Hon''ble Chief Justice & T.S. Sivagnanam, J.@mdashThis writ appeal has been filed by the appellant challenging the order of the learned single Judge dated 5.9.2011 made in W.P. No. 15429 of 2010, whereby the learned Judge dismissed the writ petition filed by the appellant herein, finding no merit in the same.
2. The writ petition was filed for the issuance of a writ of certiorarified mandamus to call for the entire records of the respondents relating to the notice for appointment of LPG Distributors published in the English Daily ''The Hindu'' dated 15.6.2010, quash the same and consequently direct the respondents to adopt new directions issued by the Ministry of Petroleum and Natural Gas.
3. In the writ proceedings, the appellant herein contended that the selection for LPG Distributorship should be through lot system and not by following the procedure prescribed in the impugned notification. According to the appellant, the revised guidelines issued in the month of October, 2010 for the appointment of LPG Distributors should not be followed.
4. In the counter affidavit filed by respondents 5 and 6, it was clearly stated that the impugned notification will be given effect only from 1.10.2010 and it will not have any retrospective effect. According to them, the said notification does not contain any provision to nullify or invalidate the previous Dealership Selection Policy applicable as on date of the impugned notification. Even assuming that the new policy guidelines are applicable, then also the writ petitioner/appellant is ineligible to apply as he is not a graduate, and the said guidelines require Graduation as a minimum educational qualification to apply for dealership.
5. After considering the rival contentions on either side and after perusing the relevant records, the learned single Judge dismissed the writ petition observing that the respondents are bound to follow the procedure that was stated in the notification dated 15.6.2010 for appointment of LPG Dealership and that the revised guidelines could not be applied to the advertisements issued prior to the issuance of the revised guidelines. Aggrieved by the impugned order, the writ petitioner/appellant has preferred the present appeal.
6. It appears that an advertisement was issued on 15.6.2010 for selection of LPG Distributors for various locations in the State of Tamil Nadu and Puducherry. The modus operandi for the selection process and the evaluation criteria are as per the procedure laid down by the Ministry of Petroleum and Natural Gas. The same was also published in the advertisement, website and through brochures for the benefit of the applicants to understand the selection procedure. The Ministry of Petroleum and Natural Gas thereafter issued a directive to all the oil companies vide Ref.No. P-17011/7/2010/MKT dated 25.6.2010 conveying the revision in guidelines for the selection of regular LPG Distributorships. In the said communique, it has been clearly sated that the revised guidelines would apply to the selection of LPG distributorship for the marketing plan locations advertised henceforth, and in so far as locations for which advertisements have been issued prior to the issue of guidelines, the earlier procedure may continue to be followed. The case of the appellant is that the notification issued by the Ministry of Petroleum and Natural Gas on 25.6.2010 is not in contravention of the earlier notification dated 15.6.2010 and since the procedure for selection remains the same, the latter notification should, therefore, be followed.
7. Before we appreciate the contention of the appellant, we would like to refer to some of the decisions rendered by the Supreme Court with regard to the scope of judicial review in contractual matters.
