At, High Court of Rajasthan Jaipur Bench
By, THE HONOURABLE MS. JUSTICE BELA M. TRIVEDI
For the Petitioners: Ashok Mehta, SR. Advocate with Sanjay Buri and Suresh Sahni, Vineet Mehta, Laxmikant Shandilya, Kamlendra Sihag, Naveen Dhuwan, Gunjan Pathak, V.B. Sharma with Shruti Dixit, Advocates. For the Respondents: J.M. Saxena, AAG with Sanjay Sharma, Deputy Govt. Counsel.
Published In:- Published In 2016 (2) WLC 104, 2016 (4) RAJLW 3159, 2015 (31) SCT 537
1. All the petitions involving similar issues and prayers were heard together and are being decided simultaneously by this common order.
2. All the petitioners are publishing houses engaged in the business of publishing various books in Hindi or other languages and books for advancement of school education. For the sake of convenience, the facts of the writ petition No. 1908 of 2015 are considered. The writ petition being No. 1908 of 2015 has been filed by 43 petitioners praying for the following reliefs :-
"(i) The orders dated 03.03.2014, 04.03.2014 and 02.01.2015 of the respondent authorities may kindly be quashed and set aside.
(ii) That the respondents may kindly be directed to take the supply as per order dated 18.12.2013 and release the amount of the respective petitioners as per the order.
(iii) That the respondents may kindly be directed to pay compensation as your Lordships deem fit, for harassing the petitioners both mentally and physically by the respondent.
(iv) Any other order or direction this Hon'ble Court may deem fit and proper be also passed in favour of the petitioners.
3. As per the case of the petitioners, the respondent No. 2 had published an advertisement on 9/9/2013 (Annexure-1) inviting desiring publishers to furnish sample copies of the books for being purchased for the Libraries of various secondary and higher secondary schools, on the terms and conditions as mentioned on the website of the secondary education department. Thereafter one supplementary advertisement dated 17/9/2013 (Annexure-2) was issued clarifying that the books to be purchased vide advertisement dated 9/9/2013 would be purchased under the Rastriya Madhyamic Shiksha Abhiyan (RMSA) for the year 2013-14. Accordingly, the petitioners had submitted the samples of their respective books to the respondent authorities for the purpose of selection at the State Level. According to the petitioners, on the basis of the opinion of the Expert Committee, the respondents had selected 373 books of around 350 publishers, and accordingly issued the orders on 18/12/2013 to the concerned publishers for supplying the books as mentioned in their respective orders at the various District Head Quarters as specified therein. The copies of the orders have been produced and collectively marked as Annexure-4. It is further case of the petitioners that the petitioners thereafter had spent huge amount for printing of the books for being supplied as per the said orders, however all of a sudden on the formation of the new Government, the respondent No. 3 passed an order on 27/12/2013(Annexure-5) to the effect that the orders dated 18/12/2013 were stayed. A paper publication was also made by the respondents reporting that a Committee was constituted to enquire into the matter of purchase of books worth Rs. 11 crores. Thereafter, the respondent No. 3 issued the order dated 3/3/2014 (Annexure-7), informing the petitioners and others that the order dated 27/12/2013 was withdrawn, and that the petitioners were required to supply the books at the respective Districts to the District Project Officers in open book fairs to be organised at the District Head Quarters. Another letter dated 4/3/2014 (Annexure-8) was also issued by the respondent No. 3 to all the District Programme Coordinators directing them to have book fairs to be organised on the dates and as per the directions given therein. It was directed interalia that the selected 373 books shall be displayed in the said book fairs to enable the school committees to purchase the same as per their requirement and usefulness, and that the publisher shall have to deposit Rs. 5,000/- per stall for the purpose of registration. The said action of the respondents came to be challenged by few publishing houses by preferring S.B. Civil Writ Petition No. 3034 of 2014, wherein the Court while issuing the notices to the respondents, stayed the orders dated 3/3/2014 and 4/3/2014 till further orders.
