Soumen Sen, J. - (1.) The flip-flop of the Oil Company and its unsatisfactory stand in relation to allotment of the LPG Distributorship has triggered litigations that were avoidable. In the process the customers of the locality were deprived of the benefit of having a LPG distributor at Chanditala, District-Hooghly for the last six years. A notice inviting tender for LPG distributorship was published at 'The Telegraph' dated 10th September, 2013 for Chanditala, District-Hooghly. The advertisement mentions the location as Chanditala, District-Hooghly.
(2.) The appellant and the private respondent had responded to the said notice in respect of Serial No.14 which relates to LPG Distributorship at Chanditala, District-Hooghly in unreserved category. By communication dated 8th January, 2015, the writ petitioner was informed that two candidates were found eligible for draw of selection of LPG Distributorship. By a further communication also dated 8th January, 2015, nine candidates were found to be ineligible, the appellant, was one of them. The appellant did not challenge the communication dated 8th January, 2015. As natural consequence of the earlier communication dated 8th January, 2015, it is only natural and expected that a draw would take place between the eligible candidate and thereafter necessary steps are to be taken for allotting LPG Distributorship to the successful candidate. Surprisingly for almost three and half months, the Oil Company did nothing. The Oil Company contended that Ministry of Petroleum and Natural Gas, Government of India by a letter dated 20th April, 2015 addressed to the Oil Companies have requested the said companies to keep in abeyance draws/redraws for selection of regular distributorship location advertised prior to March, 2015. If the larger public interest were considered for deferment in the first place, we find no reason for the Oil Company to take almost one and half years to prepare a list of eligible candidates and then again waited three and half months for the draw of lots. However, this communication of Ministry of Petroleum and Natural Gas, Government of India dated 20th April, 2015 has been shown as an excuse for not going ahead with the advertisement in time. The Oil Company appears to have contended before the learned Single Judge as well as before us that Ministry of Petroleum and Natural Gas, Government of India by a communication dated 25th April, 2016 addressed to the Oil Companies informed them that for the locations which were due for draw/redraw, the Oil Companies should conduct scrutiny of application forms with the Guide Lines of March, 2015 pertaining to (a) ownership of land (b) approach road (c) Funds in bank and (d) lease period reckoning. It is not in dispute that the advertisement was prior to March, 2015. The eligibility criteria of the candidates have to be decided on the basis of the existing norms and/or guidelines of 2013 and not on the basis of guideline of March, 2015. In between there was no guideline. It was on the basis of the then existing norms, the appellant was found ineligible. This time, the Oil Company with reference to the communication dated 25th February, 2016 prepared another list which included two more names on the purported ground that on the basis of March, 2015 guidelines, the appellant becomes eligible. The eligibility criteria in respect of the two new persons, one of whom is the appellant, was on the basis of Clause 7.2(X) the guidelines of 2015 by which the advertised location was stated as "within the municipal/town/ village limits of the place which is mentioned under the column to location in the advertisement". However, in the 2013 Guideline it only refers to advertised location or locality and the Oil Company on the basis of such guideline found the writ petition eligible along with another person.
(3.) It is not in dispute that there exists a separate and distinct Mouza, namely, Mouza Chanditala. The documents furnished by the writ petitioner in the writ application in support of his candidature also shows that the writ petitioner owes the land in question in Mouza Chanditala as opposed to the land document furnished by the appellant to show his eligibility. In course of argument, the Oil Company has contended that the land of the appellant would also come within the purview of location Chanditala, Hooghly as in district Hooghly, there are two Blocks, namely, Chanditala-I and Chanditala-II and since the land for the showroom as proposed by the appellant is situated at Mouza - Kalachara, Chanditala, the appellant is also eligible to participate in the tender. This was an improvement by way of oral submission as it is not in dispute that at the time when the list for eligible candidates was prepared, namely, on 8th January, 2015, the Oil Company was under no misapprehension or misconception that for the purpose of eligibility "Mouza-Chanditala" is the location which also conforms to the definition of Gram and Panchayat under the West Bengal Panchayat Act, 1973. However, for some unknown reason, the Oil Company did not proceed with the candidature of the short-listed candidates for draw. In the meantime, the new guideline has come into effect and the Oil Company in order to accommodate, the appellant has now interpreted, applied the said guideline to include the appellant in the list of eligible candidates for the draw. There cannot be any doubt that if the March, 2015 Guideline is to be applied in the instant case, the Oil Company would be required to make a fresh advertisement as persons who would otherwise eligible in view of extended definition of location in the advertisement would be prevented from participating in the tender. Although, Mr. Tilak Kumar Bose, learned Senior Counsel appearing on behalf of the appellant has relied upon Section 42(2) of the Petroleum and Natural Gas Regulatory Board Act, 2006 (in short "PNGRB Act, 2006) in the context of saying that Central Government has the power to issue directions in the public interest for securing equitable distribution