Sabita Beng and Others vs State of West Bengal and Others

Subrata Talukdar, J—In this writ application challenge is thrown to the Memo impugned No. 3058 (20/FMR/11S-01/15) dated 26th May, 2015 issued by the Director, Directorate of Distribution, Procurement and Supply, Food and Supplies, Government of West Bengal (hereinafter referred to for short as the Director).

By the Memo impugned dated 26th May, 2015 the Director proceeded to distribute the monthly allocation of food grains for APL, BPL and AAY ration card holders in MR areas of West Bengal under the Targeted Public Distribution System (for short TPDS) for the month of June, 2015.

Sri Saktinath Mukherjee, Ld. Senior Counsel for the petitioners refers particularly to the enclosed Statement of Monthly Allotment to the impugned Memo dated 26th May, 2015. Referring to the Note portion of the said Statement, Sri Mukherjee points out that the monthly allocation of the petitioners-Tea Garden non-workers (for short TG non-workers) and their dependants has been reduced from 4 kg. rice adult unit (for short AU) per month to two kg./AU/month. However, the scale of distribution of wheat to TG non-workers has been maintained at 2 kg./AU/month as before.

Sri Mukherjee complains of the fact that the reduction in the distribution of rice of TG non-workers from 4 kg./AU/month to 2 kg./AU/month is drastic. Also branding the reduction of the allotment of rice in favour of the TG non-workers as discriminatory, Sri Mukherjee points out that in respect of TG non-workers and their dependants the allotment of rice has been only reduced by 1 kg. from 6kg./AU//month to 5 kg./AU/month and the quota of wheat has been maintained as earlier at 2 kg./AU/month.

Sri Mukherjee further argues from the Note to the Statement of Allocation appended to the impugned Memo dated 26th May, 2015 of the Director that in respect of specially identified BPL category in Jangalmahal areas rice has been allotted at 2 kg./AU/week and fortified atta at 750 gm/AU/week. For Singur beneficiaries and AILA affected beneficiaries the allocation of rice is 4kg./family/week.

Sri Mukherjee points out that admittedly the petitioners as TG non-workers reside in the same areas as TG workers and hold ration cards. Admittedly, Sri Mukherjee points out that the petitioners fall within the targeted area of the public distribution system. Therefore, there must be an even distribution of the reduction in allotment by the Director in his monthly allocation statement of 26th May, 2015.

However, Sri Mukherjee further points out that the reduction is drastic only in respect of TG non-workers leaving other beneficiaries of the TPDS unaffected by such reduction. In support of his submissions Ld. Senior Counsel strongly relies upon the observations of the Hon''ble Apex Court in Ramana Dayaram Shetty Vs. International Airport Authority of India and Others, AIR 1979 SC 1628 : (1979) 2 LLJ 217 : (1979) 3 SCC 489 : (1979) 3 SCR 1014 . Paragraphs 11 and 12 read as follows:--

"11. To-day the Government, is a welfare State, is the regulator and dispenser of special services and provider of a large number of benefits, including jobs contracts, licences, quotas, mineral rights etc. The Government pours forth wealth, money, benefits, services, contracts, quotas and licences. The valuables dispensed by Government take many forms, but they all share one characteristic. They are steadily taking the place of traditional forms of wealth. These valuables which derive from relationship to Government are of many kinds. They comprise social security benefits, cash grants for political sufferers and the whole scheme of State and local welfare. Then again, thousands of people are employed in the State and the Central Governments and local authorities. Licences are required before one can engage in many kinds of business or work. The power of giving licences means power to withhold them and this gives control to the Government or to the agents of Government on the lives of many people. Many individuals and many more businesses enjoy largess in the form of Government contracts. These contracts often resemble subsidies. It is virtually impossible to lose money on them and many enterprises are set up primarily to do business with Government. Government owns and controls hundreds of acres of public land valuable for mining and other purposes. These resources are available for utilisation by private corporations and individuals by way of lease or licence. All these mean growth in the Government largess and with the increasing magnitude and range of governmental functions as we move closer to a welfare State, more and more of our wealth consists of these new forms. Some of these forms of wealth may be in the nature of legal rights but the large majority of them are in the nature of privileges. But on that account, can it be said that they do not enjoy any legal protection? Can they be regarded as gratuity furnished by the State so that the State may withhold, grant or revoke it at its pleasure? Is the position of the Government in this respect the same as that of a private giver? We do not think so. The law has not been slow to recognise the importance of this new kind of wealth and the need to protect individual interest in it and with that end in view, it has developed new forms of protection. Some interests in Government largess, formerly regarded as privileges, have been recognised as rights while others have been given legal protection not only by forging procedural safeguards but also by confining/structuring and checking Government discretion in the matter of grant of such largess. The discretion of the Government has been held to be not unlimited in that the Government cannot give or withhold largess in its arbitrary discretion or at its sweet will. It is insisted, as pointed out by Prof. Reich in an especially stimulating article on "The New Property" in 73 Yale Law Journal 733, "that Government action be based on standards that are not arbitrary or unauthorised." "The Government cannot be permitted to say that it will give jobs or enter into contracts or issue quotas or licences only in favour of those having grey hair or belonging to a particular political party or professing a particular religious faith. The Government is still the Government when it acts in the matter of granting largess and it cannot act arbitrarily. It does not stand in the same position as a private individual.

