Bombay High Court
Shahbaz Mumtaz Khan vs Indian Oil Corporation Ltd on 2 April, 2025
Author: M.S.Karnik
Bench: M.S.Karnik
2025:BHC-OS:5572-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO. 3836 OF 2024
Shahbaz Mumtaz Khan
Age : 34 years, Occ: Business
Residing at : Khan Manzil, 4 Star Family
Trust Compound, Marol Naka Chimatpada,
Andheri East, Mumbai - 400059. ... Petitioner
Versus
1. Indian Oil Corporation Ltd.
Company Registered under the Companies Act, 1956
Having its registered office at Indian Oil
Bhavan, G-9, All Yavar Jang Marg
Bandra (E), Mumbai 400051.
2. Divisional Retail Sales Head
1st Floor Sarjan Plaza 100
Dr. Annie Besant Road,
Worli, Mumbai - 400018
3. Ashok Sawant
Assistant Public Information Officer
& Deputy General Manager (LPG-OPS)
Indian Oil Corporation Limited
G-Block, Bandra Kurla Complex,
Bandra East, C-33, Avenue 3, Mumbai 400051.
4. Shri Anirban Ghosh
Appellate Authority & Executive Director &
State Head, Maharashtra State Office
Indian Oil Corporation Ltd. (Mktg Division)
Indian Oil Bhavan, Plot No. C-33, G Block
Bandra Kurla Complex, Bandra (E)
Mumbai - 400051
5. Union of India
Through Ministry of Petroleum and Natural Gas
Ingale 1
::: Uploaded on - 02/04/2025 ::: Downloaded on - 02/04/2025 22:23:33 :::
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6. State of Maharashtra
Through Department of Revenue
7. Shri Abhinav Shobit
B-307, Aayushi Building,
J.B. Nagar, Andheri East,
Mumbai - 400059. .... Respondents
****
Dr. Abhinav Chandrachud a/w Mr.Rahul Tripathi, Mr.Ashish Dubey,
Mr.Darshan Patankar, for the Petitioner.
Ms.Kritika Sethi a/w Ms.Vasundhara Dhar, for the Respondents No. 1 to
4.
Ms.Nazia Sheikh, AGP for Respondents No. 1 to 6 - State.
****
CORAM : ALOK ARADHE, CJ &
M.S.KARNIK, J.
RESERVED ON : 25th MARCH, 2025
PRONOUNCED ON : 2nd APRIL, 2025
JUDGMENT [PER M.S.KARNIK, J.] :
1. This writ petition under Article 226 of the Constitution of India
challenges a policy of the respondent no. 1- Indian Oil Corporation
Limited ('IOCL', for short) to decide tie breakers in tenders. The
challenge is that the clause prescribing the criteria that the younger
candidate being preferred over the older candidate in case of tie is
discriminatory under Article 14 of the Constitution.
2. The IOCL for selection of service providers for retail outlet, on
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09th May 2022 issued a brochure. Clause 7.2.1 (b) provides that "in the
event of tie between two candidates, the applicant who is younger in age
shall get preference over the other/(s).". An advertisement was
published by IOCL inviting applications for service provider at retail
outlets on 07th November 2023. The petitioner submitted its application
to IOCL on 05th December 2023. The merit list was declared by IOCL
on 19th February 2024. The petitioner and respondent no. 7 both scored
a total 92.8 marks. However, respondent no. 7 was placed at rank 1
while the petitioner was placed at rank 2.
3. The petitioner by his email dated 23rd February 2024 asked
respondents the reason he was given a second rank. The service contract
was awarded to respondent no. 7. This petition was filed on 24 th April
2024. In the affidavit filed by IOCL, the reason put forth is that the
petitioner is 34 years old while respondent no. 7 is 28 years old and
hence in terms of clause 7.2.1 (b) of the brochure dated 09 th May 2022,
respondent no. 7 was preferred.
4. We have heard the submission of learned counsel for the petitioner
and respondents. We have perused the materials on record, the
pleadings, affidavit-in-replies filed by the IOCL as well as respondent
no. 7.
14-WP-3836-24-reserved.odt
5. The contention of the learned counsel for the IOCL is that the
petitioner cannot challenge the condition of tender after participating in
the bidding process. No doubt, the tender conditions did prescribe in
terms of clause 7.2.1(b) of IOCL policy that when there is a tie between
the candidates, the applicant who is younger in age is preferred over the
other. So far as the tender document is concerned, clause 7.2.1 which
deals with Empanelment in case of tie needs to be extracted.
"Empanelment in case of tie:
a) In case of-tie, a candidate getting higher marks in following
two parameters, put together, will get preference over other/s.
