REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
1
2 CIVIL APPEAL NO. 7599 OF 2012
3 (Arising out of SLP (C) No. 13499 of 2011)
Sajeesh Babu K. .... Appellant (s)
Versus
N.K. Santhosh & Ors. .... Respondent(s)
J U D G M E N T
P. Sathasivam, J.
1) Leave granted.
2) This appeal is filed against the final judgment and order dated
06.04.2011 passed by the High Court of Kerala at Ernakulam in Writ Appeal
No. 464 of 2011 whereby the Division Bench of the High Court dismissed the
appeal filed by the appellant herein.
3) Brief Facts:
a) On 27.12.2007, the Bharat Petroleum Corporation Ltd., a Public Sector
Oil Company engaged in refining of crude oil and marketing of various
petroleum products (in short “the Corporation”)-Respondent No. 2 herein
invited applications for grant of LPG distributorship for Edavanna,
Malappuram District, Kerala, a distributorship reserved for Scheduled Caste
applicants. In total, 41 persons including the appellant and respondent
Nos. 1 and 3 herein applied for the grant of licence for the same.
b) The Corporation, after conducting interviews and evaluating the
merits and demerits of the candidates as per the procedure prescribed under
the guidelines for the selection of Bharatgas Distributors, selected the
appellant herein for grant of licence of LPG distributorship and issued him
a Letter of Intent dated 25.06.2009.
c) Challenging the genuineness of the experience certificates produced
by the appellant herein, Shri N.K. Santhosh-Respondent No.1 herein filed a
petition being W.P.(C) No. 7622 of 2010 before the High Court of Kerala.
Learned single Judge of the High Court, by judgment dated 16.03.2011,
allowed the petition and quashed the distributorship granted to the
appellant herein.
d) Against the said judgment, the appellant herein filed a Writ Appeal
being No. 464 of 2011 before the High Court. The Division Bench of the
High Court, by impugned judgment dated 06.04.2011, dismissed the said
appeal.
e) Aggrieved by the said judgment, the appellant has filed this appeal
by way of special leave before this Court.
4) Heard Mr. V. Giri, learned senior counsel for the appellant and Mr.
Siddhartha Chowdhury, learned counsel for respondent No.1 and Mr. Vikram
Ganguly, learned counsel for respondent No.2-Corporation. None appeared
for respondent No.3.
5) It is the claim of the appellant that the Corporation, after
conducting interviews and evaluating the merits and demerits of the
candidates as per the procedure prescribed under the guidelines for
selection of Bharatgas Distributors, selected him for grant of licence of
LPG distributorship for Edavanna, Malappuram District, Kerala. It is also
pointed out that as per the tabulation sheet, the appellant had scored
highest marks than the other candidates with reference to qualification,
experience, age, business ability and personality and was placed in the
first position whereas Respondent No.3 herein was placed in the second and
respondent No.1 herein was placed in the third position.
6) Respondent No.1 herein, who is working in the Kerala State
Electricity Board as Assistant Engineer, challenged the selection of the
appellant herein before the High Court of Kerala by filing a petition being
W.P.(C) No. 7622 of 2010 alleging the genuineness of the experience
certificates (Exh. Nos. P2 and P3) produced by him and awarding of more
marks on the basis of the same. He further claimed that the Selection
Committee ought to have preferred his application for LPG distributorship.
Learned single Judge allowed the said writ petition holding that the
experience certificates submitted by the appellant appear to be totally
unacceptable as the appellant while studying M.Tech could not have been
possible to work as part-time Marketing Manager and an Insurance
Consultant. On this ground, the learned single Judge quashed the grant of
licence of LPG distributorship to the appellant and directed the
Corporation to re-assess his marks afresh excluding the marks for the
experience certificates. The very same decision was affirmed by the
Division Bench of the High Court.
7) In order to ascertain the correctness of the decision of the
Selection Committee, the order of the learned single Judge setting aside
the same and remitting it for fresh consideration as affirmed by the
Division Bench, it is desirable to refer the relevant guidelines for
selection of Bharatgas Distributors. It is pointed out by the Corporation,
in their counter affidavit ,before the High Court as well as in this Court
that as per Clause 14 of the guidelines, the LPG distributor will be
selected on the basis of evaluation of all eligible applicants on the
following parameters:
a) Capability to provide infrastructure – 35 marks
b) Capability to provide finance – 35 marks
c) Educational qualifications – 15 marks
d) Age – 4 marks
e) Experience – 4 marks
f) Business ability/acumen – 5 marks
g) Personality – 2 marks
Total 100 marks
It is also stated in their counter affidavit that the selection of the
appellant was in accordance with the guidelines and norms governing the
matter and there is no extraneous consideration in selecting him as an
empanelled candidate. It is further explained that the evaluation on the
parameters ‘a’ to ‘d’ will be done on the basis of the information given in
the application and the evaluation on parameters ‘e’ to ‘g’ will be done on
the basis of the interview.
