IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC FRIDAY, THE 6TH MARCH 2009 / 15TH PHALGUNA 1930 WP(C).No. 4992 of 2009(T) -------------------------------- PETITIONER(S): ----------------- D.SISUPALAN, AGED 41 YEARS, S/O.DIWAKARAN, PUNNAMOOTTILTHEKKETHIL HOUSE, MANAKKADU P.O., THODUPUZHA, IDUKKI DISTRICT. BY ADV. SRI.C.P.SAJI RESPONDENT(S): -------------------- 1. STATE OF KERALA, REPRESENTED BY ITS SECRETARY, GENERAL ADMINISTRATION DEPARTMENT, SAINIK WELFARE, TRIVANDRUM. 2. THE KERALA STATE ELECTRICITY BOARD, REPRESENTED BY ITS CHIEF ENGINEER (CIVIL), PATTAM, TRIVANDRUM. 3. THE DEPUTY CHIEF ENGINEER , KERALA STATE ELECTRICITY BOARD, GENERAL CIRCLE, MOOLAMATTOM, IDUKKI DISTRICT. 4. THE MANAGING DIRECTOR, KERALA STATE EX-SERIVCEMEN DEVELOPMENT AND REHABILITATION CORPORATION, TRIVANDRUM. GOVT.PLEADER SRI.P.N.SANTHOSH SRI.P.P.THAJUDEEN, SC, KSEB THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ANTONY DOMINIC, J. ================ W.P.(C) NO. 4992 OF 2009 (T) ===================== Dated this the 6th day of March, 2009 J U D G M E N T Petitioner is the proprietor of M/s.Appolo Industrial Security Force, Thodupuzha engaged in the business of supplying security guards to various establishments including that of the 2nd respondent. Exts.P1 to P3 are the work orders issued by the 2nd respondent, the Kerala State Electricity Board, to the petitioner. 2. Petitioner states that the 2nd respondent had invited tender for providing security guards for their Malankara Power House and the petitioner submitted his bid. According to the petitioner, although he was the lowest tenderer, by Ext.P4, he was informed that his bid was rejected for the reason that his concern was not one organized by Zilla Sainik Board or sponsored by the 4th respondent. A reading of Ext.P4 shows that the bid was rejected relying on GO(MS) No.179/05/GAD dated 4/6/05, a copy of which is Ext.P5. The relevant portion of Ext.P5 reads as under. 4. Government after having examined the matter in detail, order that all Departments, Public Sector Undertakings, Local Bodies, other Quasi Government organizations and establishments will engage the security personnel sponsored by the Kerala State Ex-servicemen Development and Rehabilitation corporation only for the security related duties. The appointment of such security WPC 4992/09 :2 : personnel sponsored by the Kerala State Ex-servicemen Development and Rehabilitation Corporation will be on contract basis. 5. The appointment of Security Guards made through the Public Service Commission will continue to be made in the institutions where the recruitment of such personnel are handed over to the Public Service Commission. 3. It is in view of the above, this writ petition has been filed praying to declare Ext.P5 to be unconstitutional and to direct the respondents to permit the petitioner to participate in the tender proceedings and to allow him to supply Ex-servicemen as security guards. 4. The main question that arises for consideration in this writ petition is the validity of Ext.P5 Government order referred to above. A reading of Ext.P5 shows that the 4th respondent was incorporated by the Government with a view to implement schemes for the welfare and rehabilitation of Ex-servicemen and their dependents. In order to achieve the aforesaid object, the Government had issued circular dated 7/1/2003 directing that all Heads of Departments, Public Sector Undertakings, Local Bodies and other Quasi Government organizations and establishments to approach the 4th respondent and receive security services sponsored by them and not from any other source. It was also WPC 4992/09 :3 : provided that the existing contract with any private agency can be terminated as per the provisions of the contract and that they can enter into a fresh contract with the 4th respondent. A reading of Ext.P5 also discloses that the 4th respondent by its letter dated 13/1/2005 reported to the Government that inspite of the circular referred to above, no organisation had approached them for security related services. It was in this background that the Government issued Ext.P5. 5. Thus, it is obvious that the 4th respondent was incorporated for the implementation of schemes for the welfare and rehabilitation of Ex-servicemen and their dependents. In order to achieve the aforesaid object, the Government had issued circular dated 7/1/2003 directing engagement of only security services sponsored by the 4th respondent and since that circular was not complied with, Ext.P5 was issued. Therefore, Ext.P5 is only a reiteration of the policy decision that the Government had already taken and communicated by its circular dated 7/1/2003. It is in the aforesaid background that the validity of Ext.P5 has to be examined. 6. In this writ petition, there is no challenge to the circular WPC 4992/09 :4 : dated 7/1/2003 and therefore, it may not be possible for the petitioner to claim any effective relief confining his challenge to Ext.P5 where the earlier decision was only reiterated. 7. Counsel for the petitioner contended that Ext.P5 Government Order is arbitrary and unconstitutional as it violates the petitioner's fundamental rights guaranteed under Article 14 and 19 of the Constitution of India. According to him, Ext.P5 reflects a clear case of discrimination and he is deprived of his fundamental right to carry on his trade and to compete in a tender invited by respondents 2 and 3 for the only reason that his organisation is not one sponsored by the 4th respondent. It was also contended that the 2nd respondent which has the right to choose its security agency is also deprived of its freedom of choice. It was contended that Ext.P5 will result in the creation of monopoly of organizations sponsored by the 4th respondent violating the petitioner's fundamental right guaranteed under Article 14 and 19 of the Constitution also. 8. Thus, the question to be examined is whether Ext.P5 offends the provisions contained under Article 14 and 19 of the Constitution of India. WPC 4992/09 :5 : 9. In my view, the impugned Government Order does not offend Article 14 of the Constitution and the direction contained therein cannot be held to be vitiated for being arbitrary, capricious or unreasonable. The Government Order itself provides that the 4th respondent was incorporated for implementing welfare schemes for the Ex-servicemen and their dependents. In order to achieve the aforesaid object, the Government have directed that henceforth all Departments, Public Sector Undertakings, Local Bodies and other Quasi Government Organizations and other establishments will engage security personnel sponsored by the 4th respondent. Petitioner cannot cannot contend that by Ext.P5, he has been prevented from providing security related services. On the other hand, it only provides that Government and Governmental Agencies and Organizations where the Government has substantial interest should engage security agencies sponsored by the 4th respondent. 