and ensuring adequate availability to justify that the change guideline would only benefit the public need but looking differently it is clear that the Oil Company did not discharge its function as perceived under Section 42(2) of the said Act by keeping quiet on the selection process for almost one and half years and then for a further period of three and half months. If the public interest is paramount then the Oil Company ought to have on the basis of the selection of the candidates made on 8th January, 2015 immediately proceed for the draw and complete the process. If the Oil Companies were of the opinion that the guideline of March, 2015 would be applicable and a larger participation is required then it was open for them to recall the earlier advertisement as by that time more than two years have passed and issued a fresh advertisement with clarity. We have noticed in many matters the advertisement as to location suffers from clarity. Mis-description or lack of clarity in the advertisement has resulted in large number of litigations and we are sure that the Oil Companies in future would be more cautious in describing the location with precision. It shall state clearly the municipal/town/village limits within which the candidates would be required to possess land or shop as the case may be in the advertisement itself. Mr. Bose has urged before us that the writ petitioner having participated in the fresh process could not be allowed to question and/or challenge the selection of the appellant. Mr. Bose, in this regard, has relied upon the decisions in G.J. Fernandez Vs. State of Karnataka and Ors. reported at (1990) 2 SCC 488 and D. Sarojakumari Vs. R. Helen Thilakon and Ors. reported at (2017) 9 SCC 478. Mr. Bose submits that the writ petitioner has knowingly participated in the subsequent selection process and now being unsuccessful in the draw cannot be heard to contend that the selection of the appellant was de hors the terms of the advertisement. In the impugned judgment, Justice Sinha has addressed this issue. His Lordship observed that the writ petitioner's case was that she was declared eligible candidate with one other for determining her fate on draw. Thereafter, other candidates, declared ineligible earlier, were made eligible to be included in the draw cannot be countenanced. It is this act of the Oil Company that has been challenged in the writ petition. His Lordship has further held that regarding draw and her participation, facts recorded would show that she was made known at the time of draw that other ineligible candidates would also be made to participate at the draw. Mr. Bose in this regard has referred to Clause 9.3 and Clause 9.6 of the 2013 Guideline and submits that in terms of the said clauses, the list of ineligible applicants and applicants eligible for draw of lot are made available on the notice board of the concerned office of the Oil Company as well as on the website of the Oil Company and, accordingly, the contention of the writ petitioner that he was not aware that the ineligible candidates would be allowed to participate at the draw should not be believed. If these contentions were correct and had come from the Oil Company with supporting documents we would have accepted the submissions of Mr. Bose. On the contrary, the Oil Company has failed to demonstrate that at the time of draw, the fact that six candidates who were initially found to be ineligible and now were made eligible on the basis of the March, 2015 Guideline and hence was allowed to participate at the draw was, in fact, communicated to the writ petitioner or these facts were brought to her notice. On such considerations, we are in agreement with the learned Single Judge that these decisions would not apply to the facts of this case. Even on looking from larger public perspective, a tender is floated with the idea of larger participation and once the Oil Companies have decided that they would follow March, 2015 Guideline, it was just and proper for the Oil Companies to recall the earlier tender and go for a fresh tender so that persons who would be otherwise ineligible would now have the benefit of the extended definition of location and could now participate at the said tender. This is also keeping in consonance with the object of Section 42(2) of the said Act, 2006. Before we depart, we only remind ourselves of the prophetic words in Ramana Dayaram Shetty Vs. International Airport Authority of India reported (1979) 3 SCC 489 that: "12. ....... It must, therefore, be taken to be the law that where the Government is dealing with the public, whether by way of giving jobs or entering into contracts or issuing quotas or licences or granting other forms of largesse, the Government cannot act arbitrarily at its sweet will and, like a private individual, deal with any person it pleases, but its action must be in conformity with standard or norms which is not arbitrary, irrational or irrelevant. The power or discretion of the Government in the matter of grant of largesse including award of jobs, contracts, quotas, licences, etc. must be confined and structured by rational, relevant and nondiscriminatory standard or norm and if the Government departs from such standard or norm in any particular case or cases, the action of the Government would be liable to be struck down, unless it can be shown by the Government that the departure was not arbitrary, but was based on some valid principle which in itself was not irrational, unreasonable or discriminatory. ....... 34. It is, therefore, obvious that both having regard to the constitutional mandate of Article 14 as also the judicially evolved rule of administrative law, respondent I was not entitled to act arbitrarily in accepting the tender of respondents 4, but was bound to conform to the standard or norm laid down in paragraph 1 of the notice inviting tenders which required that only a person running a registered IInd Class hotel or restaurant and having at least 5 years' experience as such should be eligible to tender....... ;