8) As per the guidelines, the maximum marks for experience in direct
sale/home delivered products (including LPG distributorship), other
petroleum products and for any other trade are 4, 3 and 2 respectively. It
has been further elaborated in the guidelines that marks for the parameter
‘Experience’ are awarded based on the information furnished in the
application for experience of running or working in an establishment for
minimum one year and that too on the quality rather than amount of
experience. It is the case of the Corporation that the quality of
experience will be judged based on the response to the questions relating
to experience in direct sale, home delivered products, trade of petroleum
products, hospitality/service industry etc. by the candidates in the
interview. In the counter affidavit, it is also specifically stated that
the appellant has been awarded with 4 marks for the parameter ‘Experience’
by the Selection Committee comprising of 3 senior officials of the
Corporation who are well qualified and experienced in assessing the
required experience for an LPG distributor. It is further explained that 4
marks were awarded to the appellant strictly in accordance with the
guidelines for the distributorship of LPG and based on the response to the
questions relating to the above in the interview.
9) Before proceeding further, it is relevant to note the decision by the
learned single Judge with reference to Exh. Nos. P2 and P3 and the ultimate
selection by the Committee. The learned single Judge, in paragraph 4 of
his judgment, arrived at the following conclusion:
“…………..First of all, in Exts. P2 and P3 there is no mention that the
second respondent was working part-time. Secondly, ordinarily, it
would be very difficult for a M.Tech student to work part-time as a
Marketing Manager of a gas distributor and an Insurance consultant.
Thirdly, as per Ext.P2 certificate the second respondent was working
as Marketing Manager in Malappuram from December 2005 to March 2007.
Ext. P3 certificate certifies that the second respondent worked as an
Insurance consultant with Bajaj Allianz Life Insurance Company Ltd.
since August 2006. The period of Exts. P2 and P3 overlaps.
Respondents 1 and 2 have not been able to give a satisfactory
explanation for the same. Lastly, and more importantly as proved by
Ext. P4, the second respondent was a M.Tech student of CUSAT which is
at Ernakulam. The fairly tale that a student studying for M.Tech in
Cochin was working part-time as Marketing Manager and Insurance
Consultant at Malappuram is totally unbelievable…………….”
When this conclusion was challenged by the appellant herein before a
Division Bench of the High Court, the Division Bench without much
discussion merely affirmed the same. In view of the decision by the
learned single Judge and the Division Bench, it is worthwhile to refer the
contents of Exh. Nos. P2 and P3 and to see whether it would be possible for
the appellant to have this experience while studying M.Tech., the
assessment and the decision of the Selection Committee.
10) We have already quoted Clause 14 which deals with norms for
evaluating the candidates. Before proceeding further, it is relevant to
note that as per the guidelines, in case of LPG distributorship reserved
for SC category, there will be no evaluation on land and financial
capabilities as mentioned in sub-clauses (a) and (b) of Clause 14. It is
not in dispute that the present distributorship has been reserved for
Scheduled Caste applicants. In that event, the Selection Committee has to
concentrate other clauses, namely, clauses (c) to (g) and select a suitable
candidate based on their assessment.
11) The Selection Committee relied on the Experience Certificate issued
by M/s Sree Agencies, ELF Gas Distributor, Malappuram, Kerala, which reads
as under:
“TO WHOMSOEVER IT MAY CONCERN
This is to certify that Mr. Sajeesh Babu, Kavalappara, S/o Balan
residing at Kavalapara house, Padinhattumuri P.O. Malappuram Dist. Was
worked in this office as marketing Manager from December 2005 to March
2007. He performed very well and his conduct was also good.
Place : Malappuram Stamp Yours faithfully
Date : 05.04.2007 sd/-
Manager”
12) The other certificate relied on by the Selection Committee is the
Experience Certificate issued by Bajaj Allianz Life Insurance Company
Limited which reads as under:
“TO WHOMSOEVER IT MAY CONCERN
This is to certify that Mr. Sajeesh Babu, Kavalappara, S/o Balan
K. residing at Kavalappra (House), Padinhattumuri (Post), Malappuram
(Dist.) is being worked with us since August 2006 as an Insurance
Consultant at our branch office Malappuram. His conduct during this
period has been good.
