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2006 DIGILAW 1049 (GAU)

Z. Vimethal Angami v. State of Nagaland

2006-11-24

M.B.K.SINGH

body2006
1. Alleging arbitrariness and discrimination on the part of the Government respondents in the matter of giving approval to the private respondents as suppliers for the period 2006-07 for supply of various quantities of clothing and equipments to Nagaland Police/IRB disregarding the facts of the petitioner being an approved supplier in the year 2002-03 in respect of the said articles and his continuation in supplying the said articles for subsequent years, i.e., 2003-04 and 2004-05, this writ petition has been filed praying mainly, in effect, for interfering with the said approval given in favour of the private respondents by passing an appropriate order. 2. Upon hearing the parties through their respective counsel and on perusal of the materials before the Court, the following facts are ascertained: In response to a tender notice issued by the Director General of Police (DGP), Nagaland, Kohima in connection with the supply of clothing and equipments for Nagaland police personnel and NAP(IR) personnel for the year 2002-03 the petitioner applied in accordance with the required terms and conditions. After due process, the petitioner was approved by the concerned authority as a supplier for the year 2002-03 in respect of supply of (1) Jungle Hat (Khaki) (2) Shoe Brush (3) Whistle Cord (Khaki) (4) peak Cap (5) Hackle (Maroon) and (6) Whistle Cord (Maroon) at the rate shown as against the said items as per Annexures A & B of the letter of the Special Secretary, Government of Nagaland to the DGP, Nagaland, Kohima dated 18.4.2002 (Annexure-2). The samples and the rates of the said articles tendered by the petitioner for the year 2002-03 were accepted by the concerned authority purportedly after comparison with the samples and the rates of the said articles tendered by other competitors. The petitioner supplied the said articles of the approved sample and at the approved rate for the year 2002-03 and also for the subsequent year 2003-04 and 2004-05 even though no fresh tender was issued in connection with the supply of articles for the said subsequent years. 3. A request for administrative approval for allowing to float tenders in connection with purchase of clothing and equipments for the Police Department in the year 2006-07 was made from the office of the DGP, Nagaland, Kohima vide letter No. PHQ(D-11)80/2005-06, dated 20.8.2005 of the Inspector General of Police (Hqrs), Nagaland, Kohima addressed to the Additional Chief Secretary (Home), Nagaland. 3. A request for administrative approval for allowing to float tenders in connection with purchase of clothing and equipments for the Police Department in the year 2006-07 was made from the office of the DGP, Nagaland, Kohima vide letter No. PHQ(D-11)80/2005-06, dated 20.8.2005 of the Inspector General of Police (Hqrs), Nagaland, Kohima addressed to the Additional Chief Secretary (Home), Nagaland. The said letter is found in the relevant official file produced by the learned Government Advocate and it is as follows : - "GOVERNMENT OF NAGALAND OFFICE OF THE DIRECTOR GENERAL OF POLICE NAGALAND : KOHIMA No. PHQ(D-11)80/2005-06 Dated Kohima, the 20th August, 2005 To The Addl. Chief Secretary (Home), Nagaland, Kohima. Sub: ADMINISTRATIVE APPROVAL TO FLOAT TENDERS Sir, I have the honour to submit herewith a proposal for floating Tenders of Centrally purchased items of Rations, Clothing and Equipments for the Department for the year 2006-07 for favour of consideration and early approval. In this connection, it is to mention that the Department had been procuring Centrally purchased items at the approved rates of 1998 to 1999 and some items whose rates were approved in the year 2001-02. The Samples of such approved items are still being used to compare with the new supplies. However, it has to be mentioned that such rates were approved some 5/6 years back and in the old rates, t>~ Suppliers are not able to provide good quality materials to the Department. The approved Samples of the Police Purchase Board also cannot be used for comparison of the new supplies as they have become old, faded and discoloured. It may also be appreciated that the market rates of all materials are increasing very fast and at the old approved rates the Suppliers cannot give us standard materials. In view of above, it is felt necessary that administrative approval may kindly be conveyed to the Department to float Tenders for all Centrally purchased items for the year 2006-07 at an early date as this process also takes quite a long time considering the number of Items and Equipments which are required to be floated. In view of above, it is felt necessary that administrative approval may kindly be conveyed to the Department to float Tenders for all Centrally purchased items for the year 2006-07 at an early date as this process also takes quite a long time considering the number of Items and Equipments which are required to be floated. Yours faithfully, (KKIRE)IPS Inspector General of Police (Hqrs), Nagaland, Kohima." After receiving the said letter, the State Government collected information from the office of the DGP, Nagaland about the actual requirements of clothing, equipments, etc., for Nagaland Police for the year 2006-07 and then informed the DGP, Nagaland regarding giving of approval to various firms for supply of the required articles for the year 2006-07, vide letter No. POL/G-4/ RTN/4/2005, dated 16.1.2006. A copy of the said Government letter is at Annexure-3 of the writ petition. 