ORDER [ENTITY], J.
1. This writ petition is for a writ of certiorari to quash Ext. P4 order reducing the commission due to the petitioners as illegal, unjust and wrong, for a writ of mandamus directing the respondents to pay the commission to the petitioners at the rates prescribed in Ext. P2 revision including the arrears collected from the date of Ext. P2, and also for a direction to dispose of Exts. P5, P6 and P7 representations.
2. Petitioners are handicapped persons incapable of doing normal wage earning work. They have taken advantage of the benefit offerred to them by the Government of India for running public telephone booth on a commission basis. For this purpose, they entered into an agreement, Ext. P3 is the pro forma of the agreement entered into between the petitioners and the Government of India. The 1st clause of the agreement reads as under:
"l. The part of the second part hereby confirm that he/she gone through the [ACT] and agrees to abide by the rules in respect of Public Call Offices.
Clause 10 of the agreement states as follows :
" He shall be entitled to a commission of 20 paise for every effective call. In addition, he/she will receive 5 paise per metered unit for STD calls. He/she will prefer a bill for such commission and the same will be paid by AB TR after proper verification with the number of calls and the amount realised."
Clause 16 of the agreement is in the following terms:
"16. In the case of any dispute, regarding this agreement, the decision of the Government shall be final and binding on the part of the second part."
The agreement, Ext. 3, is entered into as per the provisions contained in [SECTION] of the [ACT]. Under [SECTION] of the said Act, nothing in the section or in any rule made thereunder shall be construed as precluding the Central Government from entering into an agreement with a person. Ext. P3 agreement is entered into in accordance with the provisions of the [ACT]. The agreement is not a rope of sand as explained by the Supreme Court in the decision in [PRECEDENT]. There is no provision in the agreement that the commission payable under the agreement can be revised from time to time by the Government and that if such a revision is made, the same will be binding on the parties. The only provision in the agreement is clause 1 extracted above, viz. that the petitioners should abide by the [ACT] in respect of Public Call Offices. No provision is brought to my notice in the [ACT], or the Rules thereunder, on the basis of which the commission can be reduced. There is an averment in the counter affidavit filed on behalf of the respondents to the effect that:
" Even as per Ext. P3, the Department is competent to vary or alter the percentage of commission payable to the attendants. The Department has revised the percentage of commission payable to the attendants. Ext. P4 is in exercise of the discretion given to the Department vide Ext. P3 agreement to which they also agreed to abide by while executing the said agreement. Having, thus, agreed to abide by any change or variation that the Department may give effect to in exercise of its discretion on policy matters from time to time the petitioners have no local, contractual or constitutional right to impugne the same."
Even though averment to that effect has been made, I could not find any basis for the same in the agreement or the Rules. There is no clause in the agreement, or any provision in the Rules, authorising the Department to bring about such a change. Therefore, the contractual right of the petitioners to get commission at the rate indicated in the contract cannot be denied until modification of the contract is made according to law. A similar question concerning the right of the Kerala State Electricity Board to enhance, unilaterally, the tariff in spite of the contractual stipulation, arose for consideration in [PRECEDENT] where the Supreme Court held as under (at page SC 1978 of AIR):
"The facts and circumstances giving rise to the present appeal are in material respects identical with those in [PRECEDENT] which we have disposed of by a judgment delivered this morning. The judgment in [PRECEDENT] (supra) will, therefore, govern the decision of the present appeal as well.
2. We accordingly issue a writ quashing and setting aside the notification dated November 28,1989 in so far as it seeks to make the tariffs specified in it applicable to the appellant and declare that the Board is not entitled to claim from the appellant any thing more than the charges specified in the agreement dated October 26, 1964. We also issue a writ restraining the Board from enforcing the notification dated November, 28, 1969 against the appellant or claiming from the appellant any thing more than the charges specified in the agreement dated October 26, 1964. The appeal is accordingly allowed."
The principle has been further explained in [PRECEDENT] as under (at page SC 1976) :
"17. Now, in the present case, as we have already pointed out above, the stipulations as lo charges contained in the agreements entered into with the appellant were made in exercise of the statutory power to fix special tariffs conferred under [SECTION], and, therefore, there could be no question of such stipulations being void as fettering or hindering the exercise of the statutory power under that provision. These stipulations did not divest the Board of this statutory power of fetter or hinder its exercise ; in fact, they represented the exercise of this statutory power. Once the agreements were made containing these stipulations, it was not competent to the Board to override these stipulations which were binding as having been validly made in exercise of statutory power. The Board could not enhance the charges in breach of these stipulations. To hold that the Board could unilaterally revise the charges notwithstanding these stipulations, would mean that the stipulations had no binding effect, or in other words, the Board had no power to enter into such stipulations. That would negate the existence of statutory power in the Board under [SECTION] to fix the charges for a specific period of time, which would be contrary to the plain meaning and intendment of the section. The Board was also not competent to enhance the charges under the guise of fixing uniform tariffs for all high tension consumers, including the appellant, under [SECTION], because Sub-section (1) is, on its plain language, subject to [SECTION] and once special tariffs were fixed for the appellant under [SECTION], there could be no question of fixing uniform tariffs applicable to the appellant under [SECTION], Ext. P4 is only an administrative direction to all General Managers for implementation. I need not quash Ext. P4 in these proceedings. Petitioners are only aggrieved by its application to the contract to deny the commission due to them according to the contract. Therefore, Ext. P4 cannot be a ground for denying the benefit to the petitioners, by unilaterally altering the contract. Before implementation of Ext. P4, the respondents will have to issue notices to the petitioners and get Ext. P3 agreement modified. Till then, the petitioners are entitled to get commission as per the agreement entered into by them with the Government, provided that there is no stipulation in the contract or in other statutory provisions governing the contract giving power to the Department to change the stipulation regarding commission.
