1. Aggrieved by Communication Nos. 87432-C/32/E8 of August 7, 2007 of Chief Engineer, Udhampur Zone, P.O Garhi, Udhampur and C-85012/31/E8 of September 11, 2007 of Headquarters, Chief Engineer, Pathankot Zone, Pathankot, informing the petitioner that tender documents issued to it in respect of CA No. CEUZ-09/2007-08; Constr of High Security wall along with related infrastructure at Mandiala under GE (S) Akhnoor and CA No. CEPZ-12/07-08; Provn of Baffle Range at Jammu, had been withdrawn for administrative reasons, M/s Bhatia Builders & Contractors, a sole proprietorship concern, registered with Military Engineer Services as "S" Class contractor has filed this writ petition seeking quashing of the communications, and for issuance of directions to the respondents to issue it the tender documents in respect of the contracts aforementioned. 2. The case set up by the petitioner in its writ petition is that respondents had neither reflected any reasons in the communications nor had they held any enquiry, or heard the petitioner before issuing the impugned communications, which had resulted in severe civil consequences and in that view of the matter petitioners right to compete for securing business had been taken away. 3. Chief Engineer, Udhampur Zone, Udhampur has filed its response to the writ petition and Mr. Rajeev Bhushan Sharma, learned CGSC, its counsel, appearing for rest of the respondents too, has adopted its reply as reply on behalf of other respondents as well. 4. Writ petition and the relief sought therein has been contested and opposed by the respondents on the ground that there is a transparent system in Military Engineer Services and all laid-down rules, norms, policy and procedures had been followed before taking decision to withdraw the tender documents which had been earlier issued to the petitioner to compete for the two contracts. It is indicated in the reply that whenever the department notices slow progress or unsatisfactory performance of a contractor on already secured contracts, it refuses to issue tender documents to such contractor for subsequent contracts. 5. It is indicated in the reply that whenever the department notices slow progress or unsatisfactory performance of a contractor on already secured contracts, it refuses to issue tender documents to such contractor for subsequent contracts. 5. It is stated in the objections that MES Department does not follow any procedure of holding enquiry before taking decision for issuance or otherwise of tender documents to a registered contractor whose progress had been found to be slow or unsatisfactory on already secured contracts and that registration of a contractor with Military Engineer Services is not a guarantee to the contractor for issuance of tender documents which the respondents are within their rights to refuse to a contractor, in terms of the tender notice clause which vests discretion in the competent authority to refuse tender to any particular contractor. Decision taken by such authority, in this behalf, is final and conclusive. 6. Denying that the action of the respondents had resulted in serious civil consequences to the petitioner, it is stated that denial of tender documents to a contractor would not amount to his blacklisting. 7. Learned counsel for the petitioner has referred to Raghunath Thakur v. State of Bihar and others, reported as (1989) 1 Supreme Court Cases 229, Tata Cellular v. Union of India, reported as AIR 1996 SC 11 besides an unreported judgment of High Court of Jharkhand at Ranchi delivered in Ripley and Company Limited, Ranchi v. Central Coalfields Limited, Ranchi & Ors. W.P.(C) No. 3543 of 2006 decided on September 25, 2006. He has relied on Clause 1.16 of Military Engineer Services Manual On Contracts 2007 to support his submissions. 8. Learned counsel for the respondents, on the other hand, refers to Shree Vaishoo Flour Mills v. Union of India & Ors., reported as 2007 (1) JKJ 173 (HC) besides relying on Clause 1.16 appearing in Military Engineer Services Manual On Contracts 2007 to support his submissions. 9. I have considered the submissions of learned counsel for the parties and gone through the documents placed on records as also Clause 1.16 appearing in Military Engineer Services Manual On Contracts 2007. 10. It is not disputed by the parties, and their pleadings too bear testimony to it, that respondent Nos. 9. I have considered the submissions of learned counsel for the parties and gone through the documents placed on records as also Clause 1.16 appearing in Military Engineer Services Manual On Contracts 2007. 10. It is not disputed by the parties, and their pleadings too bear testimony to it, that respondent Nos. 4 & 5 had neither issued any notice to the petitioner before issuing the impugned communications nor had they indicated therein, the reasons, on the basis whereof, petitioner had been denied issuance of tender documents. 