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Smt. Simmy Khanna v. Union Of India Thru' Secy. Petroleum & Others - WRIT - C No. 55040 of 2003  RD-AH 526 (15 December 2003)
Civil Misc. Writ Petition No. 55040 of 2003
Smt. Simmy Khanna ......... Petitioner
Union of India & Ors. ......... Respondents
Hon. Dr. B.S. Chauhan, J.
Hon. R.C. Pandey, J.
(By Hon. Dr. B.S. Chauhan, J.)
This writ petition has been filed for quashing the allotment of dealership made in favour of respondent no.4, which has been allotted to him in pursuance of the advertisement dated 24.08.2000 and to allot the same to the petitioner.
Facts and circumstances giving rise to this case are that the respondent no.2, Indian Oil Corporation Ltd., hereinafter called the "Corporation" issued an advertisement on 24.08.2000 seeking applications for allotment of LPG dealership for various cities. Petitioner applied for the said distributorship at Bareilly. He was asked to face the selection Board on 27.11.2001. However, as the selection Board was abolished, petitioner was again issued notice dated 22.09.2003 to appear before the newly established selection Board on 09.10.2003 for interview. The result was declared on 11.11.2003 putting the respondent no.4 at serial no.1 and petitioner at serial no.2 in merit.. Hence this petition.
Shri Rajiv Gupta, learned counsel appearing for the petitioner has submitted that the petitioner was more qualified than respondent no.4. The selection had been made in an arbitrary and whimsical manner adopting a mala fide attitude towards the petitioner, therefore, the selection is liable to be quashed and distributorship should be allotted to the petitioner.
On the other hand, Shri Rajiv Joshi, learned counsel appearing for the respondent-Corporation who has filed caveat, had submitted that the petition cannot be entertained for the reason that the order of allotment made in favour of respondent no.4 is not a part of record. Even otherwise, the allegations of mala fide have been made without impleading any person by name, therefore, such allegations cannot be taken into consideration. The judicial review of such an order is not permissible against the decision as it is limited only to the extent of process of decision making. Therefore, it is liable to be dismissed at the threshold.
We have considered the rival submissions made by the learned counsel for the parties and perused the record.
Admittedly, the allotment order of distributorship in favour of respondent no.4 is not a part of record.
In Surender Singh Vs. Central Government, AIR 1986 SC 2166, the Hon'ble Supreme Court has held that the High Court cannot pass an order in such a case in absence of the impugned order being on record. The Apex Court observed as under:-
"In absence of order under challenge, the High Court could not quash the same. Normally whenever an order of the Government or some authority is impugned before the High Court under Article 226 of the Constitution, copy of the order must be produced before it. In absence of impugned order it would not be possible to assign the reason which have impelled the authority to pass the order. It is therefore, improper to quash an order which is not produced before the High Court in a proceeding under Article 226 of the Constitution."
The petition is liable to be rejected only on the above ground.
More so, allegations of mala fide have been made without impleading any person by name, therefore, we uphold the submissions made by learned counsel for the respondent-Corporation that those allegations cannot be taken. (Vide J.M. Banawalikar Vs. Municipal Corporation, Delhi & Ors., AIR 1996 SC 326; State of Bihar & Ors. Vs. P.P. Sharma, 1992 (Suppl) 1 SCC 222; I.K. Mishra Vs. Union of India & Ors., (1997) 6 SCC 228; and All India State Bank Officers' Federation & Ors. Vs. Union of India & Ors., JT 1996 (8) SC 550).
In Federation of Officers Association Vs. Union of India & Ors., 2003 AIR SCW 1764, the Apex Court has held that the allegation of mala fide has to be specifically made and the person against whom such allegations are made has to be impleaded and in his absence such allegations cannot be taken into consideration.
We also find no force in the submissions made by learned counsel for the petitioner that the allotment should have been made in favour of the petitioner being more qualified. The Advertisement provided that the applicant should be matriculate and preference would be given to the Cooperative Society in comparison of any unemployed person and a graduate applicant would be preferred against the other applicants as preference can be given to a person provided the other things/conditions are equal.