10. While examining the validity of Ext.P5, one must bear in mind that to ascertain the unreasonableness and arbitrariness of Ext.P5 in the context of Article 14 of the Constitution, it is not necessary for this Court to undertake the task of finding out the WPC 4992/09 :6 : wisdom of the policy decision as reflected in the Government order. It may be true that a better, wise or more comprehensive policy decision could have been taken. But, unless the policy evolved is capricious or arbitrary and is not one informed by any reason whatsoever, or that it suffers from the vice of discrimination or infringes upon any statute or provisions of the Constitution, a policy decision cannot be struck down by a Court of law, the power of which is only to examine its illegality or unconstitutionality, within the above parameters. 11. The law is well settled that even in the matter of grant of largess, award of job contracts etc., the Government is entitled to depart from the general norms set down by it in favour of a particular group of persons by subjecting such persons with different standards or norms, provided such departure is not arbitrary, but based on some valid principle which, in itself is not irrational, unreasonable or discriminatory.(See in this connection, the judgment in Ramana Daya Ram Shetty v. International Airport Authority of India {1979(3) SCC 489}) and Krishnan Kakkanth v. Government of Kerala {(1997) 9 SCC 495}. A reading of Ext.P5 shows that none of the vitiating circumstances WPC 4992/09 :7 : pointed out above have been made out in this case in order to hold that Article 14 is attracted in any manner. 12. Then, what remains is the contention of the counsel for the petitioner that Ext.P5 violates the fundamental right of the petitioner guaranteed under Article 19 of the Constitution. True under Clause (1) (g) of Article 19, every citizen has the freedom and right to choose his own employment or take up any trade or calling subject only to the limits as may be imposed by the State in the interests of public welfare and the other grounds mentioned in Clause (6) of Article 19. But it needs to be noticed that the Constitution does not recognize in favour of anybody, any right to do business with the State. Further, the fundamental right guaranteed under Article 19 of the Constitution are not absolute, but are subject to reasonable restrictions to be imposed against enjoyment of such rights, the reasonableness of which are to be determined in an objective manner and not from the stand point of the interests of the person upon whom the restrictions are imposed or upon abstract considerations and a restriction cannot be said to be unreasonable merely because in a given case it operates harshly. It may also be indicated that where a right is WPC 4992/09 :8 : conferred upon a particular individual or group of individuals to the exclusion of others, the reasonableness of the restriction has to be determined with reference to the circumstances relating to the trade or business in question. 13. Although a citizen has the fundamental right to carry on a trade or business, he has no fundamental right to insist upon the Government or any other individual to do business with him. Any Government or a Governmental Organization or an individual has got a right to enter into contract with a particular person or to determine a person or persons with whom he or it will deal. 14. In the instant case, the Government have only ordered that the Governmental organizations mentioned in Ext.P5 shall henceforth engage only organizations sponsored by the 4th respondent, another Public Sector Undertaking under the Government. In my view, so long as the petitioner has no fundamental right to insist that the Government should do business with him, it is open to the Government to say that the Public Sectors shall do business in the manner as directed in Ext.P5. 15. While examining the impact of Ext.P5 in the context of WPC 4992/09 :9 : Article 19(1)(g) of the Constitution of India, one must also bear in mind that the infringement of the fundamental right must have a direct impact on the restriction on the freedom to carry on trade and not ancillary or incidental effect on such freedom to trade, arising out of the Governmental action. It has been held by the Apex Court in Viklad Coal Merchant v. Union of India (1984 (1) SCC 619) that unless the trader is not wholely denied his right to carry on his trade, the restriction imposed does not offend Article 19(1)(g) of the Constitution. In this case, no prohibition has been imposed on the trading activities of the petitioner. The agencies such as that of the petitioner, even in the absence of Ext.P5, cannot claim, as a matter of fundamental right guaranteed under Article 19(1)(g), that a Public Sector Undertaking must enter into a business deal with them. Similarly, the petitioner also cannot claim that the Government should accept him as an approved agency. 16. For the aforesaid reasons, the petitioner cannot contend that the restriction imposed is one attracting the provisions of Article 19(1)(g) of the Constitution. This view is fully supported by the law laid down by the Apex Court in Krishnan WPC 4992/09 :10 : Kakkanth v. Government of Kerala (1997 (9) SCC 495). Necessarily, therefore, the contention raised by the counsel for the petitioner relying on Article 19(1)(g) of the Constitution also deserves to be rejected and I do so. Therefore, on both grounds the writ petition is only to be dismissed and I do so. ANTONY DOMINIC, JUDGE Rp