IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
C.W.P. No.5946 of 2008
Date of decision: 10.11.2008
The Chak Manne Wala Coop. L&C Society Ltd.
-----Petitioner
Vs.
State of Punjab and others.
-----Respondents
CORAM:- HON'BLE MR JUSTICE ADARSH KUMAR GOEL
HON'BLE MR JUSTICE L.N. MITTAL
Present:- None for the petitioner.
Mr. Piyush Kant Jain, Addl.A.G., Punjab.
-----
ORDER:
1. This petition seeks quashing of tender process initiated vide
notices dated 29.2.2008 (Annexures P-2 and P-3).
2. Case of the petitioner is that it is a cooperative society and
as per policy of the State Government notified on 22.12.2004 vide
Annexure P-1, all unskilled works upto any value and skilled works upto
the limit of Rs.15 lacs for each work, should be allotted to cooperative
societies only within the ceiling rates fixed by the Public Works
Department. Ignoring the said instructions, the impugned tender
notices have been issued, which are open to all.
3. We have heard learned counsel for the State and perused
the writ petition.
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4. It has not been disputed that the impugned tender notices
are in violation of Government policy as reflected in notification
(Annexure P-1). No reply has been filed inspite of notices having
been duly served and sufficient period having lapsed.
5. Only justification put forward is that the writ petition seeks
enforcement of a policy, which is not law.
6. Though, mere administrative instructions may not give rise
to enforceable right, no administrative authority can act arbitrarily and
must be rigorously held to the standards by which it profess its actions
to be judged.
In State of Assam v. Ajit Kumar Sarma AIR 1965 SC
1196, it was observed as under:-
“12. We may in this connection refer to M/s. Raman and
Raman v. State of Madras, (1959) Supp (2) SCR 227 : (AIR
1959 SC 694) where this Court had to consider certain
orders and directions issued under S. 43A of the Motor
Vehicles (Madras Amendment) Act, 1948. The question
arose whether the orders issued under S. 43A had the
status of law or not. This Court held that such orders did not
have the status, of law regulating the rights of parties and
must partake of the character of administrative orders. It
was further held that there could be no right arising out of
mere executive instructions, much less a vested right, and if
such instructions were changed pending any appeal, there
would be no change in the law pending the appeal so as to
affect any vested right of a party. That decision in our
opinion governs the present case also, for it has been found
by the High Court, and it is not disputed before us, that the
Rules are mere administrative instructions and have not the
force of law as statutory rules. They therefore confer no
C.W.P. No.5946 of 20083
right on the teachers of private colleges which would entitle
them to maintain a writ petition under Art. 226 for the
enforcement or non-enforcement of any provision of the
Rules. The Rules being mere administrative instructions are
matters between private colleges and the Government in
the matter of grant-in-aid to such colleges, and no teacher
of a college has any right under the Rules to ask either for
their enforcement or for their non-enforcement. We are
therefore of opinion that the High Court was in error when it
granted a writ against the State through the Director, by
which the Director was asked not to give effect to its letter
dated March 20, 1962, against the Governing Body of the
College.”
7. In Ramana Dayuaram Shetty v. The International Airport
Authority of India and others, AIR 1979 SC 1628, it was observed:-
“10. Now, there can be no doubt that what para (1) of the
notice prescribed was a condition of eligibility which was
required to be satisfied by every person submitting a tender.
The condition of eligibility was that the person submitting a
tender must be conducting or running a registered IInd
Class hotel or restaurant and he must have at least 5 years’
experience as such and if he did not satisfy this condition of
eligibility, his tender would not be eligible for consideration.
This was the standard or norm of eligibility laid down by the
Ist respondent and since the 4th respondents did not satisfy
this standard or norm, it was not competent to the Ist
respondent to entertain the tender of the 4th respondents. It
is a well settled rule of administrative law that an executive
authority must be rigorously held to the standards by which
it professes its actions to be judged and it must
scrupulously observe those standards on pain of
C.W.P. No.5946 of 2008
4
invalidation of an act in violation of them. This rule was
enunciated by Mr. Justice Frankfurter in Vitarelli v. Seaton
(1959) 359 US 535 : 3 L Ed 2d 1012 where the learned
Judge said :
“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
requirements 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 Court accepted the rule as valid and applicable in India
in A. S. Ahluwalia v. State of Punjab (1975) 3 SCR 82 : (AIR
1975 SC 984) and in subsequent decision given in Sukhdev
v. Bhagatram, (1975) 3 SCR 619 : (AIR 1975 SC 1331),
Mathew, J., quoted the above-referred observations of Mr.
Justice Frankfurter with approval. It may be noted that this
rule, though supportable also as emanating from Article 14,
does not rest merely on that article. It has an independent
existence apart from Article 14. It is a rule of administrative
law which has been judicially evolved as a check against
exercise of arbitrary power by the executive authority. If we
turn to the judgment of Mr. Justice Frankfurter and examine
it, we find that he has not sought to draw support for the
rule from the equality clause of the United States
Constitution but evolved it purely as a rule of administrative
law. Even in England, the recent trend in administrative law
is in that direction as is evident from what is stated at pages
540-41 in Prof. Wade’s Administrative Law 4th Edition.
There is no reason why we should hesitate to adopt this rule
as a part of our continually expanding administrative law.
C.W.P. No.5946 of 2008
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Today with tremendous expansion of welfare and social
service functions increasing control of material and
economic resources and large scale assumption of
industrial and commercial activities by the State, the power
of the executive government to affect the lives of the people
is steadily growing. The attainment of socio-economic
justice being a conscious end of State policy, there is a vast
and inevitable increase in the frequency with which ordinary
citizens come into relationship of direct encounter with State
power-holders. This renders it necessary to structure and
restrict the power of the executive Government so as to
prevent its arbitrary application or exercise. Whatever be
the concept of the rule of law, whether it be the meaning
given by Dicey in his “The Law of the Constitution” or the
definition given by Hayek in his “Road to Serfdom” and
“Constitution of liberty” or the exposition set forth by Herry
Jones in his “The Rule of Law and the Welfare State”, there
is, as pointed out by Mathew, J., in his article on “The
Welfare State, Rule of Law and Natural Justice” in
Democracy, Equality and Freedom “substantial agreement
in juristic thought that the great purpose of the rule of law
notion is the protection of the individual against arbitrary
exercise of power, wherever it is found”. It is indeed
unthinkable that in a democracy governed by the rule of law
the executive Government or any of its officers should
possess arbitrary power over the interests of the individual.
Every action of the executive Government must be informed
with reason and should be free from arbitrariness. That is
the very essence of the rule of law and its bare minimal
requirement. And to the application of this principle it makes
no difference whether the exercise of the power involves
affection of some right or denial of some privilege.”
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8. In view of above, in absence of any justification for acting
contrary to declared policy of the state Government, the impugned
notices cannot be sustained.
9. Accordingly, we allow this petition and quash the impugned
tender notices with liberty to the respondents to proceed further in the
matter in accordance with law.
9. The petition is disposed of.
( ADARSH KUMAR GOEL )
JUDGE
November 10, 2008 ( L. N. MITTAL )
ashwani JUDGE