8. In the case of
5. The Preamble to the Constitution envisages the securing of economic and social justice to all its citizens; accorded equality of status and of opportunity assuring the dignity of the individual. Article 39(b) postulates that the ownership and control of the material resources of the community are to be so distributed as to best subserve the common good. Clause (c) prevents concentration of wealth and means of production to the common detriment. Since the grant of dealership or distributorship of the petroleum products belongs to the Government largesse, the Government in its policy of granting the largesse have prescribed the eligibility criteria. One of the eligibility criteria is that one among the near relations or partners or associates in other words among a named group of persons alone should have dealership and there should not be any concentration by them in the distribution of its petroleum products through the dealership. The guidelines further intend to prevent frustration of the State policy by process of legal ingenuity or subterfuge. One of the criteria is relationship. The relationship criteria has been prescribed to see that the persons who already had one dealership should not apply so that the above objectives of the Constitution are achieved. In Part III, clause (b) of the relationship category, a person from among specified near relatives has been made ineligible to apply for another dealership to any of the nationalised oil companies. The petitioners/appellants dehors the guidelines have no independent right to have business or avocation in the distribution or production or ownership of one of the petroleum products. Production and distribution of the petroleum products are the exclusive monopoly of the State under Article 19(6) of the Constitution. As a part of its policy of the distribution of its largesse Government have prescribed the eligibility criteria to the persons to obtain dealership for distribution of petroleum products. The distribution of the largesse of the State is for the common good and to subserve the common good of as many persons as possible. The Government of India intended to group together certain near relations as a unit and one among that unit alone was made eligible to apply for and claim for grant of dealership. Further, economic and social justice as envisaged in the Preamble of the Constitution is sought to be achieved. Therefore, there is a reasonable nexus between the object and the prescription of the eligibility criteria envisaged in the guidelines. All those who satisfy the eligibility criteria alone are entitled to apply for the consideration of the grant of dealership. It is true that in case of physically handicapped persons, only three classes of persons were made ineligible. Physically handicapped persons have been treated as a class by themselves. Under these circumstances, any other person other than PH, cannot claim parity with PH persons. As far as partnership is concerned, if one of the persons either have a dealership or relations who were found to be eligible under the relationship criteria, and had the dealership, then clause 10 of the said guidelines gets attracted and such partnership also did not become eligible to apply for dealership/distributorship. The object of clause 10 appears to be that for those partners who either one among themselves or any of the relations of one of the partners had a dealership, the other partner or the specified relations also not be eligible to apply for grant of dealership individually or as a member of the partnership. Therefore, the guidelines are based on public policy to give effect to the constitutional creed of Part IV of the Indian Constitution.
9. In the case of
10. The principle is, therefore, well settled that the terms of the invitation to tender are not open to judicial scrutiny and the courts cannot whittle down the terms of the tender as they are in the realm of contract unless they are wholly arbitrary, discriminatory or actuated by malice. This being the position of law, settled by a catena of decisions of this Court, it is rather surprising that the learned Single Judge passed an interim direction on the very first day of admission hearing of the writ petition and allowed the appellants to deposit the earnest money by furnishing a bank guarantee or a bankers'' cheque till three days after the actual date of opening of the tender. The order of the learned Single Judge being wholly illegal, was, therefore, rightly set aside by the Division Bench.
8. In
52. We have no justifiable reason to take a view different from the High Court insofar as correctness of these reasons is concerned. The courts have repeatedly held that the government policy can be changed with changing circumstances and only on the ground of change, such policy will not be vitiated. The Government has a discretion to adopt a different policy or alter or change its policy calculated to serve public interest and make it more effective. Choice in the balancing of the pros and cons relevant to the change in policy lies with the authority. But like any discretion exercisable by the Government or public authority, change in policy must be in conformity with Wednesbury [Associated Provincial Picture Houses Ltd. Vs. Wednesbury Corporation., (1948) 1 KB 223 : (1947) 2 ALL ER 680 (CA)] reasonableness and free from arbitrariness, irrationality, bias and malice.
Their Lordships further observed thus :
64. It is true that the State or its tendering authority is bound to give effect to essential conditions of eligibility stated in a tender document and is not entitled to waive such conditions but that does not take away its administrative discretion to cancel the entire tender process in public interest provided such action is not actuated with ulterior motive or is otherwise not vitiated by any vice of arbitrariness or irrationality or in violation of some statutory provisions. It is always open to the State to give effect to new policy which it wished to pursue keeping in view ''overriding public interest'' and subject to principles of Wednesbury[Associated Provincial Picture Houses Ltd. Vs. Wednesbury Corporation., (1948) 1 KB 223 : (1947) 2 ALL ER 680 (CA)] reasonableness.
10. In the instant case, as noticed above, the guidelines issued by the respondents and the procedure to be followed in alloting distributorships of LPG are neither arbitrary or discriminatory, nor violative of Articles 14 and 16 of the Consitution of India. The learned single Judge has, therefore, rightly dismissed the writ petition. We do not find any merit in this writ appeal and it is accordingly dismissed. No costs. Consequently, the connected miscellaneous petition is also dismissed.
