1. Questions of constitutional importance viz., whether the petitioner is denied of right to an avocation and was meted out inequiteous treatment inihibiting at the threshold of pre-qualification stage to enter into favourable relations with the first respondent along with other respondents in offering tenders to construct commercial complexes, etc. claim square answers in this cause.
2. Before elaboration thereof, it is necessary to state in brief, the material legislative setting and factual base. S. 129-A(1) of the Hyderabad Municipal Corporations Act, 1955 (Act II of 1956) for short, “the Act”, mandates the Commissioner in respect of any work the cost of which is Rs. 50 lakhs or more, to give a “notice by advertisement in the newspapers in the prescribed manner, inviting tenders or applications from persons who satisfy the pre-qualifications specified in such notice. Sub-section (4) thereof empowered the Government to make rules pursuant to which the Municipal Corporation of Hyderabad Tender Rules, 1970, for short, “the Rules” have been framed. R. 3-A(1) prescribes the manner in which the notice is to be published. Cls. (a) to (g) of sub-r. (1) of R. 3-A furnish the particulars and sub-r. (2) obligates the Commissioner to place before a Committee consisting of such number of members as they may deem it fit “to scrutinize and evaluate” the pre-qualifications of the tenders or such applications received pursuant to the notice issued under sub-s. (1) of S. 129-A of the Act read with R. 3-A(1) of the Rules, and one of such members shall be an officer of the rank of Chief Engineer. The Committee shall scrutinize and evaluate the applications placed before it and select the applicants for issue of tender schedules relevant to the work to be awarded. Thereafter, under sub-s. (3) of S. 129-A, the Commissioner shall obtain the “prior approval of the Government” in that regard and “shall consider the recommendations” of the Committee and accept any of the tenders or applications as recommended which appears to him, upon a view of all the circumstances to be the most advantageous and thereupon issue the tender schedules in respect of the work to the person or application (sic) is so accepted.
3. The Chief Engineer of the first respondent issued pre-qualification tender notice dated Jan. 11, 1984, published in the local newspapers on Jan. 14, 1984, to construct commercial complexes and parking lots at Abids to select competent contractors. The approximate value of the notified works range between Rs. 200 to 230 lakhs and the works are to be completed in a period of eighteen months. The interested agencies were called upon to furnish the particulars apprising their qualifications for the works. The works to be executed are (1) Commercial Complexes at Kummerguda and Boats Club and Multi-storied Parking Lots at Abids. The relevant particulars in terms of R. 3-A(1) called for are as follows:
(a) Name of the Contractor or Firm;
(b) Financial status;
(c) Details of experience in the execution of works of similar nature;
(d) Equipment and machinery possessed;
(e) Qualification of personnel employed including the technical personnel;
(f) List of major works of similar nature completed by the Agency or under execution with their value;
(g) Any other relevant information—
(i) They should have executed and completed the works of above nature costing not less than Rs. 100 lakhs in any single financial year;
(ii) Information given shall invariably be supported by the certificates issued by the competent authority.
4. Pursuant thereto, the petitioner a Class I contractor with the first respondent had offered himself by his application dt. Feb. 24, 1984, as a candidate for consideration to execute the aforestated works. The tender Committee consisting of two in-service Chief Engineers and a named retired Chief Engineer was constituted by the Government in G.O.Rt No. 333 dt. May 9, 1984 and met on June 6, 1984 and considered the applications received by the first respondent and selected ten contractors and firms as suitable for the works. The first respondent in his letter dt. June 14, 1985, submitted the recommendations to the Government — second respondent — for approval followed by several reminders. The Government in G.O.Rt No. 1434 dt. Aug. 29, 1985, approved the recommendations made by the Committee. On receipt thereof by letter dt. Sept. 4, 1985, the Chief Engineer sent letters to the contractors enclosing tender schedules and particulars for tendering the work. The petitioner is not one of the ten persons recommended by the Committee and approved by the Government and for non-selection thereof, the petitioner has filed the above writ petition.