11. Petitioners case, as set up in the writ petition, in nut-shell, therefore, is that the impugned communications were bad in law because the respondents had not followed the principles of natural justice before issuing the impugned communications which had resulted in severe civil consequences depriving it of its right to secure business whereas respondents case, on the other hand, is that slow progress of the petitioner, noticed in the execution of already secured contract would disentitle the petitioner to claim issuance of tender documents, as of right, and that administrative reasons for not issuing tender documents, were neither required to be spelled out in the communications nor any show cause notice was required to be issued to the petitioner or any enquiry conducted before issuance of impugned communications when the respondents had found the petitioner to be slow in execution of CA No. CEUZ-1 7/2003-2004; Provision of OTM ACCN for GE 873 EWS at Bhaderwah which work had not been executed by the petitioner despite issuing it various notices 10 complete the work. 12. The sole question which thus falls for consideration in this writ petition is as to whether a contractor registered as such with Military Engineer Services can be denied issuance of tender documents without informing him reasons therefore or issuing him a show cause notice or holding any enquiry in this behalf and whether such denial would result in civil consequences and his blacklisting as such? 13. Before proceeding to examine the question which arises for resolution in this petition, reference needs to be had to Clause 1.16 appearing in Manual On Contracts published by Military Engineer Services in 2007 on which both the parties had based their respective claim/defence. This clause reads thus: - "1.16 Suspension, Down-grading, Removal, etc., of Contractors (a) (i) The standardized Code for registration, demotion, removal, suspension of business and banning of business etc. This clause reads thus: - "1.16 Suspension, Down-grading, Removal, etc., of Contractors (a) (i) The standardized Code for registration, demotion, removal, suspension of business and banning of business etc. of building contractors, agreed to by Ministry of Defence is contained in E-in-Cs letter No. 3646 1/P-1/E8 dated 24 Nov. 76. Provision of removal/suspension due to non-production of ITCC shall not be applicable, since this requirement has been dispensed with by Government now. The decision regarding removal from registration/suspension of business/removal from approved list taken after the issue of show cause notice and consideration of representation, if any, in reply thereto should be communicated to the firm concerned. (See Appendix 1.7) (ii) Copies of the orders of demotion/suspension of business/removal from the approved list, with a memorandum of reasons, therefore, shall be sent by the concerned Department; through its administrative Ministry, to the other Ministries responsible for major construction work for such action as they may deem necessary. (iii) In respect of a contractor registered for various categories of works viz. building and road works, furniture, electrical, sanitary and water supply order regarding removal would apply only to one category unless otherwise specified. (iv) The Ministries of Defence, Railway, Urban Development, Water Resources, Surface Transport, Information and Broadcasting are the Ministries concerned with major construction works. (b) Suspension on account of minor technical offences on the part of a Contractor: The Code provides that the competent authority may order suspension of business with a Contractor for a specific period on account of comparatively minor technical offences. (i) Under the existing rule in the MES, temporary suspensions for a period not exceeding one year may be ordered by the registering authority as a result of minor technical offences on the part of the Contractors, such as adoption of inferior material, workmanship and the like. In such cases, though the next higher Engineer Authority will be kept informed, prior permission of that authority is not necessary. This action of temporary suspension is normally taken as a disciplinary measure with a view to enabling the contractor to improve his organization etc. It, therefore, becomes necessary to inform the Contractor of the reasons for the suspension. (ii) Suspension for similar reasons for a period exceeding one year shall be ordered only with the prior approval of the next higher Engineer Authority. In this case also the Contractor shall be kept informed of the reasons. It, therefore, becomes necessary to inform the Contractor of the reasons for the suspension. (ii) Suspension for similar reasons for a period exceeding one year shall be ordered only with the prior approval of the next higher Engineer Authority. In this case also the Contractor shall be kept informed of the reasons. (iii) Suspension for reasons other than technical lapses referred to above, such as suspected malpractices or suspected disloyalty to the State, shall be done only with the prior approval of the E-in-C because in such cases other CEs may have to be kept informed. No communication is to be sent to the Contractor in such cases. (c) Demotion to a Lower Class (i) Demotion to lower class or removal shall be done with the prior approval of the next higher Engineer Authority. (ii) In the case of demotion to a lower class, the communication to the Contractor shall normally be a bare