JUDGMENT
S.K. Jha, J.
1. In both these applications under Articles 226 and 227 of the Constitution of India, the legality and validity of the order issued from the office of the General Manager (C), North Eastern Railway, Gorakhpur, on 29-1-81 and addressed to the Divisional Manager (C), North Eastern Railway, Sonpur, is challenged. A copy of that order has been marked as Annexure 9 in CWJC 485/81 and Annexure 7 in CWJC 757/81. Both the cases have accordingly been heard together and hence this common judg-ment. The effect of the impugned order is to award the vending contract of upper deck of steamers plying between Mahen-drughat and Falezaghat and vice versa (hereinafter to be referred to as the upper deck), which was being managed departmentally by the railway administration to Surendra Mishra, respondent 6 in CWJC 485/81 and respondent 5 in CWJC 757/81.
2. I propose to deal with CWJC 485/81 first and then come to the facts of CWJC 757/81.
3. The 23 petitioners in CWJC 485/81 have asserted as follows. The petitioners are commission vendors under departmental management of catering/vending services of the upper deck. Petitioner 1 Baijnath Singh had been working as a vending contractor at Sonepur Railway Junction prior to the year 1959. In 1959 the vending contract at Sonepur Railway Junction was departmentalised and petitioner 1 was appointed as a commission vendor by the railway administration for operation of the vending/catering work at Sonepur Railway Junction under the department. In the year 1973 the catering/ vending contract on upper deck was also taken under direct departmental control and the petitioners on their application to the Divisional Commercial Superintendent, North Eastern Railway, Sonepur, were appointed as commission vendors on the upper deck. The petitioners were asked to enter into an agreement for acting as commission vendors which was duly executed. A sample copy of one of the appointment letters has been marked Annexure 1 to the petition and a copy of the skeleton agreement, referred to above, as Annexure 2.
It has further been asserted that from the year 1973 since the date of appointment of the petitioners to serve as commission vendors on the upper deck they were continuing to render their services to the satisfaction of all concerned. The petitioners, as it has been said in the petition, had been appointed on probation but on account of their valuable services to the railway administration and the public in general they were continuing to render their services without being permanently absorbed. It has further been stated that the petitioners had been frequently representing their cases for regu-larisation of their services in the railways which resulted ultimately in issuance of a departmental instruction dated 13-12-76 from the Ministry of Railways to the General Managers of All India railways as contained in Annexure 3 to CWJC 485/ 81. The operative portion of the instruction dated 13-12-76 runs as follows :–
“In view of the frequent representations from commission bearers and vendors for regularisation of their services on the Railways, this Ministry desires that action should be taken on (sic) tho vendors and bearers in regular vacancies.”
Another circular was issued from the office of the Divisional Superintendent, Gorakhpur, on 25-3-79 wanting to know the further development in the matter of absorption of the commission vendors against regular class IV vacancies. That circular has been marked Annexure 4. On receipt of the aforesaid circular letter, an assurance was given, as alleged by the petitioners, by S.C.O. (C.R.) that since the Railway Board has decided to offer all avenues of absorption against perma-nent cadres of various departments of catering units to the commission vendors on the basis of the length of service, it was necessary to prepare a seniority list with particulars mentioned in the pro forma enclosed with that circular letter, but he wanted to ascertain the number of vendors so far absorbed in permanent cadre. A copy of that letter has been marked Annexure 5. During the continuance of the petitioners as commission vendors under the railway administration in departmentalised catering services on the upper deck, a revised procedure for award of catering/vending contract was evolved by the Railway Board, Ministry of Railways, Government of India, respondent 5.
A copy of that letter dated 29-7-78 has been marked Annexure 6 to the writ application. This letter (Annexure 6) instructs, inter alia, that catering/vending contract should continue to be awarded according to the procedure prevailing at that time. Applications should be invited with regard to the vacancies through notification in the press and/or notices at conspicuous places depending on the importance of the contracts followed by scrutiny of the applications by a duly constituted Screening Committee for selection of an eligible and suitable candidate and recommending the same to the competent authority for award of catering/vending contract subject to the stipulations contained therein. It was also mentioned in that letter with regard to the eligibility for the purpose of vending contracts that the applicants should have adequate experience of running similar large or medium (as the case may be) catering establishment on the railways or elsewhere. An order of preference in the matter of award of the catering/vending contracts was laid down therein as under :–
(i) Scheduled Castes and Scheduled Tribes; (ii) Co-operative Societies; (iii) Mahila Samities; (iv) Freedom Fighters; (v) Others. This departmental instruction as contained in Annexure 6 was modified by the Railway Board's letter dated 11-6-79, a copy of which has been marked Annexure 7 to the application. I may at once point out here that it is unfortunate that , the last paragraph of Annexure 7 does not present a correct version of the instructions issued, which was produced before us in original. The copy of the instructions as incorporated in Annexure 7 in its last paragraph reads thus :-- "The existing practice of awarding contracts on compassionate grounds by Zonal Railway should be stopped. All the cases of shifting from one platform to another, from one station to another and award of contracts on compassionate grounds to recommendation, if any, for approval." Obviously, the last sentence does not seem to be either complete or grammatically correct. The original shows that the instruction was that :-- "All the cases of shifting from one platform to another, from one station to another and award of contracts on compassionate grounds to contractors should be referred to this Ministry with recommendation, if any, for approval."
