IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.5655 of 2010 M/S EXPRESSION A PROPRIETARY FIRM THROUGH ITS PROPRIETOR ARINDAM GUHA S/O SHRI BENOY BHUSHAN GUHATHAKURTA, R/O 2ND FLOOR, SHEOHAR SADAM, FRASER ROAD, PATNA-800001. …… PETITIONER. VERSUS 1. EAST CENTRAL RAILWAY THROUGH ITS GENERAL MANAGER, HAJIPUR-844109. 2. GENERAL MANAGER, EAST CENTRAL RAILWAY, HAJIPUR-844 101. 3. THE PUBLIC RELATION OFFICER, EAST CENTRAL RAILWAY, HAJIPUR-844 109. ….. RESPONDENTS. ----------- For the petitioner : Mr. Amit Prakash, Advocate. For the respondents : Mr. Siddharth Prasad, Advocate. ------- 05/ 03.12.2010 Heard learned counsel for the petitioner and learned counsel for the East Central Railway and its authorities. 2. This writ petition has been filed by the petitioner challenging the part of tender notice dated 18.12.2009 for the empanelment of advertising agency, wherein the minimum turnover has been arbitrarily increased from Rs.2.5 crores to Rs.10 crores, which according to the petitioner is meant merely to prejudice the petitioner’s firm and for other ancillary reliefs. 3. Learned counsel for the petitioner submits that petitioner is a duly empanelled advertising firm for the year 2009- 10 and earlier minimum turn over was fixed at Rs.2.5 crores for the purpose. Learned counsel for the petitioner submits that other zones have greater work but there is no such condition and the only condition is that the firm must be INS Accredited Agency. But in the instant zone, neither there is involvement of any huge - 2 - money, nor even the volume of work of the firm has increased and hence enhancement was not at all justified. 4. Learned counsel for the petitioner further submits that this is not a civil contract rather it is only for the purposes of advertisement for which greater financial credibility was not required, rather larger advertising skill was the requirement and in that situation the petitioner was included among five firms empanelled for the purposes, but by the impugned action only the petitioner is sought to be removed, hence it is quite arbitrary as due to inclusion of the petitioner no prejudice was going to be caused to the Railway, rather they get larger scope and choice. He relies upon two decisions, one of the Apex Court in case of Association of Registration Plates Vs. Union of India and others, reported in (2005) 1 SCC 679 and the other of this court in case of PVC Pipe Manufactures Welfare Association of Bihar & Ors Vs. The State of Bihar & Ors., reported in 2008(1) PLJR 822 and submits that arbitrary choice of contract which was discriminatory cannot be allowed and the High Court under the scope of its jurisdiction of judicial review can interfere in the matter. 5. Learned counsel for the petitioner also avers that from the impugned order it would be apparent that enhancement was made by the Public Relation Officer and it was not even approved by the General Manager of the East Central Railway who is the competent authority and in any view of the matter, no reason has been given for the said purpose. Hence, he avers that the - 3 - impugned action of the authority concerned is fit to be quashed. 6. On the other hand, learned counsel for the respondents submits that such criteria was existent in other zones also which is apparent from the statement made by the petitioner in paragraph 13 of the writ petition although it was not Rs.10 crores, but the criteria of lesser amount was always there. Learned counsel for the respondents also submits that the Railway Board had also sent letters to different Railway Zones/Units with the guidelines for hiring an advertising agency on contractual basis and the highlights included that the detailed terms/ conditions, criteria of selection, the number of agencies to be empanelled may be formulated by the respective Railways/ Units and hence the respondent-Railway was fully authorised to fix its own criteria, terms and conditions for the said purpose. He further submits that the said criteria was formulated after the approval of the competent authority of the East Central Railway and hence there was no occasion for any presumption that it was without any authority or approval. He claims that the East Central Railway has made five modifications in the new eligibility criteria for the purpose which is fully detailed in paragraph 9 of its counter affidavit. Learned counsel for the respondents relies upon a decision of the Apex Court in case of Directorate of Education and others Vs. Educomp Datamatics Ltd. & others, reported in (2004) 4 SCC 19 in which the amount of turn over was enhanced from Rs.2 crores to 20 crores and the Supreme court affirmed it holding that the criteria is - 4 - to be fixed on public policy by the authorities concerned. 7. From the aforesaid arguments of learned counsel of both the parties as well as from the materials on record, it is quite apparent that abovementioned criteria were fixed on full approval of the authorities of the East Central Railway. Furthermore, although the said criteria affected only the petitioner’s concern out of five empanelled firms, but there is no material at all to come to the conclusion that it was arbitrary or malafide with the intent to oust the petitioner, rather it had been specifically stated that the aforesaid modifications were made to ensure that more experienced, professional, authentic, creative and robust firms are empanelled by the East Central Railway as such empanelled agency play a pivotal role between the Railway and the Media and the activities of the advertising agencies are also very sensitive in nature and is directly the cause of concern of the organisation and hence the East Central Railway was quite justified in deciding the eligibility criteria for the purpose of fulfilling its aim in that regard on the basis of relevant mathematical data like growth in the overall advertising business, the probability of business to be offered by the East Central Railway in coming years and the growth in the business of the concerned advertising agencies. 8. In the aforesaid facts and circumstances, it is quite apparent that the impugned steps taken by the respondents- authorities are not arbitrary in nature, rather it is a public policy adopted by the authorities which has affected the petitioner only - 5 - because of petitioner’s own turn over, hence this court does not find it proper to interfere in the matter. Accordingly, this writ petition is dismissed. Sunil (S. N. Hussain, J.)