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According to the petitioners, though the funds reserved for the said books were put in abeyance by the respondent No. 3 as per the letter dated 9/12/2014 (Annexure-9), the respondent No. 3 on 2/1/2015 issued an order (Annexure-10) to all the District Education Officers directing them to utilise the funds of 2013-14, for the purchase of books in 2014-15 for the yearly scheme. The petitioners therefore have challenged the orders dated 3/3/2014, 4/3/2014 and 2/1/2015 issued by the respondent No. 3 on the ground of being arbitrary, mala fide and against the doctrine of promissory estoppels.4. The respondents challenging the very maintainability of the petition have contended in the reply interalia that the orders dated 18/12/2013 were stayed vide the order dated 27/12/2013 as it was realised by the concerned authorities that the previous Government at the fag end of the completion of their tenure had taken the decision to purchase the books in a very haste manner, and without following the instructions contained in the Manual on the Financial Management and Procurement for RMSA (hereinafter referred to as 'the Manual for RMSA). According to the respondents, after issuance of the letter dated 27/12/2013, there was no reasons for the petitioners to make any expenditure on the printing or publication of the books, as the orders issued on 18/12/2013, were stayed on 27/12/2013. It has also been contended that the order dated 3/3/2014 was issued to all the publishers who were selected and whose purchase orders were cancelled, and that the order dated 4/3/2014 was issued giving direction as to how and on which dates the book fairs would be organised in the respective Districts. The order dated 2/1/2015 was issued for utilising the unutilized budget of the year 2013-2014 for purchasing the books in the year 2014-15, which order could not be said to be arbitrary or illegal. It is further contended that the impugned decisions were taken for making the entire process more transparent and to enable the concerned authorities at the District Level to see the contents of the books and purchase the same as per their requirement and usefulness. Such decisions being policy decisions could not be challenged by the petitioners by way of present petitions. According to the respondents, the petitioners having alleged breach of contract and prayed for indemnifying the losses incurred by them, such reliefs could not be granted in the writ petition under Article 226 of the Constitution of India.5. The petitioners have filed the additional affidavits for placing certain bills and documents on record to show the expenses incurred by them for printing and purchasing the paper for publishing the books as per the supply order dated 18/12/2013, to which the respondents have filed the reply challenging the genuineness of the bills and vouchers produced by the petitioners. During the course of the arguments, the learned AAG Mr. J.M. Saxena had also produced the original record of the files for the perusal of the Court.6. The learned counsels for the petitioners though made their respective submissions separately, the crux of their submissions was that the respondents having placed the orders dated 18/12/2013 for the purchase of about 373 books from about 350 publishers, on the basis of the approval given by the Expert Committee, the respondents could not have cancelled the said order without any rhyme or reason. According to them, the orders dated 18/12/2013 issued to the various publishers for the supply of the respective books at the various District Head Quarters specified therein were to be supplied within three weeks, and therefore all the petitioners had started spending huge expenditure for the printing and otherwise publishing the said books, which ran into lakhs of rupees. Now since the said orders dated 18/12/2013 were stayed as per the order dated 27/12/2013, and thereafter the new orders dated 3/3/2014 and 4/3/2014 having been passed by the respondents, after the new Government having taken the charge, their investment in printing and publication of the books have become idle. Placing reliance upon various decisions of the Apex Court, the learned counsels for the petitioners have submitted that the respondents having placed the orders for the purchase the books and relying upon the said orders, the petitioners having altered their position detriment to their interest, the respondent Government was estopped from cancelling the said orders or directing the petitioners to participate in the book fairs at the various District places and that too by hiring stalls on payment of Rs. 5,000/-. They have relied upon decisions in case of M/s. Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh & Ors., (1979) 2 SCC 409, in case of Union of India v. India v. Indo Afghan Agencies, AIR 1968 SC 718, in case of Union of India v. Godfrey Philips India Ltd., (1985) 4 SCC 369, to submit that the doctrine of promissory estoppel is applicable against the Government also. They have also placed reliance on the decisions of Apex Court in case of State of Haryana v. State of Punjab, AIR 2002 SC 685 and in case of State of Karnataka v. All India Manufacturers Organisation, 2006 (4) SCC 693 to submit that the decisions taken at the governmental level could not be easily nullified by change of Government more particularly when the decisions do not involve any political philosophy. The learned counsel for the petitioners have also relied upon the decision in case of Gujarat State Financial Corporation v. M/s. Lotus Hotels Pvt. Ltd., AIR 1983 SC 848 to submit that the Government has to act reasonably and without arbitrariness with regard to the exercise its contractual rights.7. However, the learned AAG Mr. J.M. Saxena challenging the very maintainability of the petition submitted that the writ petitions for enforcing the alleged contractual rights could not be entertained under Article 226 of the Constitution of India more particularly when they involve highly disputed questions of facts. According to Mr. Saxena decision to purchase books worth more than 11 crores was taken by the previous Government in a very haste manner, in violation of the instructions contained in the Manual for RMSA, and when the code of conduct was in force from 1/9/2013 to 12/12/2013. He further submitted that the orders dated 18/12/2013 were stayed by the order dated 27/12/2013, and therefore the version of the petitioners that they had spent huge amount for publishing and printing the books is not believable. According to him, the petitioners had not produced any vouchers or bills showing any expenditure made by them during the period 18/12/2013 to 27/12/2013, and it was only by way of additional affidavits that they have produced certain bills, which appear to be concocted ones. He further submitted that the orders dated 3/3/2014 and 4/3/2014 were issued with a view to see that all the willing publishers get the chance to display their books and publications, and the school committees at districts levels may also take the decision for purchase the books as per their requirement. Mr. Saxena has relied upon the decision in case of Michigan Rubber (India) Ltd. v. The State of Karnataka & Ors, (2012) 8 SCC 216 to submit that the awarding of contract is a commercial transaction and the writ petition could not be entertained for enforcing the contractual obligation. He further submitted that as per the settled legal position, the scope of judicial review is extremely limited in case of contractual matters, and that no person can claim a fundamental right carry on business with the government. In this regard he has relied upon the decisions in case of Jagdish Mandal v. State of Orissa & Ors, (2007) 14 SCC 517, in case of Raunaq International Ltd. v. I.V.R. Construction Ltd, AIR 1999 SC 393 and in case of B.S.N. Joshi v. Nair Coal Services Ltd., AIR 2007 SC 437. Lastly, Mr. Saxena has relied upon the decision in case of Rishi Kiran Logistics Pvt. Ltd. v. Board of Trustees of Kandia Port Trust & Ors, AIR 2014 SC 3358 and in case of Kisan Sahkari Chini Mills Limited & Ors. v. Vardan Linkers & Ors, (2008) 12 SCC 500 to buttress his submission that the High Court normally should desist from giving any finding on the disputed or complicated questions of facts as to whether there was a concluded contract or not, and in such cases the petitioners should be relegated to the remedy of civil suit.8. In the instant petitions, there are certain undisputed facts, namely, that the petitioners in response to the advertisement dated 9/9/2013 issued by the respondent No. 2, had supplied the samples of their respective books to the respondents, and the respondent No. 3 had issued the orders dated 18/12/2013, directing the petitioners to supply the books at the price, and at the various districts as mentioned therein. It is not disputed that on the formation of new government, the said orders dated 18/12/2013 were stayed by the respondent No. 3 vide the order dated 27/12/2013, and subsequently the respondent No. 3 had informed vide the order dated 3/3/2014, to all the selected publishers including the petitioners that the book fairs were being organised at the district level for the selected 373 books and they could display their books in the said fairs to enable the school committees at the district level to purchase the books as per their need and requirement. Thereafter the order dated 4/3/2014 was issued as to how, where and on which dates the book fairs would be held. It is also not disputed that some of the petitioners having challenged the said action of the respondents by filing writ petition being No. 3034/2014, the Court had stayed the operation of the orders dated 3/3/2014 and 4/3/2014 regarding conducting of book fairs, and therefore no book fairs were conducted thereafter till this date. It is also not disputed that the said books were to be purchased under RMSA for the year 2013-14, and that the instructions contained the Manual for RMSA issued by the Government of India, Ministry of Human Resources, Department of School Education and Literacy were applicable to the purchase of books in question.9. So far as the legal position as regards the doctrine of promissory estoppel is concerned, there is no shadow of doubt that the doctrine of promissory estoppel would be applicable even against the government. The said doctrine has been elaborately discussed by the Apex Court in case of M/s. Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh & Ors, (supra), in which it has been observed as under :-" 24-This Court finally, after referring to the decision in the Ganges Manufacturing Co. v. Surujmull (supra), Municipal Corporation of the City of Bombay v. Secretary of State for India (supra) and Collector of Bombay v. Municipal Corporation of the City of Bombay & Ors. (supra), summed up the position as follows:"Under our jurisprudence the Government is not exempt from liability to carry out the representation made by it as to its future conduct and it cannot on some undefined and undisclosed ground of necessity or expediency fail to carry out the promise solemnly made by it, nor claim to be the Judge of its own obligation to the citizen on an ex parte appraisement of the circumstances in which the obligation has arisen."The law may, therefore, now be taken to be settled as a result of this decision that where the Government makes a promise knowing or intending that it would be acted on by the promises and, in fact, the promisee, acting in reliance on it, alters his position, the Government would be held bound by the promise and the promise would be enforceable against the Government at the instance of the promises, notwithstanding that there is no consideration for the promise and the promise is not recorded in the form of a formal contract as required by Article 299 of the Constitution. It is elementary that in a Republic governed by the rule of law, no one, howsoever high or low, is above the law. Every one is subject to the law as fully and completely as any other and the Government is no exception. It is indeed the pride of constitutional democracy and rule of law that the Government stands on the same footing as a private individual so far as the obligation of the law is concerned: the former is equally bound as the latter. It is indeed difficult to see on what principle can a Government, committed to the rule of law, claim immunity from the doctrine of promissory estoppel. Can the Government say that it is under no obligation to act in a manner that is fair and just or that it is not bound by considerations of "honesty and good faith"? Why should the Government not be held to a high "standard of rectangular rectitude while dealing with its citizens"? There was a time when the doctrine of executive necessity was regarded as sufficient justification for the Government to repudiate even its contractual obligations, but let it be said to the eternal glory of this Court, this doctrine was emphatically negatived in the Indo-Afghan Agencies case and the supremacy of the rule of law was established. It was laid down by this Court that the Government cannot claim to be immune from the applicability of the rule of promissory estoppel and repudiate a promise made by it on the ground that such promise may fetter its future executive action. If the Government does not want its freedom of executive action to be hampered or restricted, the Government need not make a promise knowing or intending that it would be acted on by the promisee and the promisee would alter his position relying upon it. But if the Government makes such a promise and the promises acts in reliance upon it and alters his position, there is no reason why the Government should not be compelled to make good such promise like any other private individual. The law cannot acquire legitimacy and gain social acceptance unless it accords with the moral values of the society and the constant endeavour of the Courts and the legislatures must, therefore, be to close the gap between law and morality and bring about as near an approximation between the two as possible. The doctrine of promissory estoppel is a significant judicial contribution in that direction. But it is necessary to point out that since the doctrine of promissory estoppel is an equitable doctrine, it must yield when the equity so requires. If it can be shown by the Government that having regard to the facts as they have transpired, it would be inequitable to hold the Government to the promise made by it, the Court would not raise an equity in favour of the promisee and enforce the promise against the Government. The doctrine of promissory estoppel would be displaced in such a case because, on the facts, equity would not require that the Government should be held bound by the promise made by it. When the Government is able to show that in view of the facts as have transpired, since the making of the promise, public interest would be prejudiced if the Government were required to carry out the promise, the Court would have to balance the public interest in the Government carrying out a promise made to a citizen which has induced the citizen to act upon it and after this position and the public interest likely to suffer if the promise were required to be