ORDER
Chandrakantaraj Urs, J.
These two Petitions are disposed of by the following common order.
1. Petitioner in the first of the petitions is Jindal Aluminium Limited which has described itself as a manufacturer of aluminium products, inter alia, extruded aluminium pipes and other components which go to make what is popularly described as Sprinkler Irrigation Equipment. Similarly, petitioner in the second of the petitions Associated Irrigation Epuipment Company Pvt. Ltd., is also a manufacturer of Sprinkler Irrigation Equipment as a small-scale industrial unit, though it does not manufacture either the components or the aluminium pipes of specified sizes. Both claim to be in this field for considerable period with sufficient experience.
2. Petitioner in the first of the petitions has alleged that it was the normal practice of the Government of the State of Karnataka to invite tenders for fixing rate contracts in respect of the Sprinkler Irrigation Equipment needed by its various departments and other agencies and after opening the tenders fix the rates by negotiation relating to various components including aluminium pipes of the required dimension and then leave it to the consumer departments or agency to buy it from whomsoever of the tenderers who was willing to supply at the rate fixed by the contract. That was the practice till the end of year 1984-85.
3. On the request of the Animal Husbandry and Veterinary Services in Karnataka, the Stores Purchase Department, floated a tender enquiry in Enquiry No. P9/RC/NIL/Feb/84/ AHV/SIC/106/in October 1984. In response to such floatation eight tenders were received. The tender enquiry notice dated 29th October 1984 is at Annexure-A to the first of the petitions. By the said notice sealed tenders in duplicate were invited for the supply of Sprinkler Irrigation Equipments with aluminium pipes and fittings on rate contract basis. The terms set out in the notice for tendering need not concern the Court. However, the prescribed tender form which forms part of Annexure-A provides a Schedule in two parts captioned Schedule-B. Under Schedule-B, part-1, item No. 1 aluminium pipes conforming to Indian Standard Specification No. 7092-1976 Part-II manufactured by extruded method of dimensions varying from 50 mm to 150 mm diameter is mentioned. Thereafter items-2 to 28 speak of main line couplers made of aluminium alloy, Riser pipes, Reducing Tee, Reducer Couplers, Increaser Couplers, Ball Joint Riser Coupler, Ball Valve Coupler, Perforation charges for 6M length, Hydrant made of aluminium alloy, Fertilizer applicators suitable for such diameters, Insert valve couplers, Riser outlet connector Tee are mentioned including Sprinklers double nozzles of aluminium alloy. Similarly, in part-II of Schedule-B, at item No. 1 aluminium pipes of the same dimensions are mentioned but not by extrusion method but by welding method. The components listed at items-2 to 28 are identical to what is mentioned in part-I correspondingly.
4. One another thing which is required to be noticed at this stage is the tender notice at Annexure-A was not restricted to manufacturers of the pipes and components but it was an open invitation to all who were in a position to quote the rates.
5. As already noticed 8 tenders were there. The two petitioners, the 3rd respondent – Premier Irrigation Equipment Company Ltd., Voltas Limited, I.A.E.C. India Ltd., Pobatti Agencies Ltd., Coromandal Indag Products., India (P) Limited, and C.G.A. Enterprises. All the tenders were in time and in accordance with the conditions prescribed, After the receipt of the tenders, the Indentor Department was consulted for its recommendations, which called for a demonstration on 1-3-1985. Petitioner in the first of the petitions and the 3rd respondent therein and another, namely, Pobatti Agencies Limited gave the demonstration. Thereafter, with the recommendations of the Indentor’s Department, the matter was placed before the Executive Committee. The Executive Committee recommended that the 3rd respondent’s welded type irrigation equipment may be accepted by the Government i.e., the rate quoted for that type. That resulted in an order of the Government dated 27-5-1985 by which the rate contract was awarded to the 3rd respondent. On 28-5-1985 an agreement was also signed in that behalf by the 3rd respondent with the Government.