intimation of the fact. (d) Removal from Approved List: Action to remove a Contractor normally falls in the under mentioned categories: (i) Where a contractor himself desires his name to be; removed; (ii) For any of the reasons mentioned in the Standardized Code. In the above two cases, the communication to the contractor shall be on the lines indicated in Appendix 1.7. (e) in the cases mentioned above, where intimation to Contractors regarding suspension, demotion, and removal is given on the lines indicated above, reference to a legal adviser with regard to the form of communication to be adopted is not necessary. However, in special cases, where doubt arises about the form of communication to be adopted, a reference should be made to a legal adviser, (f) Before a final decision to demote, remove or suspend business with a Contractor borne on the list of approved Contractors is taken, the Registering Authority may at its discretion, with hold issue of a tender in respect of any particular work to the Contractor whose case is under reference with the next higher Engineer Authority. (g) Action on Cancellation of Contract: (i) As such as a contract is cancelled on account of Contractors default, the Accepting Officer of the contract shall immediately bring the same to the knowledge of the registering authority who shall examine the case for taking necessary action in terms of the `Standardized Code depending upon the merits of the case. (g) Action on Cancellation of Contract: (i) As such as a contract is cancelled on account of Contractors default, the Accepting Officer of the contract shall immediately bring the same to the knowledge of the registering authority who shall examine the case for taking necessary action in terms of the `Standardized Code depending upon the merits of the case. Further his default shall invariable be brought to the notice of other Zonal Chief engineers by a separate letter immediately. This action shall be, besides including the case in the quarterly work load return on Contractors with clear direction against further issue of tenders to the said Contractor. (ii) Once a contract with a Contractor has been cancelled due to his continued default in completing the works, no tenders shall be issued by any MES formation either to the said Contractor or to any of his partners individually or to any of his allied firms, till clearance is obtained from E-in-Cs Branch. In exceptional cases where the Command Chief Engineer considers that action against the Contractor in terms of the Standardized Code (or with-holding issue of further tenders) is not advisable, he should forward the case to E-in-Cs Branch with his detailed recommendations for a decision. However, pending decision on such cases from E-in-Cs Branch, issue of tenders to the firm shall stand suspended. (h) Suspension, down-grading and removal of contractors of `S Class shall, however be done only with the prior concurrence of the E-in-C. Cases may arise wherein an `S class Contractors performance in one Command may be unsatisfactory, though he may be executing works quite satisfactorily in other Commands. The following procedure shall therefore be adopted with regard to suspension/downgrading/removal of a `S class contractor: (i) If the performance of `S Class contractor is found to be unsatisfactory in the Command where he is initially enlisted (i.e. parent Command) and suspension/downgrading/removal from the approved list is contemplated, the Command CE will initiate action including issue of Show Cause Notice where necessary and seek the prior approval of E-in-C subsequently. Simultaneously the Command CE will keep the other Command CEs, in whose Commands the Contractor is also enlisted (based on the enlistment in his Command), informed of the action proposed to be taken. On receipt of approval, of thee-in-C, the Command CE will take action to suspend/downgrade/remove the Contractor. Simultaneously the Command CE will keep the other Command CEs, in whose Commands the Contractor is also enlisted (based on the enlistment in his Command), informed of the action proposed to be taken. On receipt of approval, of thee-in-C, the Command CE will take action to suspend/downgrade/remove the Contractor. Disciplinary action taken by the Command CE, will equally apply to the other Commands. (ii) If the performance of a `S Class Contractor is found to be unsatisfactory in a Command other than the parent Command in which he was initially enlisted and suspension/downgrading/removal from the approved list is contemplated, the Command CE will initiate action including issue of Show Cause Notice where necessary and subsequently seek concurrence/comments from other Commands, where the contractor is enlisted including the parent Command. There after the case will be referred to the E-in-C, along with the views of other Command CEs for prior approval. E-in-C shall then convey his decision to the Command CE, keeping the parent Command as well as other Commands also informed of his decision. (iii) Temporary suspension on account of minor technical offences, may be done by any CIO Command under whom the Contractor is enlisted. Such temporary suspensions will apply only to the