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. C.W.P. No.5946 of 2008 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 2 C.W.P. No.5946 of 2008 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 3 C.W.P. No.5946 of 2008 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. 4 C.W.P. No.5946 of 2008 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.” 5 C.W.P. No.5946 of 2008 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 6