6. On the same day, the petitioner in the first of the petitions made a complaint to the Chief Minister by a letter in which certain allegations were made pointing out that the 3rd respondent had been favoured by the Director, Stores Purchase Department. He was of a biased attitude favouring the 3rd respondent. The said Director was also accused of having awarded the rate contract for his personal gains. He was accused of having hastily given the rate contract in favour of the 3rd respondent even after receiving orders of transfer from that post. By letter dated 19-6-1985 the Government kept the award of rate contract in favour of the 3rd respondent Premier Irrigation Equipment Company Ltd., in abeyance. On 20-6-1985, six of the eight tenderers made a joint representation to the Director, Stores Purchase Department complaining about the unfair method by which the contract had been awarded in favour of the 3rd respondent Premier Irrigation Equipment Company Ltd. On receipt of the joint representation a meeting was convened at the Secretariat level. Only petitioner in the first of the petitions and the 3rd respondent therein were invited to that meeting. Petitioner in the first of the petitions has also produced what it claims to be the minutes of the meeting and that is at Annexure-F to the first of the petitions. Though the accuracy of that minutes has been disputed, it is sufficient to State that having regard to the decisions arrived at the meeting in the matter, there is identity between the minutes maintained in the Official records and the minutes at Annexure-F.
7. One important fact to notice at this stage is that subsequent to 28-5-1985 the then Director in charge was posted elsewhere on transfer and lie handed over charge of the Department on 31-5-1985. All the things that took place thereafter by way of representation, meeting etc., took place with a new Director of Stores Purchase. The decision of the meeting held on 26-6-1985 was that both the petitioners and the 3rd Respondent therein should submit samples of their equipment for testing. The items tested were Screwed coupler (P) (pump connection nipple) 1 no. main line coupler, Sprinkler Line coupler SLC 1, 45 degrees bend 1 no., 90 degrees bend I no., side outlet Tee, End Plug, 3 ” diameter aluminium extruded pipe, Sprinkler (JAL-25) insofar as petitioner in the first of the Petitions is concerned.
3 ” diameter welded pipe insofar as 3rd Respondent was concerned, other items being common.
8. The said sprinkler and components and the pipe fitted out were submitted for test to the Central Machine Tools Institute at Bangalore, and report obtained. After obtaining the report to which reference will be made later in the course of this order, the Government decided to revive the order of 27-5-1985 by its letter dated 26-8-1985. In that circumstance, the petitioner Jindal Aluminium Limited presented this Writ Petition in this Court on 30-9-1985, inter alia contending that the procedure followed was arbitrary and violative of Article 14 of the Consstitution. It was also contended that there was undue haste in favouring the 3rd Respondent by the order passed on 27-5-1985. It was further contended that the Test Reports were mis-interpreted by the Department of Stores Purchase in order to favour the 3rd Respondent.
9. What is significant to notice in the pleadings of the petitioner is, there was no specific allegation against the then Director of Stores Purchase in regard to any personal gain that was the important motivating force in awarding the contract, in contrast to what was said in the representation made to the Chief Minister on 28-5 1985. The petitioner did not get an interim order which he prayed for straightaway. It was only after notice that this Court gave an absolute order of stay which came to be modified on the application made by the 3rd Respondent after hearing the parties concerned. The modification made by the order dated 26-11-1985 permitted the 3rd Respondent Premier Irrigation Equipment Limited to fulfil the rale contact if indented upon upto the value of Rupees One Crore, which on appeal to the Division Bench came to be reduced to Rs. 50,00,000/-(Rupees fifty lakhs). It was thereafter that the second of the Writ Petitions was filed by Associated Irrigation Equipment Company Pvt. Ltd., on 10-12-1985.
10. Petitioner in the second of the Petitions has also complained of discrimination in violation of Article 14 of the Constitution. Pleadings emphasise discrimination began as early as when the Govt. failed to invite all the tenderer’s to submit their equipment for testing its efficiency and performance when demonstration was called for only from three of the tenderers. It is also emphasised that the rates quoted by the 3rd Respondent Premier Irrigation Equipment Company Ltd., was the highest and therefore as a matter of principle ought not to have been accepted defeating the very object of awarding rate contract. It is also alleged that there is violation of one of the conditions of the tender inasmuch as condition No. 12 provided for small-scale industries of the State being preferred, other things being equal and. the petitioner having produced the certificate from the prescribed authority that it was small-scale industry there was flagrant violation of that condition. It has also alleged discrimination in the matter of negotiations subsequent to the rate contract awarded on 27-5-1985, as it was not invited to join in the discussions or submit its equipment for testing along with that of the petitioner Jindal Aluminium Limited and the Premier Irrigation Equipment Company Limited though it was a signatory to the joint representation of 20-6-1985.
