@JUDGMENTTAG-ORDER
K. Venkataraman, J.@mdashThese writ petitions have been filed challenging the order of the first Respondent made in G.O. Ms. No. 208 Rural
Development and Panchayat Raj (SGS-I) Department dated 31.12.2007 and the consequential G.O. Ms. No. 88, Rural Development and
Panchayat Raj (SGS-I) Department dated 05.06.2008 so far it relates to the constitution of committee at the sole discretion of the second
Respondent for the purpose of selecting books to be supplied for Village Panchayat Libraries pursuant to the notification published by the second
Respondent in ""Daily Than-thi"" dated 20.08.2007 is concerned and to direct the Respondents to consider and select the publication submitted by
the Petitioners based upon the method for the libraries for Village Panchayats pursuant to the procedure notified by the first Respondent in G.O.
Ms. No. 97, Rural Development and Panchayat (SGS-2) dated 13.06.2007.
2. The short matrix of the matter as put forth by the Petitioners in these writ petitions are set out here under:
2.1. The Petitioners are publishers in various classes. The Government of Tamil Nadu, by G.O. Ms. No. 115, Rural Development and Panchayat
Raj Department dated 11.09.2006 introduced a scheme under the name and style of Anaithu Grama Anna Marumalarchi Thittam, (herein after
referred as the Scheme). Under the Scheme, the Government allotted funds for the development of the villagers and in addition to the existing
allocation of more than Rs. 320 Crores, a further sum of Rs. 90 Crores was allotted. The Scheme contemplates opening and maintenance of
reading room in every village panchayat. The said library / reading room could also accommodate indoor games such as chess, carom board, etc.
and necessary furniture could be purchased for implementation of the Scheme.
2.2. To ensure more effective implementation of the Scheme, the second Respondent herein submitted certain proposals to the Government which
were accepted and G.O. Ms. No. 97, Rural Development and Panchayat Raj Department dated 13.06.2007 came to be issued. Clause 10 of the
said Government Order envisages constitution of Development Level Committee of 16 members, under the Chairmanship of District Collector.
The District Librarian of each District, the Chief Educational Officer, Deputy Director of Medical Services, District Sports Officer were members
of the committee. Under Clause 12, tenders were called for, for implementing various schemes and appointed the Block Development Officer as
the tender inviting authority, upto Rs. 5,00,000/- and in respect of tenders over and above Rs. 5,00,000/-, the District Collector is empowered.
As per Clause 12 of the said Government Order, in respect of tenders for books, wooden furniture and sports materials, the District Collector of
the concerned District was appointed as the tender inviting authority upto the limit of Rs. 5,00,000/- and over and above Rs. 5,00,000/-, the
Director of Rural Development, the second Respondent herein.
2.3. While that being so, the second Respondent by a notification published in the ""Daily Thanthi"" dated 29.08.2007 called for expression of
interest for supply of Tamil and English books for Village panchayat Libraries under the said Scheme. In the meanwhile, the second Respondent
issued proceedings dated 07.10.2008 calling upon a chosen few to sign the agreement for supply of the books and it has been stated that the
agreement should be signed on or before 14.10.2008. Aggrieved by the arbitrary and unreasonable action of the second Respondent, the
Petitioners had approached this Court by filing these writ petitions, 3, The grounds of attack are that-
(i) Ignoring the procedure established by G.O. Ms. No. 97 dated 13.06.2007, the Respondents are adopting a different selection process, which
is arbitrary, unreasonable and without jurisdiction.
(ii) At the time when the second Respondent issued a paper publication dated 20.08.2007 inviting expression of interest for supply of Tamil and
English books for the said Scheme, they were made to believe that the list of books would be scrutinized by the committee constituted at the
District Level in terms of G.O. Ms. No. 97. However, the first Respondent issued an amendment to the said Government Order bypassing another
Government Order in G.O. Ms. No. 208 by introducing a new sub para 12 (a) and the consequential G.O. Ms. No. 88 dated 05,06.2008, which
has vested the power with the second Respondent. This Government Order changing/ altering the terms and conditions after issuance of the
notification in G.O. Ms,No,97 is without jurisdiction.
(iii) Such amendment amending the conditions for selection or the methodology cannot be done without notice to the Petitioners, who have already
submitted their applications pursuant to the notification dated 20.08.2007.
(iv) The power conferred on the second Respondent to constitute a committee to select the books in an unfettered discretion vested with one
authority giving room for various allegations of favourtism and nepotism.
