JUDGMENT 1. THE petitioners in this art.226 petition dated August 28, 2011 are questioning a decision of the Government of West Bengal dated September 20, 2011 (at p.129). 2. RELEVANT parts of the decision dated September 20, 2011 are quoted below: "In pursuant to the judgment and order dtd.14.07.2011 passed by the Hon’ble High Court, Calcutta in W.P. No.11180(W) of 2011 (Aroni Agri Equipment Pvt. Ltd. VS. State of West Bengal and Ors.), the Government has taken the decision vide Notification No. 1711-WI/BP/9M-37/2011 dated 16.08.2011, regarding procurement of materials included as reserved items." Hence the items mentioned in NIT No.23 of 2010-2011 are no longer remained in the reserved list. 3. THE copy of the above mentioned G.O. is enclosed herewith for your necessary information. 4. THE petitioners participated in the process initiated by NIT No.23 of 2010-2011 and emerged as the successful bidders with respect to the first 36 items out of total 39 items put out to tender. Questioning their eligibility petitions under art.226 were moved before this Court and orders were passed that steps taken in the process would abide by the result of those petitions. The third respondent (West Bengal Agro Industries Corporation Limited) initiating the process recommended acceptance of the petitioners" bid. Though this Court did not pass any restraining order in the pending petitions in connection with which the parties even went upto the Supreme Court, the respondents did not accept the petitioners" bid and give them the work. 5. FEELING aggrieved, the petitioners moved W.P.No.11180 (W) of 2011 under art.226. By an order dated July 14, 2011 (at p.119) the petition was disposed of directing the Water Resources Investigation and Development Department of the Government of West Bengal, the department competent to decide the question of acceptance of the bid, to give its decision. Accordingly, the impugned decision has been given. 6. THE notification dated August 16, 2011 referred to in the impugned decision is at p.130. According to Mr.. Mukherjee appearing for the petitioners, by applying the notification not existing at the date process was initiated the Government could not nullify the tender process. He has said that the petitioners emerging as the successful bidders could not be deprived of the work by applying a notification issued long after initiation of the tender process. 7. Mr.. According to Mr.. Mukherjee appearing for the petitioners, by applying the notification not existing at the date process was initiated the Government could not nullify the tender process. He has said that the petitioners emerging as the successful bidders could not be deprived of the work by applying a notification issued long after initiation of the tender process. 7. Mr.. Kar appearing for the Corporation has said that the Corporation recommending the acceptance of the petitioners" bid has no reason to say that the bid should not be accepted. According to him, applying the notification issued recently the tender process initiated long before cannot be nullified. Mr.. Majumder appearing for the State has suggested that, if necessary, on the facts, the Government may be directed to reconsider the whole matter. According to him, the terms and conditions of the tender empowered the Government to take a decision such as the impugned one. 8. THE impugned decision has been given without hearing the third respondent that initiated the tender process and has no objection to acceptance of the bid of the petitioners who emerged as the successful bidders and made all arrangements for execution of the work. On the facts, I am of the view that the unilateral decision taken on the basis of a recent notification does not pass the test of fairness in executive action. I think the suggestion given by Mr. Majumder should be accepted and the Government should be directed to reconsider the whole matter. 9. FOR these reasons, I set aside the impugned decision, allow the petition to this extent and order as follows. 10. AFTER hearing the Corporation and the petitioners, the Government shall take a fresh decision regarding acceptance of the petitioners" bid. All concerned will be free to consider the effect of the notification dated August 16, 2011. The decision shall be taken within five weeks from the date of communication of this order and it shall be communicated to all immediately. No costs.