B.M.Lal, J.

1 This is a petition under Articles 226 and 227 of the Constitution of india, directed for striking down Para 1214 of the Indian Railways Code for the engineering Department (hereinafter referred to as the 'code') on the ground that it violates Article 14 and Article 19 (l) (g) of the Constitution of India. The petitioner has also asked for the ancillary relief for quashing the short list of the contractors prepared by the respondents and further issuance of directions to adopt open tender system.

2 The short facts leading to this petition are as under : The respondent No.1 proposed to construct an Over-bridge on Railway crossing at Itarsi on the railway line-Bombay to Jabalpur and Bhopal to Nagpur. The estimated cost of the work was Rs.2.50 crores and the work was to be completed within a period of four calendar years. The respondent No.1 has to cover the portion for construction of the over bridge in between railway line alone and for approach roads from both sides it was for the State government to construct the said approach roads. The approach roads also roughly cost Rs.4 to 5 crores.

3 The respondents' case for issuing and accepting tenders is governed by chapter XII of the Code which provides detailed instructions regarding the procedure to be adopted by the railway department in giving contracts/works contract. These instructions are no doubt mandatory and have force of law within the meaning of article 13 of the Constitution.

4 Such type of contracts are particularly governed by paras 1210,1211 and 1214 of the Code. But the contract in the instant case is only governed by Para 1214 of the code. The original para 1214 has been repealed on 3-12-1983 and substituted by new para 1214 which reads as under :

"1214. Limited Tender system : (i) Where for reasons which should be in the public interest, it is considered not practicable or advantageous to call for open tenders, limited tenders may be invited with the concurrence of the Financial Adviser and Chief Accounts officer and approval of the competent authority. The reasons for inviting limited tenders from firm / contractors should be kept on record while approaching finance for concurrence. (ii) In open line railway, the system of inviting tenders for works costing upto rs.5 lakhs (five lakhs) each from amongst the contracts borne on the approved list may also be adopted when it is considered advantageous to do so, provided the number of contractors borne on the approved list for the particular type of work is not less than 10. Note ;- Notwithstanding the provision contained in para 12l4 (ii) above, the railways may, in consultation with the associate finance, invite open tenders in the following circumstances :-

(a) In the event of insufficient response to the tender from the contractors borne on the approved list; (b) When the work is of special nature and contractors with requisite experience are not available on the approved list; and (c) When ring formation is suspected. "

5 The petitioner's ease is that it is a registered partnership firm and carries on business in the name and style of M/s Mohanlal Hiralal of Itarsi, having 20 years experience of the business. The petitioner further alleged that it deposited Rs.25000/-on 6-9-1984 towards earnest money/renewal fee and as such it renewed its name in the approved list of contractors. It is pertinent to note that in the month of March, 1984 when the decision was taken by the respondents, at that time the petitioner-firm was not on the approved list for the last preceding three years and, therefore, question of inclusion of its name either in the approved list or in the short-list, did not arise. After the close of the case, the petitioner had filed I. A. No.7278/85 to demonstrate that it was on the approved list since 1975, but at the same time it has also admitted that for last three years from 1984 it had not renewed its name in the approved list by paying any renewal fee. It is also alleged that the petitioner had submitted its tender to the Public Works department of State Government for construction of approach roads, but the same did not find favour.

6 The petitioner-firm vigorously attacked the provision of the new Para 1214 of the Code on the ground that it does not provide any guidelines for the procedure for accepting the tenders. Further, it does not fulfil the requirement of public interest, although the words 'public interest' find place in this Para. It is further argued that on the basis of this para the short-list which the respondents prepare, results in hostile discrimination. Therefore, the petitioner submitted that by virtue of this para the respondents have been given arbitrary, unbridled and unguided powers to pick and choose the contractors of their own choice without any rational basis and hence this para 1214 of the Code, being discriminatory in nature, hits Article 14 and Article 19 (1) (g) of the Constitution and, therefore, the same may be struck down.

7 A perusal of Para 1214 of the Code fully demonstrates that in the circumstances where it is not practicable or advantageous to call for open tenders, limited tenders may be invited with the concurrence of the Financial Adviser and Chief accounts Officer and approval of the competent authority and the reasons for inviting limited tenders from the contractors should be kept on record while approaching for finance and concurrence. This itself demonstrates that only in circumstances where it is not practicable then only this para 1214 be resorted to, otherwise, in other cases the other method provided under Para 1210 and other paras of the Code, relating to open tenders, be adopted.

