its order, dated 6.4.2006, in W.P.No.1541 of 2005 (S.POOMA DEVI Vs. THE SENIOR DIVISIONAL RETAIL SALES MANAGER AND ANOTHER), while dismissing the writ petition with costs, had held that ?the selection of the second respondent is the decision taken by the First respondent, as per its parameters and guidelines. As held in the decision reported, in J.R.RAGHUPATHY AND OTHERS Vs. STATE OF A.P. AND OTHERS (1988 (4) S.C.C. 364) exercising jurisdiction under Article 226 of the Constitution of India, the High Court cannot sit in Appeal over the Government's decision and proceed to evolve the merits and demerits of such decision with its own perspective. The decision of the Supreme Court in K.VINOD KUMAR Vs. S.PALANISAMY (2003 (10) S.C.C.681) squarely applies to the case in hand. The scope of judicial review is confined only to the decision making process and does not extend to evaluate the merits of the decision taken. The alleged infirmity pointed out in the selection and the selection process are not in any manner vitiated, as contended by the petitioner. The writ petition is nothing but an anguish of an unsuccessful candidate in the allotment of retail outlet of the petroleum product of the First respondent, at Kurumbur location, Tuticorin District. The petitioner has not made out a case to interfere with the Selection of the second respondent. 20. In view of the submissions made by the learned counsels appearing on behalf of the parties concerned and on a perusal of the records available and in view of the decisions cited supra, this Court is of the considered view that the petitioner has not shown sufficient cause or reason to grant the reliefs sought for by the petitioner, in the present writ petition, by interfering with the selection process followed by the respondents, in selecting the Distributorship for Kovilpatti, in Tuticorin District, pursuant to the notification, dated 6.2.2008, issued by the respondents. 21. The petitioner has not been in a position to substantiate her claim that M.C.A. course is a professional/technical course, as per the guidelines issued for the selection process for the L.P.G. distributorship. The petitioner has not alleged that the respondents or the members of the selection committee had acted in a mala fide manner during the selection process. Further, the petitioner had not availed the alternative remedy of making a representation to the 'Grievance Redressal Mechanism' available, as per clause 12 of the notice issued, on 6.2.2008, for the appointment of L.P.G. Distributorship for Kovilpatti, in Tuticorin District. Even though this Court has enormous powers, under Article 226 of the Constitution of India, such powers are not invoked, except in appropriate cases, especially, when alternative remedies are available to the petitioner. 22. In the present case, no such situation has arisen for this Court to exercise its extraordinary jurisdiction, under Article 226 of the Constitution of India. Further, it is not open to the petitioner to challenge the selection process prescribed by the respondents for the selection of Indane L.P.G. Distributorship for Kovilpatti, in Tuticorin District, which creates a contractual obligation between the parties concerned, especially, when the petitioner had participated in the selection process, in accordance with the terms and conditions prescribed for such selection. As such, the writ petitions are devoid of merits. Hence, they are dismissed. Consequently, connected M.P.(MD) Nos.1 of 2009 and M.P.(MD) No. 2 of 2009 are closed. No costs.