particular Command. However the other Command CEs as well E-in-C will be kept informed. (j) With regard to Contractor of other classes namely `A to `D the following procedure will be follows: (i) If a Contractors performance is found to be unsatisfactory in any Zone/Project and suspension, downgrading, removal from the approved list is contemplated by the Zonal/Project CE, he will inform other Zonal/Project CEs in the Command of the action he proposes to take and asks for their concurrence/comments thereon and in the meantime, temporarily suspend the Contractor so far as his Zone/Project is concerned and will intimate to all CsWE and GEs under him and Command CE. If all other Zone/project CEs agree or indicate no objection to the proposed action of the Zonal/Project CE concerned, he will forward his proposal to the CE Command for his decision. (ii) if, however, any Zonal/Project CE does not agree to the aforesaid action and considers the Contractor to be suitable for work in his Zone/Project, no change will be made in the registration of the Contractor in so far as that Zone/Project is concerned. (ii) if, however, any Zonal/Project CE does not agree to the aforesaid action and considers the Contractor to be suitable for work in his Zone/Project, no change will be made in the registration of the Contractor in so far as that Zone/Project is concerned. (iii) CE Command will inform the Contractor and all concerned of the decision indicating, if necessary the Zone/Projects in which Contractors enlistment remains unaffected." 14. Yet another fact which needs to be noticed, is that petitioners contact, as admitted by the respondents in their reply, had not been cancelled at the time of issuance of the impugned communications of 7th of August, 2007 and 11th of September, 2007, for its existing contract is shown to have been cancelled on September 12, 2007. Perusal (if Clause 1.16 (a) (i), extracted hereinabove, indicates that decision regarding Removal from registration/Suspension of business/Removal from approved list is required to be taken after the issuance of show cause notice and consideration of representation, if any, filed in reply thereto. 15. That apart, even if the rules governing the field, do not mention about issuance of any such show cause notice or right of hearing to an affected party, it is by now, a well settled principle of law that grant of opportunity of hearing and making representation against an intended, action resulting in civil consequences, is required to be read in the rules, guidelines and instructions which may be applied by the executive while taking such decision, because it is an elementary principle of natural justice flowing from the Maxim audi alteram partem that any one affected by an order has a right of prior hearing, and making representation thereto. 16. Opportunity of hearing contemplated by the Maxim is not just an idle formality and any person affected by an adverse order particularly that resulting in civil consequences, is thus required to be informed of the reasons on which the authority concerned had proposed to initiate action, and provided reasonable opportunity of hearing in the matter before taking such decision. 17. Registration of a contractor with MES Department, provides a legitimate expectation to such contractor to seek issuance of tender documents for competing to secure contract, unless, however, he is otherwise ineligible therefore. 17. Registration of a contractor with MES Department, provides a legitimate expectation to such contractor to seek issuance of tender documents for competing to secure contract, unless, however, he is otherwise ineligible therefore. The contractor cannot thus, in my opinion, be deprived of his right to have the tender documents unless he had been informed of the reasons for his disentitlement and heard in the matter. This is additionally so when the contract awarding authority is the Government in a democratic set up like ours, where fairness and transparency in its actions, administrative or otherwise, is its hallmark. 18. The case of a contractor, to whom tender documents had been issued to participate in the competition for securing contracts, who is subsequently asked to return the tender documents, thereby depriving him of his right to compete for the contracts, and that too, without disclosing reasons therefore, is thus on a much stronger footing. 19. In the present day scenario of our society, where Right to obtain Information relating to the affairs of the State or public bodies is guaranteed to every citizen and the Government and public bodies are under a statutory obligation to supply that information to the demanding citizen, respondents action of not disclosing reasons which had weighed with them in denying issuance of tender documents to the petitioner, and their stand that they were not under any obligation to disclose the reasons to the petitioner cannot thus be justified on any count whatsoever, 20. Although respondents action of withdrawing tender documents already issued to the petitioner contractor may not, strictly speaking, amount to his permanent blacklisting as such, yet it cannot be lost sight of that depriving him of his right to have the tender documents to compete for the two contracts would certainly amount to suspension of his business thereby temporarily ousting him from competition, and in other words, temporarily blacklisting him, who, because of his registration as contractor with MES, would otherwise expect business from the respondents. 