The 3rd respondent in both the petitions has filed its statement of objections It is unnecessary to advert at this stage to the pleadings of the 3rd respondent as the same will be referred to while noticing the arguments submitted on behalf of the 3rd respondent. What should now be stated is that this Court at the earliest stage of hearing while scrutinising the records of the case found that on 28-5-1985 on receipt of the complaint from Jindal, the Secretary to the Chief Minister called for the relevant file. Thereafter, on 5-6-1985 put up a note addressed to the Commissioner and Secretary for Industries and Commerce in the Government of Karnataka. By the said note he called upon the Department to cancel the rate contract which had been awarded in favour of Premier Irrigation Equipment Company Ltd., as also Pobatti Agencies who was the lowest of the tenderers and who also had been awarded the contract subject to the condition that it also executed the agreement required. But before it could execute the agreement, in accordance with the complaint made by Jindal Aluminium Limited, no further steps were taken to issue any order awarding it rate contract. But however the matter came to an and insofar as Pobatti Agency was concerned as it did not come forward to participate in any negotiations that took place thereafter.
11. It was in the light of the noting by the Secretary to the Chief Minister that this Court called upon the Learned Advocate General who at that stage appeared in the case to appraise the Court whether the noting of the Secretary was the decision of the Chief Minister. After consulting the Chief Minister, on instructions, the Learned Advocate General submitted that the decision to cancel and call for fresh tenders was the decision of the Chief Minister communicated to the Department concerned through the said note to be found at page-5 of the noting section of the file. Unfortunately, the instructions contained in the said noting was not adhered to except to note that the rate contract of Pobatti Agency may be cancelled. The file relating to Premier Irrigation Equipment Company Limited was required to be returned to the Commissioner and Secretary, Industries and Commerce Department.
12. An enquiry was started as to whether the tender was floated on a turn key basis. From the noting of the Deputy Secretary found at page-7, it is clear the tender enquiry was not floated on a turn key basis. Thereafter wards the Department took up negotiations with Jindal Aluminium Limited and Premier Irrigation Equipment Company Limited despite the representation by four others jointly with them on 20-6-1985.
13. On 20-6-1985 a joint representation was made by six of the tenderers protesting against the procedure followed in the matter of awarding rate contract to 3rd respondent Premier Irrigation Equipment Company Ltd. On 26-6-1985 a meeting was convened at the Governmental level to which only the petitioner in the first of the petitions and the 3rd respondent therein were invited. It was at that meeting that the decision was taken to submit samples for test by some competent authority as a result of which the sample or materials agreed upon at the meeting were submitted for test to the Central Machine Tools Institute. As already noticed the report favoured the 3rd respondent and therefore on 26-8-1985 the rate contract earlier granted, was revived by withdrawing the order dated 19-6-1985. It is equally useful to notice here that in this Court in these petitions only three of the tenderers are parties. The other tenderers have shown no interest nor have been considered as necessary parties, by the petitioners.
14. From the pleadings and submissions made in Court it is clear that petitioner in the first of the petitions and the 3rd respondent are manufacturers of Aluminium Pipes as well as some or all of the components of the Sprinkler Irrigation Equipment. It is also stated that the 3rd respondent is the sole manufacturer of welded aluminium pipes in the Country, while the petitioner in the first of the petitions manufactures the extruded type along with a few others.
15. The above facts are not in dispute, and therefore they are stated
16. On 18-11-1985 statement of objections was filed by respondents-1 and 2 pertaining to W.P. No. 15405/1985. It has been sworn to by Mr. N. V. Naik the Deputy Secretary to Government Commerce and Industries Department. The Affidavit is not very useful as it does no more than repeat the facts which I have set out above. It is however contended that the petition is liable to be dismissed on grounds of laches and delay. It is asserted that the lowest rates have been accepted in accordance with the provisions contained in the departmental manual pertaining to the Purchase Department. It further asserts that respondent-3, namely, Premier Irrigation Equipment Limited has quoted the lowest rate for most of the items under welding method and has agreed for the lowest rates arrived at by the Department, taking into account all the rates of the valid tenders in welding method. That being the reason for accepting the tender of Premier Irrigation Equipment Pvt. Ltd., there is some reference to the meeting held in the Chambers of the Secretary, Commerce and Industries Department, on 26-6-1985. What emerged at the meeting has already been set out in stating the facts. The assertion is that the State Government has acted impartially without being influenced by any person or persons. Respondents-1 and 2 deny that there was any indecent haste in finalising the rate contract in favour of the 3rd respondent. They have denied the averments made by the petitioner- Jindal Aluminium Limited and reiterated that the Department has followed the prescribed procedure as per the manual.