Even if the Statue provides for preference in favour of a particular class of candidates, it is to be accorded only and only if the merits of the candidates are equal in other respects. (Vide Govt. of Andhra Pradesh Vs. P. Dilip Kumar & Anr. (1993) 2 SCC; 310; Executive Officer Vs. T. Venkateshwarlu & Anr., (1996) 8 SCC 253;and Secretary, A.P. Public Service Commission Vs. Y.V.V.R. Srinivasulu & Ors., (2003) 5 SCC 341).
In the instant case, petitioner has not laid down any factual foundation to show as how he could be equal to respondent no.4 and could claim preference merely being graduate. Thus, the submissions made in this behalf are preposterous.
The Court can review to correct errors of law or fundamental procedural requirements which may lead to manifest injustice and can interfere with the impugned order in "exceptional circumstances". (Vide Union of India Vs. Parma Nanda, AIR 1989 SC 1185; State Bank of India Vs. Samarendra Kishore Endow, (1994) 2 SCC 537; State of Punjab Vs. Surjit Singh, (1996) 8 SCC 350; State of U.P. Vs. Ashok Kumar Singh, AIR 1996 SC 736; State of U.P. Vs. Nand Kishore Shukla & Anr., AIR 1996 SC 1561; Transport Commissioner, Madras Vs. Thiru ARK Moorthy, (1995) 1 SCC 332; Rae Bareli Kshetriya Gramin Bank Vs. Bhola Nath Singh & ors., AIR 1997 SC 1908; State of Punjab Vs. Bakshish Singh, AIR 1997 SC 2696; Yoginath D. Bagde Vs. State of Maharashtra & Anr., (1999) 7 SCC 739; Union of India Vs. Lt. Gen. R.S. Kadyan & ors., AIR 2000 SC 2513; Food Corporation of India Vs. A. Prahalada Rao & Anr., AIR 2001 SC 51; Kumaon Mandal Vikas Nigam Ltd. Vs. Girja Shankar Pant & ors., AIR 2001 SC 24; N.R. Nair Vs. Union of India & ors., AIR 2001 SC 2337; and Union of India Vs. Ashutosh Kumar Srivastava, (2002) 1SCC 188).
In State of Tamil Nadu Vs. S. Subramaniam, AIR 1996 SC 1232, the Apex Court held that as the High Court has power of judicial review of the administrative action on complaint relating to service conditions of the employee, it is within the exclusive domain of the disciplinary authority to consider the evidence on record and to record findings whether the charge stood proved or not. It is equally settled law that technical rules of evidence have no application in the disciplinary proceedings and the authority is to consider the material on record. In judicial review, the Court "has no power to trench on the jurisdiction to appreciate the evidence and to arrive at its own conclusion. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. It is meant to ensure that the delinquent receives fair treatment and not to ensure that the conclusion which the authority reaches, is necessarily correct in the view of the Court or the Tribunal. When the conclusion reached by the authority is based on evidence, the Court or the Tribunal is devoid of power to re-appreciate the evidence and would come to its own conclusion on the proved charges. The only consideration the Court/ Tribunal has, in its judicial review, is to consider whether the conclusion is based on the evidence on record that support the finding, or whether the conclusion is based on no evidence."
In the General Court Martial & ors. Vs. Col. Aniltej Singh Dhaliwal, AIR 1998 SC 983, the Hon'ble Supreme Court has held that the High Court, in its limited power of exercise of judicial review, may interfere by appreciating the evidence only if there is an omission on the part of the Enquiry Officer or the Disciplinary Authority to consider the relevant evidence. Similarly, in Rajendra Kumar Kindra Vs. Delhi Administration, (1984) 4 SCC 635, the Court observed as under:-
"It is equally well settled that where a quasi-judicial Tribunal or arbitrator records findings based on no legal evidence and the findings are either his ipse dixit or based on conjectures and surmises, the enquiry suffers from the additional infirmity of non-application of mind and stands vitiated... Viewed from either angle, the conclusions of the Enquiry Officer....are wholly perverse and hence unsustainable. The High Court, in our opinion, was clearly in error in declining to examine the contention that the findings were perverse on the short, specious and wholly untenable ground that the matter depends on appraisal of evidence. Between appraisal of evidence and total lack of evidence there is an appreciable difference which could never be lost sight of and the High Court ought not to have short-circuited the writ petition."