(v) The impugned Government Order is also against the public interest vis-a-vis the object of the original Scheme. If the selection of books are to
be made at the sole discretion of the second Respondent either acting by himself or under the recommendation of the committee constituted by
him, the same would not serve the purpose since the Scheme was devised to ensure supply of books which are suited or required for each library
and panchayat District Level. It may result in dumping of books which are already available with them.
(vi) The State Level Committee constituted at the sole discretion of the second Respondent would not have absolute knowledge of the local
requirements and the availability of the books under the existing Scheme. Thus, it would defeat the object which is sought to be achieved by the
Scheme.
(vii) The impugned Government Orders are meant to help the major publishers / dealers and the small time publishers like the Petitioners who have
published very useful books would be totally eliminated. Thus, the procedure adopted for selection of the books would lack transparency.
(viii) The books were collected from the publishers in May, 2008 and by June, 2008, the entire thing has been finalised. Thus, without reading the
books, the committee has shortlisted the publishers and selected only favoured ones.
(ix) Out of 818 publishers, who have submitted their specimen copies of books, only 235 publishers were selected.
4. In W.P. Nos. 26536 to 26538 of 2008, apart from the grounds which have been taken in the other writ petitions, the following grounds have
been taken:
(a) The impugned amendment deviates from the procedure of harmonization of various other schemes such as ""Ayyan Thiruval-luvar Library"" and
other scheme. The books were selected by the five members committee without going into the aspect of availability of such books and the need for
additional books in the village libraries.
(b) The impugned Government Order has given unbridled power to the second Respondent to choose the members to the committee and the same
has been exercised by him in a whimsical manner. The strength of the committee is also insufficient and the competency of the members is also
questionable.
(c) The decision making process of the members of the selection committee is also deplorable. The members are busy bodies heading important
departments with vital administrative functions. The members did not read the books before making any recommendations, as is evident from the
minutes of meeting dated 21.02.2008 wherein it is stated that three times the budgeted value of the books were shortlisted.
5. Counter affidavit had been filed on behalf of the Respondents along with an application in M.P. No. 4 of 2008 for vacating the interim order,
wherein the following facts have been set out:
5.1. G.O. Ms. No. 97 Rural Development and Panchayat Raj Department dated 13.06.2007 designated the District Collector as the tender
inviting authority and later, the power was vested with the second authority by later Government Order dated 31.12.2007. Who should be the
tender inviting authority is purely an internal executive decision of the Government and it in no way affected the rights of any book publishers or
dealers.
5.2. The Government consciously took a decision to empower the Director of Rural Development and Panchayat Raj (herein after referred as
DRD) to call for expression of interest at the State Level for supply of books from the publishers and dealers instead of District Collectors as
originally envisaged in G.O. Ms. No. 97 dated 13.06.2007, because-
(i) The Collectors have multifarious duties and it would not be possible for them to involve themselves in the selection of books;
(ii) The District Collectors, who are in mofussil, may not be as well placed as DRD, who is stationed at Chennai who would be in a position to
rope in eminent academic / library experts such as Director of Public Libraries, Director of Tamil Development Department and Librarian of the
University of Madras to select the books meant for this Scheme.
(iii) There will be huge expenditure on advertisements and avoidable and wasteful paper work when each of the 30 District Collectors individually
issues tender advertisements and processes the bids.
(iv) When calling for tenders at the State Level, the DRD is better placed than the District Collectors in negotiating bulk discounts on the quoted
price in the purchase of library books.
(v) The books are selected at district level and each district may adopt different norms for selecting the authors, title and publishers of the books.
(vi) Even from the point of view of the publishers / dealers, it is more convenient for them to participate in one single tender at the State level
instead of participating in 30 District level tenders.
5.3. The advertisement published on 20.08.2007 had specifically mentioned that the DRD was calling for the expression of interest for supplying
books. The writ Petitioners knew very well even at the time of applying to the second Respondent that it was the DRD and not the District
Collectors who had called for the expression of interest and they did not choose to challenge the jurisdiction of the second Respondent to call for
tenders in the place of the District Collectors, but now they are challenging the same after a de-lay of nearly fourteen months only when they came
to know that none of their titles have been selected. Thus, there is laches on the part of the Petitioners and the writ petitions are liable to be
dismissed in limine.
5.4. The rights of the Petitioners or any other publishers have been altered in any manner by the fact that the DRD called for tender at the State
level instead of the District Collectors calling for the same at the District level.