17. In W. P. No. 19347/85 statement of objections has been filed by the Technical Assistant of the Stores Purchase Department. No useful further fact has been brought to the notice of the Court which is not already noticed.
18. However, this Court having regard to the noting of the Secretary of the Chief Minister, directed the learned Advocate General to file an affidavit by the Secretary at the relevant time if he was available or by some other competent officer of the State Government explaining as to why the note was not acted upon. Pursuant to that two affidavits were filed in Court, one by the Deputy Secretary and another by the Director of Stores Purchase Department presently holding that Office. I would refer to them later in the course of this order.
19. Now to the contentions advanced from the Bar, Mr. G.Ramaswamy, Senior Advocate appearing for the petitioner in the first of the petitions has submitted that if the totality of the circumstances are taken notice of in the matter of the award of the rate contract in favour of the 3rd respondent, the arbitrariness and legal mala fides stand out and therefore the rate contract, is liable to be set aside. In the totality of the circumstances what may be discerned are :–
(1) The tender invitiation was for sprinkler irrigation equipment and main components together with two types of aluminium pipes i.e., extruded pipe and the welded type pipe ;
(2) Some of the tenderers tendered for the components which are not in themselves extruded or welded, therefore common to both extruded and welded type of aluminium pipes, while the 3rd Respondent Premier Irrigation Equipment Ltd., tendered for the welded type of aluminium pipe only ;
(3) Nothing in the tender notice is indicative that it was on a turn key basis ;
(4) There was no suggestion in the conditions enumerated that the tenderer was required to give demonstration ;
(5) 8 tenders were received in all, both from manufacturers and other suppliers. No distinction was made in the invitation treating the two apart ;
(6) Only three of the tenderers were invited to demonstrate which included both the petitioners as well as the 3rd Respondent to the exclusion of others ;
(7) Rate contract was awarded in favour of the 3rd Respondent followed by the agreement of 28-5-1985 which did not provide for turn key basis ;
(8) The revival of the rate contract on 26-8-1985 did not also result in a turn key basis or a change in the agreement of 28-8-1985.
From the above, it is clear that at all these stages the first of the petitioners was never left out of any procedural deliberations or negotiations of the Government except to be excluded from the award of the contract. In other words in so far as equality of opportunity was concerned he was treated the same as the 3rd respondent. It was the petitioner in the first of the petitions who himself agreed to the test being conducted of the agreed components, The test report did not favour the petitioner. If on that account, Government made up its mind in favour of the 3rd respondent Premier Irrigation Equipment Company Ltd., then it is not open to the petitioner to contend that there has been no fair play in so far as it is concerned.
20. True, the Supreme Court in the case of Ramana Dayaram Shetty -v.- The International Airport Authority of India & ors. AIR 1979 SC 98 approved the rule enunciated by Mr. Justice Frankfurter in Vitarelli v. Seaton (1959) 359 US 535), which was to the following effect :-
“An executive agency must be rigorously held to the standards by which it professes its action to be judged …. Accordingly, if dismissal from employment is based on a defined procedure, even though, generous beyond the requirement that bind such agency, that procedure must be scrupulously observed …………..This judicially evolved rule of administrative law is now firmly established and, if I may add, rightly so. He that takes the procedural sword shall perish with the sword.”
This was reiterated by the Supreme Court of India in a later decision in the following terms :-
“It is unthinkable that in democratic Govt. by rule of law, an executive Govt. or any of its Officers should possess arbitrary power over the interests of the individuals. Every action of the democratic Govt. must be informed with reason and should be free from arbitrariness and that is the very essence of rule of law and its bare minimal requirement.”