carried out by the Government and determine which way the equity lies."10. The Supreme Court in case of Bannari Amman Sugars Ltd. v. Commercial Tax Officer & Ors, (2005) 1 SCC 625, while dealing with the issue based on the doctrine of promissory estoppel has observed in para 19 as under:-"In order to invoke the doctrine of promissory estoppel clear, sound and positive foundation must be laid in the petition itself by the party invoking and doctrine and bald expressions without any supporting material to the effect that the doctrine is attracted because the party invoking the doctrine has altered its position relying on the assurance of the Government would not be sufficient to press into aid the doctrine. The Courts are bound to consider all aspects including the results sought to be achieved and the public good at large, because while considering the applicability of the doctrine, the Courts have to do equity and the fundamental principles of equity must for ever be present in the mind of the court. ".11. It is axiomatic that the principles of promissory estoppel and fairness are in the field of administrative law, and the issues whether there was a concluded contract entered into between the parties and if yes, whether such contract could be enforced or not, would be in the field of law of contract. The petitioners by way of present petitions under Article 226 of the Constitution of India have mainly sought to enforce the orders dated 18/12/2013, by seeking directions against the respondents to accept the supply of the books and to release the amount of the respective petitioners as mentioned in the said orders. They have also sought the compensation from the respondents. Thus, the petitioners have in fact sought to enforce contract which according to them was concluded as per the said orders dated 18/12/2013, and have sought damages though termed as compensation for the breach of the said contract. It is to be noted that the scope of judicial review in respect of the contracts entered into on behalf of the State has been succinctly laid down by the Supreme Court in case of Tata Cellular v. Union of India, (1994) 6 SCC 651, which reads as under :-94. The principles deducible from the above are : (1) The modern trend points to judicial restraint in administrative action.(2) The court does not sit as a court of appeal but merely reviews the manner in which the decision was made.(3) The court does not have the expertise to correct the administrative decision. If a review of the administrative decision is permitted it will be substituting its own decision, without the necessary expertise which itself may be fallible.(4) The terms of the invitation to tender cannot be open to judicial scrutiny because the invitation to tender is in the realm of contract.Normally speaking, the decision to accept the tender or award the contract is reached by process of negotiations through several tiers. More often than not, such decisions are made qualitatively by experts.(5) The Government must have freedom of contract. In other words, a fair play in the joints is a necessary concomitant for an administrative body functioning in an administrative sphere or quasi-administrative sphere. However, the decision must not only be tested by the application of Wednesbury principle of reasonableness (including its other facts pointed out above) but must be free from arbitrariness not affected by bias or actuated by mala fides.(6) Quashing decisions may impose heavy administrative burden on the administration and lead to increased and unbudgeted expenditure."12. The Apex Court in case of Michigan Rubber (India) Ltd. v. The State of Karnataka & Ors.(supra) further relying upon the said decision as well as other decisions laid down following principles :-"23. From the above decisions, the following principles emerge:(a) the basic requirement of Article 14 is fairness in action by the State, and non-arbitrariness in essence and substance is the heartbeat of fair play. These actions are amenable to the judicial review only to the extent that the State must act validly for a discernible reason and not whimsically for any ulterior purpose. If the State acts within the bounds of reasonableness, it would be legitimate to take into consideration the national priorities;(b) fixation of a value of the tender is entirely within the purview of the executive and courts hardly have any role to play in this process except for striking down such action of the executive as is proved to be arbitrary or unreasonable. If the Government acts in conformity with certain healthy standards and norms such as awarding of contracts by inviting tenders, in those circumstances, the interference by Courts is very limited;(c) In the matter of formulating conditions of a tender document and awarding a contract, greater latitude is required to be conceded to the State authorities unless the action of tendering authority is found to be malicious and a misuse of its statutory powers, interference by Courts is not warranted;(d) Certain preconditions or qualifications for tenders have to be laid down to ensure