JUDGMENT : I.M. Quddusi, A.C.J. 1. This writ petition has been filed with a prayer to quash the decision taken by opposite party Nos. 1 and 2 in implementing the Office Memoranda dated 11.11.1994, 18.3.1996, 1.2.1999 and 4.10.2005. 2. National Aluminium Company Limited (in short 'NALCO') is an undertaking of the Government of India which engages security guards for the purpose of security of the Factory/Offices. The Petitioner company is a private limited company registered under the Companies Act, 1956 whose main aim and object is to set up and provide complete security systems to the Banks, individuals, commercials and Government establishments incorporated since in the year 1988. Initially the Petitioner-company was knows as Raj Security India Private Limited and consequent upon the change of name at present it is incorporated as G4S Security Services (India) Private Limited having its registered Office at New Delhi and Regional Office at Bhubaneswar (Orissa). It is having other branches in other parts of the country also. The Petitioner company has been engaged for providing security to NALCO since 1998 vide Work Order No. CPP/H&A/98/4037 dated 25.5.1998 in NALCO Township, S&P complex, Angul and has been continuing as such till date with opposite party Nos. 6 & 7 by virtue of extension of the contract, the last being expiring on 31.7.2008. In the meantime, an advertisement was published by NALCO in the newspaper inviting tenders for providing comprehensive security services from DGR sponsored security agencies only for NALCO, meaning thereby that the Petitioner and other Security Companies are deprived of applying this time. Hence, the Petitioner filed the instant writ petition challenging the said advertisement. 3. Sri S.D. Das, learned Senior Advocate appearing for the Petitioner has submitted that the Private Security Agencies (Regulation) Act, 2005 (in short 'The Act, 2005') has come into force with effect from 23.6.2005 and in view of the said Act, the preference in employment, as a security guard, is given to as person who has served as a member in one or more of the services, namely, Army, Navy, Air Force, any other armed forces of the Union, Police, including armed constabularies of the States and Home Guards. Therefore, if security agencies sponsored by the DGR are only held eligible under tender notice, the other private security agencies having ex-armed forces personnel would be deprived of submitting tenders and in that case, no member of the armed forces would prefer to join private security agencies due to noneligibility. 4. Vide Office Memorandum dated 4.10.2005 issued by the Government of India, Ministry of Heavy Industries and Public Enterprises, Department of Public Enterprises, all the administrative ministries/departments were requested to issue necessary instructions to the Public Sector Enterprises under their administrative control to obtain contract security services from the Directorate General of Resettlement (DGR) or from State ESM Corporations for sponsoring Ex-Servicemen Security agencies on their panel. 5. Sri S.D. Das, learned Senior Advocate for the Petitioner has submitted that the impugned tender notice issued by the NALCO is against the spirit of Act, 2005, and frustrates the provisions of Sub-Section 3 of Section 10 of the Act, 2005. 6. In the counter affidavit, reliance has been placed on the order dated 2.2.2002 passed in O.J.C. No. 13894 of 1999, which was filed by a private security agency namely M/s. Investigation & Security Services (India) Private Limited, Hyderabad in this Court against the NALCO, which was providing security personnel to the Government, semi-government, public sector and private sector undertakings in which a decision was taken by the Central Government that the security agencies be engaged from out of the panel maintained and sponsored by the DGR and the State Ex-servicemen Security Corporations. It has further been submitted that the NALCO, being a National Public Sector undertaking is bound by the Office Memorandum and guidelines issued by the Central Government in appropriate department from time to time and there is no violation of either the principle of equality or natural justice or there was no arbitrary action on the part of the opposite parties. 7. As the Act, 2005 was enacted to provide for the Regulation of private security agencies and for matters connected therewith or incidental thereto, before proceeding further, it is necessary to peruse certain provisions of the Act, 2005, which is reproduced as under: 10. Eligibility to be a private security guard. 7. As the Act, 2005 was enacted to provide for the Regulation of private security agencies and for matters connected therewith or incidental thereto, before proceeding further, it is necessary to peruse certain provisions of the Act, 2005, which is reproduced as under: 10. Eligibility to be a private security guard. (1) A private security agency shall not employ or engage any person as a private security guard unless he (a) is a citizen of India or a citizen of such other country as the Central Government may, by notification in the Official Gazette, specify; (b) has completed eighteen years of age but has not attained the age of sixty-five years; (c) satisfies the agency about his character and antecedents in such manner as may be prescribed; (d) has completed the prescribed training security training successfully; (e) fulfils such physical standards as may be prescribed; and (f) satisfies such other conditions as may be prescribed. (2) No person who has been convicted by a competent court or who has been dismissed ore removed on grounds of misconduct or moral turpitude while serving in any of the armed forces of the union, State Police Organization, Central or State Governments or in any private security agency shall be employed or engaged as a private security guard or a supervisor. (3) Every private security agency may, while employing a person as a private security guard, give preference to a person who has served as a member in one or more of the following, namely: (i) Army; (ii) Navy; (iii) Air Force; (iv) any other armed forces of the Union: (v) Police, including armed constabularies of States; and (vi) Home Guards. 