8 'public interest' is fully safeguarded when concurrence of the Financial adviser and Chief Accounts Officer, is to be obtained for accepting the tender. Therefore, in no way, it could be said that while accepting the limited tender in view of para 1214, 'public interest' is not safeguarded. The expression 'public interest' is of very wide import, which includes so many considerations and, therefore, at times, no doubt, certain amount of arbitrariness is likely to creep in while deciding priority amongst the contractors. Therefore, to wriggle out from the arbitrariness certain checks have been provided in Para 1214 of the Code as stated aforesaid and therefore, after following the guidelines provided therein 'public interest' is well safeguarded.

9 It is next contended that Para 1214 of the Code does not provide any guide-lines for accepting tenders, The limited tender itself denotes that where it is not practicable or disadvantageous to call for open tender, only in such a situation, in 'public interest' limited tenders may be invited. Further, the Note, appended to this Para 1214, clearly envisages that in consultation with the associate finance, if insufficient response is received from the contractors from the approved list, then, open tenders may be resorted to.

10 It is not disputed that the construction of overbridge as proposed by the respondents is of a special. nature. The learned counsel appearing for the petitioner submitted that short list of tenders as prepared by the respondent also hits Article 14 of the Constitution inasmuch as it demonstrates hostile discrimination.

11 The short list of tenders was prepared in the month of March 1984 and by that time the petitioner firm was not eligible to offer tender since it had not deposited earnest money/renewal fee to enable it to partake as tenderer. 'the system of the short list, as described by the learned counsel for the respondents, is that amongst the approved list contractors and some other renowned specialised well known contractors, the Railways prepare the list which is known as 'short-list' and for the special work covered under para 1214 of the Code, by utilising the short-list, the respondents offer the contractors to submit their tenders. As stated, since the petitioner-firm had not deposited earnest money, its name was not registered in the list of approved contractors. Therefore, the question of finding place of the name of the petitioner-firm in the short-list does not arise at all. The short list is mainly prepared on the basis of nature of work involving safety, 'past experience' and successful completion of huge works.

12 The petitioner-firm further submitted that the respondents have acted in unbridled manner and as such its fundamental right guaranteed under the Constitution, has been violated. The doctrine of equality before the law is a necessary corollary to the high concepts of the rule of law which is recognised by our Constitution. All that Article 14 of the Constitution guarantees is similarity of treatment provided the person who complains of discrimination is similarly situated, but no identical treatment can be given to a person, if, amongst group or class of contractors, he complains of discrimination, where he does not fit in, then certainly he cannot say that he has been discriminated.

13 It is now well settled that persons who complain of inequal -treatment, should place the entire material before the court, but where he has not placed the material showing discrimination, then merely by saying that he has been discriminated, will not be justified. In the instant case the petitioner-firm failed to point out how it has been discriminated when its name was not appearing even in the approved list amongst a particular class of contractors, i. e. , contractors of the short list prepared by the respondents and from whom limited tenders were to be accepted.

14 While accepting or rejecting tenders if the authority concerned assigns cogent reasons for the same, then, it cannot be said that either Article 14 or Article 19 (l) (g) of the Constitution has been violated, provided the rejection or acceptance of tenders has not been acted arbitrarily. In numerous cases the Hon'ble Supreme Court has held that the Government is under no obligation to accept the high bid and that any rights accrued to the bidder, because his bid happens to be highest. The Government has the right, for good and sufficient reasons, even not to accept the highest bid and to accept the lowest.

15 The doctrine of equality before law does not command and it does not take away law making or rule making powers of classifying persons for legitimate purposes and therefore, the principle of equality does not mean that every law or every action of the Government has universal application for all persons who are not similarly situated in the same position or category. Therefore, the theory of equal protection, applying the principle of Article 14 of the Constitution, only means, the right to equal treatment to the persons placed in similar circumstances. Therefore, even in such contracts, as in the instant case, the Railway has a right to enter into a contract with any contractor of its choice, provided that such a contractor fulfils the requirements of a particular construction, i. e. the matter in issue in this petition; but the only restriction is that while accepting the contract (tender), the Railway has no right to discriminate between the class of contractors excluding others who are similarly situated. But in the instant case, such is not the position with the petitioner-firm which initially has not been included in the approved list.-

16 The construction work of over-bridge on the rails, estimated cost of which is rs.2.5 crores, requires high technique, experience and stability of the firm and, therefore, if experienced and reputed contractor is preferred in preference to other contractors who have experience, with amount of efficient work, having stability in his business, in such circumstances, in our opinion, there cannot be said to be any violation of Article 14 of the Constitution.