that the contractor has the capacity and the resources to successfully execute the work; and(e) If the State or its instrumentalities act reasonably, fairly and in public interest in awarding contract, here again, interference by Court is very restrictive since no person can claim fundamental right to carry on business with the Government.24. Therefore, a Court before interfering in tender or contractual matters, in exercise of power of judicial review, should pose to itself the following questions:(i) Whether the process adopted or decision made by the authority is mala fide or intended to favour someone; or whether the process adopted or decision made is so arbitrary and irrational that the court can say: "the decision is such that no responsible authority acting reasonably and in accordance with relevant law could have reached" and (ii) Whether the public interest is affected. If the answers to the above questions are in negative, then there should be no interference under Article 226."13. At this juncture, it would be also necessary to reproduce the observations made by the Apex Court in case of Rishi Kiran Logistic Pvt. Ltd. v. Board of Trustees of Kandla Port Trust & Ors,(supra), wherein the Apex Court relying upon the ratio of decision in case of Kisan Sahkari Chini Mills Limited & Ors. v. Vardan Linkers & Ors.(supra) held interalia that the doctorine of fairness as well as promissory estoppel are in the realm of administrative law whereas the issue as to whether a concluded contract was entered into between the parties and if so, the question of enforcement of such contract would be in the field of law of contract. The Apex Court in the said case of Kishan Sehkari Chini Mills Limited 7 Ors. (supra), while dealing with the issue of legitimate expectation, separating it from the issue pertaining to concluded contract, made very pertinent observations in para 23 as under :-"23. If the dispute was considered as purely one relating to existence of an agreement, that is whether there was a concluded contract and whether the cancellation and consequential non-supply amounted to breach of such contract, the first respondent ought to have approached the civil court for damages. On the other hand, when a writ petition was filed in regard to the said contractual dispute, the issue was whether the Secretary (Sugar), had acted arbitrarily or unreasonably in staying the operation of the allotment letter dated 26.3.2004 or subsequently cancelling the allotment letter. In a civil suit, the emphasis is on the contractual right. In a writ petition, the focus shifts to the exercise of power by the authority, that is, whether the order of cancellation dated 24.4.2004 passed by the Secretary (Sugar), was arbitrary or unreasonable. The issue whether there was a concluded contract and breach thereof becomes secondary. In exercising writ jurisdiction, if the High Court found that the exercise of power in passing an order of cancellation was not arbitrary and unreasonable, it should normally desist from giving any finding on disputed or complicated questions of fact as to whether there was a contract, and relegate the petitioner to the remedy of a civil suit. Even in cases where the High Court finds that there is a valid contract, if the impugned administrative action by which the contract is cancelled, is not unreasonable or arbitrary, it should still refuse to interfere with the same, leaving the aggrieved party to work out his remedies in a civil court. In other words, when there is a contractual dispute with a public law element, and a party chooses the public law remedy by way of a writ petition instead of a private law remedy of a suit, he will not get a full fledged adjudication of his contractual rights, but only a judicial review of the administrative action. The requisition whether there was a contract and whether there was a breach may, however, be examined incidentally while considering the reasonableness of the administrative action. But where the question whether there was a contract, is seriously disputed, the High Court cannot assume that there was a valid contract and on that basis, examine the validity of the administrative action."14. The crux of the afore stated legal position settled by the Supreme Court in various pronouncements is that the Court cannot sit as a Court of Appeal over the administrative decision taken by the Government and can merely review the manner in which the decision was taken. If the State or its instrumentalities act reasonably, fairly, and in the public interest while taking administrative decision, even in case of awarding the contracts, the interference by the Court is very restrictive, as no person can claim fundamental right to carry on business with the government. The Court before interfering in contractual matters, while exercising the power of judicial review can examine whether the process adopted or decision taken by the authority is mala fide or intended to favour some one or whether any public interest is affected, however if the decision is not found either arbitrary or mala fide, then there should be no