5.5. The total of 1,039 publishers / dealers expressed their interest for supply of books to the Anaithu Grama Anna Marumalarchi Thittam Anaithu
Grama Anna Marumalarchi Thittam (AGAMT) Village Libraries in response to the advertisement dated 20.08.2007. They have been asked to
furnish particulars pertaining to their general standard and their capacity to deliver books in time if selected. Finally, 818 publishers / dealers
furnished their particulars and were initially shortlisted. They furnished the list of books along with the cost of books and discount offered by them.
5.6. The District Level Committee is no way connected with the process of inviting or finalizing tenders for the purchase of library books or other
components of AGAMT scheme as wrongly contended by the Petitioners. To state that powers were taken away by the subsequent amendment is
not at all the real case.
5.7. The books offered by 818 publishers / dealers were screened and analysed in detail by the members of the selection committee and a total of
3,335 books at a cost of Rs. 1.41 lakhs were initially shortlisted. Since this was nearly three times the permitted budget for the village library, the
selection committee once again went through short listing books and finally selected 858 books offered by 235 publishers / dealers and 548
authors to a total value of Rs. 53,715/- out of which 689 books are in Tamil, 169 books are in English. 148 books are meant for children, 114
books for the youth, 93 books are of reference category, 86 books are about great leaders, 185 books fall into fiction category, 219 books are of
non-fiction category and 13 books are on poetry. Thus, a sincere, fair objective careful and thorough exercise has been done through several
sittings of the selection committee spread across a time period of about six months.
Thus, the counter affidavit sought for the dismissal of the writ petitions.
6. Reply affidavit had been filed on behalf of the Petitioners in W.P. Nos. 24770 to 24777 of 2008, wherein the following facts have been set out:
6.1. A procedure established for the purpose of finalizing a tender cannot be altered after the tendering process has commenced. No material has
been placed before this Court to establish that there was an exigency warranting amendment of G.O. Ms. No. 97. In any event, such amendment
cannot be retrospective especially after the tendering process has commenced.
6.2. There is no delay or laches since the Petitioners have approached this Court well before the final decision was implemented.
6.3. When the tenders for the furniture, fixtures and fittings for the library are being done at the District level, the same principle ought to have been
adopted for the purchase of library books. A library under the Scheme is intended to cater the needs of the local public of a Panchayat. Therefore,
it is imperative that the facilities available in each Panchayat to be assessed the nature of facilities and books available in such libraries and such
other matters.
6.4. Without assessing these factors, the Respondents cannot resort to a state wide procurement of books. The laudable objective behind the
Scheme has been defeated by the impugned amendment. The alleged constitution of the selection committee by the second Respondent does not
serve the purpose of the Scheme. None of the members of the committee would be aware as to the individual requirement of each library. Their
personal qualification and position would not be relevant for the purpose of the present tender since the Government issued the Scheme with the
avowed object to impart education at the Panchayat level and at the same time to ensure that the new libraries work along with the existing
facilities.
6.5. If the District Level Committee cannot find time to select the books within the stipulated time, the State Level Committee having more
responsibilities than that of the District Level Committee will also not find time in selecting the books for the Village Libraries.
7. I have heard Mr. R. Gandhi, learned Senior Counsel appearing for the Petitioners in W.P. Nos, 24770 to 24777 of 2008, Mr. J. Ravikumar,
learned Counsel appearing for the Petitioners in W.P. Nos. 26536 to 26538 of 2008 and Mr. P.S. Raman, learned Additional Advocate General
appearing for the Respondents. Their arguments centered around the pleadings.
8. Contentions raised on behalf of the Petitioners:
8.1. The main contention of the learned Senior Counsel / learned Counsel appearing for the Petitioners is that once a procedure had been
prescribed in G.O. Ms. No. 97 Rural Development and Panchayat Raj Department dated 13.06.2007, the further notification issued in respect of
mode of purchase in selection of the books to the Scheme amounts to variation and the same cannot be done without notice to the Petitioners,
which is violative of the principles of natural justice. The District Collector was empowered to select books by constituting a committee of 16
members, who could be the competent persons to select books. While so, employing the Director of Rural Development (DRD) by himself or by
constituting a committee on his own would defeat the very purpose of the Scheme. Further, it is contended that to favour certain individuals, the
selection process has been changed. Further it is contended that the notification should have been made after amendment empowering the Director
of Rural Development to select the books. Collection of books could be done only by a person, who knows about the wants of the villagers. The
District Collector would be knowing how much amount to be spent to each village.
