- (1.) THE present petition has been filed by the petitioner under Article 226 of the Constitution of India for the prayers: "(A) Your Lordships may be pleased to admit and allow the present petition. (B) Your Lordships may be pleased to issue a writ of mandamus or any other appropriate writ, order or direction in the nature of mandamus and thereby quash and set aside the orders passed by the respondent Board dated 19.1.2013 and 12.4.2013 and further be pleased to direct the respondent Board to give the actual price of the diesel from the date of agreement dated 28.09.2012 to the petitioner and further be pleased to direct the respondent board to give the actual increase of the price of diesel from time to time as per the increase by the Central Government to the petitioner pursuant to the work agreement dated 28.09.2012. (C) Pending the hearing and final disposal of the present petition, Your Lordships may be pleased to stay the implementation, execution and operation of the orders passed by the respondent Board dated 19.1.2013 and 12.4.2013 and further be pleased to direct the respondent Board to give the actual price of the diesel from the date of agreement dated 28.09.2012 to the petitioner and further be pleased to direct the respondent board to give the actual increase of the price of diesel from time to time as per the increase by the Central Government to the petitioner pursuant to the work agreement dated 28.09.2012. (D) ..."
(2.) THE facts of the case briefly stated are that the Respondent Board had issued a tender for providing Closed Body Passenger Vehicle with driver on hire basis and invited the applications for tender, produced at Annexure -A. The petitioner also submitted the tender with the earnest money, and the Respondent Bord hired the services of the petitioner as the lowest bidder in most of the categories of vehicles, which were specified. However, the actual agreement was not executed within the period specified, and the petitioner was called by the Respondent Board for execution of the agreement vide letter dated 16.8.2012, and the agreement was executed on 28.9.2012, i.e. after a period of 7 months from floating of the tender. In the meantime, the price of the diesel was increased w.e.f. 14.9.2012. It is the case of the petitioner that though the petitioner has executed the agreement on 28.9.2012 after the increase of price, he would be entitled to get difference in the fuel price as provided in the agreement or the tender conditions. The Respondent Board has declined to give such an increase in the price of diesel on the ground that there is no increase after the execution of the agreement, which has lead to the filing of the present petition.
(3.) HEARD learned learned Senior Counsel Shri Y.N.Oza appearing with learned Advocate Shri Apurva R. Kapadia for the petitioner and learned Counsel Shri A.D.Oza for the Respondent. Learned Senior Counsel Shri Y.N.Oza referred to the papers and submitted that, as stated in detail, the tender was required to be opened, and one of the condition of the tender provide for the price increase as a result of the price of petrol / diesel. Learned Senior Counsel Shri Oza pointedly referred to Clause 22 to emphasize his submission, which has been specifically stipulated and provided that, if there is any increase or variation in the price of petrol / diesel, then in that circumstances, the rates could be re -considered and the decision of the Chairman of the Board shall be final. Learned Senior Counsel Shri Oza however submitted that the Respondent Board has deliberately misinterpreted this clause with reference to the original date and the actual date of execution of agreement to deny such benefit under the price escalation clause. He emphasized that though it is provided in the agreement, which has been produced at Annexure -D, that the date on which the work order is given, shall be considered, and if there is no revision or increase in the price of petrol / diesel, the same may be considered. He submitted that the Respondent Board has been referring to Clause 16 of this agreement. Learned Senior Counsel Shri Oza however submitted that when the condition in the tender agreement provide for such corresponding increase in the price due to hike in the price of petrol / diesel, the idea or the purpose is to see that the tenderer may not put to disadvantage due to fluctuation in the price of the fuel. He submitted that such a price of petrol / diesel are increasing, and therefore, in order to take care of the same, a proportionate revision is provided, then only the tenderer can give the proper rates. He therefore submitted that the interpretation put forward by the Board to deny such benefit is arbitrary and illegal. In support of his submission, learned Senior counsel Shri Oza has referred to and relied upon the judgment of the Hon'ble Apex Court reported in Akhil Bhartiya Upbhokta Congress v. State of Madhya Pradesh and Ors, 2011 5 SCC 29. He pointedly referred to the observations made in paragraph 50: "50. For achieving the goals of justice and equality set out in the Preamble, the State and its agencies / instrumentalities have to function through political entities and officers / officials at different levels. The laws enacted by Parliament and the State Legislatures bestow upon them powers for effective implementation of the laws enacted for creation of an egalitarian society. The exercise of power by political entities and officers / officials for providing different kinds of services and benefits to the people always has an element of discretion, which is required to be used in larger public interest and for public good. In principle, no exception can be taken to the use of discretion by the political functionaries and officers of the State and / or its agencies / instrumentalities provided that this is done in a rational and judicious manner without any discrimination against anyone. In our constitutional structure, no functionary of the State or public authority has an absolute or unfettered discretion. The very idea of unfettered discretion is totally incompatible with the doctrine of equality enshrined in the Constitution and is an antithesis to the concept of the rule of law.";