Tender Condition Preferring Candidate Younger In Age In Event Of Tie 'Discriminatory & Irrational': Bombay High Court
The Bombay High Court has observed that a tender prescribing a condition that a younger candidate would be preferred over an older candidate in case of a tie-breaker is discriminatory and arbitrary under Article 14 of the Constitution.Finding no justification for the criteria that a younger person would be preferred an older person within the same group, a division bench of Chief Justice...
The Bombay High Court has observed that a tender prescribing a condition that a younger candidate would be preferred over an older candidate in case of a tie-breaker is discriminatory and arbitrary under Article 14 of the Constitution.
Finding no justification for the criteria that a younger person would be preferred an older person within the same group, a division bench of Chief Justice Alok Aradhe and Justice MS Karnik stated
“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.”
The Court was considering the petitioner's challenge to the Indian Oil Corporation Limited's (IOCL) policy for the selection of service providers for retail outlets, which provides that in the event of a tie between two candidates, the applicant who is younger in age shall get preference over the others.
The petitioner had submitted his application to IOCL for service providers at retail outlets. In the merit list, both he and another candidate (respondent no. 7) scored the same marks, however, the latter was placed at rank 1 while the petitioner was placed at rank 2.
As the petitioner was 34 years of age and the respondent no. 7 was 28 years old, the service contract was awarded to respondent no 7.
The petitioner contended that the tender condition was discriminatory on the basis of an immutable characteristic i.e., age. He thus argued that the criteria ought to be struck down for being violative of Article 14 of the Constitution.
On the other hand, IOCL submitted that for handling the operations of the retail outlet, a younger person was more suited considering the arduous nature of work to be discharged of the outlet. It thus argued that the criteria had a rational basis.
The High Court opined that giving preference to a person younger in age within the same group in case of a tie has no rational basis and no relation to the object sought to be achieved.
The Court referred to a Delhi High Court judgment in Commissioner, M.C.D Vs. Shashi & Ors (WP (C) 11331 of 2009), where recruitment of teachers between age group of 18 to 30 years was advertised, however, the authority limited the application for the advertisement to only those persons who were within the age group of 28 to 30 years. The Court found the limit to be discriminatory and arbitrary and a violation of Article 14 of the Constitution.
It further referred to a Supreme Court case of State of West Bengal vs. Anwar Ali Sarkar (1952), where it was observed that a 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.
Finding the impugned criteria to be discriminatory and arbitrary, the Court rejected the IOCL's contention that a person younger in age within the same group is better suited to conduct the retail outlet. It said “There is no justifiable reason placed on record in the present case for adopting this criteria for the purpose of tie breaker.”
IOCL also contended that the petitioner could not challenge the condition of the tender after participating in the bidding process. However, the Court rejected this contention and remarked “It is not the case of the petitioner that the action of the IOCL is 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.”
With these observations, the Court struck down the impugned criteria for being violative of Article 14 of the Constitution. It said that it was open for IOCL to prescribe suitable criteria for a tie-breaker before proceeding further with the empanelment.
Appearances: Dr. Abhinav Chandrachud argued for the petitioner and Ms.Nazia Sheikh, AGP for the respondents.
Case title: Shahbaz Mumtaz Khan vs. Indian Oil Corporation Limited & Ors. (Writ Petition No. 3836 Of 2024)
Citation: 2025 LiveLaw (Bom) 128
