Ritu Mahajan vs Indian Oil Corporation & Ors

issued an advertisement in the "Tribune" dated

22.06.2000 whereby allotment of Retail Outlet

Dealership/SKO-LDU Dealership and LPG

distributorship was advertised. In the said

advertisement one retail outlet, which was to be set at

Dhariwal was also advertised. In the said

advertisement, it was mentioned that in respect of the

locations reserved for women only, on receipt of their

application for Retail Outlet Dealerships/SKO-LDO

Dealerships/LPG Distributorship, other things being

equal, preference would be given to unmarried women

above 40 years of age and widows. It was also

mentioned that the Oil Companies would also provide

the above women an adequate working capital for a full operation cycle for the operation of the

Dealership/Distributorship.

5. The appellant - Ritu Mahajan, deceased fifth

respondent - Smt. Rani Gauba and others applied for

allotment of Retail Outlet Dealership at Dhariwal, which

was reserved for women only. Pursuant to receipt of

the said applications the appellant, the deceased fifth

respondent as also others were called for interview on

24.04.2001. The aforesaid interview was taken by

Dealers Selection Board (for short `Board') and after

completion of the said interview a merit list was

prepared in which the fifth respondent was placed at

first position and the appellant was placed at the

second position. As there was only one outlet to be

allotted at Dhariwal, in terms of the position in the

merit list the letter of intent was issued to the fifth

respondent.

6. The appellant protested against the selection of the

fifth respondent on the ground that she was not

eligible to be considered for selection and even

otherwise she was inferior to the appellant in all

respects on the basis of the criteria laid down. The protest of the appellant, however, did not find favour

with the Corporation or the Board and they refused to

cancel the allotment in favour of the fifth respondent.

7. Consequently the appellant filed a Writ Petition before

the Punjab and Haryana High Court with a prayer for

quashing of the allotment in favour of the fifth

respondent with a further prayer that the appellant be

allotted the aforesaid Petrol Pump. The Division Bench

who heard the matter, however, passed the impugned

order dated 01.02.2002 holding that the fifth

respondent was eligible for allotment of retail outlet

dealership and the Board did not commit any illegality

in selecting and recommending the name of fifth

respondent for allotment of the said dealership.

8. Being aggrieved by the said Judgment and Order of

the Division Bench, the present appeal was filed on

which we heard the learned counsel appearing for the

parties and also scrutinized the documents placed on

record.

9. Mr. Yashraj Singh Deora, learned counsel appearing for

the appellant submitted that in terms of the advertisement for allotment of the petrol pump, the

minimum educational qualification was matriculation

but the fifth respondent neither attached the

matriculation certificate along with the Application Form

nor the same was even produced at the time of

interview and her application was wrongly entertained

and, therefore, the said application was liable to be

dismissed at the threshold. It was also submitted that

even otherwise as per the criteria the appellant has

higher merit in all the fields in comparison to the fifth

respondent and, therefore, she deserves to be selected

in preference over the fifth respondent.

10.Refuting the aforesaid submission, Mr. Rakesh Kumar

Khanna, learned senior counsel appearing for the fifth

respondent specifically stated that her qualification

was matriculation and along with her application she

also produced school leaving certificate, which would

indicate that she had passed her matriculation in the

year 1969. It was also submitted that fifth respondent

was selected on the basis of overall assessment, in

which she was found by the Board to be more

competent than the appellant and the said decision having been upheld by the High Court the same should

not be interfered by this Court.

11. It is undisputed that an advertisement was issued for

allotment of one Retail Outlet dealership of petrol

pump at Dhariwal. The said petrol pump was reserved

for women category and that other things being equal,

preference was to be given to unmarried women above

40 years of age without earning parents and widows.

In addition, the oil companies were also to provide an

adequate working capital for a full operation cycle for

the operation of the dealership/distributorship. The

said amount was to be re-payed in 100 equal monthly

installments alongwith interest @ 11% per annum and

the first installment was to begin from 13th month of

commissioning of dealership.

12.At the time of submitting the application for allotment,

the appellant was 28 years of age and was married.

She had completed B.E. (Electricals) from Punjab

University, Patiala and had an experience of

approximately about 1 = years as an in-charge of R &

D Section of M/s. Standard Electricals Ltd. The Gross

Income (including self, spouse and dependent children) was shown to be Rs. 72,376/- p.m. On the other hand

the fifth respondent was alleged to be Matriculate and

was of 47 years of age at the time of submission of

application. She was a widow and had an experience

of near about 4 years of running a P.C.O.

13.The Board was required to assess and allot marks to

the candidates under three categories and the marks

obtained by the appellant and fifth respondent are as

under:

CATEGORY APPELLANT FIFTH RESPONDENT Personality, Business Ability & 36 38 Salesmanship Educational Qualification & 55 45 General level of intelligence General Assessment 21 27 Total 112 110

Under the said three categories the total marks

obtained by the appellant was more than the fifth

respondent. But, there were two more categories,

namely, Capability to Arrange Finance and Capability to provide Infrastructure & Facilities on which also

assessment was made. After marking on the later two

criteria the fifth respondent was found with the

maximum marks and was placed at Serial No. 1.

14. The aforesaid findings and the conclusions of the Board

were challenged in writ petition. It may, however, be

mentioned at this stage that in a case filed before this

Court, titled as Onkar Lal Bajaj v. Union of India

the issues with regard to the allotment of marks, the

criteria followed by the said Board in allotting marks to

various candidates were challenged on the ground that

the selection was based on Political Consideration. In

the said case, this court by the judgment and order

dated 20-12-2002 reported in (2003) 2 SCC 673

constituted a committee of two Judges' comprising Mr.