In State of U.P. Vs. Nand Kishore Shukla (supra), the Hon'ble Supreme Court observed that the Court is not an appellate authority and, therefore, the Court will be loath to interfere with that part of the order
In G. Ganayutham (supra), the Apex has considered the entire law on the subject and compared the Indian Law with English, Australian and Canadian Laws and held that in case the court comes to the conclusion that the punishment awarded is disproportionate or the Disciplinary Authority was irrational in imposing the punishment, the punishment cannot be quashed as even then the matter has to be remitted back to the appropriate authority for reconsideration and it is only in very rare cases that the Court might- to shorten the litigation- think of substituting its own view as to the quantum of punishment in place of punishment awarded by Competent Authority. In Aniltej Singh Dhaliwal (supra); and U.P.S.R.T.C. & ors. Vs. A.K. Parul, (1998) 9 SCC 416, the Apex Court has taken the same view.
In Council of Civil Services Union Versus Minister for Civil Service, 1984 (3) All E.R. 935, it was held that anything disproportionate should be discarded. It was further observed that judicial review is permissible only on limited grounds, namely, illegality, irrationality, procedural impropriety and proportionality. The concept of irrationality has been explained as a decision which is so outrageous in its deviation of logic or accepted moral stand that no sensible person who had applied his mind to the question to be decided would have arrived at. Procedural impropriety has been explained as failure to observe basic rules of natural justice or failure to act with procedural fairness towards the person who would be affected by the decision. The requirement of procedural propriety depends upon the subject matter of the decision, the executive functions of the decision-maker and the particular circumstances in which the decision came to made.
Similar view has been reiterated in Kuldeep Singh Vs. Commissioner of Police, AIR1999 SC 677. In Apparel Export Promotion Council Vs. A.K. Chopra, AIR 1999 SC 625, the Hon'ble Supreme Court has observed that if the finding of fact is based on appreciation of evidence, the Writ Court should not normally interfere with those findings unless the findings are shown to be wholly perverse or legally untenable. The adequacy or inadequacy of evidence is not permitted to be canvassed before the Court as the High Court cannot sit as appellate forum for the factual finding recorded during the disciplinary proceedings for the reason that it exercises a very limited power of judicial review and in exercise of such power, the High Court should not substitute its own conclusion with regard to the guilt or delinquency, for that of the departmental authority.
Similar view has been reiterated by the Hon'ble Supreme Court in District Judge, Bahraich & Anr. Vs. Munijar Prasad, JT 2001 (8) SC 643; Union of India & ors. Vs. Ashutosh Kumar Srivastava, (supra); and Haryana Financial Corporation & ors. Vs. Jagdamba Oil & ors., (2002) 3 SCC 496; Balla Ram (Dead) by LRs. & Ors. Vs. Phoola (Dead) by LRs. & Ors., (2003) 1 SCC 378; and 430.
In K. Vinod Kumar Vs. S. Palanisamy & Ors., JT 2003 (8) SC 100, the Hon'ble Apex Court considered the issue of grant of LPG distributorship and held as under:-
"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 markets expressing his own assessment of the merits of the applicants. The markets given by the three were then totaled 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.
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The law is settled that over proceedings and 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."
Thus, in view of the above, law can be summerised that judicial review is permissible only against the decision making process and not against the decision itself. In the instant case, petitioner had not filed the order of allotment made in favour of respondent no.4, therefore, the petition cannot be entertained for want of the said order. Allegations of mala fide have been made without impleading any person by name, thus, not worth consideration. Petitioner claims preference over respondent no.4 merely being graduate without laying any factual foundation, therefore, this issue is also not worth taking note of for want of proper pleadings, as judicial review is not permissible against such a decision. The petition is liable to be dismissed.
Thus, the petition fails and is accordingly dismissed.
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