We agree with the observations of Mathew, J., in V. Punnan Thomas v. State of Kerala that: "The Government is not and should not be as free as an individual in selecting the recipients for its largess. Whatever its activity, the Government is still the Government and will be subject to restraints, inherent in its position in a democratic society. A democratic Government cannot lay down arbitrary and capricious standards for the choice of persons with whom alone it will deal". The same point was made by this court in Erusian Equipment and Chemicals Ltd. Vs. State of West Bengal and Another, AIR 1975 SC 266 : (1975) 1 SCC 70 : (1975) 2 SCR 674 : (1974) 6 UJ 737 where the question was whether black-listing of a person without giving him an opportunity to be heard was bad? Ray, C. J., speaking on behalf of himself and his colleagues on the Bench pointed out that black-listing on a person not only affects his reputation which is in Poundian terms an interest both of personality and substance, but also denies him equality in the matter of entering into contract with the Government and it cannot, therefore, be supported without fair hearing. It was argued for the Government that no person has a right to enter into contractual relationship with the Government and the Government, like any other private individual, has the absolute right to enter into contract with anyone it pleases. But the Court, speaking through the learned Chief Justice, responded that the Government is not like a private individual who can pick and choose the person with whom it will deal, but the Government is still a Government when it enters into contract or when it is administering largess and it cannot, without adequate reason, exclude any person from dealing with it or take away largess arbitrarily. The learned Chief Justice said that when the Government is trading with the public, "the democratic form of Government demands equality and absence of arbitrariness and discrimination in such transactions. The activities of the Government have a public element and, therefore, there should be fairness and equality. The State need not enter into any contract with anyone, but if it does so, it must do so fairly without discrimination and without unfair procedure." This proposition would hold good in all cases of dealing by the Government with the public, where the interest sought to be protected is a privilege. 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 largess, 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 largess including award of jobs, contracts, quotas, licences etc., must be confined and structured by rational, relevant and non-discriminatory standard or norm and if the Government departs from 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."

Sri Mukherjee argues that the concept of equality perceived from the context of distribution of State benefits has evolved to non-arbitrariness in every State action as laid down in Maru Ram and Others Vs. Union of India (UOI) and Others, AIR 1980 SC 2147 : (1980) CriLJ 1440 : (1981) 1 SCC 107 : (1981) SCC(Cri) 112 : (1981) 1 SCR 1196 . Paragraph 63 of In Re: Maru Ram (supra) reads as follows:--

"63. The jurisprudence of constitutionally canalised power as spelt out in the second proposition also did not meet with serious resistance from the learned Solicitor General and, if we may say so rightly. Article 14 is an expression of the egalitarian spirit of the Constitution and is a clear pointer that arbitrariness is anathema under our system. It necessarily follows that the power to pardon, grant remission and commutation, being of the greatest moment for the liberty of the citizen, cannot be a law unto itself but must be informed by the finer canons of constitutionalism. In the Inter-national Airport Authority case this court stated:

"The rule inhibiting arbitrary action by Government which we have discussed above must apply equally where such corporation is dealing with the public, whether by way of giving jobs or entering into contracts or otherwise, and it cannot act arbitrarily and enter into relationship with any person it likes at its sweet will, but its action must be in conformity with some principle which meets the test of reason and relevance.