S.r No. Parameter
1. Capability to provide finance
2. Personal interview
b) In case or tie on parameters given above, the applicant who is
younger in age shall get preference over other/s.
c) In case of tie on parameters a & b (Finance, Interview & Age)
above, the applicant who gets higher marks in Educational
qualification shall get preference over other/s.
d) The above will also apply for selection of DGR nominees."
6. The petitioner participated in the tender after fully knowing about
the tender terms and without protest. The question is whether at this
juncture, it is open for the petitioner to challenge the constitutionality of
the terms of the selection brochure, which according to learned counsel
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for respondents, is belated. It is well settled proposition of law that a
tenderer having participated in the tender process cannot be permitted to
challenge the tender condition. If any authority is needed in support of
this proposition, we may refer the decision of this Court in 1Inducare
Pharma Pvt. Ltd. Vs. Chief Executive Officer.
7. It is also relevant to refer to clause 5 of the brochure which lays
down the selection criteria and guidelines for evaluation. The parameters
prescribed are thus :
Parameter Maximum Marks
i. Age (completed years)
• For age above 36 years to 50 years - 21 marks
• For age above 50 years to 60 years - 17 marks
8. The petitioner is 34 years of age and the respondent no. 7 is 28
years old. Thus, as they fall in the age bracket of 21-35 years, they are
entitled to 25 marks. The brochure provides that in case of tie, on
parameters given above, the applicant who is younger in age shall get
preference over others.
9. Before we proceed to deal with the submissions, we must bear in
1 Writ Petition No. 11762 of 2023 decided on 01st December 2023.
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mind the principles laid down by the Supreme Court concerning judicial
review of contractual matters. The reference to the decision in 2Uflex
Limited Vs. Government of State of Tamil Nadu & others provides a
valuable insight. Their Lordships observed that judicial review of such
contractual matters has its own limitations. It is in this context of
judicial review of administrative actions that the Supreme Court has
opined that it is intended to prevent arbitrariness, irrationality,
unreasonableness, bias and malafides. The purpose is to check whether
the choice of decision is made lawfully and not to check whether the
choice of decision is sound. In evaluating tenders and awarding
contracts, the parties are to be governed by principles of commercial
prudence. To that extent, principles of equity and natural justice to have
a stay at a distance. A tenderer or contractor with a grievance can always
seek damages in a civil court and thus, "attempts by unsuccessful
tenderers with imaginary grievances, wounded pride and business
rivalry, to make mountains out of molehills of some technical/procedural
violation or some prejudice to self, and persuade courts to interfere by
exercising power of judicial review, should be resisted. In paragraph 4,
the Supreme Court observed thus:
"4. In a sense the Wednesbury principle is imported to the concept, i.e.,
the decision is so arbitrary and irrational that it can never be that any
responsible authority acting reasonably and in accordance with law
2 (2022) 1 SCC 165.
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would have reached such a decision. One other aspect which would
always be kept in mind is that the public interest is not affected. In the
conspectus of the aforesaid principles, it was observed in Michigan
Rubber v. State of Karnataka (2012) 8 SCC 216 as under:
"23. From the above decisions, the following principles emerge:
(a) 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. These actions are amenable to the judicial
review only to the extent that the State must act validly for a
discernible reason and not whimsically for any ulterior purpose.
If the State acts within the bounds of reasonableness, it would be
legitimate to take into consideration the national priorities;
(b) fixation of a value of the tender is entirely within the purview
of the executive and courts hardly have any role to play in this
process except for striking down such action of the executive as
is proved to be arbitrary or unreasonable. If the Government acts
in conformity with certain healthy standards and norms such as
awarding of contracts by inviting tenders, in those
circumstances, the interference by Courts is very limited;
(c) In the matter of formulating conditions of a tender document
and awarding a contract, greater latitude is required to be
conceded to the State authorities unless the action of tendering
authority is found to be malicious and a misuse of its statutory
powers, interference by Courts is not warranted;
(d) Certain preconditions or qualifications for tenders have to be
laid down to ensure that the contractor has the capacity and the
resources to successfully execute the work; and
(e) If the State or its instrumentalities act reasonably, fairly and
in public interest in awarding contract, here again, interference
by Court is very restrictive since no person can claim
fundamental right to carry on business with the Government."
10. Learned counsel for the petitioner alleges discrimination on the
basis of the immutable characteristic, in the present case, age, over
which the petitioner has no control. The submission is that the
petitioner as well as respondent no. 7 fall within the same age bracket of
21-35 years for which they have been awarded 25 marks. As there was
a tie between the petitioner and the respondent no. 7, further
classification is sought to be made on the basis of age, in that respondent
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no. 7 who is younger in age is preferred over the petitioner. The
question is whether such a condition can be challenged at a tie breaker
stage, the petitioner having participated in the tender process and
whether such classification on the basis of age is rational.