21. On the facts of this case as already set out whatever irregularity or procedure there may be, petitioner in the first of the petitions is not the one who has suffered any injustice on account of that illegality in procedure. This Court should not fail to notice that the said petitioner did obtain prompt action on the representation he made to the Chief Minister on 28-8-1985. It was followed up by the suspension of the rate contract in favour of the 3rd respondent and further followed up by the joint representation of five other tenderers together with the said petitioner and the resultant meeting with the concerned Government officials on 26-6-1985. Meeting, convened for the first petitioner and the representatives of the 3rd respondent to the exclusion of the other signatories to the joint representation. At which meeting behind the back of all other competitors, petitioner agreed to submit to the test which would decide its fate as well as that of the 3rd respondent. If this conduct is borne in mind, petitioner is not entitled to the relief he has asked for in this Court, even if this Court, were to come to conclusion that procedure followed was arbitrary, it cannot set aside the contract at the behest of the petitioner who himself wanted to derive maximum advantage of such illegal and arbitrary procedure.
22. Mr. G. Ramaswamy, learned Counsel for the petitioner Company drew attention of the Court to a number of documents and pointed out that the test report was so sumarised by the Department of Stores Purchase that it tended to favour 3rd respondent at the same time discrediting the petitioner-Company. I have compared the original of the test report with the summary submitted by the Stores Purchase Department. It is true that there is slight distortion of the report. But the fact is, in one of the three aspects tested one of the petitioner’s samples (in the first of the petitions) developed a leak at a particular pressure which was reported. The same sample of the 3rd respondent did not develop that leak at the same pressure or a slightly higher pressure.
23. Learned Counsel for the petitioner has rightly pointed out that while submitting a summary of the report, the Directorate of Stores Purchase did not bring to the notice of the Government that the test report had indicated that the pipe supplied by the 3rd respondent with which the components were tested did not conform to the specifications called for in the tender which the report from the testing agency disclosed. This was a vital suppression in order to favour the 3rd respondent – Premier Irrigation Equipment Company Limited. It is seen from the original chemical report that the manganese contained in the Y group of pipes or in certain of them, was lower than the specifications given by the I.S.I. In the report, reference is made to the specifications assigned by the Indian Standard Institute which is the one found in the tender notice. In that view of the matter there has been irregularity in processing even the test report and submitting its recommendations which also constitutes violation of the procedure.
24. The argument that the tender did not specify that pressure but a far lower pressure than what it was subjected to during the test is no proper answer that between the two samples, petitioner’s sample developed a leak. Whether that factor would affect its performance at lower pressure normally used in sprinkler irrigation is no concern of this Court. Like any buyer the Government has its own judgment to go by what was agreed to at the meeting of 26-6-1985 in regard to the test of the samples. But regarding that both equipments were equal and petitioner’s did not develop a leak is itself not a defect in equipment. It will be still open to the Government to choose whichever commodity it wants from either of the suppliers, whether they be manufacturers or not.
25. Man who seeks equity in Court must come clean and blemishless. If he does not, then he cannot get relief. There are some aspects argued which do not affect the conclusion I have reached in so far as the first of the petitions is concerned to which reference will be made later in the course of this order. Mr. Sundarswamy’s stand on behalf of the 3rd respondent that the petitioner cannot be said to be aggrieved and therefore has no locus standi to prosecute this Writ petition is therefore well founded.
26. Next are the contentions advanced for the second petitioner, namely, Associated Irrigation Equipment Company Pvt. Ltd. Mr. R. N. Narasimha Murthy learned Senior Counsel appearing for the petitioner in the second of the petitions pointed out that condition No. 12 provided for preference to the tender of small scale industries in accordance with the department’s manual and the policy of the Government. That his client-Company was certified to be a small-scale industry by the concerned authority and that certificate had been enclosed as required under the terms of the tender notice is not in dispute. Despite that the A.I.E.C. Pvt. Ltd., was neither invited to give a demonstration of its sprinkler irrigation equipment nor was it informed of the reasons why its rates were rejected even after the joint representation made on 19-6-1985. It was not asked to participate at the meeting held on 26-6-1985.