This rule also flows directly from the doctrine of equality embodied in Article 14. It is now well settled as a result of the decisions of this Court in E.P. Royappa v. State of Tamil Nadu and Maneka Gandhi v. Union of India that Article 14 strikes at arbitrariness in State action and ensures fairness, and equality of treatment. It requires that State action must- not be arbitrary but must be based on some rational and relevant principle which is non- discriminatory; it must not be guided by any extraneous or irrelevant considerations, because that would be denial of equality. The principle of reasonableness and rationality which is legally as well as philosophically an essential element of equality or non-arbitrariness is projected by Article 14 and it must characterise every State action, whether it be under authority of law or in exercise of executive power without making of law."

Mathew, J. In V. Punnan Thomas v. State of Kerala observed:

"The Government, is not and should not be as free as an individual in selecting the recipients for its largesse. Whatever its activity the Government is still the Government and will be subject to restraints, inherent in its position in a democratic society. A democratic Government cannot lay down arbitrary and capricious standards for the choice of persons with whom alone it will deal.

If we excerpt again from the Airport Authority case:

Whatever be the concept of the rule of law, whether it be the meaning given by Dicey in his "The Law of the Constitution" or the definition given by Hayek in his "Road to Serfdom" and "Constitution of Liberty" or the exposition set forth by Harry Jones in his "The Rule of Law and the Welfare State", there is as pointed out by Mathew J., in his article on "The Welfare State, Rule of Law and Natural Justice" in "Democracy, Equality and Freedom" "Substantial agreement in Juristic thought that the great purpose of the rule of law notion is the protection of the individual against arbitrary exercise of power, wherever it is found". It is indeed unthinkable that in a democracy governed by the rule of Law the executive Government or any or its officers should possess arbitrary power over the interests of the individual. Every action of the Executive Government must be informed with reason and should be free from arbitrariness. That is the very essence of the rule of law and its bare minimal requirement. And to the application of this principle it makes no difference whether the exercise of the power involves affectation of some right or denial of some privilege.

The discretion of the Government has been held to be not unlimited in that the Government cannot give or withhold Largesse in its arbitrary discretion or at its sweet will. It is insisted, as pointed out by Prof. Reich in an specially stimulating article on "The New Property" in 73 Yale Law Journal 733, "that Government action be based on standards that are not arbitrary or unauthorised." The Government cannot be permitted, to say that it will give jobs or enter into contracts or issue quotas or licences only in favour of those having grey hair or belonging to a particular political party or professing a particular religious faith. The Government is still the Government when it acts in the matter of granting largesse and it cannot act arbitrarily. It does not stand in the same position as a private individual.

It is the pride of our constitutional order that all power, whatever its source, must, in its exercise, anathematise arbitrariness and obey standards and guidelines intelligible and intelligent and integrated with the manifest purpose of the power. From this angle even the power to pardon, commute or remit is subject to the wholesome creed that guidelines should govern the exercise even of presidential power."

Basing his arguments on a conjoint reading of In Re: Ramana Dayaram Shetty and In Re: Maru Ram (supra), Sri Mukherjee argues that the concept of equality is not exhausted by a mere rational classification and Article 14 of the Constitution of India touches each State action which is arbitrary.

Based on the above proposition Sri Mukherjee strongly submits that the distribution of allotment by the Director is arbitrary. Relying on the provisions of the National Food Security Act, 2013 (for short the NFSA, 2013) Sri Mukherjee takes this Court to the Statement of Objects and Reasons of NFSA, 2013. Sri Mukherjee emphasises the point that the approach to the problem of food security has seen a paradigm shift from a welfare based approach to a rights based approach. Access to food is seen as a right which is now enforceable under NFSA, 2013. Such access to adequate quantity and quality of food is also connected with basic human dignity.

Clearly it is contended by Ld. Senior Counsel, the petitioners'' allocation made by the Director defeats the food security guaranteed under NFSA, 2013 and curtails their access to food thereby touching on the quality of their lives. Such arbitrary action is justiciable under Article 226 of the Constitution of India and, therefore, Sri Mukherjee submits that the allocation should be maintained at the previous quantity or, at least, the reduction evenly distributed among all the TPDS beneficiaries.