OFFICAL SEAL
Sd/-
Senior Branch Manager
Bajaj Allianz
Up Hill, Malappuram”
13) The Degree Certificate issued by Cochin University of Science and
Technology, Faculty of Technology dated 23.12.2008 shows that the appellant
has been awarded the degree of Master of Technology in Software Engineering
and the appellant qualified with First class distinction at the examination
held in June, 2008.
14) The experience certificates issued by M/s Sree Agencies and M/s Bajaj
Allianz Life Insurance Company Ltd. were evaluated by the Selection
Committee. It has already been stated in the counter affidavit filed by
the Corporation that the quality of experience will be judged on the basis
of the response to the questions related to experience in direct sale, home
delivered products, hospitality/service industry etc. by the candidates in
the interview. It has also been informed to this Court that the appellant
has been awarded 4 marks for experience by the Selection Committee
consisting of 3 senior officials of the Company who are well qualified and
experienced in assessing the required experience for LPG distributorship.
It is further asserted that after the interview, field verification had
been done by the Corporation to verify the genuineness and veracity of the
documents submitted by the candidate as contemplated in clause 16 of the
guidelines. It is further stated that the field verification had been
conducted by a team comprising of 2 officers of the Corporation and that
the team had met the Proprietor as well as Manager of M/s Sree Agencies,
who confirmed that Mr. Sajeesh Babu K. (appellant herein) worked with them
on a part-time basis. It is the stand of the Corporation that since the
persons who have issued the experience certificate admitted its issuance,
the Corporation treats the same as genuine. They also reiterated and
verified that the certificates of experience have no relevance in granting
marks under the parameter ‘experience’ as the same has been awarded on the
basis of the response to the questions related to experience in the
relevant field. The marks awarded by the Selection Committee are as
follows:-
|Name |Edu. |Age |Experience |Business |Personality |Total |
| |Quali. | | |ability | |Marks |
|Santhosh |15 |2 |3 |3.17 |1.83 |25.00 |
|N.K. | | | | | | |
|Sajeesh |15 |2 |4 |3.83 |2.00 |26.83 |
|Babu K. | | | | | | |
15) From the above discussion, it is clear that in terms of the
guidelines, the Selection Committee consisting of 3 experienced persons
assessed the ability of the candidates with reference to the answers for
their questions and awarded marks. In the absence of any allegation as to
mala fide action on the part of the selectors or disqualification etc.,
interference by the High Court exercising extraordinary jurisdiction under
Article 226 of the Constitution of India is not warranted.
16) To strengthen the above proposition, it is useful to refer a decision
of the Constitution Bench of this Court in The University of Mysore etc.
vs. C.D. Govinda Rao & Anr., AIR 1965 SC 491. The issue therein relates to
one Anniah Gowda to show cause as to under what authority he was holding
the post of a Research Reader in English in the Central College, Bangalore.
After considering the pleadings of both the parties, consultation by an
expert and the stand of the University, this Court set aside the order of
the High Court and dismissed the writ petition filed by the respondent
therein. While considering the said issue, the following conclusion of the
Constitution Bench as to the opinions expressed by the experts and
interference by the Court is relevant. It is seen that in paragraph 13 of
the judgment, the Constitution Bench has noted that the High Court has
criticized the report made by the Board and rejecting the criticism of the
High Court in such academic matters, held as under:
“…….We are unable to see the point of criticism of the High Court in
such academic matters. Boards of Appointments are nominated by the
Universities and when recommendations made by them and the
appointments following on them, are challenged before courts, normally
the courts should be slow to interfere with the opinions expressed by
the experts. There is no allegation about mala fides against the
experts who constituted the present Board; and so, we think it would
normally be wise and safe for the courts to leave the decisions of
academic matters to experts who are more familiar with the problems
they face than the courts generally can be………….”
17) In a recent decision of this Court in Basavaiah (Dr.) vs. Dr. H.L.
Ramesh & Ors., (2010) 8 SCC 372 wherein similar issue, namely,
recommendations of Expert Committee and evaluation as well as judicial
review under Art. 226 of the Constitution was considered by this Court. A
short question involved in that case was that whether the appellants
therein (Dr. Basavaiah and Dr. Manjunath) were qualified to be appointed as
Readers in Sericulture? One Dr. H.L. Ramesh, respondent in both the
appeals therein challenged the appointments of both the appellants on the
ground that they were not qualified for the post of Readers in Sericulture.
