Remanded

Jaimal Kumar v. Hindustan Petroleum Corpn. Ltd. and Ors.

Punjab & Haryana HC20 Apr 2010CWP/12530/2009

Case brief

AI extract

What is this about?

The petitioner challenged the allotment of an LPG distributorship where the selected candidate scored higher mainly due to experience marks. The court found doubts regarding the authenticity of the candidate's experience claim and remitted the specific experience assessment to the Interview Committee for fresh consideration, while upholding the hands-off approach to subjective marks.

What did the court decide?

The selection was set aside and the matter remanded to the Interview Committee to reassess the experience marks of the petitioner and the selected candidate.

Jaimal Kumar Vs Hindustan Petroleum Corpn… — Service and Employment | Punjab & Haryana HC (2010)

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C.W.P. No.12530 of 2009

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IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH

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C.W.P. No.12530 of 2009 Date of Decision:20.04.2010

Sh. Jaimal Kumar

.........Petitioner

Versus

Hindustan Petroleum Corporation Limited through its Chairman, 17, Jamshedji Tata Road, Mumbai and others

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....Respondents

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Present: Mr. Akshay Bhan, Advocate for the petitioner.

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Mr. Anil Malhotra, Advocate for respondent Nos.1, 2 and 5.

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Mr. Vishal Gupta, Advocate for respondent No.3.

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CORAM:HON'BLE MR. JUSTICE K. KANNAN

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Whether Reporters of local papers may be allowed to see the judgment ? Yes

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To be referred to the Reporters or not ? Yes

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Whether the judgment should be reported in the Digest? Yes

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K. KANNAN J.

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The controversy in this writ petition is the choice of allotment of LPG distributorship under SC (Urban) Category. The petitioner is locked up in a tussle through claim by the 3^rd respondent, who has been favoured with allotment by respondent Nos.1 and 2. The selection is made through assessment of relative merit on five parameters for SC Category namely (i) educational qualification (15 marks), (ii) Age (4 marks), (iii) Experience (4 marks), (iv) business ability/acumen (5 marks), (v) personality (2 marks), totalling in all 30 marks. The petitioner has been assessed

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at 28.33 marks having tied with the 4^th respondent mentioned in the petition, both of whom having placed beneath the 3^rd respondent, who has been awarded 29 marks. The difference has arisen by the fact that the petitioner has been assessed at 3 marks for experience while the 3^rd respondent has been assessed at 4 marks. This one mark difference steals the show for the 3^rd respondent, when the difference in mark allotted to the petitioner at 4.33 for business ability and the 3^rd respondent having been assessed at 4 marks for business ability is not sufficient to off-set the one mark difference for experience. The attention in this case will, therefore, be riveted only to these relative grading under the column experience and business ability/acumen.

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Conscious of the fact that the Court's area of intervention in the matter of award of marks by the Interview Committee shall be extremely restricted, the attempt had been to point out that the marking has been so outlandish and arbitrary even within the limited area of traversal, it shall become possible to set aside the selection. The 3^rd respondent on the other hand was only to ensure that the Court adopts a hands-off approach when the persons who had been making the selection knew their job well and the Court shall have no need for upsetting their choice. If the marks are assigned only on the basis of a subjective satisfaction of the Selection Committee on the personality assessment or the way the candidate is supposed to have answered the questions, they shall be absolutely no scope for intervention at all. There has been a consistent string of authorities setting out the extent of interference that may be possible by the

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C.W.P. No.12530 of 2009

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Court. The Hon'ble Supreme Court in Dalpt Abasaheb Solunke etc.

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Vs. Dr. B.S. Mahajan etc. AIR 1990 SC 434 observed thus:

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“It will thus appear that apart from the fact that the High Court has rolled the cases of the two appointees in one, though their appointments are not assailable on the same grounds, the Court has also found it necessary to set in appeal over the decision of the Selection Committee and to embark upon deciding the relative merits of the candidates. It is needless to emphasise that it is not the function of the Court to hear appeals over the decisions of the Selection Committees and to scrutinize the relative merits of the candidates. Whether a candidate is fit for a particular post or not has to be decided by the duly constituted Selection Committee which has the expertise on the subject. The Court has no such expertise. The decision of the Selection Committee can be interfered with only on limited grounds, such as illegality or patent material irregularity in the constitution of the Committee or its procedure vitiating the selection or proved mala fide affecting the selection etc. It is not disputed that in the present case the University had constituted the Committee in due compliance with the relevant statutes. The Committee consisted of experts and it selected the candidates after going through all the relevant material before it. In sitting in appeal over the selection so made and in sitting it aside on the ground of the so called

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comparative merits of the candidates as assessed by the Court, the High Court went wrong and exceeded its jurisdiction.”

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The learned counsel also refers to some decisions of the Calcutta High Court and this High Court to show how the Court shall not interfere with the award of marks by expert selection bodies. I do not think it is necessary to dilate on them since they re-affirm the principle laid down by the Hon'ble Supreme Court.

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Learned counsel appearing for the Corporation would point out to the composition of the Interview Committee as having been drawn from senior officials of the Corporation namely the Senior Regional Manager, Hoshiarpur, LPG Regional Office, HPCL, Senior Manager, HPCL North Zone, Delhi and Manager Commercial, HPCL North Zone, Delhi. These senior experienced officers of the Corporation, it is averred, were well versed with the policies of the Corporation and were competent to assess the business ability/acumen, personality and experience of the respective candidates being fully familiar with the trading and commercial activities conducted by the respondent-Corporation. The petitioner has been assessed at 4.33 marks for business ability while the selected candidate has only 4 marks. With a better grading on that score, the petitioner could have no grievance that a subjective assessment could still be not a matter for intervention by the Court. The case assumes acute appraisal only as regards the experience factor. It is not so much a subjective assessment but is a matter of easy appraisal on the facts disclosed.