5. At the outset it is to be mentioned that the writ petition came up for admission on Nov. 5, 1985 and while admitting the writ petition (sic) and the points involved for adjudication are pure questions of law untrammelled by questions of facts. In view of the fact that the constructions in question are of public utility ones and any undue delay in the disposal would add undue burden in the escalation of the cost of construction, Sri Janardhana Rao, learned standing counsel for the first respondent was directed to take notice and he placed the records before me. I have perused the records and both the counsel addressed the arguments. The plea of the petitioner elaborated by his learned Counsel, Sri Jagannadha Rao is that the petitioner has a fundamental right to carry on the profession, occupation, business or at any rate calling as Class I Contractor in executing the contracts with the first respondent, as assured under Art. 19(1)(g) of the Constitution and the denial of entering into contract with the first respondent offends his fundamental right. There is no gainsaying that Art. 19(1)(g) assures to all citizens the right to practice any profession or to carry on any occupation, trade or business. The word “occupation” is of wide import encompassing within its ambit any self-employment, calling or avocation and the freedom of carrying or executing contracts would come under “occupation” assured under Art. 19(1)(g). Art. 6(1) of the International Covenant on Economic Social and Cultural Rights, 1966 declares that the States — parties to the present Covenant — recognise the right to work which includes the right to every one to the opportunity to gain his living by work which he freely chooses or accepts and will take appropriate steps to safeguard his rights. Constitution assures to every citizen justice, social, economic and political; equality of status and opportunity with dignity of person in a socialist secular democratic society. Political equality with freedom to live in dignity loses its efficacy without economic equality. Therefore, a citizen has a right to earn livelihood by pursuing any profession, to carry on trade, occupation, business, calling or avocation within the constitutionally permissible limitations. Open competition in public largess enables a citizen to secure economic equality. There is no fundamental right to a citizen to carry on business in the properties or rights belonging to the Government (Vide C.K Achutan v. State of Kerala, AIR 1959 SC 490). Equally, no citizen has a fundamental right to insist that the Government must enter into a contract with him in doing its business or work. Like a private person, the Government has a right to choose or to enter into contract with any particular person and also has a right to decide on the terms of the contract. (Vide Rajamannar, C.J in Vedachala Mudaliar v. Divisional Engineer, Highways, AIR 1955 Mad 365). Equally it has a right to determine the persons with whom it will deal. (Vide K. Bhaskaran v. State of Kerala, AIR 1958 Ker 333 at p. 334). Therefore, the State can enter into a contract with any person of its choice.
6. “State” includes the Government — Central and State, Parliament and the Legislature of each State and all local or “other authorities” under the control of the Government—Central or State. The concept of “other authority” now has its wide interpretation for the purpose of Part III of the Constitution by a catena of decisions and in the context of contractual relations, Ramanna Dayaram Shetty v. International Airport Authority of India, AIR 1979 SC 1628 is a locus classicus. The first respondent is undoubtedly a local authority. Therefore it is a “State” within the meaning of Art. 12 of the Constitution. In Ramanna's case in the context of welfare-oriented measures in the implementation of the Directive Principles contained in Part IV of the Constitution, their Lordships of the Supreme Court, speaking through Bhagwati, J. (as he then was) have euologised the role of the State vis-a-vis the rights of a citizen to get largess of the State in para 11 thus:
“Today the Government, in a welfare State is the regulator and dispenser of special services and provider of a large number of benefits, including jobs, contracts, licences, quotas, mineral rights, etc. The Government pours forth wealth, money, benefits, services, contracts, quotas and licences. The valuables dispensed by the Government take many forms, but they all share one characteristic. They are steadily taking the place of traditional forms of wealth. These valuables which derive from relationships to Government are of many kinds. They comprise social security benefits, cash grants for political sufferers and the whole scheme of State and local welfare. Then again, thousands of people are employed in the State and the Central Government and local authorities. Licences are required before one can engage in many kinds of