21. Issuance of a show cause notice and consideration of representation, if any, in reply thereto being the sine-qua-non for taking action against a contractor for suspension of his business, in terms of Clause 1.16 (a) (i), the action of the respondents in denying tender documents to the petitioner cannot be justified additionally because it violates the principles of natural justice. Issuance of a show cause notice and consideration of representation, if any, in reply thereto being the sine-qua-non for taking action against a contractor for suspension of his business, in terms of Clause 1.16 (a) (i), the action of the respondents in denying tender documents to the petitioner cannot be justified additionally because it violates the principles of natural justice. Respondents omission to communicate reasons to the petitioner on the basis whereof it had been denied issuance of tender documents is yet another deficiency in the impugned communications which goes a long way in demonstrating that the action of the respondents suffers from the vice of arbitrariness. 22. Reliance of respondents counsel on clause 1.16 (g) appears to be misconceived because as admitted by the respondents, the petitioners other existing contract i.e. CA No. CEUZ-17/2003-2004; Provision of OTM ACCN for GE 873 EWS at Bhaderwah had not been cancelled at the time of issuance of the communications impugned in the writ petition and in that view of the matter clause 1.16(g) would not be attracted to the facts of the present case. 23. I would accordingly resolve the issue which falls for consideration in this writ petition by holding that contractors registered with Military Engineer Services cannot be denied tender documents without informing them the reasons on the basis whereof they had been denied issuance of tender documents. I would further hold that denial of tender documents to the registered contractors results in civil consequences and suspension of their business, thereby amounting to their temporary blacklisting. 24. I am not impressed by the argument of learned counsel for the respondents that the respondents had the discretion to issue or refuse tender documents to the registered contractors and their decision being final and conclusive would not be subject to judicial review of the Court. 25. It is no longer res integra that judicial review of the actions of the Government, even in contractual matters, is permissible so as to see as to whether the decision making process employed by the Government suffered from any error of law. 26. It has been ruled by Honble Supreme Court of India in Delhi Development Authority, N.D and another v. Joint Action Committee, reported as 2008 AIR SCW, 762 that even an executive order termed as a policy decision may not be beyond the pale of judicial review. 26. It has been ruled by Honble Supreme Court of India in Delhi Development Authority, N.D and another v. Joint Action Committee, reported as 2008 AIR SCW, 762 that even an executive order termed as a policy decision may not be beyond the pale of judicial review. Whereas the superior Courts may not interfere with the nitty gritties of the policy, or substitute one by the other, but it will not be correct to contend that the Courts would keep its judicial hands off, simply because a plea is raised that impugned decision is a policy decision, interference therewith on the part of the superior Court would not be without jurisdiction as it is subject to judicial review. Broadly speaking, even a policy decision is subject to the judicial review on the following grounds:- (a) If it is unconstitutional; (b) If it is dehors the provisions of the Act and the regulations; (c) If the delegatee has acted beyond its power of delegation; (d) If the executive policy is contrary to the statutory or a larger policy. 27. For all what has been said above, I am of the opinion that the action taken by the respondents in issuing Communication Nos. 87432-C/32/E8 of August 7, 2007 of Chief Engineer, Udhampur Zone, P.O Garhi, Udhampur and C-85012/31/E8 of September 11, 2007 of Headquarters, Chief Engineer, Pathankot Zone, Pathankot withdrawing tender documents issued in respect of the works mentioned in the communications, is arbitrary and violative of the principles of natural justice. The action of the respondents, violates even Clause 1.16 (a) (i) appearing in Manual On Contracts as well. These Communications are, therefore, required to be quashed ensuring issuance of tender documents to the petitioner. 28. This writ petition, therefore, succeeds and Communication Nos. 87432-C/32/E8 of August 7, 2007 of Chief Engineer, Udhampur Zone, P.O Garhi, Udhampur and C-85012/31/E8 of September 11, 2007 of Headquarters, Chief Engineer, Pathankot Zone, Pathankot are accordingly quashed. Resultantly, a direction shall issue to the respondents to issue tender documents to the petitioner.