24. Framing of model rules for adoption by States: The Central government may frame model rules in respect of all or any of the matters with respect of which the State Government may make rule under this Act, and where any such model rules have been framed the State Government shall, while making any rules in respect of that matter u/s 25, so far as it practicable, conform to such model rules. 25. Power of State Government to make rules: (1) The State Government may, by notification, make rules for carrying out of the provisions of this Act. 25. Power of State Government to make rules: (1) The State Government may, by notification, make rules for carrying out of the provisions of this Act. (2) In particular, and without prejudice to the generality of the foregoing power, such rules may be provide for all or any of the following matters, namely: (a) the procedure for verification of' character and antecedents under Clause (c) of Sub-section (1) of Section 10; the type of training under Clause (d) of Sub-section (1) of Section 10; the physical standards under Clause (e) of Sub-section (1) of Section 10; and other conditions under Clause (f) of Sub-section (1) of Section 10; (b) the number of supervisors to be employed under Sub-section (3) of Section 9; (c) the form of any application for grant of licence under Sub-section (1) of Section 7; (d) the form in which the licence to be granted under Sub-section (4) of Section 7 and conditions subject to which such licence to be granted u/s 11; (e) the form of an application for renewal of licence under Sub-section (1) of Section 8; (f) the form under Sub-section (2) of Section 14 for preferring an appeal; (g) particulars to be maintained in a register under Sub-section (1) of Section 15; (h) the form in which photo identity card under Sub-section (2) of Section 17 be issued; and (i) any other matter which is required to be, or may be, prescribed. (3) Every rule made by the State Government under this section shall be laid, as soon as may be after it is made, before each House of the State Legislature where its consists of two House, or where such Legislature consist of one House, before that House (4) In respect of Union Territories, every rule made to carry out the provisions of the Act shall be laid before each House of Parliament and where there exists a Legislative Assembly, before that Assembly. 8. 8. The question before this Court is if under Sub-section (3) of Section 10 of the Act, 2005, while employing a person as a private security guard, preference is to be given to ex-servicemen, those ex-servicemen employed by private security agencies would not be able to be engaged in view of the restrictions imposed by the circulars that only DGR sponsored exservicemen company would be able to be engaged and in that case the whole purpose of the provisions of Sub-section (3) of Section 10 would be frustrated if ex-servicemen employed by the private security agencies are deprived of getting employment because of the reason that they are employed by private security agencies. 9. In our view, if the opposite parties-NALCO want to engage only ex army, navy, air force personnel, they could mention the requirement in the tender call notice but depriving those ex-servicemen, who are employed by private security agencies and making eligible those ex-servicemen or security agencies, who are having only exclusively ex-servicemen would certainly discriminate those ex-servicemen, who are employed by private security agencies. Therefore, they could have mentioned in the tender call notice that only those security agencies- either ex-servicemen or private who would be able to supply only ex-servicemen, would be eligible but this has not been done, which amounts to discrimination. Further, in view of Section 3 of the Act, 2005 in which it has been provided that the State Government shall, by notification, designate an officer not below the rank of Joint Secretary in the Home Department of the State or an equivalent officer to be the Controlling Authority for the purpose of the Act, 2005, this Court passed an order on 28.1.2009 that the State Government shall designate the Controlling Authority in accordance with Section 3 of the Act, 2005 so that the Controlling Authority may entertain the application for issuing licence without further delay. Further, in the State of Orissa, Private Security Agencies (Regulation) Rules have not been finalized so far. However, Sri Das, learned Senior Advocate appearing for the Petitioner has produced a letter dated 17.9.2008 in which the Deputy Secretary to Government in the Home (Special Section) Department has written to the Petitioner informing that the frame work of the Rules is under process. 10. However, Sri Das, learned Senior Advocate appearing for the Petitioner has produced a letter dated 17.9.2008 in which the Deputy Secretary to Government in the Home (Special Section) Department has written to the Petitioner informing that the frame work of the Rules is under process. 10. In view of the above mentioned facts and circumstances, we are of the opinion that depriving the ex-servicemen engaged by the private security agencies after implementation of the Act, 2005 and allowing the ex-servicemen, who are employed by ex-servicemen security agencies, is discriminatory and as such we direct that the impugned tender call notice shall not be proceeded with. However, in case the opposite parties are of the view that only ex servicemen are to be engaged in their establishment, it will be open for them to issue tender call notice giving their requirement to the effect that no person other than ex-servicemen will be engaged by them. 11. The State Government is also directed to designate a Controlling Authority u/s 3 of the Act, 2005 and also finalize the Orissa Private Security Agencies (Regulation) Rules in view of Section 25 of the Act, 2005. This should be done as expeditiously as possible, preferably within a period of six months hence. As soon as the Controlling Authority is designated, the process of registration shall be done. 12. The writ petition is disposed of accordingly. There would be no order as to costs. 13. Copy of the judgment be sent to the Principal Secretary, Home Department, Government of Orissa, requisites for which shall be filed by the Petitioner. B.P. Ray, J. 14. I agree.