business or work. The power of giving licences means power to withhold them and this gives control to the Government or to the agents of Government or the lives of many people. Many individuals and many more businesses enjoy largess in the form of Government contracts. These contracts often resemble subsidies. It is virtually impossible to lose money on them and many enterprises are set up primarily to do business with Government. Government owns and controls hundreds of acres of public land valuable for mining and other purposes. These resources are available for utilisation by private corporations and individuals by way of lease or licence. All these mean growth in the Government largess and with the increasing magnitude and range of governmental functions as we move closer to a welfare State, more and more of our wealth consists of these new forms, some of these forms of wealth may be in the nature of legal rights but the large majority of them are in the nature of privileges. But on that account, can it be said that they do not enjoy any legal protection? Can they be regarded as gratuity furnished by the State so that the State may withhold, grant or revoke it at its pleasure? Is the position of the Government in this respect the same as that of a private giver? We do not think so. The law has not been slow to recognise the importance of this new kind of wealth and the need to protect individual interest in it and with that end in view, it has developed new forms of protection. Some interests in Government largess, formerly regarded as privileges, have been recognised as rights while others have been given legal protection not only by forging procedural safeguards but also by confining/structuring and checking Government discretion in the matter of grant of such largess. The discretion of the Government has been held to be not unlimited in that Government cannot give or withhold largess in its arbitrary discretion or at its sweet will. It is insisted, as pointed out by Professor Reich in an especially stimulating article on “The New Property” in 73 Yale Law Journal 733, “that Government action be based on standards that are not arbitrary or unauthorised.” The Government cannot be permitted to say that it will give jobs or enter into contracts or issue quotas or licences only in favour of those having grey hair or belonging to a particular political party or professing a particular religious faith. The Government when it acts in the matter of granting largess it cannot act arbitrarily. It does not stand in the same position as a private individual.”
7. Therefore the State and its instrumentalities, in implementation of welfare schemes enshrined in Part IV of the Constitution or enjoined under a statute proposes to grant any largess either in the form of licences or contracts, (sic) etc. a citizen, though has no fundamental right to insist upon the Government to enter into favourable relations with him, has a fundamental right to be fairly considered and has a “privilege” or “legitimate expectation of a right” to enter into contractual relations with the Government or the local authority or instrumentality of the State.
8. The Government, though need not deal with any one, but if it so chooses, its action must be in conformity with the law and it shall not be void under Art. 13 of the Constitution. Therefore, when a citizen is prevented by an action of the State, such an action shall be justified only under Cl. (6) of Article 19 which posits that it does not prevent the State from making any law imposing, in the interests of the general public, reasonable restrictions on the exercise of the right conferred under Art. 19(1)(g), or to prescribe the professional or technical qualifications necessary for practising any profession or carrying on any occupation, trade or business. No abstract standards or general patterns of reasonableness can be laid down as applicable to all cases. The Court is to see the nature of the right alleged to have been infringed, the underlying purpose of the restriction imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition of the reasonable restriction, the prevailing conditions should all enter into the judicial verdict. Regard must also be had to the nature of the business. These factors must differ from the facts and circumstances of each case. In considering the reasonableness and the justifiability thereof the Court must evaluate its direct or the inevitable effect on the right of the citizen, the larger public interest sought to be ensued by imposing restrictions in the light of the object which the legislature seeks to achieve and the quality and extent of the fetters imposed upon the exercise of the freedom assured under Art. 19(1)(g). The restriction must bear reasonable relations and it must strike a balance between the freedom guaranteed and the control sought to be achieved and it must not be excessive or unduly arbitrary.