Arguing for the State-respondents, Sri Sushovan Sengupta, Ld. Senior Government Advocate submits that the TG workers and eligible dependants were receiving food grains previously at rice 6kg./AU/month and wheat 1 kg./AU/month up to May, 2015. The TG workers in the interest of the continuous and stable functioning of tea gardens have been brought under the coverage of a Special Notification being the West Bengal Public Distribution System (Special Provision for Tea Gardens) Order, 2006. Such Notification No. 6671/FS is dated 6th November, 2006 (hereinafter referred to as the Special Notification).

Sri Sengupta further argues that under the Special Notification the Tea Garden Managers have been appointed as FPS Dealers to receive the allocated quantity of TPDS food grains and distribute the same as part of the wages of TG workers. According to the system in vogue after meeting the requirements of TG workers and eligible dependants, the residual stock of rice is distributed among the TG non-workers who are normally residing within tea garden areas.

Sri Sengupta points out that there is no dispute with regard to the fact that the TG non-workers are APL category ration card holders.

Taking this Court to the several orders of the Central Government and of the State Government allocating the food grains commencing March, 2015 Sri Sengupta first refers to the Memo dated 5th March, 2015 of the Ministry of Consumer Affairs and Public Distribution, Department of Food and Public Distribution, Government of India addressed to the Secretary, Department of Food, Civil Supplies & Consumer Affairs, Government of West Bengal. Vide the said Memo dated 5th March, 2013 the allocation of food grains for APL category for the State of West Bengal under the TPDS from April, 2015 onwards till the implementation of NFSA, 2013 is as follows:--

"I am directed to say that Government of India has enacted National Food Security Act (NFSA) under which allocation of foodgrains under TPDS will be made as per 2011 population estimates. The Govt. Of West Bengal has not so far implemented NFSA in the State. Govt. Of India has allowed the States/UTs to complete the necessary formalities so as to implement the NFSA by 04.04.2015. As an interim measure, following monthly quantities of foodgrains have been allocated to your State for APL families under TPDS from April 2015 onwards till the implementation of NFSA:

Thereafter by a second Memo dated 9th April, 2015 addressed by the Government of India to the Department of Food, Civil Supplies & Consumer Affairs of several States, including West Bengal, the additional monthly allocation of food grains to the States/UTs for APL families under TPDS from April to September, 2015 or till implementation of NFSA, 2013 has been given. In respect of West Bengal the additional monthly allocation of wheat is 43233 MT and for rice it is 3488 MT. Paragraph 3 of the Memo dated 9th April, 2015 (supra) reads as follows:--

"As the above additional allocation has been made to the States/UTs as an exceptional measure upto September, 2015 or till implementation of NFSA, whichever is earlier, under no circumstances, this additional APL allotment at APL rates will be made beyond September, 2015."

Thereafter, by a further Memo dated 19th May, 2015 of the Government of India addressed to the State of West Bengal the monthly allocation of food grains on implementation of NFSA, 2013 in three Districts and the allocation under existing TPDS for the rest of the State effective June, 2015 onwards was revised. After outlining the NFSA, 2013 allocation for the Districts of Dakshin Dinajpur, Uttar Dinajpur and Cooch Behar from June, 2015 onwards the revised monthly allocation for the rest of the Districts of the State from June, 2015 onwards stood as follows:--

The said Memo dated 19th May, 2015 further provides as follows:--

Sri Sengupta points out that on receipt of the above noted Memos from the Government of India which clearly show that the monthly allocation of existing TPDS rice for the APL category in respect of the non-NFSA Districts effective June, 2015 was zero and, only an additional APL allocation of rice was made at 2650.4 MT, as an interim measure till implementation of NFSA, 2013, the State Government was compelled to revise the monthly allocation of food grains (both rice and wheat) for APL, BPL and AAY families covered by the TPDS effective June, 2015 till implementation of NFSA, 2013. By the Memo dated 20th May, 2015 of the Joint Secretary, Food and Supplies, Government of West Bengal addressed to the Director, DDP & S and other Officers mentions the sub-allotment of monthly allocation of food grains as follows:--

By a further Memo dated 20th May, 2015 of the Joint Secretary, Food and Supplies, Government of West Bengal addressed to the Director of DDP & S and other Officers keeping in view the additional allocation of APL and BPL rice and wheat by the Government of India by Memo dated 19th May, 2015 (supra) the sub-allotment of the additional allocation effective June, 2015 till the implementation of NFSA, 2013 stood as follows:--

Based on the above Memos the task now fell upon the Director, DDP & S to make a sub-allocation of food grains to all categories of beneficiaries which was done by the impugned Memo dated 26th May, 2015. On the 26th May, 2015 in addition to the Memo impugned No. 3058 (20/FMR/11S-01/15) another Memo was issued by the Director on the same date bearing No. 3059 (20/FMR/11S-01/15).