interference under Article 226 of the Constitution. It is also crystallized in the afore stated decisions that while exercising the writ jurisdiction if the High Court finds that the order of cancellation of contract was not arbitrary or unreasonable, it should desist from giving finding on disputed questions of facts as to whether there was a contract or not, or whether there was breach of contract or not, and should relegate the petitioner to the remedy of a Civil Court. It is also settled by the Apex Court that even in cases where the High Court finds that there was a valid contract and that the impugned administrative action by which contract was cancelled, was not unreasonable or arbitrary, it should still refuse to interfere with the same, leaving the aggrieved party to work out his remedies in a civil Court.15. Keeping in view the afore stated legal position if the facts of the present petitions are appreciated, it appears that the petitioners have chosen the public law remedy of filing petitions under Article 226 of the Constitution, seeking the judicial review of the administrative action of the respondents in reviewing the earlier decision taken to purchase the books from the petitioners as per the orders dated 18/12/2013, and in issuing the orders dated 3/3/2014 and 4/3/2014. In this regard, it has been pointed out by the learned AAG Mr. Saxena for the respondents from the record of the case that the decision to purchase the books worth more than 11 crores under the RMSA was taken by the previous Government hurriedly and without following the instructions contained in the Manual for RMSA. According to him, the advertisement dated 9/9/2013 was issued when the elections were already declared and the code of conduct was in force and the impugned purchase orders dated 18/12/2013 were issued immediately after the said code of conduct was removed on 17/12/2013. He also pointed out that in all previous years except in one year when partial procurement of books was made at the State Level, every time the books were being purchased at the District levels as per the needs and requirements of the schools and as per recommendations by the respective committees of the schools, however, a deviation was made in the procurement of the books for the year 2013-2014 as the tenure of previous Government to end.16. It is true that in the matter of governance of a State, or in the matter of execution of a decision taken by the previous government, which does not involve any political philosophy, the succeeding Government should continue and carry on the un-finished job, rather then putting a stop to the same, as observed by the Supreme Court in case of State of Haryana v. State of Punjab, 2002 (2) SCC 507. However, in the instant case it appears that decision to purchase books entailing huge financial burden was not only taken hurriedly when the code of conduct was in force but was taken in utter disregard of the instructions contained in the Manual for RMSA. At this juncture, it is required to be noted that as per the supplementary advertisement dated 17/9/2013-Annexure-2, the books for the year 2013-14 as mentioned in the advertisement dated 9/9/2013 were to be purchased under the RMSA. As per the manual of RMSA, the Government of India had launched the said centrally sponsored scheme to enhance access to and improve quality of education at secondary stage. The said Manual was made applicable to all the activities under RMSA at all levels of implementation and no deviation there form was permitted. Clause 8.2 of the said manual has laid down the levels like School/SNDC Level, District Level, State Level and National Level for the procurement of goods, works and services required for the implementation of the programme. Clause 220.127.116.11 prescribes the items to be procured at the school/community level, the relevant part thereof reads as under :-18.104.22.168.Items to be procured at School/Community level :"(i) to (iv)..........(v) Teaching and Learning Equipment (TLE) for existing and upgraded secondary schools. This will be as per local specific context and requirement/need to be determined by the teachers/school committee, States to disseminate an indicative list of basic school requirement, with scope for local contextualisation, after approval of State RMSA Executive Committee. Involvement of teachers and parents through SMDC in TLE selection and procurement. SMDC to decide on best mode of procurement within the procedures prescribed in this manual. School grant cannot be pooled at district/State level for purchase.