IMPORTANT POINT
The court established that a Draw of Lots in a tender process does not constitute a lottery under the Lotteries (Regulation) Act, 1998, and can be a valid method to address unemployment.

JUDGMENT :

1. Heard Mr. K.N Choudhury, learned senior counsel assisted by Mr. L N Dihingia, learned counsel for the petitioner. Also heard Mr. I Chowdhury, learned senior counsel assisted by Mr. MK Das learned counsel for the respondent, ONGC.

2. The petitioners are members of a registered Trade Union by name and style of “Self Dependent Motor Driver Union”, at ONGCL, Assam Asset, Nazira, Sivasagar and have challenged an NIT being Tender No.R16DC24005 issued for hiring of services of 372 numbers of light vehicles (Taxi) for Assam Asset of ONGCL. for a period of 4 years on one bidder one vehicle through Draw of Lots.

3. It is the case of the petitioners that while hiring of light vehicle, a clause should be inserted in the NIT giving priority to the license holder of driving license cum owner of the vehicle. Accordingly a representation was also filed on 02.08.2022 before the Executive Director, ONGCL, Assam Asset and a verbal assurance was also given to them that a special clause shall be inserted giving weightage to a license and experience.

4. Mr. KN Choudhury, learned senior counsel assailing the impugned NIT argues that the tender process is hit by vices of unfair, unreasonable and arbitrary tender conditions, more particularly, prescribing award of contract of hiring vehicle based on the Draw of Lot inasmuch Draw of Lot for award of a contract cannot be treated to be as fair action on the part of the respondent authorities. It is his contention that a Draw of Lot cannot be permitted in a bidding process inasmuch as, in the case of Draw of Lot, there is always an element of arbitrariness, and discretion and there is no equality. According to him, draw of lot is mere luck and chance and therefore, such a course of action is not permissible when it involves state largesse.

5. According to Mr. Choudhury, when it is a tender process carried out by an instrumentality of the state and when it involves state largesse, certain pre conditions or qualifications for tenders have to be laid down to ensure that the bidders have the capacity and resources to successfully execute the work. Unfortunately, the respondent authorities, who claim to be one of the “Navaratna Company”, have not prescribed any pre conditions or qualifications for the tenderers, resulting in the tendering process an arbitrary exercise of power. That being the position, even if there is a policy decision to adopt the procedure of Draw of Lots, this court can interfere with such an arbitrary process being violative of Article 14 of the Constitution of India in the exercise of its power of judicial review. In support of such contention, Mr. Choudhury relies on the decision of the Hon’ble Apex Court in the case of Michignan Rubber India Limited Vs. State of Karnataka & Ors reported in (2012) 8 SCC 216.

6. Mr. K.N. Choudhury, learned Senior Counsel also refers to the definition of lottery under section 2(b) of the Lotteries (Regulation) Act, 1998 and contends that such process is a game of luck and that instrumentalities of the state are prohibited from conducting lottery under section 4 of the Act, 1998. Therefore, the method prescribed in the NIT for the use of Draw of Lots, in fact is prohibited by the Act 1998. Learned Senior Counsel for the petitioner further contends that even though it is assumed that it can be done through Draw of Lots, there is no declaration/clarification in the NIT as regards the detailed process how such Draw of Lots would be conducted, leaving rooms for arbitrary exercise of power.

7. Assailing the tender condition of prescription of the age of the bidder to be a maximum 55 years and qualification of prescription of registration in Employment Exchange, the learned Senior Counsel argues that the Tender for the hiring process cannot be treated as an employment process. Therefore, such conditions of registration in Employment Exchange and prescription of maximum age for the purpose of carrying out business is not only in violation of Article 14 of