11. Learned counsel for IOCL was at pains to point out that for
handling the operations of the retail outlet, a younger person is more
suited considering the arduous nature of work to be discharged of the
outlet and hence the criteria is founded on some justifiable basis which
cannot be said to be irrational. The concurring opinion of Her Ladyship
Indu Malhotra J. in 3Navtej Singh Johar and ors. Vs. Union of India
expressed on the aspect of immutable status in paragraph 638.3 relied by
learned counsel for the petitioner is extracted below:
"638.3 In an article titled "Reading Swaraj into Article 15: A New Deal For
All Minorities"25, Tarunabh Khaitan notes that the underlying commonality
between the grounds specified in Article 15 is based on the ideas of
'immutable status' and 'fundamental choice'. He refers to the following
quote by John Gardener to provide context to the aforesaid commonality:
"Discrimination on the basis of our immutable status tends to deny us
[an autonomous] life. Its result is that our further choices are
constrained not mainly by our own choices, but by the choices of
others. Because these choices of others are based on our immutable
status, our own choices can make no difference to them. .... And
discrimination on the ground of fundamental choices can be wrongful
by the same token. To lead an autonomous life we need an adequate
range of valuable options throughout that life.... there are some
particular valuable options that each of us should have irrespective of
our other choices. Where a particular choice is a choice between
valuable options which ought to be available to people whatever else
they may choose, it is a fundamental choice. Where there is
3 (2018) 10 SCC 1.
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discrimination against people based on their fundamental choices it
tends to skew those choices by making one or more of the valuable
options from which they must choose more painful or burdensome
than others."
(emphasis supplied)
Race, caste, sex, and place of birth are aspects over which a person has no
control, ergo they are immutable. On the other hand, religion is a
fundamental choice of a person. Discrimination based on any of these
grounds would undermine an individual's personal autonomy."
12. It is thus held that discrimination on the basis of the immutable
characteristics like race, caste, sex and place of birth i.e. the aspects for
which a person has no control, is unconstitutional. There is no mention
of age as an immutable characteristic in the same way as race, caste, sex
and place of birth.
13. An immutable characteristic is any physical attribute perceived as
unchangeable, entrenched and innate. We did not come across any
decision of the Supreme Court whether a person's age is an immutable
characteristic. However, there are decisions dealing with matters
relating to age discrimination. In our opinion, these decisions can be
relied with profit in resolving the controversy involved and hence we do
not address the contention as regards age being an immutable
characteristic argued by learned counsel for the petitioner. The High
Court of Delhi in 4Commissioner, M.C.D Vs. Shashi & Ors. was
considering a question whether the petitioner can be discriminated
4 2009 SCC OnLine Del 2779
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against equally placed candidate merely on the basis of age. The answer
of the Delhi High Court was in the negative. Paragraphs 9 to 13 are
relevant which read thus :
"9. Article 14 of the Constitution provides for equal treatment before the
law and equal protection of the laws to all persons within the territory of
India and Article 16(1) of the Constitution provides for equality of
opportunity for all citizens in matters relating to employment or
appointment to any office under the State. Yet, discrimination between
two equally placed persons is permissible if there is a reasonable
classification and that reasonable classification is based on an intelligible
differentia. Article 16(2) of the Constitution provides that no citizen shall
be discriminated against on grounds only of religion, race, caste, sex,
descent, place of birth, residence or any of them. There is no specific
prohibition against discrimination on the basis of age. In other words, if
there is age discrimination, the person discriminated against is entitled to
rely only on Article 14 of the Constitution and demand equal treatment,
while the State would have to show that the classification is reasonable
and is based on intelligible differentia.
10. As far as the present case is concerned, Respondent No. 1 has clearly
made out a case of age discrimination in as much as the admitted position
is that even though the advertisement for recruitment related to all
eligible persons between age group of 18 and 30 years, the Petitioner
sought to limit the application of the advertisement to only those persons
who were within the age group of 28 to 30 years.
11. The reason given by the Petitioner for the age discrimination is two-
fold, namely, that the number of applications received was overwhelming
and, therefore, some shortlisting criteria had to be adopted and, secondly,
persons who are senior in age would lose an opportunity of employment
if they were not selected while those who were younger could avail of
similar opportunities later in life. We are of the opinion that neither of
these reasons put forth by the Petitioner falls within the acceptable limits
of Article 14 of the Constitution.
12. Subject to constitutionally permissible reservations, every endeavour
must be made by the State to employ or engage the most qualified or the
most meritorious persons. In doing so, the State may fix shortlisting
criteria on the basis of educational qualifications or experience or marks
obtained in an examination or an interview or any other criterion which
enables the most competent person to be selected. Unfortunately, age has
nothing to do either with merit or competence. Wisdom may be an
attribute of age, but not merit or competence.
