- (1.) M/s. Asian R.C.C. Pipes and four other firms carrying on manufacturing of R.C.C. Pipes at various places in the State of Haryana through present petition filed by them under Article 226 of the Constitution of India seek issuance of writ in the nature of certiorari so as to quash orders dated February 5, 1992, vide which respondents 4 to 29, the units located in the State of Punjab alone, were favoured in the matter of contracts through tenders submitted by them for supply of items as mentioned in Schedule A and B attached with Annexure P-3 itself as also order dated June 10, 1992 (Annexure P-7) vide which representation preferred by them which was ordered to be decided by this Court in an earlier petition filed by them, was rejected by a cryptic non-speaking order and without hearing them. The facts giving rise to this writ need a necessary mention.
(2.) All the petitioner firms are carrying on the business of manufacturing R.C.C. Pipes at various places in the State of Haryana. The Assistant Controller of Stores - respondents No. 3 herein invited tenders for and on behalf of the State of Punjab for including certain manufacturers in the approved list of rate contracts for two years for supply of pre-cast concrete pipes with re-enforcement duly ISI marked as per detailed specifications. The tender was due to be opened on December 6, 1991. Petitioner units were manufacturing the product mentioned in the tender notice and were otherwise eligible to submit tenders for supply of said R.C.C. pipes and, therefore, they submitted their tenders alongwith required earnest money. The tenders submitted by various parties as also that of petitioners were opened by the Controller of Stores - respondent No. 2 herein but none of the petitioner units which, as referred to have, belong to State of Haryana, received any communication or offer for further negotiation whereas negotiations and counter-negotiation offers were being made to the units located in Punjab and Chandigarh. When such units situated in Punjab and Chandigarh even received reduced rates from respondent No. 2 by way of counter offer for acceptance of their tenders and no such offer was made to petitioner units. They were constrained to address a letter to respondent No. 2 regarding the facts of their having not received any offer or counter offer. The terms and conditions that were accepted and rates that were offered to Punjab parties by respondent No. 2 were accepted by petitioner units but they still did not hear anything from respondent No. 2 in the matter. Vide order dated February 5, 1992 (Annexure P-3) respondent No. 2 accepted the tenders as negotiated with Punjab parties alone and included their names for purchase of stores for the product mentioned in the tender notice. It is this order, as referred in the earlier part of the judgment, that has been challenged in the present petition. The approval accorded to Punjab parties was for a period of two years i.e. from February 5, 1992 to February 4, 1994. The case of the petitioner is that there was no condition in the notice, Annexure P-1, which could limit the offer to units situated in the State of Punjab alone and it is only the preference that could be given to manufacturing units situated in the State of Punjab as per clause 12 of notice, Annexure P-1. The same reads as follows :- "The price preference as mentioned under condition No. 10 to 12 ( of printed sheet attached) will be available to SSI Units/Large Scale Units of Punjab State respectively for a period of seven years. This period shall be calculated in case of small scale units of the State from the date of permanent registration in respect of specific items and in case of Large Scale Units from the date of commencement of commercial production. The tenders are, therefore, required to submit documentary proof in this respect from concerned authority alongwith their offers. Failing which their claim for price preference will not be considered." Petitioners further plead that none of the manufacturing units which submitted their tenders nor any of respondents 4 to 29 fell in the category as mentioned in clause 12, reproduced above. For all practical purposes, the parties who submitted tenders, including petitioners and respondents 4 to 29, were at par as far as consideration of their tenders was concerned as per notice, Annexure P-1. However, when names of petitioner units were not included in the approved list and only the tenders of manufacturing units situated in the State of Punjab and Chandigarh were considered, they made enquiries from the office of respondent No. 2 and came to know that some instructions issued by the State Government in the year 1963 with regard to purchase of stores were followed. A copy of the instructions aforesaid has been placed on records as Annexure P-4. Later on, the instructions aforesaid were amended/revised by the State Government in the year 1986 and fresh policy decision was taken vide memo dated September 3, 1986. Copy of these instructions has been placed on records as Annexure P-5. Petitioners plead that in all probability, respondent