Whether this amounts to a deliberate suppressio veri or not is not very material. The fact remains that the Railway Ministry did not denude itself of its power to grant vending contracts on compassionate grounds. Subsequently, by another letter issued on 6-11-80, a copy whereof has been marked Annexure 8, the Railway Board modified the order of preference for awarding vending contracts and included unemployed graduates in one of the categories in order of preference which is not relevant for the purpose of deciding the question at hand. The petitioners accordingly have challenged the order of the Railway Board as contained in the letter of the General Manager (C), North Eastern Railway, Gorakhpur (Annexure 9) consequent upon a decision of the Railway Minister that the vending contract of upper deck be given to Surendra Mishra, respondent 6, who was already holding a vending contract of the Mahendrughat station refreshment room and a coffee stall thereon.
It is admitted at all hands that Mahen-drughat station is the originating and/or terminating station for the steamers plying between Mahendrughat and Paleza-ghat. The petitioners, while admitting that the letters as contained in Annexures 6, 7 and 8 are merely administrative instructions and have no force of law, have challenged the validity of annexure 9 and the order of the Railway Minister dated 18-12-80 which has subsequently been brought on the record by way of a supplementary affidavit on behalf of the petitioners, while the arguments were being concluded, on the ground that it was arbitrary, capricious, unreasonable and not in public interest. They have further made a grievance that by giving the vending contract to Surendra Mishra, respondent 6, the petitioners have been thrown out of their jobs and have lost all prospects of being absorbed in the category of class IV employees of the railway administration,
4. The case of respondents 1 to 5, namely, the Union of India and the railway administration as put forth in the counter-affidavit on their behalf may be summed up thus. Respondent 6 Surendra Mishra is already a catering/vending contractor of North Eastern Railway at Mahendrughat and the vending services on steamers, which were a part of the Mahendrughat establishment, have been restored to him to make his refreshment room contract commercially viable in view of the recommendation of the A.C.C.’s meeting with the Railway Board on 8-9-76 and 9-9-76 which was forwarded by the Railway Board under its letter dated 6-10-76 for necessary action. A copy of that letter has been marked Annexure A to their coun-ter-affidavit The relevant portion of Annexure A runs as follows :–
“At stations where refreshment rooms are run by contractors, in the matter of allotment of vending contract of these stations, preference should be given to refreshment room contractors as consensus of opinion was that refreshment rooms on their own are normally not commercially viable and support of vending is necessary so as to enable the contractor to render satisfactory service and modernise the equipments, gadgets, etc. as per extant orders.”
It is worthwhile to mention here that at the Mahendrughat station there is a refreshment room held under the vending contract by respondent 6. There is no question of any further vending contract at this station as it has already been mentioned above that it is both an originating and terminating station and has got no platform whereon any vending contractor can run his services. For all practical purposes, the deck of the steamer itself may be equated with the railway station platform. In so far as the refreshment room at Mahendrughat station is concerned, the aforesaid decision taken by the Ministry of Railways (Railway Board) was arrived at after careful consideration of the representations of the contractor, namely, respondent 6. The further case of respondents 1 to 5 is that the order for running the vending contract on the upper deck by respondent 6 was not a new contract at all.
The departmental refreshment room at Mahendrughat continuously being run in loss was brought under one departmental unit along with the upper deck on 2-8-72 to make it commercially viable. Till 8-6-76, when the Mahendrughat station refreshment room was allotted to respondent 6, the departmental catering services of the upper deck of steamers continued to be managed from Mahendrughat as it was the feeding point with one departmental catering store at Mahendrughat and it was also a birthing place after termination before origination of steamers from Mahendrughat. The railway administration has always treated the vending stall on upper deck of the steamers and the refreshment room at Mahendrughat as one unit which is clear from the letter of the Chief Commercial Superintendent, North Eastern Railway, dated 3-12-74, a copy whereof has been marked Annexure B to the counter-affidavit. It has further been asserted that petitioner 1 is not admitted to have been appointed as a commission vendor by the railway in 1959.