27. Attention of the Court has been drawn in this connection to the comparative rates quoted. While undoubtedly the 3rd respondent. the successful tenderer, had quoted the least price for welded aluminium pipes of different dimensions in diameter, the prices quoted by others for the same items was not so much higher than that of the 3rd respondent to make any appreciable difference except the price quoted by Pobatti Agencies. But the prices quoted for the components which are common to both extruded pipe and welded pipe, the prices quoted by A. I. E. C. Pvt. Ltd., was lower than that of the 3rd respondent. The point made by Sri. Narasimha Murthy is that tender being not on turn key basis, tender being only to fix the rate of the pipe and the components and not the whole irrigation equipment in accordance with the manual of the Department of Stores Purchase, A.I.E.C. Pvt. Ltd’s prices for components atleast ought to have been approved and awarded to it, In this context it is useful to observe that rate contract and turn key basis do not go together. The idea of turn key basis occurred only on or about 6-6-1985 as evidenced by the records. It was for the first time then that a query was made whether the tender was on turn key basis. What information in that behalf was supplied is no concern of this Court though it is to be found in the notings.
28. The problem is that the officers of the Government made an error in construing the aluminium pipes of various sizes required by them as component of the sprinkler irrigation equipment. The expression ‘component’ has a connotation which does not support the Government’s view. The aluminium pipe is no more than a conduit which carries water or any other liquid which is required to be sprinkled. It is true water can be carried by the pipes made of aluminium or of galvanised iron or more expensive metals or synthetic materials or rubber hoses, PVC, plastic, etc, But the requirement of the Department as indented perhaps preferred aluminium pipes as is to be made out from the notes in the records on account of its light weight, durability, and easy replacement, as well as cost. Further, it should not escape the notice of the Court, and the same was admitted on all sides that in setting up a sprinkler irrigation equipment as a system or method of irrigation in a given area on an optimum basis, 65% of the cost goes towards cost of the pipes and therefore this Court cannot object to the type of pipe the Government wants to buy nor is this Court in a position to pronounce upon the suitability and superior quality of one or the other of the two types. Nor should it unless the case before the Court demands such pronouncement.
29. Therefore, the complaint of the 2nd of the petitioners that it was a victim of unfair procedure to a great extent must be upheld. There is no denying that it was not called upon to demonstrate. There is no denying that it made a joint representation protesting against the unfair procedure adopted in awarding the contract to Premier Irrigation Equipment Limited. There is no denying that the records do not disclose that any one other than the petitioner in the first of the petitions and the 3rd respondent were the only two who were invited to the conference on 26-6-1985.
30. This method of exclusion of a valid tender is grossly unfair in view of the decided cases by our own Supreme Court. In such circumstances it is a fit case made out for interference by the petitioner A. I. E. C. Pvt. Ltd. If there was no equality of treatment of the tenders, similarly placed persons have been dissimilarly treated. Therefore the entire exercise of the Government is violative of Article 14 of the Constitution and in that view of the matter the contract awarded is liable to be set aside though for no fault of Premier Irrigation Equipment Limited.
31. In this behalf, Mr, Sundaraswamy appearing for the 3rd Respondent strenuously contended that relief should be denied to A.I.E.C. Limited because it has been set up by the petitioner in the first of the Petitions who is by and large its supplier of a major part of the aluminium components and the pipes and further there is a delay of five months in approaching this Court for getting the relief and therefore the same should be denied.
32. He placed reliance on the decision of the Supreme Court in Ramana Dayaram Shetty’s case1 supra. But on a careful reading of the Judgment, there is no material placed before this Court to find that A.I.E.C. Pvt. Ltd., has been set up by Jindal Aluminium Ltd., to prosecute the Writ Petition, unless the Court were to rely entirely on the various dates and thereby draw an inference. Dates relied upon by Mr. Sundaraswamy relate to the passing of the order on or about 27-5-1985, the negotiations that followed resulting in the revival of the order dated 25-8-1985, 26-11-1985 the date on which this Court gave the stay order and the date on which this Court modified the stay and thereafter the AIEC. Pvt. Ltd., approached this Court in December 1985. It would be dangerous to draw such an inference having regard to the circumstances of this case that AIEC Pvt. Ltd., was aware that the rate contract awarded in favour of 3rd Respondent was kept in abeyance. On 20-6-1985 it made the joint representation and further proceedings of the Govt. having been behind the back of AIEC Pvt. Ltd., it did rot know what had happened to its representation. Only after the revival of the rate contract on 26-8-1985 that the AIEC Pvt. Ltd. may be credited with the knowledge of the revival of the contract in the absence of any specific pleadings on either side. It is difficult to know exactly when AIEC Pvt. Ltd., came to know of the revival. In that circumstance, being a much smaller operator in the field compared with the petitioner in the first of the petitions and the 3rd Respondent if he approached this Court in December, he cannot be said to guilty of laches and delay as contended by for Respondeat-3 and the State. Three months after the revival it has approached this Court. The relevant date for such consideration is 26-8-1985 and not any other date.