By the second Memo No. 3059 (20) the Director noticed the fact that the additional allocation of APL rice of 2650.4 MT as conveyed through Government of India Memo dated 19th May, 2015 (supra) since there was zero revised allocation of APL rice for the non-NFSA Districts of the State of West Bengal effective June, 2015, the additional allocation of APL rice was distributed among the several Districts of the State as follows:--

However, in view of both regular and additional allotment of APL wheat the same were distributed in respect of the non-NFSA Districts in the State on a pro rata basis.

Sri Sengupta argues that the APL category to which the petitioners belong admittedly do not attract the poverty parameters applicable to BPL and AAY categories. It cannot be the case of the petitioners that due to reduction of rice to 2 kg/AU/month they are facing starvation levels.

On the other hand, it is evident that the total quantity of regular APL rice allotted by the Central Government in favour of the State effective June, 2015 till implementation of the NFSA was zero MT. The additional APL rice allotted to the State was only 2650.4 MT and such additional rice was primarily sub-allotted to three Districts of Alipurduar, Darjeeling and Jalpaiguri to the exclusion of all other non-NFSA Districts.

Therefore, Sri Sengupta on the strength of the above figures argues that the petitioners being within Darjeeling Districts are receiving 2 kg. rice/AU/month while other APL category ration card holders covered under TPDS in other Districts such as Howrah, Hooghly, North 24 Parganas, South 24 Parganas, Burdwan, Birbhum, Purulia, the two Medinipurs, Malda excepting the three NFSA Districts of Uttar Dinajpur, Dakshin Dinajpur and Cooch Behar have received zero MT allocation of the additional APL rice.

Sri Sengupta therefore submits that the State is within its rights to frame a policy of sub-allotment based on the total availability of food grains allocated by the Central Government. TG non-workers constitute a separate class altogether in comparison to Jangalmahal, AILA affected and Singur beneficiaries. Ld. State Counsel asserts that the State has adopted a rationale for distribution of the additional APL rice available at its command and, has directed the entire additional APL rice to three Districts of Alipurduar, Darjeeling and Jalpaiguri to the exclusion of all other non-NFSA Districts. However, equally circumstanced APL category beneficiaries in the other non-NFSA Districts who have received zero allocation of additional APL rice have not come forward complaining of denial of access to food.

Relying on the decisions reported in 2013 (2) SCC 770 (at paras 32 and 33); Subramanian Swamy and Others Vs. Raju Thr. Member Juvenile Justice Board and Another, AIR 2014 SC 1649 : (2014) AIRSCW 2021 : (2014) 4 JT 328 : (2014) 4 SCALE 305 : (2014) 8 SCC 390 and Directorate of Film Festivals and Others Vs. Gaurav Ashwin Jain and Others, AIR 2007 SC 1640 : (2007) 5 JT 394 : (2007) 5 SCALE 565 : (2007) 4 SCC 737 : (2007) 5 SCR 7 : (2007) AIRSCW 2497 : (2007) 3 Supreme 855 . Sri Sengupta argues that a non-statutory policy also can always be framed to meet exigencies of circumstances and possessing a rationale for sub-allotting the limited APL food grains made available to the State which cannot be described as either arbitrary or discriminatory.

Having heard the parties and considering the materials on record this Court is required to test the argument on arbitrariness in the context of the facts available.

To the mind of this Court the contents of the Memo No. 3058 dated 26th May, 2015 of the Director, DDP & S are clearly self-explanatory. The said Memo dated 26th May, 2015 must be read in the context of the Memo of the Central Government dated 19th May, 2015 revising the monthly allocation of food grains to the State effective June, 2015. The total APL rice, as already noticed in this judgment above under the existing TPDS for the non-NFSA Districts stood at zero MT while the additional APL rice stood at 2650.4 MT.