8.2. The learned Counsel appearing for the Petitioners in W.P. Nos. 26536 to 26538 of 2008 would further contend that the object should be
from the ground level and not from the higher level. The object is sought to be achieved only through the ground level. Further, the subsequent
Government Order in G.O. Ms. No. 208 Rural Development and Panchayat Raj Department dated 31.12.2007 could only be prospective and
not retrospective. It is also not known whether the five member committee followed the objective laid down in G.O. Ms. No. 97 dated
13.06.2007. There is nothing to indicate that the guidelines given in G.O. Ms. No. 97 are followed or given a go-by. The decision making process
of the committee without having books on their hand vitiates the entire selection.
9. Contentions raised on behalf of the respondents:
9.1. On the other hand, learned Additional Advocate General appearing for the Respondents would contend that changing of the authority for
selection of books would no way affect the rights of the publishers of the books. In fact, tender has been called for only by the second
Respondent. The Petitioners who were keeping quiet for more than fourteen months, when they came to know of the fact that they have not been
selected, have rushed to this Court by filing the present writ petitions. [Thus, it is a clear case of laches on the part of the Petitioners. The second
Respondent had been authorised to select the books formed by a committee, which has taken all efforts in selecting the books, which cannot be
under any stretch of imagination could be said to favour few individuals. The object of the subsequent amendment empowering the second
Respondent to select the books along with the committee has been clearly enumerated in the counter affidavit, which deserves appreciation. The
Petitioners who have participated in the tender knowing well that the second Respondent has called for the tender, cannot be heard to say so after
fourteen months that too after they have not been selected, which is totally unacceptable.
10. About the Scheme:
10.1. The Government of Tamil Nadu seems to have launched a Scheme viz., Anaithu Grama Anna Marumalarchi Thittam (AGAMT), 100% a
State Government funded scheme from the year 2006-07 onwards with the aim to mobilize resources in the Village Panchayats and to improve its
physical and social infrastructure facilities over a period of five years i.e., till 2010-2011. Pursuant to the same, it has been ordered in G.O. Ms.
No. 115 Rural Development and Panchayat Raj Department dated 11.09.2006 to set up village libraries in l/5th of the Village Panchayats every
year starting from 2006-07. These Village Libraries will be under the control and run by the Village Panchayats themselves. The Rural
Development and panchayat Raj Department seems to have taken up the responsibility of extending the library movement to all Village panchayats
in the State.
10.2. For the effective implementation of the Scheme, the second Respondent seems to have submitted certain proposals to the Government which
were accepted by the Government and G.O. Ms. No. 97 Rural Development and Panchayat Raj Department (SGS-2) dated 13.06.2007 came to
be issued. As per Clause 10 of the said Government Order, Development Level committee of 16 members under the Chairmanship of District
Collector has been formed. The Government, later thought it fit to empower the Director of Rural Development to call for expression of interest at
the State Level for supply of books from the publishers and the dealers for AGAMT libraries instead of District Collectors as originally envisaged
in G.O. Ms. No. 97 Rural Development and Panchayat Raj Department (SGS-2) dated 13.06.2007, for the reasons enumerated in the counter
affidavit, by G.O. Ms. No. 208 Rural Development and Panchayat Raj Department dated 31.12.2007 and the consequential G.O. Ms. No. 88,
Rural Development and Panchayat Raj Department dated 05.06.2008.
11. Reasonings:
11.1. The rights of the writ Petitioners or any other publishers have not been altered in any manner since the Director of Rural Development called
for tender at the State Level instead of District Collectors calling for the same at the District Level. As per G.O. Ms. No. 208 dated 31.12.2007
empowering the Director of Rural Development to constitute a committee of eminent personalities in this field to select the books, a selection
committee seems to have been constituted by proceedings dated 21.10.2008 of the second Respondent whose members are set out here under:
(i) Director of Public Libraries.
(ii) Director of Tamil Development Department.
(iii) Librarian, University of Mandras.
(iv) Director of Rural Development and Panchayat Raj (Convener of the Committee) (v) Additional Director of Rural Development and Panchayat
Raj (Schemes).
It is stated at the end of the Government that those persons have got immense knowledge of libraries and books and the Rural literacy movement
and they are well versed in both Tamil and English and possess immense knowledge and experience of the type of the books needed for a village
library / rural clientele. When such a statement had been made at the end of the Government, the same cannot be doubted by this Court on
assumption or presumption of the Petitioners. No inference can be drawn by this Court on mere suspicion raised on the side of the Petitioners. This
Court cannot say that the District Collector and the 16 officials alone are competent to select the books and not the Director of Rural Development
and the committee appointed by him. It is not within the purview of this Court to say so.