9. If a tender is invited without imposing any pre-qualifications or conditions, every citizen, as of right, is entitled to offer the tender and has a right to be considered. It is now well settled by catena of decisions and as rightly relied on by Sri Jagannadha Rao, learned Counsel for the petitioner in the latest decision in Ram and Shyam Co. v. State of Haryana, AIR 1985 SC 1147, Desai, J. has pointed out the approach that demarcates the use and disposal of the private property by a person and the socialist property of the State. The State property has to be dealt with for public purpose and in public interest. The disposal of the public property partakes the character of trust and it must be done at the best price, so that larger revenue coming into the coffers of the State administration would serve public purpose viz., the welfare State may be able to expand its beneficent activities by the availability of larger funds. The object of calling for tenders to execute the work is to secure not merely the competent person but also to have it executed with minimum cost. Calling for tenders is one of the well accepted mode of distribution of the largess of the State by way of contract. But each work differs from its very nature, the purpose and the time factor within which the work is to be executed. The public at large may not be competent to execute a particular category of work. It may require special skill or expert knowledge, etc. The first respondent-Municipal Corporation in its experience had encountered with the difficulties in awarding its contracts to all the citizens. Therefore the Legislature stepped in and brought on statute Section 129-A of the Act and Rule 3-A of the Rules, prescribing pre-qualifications in calling for tenders from the persons who fulfil them. The legislative competence is not assailed. The ultimate object is to award the contract to a person who offers “most advantageous terms”. Section 129-A springs into action only in respect of the work whose value is Rs. 50 lakhs or more. It also empowers the State to appoint an Expert Body comprising of Chief Engineers who have specialised knowledge in the branch of work, to scrutinize such applications and evaluate the pre-qualifications of the tenderers and guide the Commissioner in that regard. The Commissioner is to obtain the “prior approval” in that regard from the State Government and thereafter shall consider and offer the tender forms to the persons who satisfied the qualifications. Rule 3-A(1) prescribes procedure to call for by publication in newspapers particulars regarding (a) the particulars of the contractor or firm; (b) their financial status; (c) the details of previous experience in execution of the “same work of similar nature”; (d) “Equipment and machinery” possessed of and the “qualifications of the personnel employed including the technical personnel”; (e) the list of the major works of “similar nature” completed by the agency or under execution; and (f) any other relevant information so as to enable the Expert Body to evaluate the qualifications of the contractor or firm so offered to tender for the work.
10. Like private individuals and businessmen, the Government enjoy the unrestricted power either to produce its own supply or execute its own work or to determine those with whom it will deal and to fix the terms and conditions upon which it will make the needed execution etc. Acting through its agents, as of necessity, the Government may, for the purpose of keeping its own business in order, lay down the principles by which its agents are to proceed in the procurement of its supplies or in execution of its work, etc. and create duties to its agents to perform. In Ramanna's case, (AIR 1979 SC 1628) (supra), it was held that the Government is entitled to prescribe its own standards and the Government or its instrumentalities shall be bound thereby. In Kasturilal v. State of J.K, AIR 1980 SC 1992 at P. 2007 it was held that previous experience is one of the relevant considerations and the exclusion of a person who has no such experience at all in the past was justified. A Division Bench of this Court speaking through Choudary, J. in Sri Rama Engg. Contractors v. Construction Engineer, Civil Engineering Dept. of Space, Govt. of India, AIR 1981 Andh Pra 165 held that comparative evaluation of the tenders and elimination of a citizen on grounds of relative unsuitability is a reasonable restriction. It was further laid that:
“Doing business involves an exercise of free will of more than one person concurring into an agreement. Art. 19(1)(g) of the Constitution enables the free exercise of that will released from the fetters of the restrictive State action but not from the restrictions of an unwilling party. Art. 19(1)(g) does not therefore force on the State an unwilling business relationship with any particular person.”
Therefore it was held that neither a citizen's abstract right nor his accrued right guaranteed under Art. 19(1)(g) of the Constitution are violated. In Vedachala Mudaliar's case, AIR 1955 Mad 365 (supra) insistence on production of income-tax clearance certificate as a condition for grant of contract was upheld. In Trilochan Mishra v. State of Orissa, AIR 1971 SC 733 it was held that accepting the tender of one of the highest tenderers on negotiation does not offend Article 19(1)(g). Similarly in State of Orissa v. Harivarayan Jaiswal, AIR 1972 SC 1816 it was held that it is for the Government to decide whether the price offered in an auction-sale is adequate while accepting or rejecting a bid. It is merely performing an executive function. If the Government is the exclusive owner of the privileges reliance on Art. 19(1)(g) or Article 14 becomes irrelevant. The correctness of its conclusion is not open to judicial review and there is no infraction of Art. 19(1)(g) of the Constitution.