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13. There is not even an iota of material to suggest, nor indeed has
anything been pointed out by learned Counsel for the Petitioner, that
merely because an applicant falls within the age group of 28 to 30 years
he is better qualified as a teacher than a person falling in the age group of
18 to 27 years. It is not the case of the Petitioner that persons in the age
group of 28 to 30 years are either better qualified educationally or have
more experience or are in any manner more meritorious or competent
than the applicants falling within the age group of 18 to 27 years solely
because of their age. It seems to us that the Petitioner has literally picked
the age group of 28 to 30 years out of the hat (as it were) without any
reference to any logical or empirical basis."
14. The object sought to be achieved in the present case obviously is
to select an applicant who is best suited to run the retail outlet. We do
not see any logic or rationality in the criteria adopted by IOCL that
person younger in age within the age group of 21-35 years classified in
the same group for the purpose of evaluation should get preference over
the others within that group in case of a tie. In 5The State of West
Bengal Vs. Anwar Ali Sarkar the Constitution Bench of the Supreme
Court laid down that classification must be based on some real and
substantial distinction bearing a just and reasonable relation to the object
sought to be attained and cannot be made arbitrarily and without any
substantial basis. It was observed that classification thus means
segregation in classes which have a systematic relation, usually found in
common properties and characteristics and does not mean herding
together of certain person and classes arbitrarily. In this context, the
Constitution Bench observed that the legislature may fix the age at
5 (1952) 1 SCC 1
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which persons shall be deemed competent to contract between
themselves. We find such classification being made in several other
instances such as the voting age or the age of juvenility or the age of
superannuation. In these cases there is some rational basis for the age
criteria.
15. In the present case, there is no challenge to the award of different
marks for different age groups. We however do not find any rationality
in giving preference to a person younger in age within the same group in
case of a tie having no relation to object sought to be achieved. We find
that the criteria of preference to a person younger in age within the same
group for the purpose of tie breaker is arbitrary and discriminatory. The
argument of learned counsel for the respondents that the person younger
in age within the same group is better suited to conduct the retail outlet
needs to be outrightly rejected. In a given case, age may be a relevant
criteria. There is no justifiable reason placed on record in the present
case for adopting this criteria for the purpose of tie breaker. Learned
counsel for the IOCL assumes as a matter of fact that a person younger
in age is more fit, agile and healthier than the one who is older within the
same group. IOCL has already made a classification based on age for the
purpose of awarding marks. Further sub-classification for the purpose of
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tie breaker amounts to treating equals unequally and hence this condition
falls foul of Article 14 of the Constitution.
16. It is interesting to note that clause 7.2.1(c) extracted hereinbefore
says that in case of tie on parameters (a) & (b) [Finance, interview and
age], the applicant who gets higher marks in Educational qualification
shall get preference over other/s. Let us deal with the objection of
learned counsel for the IOCL that the petitioner having participated in
the tender is estopped from challenging the clause. Learned counsel for
IOCL submitted that the petitioner cannot approbate and reprobate at the
same time having accepted the classification based on age for the
purpose of awarding the marks, but has objection when it comes to
classification on the basis of age in case of tie breaker. The petitioner
and the respondent no. 7 are similar situate in the sense that they fall
within the same age group for the purpose of parameters fixed for
awarding marks. The challenge to the said parameters is not the scope
of this petition. However, the challenge to the criteria providing tie
breaker is not something the applicant can think of while participating in
the process. It is only when the situation arises can there be a challenge.
17. It is not the case of the petitioner that the action of the IOCL is
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malafide or conditions are tailor made to suit the requirement of a
particular bidder but simply that clause 7.2.1 (b) is arbitrary as violative
of Article 14. To allow IOCL to proceed on the basis of clause 7.2.1 (b),
despite noticing the discriminatory nature of the criteria only on the
ground that the petitioner has participated in the tender process, is
something we are not prepared to accept. We are therefore inclined to
interfere at this stage, especially in a case where the essential conditions
of tender are not under challenge post participation by the petitioner, but
it is the criteria fixed for tie breaker which is under challenge.
18. The petition is accordingly allowed. We hold condition no.
7.2.1(b) of the brochure as violative of Article 14 of the Constitution of
India and is accordingly struck down.
19. We make it clear that it is open for the IOCL to prescribe a
suitable criteria for a tie breaker before proceeding further with the
empanelment. No order as to costs.
(M.S.KARNIK, J.) (CHIEF JUSTICE)
URMILA by URMILA
PRAMOD
PRAMOD INGALE
INGALE Date:
2025.04.02
11:48:53 +0530