3. I am not unaware that in contractual matters this Court will not ordinarily probe into the merit of the case. But that is not a question of jurisdiction, but only a matter of expediency. In this case, the petitioners are all poor handicapped persons incapable of carry ing on normal wage earning work and in such case, when this Court is satisfied that injustice has been done to them, the Court is not powerless to remedy the situation. In [PRECEDENT] the Supreme Court held that if an agreement is entered into in performance of its statutory duty as in this case under/[SECTION] of the Act, the Court is not powerless to enforce the same. In paragraph 12 of the judgment the Supreme Court observed:
"12. Now if appellant entered into a solemn contract in discharge and performance of its statutory duty and the respondent acted upon it, the statutory corporation cannot be allowed to act arbitrarily so as to cause harm and injury, flowing from its unreasonable conduct, to the respondent. In such a situation, the Court is not powerless from holding the appellant to its promise and it can be enforced by a writ of mandamus directing it to perform its statutory duty. A petition under [SECTION] of the [ACT] would certainly lie to direct performance of a statutory duty by 'other authority' as envisaged by [SECTION]."
When power is exercised arbitrarily, even in contractual matters Court can interfere. In [PRECEDENT] at page 228) the Supreme Court observed (at page SC 551 of AIR):
"29. It can no longer be doubted at this point of time that [SECTION] of the [ACT] applies also to matters of Government policy and if the policy or any action of the Government, even in contractual matters, fails to satisfy the test of reasonableness, it would be unconstitutional (See [PRECEDENT] and [PRECEDENT]. In [PRECEDENT] while the discretion to change the policy in exercise of the executive power, when not trammelled by the statute or rule, was held to be wide, it was emphasised as imperative and implicit in [SECTION] of the [ACT] that a change in policy must be made fairly and should not give the impression that it was so done arbitrarily or by any ulterior criteria. The wide sweep of [SECTION] and the requirement of every State action qualifying for its validity on this touch-stone, irrespective of the field of activity of the State.'has long been settled."
Hence, judicial scrutiny cannot be avoided altogether on the plea that the matter falls within the realm of contract. Even though the Court will be circumspect in interfering with the contractual arrangement, on an anxious consideration of the petitioner's case, I am prima facie of the opinion that the petitioners are. entitled to commission as mentioned in Ext. P3 agreement until the same is modified or varied according to law. Of course, in the agreement itself provision is made for resolv-. ing the dispute by arbitration. In this case, I need not direct the parties to arbitration as I am only directing the authority to look into the petitioner's grievance ventilated in this writ petition, in the light of the contract.
4. In the Original Petition the relief sought for is for a writ of certiorari to quash Ext. P4, for a direction to pay commission to the petitioners at the rate prescribed in Ext. P2 revision, including the arrears collected from the date of Ext. P2, and to dispose, of Exts. P5, P6 and P7 representations and also for an order prohibiting the respondents from implementing Ext. P4 order against the petitioners. The attack against Ext. P4 is based on Ext. P3 which is only the proforma of the agreement. The writ petition does not give clear factual details. The original or copy of the agreement also is not made available. I have already stated that if there is a rule made under the [ACT] reducing the commission, then by virtue of [SECTION] agreement, the respondents can effect the modification without further change in the agreement. Even though there is an averment to the effect that there is a rule by which the petitioners are bound, I could not find such a rule. In the circumstances, therefore, I thought it will be better, having laid down the law as above, to direct the 3rd respondent to dispose of the representations.
5. In Hamlyn Lectures fortyfirst series by Right Hon' Sir [ENTITY] on "Protection of the Public A New Challenges" at page 18 it is stated as follows :
"Although it is too much to expect a department to welcome the scrutiny of the Courts, they should realise that the effect of that scrutiny is to protect the interests of the citizen and at the same time to raise administrative standards. Nonetheless, I do recognise that complaints are raised by Government departments that judges are insufficiently aware of the problems with which administrators are faced and that on occasions they are required to adopt unrealistic standards in order to comply with decisions of the Court. It is perhaps unnecessary to determine whether these complaints are justified or not; it is sufficient that some civil servants at the highest level consider they are justified. Action should therefore be taken to remedy the situation. In my view a contributory factor to the problem, in addition to lack of legal training of civil servants, is that there is virtually no interchange between the judiciary and administrators as to the supervisory role performed by the Courts in relation to administrative action."
In view of this, the best approach in the list of the inadequate information available is to direct the respondents to dispose of the representations as above, keeping in mind the observations contained in this judgment.
I, therefore, direct respondents 3 and 4 to dispose of Exts. P5 and P7 as expeditiously as possible.
The Original Petition is disposed of as above.