11. From the above conspectus it must be held that Section 129-A of the Act and Rule 3-A of the Rules assure built in procedural fairness in scrutinizing the record to evaluate the pre-qualifications of contractors or firms and intended to secure a competent person to cope up with the magnitude of the work with requisite experience backed by needed men and material to execute the proposed work with utmost promptitude and efficiency at most advantageous terms. There is therefore needed nexus between the restrictions imposed and the object sought to be achieved and the evil to be remedied and so restrictions are imposed in the public interest. It passed the test of reasonable restriction under Art. 19(6). Therefore the attack of the petitioner that his fundamental right to carry on the avocation or calling as Class I contractor is unconstitutionally impeded, lacks force and is rejected. As a matter of fact, this question was considered on an earlier occasion at the instance of the petitioner and others in a batch of writ appeals, in W.A No. 602/81 etc. dated April 20, 1984 and it was rejected though for different reasons, upholding the constitutional validity thereof.
12. It is next contended that the petitioner has been meted out with inequitous treatment in inhibiting at the threshold to offer his tender, violating Article 14 of the Constitution. It is now settled law that where the Government is dealing with public, whether by way of giving jobs or entering into contracts or granting other forms of largess, the Government cannot act arbitrarily at its sweet will and like a private individual deals with it, but its action must be attuned to some standard or norm which is not arbitrary, irrational or irrelevant. The governmental action must not be arbitrary or capricious, but must be based on some principles which meets the test of reason and relevance. The doctrine of equality enshrined in Art. 14 assures to every citizen, though the State is entitled to refuse to enter into relationship with any one, yet if it does so, the State cannot arbitrarily choose any person it likes for entering into a relationship and discriminate between persons similarly circumstanced. Its action must meet the test of reasonableness, fairness, justness and non-discrimination. Any departure from such standard or principle would be invalid unless it can be supported or justified on some overriding public interest or rational and non-discriminatory ground. In Erusian Equipment & Chemicals Ltd. v. State of W.B, AIR 1975 SC 266, Ray, C.J speaking for the Court held that equality of opportunity should apply to matters of public contracts. State therefore has the duty to observe equality. An ordinary individual can choose not to deal with any person. The Government cannot choose to exclude persons by discrimination. Government is a government of laws and not of men. Though the petitioner has no right to enter into a contract, he is entitled to equal treatment with others who offer tenders or quotations for the purchase of the goods. The privilege arises because it is the Government which is trading with the public and the democratic form of Government demads equality and absence of arbitrariness and discrimination in such transactions. Privilege is a form of liberty as opposed to duty. The activities of the Government have a public element and therefore there should be fairness and equality.
13. It is thus clear that articulation of equality clause even in contractual arena ensures (that) to every citizen not merely in participation to enter into favourable relations with the Government, Justice and fair treatment is accorded but also keeps a check on the Governmental agencies committing arbitrary, capricious or irrational acts or actions which have lasting stains of infamy and blemish on the fountains of rule of law. The rule of law for functional success must run close to the rule of life. Therefore, the action of the Municipal Corporation or the State Government or the Expert Body in evaluating the relative suitability of the intended contractors or firms must be just and reasonable and must be dealt with fairly and honestly. But, for consideration thereof, the intended contractor or firm must be of the same class of persons that satisfy the prescribed qualifications. Otherwise, it is an exercise in futility.
14. Section 129-A of the Act and Rule 3A of the Rules treat contractors who intended to execute the work whose value is Rs. 50 lakhs and above, as a class and among them the contractor or firm possessed of the requisite qualifications enumerated hereinbefore are eligible to apply for that particular work. Once such persons satisfy the qualifications prescribed all of them being of the same class, shall be entitled to be treated alike and they shall be entitled to be considered in determination of their pre-qualifications. No exception could be made in this regard. Therefore it is the duty of the Expert Committee constituted by the Government to evaluate the relative suitability of the contractors or firms that applied in that regard. The immediate question therefore is whether the petitioner has been meted out with individious discrimination in this regard. On his own admission, in paragraph 2 of his affidavit, the petitioner has admitted that his experience is only in contracting Salarjung bridge, reclamation of land, formation of roads, culverts and drainage works and retaining work. The tender particulars are already noted and the actual magnitude of work is Rs. Two crores and above to construct commercial complexes and multistoried parking lots. Thereby the admitted fact is that the petitioner is not possessed or previous experience in the contracts in question. The contention of Sri Jagannadha Rao, learned counsel for the petitioner is that the words “similar nature” used in R. 3-A(1)(f) must be broadly construed, as held by the Division Bench in W.A No. 602/81, etc. Though the petitioner had no previous experience in the construction of commercial complexes, it may be construed that the work executed by him must be of similar nature by giving liberal interpretation so as to enable the petitioner to participate in offering the tender. The Bench held thus:
“We consider that the said expressions……. should be liberally construed and the claims of the contractors who have executed works of the approximate value of the proposed work and the executed work has broad features of similarity with the proposed work should be considered.”