11.2. It has also to be seen that advertisement calling for expression of interest for supply of books to AGAMT village libraries was published in
The New Indian Express"" and ''Dinathanthi"" dated 20.08.2007 in the name of the Director of Rural Development. The Petitioners have not
chosen to challenge the jurisdiction of the second Respondent to call for the tender in the place of the District Collector from August, 2007 when
tender had been called for by him, till the date when they came to know that none of their titles have been selected for AGAMT village libraries.
The Petitioners have chosen to challenge the action of the Government in empowering the Director of Rural Development to invite tenders at the
State level instead of the District Collector only during August, 2008, after a period of fourteen months.
11.3. Mr. R. Gandhi, learned Senior Counsel appearing for the Petitioners would rely on the decision reported in Reliance Energy Limited and
Another Vs. Maharashtra State Road Development Corporation Ltd. and Others, , and submitted that even in contractual matters, this Court can
interfere if it fails to satisfy the test of reasonableness. He emphasised more on paragraphs 36 and 37 of the said judgment, which are reproduced
here under:
36. We find merit in this civil appeal. Standards applied by courts in judicial review must be justified by constitutional principles which govern the
proper exercise of public power in a democracy. Article 14 of the Constitution embodies the principle of ""non-discrimination"". However, it is not a
free-standing provision. It has to be read in conjunction with rights conferred by other articles like Article 21 of the Constitution. The said Article
21 refers to ""right to life"". It includes ""opportunity"". In our view, as held in the latest judgment of the Constitution Bench of nine Judges in I.R.
Coelho v. State of T.N., Articles 21/14 are the heart of the chapter on fundamental rights. They cover various aspects of life. ""Level playing field
is an important concept while construing Article 19(l)(g) of the Constitution. It is this doctrine which is invoked by REL/HDEC in the present case.
When Article 19(l)(g) confers fundamental right to carry on business to a company, it is entitled to invoke the said doctrine of ""level playing field"".
We may clarify that this doctrine is, however, subject to public interest. In the world of globalisation, competition is an important factor to be kept
in mind. The doctrine of ""level playing field"" is an important doctrine which is embodied in Article 19(l)(g) of the Constitution. This is because the
said doctrine provides space within which equally placed competitors are allowed to bid so as to sub serve the larger public interest.
Globalisation"", in essence, is liberalisation of trade. To-day India has dismantled licence raj. The economic reforms introduced after 1992 have
brought in the concept of ""globalisation"". Decisions or acts which result in unequal and discriminatory treatment, would violate the doctrine of ""level
playing field"" embodied in Article 19(l)(g). Time has come, therefore, to say that Article 14 which refers to the principle of ""equality"" should not be
read as a stand alone item but it should be read in conjunction with Article 21 which embodies several aspects of life. There is one more aspect
which needs to be mentioned in the matter of implementation of the aforestated doctrine of ""level playing field"". According to Lord Goldsmith,
commitment to the ""rule of law"" is the heart of parliamentary democracy. One of the important elements of the ""rule of law"" is legal certainty. Article
14 applies to government policies and if the policy or act of the Government, even in contractual matters, fails to satisfy the test of
reasonableness"", then such an act or decision would be unconstitutional.
37. In Union of India v. International Trading Co. the Division Bench of this Court speaking through Pasayat, J. had held: (SCC p. 445, paras 14-
15)
14. It is trite law that Article 14 of the Constitution applies also to matters of governmental policy and if the policy or any action of the
Government, even in contractual matters, fails to satisfy the test of reasonableness, it would be unconstitutional.
15. While the discretion to change the policy in exercise of the executive power, when not trammelled by any statute or rule is wide enough, what
is imperative and implicit in terms of Article 14 is that a change in policy must be made fairly and should not give the impression that it was so done
arbitrarily or by any ulterior criteria. The wide sweep of Article 14 and the requirement of every State action qualifying for its validity on this
touchstone irrespective of the field of activity of the State is an accepted tenet. The basic requirement of Article 14 is fairness in action by the State,
and non-arbitrariness in essence and substance is the heartbeat of fair play. Actions are amenable, in the panorama of judicial review only to the
extent that the State must act validly for a discernible reason, not whimsically for any ulterior purpose. The meaning and true import and concept of
arbitrariness is more easily visualised than precisely defined. A question whether the impugned action is arbitrary or not is to be ultimately answered
on the facts and circumstances of a given case. A basic and obvious test to apply in such cases is to see whether there is any discernible principle
emerging from the impugned action and if so, does it really satisfy the test of reasonableness.
