Dr. Arijit Pasayat, J.— Leave granted in SLP (C) No. 24219 of 2003.
2. The point involved in these cases essentially is the purchase preference given to public sector enterprises (in short “PSEs”). The petitioners have made a grievance that the key players in the market are petitioners, Caterpillar and Bharat Earth Movers Ltd. Most important purchaser for all these are coal fields, for example Western Coal Fields and its subsidiaries, Coal India Ltd. They are invariably the purchasers in respect of earth moving machines. Prior to 1992 price preference was given to PSEs. Post 1992 purchase preference was given and the lowest and the second lowest bidders were being described as L-1 and L-2. Purchase orders were issued by Coal India Ltd., broadly in the ratio of 60:40 and the L-2 was required to match the L-1 price. The language used earlier was “may” as indicated by Circular dated 13-1-1992. The purchase preference policy was extended by office memorandum dated 15-3-1995 for a further period of two years. It was further extended till 21-3-2000 by office memorandum dated 31-10-1997, subject to purchase being in excess of Rs 5 crores. By office memorandum dated 14-9-2000, the policy was extended till 31-3-2002. However, the minimum value of purchase was brought down to rupees one crore. By office memorandum dated 14-6-2002, the policy was extended till 31-3-2004 and the scheme was made valid for purchase of rupees five crores and above. By office memorandum dated 26-10-2004, which extended the policy for one year up to 31-3-2005 retrospectively from 1-4-2004. By office memorandum the policy was extended for a period of three years retrospectively with effect from 18-7-2005. The word “may” was substituted by the word “will” by this office memorandum. According to the petitioners the intention was to give somewhat longer period for stabilising all PSEs. It never intended to create any monopoly.
3. Grievance is made that substitution of the word “may” by the word “will” is arbitrary. The word “may” gives a wider option to the tenderers and all the tenderers were on a level playground without any unnecessary protection to any of the parties.
4. It is pointed out that on 15-3-1995 office memorandum was issued extending the time to purchase preference up to 31-3-1997. It was further reintroduced for a period of three years up to 31-3-2000. Again, it was extended up to 31-3-2002. By further office memorandum dated 14-6-2002 the existing purchase preference is for products and services to Central public sector enterprises was extended by two years up to 31-3-2004. The legality of the office memorandum dated 14-6-2002 is challenged contending that it is arbitrary and affects the legitimate expectation of the various parties. In fact it creates a monopoly and the policy without any sanctity of law.
5. The respondents opposed the petition primarily on the ground that there is no substance in the allegations. Benefit is not given only in respect of the parties covered by these petitions. The office memorandum dated 13-1-1992 was issued by the Department of Public Enterprises, Ministry of Industry, Government of India stating that in respect of granting price preference to PSEs, the Government may grant purchase preference to PSEs by price quoted by them which is less than 10% of the lowest price, other conditions being equivalent. It was stated that the policy was valid for three years' period as transaction within which PSEs were to adjust to the new global business environment and improve competitive efficiency.
6. The above purchase preference policy was extended on 15-3-1995 for a further period of 2 years and it was stated that the said extension was final and the earlier policy would automatically lapse. During 1997 the purchase preference was further extended up to 31-3-2000. This was in relation to purchases in excess of Rs 5 crores. By the office memorandum dated 14-9-2000 the policy was extended till 31-3-2002 and the minimum value of purchase was brought down to Rs 1 crore from Rs 5 crores.
7. By office memorandum dated 14-6-2000 the PSEs purchase preference was extended for a further period of 2 years till 31-3-2004 and the scheme was made valid in respect of purchase of Rs 5 crores and more.
8. Grievance is made that with a view to show preference the practice of splitting the tender was introduced. This according to the petitioners had caused immense difficulties. By office memorandum dated 18-7-2005 the Government of India reintroduced/extended the earlier purchase preference policy retrospectively from 1-4-2005 for a period of 3 years till 31-3-2008. This policy contains certain modified conditions which were different from the past policies. These policies are basically under challenge. The language used unlike the earlier policy on 14-6-2002 which used the expression that purchase preference may be granted, was “will”.
9. We find that the basic challenge is that by imposing a condition like purchase preference no option is left and a monopoly is being created. The increase in effectiveness of PSEs cannot be done on a uniform policy without examination as to whether such protection is necessary for a particular PSE. It has to be examined individually as to whether any differential treatment is called for. It is pointed out that there may be no competition left if 10% margin is given. In essence, the submission is that the preference should be given PSE specific and the margin also has to be examined rationally.
10. We feel that these are the aspects which need to be considered by the Ministries concerned. We, therefore, direct that industry-wise assessment be done and if there is already cost effectiveness in any PSEs there may not be any need for the preference being given. The examination should be on the line as to whether any preference is called for and what would be the margin of preference which would ensure level playing field. It should also be fixed specifically and while fixing the minimum amount it should be ensured that breaking of the quantity should be rational, so that there is no likelihood to introduce an element of uncertainty. If the object was to invite foreign direct investment, the impact of the preference on such investment has to be considered. It shall also be considered as to whether some amount of discretion as was given earlier has to be reintroduced. There cannot be certainly any rigid inflexible policy. Because of the substitution of the word “may” by “will” there is essentially reversal of the policy. Therefore, the applications are disposed of with the following directions:
(1) The exercise, as noted above, shall be undertaken by the Ministry concerned of the Central Government within a period of 4 months from today.
(2) The interim arrangements operative presently shall continue till a fresh reconsideration is made by the departments concerned of the Government of India.
(3) The interim orders shall not be restricted to the petitioners, appellant and the respondents. It shall only be binding on the parties who are L-1 and L-2 in the transaction concerned. While fixing the norms, the capacity of delivery of PSEs concerned and the competitors has also to be taken note of.
11. Appeal and applications are accordingly disposed of.