S.K.Mookherjee, J. - (1.) These two writ proceedings are directed against acceptance of tenders for supply of diatary articles with regard to three zones within the District of Burdwan. The, terms of tender have been annexed to the writ applications. Although directions for affidavits had been given in the presence of the learned Advocates for the State on more than one occasion, no affidavit-in-opposition has been filed. Lastly, on behalf of the State respondents, time was prayed for production of the records and such time was granted, in spite of objection from the side of he writ petitioners. No records, however, could be produced due to non-availability and the said fact was recorded in my order dated 8th of February, 1990. The averments in the writ application, therefore, have remained uncontradicted.
(2.) From the submissions made and the averments made in the writ application, it appears that one of petitioners Apurba Kumar Chowdhury quoted the following rates. The respondent No. 6, however, quoted the general rate of 12% below with regard to combined category and 4% below with regard to bread for all the zones and in terms of the invitation for tenders, previous experience was a matter for consideration, inspite of quotation of power rates regarding most items by the writ petitioners in the two cases and inspite of rates quoted by respondent No.6 being higher, the tenders submitted by respondent No.6 have been accepted with regard to all the zones and the lower rates offered by the writ petitioners had been rejected, notwithstanding the absence of any discernible violation or contravention, on their part, of any term of the tender. The writ petitioners have raised grievance before this Court that such rejection is illegal in view of the latest position relating to tenders laid down by different judicial decisions. On behalf of the respondents, it was sought to be contended that since the term of the tenders in question would expire with the expiry of this month, the court must refuse to grant any relief on the writ applications as the same would merely be academic.
(3.) The legal position is now well-settled. A distinction is maintained with regard to the contracts between private parties and those where government is a party. In the case of Tenders invited by a private party, no writ is maintainable challenging the propriety of refusal to accept the tender of a particular party notwithstanding apparent arbitrariness or mala fides in arriving at such decision. But as far as contracts to be awarded by the government are concerned, the same stand on a different footing and writ courts have been held to have jurisdiction to interfere and issue writs in case the decision in the matter of award of such tender or contract is found to be arbitrary or mala fide. The basic reason for such distinction in case of government contracts appears to be due to the position of the government, which is different from that of a private individual. A government is a government even in the matter of award of a tender and as such every action of such a government must be founded on some reasons. The government is not free as a private individual to plead its right to exercise discretion in the manner it likes but has to follow some standards that are not arbitrary or unauthorised even in the matter of exercise of its discretion. It cannot pick and choose a person and refuse to entertain others without adequate reasons. This position is to be maintained even in the matter of distribution of largesse. Unless such restraint is recognised to be inherent in governmental trading activities, the concept of equality and indiscriminatory treatment, which are the two very salient features of democracy would be mere illusions and the constitutional protection guaranteed under Article 14 of the Constitution of India would be meaningless. Judicial decisions have repeatedly been emphasizing this feature of a democratic government and the necessity of the court to be alert whenever such instances of discriminatory or arbitrary treatment on the part of the government in the realm of contract, tenders or largesse are brought to its notice. No doubt, the court cannot direct acceptance of a particular tender, the discretion for which is vested in the government but at the same time the court must intervene when the rejection of a tender with lower rates is not based on reasons or is based on reasons which are unacceptable, judged by the standard of a reasonable mind or standard or procedure adopted with regard to rest of tenders. The fundamental requirement is that equality of opportunity should apply to matters of public contracts and exclusion of a person from getting the benefit of a contract has to be supported by legality. The concept of welfare state would stand out ultimately to be a farce hollow and empty if the court remains passive in the case of arbitrariness of a governmental action. Reference may be made to the cases of Ramana vs. 1.A. Authority of India, AIR 1979 SC 1628, M/s. Erusian Equipment and Chemicals Limited vs. State of West Bengal, AIR 1975 SC 266, H. S. Kohli and another vs. G. M. Chittaranjan Locomotive Works and others, AIR 1979 Calcutta page 75, & A. K. Sinha and Another vs. D. M., Murshidabad and Others, AIR 1982, Calcutta page 19.;