4. On perusal of the above said letter dated 16.1.2006 and its Annexures-A & B, it is ascertained that the petitioner was approved for supplying all the requirements in respect of Lanyard (K), Lanyard (M) and Lanyard (B) for the year 2006-07 at the existing approved rates plus taxes. The private respondents were approved for supply of various other articles and many other firms were approved for supplying various other articles required by the Nagaland Police for the year 2006-07 at the existing approved rates plus taxes. Nothing is disclosed as to on what basis and what consideration, the petitioner, the private respondents and other firms have been approved for supplying various specifying articles. There is no dispute that no notice inviting tender was issued before making the said approval. Prima facie, normal procedure for selection of supplier was not followed. 5. The petitioner is aggrieved that disregarding the facts of his being an approved supplier in respect of certain articles already mentioned above for the year 2002-03 and his continuation in supplying the said articles for the years 2003-04 and 2004-05, he was not allowed to supply the said articles for the year 2005-06 and that he was allowed to supply Lanyard (K), Lanyard (M) and Lanyard (B) for the said year. Further grievances of the petitioner are that for the year 2005-06, private respondents were allowed to supply those articles which he had been supplying for some years and that they were allowed to supply the same articles for the year 2006-07 and that he was allowed to supply those articles which he supplied in 2005-06. 6. No doubt, on the basis of the fact of the petitioner being an approved supplier for certain articles for the year 2002-03, he was not having a legal right to continue to be a supplier of the said articles for the subsequent years. However, without inviting fresh tenders, the petitioner was allowed to supply the said articles for the year 2003-04 and 2004-05 at the same rate. Since he had been dealing with the Government in matter of supply of the said articles for some years continuously, he was having a legitimate interest or expectation that he would be allowed to be a supplier of the said articles for the year 2005-06 also. By not allowing him to be a supplier of the said articles for the year 2005-06 without giving any reason, despite his willingness to continue to be a supplier of the said articles for the year 2005-06, prejudice was caused to his interest. Since the period of 2005-06 has already lapsed, I do not think that there is any need for further consideration regarding legality or otherwise of the State action for the year 2005-06 at length at this stage. 7. The petitioner is aggrieved by the action of the State by which the private respondents were given approval for supplying those articles for the years 2005-06 and 2006-07 without considering the facts of his being an approved supplier for the year 2002-03 and of his continuation in supplying the said articles of the same quality, at the same price in the years 2003-04 and 2004-05. The petitioner's grievance is actually regarding the manner in which or the method by which suppliers were selected by the concerned authority for the years 2005-06 and 2006-07. Thus, what are really in issues in this case are the manner in which and the method by which the concerned authority gave approval to the private respondents as well as to the petitioner as suppliers of different articles for meeting the requirements of Nagaland Police for the years 2005-06 and 2006-07. Thus, what are really in issues in this case are the manner in which and the method by which the concerned authority gave approval to the private respondents as well as to the petitioner as suppliers of different articles for meeting the requirements of Nagaland Police for the years 2005-06 and 2006-07. As noted earlier, since the period of 2005-06 has already lapsed, this Court is of the considered opinion that there is no need for consideration of the question of legality or otherwise of the State action for the said period. At the same time, I do not think that on consideration of the facts of the petitioner having supplied the articles during 2005-06 period on the terms and conditions specified by the authority and of the continuation of the same arrangement for purchasing the required articles for the year 2006- 07, the writ petition is liable to be dismissed. There is a need to examine the legality or otherwise of the State action in making selection of the petitioner and the private respondents as suppliers for the year 2006-07 for a just disposal of this writ petition. 8. In Ramana Dayaram Shetty v. International Airports Authority of India & Ors. (1979) 3 SCC 489 , the Supreme Court examined the question whether the State could deal with its property in any manner it liked or award a contract to any person it chose without any constitutional limitation. It was held that: "......Every action of the executive Government must be informed with reason and must 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 affectation of some right or denial of some privilege." It was further held that: "It must, therefore, be taken to be*the law that where the Government is dealing with public, whether by way of giving jobs or entering into contracts or issuing quotas or licences or granting other form 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 norm which is not arbitrary, irrational or irrelevant." 9. As to the meaning and true import of arbitrariness, in Shrilekha Vidyarthi (Kumari) v. State of UP, (1991) 1 SCC 212 (243, 246), the Supreme Court observed "The question, whether an impugned act is arbitrary or not, is ultimately to be answered on the facts and in the circumstances of a given case. An obvious test to apply is to see whether there is any discernible principle emerging from the impugned act and if so, does it satisfy the test of reasonableness. Where a mode is prescribed for doing an act or there is no impediment in following that procedure, performance of the act otherwise and in a manner which does not disclose any discernible principle which is reasonable, may itself attract the vice of arbitrariness. Every State action must be informed by reason and it follows that an act uninformed by reason, is arbitrary. Rule of law contemplates governance by law and not by humour, whims or caprices of the men to whom the governance is entrusted for the time being. It is trite that 'be you ever so high, the laws are above you'. This is what men in power must remember always." 