It has further been assured in the counter-affidavit of respondents 1 to 5 that the decision to absorb in due course the commission vendors or bearers in regular class IV service of the railways had been taken on representations from them throughout the country and the petitioners’ cases would be considered as per procedure and rules in force on merit and suitability of the person concerned irrespective of the fact of awarding the vending service to the contractor. It has been reiterated in paragraph 16 of the counter-affidavit that the contract of the upper deck in favour of respondent 6 was not a fresh award of contract warranting the procedure as contained in Annexure 6 to be violated as it had been awarded to respondent 6 not as a separate contract but as part of the existing contract. It has also been asserted that the award of vending items on the upper deck of the steamers in favour of respondent 6 would go a long way in improving the total catering and vending service at Mahendrughat as well as on steamers to the satisfaction of the travelling public which is the prime concern of the railway administration.
5. The case of respondent 6 Surendra Mishra may be summarised as follows: The provisions of Annexures 6, 7 and 8, namely, the departmental instructions in the matter of procedure regulating the award of vending contracts, as modified, would not apply to this case as it was not an award of a fresh vending contract but merely a restoration of the old position when both Mahendrughat railway station refreshment room and the upper deck service were part of the same unit under departmental control and management from 1963 to 1976. Prior to 8th June, 1976 the catering at Mahendrughat railway station was done departmentally by the North Eastern Railway and vending on the upper deck of the steamer services used to be a part and parcel of the same catering service. The vending services on the upper deck of the steamers and the catering service at Mahendrughat were not bifurcated but the two together formed part of one unit.
Respondent 6 from the very beginning pointed out to the railway administration that the Mahendrughat station being an originating and/or terminating station of steamers, plying between Mahendrughat and Palezaghat, does not have much scope of catering in the refreshment room of Mahendrughat steamer station of the North Eastern Railway. Even while the catering at Mahendrughat together with vending on the upper deck of the steamer was run departmentally at a loss, respondent 6 represented to the railway administration right from June, 1976, i.e., much before the instructions as contained in Annexure 6 were issued by the Railway Board which, as already stated above, are contained in a letter dated 28-7-78. The representation was to the effect that non-award of the coffee shop at Mahendrughat railway station and the vending service of the upper deck of the steamer services was illegal and improper as the bifurcation was highly uneconomical and non-viable.
The railway administration on a consideration of the representation of respondent 6 granted him partial relief of awarding him the contract of the coffee shop at the Mahendrughat railway station on 18-10-76. Respondent 6, however, continued his representations to the railway administration praying that the vending contract on the upper deck of the steamer services be restored to its former position as existing prior to June, 1976, that is to say that the said vending contract be made a part of the refreshment room catering contract at Mahendrughat. A. copy of one of the representations has been marked Annexure F/6 dated (sic) Sept. 1978. It is in express and clear terms. A copy of the representation was also forwarded to the then Railway Minister. Thereafter, some developments took place involving controversy with regard to the rental for the refreshment room at Mahendrughat railway station itself to be paid by respondent 6 with which we are not concerned in this case.
Ultimately, on his repeated representations to the railway authorities, namely, the Chief Commercial Superintendent and the General Manager of the North Eastern Railway in 1978 and these not resulting in any success, respondent 6 made the representation to the Minister of Railways in which he prayed that the vending contract on the upper deck of the steamer services be restored back to him as a part of the Mahendrughat railway station refreshment room. A copy of that petition of appeal has been marked Annexure G/6. Yet, another representation to the Railway Minister was made by respondent 6 on 12-7-80, whereupon the learned Minister directed the Railway Board to get the matter enquired into through proper channel and to place the same before him. A copy of the aforesaid representation dated 31-7-80 has been marked Annexure G/2 to the counter-affidavit.
The matter was enquired into and the Divisional Commercial Manager, by his letter dated 15-9-80 and wrongly mentioned as ’15-9-1976′ sent his report to that effect with Railway Board which, after scrutiny, we placed before the Minister of Railway. The Railway Minister, upon going through the entire records found that injustice had been made to respondent 6 and justice and equity demanded restoration of the said vending service on the upper deck of the steamer and he accordingly passed an order as a result of which the impugned order (Annexure 9) was issued by the Railway Board.