It is clear that this Court does not appear to have intended to lay down to give a go-bye to the qualifications prescribed. The words “similar nature” must be construed in the light of the nature of the work to be executed. It must be of analogous work but not a work unrelatable to the one which is offered to be executed. The very object or purpose is to have a person with previous experience; the men and material, the capability and efficiency to execute the work with dextirity within the stipulated contractual period. In that regard, the previous experience and the qualifications prescribed are essentially and integrally connected with the object sought to be achieved and bear reasonable relation. It is further contended that the object of pre-qualification is to fix qualifications but not an avenue to pick and choose persons with personal equations and the stage of elimination arises only after tenders are submitted. This contention is too broad and misconceived. The very object of Section 120-A of the Act and Rule 3-A of the Rules, is to filter out the unqualified and to evaluate the relative suitability among the rest to find the eligible persons and to consider the claims of all such persons. No generalisation can be made in regard to persons selected whether they are nearer to the door steps of the power houses or fallen from grace or unduly favoured. Each case is to be considered on its own facts. Since the petitioner does not come within the class of persons enumerated under S. 129-A of the Act or Rule 3-A of the Rules to execute the works in question, he cannot complain that invidious discrimination has been made out to him in not considering his case.
15. It is next contended that the action of the respondents is violative of principles of natural justice. Had the respondents or the Expert Committee given him notice, the petitioner would have satisfied the authorities that he is capable of executing the works and he has sufficient men and material and had gained experience though not in the same building constructions and the non-grant of opportunity of hearing is vitiated by the doctrine of audi alteram partem. The omission to permit the petitioner to supply the tender particulars visits with civil consequences of denying the petitioner to pursue his avocation or calling as Class I contractor. It is true that the activist operation and deep dent of the doctrine of audi alteram partem has its soothing effect in diverse situations where the impugned act visits with civil consequences or deprivation of a pre-existing right or affects the livelihood of a citizen. Therefore the doctrine of natural justice must be used “as curative measure to eradicate pests in the infested field and it must not be an unruly horse to trample upon and destroy the crop of legitimate and result-oriented acts or orders to deflect the course of justice.” It must not also be an instrument of time consuming or self defeating process. The doctrine cannot be put in a straight-jacket formula. It is to be used sparingly and wisely attune to the circumstances. It is well settled that even post optional hearing also meets the doctrine of audi alteram partem. In E.E & Co. Ltd.'s case, (AIR 1975 SC 266), it was held thus:
“Sometimes duty to act fairly can also be sustained without providing opportunity for an oral hearing. It will depend upon the nature of the interest to be affected, the circumstances in which a power is exercised and the nature of sanctions involved therein.”
In P.R Quenim v. M.K Tandel, AIR 1974 SC 651 at P. 655, Khanna, J. held that Government certainly has a right to enter into a contract with a person well known to it and especially one who has faithfully performed his contracts in the past in preference to an undesirable or unsuitable or untried person. The object of evaluating the pre-qualifications of contractors or firms is to finalise the process of awarding contracts by an Expert Body of Engineers, as expeditiously as possible. If the tardy process of hearing is extended into this arena, the very purpose of expeditious finalisation of the formalities will be unduly impeded and retarded, adding escalation of cost of construction with undue drain to public “exchequer. The rule as well as the published notices require the persons to furnish the required particulars or any other relevant information with all the details. Mere offer does not clothe him any right but has a legitimate expectation to a fair consideration. The Expert Body would objectively, fairly, reasonably and honestly evaluate the relative suitability or unsustainability of a contractor or a firm and recommend the persons eligible. The Government again considers them before giving its approval and then the Commissioner himself shall consider and then decide to supply tender forms to such qualified and eligible persons. The Division Bench of this Court in Sri Rama Engg. Contractors' case, AIR 1981 Andh Pra 165 (supra), when a similar argument was addressed, its scope was considered in extenso and has negatived the application of the doctrine of audi alteram partem holding that where the Government is refusing to enter into a works contract with a particular contractor on the ground of his relative unsuitability, the rejection does not involve forfeiture of any pre-existing rights or interest nor does it defeat his legitimate expectations nor does it inflict with any civil consequences. A tenderer is entitled to be treated fairly and honestly, but not according to the principles of natural justice. The same ratio applies with equiforce to the case of evaluation of pre-qualifications. Therefore, I have no hesitation to hold that the tenderer/applicant petitioner is not entitled to a hearing before rejecting his claims at the stage of determination of pre-qualifications.