(vi)..........."17. From the said provision made in the said manual, it emerges that the teaching and learning equipments which included books were to be procured as per the local specific context and requirement/need was to be determined by the teachers/school committees and the involvement of teachers and parents through SMDC in selection and procurement of the same was also emphasised. However, without ascertaining the requirement and need of the school committees at the District Level, the State Level Committee was appointed to select the books. The purchase orders dated 18/12/2013 appear to have been issued in utter disregard of the afore stated mandatory provisions contained in the manual for RMSA, which had necessitated the succeeding Government to review the said decision. In the opinion of the Court, such review decision could not be termed as arbitrary or illegal or unreasonable. When huge financial implications are involved and when the public interest, in the instant case the requirement and need of the respective schools at the district level, was not taken into consideration, the decision to review the previous decision appear to be perfectly justified. The award of purchase orders in question was essentially a commercial transaction involving public money. Therefore, it was the duty of the concerned Government to ensure before placing the purchase orders as to whether the public interest was being served and whether public money was being used for the right purpose and in right manner. Further, though judicial review of administrative action is intended to prevent arbitrariness, unreasonableness, bias etc, the award of contracts being commercial transactions, the principles of equity and natural justice contained in the doctrine of promissory estoppel stay at a distance. The judicial review could not be permitted to be invoked to protect private interest at the cost of public interest. In any case, the petitioners have failed to prove any mala fides or arbitrariness on the part of the respondents.18. As stated earlier, the petitioners by way of these writ petitions have sought the enforcement of the orders dated 18/12/2013, meaning thereby they have sought the specific performance of the contract, and the performance of the said contract has been seriously disputed by the respondents. The documents like bills and vouchers produced by the petitioners along with the additional affidavits have also been disputed by the respondents by terming them as the concocted ones. Thus, the reliefs claimed by the petitioners being in the realm of law of contract and there being highly disputed question of facts invovled, the Court refrains itself from entertaining such disputes in the writ petition filed under Article 226 of the Constitution of India. Even if the orders dated 18/12/2013 are treated as the concluded contracts, and even if it is held that the respondents had committed breach of the said contracts entailing financial losses to the petitioners, the proper course for the petitioners was to approach the Civil Court claiming damages for the breach of contract or to ask for the specific performance of the contract, but not to approach the High Court by filing the writ petition under Article 226 of the Constitution of India. As held by the Apex Court in case of Kishan Sahakari Chini Mills (supra), when there is a contractual dispute with a public element, and the party chooses the public law remedy by way of a writ petition instead of a private law remedy of a suit, he will not get a full fledged adjudication of his contractual rights, but only a judicial review of administrative action.19. Thus, having considered the matter from a limited angle in exercise of powers of judicial review, the Court is of the opinion that on the facts of these petitions, no interference in the decision taken by the respondents reviewing the orders dated 18/12/2013 is called for and that no direction for the enforcement of the said orders dated 18/12/2013 could be given. Since the Court had passed the ex parte interim order in the writ petition No. 3034/2014, staying the execution of the orders dated 3/3/2014 and 4/3/2014, which required the petitioners to participate in the book fairs to be held between 10th March, 2014 to 27th March, 2014 at various district level, the said orders were not executed and as such have become infrustuous. Therefore, no further order in that regard is required to be passed. As regards the claim of compensation or loss allegedly suffered by the petitioners, the proper course for the petitioner was to approach the Civil Court, however the petitioners by approaching this Court by way of writ petitions had taken the calculated risk, and have now failed.20. It is also pertinent to note that except the petitioners of petition No. 2815 of 2014 and 3034 of 2014, all other petitioners have challenged the action of the respondents after more than one year of the order dated 27/12/2013, whereby the orders dated 18/12/2013 were sought to be stayed. There is no explanation coming forth as to why the said orders were not challenged for more than one year and now the enforcement of orders dated 18/12/2013 has been sought by filing the present petitions. It is needless to say that the delay defeats equity. The extraordinary jurisdiction under Article 226 of the Constitution could not be exercised when the petitions suffer from delay and latches.21. In the aforesaid premises, the petitions deserve to be dismissed and are hereby dismissed. Copy of this order be placed in each of the petitions.Writ Petition dismissed.
"2016 (2) WLC 104, 2016 (4) RAJLW 3159, 2015 (31) SCT 537,"