11.4. The Hon''ble Apex Court no doubt has held that Article 14 of the Constitution of India would apply to Government policies and if the policy
or Act of the Government even in contractual matters fails to satisfy the test of reasonableness, it should be treated as unconstitutional. The other
decision that has been relied on in the said judgment is reported in Union of India (UOI) and Another Vs. International Trading Co. and Another, ,
wherein it has been held, that the question whether the impugned action is arbitrary or not is to be ultimately answered on the facts and
circumstances of the given case and Article 14 of the Constitution of India applies to matters of Governmental Policy and if the policy or any action
of the Government, even in contractual matters, fails to satisfy the test of reasonableness, it would be unconstitutional.
11.5. Thus, according to Their Lordships of the Hon''ble Apex Court, even in contractual matters, if the policy of the Government or the act of the
Government fails to satisfy the reasonableness, then such act or decision would be unconstitutional and certainly Article 14 could be applied. But,
even in those judgments, it has been clearly held that the question whether the impugned action is arbitrary or not, is to be ultimately answered on
the facts and circumstances of the given case. Further, it has been held that every State action must be informed by reason and it follows that an act
uninformed by reason is per se arbitrary. In the given case on hand, reasons have been given why the selection process has been changed from one
authority to other authority. They are -
(a) The Collectors have multifarious duties and it was felt that they would not be able to personally involve themselves in the selection of books for
the AGAMT Libraries which is a laborious and time consuming process.
(b) The District Collectors, who are in the mofussil, may not be as well placed as the DRD who is stationed at Chennai and is therefore in a
position to rope in eminent academic / library experts such as the Director of Public Libraries, the Director of Tamil Development Department and
Librarian of the University of Madras to select the books meant for this Scheme. District Collectors of remote and backward districts like
Dharmapuri, Krishnagiri, Ariyalur, Perambalur, Ramanathapu-ram and Theni, among others, do not have adequate access to eminent academic /
library experts at the District level to assist them in the selection of library books.
(c) There will be huge expenditure on advertisements and avoidable and wasteful paper work when each of the 30 District Collectors individually
issues tender advertisements and processes the bids received in parallel. A subsequent experience showed, there were 1039 bidders in response
to the State level tender and it took the second Respondent nearly a year to select the required number of books. If the tenders had been called for
at the District level, it is quite likely that almost all of these 1039 bidders would have participated in the tender in each of the 30 Districts and the
District Collectors, who are already overworked, would have taken much longer.
(d) When calling for tenders at the State level, the DRD is better placed than the District Collectors in negotiating bulk discounts on the quoted
price in the purchase of library books because of the larger number of copies purchased. District Collectors, who would have individually
purchased far fewer numbers of copies, would riot have been able to negotiate the kind of bulk discounts of 25% to 50% on the quoted price that
the second Respondent was able to extract from the publishers. The quantum of savings to the exchequer because of bargaining at State level was
a major factor in amending the G.O.
(e) If the books are selected at district level, each district may adopt different norms for selecting the authors, titles and publishers of the books. It
was also felt that different District Collectors may arrive at different costs for the same set of library books if they called for the tenders individually.
This could have resulted in audit objections if there was wide variation in the price of the same book across districts.
(f) Even from the point of view of the publishers / dealers, it is more convenient for them to participate in one single tender at the State level instead
of participating in 30 District level tenders; offering sample copies of books to 30 Collectorates; and participating in price negotiations in 30
different places.
It is, thus the wisdom of the authorities to choose the authority to decide a particular act which cannot be called in question before this Court unless
and otherwise it is established that it is arbitrary, unreasonable and discriminatory.
11.6. The other judgment that has been relied on by the learned Senior Counsel appearing for the Petitioners is reported in M/s. Monarch
Infrastructure (P) Ltd. Vs. Commissioner, Ulhasnagar Municipal Corporation and Others, . In the said judgment, no doubt it has been held that
Court can interfere where the action of the Government is arbitrary or discriminatory. However, facts of that particular case is that one of the
conditions of eligibility was deleted after the expiry of the time limit for submission of the tenders, but before opening the tender. The contract was
awarded in favour of person, who at the time of tender did not satisfy the condition which was later deleted. In those circumstances, it has been
held by the Hon''ble Apex court in the said judgment that the Court interference is called for, where Government action is arbitrary and
discriminatory especially when one of the conditions of eligibility was deleted after the expiry of the time limit for submission of tender but before
opening thereof and the contract has been awarded in favour of the tenderer, who at the time of submission of tender did not satisfy the condition,
which was later deleted. But in the case on hand, though the authority to decide the selection of books had been changed from District Collector to
DRD, after the tender notification, it has not materially altered tender process. The Petitioners in fact have taken part in the further proceedings
pursuant to the tender notification and they approached this Court only after their rejection. Hence, the said decision may not be of any use to the
Petitioners.