6. From the materials on record and the submissions made at the Bar, the following facts emerge. In the year 1963 the railway administration established the Mahendrughat railway station refreshment room under departmental control and catering/vending services on the upper deck of the steamers were also brought within departmental control and management as a part of the Mahendru-ghat station refreshment room unit. Sometime in the year 1972 or 1973 some commission vendors/bearers were engaged on a commission at the rate of 12 per cent of the gross sales. I am deliberately using the expression ‘some commission vendors/bearers’, for, as I shall show presently, it has not been shown to our satisfaction that any of the petitioners had been engaged as a commission vendor/ bearer. In proof of the petitioners having been employed as commission vendors/ bearers a sample agreement has been marked as Annex. 1 to this writ petition. Annexure 1 is an agreement of commission bearer between the Divisional Commercial Superintendent, North Eastern Railway, Sonepur, and one Sri Ramnihora son of Munshi Ram of village Andahara. There is no such petitioner in this case.
As this matter was taken up in challenge by respondent 6, Mr. Shree Nath Singh, learned counsel for the petitioners, submitted that Annexure 1 was the copy of the agreement entered into between the railway administration and petitioner 10. This, however, is not correct. Petitioner 10 is Ramnihora Singh son of Bijuli Singh of village Parsauni. He cannot be the same person as Ramnihora son of Munshi Ram of village Andahara. No other document has been produced even by way of a sample which can go to show that any commission vendor’s or bearer’s agreement was entered into between any of the petitioners and the railway administration. Assuming, however, for the sake of argument that such agreement was made, it merely gave them an opportunity to serve as commission vendors/ bearers from sometime in the year 1972 or early 1973 on the upper deck of the steamer services which were still being departmentally managed and controlled by the railway administration. When the railway administration found that the Mahendrughat refreshment room was running at a constant loss, it decided to bifurcate the catering services on the upper deck of the steamers from Mahendrughat station refreshment room and ultimately in 1976 only the vending contract in respect of the refreshment room at the Mahendrughat station was given to respondent 6 while the upper deck services were reserved to be run depart-mentally.
By employing some commission vendors/bearers soon after the vending contract with regard to the refreshment room at Mahendrughat was given to respondent 6, he began making representations that it was neither commercially viable nor justice and equity demanded that while giving the vending contract only the sub-unit constantly running at a loss be awarded to him whereas the profit-earning sub-unit, namely, the upper deck service be retained by the railway administration to be run departmentally. On repeated representations of respondent 6, ultimately the old position was restored and the vending service depart-mentally run on the upper deck of the steamer was again made a part and parcel of the same unit, namely, the Mahendrughat railway station unit which now, after the issuance of Annexure 9, would consist of both the refreshment room of the Mahendrughat railway station as well as the vending services on the upper deck of the steamers. Even if it be assumed that the vending contract on upper deck was reunited with the Mahendrughat railway station refreshment room on compassionate grounds, it was neither in violation of the principles of fair play nor inconsistent with the circulars as contained in Annexure 7 under which the Railway Ministry reserved such a right to itself.
7. It would bear repetition to say that learned counsel for the parties concerned admitted that the instructions issued in Annexures 6, 7 and 8 had no statutory force and could be altered or modified at any time by further departmental instructions. The only point of attack on the validity of Annexure 9 was that the order was arbitrary, capricious, unreasonable and deprived the petitioners of their right, if there be any legal right, to the chances of being absorbed in the category of Class IV employees of the railway administration and the immediate impact of it was to throw them out of their services as commission vendors. So far as the immediate grievance of the petitioners is concerned, it may be worthwhile to mention that even if Annexure 1 be taken to be a copy of the agreement between one of the petitioners and the railway administration, which got its final shape in Annexure 2, it is clearly stipulated in paragraph 5 of Annexure 2 that the railway administration reserved the right to transfer the bearer/vendor from one station to another station or from one platform to an adjoining platform or vice versa.
Learned counsel for the railways gave an assurance that if the petitioners so desire, they will be absorbed or transferred as commission vendors at any other station. Respondent 6 also volunteered to keep them as commission vendors as they were when the vending service on the upper deck of the steamers was departmentally run. The petitioners, however, declined to choose either of the two offers. With regard to their grievance that they had lost all chances of being absorbed in the category of class IV employees of the railway administration, there is a specific assertion in the counter-affidavit on behalf of respondents 1 to 5 (the railway administration) that their cases will be considered on merits when the question of appointment of regular class IV employees shall be taken up. The petitioners had not made any representation either to the Ministry of Railways or to the railway administration demanding any justice or redressal of their grievances which had been refused. Instead they chose to come straight to this Court for a writ of mandamus and/or any other direction.
