Bk Raman & Co v. Indian Oil Corporation Ltd & Anr

Judgment?

¶2To be referred to the Reporter or not?

¶3Whether the Judgment should be reported in the Digest? A.K. SIKRI, J (Oral)

¶1Admit.

¶2With the consent of learned counsel for the parties, we have heard the matter finally at this stage. Pagelof? Certify that the digital file and physical file have been compared and the digital data is as per the physical file and no page is missing.

¶3Followingfacts, whichare necessaryfor decidingthis appeal,gets uncoveredfrom the pleadings of the parties in the writ petition. The respondent no.l Indian Oil CorporationLtd. had invitedapplicationfor appointmentofDel CredereAssociatecum ConsignmentStockiest(DCA for short). Various parties includingthe appellantand respondent no.2 submitted that applications. The respondent no.l had evolved a particularcriteriaunderwhich marks to the applicantsunder some specifiedheads were to be awardedon differentparameterswhich includedmarks for workingcapitalas well Jis taxable income as per Income Tax Return. The Selection Committee was also constituted for screening of the applicationssubmittedby various applicants and to award the marks under specified heads. As per exercise done by the Selection Committee,the appellantsecuredhighestmarks because of which the DCA dealership was awarded to it.

¶4The respondentno.2 challengedthe selectionand appointmentof the appellantas DCA by filing writ petition before this Court which was registered as W.P. (C) 13995/2009. Notice to show cause was issued in this writ petition pursuant whereof both the appellantas well as the respondentno.l (who were respondentno.2 and respondent no.l in the said writ petition) appeared and filed their counter affidavits contestingthis appeal. Inthe counteraffidavitfiledbythe respondentno.l (IOC),the IOC had disclosed the marks which were awarded to the various applicants/candidates in the stage-I as well as stage-II process in the following manner iS. Name of the applicant Address Total marks awarded M/s B.K. Raman & Co. Plot No. 185, Industrial Area Phase 2, Ram Darbar, Chandigarh-160002 M/s GLS Industries Pvt. Ltd. 309-310, JMD Pacific Swuare, Sector-15, Part-2, Gurgaon M/s Sturdy Industries Ltd. 55-Industrial Area, Sector 1, Parwanoo, H.P.-173220 M/s Varahi Pvt. Ltd. WZ-8/1, Industrial Area, Kirti Nagar, New Delhi It was also informed that all the candidates short listed as mentioned above in stage-Ihave attendedthe interviewand the marksawardedinStage-IIwere as under:- Name of the Applicant Marks awarded in stage II process B.K. Raman & Co.

8.7 GLS Industries P\t. Ltd.

7.6 Sturdy Industries Ltd.

6.9 Varahi Pvt. Ltd.

7.5 / '5. On the basis of the aforesaid and also taking the plea that award of marks was very fair, transparentand the same was given by the Committeeduly constitutedby the competentauthority. It was contendedthat the appellantwas rightlyappointedas DCA agent for its polymerbusinessfor Solan,HimachalPradesh.Allegationthat the selection processwas arbitraryor whimsicalwas specificallydenied. Respondentno.2 (petitioner in the saidwrit petition)filed its rejoindercontrovertingthe aforesaidpleas taken by the IOC. Afterthis rejoinderwas filed, the IOC filed anotheraffidavitdated 18"'November, /H. 2010 swornby one Mr. SKP Singh, ChiefManager,(PCM),BD, CorporateOffice,New Delhi. In this affidavit it was inter alia stated that the deponenthad gone throughthe writpetitionas well as the rejoinderfiled by the respondentno.2 and aftergoingthrough the same he had recheckedthe documentsto ascertainthe exact position with regard to the marks awardedto the respondentno.2 under various heads. He statedthat on this rechecking he detected a bona fide error, inasmuch as under the head "Financial Capabilities" the Committeedid not considerthe 'taxableincome as per IT Return' of jthe respondent no.2 at the time of awarding the marks and awarded zero marks. Whereas,on the basis of the IncomeTax Return filed by the respondentno 2, it should have been awarded seven marks. It was fiirther stated that in case the respondent no.2 awarded seven marks, then he would ranked no.l and he would be then above the appellant.

¶6In para3 of the affidavitit wasstated asunder "3. It is submitted that since the mistake has been detected, it is left to this Hon'ble High Court to pass appropriateorders in rectifyingthe mistake and IOC shall abide by the order of this Hon'ble Court. Alternatively,the RespondentCorporationis even prepared and willing to re-invite the application in accordance with the policy of the corporation." i: The learnedSingle Judge after taking note of the aforesaidaverments made in the affidavitdated 18"' November,2010 allowedthe writ petition of the respondentno.2 holdingthat once the mistakeis corrected,it is the respondentno.2who wouldattainfirst position in the merit list. 1^-

¶8Challenging the impugned order, Mr. Kaul, learned Senior Counsel for the appellant has arguedthat copy ofthe aforesaidaffidavitdated 18"' November,2010 was never suppliedto the appellant. Had it been supplied,the appellantwould not only have been controverted the averments made therein, it could also point out that even the appellantwas not awardedpropermarks for the "workingcapital". He pointedout that as per the chart annexed by the respondent no.l alongwith the said affidavit dated jjSthNovember,2010, the appellant has come to know that under the head "working capital" theappellanthasbeen awardedzero markswhichis a glaringmistakecommitted by the SelectionCommittee in its case as well. It was argued that the legal error was committed by the learned Single Judge in relying upon the said affidavit and the chart producedby the respondentno.l withoutfurnishingcopy thereofto the appellantthereby deprivingthe appellant a chance to rebut the same in the manner narrated above. Mr. Kaul further argues that the appellant has also collected certain more information under Right to IhformationAct and that disclosedthat respondentno.2 was not even eligible to ^e considered. The avermentsmade in this behalfare made in the additionalaffidavit dated l®"' March,2011filed in this appeal.