11.7. Mr. J. Ravikumar, learned Counsel appearing for the Petitioners in W.P. Nos. 26536 to 26538 of 2008 had relied oh the decision reported
in Mohd. Riazul Usman Gani and Others Vs. District and Sessions Judge, Nagpur and Others, . That is the case where for the recruitment to the
post of peons in the District and Sessions Court in the State of Maharashtra, relevant rules prescribing pass in the examination of Standard IV in
the regional language was the requisite minimum qualification. In view of the large number of applicants and apprehending that the applicants
possessing higher qualification might not take proper interest to the said post, the Advisory Committee decided to call for interview only those
candidates who possessed the requisite minimum qualification and not those with higher qualification. Such a criterion was held contrary to the
relevant rules and irrational. In the said judgment, it has been specifically held that laying of criteria to shortlist a number of candidates is permissible
provided the same is reasonable and not arbitrary having regard to the post concerned for which recruitment is made. Here, the position is entirely
different. The Petitioners in spite change of authority for selection of the books had participated in the further proceedings and their publication
could not be considered by the second Respondent. Hence, the said judgment also may not be of any use to the Petitioners.
11.8. The Government has taken a policy decision to entrust the power of purchase of books under the said Scheme to the Director of Rural
Development instead of the District Collector. When the Government thought it fit to introduce a different authority giving reasons thereof, this
Court cannot sit over the decision taken by the Government. It is the prerogative right of the Government to entrust the responsibility for
implementing a Scheme to an authority or change the authority, which is well within the purview of the Government which cannot be tested by this
Court. That is not the position in the present case on hand.
12. Learned Additional Advocate General appearing for the Respondents would draw my attention to the judgment reported in Chandra Prakash
Tiwari and Others Vs. Shakuntala Shukla and Others, and contended that the Petitioners having participated in the tender process, after coming to
know that the selection process would be done by the second Respondent and the committee to be appointed by him, cannot, after non-selection,
be heard to say that the power granted to the second Respondent and the committee to be appointed by him is not valid since as per the original
Government Order, only the District Collector and the other Committee have to select books. It will be useful to refer paragraphs 32 to 34 of the
said judgment, which are reproduced here under:
32. In conclusion, this Court recorded that the issue of estoppel by conduct can only be said to be available in the event of there being a precise
and unambiguous representation and it is on that score a further question arises as to whether there was any unequivocal assurance prompting the
assured to alter his position or status ? the situation, however, presently does not warrant such a conclusion and we are thus not in a position to
lend concurrence to the contention of Dr Dhavan pertaining to the doctrine of estoppel by conduct. It is to be noticed at this juncture that while the
doctrine of estoppel by conduct may not have any application but that does not bar a contention as regards the right to challenge an appointment
upon due participation at the interview/selection. It is a remedy which stands barred and it is in this perspective in Om Prakash Shukla v. Akhilesh
Kumar Shukla a three-Judge Bench of this Court laid down in no uncertain terms that when a candidate appears at the examination without protest
and subsequently found to be not successful in the examination, question of entertaining a petition challenging the said examination would not arise.
33. Subsequently, the decision in Om Prakash20 stands followed by a later decision of this Court in Madan Lal v. State of J&K wherein this
Court stated as below: (SCC p. 493, paras 9-10)
9. Before dealing with this contention, we must keep in view the salient fact that the petitioners as well as the contesting successful candidates being
Respondents concerned herein, were all found eligible in the light of marks obtained in the written test, to be eligible to be called for oral interview.
Up to this stage there is no dispute between the parties. The Petitioners also appeared at the oral interview conducted by the members concerned
of the Commission who interviewed the Petitioners as well as the contesting Respondents concerned. Thus the Petitioners took a chance to get
themselves selected at the said oral interview. Only because they did not find themselves to have emerged successful as a result of their combined
performance both at written test and oral interview, they have filed this petition. It is now well settled that if a candidate takes a calculated chance
and appears at the interview, then, only because the result of the interview is not palatable to him, he cannot turn round and subsequently contend
that the process of interview was unfair or the Selection Committee was not properly constituted. In the case of Om Prakash Shukla v. Akhilesh
Kumar Shukla it has been clearly laid down by a Bench of three learned Judges of this Court that when the Petitioner appeared at the examination
without protest and when he found that he would not succeed in examination he filed a petition challenging the said examination, the High Court
should not have granted any relief to such a Petitioner.