10. The concept of arbitrariness as part of article 14 of the Constitution was enunciated in the land mark judgment of E.P. Royappa v. State of Tamil Nadu & Anr., (1974) 4 SCC (3 ) 38 by holding : ".... In fact equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic, while the other, to the whim and caprice of an absolute monarch. Where an act is arbitrary, it is implicit in it that it is unequal both according to political logic and constitutional law and is, therefore, violative of article 14, and if it effects any matter relating to public employment, it is also violative of article 16. Articles 14 and 16 strike at arbitrariness in State action and ensure fairness and equality of treatment. They require that State action must be based on valid relevant principles applicable alike to all and it must not be guided by any extraneous or irrelevant considerations because that would be denial of equality. Articles 14 and 16 strike at arbitrariness in State action and ensure fairness and equality of treatment. They require that State action must be based on valid relevant principles applicable alike to all and it must not be guided by any extraneous or irrelevant considerations because that would be denial of equality. Where the operative reason for State action, as distinguished from motive inducing from the antechamber of mind, is not legitimate and relevant but is extraneous and outside the area of permissible considerations, it would amount to mala fide exercise of power and that is hit by articles 14 and 16. Mala fide exercise of power and arbitrariness are different lethal radiations emanating from the same vice: in fact the latter comprehends the former. Both are inhibited by articles 14 and 16." 11. Keeping in view the above said settled principle of law, I have examined the materials before the court in the light of submission of both sides. I do not find any acceptable reason as to why and how the petitioner and the private respondents were selected as suppliers in respect of different articles mentioned as against their respective names for the year 2006-07. The fact that they were suppliers for the same articles for the year 2005-06 was not a valid consideration for continuation as suppliers for the year 2006-07, in absence of anything to show that they had been selected legally as supplier in respect of the said articles fairly, reasonably and justly at any time. An illegal act should not be allowed to be perpetuated. The general norm of inviting tenders from all interested persons was not resorted to before selecting them as suppliers for the said articles. The departure from the general norm has not been justified by any valid principle. Merely on the ground that the suppliers are to supply the said articles at the existing rate or at the approved rate of 2002-03, it cannot be said that public interest has not been affected or that the concerned authority has acted with probity. The expression 'public interest' or 'probity' in governance cannot be put in a strait jacket. 'Public interest' takes in its fold several factors. The circumstances in each case will determine whether an action of a Government has been taken in public interest or has been taken to uphold probity in governance. The expression 'public interest' or 'probity' in governance cannot be put in a strait jacket. 'Public interest' takes in its fold several factors. The circumstances in each case will determine whether an action of a Government has been taken in public interest or has been taken to uphold probity in governance. The role model for governance and decision taken thereon must manifest equity, fair play and justice. In a Government based on rule of law, it must create an impression that its decision is motivated on the consideration of probity. The Government has to rise above the nexus of vested interests and nepotism and eschew window dressing. The act of governance has to withstand the test of judiciousness and impartiality and avoid arbitrary or capricious action. 12. In the present case, on the basis of the materials before the court, there is no sufficient basis to hold that the said selection of suppliers for the year 2006-07 in respect of the said articles was made in public interest or to uphold probity in governance. In absence of sufficient basis for making the said selection, one can reasonably conclude that the same was done at the whim and fancy of those having power in the matter and as such, the said selection is, in my opinion, wholly irrational, unreasonable and discriminatory. 13. In the light of the above findings, the said Government approval conveyed to the DGP, Nagaland vide letter No. POL/G-4/RTN/4/2005, dated 16.1.2006 is not sustainable in the eyes of law and as such it is liable to be quashed. However, considering the fact that almost 2:3 of the period of 2006-07 has lapsed and that in case of quashing the said approval wholly, the interest of firms/persons who are not parties in this writ petition will be affected and that in case of quashing the said approval at this stage many complications will arise in connection with supplies made uptil now, the said approval made by the Government is not interfered with. This writ petition is disposed of with a direction that the respondents shall proceed fairly, justly and reasonably in accordance with the relevant law in matters of selection of suppliers for supply of articles as per requirements of the Nagaland Police for the subsequent years.