16. But at the same time, it must be emphasised that when The Expert Body is enjoined to evaluate the relative suitability of the intending contractors or firms, though is of executive in nature, their discretion is not unbriddled and their decision must not be arbitrary or capricious. An arbitrary decision is anathema to reason. Statement of reasons is one of the essentials of justice. Reasoned decision is not only vital to show that the citizen is receiving justice but also gives a valuable discipline to the body or the Tribunal itself. Reasons ignite their wavelength to fuse the gulf between the record and the maker's mind. It also assists the Court in judging whether the exercise of the power is validly made and proper reasons have been given or is stemmed from extraneous consideration. Duty to give reasons is a sine qua non for a valid order and is a responsible one and it cannot be held to have been discharged by the use of vague or general terms. From the omission to record reasons, the Court may have to assume that he had no good reasons or that the authority had not applied its mind or was acting arbitrarily. The authority or the body cannot disarm the Court by taking refuge in silence. Insistence on reasons therefore is a valuable safeguard against the exercise of the discretionary power.
17. In a recent decision, their Lordships of the Supreme Court in Union of India v. Tulsiram Patel, AIR 1985 SC 1416 (paras 132 to 134) held that mere incantation of statutory language is not a substitute for reasons. It was further held that the authorities should record in writing its reasons detailing the circumstances in which it is not reasonably practicable to hold an enquiry contemplated under the second proviso to Art. 311(2) of the Constitution. If such reasons are not recorded in writing, the order is held to be void and unconstitutional. It is also further held that the reasons need not find place in the order but it should form part of the record. It is needless to mention that it is not necessary that the first respondent should communicate reasons to the persons who were found relatively unsuitable to the work, but it is to emphasise that the record must contain the reasons and if challenged, the record should bear out that the claims were objectively, honestly and fairly considered and were rejected. Though relative evaluation of the claims is purely an administrative action, but unlawful rejection impinges the fundamental rights of a citizen to consider his privilege or legitimate expectation. Therefore the record must establish that the claims were in fact considered and the rejection must be supported by germane and relevant reasons, lit need not be like a judicial order containing all meticulous particulars but the reasons may be brief but must not be vague or cryptic or unintelligible. If demanded by an aggrieved person, they may be supplied at his cost.
18. The question, therefore, is whether the petitioner's case has been considered and reasons have been recorded in this regard? I have perused the record. Neither the Committee of the three Engineers nor the Government nor the first respondent have assigned reasons in evaluating the relative suitability of the candidate. But that omission though fatal is of little avail to the petitioner, because the petitioner is not a member of the class of contractors or firms who fulfilled the qualifications prescribed for the contract. Therefore, the omission to record the reasons does not vitiate the action in so far as the petitioner is concerned.
19. It is next contended that respondents 3 to 7 have no good record of previous experience in execution of the work and the previous record of the petitioner was taken as adverse to him, because of his filing the writ petition on the earlier occasion. I have perused the record and the record does bear no such a seed. So it is mere apprehension without factual base. Therefore, the question of giving opportunity to the petitioner does not arise. With regard to the relative merits of respondents 3 to 7, this question is unnecessary in this case. Many of them did not even offer tenders. Therefore, I need not go into that question. Except the above no other contentions have been raised. Therefore the action does not warrant interference. The writ petition is accordingly dismissed, but in the circumstances, without costs. Advocate's fee Rs. 150/-.
Petition dismissed.