10. Therefore, the result of the interview test on merits cannot be successfully challenged by a candidate who takes a chance to get selected at the
said interview and who ultimately finds himself to be unsuccessful. It is also to be kept in view that in this petition we cannot sit as a court of appeal
and try to reassess the relative merits of the candidates concerned who had been assessed at the oral interview nor can the Petitioners successfully
urge before us that they were given less marks though their performance was better. It is for the Interview Committee which amongst others
consisted of a sitting High Court Judge to judge the relative merits of the candidates who were orally inter-viewed, in the light of the guidelines laid
down by the relevant rules governing such interviews. Therefore, the assessment on merits as made by such an expert committee cannot be
brought in challenge only on the ground that the assessment was not proper or justified as that would be the function of an appellate body and we
are certainly not acting as a court of appeal over the assessment made by such an expert committee.
34. There is thus no doubt that while question of any estoppel by conduct would not arise in the contextual facts but the law seems to be well
settled that in the event a candidate appears at the interview and participates therein, only because the result of the interview is not ""palatable"" to
him, he cannot turn round and subsequently contend that the process of interview was unfair or there was some lacuna in the process.
Even in the case on hand, the Petitioners even after the subsequent G.O. Ms. No. 208 dated 31.12.2007, participated in the further proceedings
with the second Respondent and has approached this Court only when they came to know that none of their titles have been selected.
13. Yet another thing that has to be considered is that the tender notification has been issued by the second Respondent, wherein it has been
clearly stated that the second Respondent has got power to change the terms and conditions of the tender and he has got a right to reject any
books for consideration without assigning any reasons. Thus, the Petitioners ought to have aware of the fact that the entire process has been set in
motion by the second Respondent.
14. Thus, summing up the above discussions made, the irresistible conclusion that could be arrived at in these writ petitions are
(i) The policy decision of the Government in changing the authority from the District Collector to the Director of Rural Development for selection of
books with certain objects cannot be questioned before this Court by filing these writ petitions on mere assumption and presumption.
(ii) The change of authority from the District Collector to the Director of Rural Development subsequent to the issuance of the tender notification,
would not vitiate the tender process since the same has not altered the rights of the Petitioners, the publishers of the books.
(iii) The Petitioners who have participated in the tender process knowing fully well that the tender has been called for by Director of Rural
Development, cannot now be heard to say that the selection should have been made by the District Collector and the committee as per G.O. Ms.
No. 97 Rural Development and Panchayat Raj Department dated 13.06.2007 and that the selection should not have been done by the second
Respondent or the committee appointed by him.
(iv) G.O. Ms. No. 208 Rural Development and Panchayat Raj Department dated 31.12.2007 has been issued to amend Clause 12 of G.O. Ms.
No. 97 dated 13.06.2007. The Petitioners after G.O. Ms. No. 208 have participated in the tender and only after knowing about their non-
selection, had filed the present writ petitions only during October, 2008 questioning the issuance of the amendment in G.O. Ms. No. 208 Rural
Development and Panchayat Raj Department dated 31.12.2007. Thus, there is laches on the part of the Petitioners in not approaching this Court
within a reasonable time.
(v) When the Government has taken a policy decision to change the authority for selection of the books, it cannot be heard to say that the
Government cannot change the selection process by introducing a new authority to do so instead of the earlier authority. Thus, the prerogative
rights of the Government to entrust the responsibility for implementing a Scheme to any authority or change the authority for the reasons set out,
which is well within the purview of the Government, cannot be tested by this Court unless and otherwise the same is arbitrary and unreasonable.
(vi) Reasons have been given for change of authority which shows that a reasonable approach had been made by the Government for the reasons
set out thereon for change of the authority for selection of the books.
(vii) No order could be passed in these writ petitions on mere assumption and presumption of the Petitioners, which has no legal basis.
15. Considering the above facts and circumstances, I am not inclined to interfere with the order of the first Respondent made in G.O. Ms. No. 208
Rural Development and Panchayat Raj Department (SGS-I) dated 31.12.2007 and the consequential order in G.O. Ms. No. 88 Rural
Development and Panchayat Raj Department (SGS-I) dated 05.06.2008 and to grant the other relief''s that have been sought for by the
Petitioners.
16. In fine, all these writ petitions stand dismissed. However, there is no order as to costs. Consequently, connected miscellaneous petitions are
closed.