It is well settled that the demand of justice and denial thereof is a pre-requi-site for the exercise of the prerogative writ of mandamus or any other direction akin thereto. I do not, however, harp on this technicality. Even on the facts, as stated above, the petitioners had been assured and offered both the avenues of their livelihood; as commission vendors in which capacity they assert to have been working and the consideration of their cases on their own merits for absorption in the category of regular class IV employees. That was fair enough. Even so, the petitioners did not choose either of the two courses of action.
8. It is well settled that no writ can lie to enforce a private contract as the State can enter into contract with an individual just as any other individual can (refer to C. K. Achutan v. The State of Kerala (AIR 1959 SC 490)). So also, a writ of mandamus or any direction akin thereto does not lie to enforce departmental manuals or instructions not having statutory force (refer to the State of Assam v. Ajit Kumar Sarma (AIR 1965 SC 1196 at p. 1200), Raman and Raman Ltd. v. State of Madras (AIR 1959 SC 694), G. J. Fernandez v. The State of Mysore (AIR 1967 SC 1753) and State of Maharashtra v. Lok Shikshan Sansthan ((1971) 2 SCC 410 at p. 416) : (AIR 1973 SC 588 at p. 593)). It is, however, equally well settled that even though writ of mandamus will not issue to enforce a contract between the Government and an individual, which has not been made in exercise of a statutory power, laying down a procedure or conditions for doing a thing — for example, for holding a public auction, the Government is not free to adopt an ad hoc procedure in particular cases departing from such conditions. Writ of mandamus may also issue to cancel an administrative order which violates the rules of fairplay. It has accordingly been held in quite a number oi cases that a public body or a State that has exercised its discretionary powers capriciously or on irrelevant and extraneous considerations is to be taken as not having exercised its powers at all.
The only question for determination, therefore, in this case is as to whether the impugned order is arbitrary or capricious or based on extraneous or irrelevant considerations or violates the rules of fair play. On the facts, as discussed above, the restoration of the upper deck vending services of the steamers plying between Mahendrughat and Palezaghat to the Mahendrughat refreshment room unit, of which the upper deck services were a part originally being run under departmental control since 1963, on account of the fact that Mahendrughat refreshment room by bifurcating it from the upper deck services was commercially not viable and was always running at a loss, is neither arbitrary nor capricious. It is based on principles of fair play, equity and justice. It is a policy decision which cannot be subjected to the departmental instructions as contained in An-nexures 6, 7 and 8 to the writ petition.
9. I would accordingly hold that it was not an award of a new contract in favour of respondent 6 but was merely restoration of the old position that the upper deck services on the steamers were merged into the Mahendrughat refresh–ment room unit. In support of this conclusion, I have also taken into account the various facts and figures furnished by respondents 1 to 5 (the railway administration) to show that, while depart-mentally managed, the accounts and the balance sheet with regard to both Mahendrughat refreshment room and the upper deck services were the same. Even after they were bifurcated and only Mahendrughat refreshment room was given to respondent 6, the accounts of both the above services were maintained together as one unit.
10. Accordingly, I do not find any merit in CWJC 485 of 1981 which is dismissed, but I am quite sure that on account of this case the railway administration shall not take a vindictive attitude and shall conform to its assurances given in the counter-affidavit that the cases of the petitioners shall be considered on their own merits for absorption in the category of class IV employees of the railway administration.
11. So far as the petitioners in CWJC 757 of 1981 are concerned, they claim to be fresh aspirants for the purpose of taking new vending contract under the railway administration. Both of them belong to the category of unemployed graduates described in category 3 of An-nexure 6 of CWJC 485/81. Petitioner 2 of this case further claims a preferential right as being a member of the scheduled caste coming under category 1 of the said instructions (Annexure 6 of CWJC 485/81). The grievance of these petitioners is the same as that of the petitioners in the other case, namely, that the procedure as laid down in Annexures 6, 7 and 8 of CWJC 485/81 has not been followed in awarding a fresh vending contract in favour of Surendra Mishra who is respondent 5 in CWJC 757 of 1981. In view of the fact that I have already held that this was not an award of a new or fresh contract but a restoration of the old status of the vending services on the upper deck of the steamers to its old position, these petitioners also cannot have any cause of action.
12. Both these applications accordingly fail and are dismissed but, in the circumstances of the cases. I shall make no order as to costs.
R.P. Mandal, J.
13. I agree.