Justice S.C. Agarwal, a former Judge of this Court and

Mr. Justice P.K. Bahri, a former Judge of the Delhi High

Court, to examine 413 cases including the present case

pertaining to the allotment to the fifth respondent. The

Committee constituted by this Court examined the

records and submitted a Report. The relevant portion

of the said report is placed on record as Annexure P-3

at page 120 of the paper book.

15.In the said Report, it was mentioned that on the basis

of the marks awarded by the members of the Board at

the interview, the name of following applicants, in the

order of merit, was published on 24.04.2001:

(i) Smt. Rani Gauba;

(ii) Smt. Ritu Mahajan; and

(iii) Smt. Paramjeet Kaur.

It was stated in the said Report that the Board was not

required to allot any marks in two categories i.e.

Capability to arrange finance and Capability to provide

Infrastructure & Facility as the said outlet was a

Company Owned Company Operated Retail Outlet and

the finance was to be made available in easy terms

from the corpus funds to the selected candidates in

such reserved category. The Committee, therefore,

took out the marks allotted in the aforesaid two

categories and the total marks obtained by the three

candidates were found as follows:

Personality,Educational General Total Business Qualification & Assessment Ability & Gen. Level of & Salesman Intelligence Ship No. 1 Rani 38 45 27 110 Gauba No. 2, Ritu 36 55 21 112 Mahajan No. 3 39 40 22 101 Sagarika

16.On the face of the Total Marks obtained, the committee

found that the appellant comes at serial No. 1 with 112

marks, while the fifth respondent comes at serial No. 2

with 110 marks. The Committee, thereafter, having

recorded the aforesaid findings proceeded to examine

whether there was any arbitrary allotment of marks to

any of the candidates and on examining the first

category, namely, Educational Qualification & General

Level of Intelligence it was found that the fifth

respondent is matriculate whereas the appellant - Ritu

Mahajan is B.E. (Electrical). Upon considering the said

qualifications, it was found that the allotment of equal

marks viz. 25 by the Chairman to the appellant and

fifth respondent was unjustified and was held as

arbitrary. So far as the category with respect to

Personality, Business ability and Salesmanship is concerned the committee observed that the fifth

respondent was running PCO since 1996 whereas the

appellant - Ritu Mahajan was working as Incharge of R

& D Section of M/s Standard Electricals Ltd. in 1995-97,

and therefore, it cannot be said that the fifth

respondent is having better experience than the

appellant. The two members allotted better marks to

appellant than the fifth respondent whereas the

Chairman allotted higher marks to fifth respondent as

compared with appellant. In this view of the matter

the Committee held that the Chairman allotted marks

arbitrarily to tilt the balance in favour of the fifth

respondent. So far as General Assessment is

concerned, it was found that the higher marks given by

the Chairman to the fifth respondent again were

unjustified. The Committee, therefore, held that the

allotment made in favour of the fifth respondent was

not on merits.

17.The aforesaid comparison of merits is based on

relevant records and therefore the scrutiny and

conclusions arrived at by the Committee cannot be said

to be in any manner arbitrary or unjustified. The

Committee has appreciated the respective merit of the two candidates and on such appreciation has come to a

finding that the appellant is a better candidate for

which it has given cogent and valid reasons.

18. We have also scrutinized the records submitted by the

parties and on bare perusal of the same, we find that

the appellant was more meritorious than the fifth

respondent on all counts. For the operation of the said

outlet finance was to be provided by the Oil

Corporation, which was to be re-payed in 100 equal

monthly installments alongwith interest @ 11% per

annum and the first installment was to begin from 13th

month of commissioning of dealership. Thus Capability

to arrange finance and Capability to provide

Infrastructure & Facility could not have been relevant

and material criteria. On that score we fully endorse

the opinion of the committee constituted by this Court.

We may also mention that in the present case no

preference could have been given to the fifth

respondent as the same was to be given to unmarried

women above 40 years of age without earning parents

and widows only on other things being equal. In the

present case as also held by the committee the

appellant was higher in merit in comparison to the fifth respondent in all the criteria and thus all the factors

and consideration cannot be said to be equal.

19. The said report of the committee was upheld by this

Court in Mukund Swarup Mishra v. Union of India

being Transferred Case (Civil) No. 100 of 2002

reported in (2007) 2 SCC 536. In the present case an

objection is filed by the fifth respondent against the

report of the Committee. In view of our findings and

conclusions recorded hereinbefore, it is held that the

objection has no merit. We accept the report having

found the same as valid and legal.

20.We are of the considered opinion that the ratio of the

decision in Mukund Swarup (supra) would become fully

applicable to the facts and circumstances of this case.

In terms of the said judgment and order the fifth

respondent was liable to vacate the said retail outlet at

Dhariwal within 3 months from 12-01-2007. However

as the applications filed by the fifth respondent were

not disposed of the status quo was directed to be

maintained.

21.In that view of the matter, the selection of fifth

respondent for allotment of Retail Outlet Dealership at

Dhariwal is set aside and the Indian Oil Corporation -

respondent No. 1 is hereby directed to make allotment

of the said Retail Outlet Dealership at Dhariwal in

favour of the appellant immediately. The appeal is

allowed accordingly.

22.I.A. Nos. 213-214 in T.C. (C) No. 100/2002 are

disposed of accordingly.

...........................................

.J [S.B. Sinha]

............................................J [Dr. Mukundakam Sharma]

New Delhi February 9, 2009