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

1^st 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

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

09^th 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 07^th November 2023. The petitioner submitted its application to IOCL on 05^th December 2023. The merit list was declared by IOCL on 19^th 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 23^rd 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.

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.