The task of the Director DDP & S was to sub-allotment the meagre APL rice to the non-NFSA Districts within the State. It is transparent from the Memo No. 3059 dated 26th May, 2015 which requires to be read prior to the impugned Memo No. 3058 also dated 26th May, 2015 that only three Districts, viz. Alipurduar, Darjeeling and Jalpaiguri become the beneficiaries of the additional APL rice. Admittedly, other non-NFSA Districts received nil allocation of the additional APL rice.

Therefore, within the three Districts the Director, DDP & S had the further task of sub-allotting the quantum of the limited additional APL rice among the APL ration card holders. Such was done by the impugned Memo No. 3058 dated 26th May, 2015 read with its Statement of Monthly Allotment.

To the mind of this Court the very fact that the TG non-workers being a part of the APL category in Darjeeling District have received a portion of the additional APL rice allocation to the exclusion of other APL card holders in non-NFSA Districts who have received zero allocation, is indicative of a privileged and not an arbitrary treatment. To the further mind of this Court the Director, DDP & S tried to carry out a reasonable sub-allocation depending on the resources under the command of the State and it is not the case of the petitioner that out of the meagre additional APL allotment by the Centre, they have not received any portion thereof. If the plea of starvation was to be taken such plea would have arguably lied in the mouths of the APL card holders in other non-NFSA Districts which have received nil allocation of additional APL rice. Needless to reiterate the regular allocation of APL rice as distinct from the additional allocation stood at zero vide the Memo of the Central Government dated 19th May, 2015.

Therefore, this Court is persuaded enough to hold that notwithstanding the salutary principles of non-arbitrary State action enshrined In Re: Ramana Dayaram Shetty and In Re: Maru Ram (supra) the facts of the present case do not show that any arbitrariness has been resorted to by the State Authority. On the contrary the State Authority has accommodated the requirements of the writ petitioners by doling out of its limited resources the additional APL rice and thereby not breaking the continuity of the supplies.

This Court further observes that no challenge has been thrown to the Central allocation of APL food grains to the State. The key to the sub-allotment is the revised allocation of zero APL rice and the meagre additional allocation of 2650.4 MT of APL rice. This Court also notices the language of the NFSA, 2013 in its Statement of Objects and Reasons which is as follows:--

"While BPL households under the TPDS receive thirty-five Kilograms foodgrains per family per month, the allocation to APL households depends upon availability of foodgrains in the Central pool (emphasis added)."

Therefore, any sub-allotment by the State is conditioned by the allocation of food grains by the Centre qua the APL category under NFSA, 2013.

This Court is also satisfied that in respect of the other TPDS beneficiaries such as AILA, Jangalmahal and Singur areas, the State is justified in sub-allotting their quotas keeping in mind their special distress. This Court finds that the coverage of limited additional APL rice extended by the State to the petitioners is indicative of an effort to grant them access to food grains contrary to what is being argued on behalf of the petitioners that they face starvation conditions.

An additional feature is noticed by this Court to the effect that the revised allocation of food grains by the Centre in respect of the non-NFSA Districts is to continue till NFSA comes into operation for which the target date has been extended up to September, 2015. Therefore, the revised allocation is till implementation of NFSA in the State and in the interregnum the State is within its powers to sub-allot on the basis of the total allocation received from the Central Pool.

Before parting with this case this Court is required to notice the observations of the Hon''ble Apex Court in Narendra Kumar Maheswar v. Union of India & Ors. reported in 1990 (Supplementary) SCC 440 where Sabyasachi Mukherji, J. (as His Lordship then was) speaking for the Bench wrote at paragraphs 69 and 107 as follows:--