Learned single Judge, on 11.10.2004, after examining the pleadings and
scrutinizing the arguments of the parties dismissed the writ petition filed
by Dr. H.L. Ramesh – respondent in W.P. No. 24300 of 1999. Dr. H.L.
Ramesh, aggrieved by the said judgment, preferred a writ appeal before the
Division Bench of the High Court. The writ appeal was allowed and the
appointments of the appellants therein were set aside leaving it open to
the University of Mysore to make fresh selection in accordance with the
law. The appellants, aggrieved by the said judgment, filed special leave
petitions before this Court. In the High Court as well as in this Court,
the University filed affidavit stating that the Expert Committee consisting
of highly qualified 5 distinguished experts evaluated the qualification,
experience and the published works of the appellants and found them
eligible and suitable. In such circumstance, this Court observed in
paragraph Nos. 20 & 21 as under:
“20. It is abundantly clear from the affidavit filed by the
University that the Expert Committee had carefully examined and
scrutinised the qualification, experience and published work of the
appellants before selecting them for the posts of Readers in
Sericulture. In our considered opinion, the Division Bench was not
justified in sitting in appeal over the unanimous recommendations of
the Expert Committee consisting of five experts. The Expert Committee
had in fact scrutinised the merits and demerits of each candidate
including qualification and the equivalent published work and its
recommendations were sent to the University for appointment which were
accepted by the University.
21. It is the settled legal position that the courts have to show
deference and consideration to the recommendation of an Expert
Committee consisting of distinguished experts in the field. In the
instant case, the experts had evaluated the qualification, experience
and published work of the appellants and thereafter recommendations
for their appointments were made. The Division Bench of the High Court
ought not to have sat as an appellate court on the recommendations
made by the country's leading experts in the field of Sericulture.”
18) It is clear that in a matter of appointment/selection by an Expert
Committee/Board consisting of qualified persons in the particular field,
normally, the Courts should be slow to interfere with the opinions
expressed by the experts, unless there is any allegation of mala fides
against the experts who had constituted the Selection Committee.
Admittedly, in the case on hand, there is no allegation of mala fides
against the 3 experts in the Selection Committee. In such circumstances,
we are of the view that it would normally be wise and safe for the courts
to leave the decision of selection of this nature to the experts who are
more familiar with the technicalities/nature of the work. In the case on
hand, the Expert Committee evaluated the experience certificates produced
by the appellant herein, interviewed him by putting specific questions as
to direct sale, home delivered products, hospitality/service industry etc.
and awarded marks. In such circumstances, we hold that the High Court
ought not to have sat as an appellate Court on the recommendations made by
the Expert Committee.
19) In addition to the same, it is also asserted by the Corporation and
informed to the High Court as well as to this Court that in order to
ascertain the genuineness of the contents of experience certificates Exh.
Nos. P2 and P3, the Corporation deputed responsible persons for
verification and, in fact, they met the issuing authority and satisfied
with the correctness of their statement. In view of this aspect, we are
satisfied that the learned single Judge as well as the Division Bench
committed an error in interfering with the decision of the Selection
Committee. We have already noted that there is no allegation of mala fides
against the members of the Selection Committee. Even on equity, the
appellant is an unemployed M.Tech post-Graduate and the contesting
respondent No.1 is working as an Assistant Engineer in the Kerala State
Electricity Board, in other words, he is fully employed on the date of the
selection of LPG distributorship. Looking at from any angle, the High
Court was not justified in upsetting the decision of the Selection
Committee, particularly, in the absence of any mala fides against them and
there is no warrant for direction to re-assess the marks of the appellant
afresh by excluding the marks for certificates (Exh. Nos. P2 and P3),
particularly, in the light of the detailed explanation offered by the
Corporation about the mode of selection.
20) In the light of the above discussion, we set aside the judgment of
the learned single Judge of the High Court dated 16.03.2011 in W.P.(C) No.
7622 of 2010 as well as the judgment of the Division Bench dated 06.04.2011
in W.A. No. 464 of 2011 and confirm the decision of the Selection
Committee.
21) The civil appeal is allowed. There shall be no order as to costs.
...…………….…………………………J.
(P. SATHASIVAM)
..…....…………………………………J.
(RANJAN GOGOI)
NEW DELHI;
OCTOBER 19, 2012.
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