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C.W.P. No.12530 of 2009

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As regards the experience, the petitioner has given the

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following details:

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“12 Experience: Do you have experience of running or working in any of the establishment dealing in the following for minimum one year ? Please give full details chronologically ?

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Type of experience	Name establ	& Address of the ishment/institution Period	Nu	mber of years
		From To
Direct	BPCL	1996 till
Sale/Home delivered products (including LPG Distributor ship)		date
Other Petroleum products/ experience	LPG, R	etail, Direct Sales
Any other trade
he 3^rdre ereunder: “12	sponde	nt has on the other hand Experience: Do you have expe working in any of the establish following for minimum one ye details chronologically ?	the d rience ment ar ? Pl	etails set ou of running or dealing in the ease give full
Type experience	of	Name & Address of the establishment/institution Period		Number of years
		From	To
Direct Sale/ delivered products (including Distributors	Home LPG hip)	Bhagwaria Gas Agency, Karnal 1984	86	2 years
Other Petr products/ experience	oleum	Marketing Household furnishing good 2002	2005	3 years
Any other tr	ade	Practicing Advocate 2005	2008	1- ½ years

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The 3^rd respondent has on the other hand the details set out

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hereunder:

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The petitioner's experience has been drawn from the fact that he

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was a permanent management staff of the Bharat Petroleum

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C.W.P. No.12530 of 2009 -6-

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Corporation Limited and working as such since September, 1996. Presently, he had been posted at Jammu and the petitioner has produced the certificate issued by the Manager, Jammu Depot. For this the petitioner has been granted 3 marks. The 3^rd respondent, the selected candidate has had three years experience in marketing household furnishing goods and is reported to have had direct sale/home delivered products in Bhagwaria Gas Agency, Karnal from 1984-86. She has also been a practicing advocate for 1 ½ years. Learned counsel for the petitioner produces proof secured from the Principal of the College for Girls, Chandigarh that the petitioner was a student at the relevant time and therefore, she could not have had any experience. The document produced by the petitioner at the time of argument, though not referred to in the petition shows the following:

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“That M/s Bhagwaria Gas Service at Karnal was an agency run by her father as an Indane Distributor. The 3^rd respondent had been a regular student of the Government Girls College, Sector 11, Chandigarh from April 1982 to May 1985 and a post-graduate student at Kurukshetra University till 1987.”

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It is obvious that the experience certificate that the 3^rd respondent produced on the basis of which she has been assessed marks at 4 has been on the basis of certificate which her father could have easily given to the 3^rd respondent, whether she had worked there or not. She had been a practicing advocate and whether such an experience

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as an advocate is at all relevant is again a matter which the

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Interview Committee would know better. She has also had experience in marketing household furnishing goods between the year 2002-2005. If the Interview Committee had to assess marks for experience only for her alleged association with Bhagwaria Gas Agency, Karnal, the period when the 3^rd respondent had been a student in a college, the entire assessment would have been wholly suspect. Whether the experience as an advocate shall have any bearing for assessment, there is no definite guidance. Learned counsel appearing for the Oil Company has very strong objections to the petitioner relying on the information obtained under RTI by the fact that it had not been made the subject of pleading. The 3^rd respondent is also represented through counsel and she has no explanation to offer as regards the claim by the petitioner that she could not have had worked in her father's gas agency at that relevant time. It shall not become possible for the Court to undertake an examination whether the assessment had been made properly but I still think that it is an issue which the Interview Committee shall definitely examine, having regard to the fact that the information has been brought before this Court.

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The selection that has been made would require to be set aside, even keeping in view the limited area of jurisdiction of the Court to make such intervention since the issue is whether the Interview Committee had all the relevant details to examine the correctness of the information supplied by the candidates. The information as regards the so-called experience of having worked in Bhagwaria Gas Agency is definitely open to doubt and the matter

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shall be remitted to the Interview Committee for consideration only as regards the assessment of marks for experience. The Interview Committee may be reconstituted, which shall examine only the records that have been placed so far namely of the petitioner's experience as management staff with Bharat Petroleum Corporation Limited at Jammu and marks that have been assigned for the 3^rd respondent's experience under the three heads namely the alleged experience of working in Bhagwaria Gas Agency, experience in marketing household furnishing goods and the experience as a practicing advocate. The reconsideration of the candidature of the petitioner and the 3^rd respondent will stay confined to the documents that had been brought before this Court for consideration. The decision shall be taken within 4 weeks from the date of receipt of copy of the order.

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The selection made already drawing up a panel of merit list placing the 3^rd respondent as the highest in the order of merit list is set aside and a fresh consideration shall be taken in the light of observations made above.

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The writ petition is disposed of on the above terms.

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(K. KANNAN) JUDGE

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April 20, 2010 Pankaj*

Jaimal Kumar v. Hindustan Petroleum Corpn. Ltd. and Ors.

Case brief

What is this about?

What did the court decide?

Jaimal Kumar v. Hindustan Petroleum Corpn. Ltd. and Ors.

Case brief

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