"69. Shri Ganesh submitted that the CCI is duty bound to act in accordance with the guidelines which lay down the principles regulating the sanction of capital issues. This is especially so because the guidelines had been published. It was submitted that the investing public is, therefore, entitled to proceed on the basis that the CCI would act in conformity with the guidelines and would enforce them while sanctioning a particular capital issue. It was submitted that it is not permissible to deviate from the guidelines. In this connection, reliance was placed by him as well as by Shri Haksar, appearing for the petitioner in T.C. No. 161/88, upon the observations of this Court in Ramana Dayaram Shetty Vs. International Airport Authority of India and Others, AIR 1979 SC 1628 : (1979) 2 LLJ 217 : (1979) 3 SCC 489 : (1979) 3 SCR 1014 , where this Court observed that it must 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 licence or granting other forms of largess, the government could not act arbitrarily at its sweet will and, like a private individual, deal with any persons it please, but its action must be in conformity with standard or norm which is not arbitrary, irrational or irrelevant. We accept the position that the power of discretion of the government in the matter of grant of largess including award of jobs, contracts, quotas, licences etc. must be confirmed and structured by rational, relevant and nondiscriminatory standard or norm and if the government departed 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 could not be shown by the government that the departure was not arbitrary but was based on some valid principle which in itself was not irrational, irrelevant, unreasonable or discriminatory. Mr. Haksar drew our attention to the observations of this Court in the case of Motilal Padampat Sugar Mills Co. Ltd. Vs. State of Uttar Pradesh and Others, AIR 1979 SC 621 : (1979) 118 ITR 326 : (1979) 2 SCC 409 : (1979) 2 SCR 641 : (1979) 44 STC 42 , where this Court reiterated that claim of change of policy would not be sufficient to exonerate the government from the liability; the government would have to show what precisely was the changed policy and also its reason and justification so that the Court could judge for itself which way the public interest lay and what the equity of the case demanded. It was contended by Shri Haksar that there were departures from the guidelines and there was no indication as to why such departures had been made.

We would also like to refer to one more aspect of the enforceability of the guidelines by persons in the position of the petitioners in these cases. Guidelines are issued by Governments and statutory authorities in various types of situations. Where such guidelines are intended to clarify or implement the conditions and requirements precedent to the exercise of certain rights conferred in favour of citizens or persons and a deviation therefrom directly affects the rights so vested the persons whose rights are affected have a clear right to approach the court for relief. Sometimes guidelines control the choice of persons competing with one another for the grant of benefits largesses or favours and, if the guide- lines are departed from without rhyme or reason, an arbitrary discrimination may result which may call for judicial review. In some other instances (as in the Ramanna Shetty case), the guidelines may prescribe certain standards or norms for the grant of certain benefits and a relaxation of, or departure from, the norms may affect persons, not directly but indirectly, in the sense that though they did not seek the benefit or privilege as they were not eligible for it on the basis of the announced norms, they might also have entered the fray had the relaxed guidelines been made known. In other words, they would have been potential competitors in case any relaxation or departure were to be made. In a case of the present type, however, the guidelines operate in a totally different field. The guidelines do not affect or regulate the right of any person other than the company applying for consent. The manner of application of these guidelines, whether strict or lax, does not either directly or indirectly, affect the rights or potential rights of any others or deprive them, directly or indirectly, of any advantages or benefits to which they were or would have been entitled. In this context, there is only a very limited scope for judicial review on the ground that the guidelines have not been followed or have been deviated from. Any member of the public can perhaps claim that such of the guidelines as impose controls intended to safeguard the interests of members of the public investing in such public issues should be strictly enforced and not departed from departure therefrom will take away the protection provided to them. The scope for such challenge will necessarily be very narrow and restricted and will depend to a considerable extent on the nature and extent of the deviation. For in- stance, if debentures were issued which provide no security at all or if the debt-equity ratio is 6000:1 (as alleged) as against the permissible 2:1 (or thereabouts) a Court may be persuaded to interfere. A Court, however, would be reluctant to interfere simply because one or more of the guidelines have not been adhered to even where there are substantial deviations, unless such deviations are, by nature and extent such as to prejudice the interests of the public which it is their avowed object to protect. Per contra, the Court would be inclined to perhaps overlook or ignore such deviations, if the object of the statute or public interest warrant, justify or necessitate such deviations in a particular case. This is because guidelines, by their very nature, do not fall into the category of legislation, direct, subordinate or ancillary. They have only an advisory role to play and non-adherence to or deviation from them is necessarily and implicitly permissible if the circumstances of any particular fact or law situation warrants the same. Judicial control takes over only where the deviation either involves arbitrariness or discrimination or is so fundamental as to undermine a basic public purpose which the guidelines and the statute under which they are issued are intended to achieve."

For the above reasons the writ petition fails.

WP 12125(W) of 2015 stands dismissed.

Interim order, if any, stands discharged.

Urgent certified photocopies of this judgement, if applied for, be given to the learned advocates for the parties upon compliance of all formalities.