¶9Mr. Vashisht, learned Senior Counsel appearing for respondent no.2 has sought to justify the order of the learned Single Judge on the ground that once mistake is detected by the respondent no.l/IOC itself and respondent no.l has conceded thereto which is apparent on the basis of records, the order of the Learned Single Judge should not be lb. interferedwith. He also argued that appellantwas rightly awarded zero marks for the "working capital".

¶10Mr. Kalra learned counsel appearingfor the respondentno.l/IOC argued in the similar lines.

¶11After consideringthe argumentof counsel on either side and going through the ^cords,we are ofthe opinionthatthe learnedSingleJudge shouldnot have allowedthe writ petition on the basis of additional affidavit filed by the IOC without giving an opportunityto the appellantto rebutthe same as itwas not disputedby the learnedcounsel for the respondentno.l that copy ofthis additionalaffidavitdated 18th November,2011 was not even suppliedto the appellantor its counsel and non supply of the copy and giving a chance to the appellantto rebut the averments made therein has definitely prejudicedthe appellant. t\2. Even otherwise,the facts disclosed above would clearly demonstratethat the respondentshad appointedan ExpertCommitteewhichhad consideredand evaluatedthe applicationsof various candidateson differentparameters. If there was some mistakein the exercise done by the Committee,the deponentwho is the Chief Manager could not have rectifiedthosepurportedmistakesby himselfandthe proper coursewas to remitthe case back to the Selection Committee for this purpose. In these circumstances, we are of the opinion that instead of allowing the writ petition,the learned Single should have ]1-. f remitted the case back to the Selection committee for proper valuation of the marks and to see whether there was any mistake committed or not.

¶13On this ground, we set aside the order passed by the learned Single Judge and remit the case back to the Selection Committee. It would be open to the IOC/respondent no.l to point out the mistake to the Selection Committee. It will also be open to the Selection Committee to consider the representations of both the appellant as well as respondentno.2. On the basis of the recommendationsof the Selection Committee,after aoing necessary exercise, the competent authority shall take a decision as to who would be entitled for appoint as DCA for Sloan District, Himachal Pradesh. At that stage, the competent authority shall also decide as to whether the respondent no.2 was eligible for consideration or not. Needless to mention, the fresh exercise is to be undertaken on the basis of information supplied as on the date of considering the application only. The requisite exercise shall be completed within six weeks from the date of receipt of this order.

¶14Copy of this order be supplied dasti to the learned counsel for the IOC on making an application. . SIKRI) JUDGE (SIDDHARTH MRIDUL) JUDGE SEPTEMBER 19,2011/skb r erf Pn /y. J \ * IN THE HIGH COURT OF DELHI AT NEW DELHI + BK RAMAN&CO Appellant Through; Mr.NeerajKishanKaul, Senior Advocate with Mr.Arindam Mukherjee, Advocate Versus INDIANOIL CORPORATIONLTD &ANR Respondent Through; Mr.M.M.Kalraand Mr.KunalKalra, Advocatesfor RespondentNo.l Mr.Abhijat and Ms.Fareha Ahmad Khan, Advocatesfor Respondent No.2 CORAM: HON'BLE THE ACTING CHIEF JUSTICE HON'BLEMR. JUSTICERAJIVSAHAIENDLAW ORDER %

30.01.2012 CM 1848/2012(by appellantfor stayofdecisiondated25.1.2012ofIOC) This applicationin a disposed of appeal is not maintainable,more particularly,when RespondentNo.l has in terms of order disposingofthe appealtakenadecision. Ifthe applicantis aggrieved,the sameconstitutesa fresh cause of action and the applicant/appellantcan take remedy thereagainst. The applicationis dismissedwith libertyas aforesaid. On request,it is clarifiedthat it will be open to the respondentno.2 also to challengethe said decision of the Indian Oil Corporation. CM 1221/2012 (by Respondent No.2) This applicationis listedfor hearingon lO"' February,2012. SinceIndianOil Corporationhas alreadytakena decision, this application has become infructuous and learned counsel for the applicant seeks leave to withdraw this application. Applicationis dismissedaswithdrawnaccordingly. The date alreadyfixedfor lO"'February,2012 standscancelled. 'Order dasti under the signature of the Court Master. JANUARY 30, 2012 nt ACTING CHIEF JUSTICE RAJIV/SAHAI ENDLAW, J

n * IN THE HIGH COURT OF DELHI AT NEW DELHI + LPA 877 OF 2010 % Judsment Delivered On: 19.9.2011 B.K. RAMAN & CO. ... APPELLANT Through: Mr. N.K. Kaul, Sr. Advocate with Mr. Arindam Mukherjee, Ms. Gargi Tulli, Mr. A. Verma and Mr. Karan, Advocates. VERSUS INDIAN OIL CORPORATION & ANR. .. RESPONDENTS I Through: Mr. AbhinavVashisht, ^ Sr. AdvocatewithMr. Abhijay,Ms. FarenaA. IGian, Advocates for R-2. Mr. MM Kalra, Advocate with Mr. Kunal Kalra, Advocate for R-1. CORAM HON'BLE MR. JUSTICE A.K. SIKRI HON'BLE MR. JUSTICE SIDDHARTH MRIDUL 1. Whether Reporters of Local newspapers may be allowed to see the