33. In this view of the matter, petitioner in the second of the Petitions must succeed and this Court should not hesitate to give relief. In what form that relief should be given will be set out later in the course of this order.
34. The last question which has fallen for consideration on account of the discovery by this Court of the noting of the Secretary to the Chief Minister should now be dealt with. On instructions, the Learned Advocate General has submitted that the Secretary to the Chief Minister is not a Secretary to the Government as defined in the Rules of Business of the Government of Karnataka. But nevertheless he has been asserting enough to submit that the decision signified in the noting on 5-6-1985 was really the decision of the Chief Minister meant to be implemented in accordance with law. That was the impression of the Court also. Some interesting submissions have been made by the Counsel appearing for the parties. It was therefore, the Court requested the Learned Advocate General to file additional affidavits explaining as to why that noting was subsequently not noticed, nor implemented. Two affidavits have been filed. Unfortunately, the Secretary to the Government in the Industries and Commerce Department is not the person whose affidavit is before the Court. When this Court called for the affidavit he has retired and it is said that he was not available. Mr. Sundaraswamy, in his counter affidavit has asserted that the said Officer had retired, but he was nevertheless available at Bangalore for swearing to the affidavit. This Court cannot embark upon an investigation on such assertions and counter assertions. The fact is we have the affidavit of the then Deputy Secretary who as well was the Deputy Secretary at the relevant time concerning this case. He has reiterated what was filed in the original statement of objections and also has stated that the noting of the Secretary to the Chief Minister was possibly overlooked by oversight. He has also asserted that he had no personal knowlege at that time. Unfortunately, the Court cannot accept that assertion in the affidavit. Mr. Nayak who has sworn to the affidavit is the very same Nayak who has made the noting on pages-6 and 7 of the noting file. It was impossible for him to miss the noting of the Secretary to the Chief Minister if he had seen the noting of the Secretary to the Industries and Commerce Department before he made his note. For some reason which cannot be discerned from the file, the Secretary to the Industries Department having noticed the noting of the Chief Minister took a decision on behalf of the Government and noted the same to cancel the contract in favour of Pobatti Agencies as directed by the noting of the Secretary to the Chief Minister. But in regard to the contract in favour of the 3rd respondent, he decided to proceed further in a manner different than what the original tender indicated or invited. That very fact is revealed by the subsequent note at para-15 of the noting file at page-5. Unfortunately the Secretary is not available nor is this Court interested in finding out his motives for overlooking the noting. The fact that it was implemented in half or part is indicative of the fact that the Secretary took it as a decision of the Chief Minister.
35. In that view of the matter the contention of Mr. Sundaraswamy that the unsigned noting of the Secretary not approved or counter signed by the Chief Minister cannot be said to be a decision to be ignored. Rule 15 of the Karnataka Government (Transaction of Business) Rules, 1977 farmed in terms of Article 166 of the Constitution is a statutory Rule. It provides for the Chief Minister to call for papers from any department and express his view and also tender advise on any matter coming within the purview of the business allocated to any Minister. From that it is clear while the Rules of Business are so devised to make each Minister in the Cabinet responsible wholly and solely for the department which he heads or which is the allocated department to such Minister, it is prerogative of the Chief Minister to call for and dispose of a file of any other Department.
36. Mr. Sundaraswamy suggested a construction that Rule 15 (1) should be so read as to mean that the Chief Minister may advise the concerned Minister. Unfortunately English language is not so flexible, Rule is clear that he may not only express his views but also tender advise on any matter coming within the purview of the business allocated to any Minister. At best we can only read it as business allocated to any other Minister and no more. If the language of the rule has to be adhered to Chief Minister’s power to dispose of the file of the Commerce and Industries Department under the rules of business is absolute.