No. 2 has relied upon clause 3 of Instructions Annexure P-4 with a view, to exclude all the manufacturing units from the State of Haryana. The said clause reads as follows :- "Government have further decided that if the article manufactured in the State come up to the required specifications, the practice of bringing standard articles, such as sewing machines, ceiling fans etc. manufactured outside the State on the rate contract should be discontinued." Clause 3 of the instructions, Annexure P-4, cannot be interpreted so as to mean a restrain or a general prohibition by the State to buy its stores from the units situated outside the State but it can have only limited application for standard articles such as sewing machines, ceiling fans etc. However, this policy decision was modified vide Annexure P-5 which contained no such prohibition as mentioned in clause 3 of Annexure P-4. On the other hand, only thing which has been provided to the units situated in the State of Punjab is price preference concession for a period of seven years. In view of clause (iv) of the policy, Annexure P-5, an order of preference can be claimed by the units situated in the State of Punjab and, therefore, combined reading of various clauses contained in Annexure P-5 would make it abundantly clear, as is the case of petitioners, that for approval of the rate contract and inclusion of name of a unit in the approved list, the manufacturing units in the State of Punjab were eligible for price preference for seven years. It is further the case of petitioners that once the list has been duly approved and names of various parties within and outside the State have been included, then at the most the units situated in the State of Punjab can claim order of preference on the basis of their capacity over and above units situated outside the State of Punjab. Earlier in point of time when various representations filed by petitioners for not considering them in the matter, were being cold shouldered as no reply was being received by them, Civil Writ Petition bearing No. 5493 of 1992 was filed in this Court which was disposed of on May 12, 1992 in the following manner :- "Learned counsel for the petitioners submits that the petitioners will be fully satisfied if a direction is issued to respondent No. 2 to dispose of their representation, dated February 3, 1992 against their non- inclusion in the rate contractors list. We direct respondent No. 2 to dispose of the representation of the petitioners in accordance with law within one month. With these observations, the writ petition is disposed of accordingly." In view of the directions, referred to above, petitioners made a request to respondent No. 2 on May 20, 1992 to decide their representation vide which they had unilaterally accepted the terms and conditions of rate contract offered to Punjab units. They also requested for inclusion of their names in the list of rate contracts on the basis of the said representation but the same was rejected without hearing them and by simply mentioning that in compliance with the order dated May 12, 1992 of the High Court, the representation has been considered and rejected. As mentioned above, it is this order also which is under challenge in the present suit.
(3.) Learned counsel for the petitioners vehemently contends that tenders were invited vide notice, Annexure P-1 which also contained terms and conditions thereof. None of the conditions mentioned therein could be interpreted to mean that any of the parties having their manufacturing units out side the State of Punjab, were to be considered ineligible for participating in negotiations for the finalisation of tenders or that any preference except that was mentioned in the Instructions with regard to price preference, was to be given to any of the Punjab units. Non-consideration of names of petitioner units while finalising the list, Annexure P-3, had resulted in clear discrimination. In view of Clause 12 of Annexure P-1, Punjab units had only price preference for a period of seven years and that none of the parties, who submitted their tenders in response to notice, Annexure P-1, were in any way falling in that category and yet the names of petitioners, who were for all intent and purposes, at par with respondents 4 to 29, were not even considered in the matter. In so far as Clause 3 of Annexure P-4 is concerned, it is argued by learned counsel that prohibition to buy stores from outside the State applied only to some articles, such as sewing machines and ceiling fans etc. and it could not be interpreted in any manner to mean a general prohibition with regard to all supplies purchases for the State of Punjab. In any case the rigour of policy decision, Annexure P.4, was diluted to a great extent by revising the said policy vide Annexure P-5, which provide for price preference for a limited period to the Punjab units, contends the learned counsel. Rejection of representation vide Annexure P-7 by a non-speaking cryptic order and without hearing petitioners is also said to be illegal and in any case against the principles of natural justice.;