17 Shri A. D. Deoras, learned counsel for the petitioner strenuously argued that para 1214 of Code gives unbridled powers. In this context a reference may be made to the case of Ramana Dayaram Shetty V/s. The International Airport Authority of India and others (AIR 1979 S. C.1628) wherein P. N. Bhagwati J. (as he then was), speaking for the Court, observed :

"it must, therefore, be. taken to be the law that where the Government is dealing with the public, whether by way of giving jobs or entering into contracts or issuing quotas or licences for granting other forms of largesse, the government cannot act arbitrarily at its sweet will and, like a private individual, deal with any person it pleases, but its action must be in conformity with standard or norms which is not arbitrary, irrational or irrelevant. The power or discretion of the Government in the matter of grant of largesse including award of jobs, contracts, quotas, licences etc. . must be confined and structured by rational, relevant and non-discriminatory standard or norm and if the Government departs from such standard or norm in any particular case or cases, the action of the Government would be liable to be struck down unless it can be shown by Government that the departure was not arbitrary, but was based on some valid principle which in itself was not irrational, unreasonable or discriminatory."

At another place, in Ramana's case (supra) it was observed that -

" The Government must act in public interest, it cannot act arbitrarily or without reason and if it does so, its action would be liable to be invalidated. . . the object of holding the auction is generally to raise the highest revenue. The government is entitled to reject the highest bid if it thought that the price offered was inadequate. But after rejecting the offer, it is obligatory upon the government to act fairly and at any rate it cannot act arbitrarily."

The same view has been reiterated in Kasturi Lal Lakshmi Reddy vs. State of Jammu and kashmir (AIR 1980 S. C 1992 ).

18 As pointed out above, to avoid pick and choose, Para 1214 of the Code itself provides sufficient guidelines to exlude exercise of any arbitrary, unbridled or unfettered powers and, therefore, the ratio laid down in the case of Ramana (supra) and kasturilal's case (supra) in our opinion, fully met with in the instant case.

19 Shri A. D. Deoras, while referring the case of Ras bihari Panda etc. vs. State of orissa (AIR 1969 $c 1081) submitted that Para 1214 of the Code gives complete monopoly only to few contractors. The ratio laid down in the case of Rasbihari Panda (supra) was that in a Government scheme for sale and disposal of tendu leaves, it was found that the right to make tenders for the purchase of tendu leaves was restricted to those persons who had obtained contracts in the previous years. The scheme was held to be violative of Article 14 and Article 19 (1) (g) of the Constitution, because it gave rise to monopoly to certain tenderers. In our opinion, the dictum laid down in the above case cannot be of such assistance because there was no classification in the class of tenderers, but in the instant case it was a limited tender and amongst the short-list tenderers, no discrimination has been pointed out.

20 In support of his contention, Shri A. D. Deoras further relied upon K. N. Guruswamy V/s. The State of Mysore and others (AIR 1954 SC 592 ). In that case a liquor contract was knocked down in an auction by Deputy Commissioner in favour of the 'a' who was the highest bidder. 'b' who was present at the auction but did not bid, saw the excise Commissioner and offered Rs.5000/- in excess of 'as bid. 'b's offer was accepted and 'a's bid was cancelled. It was held that cancellation of 'a's bid, though irregular, was proper, as A had obtained no right to the licence by the mere fact that the contract had been knocked down in his favour. The action of the Deputy Commissioner in giving the contract to B was held to be wrong as it was found to be contrary to the rules framed under the Mysore Act. In the instant case the learned counsel failed to point out any contravention of the provisions of Para 1214 of the Code. Therefore, case of K. N. Guruswamy (supra) is of no avail to the petitioner in the instant case.

21 The learned counsel for the petitioner further argued mala fides on the part of the officer of the respondent No.1. A perusal of the petition discloses that no ground of mala fide action specifying in detail against the officers of the respondent No. I has been pleaded that the said officers acted mala fide. Therefore, for want of appropriate averments in detail about the mala fides on the part of the respondents, we see no reason to examine that aspect of the case.

22 Thus, we do not see that para 1214 of the Code violates, in any manner whatsoever, Article 14 or Article 19 (1) (g) of the Constitution or that the petitioner's case for contract of constructing over-bridge in question, has been discriminated.

23 From the discussion aforesaid, this petition fails and is hereby dismissed with costs, Counsel's fee Rs.200/-, if certified. The security amount, if any, be refunded to the petitioner. Petition dismissed.