37. In a case decided by the High Court of Punjab and Haryana, two learned Judges of that Court in a Division Bench ruling in the case of Bhishan Lal -v.- State of Haryana, have taken the view that noting by Secretary not signed by the Chief Minister is nevertheless a decision of the Chief Minister. Having regard to the complexity of administration in the Cabinet system of Government, I am in full agreement with the views expressed by the learned Judges of that High Court.
38. Therefore, the noting at page-5 put, up by the Secretary to the Chief Minister which this Court is informed was the decision of the Chief Minister should have put an end to the proceedings and resulted in initiating proceeding to cancel the contract and agreement already awarded to the 3rd respondent and call for fresh tenders. That not having been done it is clear violation of law in reviving the contract awarded.
39. While this Court is prepared to accept the explanation of oversight, should nevertheless point out that in the later affidavit filed on behalf of the Government by the present Director of Stores Purchase, he has asserted that he forwarded after 28-8-1985 with his comments the decision to award the contract in favour of the 3rd respondent with a request to bring the same to the knowledge of the Hon’ble Chief Minister. He has further asserted that along with his comments with reference to the complaint of Jindal Aluminium Limited he sent the necessary documents together with the Test Report which proved that the Test Report showed failure of petitioner Company’s equipments. In the file presented to this Court, there is no evidence that the matter was ever brought to the notice of the Chief Minister anytime after 5-6-1985. There is no evidence at all that Chief Minister was appraised of subsequent developments to the noting of his Secretary on 5-6-1985.
40. It is in the larger interest of the Cabinet System of Government, democratic values and to eliminate undue bureaucratic liberties that this Court must reluctantly give the relief which the 2nd petitioner has asked for i.e., to quash the contract awarded in favour of the 3rd respondent.
41. By the interim order of this Court, 3rd respondent has derived some advantage but in our system of dispensation of justice that advantage cannot be denied to him. If he has lost the rate contract awarded to him it is not on account of any fault on his part or any flaw in his equipment but the flaw in the procedure followed by the Officers of the respondents-State Government. Hardly a month and 10 days are left for the contract. Therefore the real sufferer is the public interest because the sprinklers required by the Forest Department and the Animal Husbandry Department for the year 1985-86 has remained in short supply on account of the restriction imposed on the 3rd respondent and perhaps in the absence of any fresh rate contract nothing has been done. Therefore this Court should not fail to observe that the Government in inviting the next tenders shall keep in mind their own rules by which they shall conduct themselves in a way that they shall be judged only by that conduct and nothing else. If due caution is observed, there is no reason why the next invitation to tender in regard to awarding rate contract on whatever basis, turn key or otherwise, should not be on a fair and equitable basis for satisfying the Government’s requirements.
42. In the view I have taken, some of the citations are not noticed. Some of the arguments are also overlooked as they would not make any difference to the conclusion reached. However one argument may be noticed. Mr. S.G. Sundaraswamy, Counsel for respondent-3 submitted that even if the Court came to the conclusion that the note of the Secretary to the Chief Minister was the decision of the Chief Minister, the same was non est in law as the 3rd respondent was not heard in the matter. 1 do not think there is substance in the contention. Chief Minister will not be able to function if a hearing to the affected party must be given if he wants to alter a decision of the Government. His decision is no more than the instructions to the officials. Depending on the nature of the decision, it is the official or officials concerned who have to decide on the question of need to hear the affected person or one likely to be affected. In public administration decision making process is complicated. At every stage a hearing is not contemplated. Notings in the files are not orders of the Government. Noting was addressed to the Head of the Department concerned. Had the held of the Department carried into effect the decision of the Chief Minister, the need for this Court to examine the question of opportunity to 3rd respondent to represent would arise and not otherwise.
43. In the result, first of the petitions is therefore dismissed.
44. Second of the petitions is allowed with costs.
45. Cost shall be borne by the Government.
46. Certain materials in the form of aluminium pipes and components which were tendered into Court by both the petitioner in the first of the petitions (W.P. 15405/85) and the 3rd respondent may be returned to them if they apply for it.
47. At the conclusion of this Judgment, Advocate for respondent-3 submitted that the 3rd respondent may be allowed to complete the remaining period of the rate contract awarded. That cannot be done, if it is done then the relief given to the petitioner in the second of the petitions (W. P. No. 19347/85) becomes wholly illusory. In addition to that, this Court cannot bless what is otherwise an illegal act of the Government.