Secretary Co-op. Society and Another vs Senior Regional Manager, F.C.I. and Others

S.R. Nayak, J.—The petitioners on the one hand and the 4th respondent on the other hand are the competitors for awarding of handling and transport contract work in the Food Corporation of India (F.C.I.) godowns at Dowleswaram. This case had had a checkered career but, after hearing the learned Counsel for the parties, I do not find it necessary even to refer all the writ proceedings before this court and subsequent proceedings taken before the Supreme Court. Suffice it to state that during the year 1994-96 the handling and transport contract work was awarded to the 4th respondent in pursuance of the tender notification dated 23-06-1994. The petitioners herein assailed the above action of the F.C.I. in W.P.No.13672 of 1992. The writ petition was dismissed, though the learned single Judge in taking suo motu extraordinary jurisdiction of this Court issued certain directions to the F.C.I. The matter was carried out before the Division Bench in W.A.Nos. 520 of 1995 and 780 of 1998 by the F.C.I. and the petitioners respectively. The Division Bench disposed of both the appeals by a common judgment and order dated 23-07-1998 affirming the judgment of the learned single Judge. During the pendency of the W.A.No.520 of 1995 the F.C.I. issued tender notification dated 05-07-1996 calling for tenders from the eligible Co-operative Societies to award handling and transport work for the years 1996-98. From the records it is seen that the F.C.I. did not take further steps in pursuance of the tender notification dated 05-07-1996. On the other hand, they issued proceeding dated 23-07-1996 informing that the notification published on 05-07-1996 inviting sealed tenders from Labour Contract Co-operative Societies for handling and transport operations at F.C.I. Depot, Dowleswaram was deferred until further notice. When the matter stood thus, a policy decision was taken by the F.C.I. at the central level in consultation with the Central Trade Union parting in the F.C.I. to introduce Direct Payment System ( for short ''D.P.C.''). This policy decision was taken on 05-11-1997. By virtue of this policy decision 163 members of the 4th respondent Co-operative Society were selected subjecting them to eligibility test for providing handling and transport contract work by office order dated 11-11-1998 of the Regional Manager, District Office F.C.I. Kakinada. Subsequently it appears from the records that 41 more members belonging to the 4th respondent Co-operative Society were also appointed.

In this writ petition, the petitioners have prayed for the following reliefs:

" For the reasons stated in the accompanying affidavit it is prayed that this Hon''ble Court may be pleased to direct the respondent Nos. 1 to 3 herein to call for Tenders for the Handling and Transporting Contract work at the Food Corporation of India godowns at Dowleshwaram and/or to provide equal opportunity to the members of the writ petitioner society also along with the members of the respondent No.4 Society basing on the list of workers/members of the writ petitioner society who had really worked and who were exploited by the respondent Corporation, that would be prepared by the District Collector, East Godavari District, as directed by this Hon''ble High Court in W.A.No.520 of 1995 and W.A.No.780 of 1998, dated 23-07-1998, with all consequential benefits and attendant benefits declaring the action of the respondent Nos. 1 to 3 herein in not calling for tenders for Handling and Transporting Contract work in the Food Corporation of India godowns at Dowleshwaram and not providing equal opportunity to the members of the writ petitioner society in the matter of employment as illegal, arbitrary, discriminatory, irrational, illogical, irregular and violative of Articles 14, 16 and 21 of the Constitution of India, by the issuance of writ or order or direction essentially in the nature of writ of mandamus and pass such other order or orders as this Hon''ble High court may deem fit, proper and necessary in the circumstances of the case."

The question at the threshold is whether the relief sought by the petitioners can be granted without violating the policy taken by the F.C.I. dated 05-11-1997 abandoning the tender system and introducing the D.P.S. Should it be noted that the petitioners have not assailed the validity or legality of the new policy decision of the F.C.I. Should it also be noted that if the policy decision taken by the F.C.I. administration holds the field, without declaring such policy as invalid being violative of Article 14 of the Constitution, the Court is not entitled to issue any direction which has the effect of directing the respondent-authorities to violate the policy.

Sri J. Sudheer, learned Counsel for the petitioners quite fairly and understandably knowing limitation of the judicial review in the policy matters did not attack the new policy dated 05-11-1997. As pointed out supra, there is no challenge to the policy. There was no scope for the learned Counsel to attack the validity of the policy. The only limited contention and submission of the learned Counsel for the petitioners is that there was absolutely no justification for the F.C.I. administration to abandon the steps that ought to have been taken in pursuance of the tender notification dated 05-07-1996, and if the F.C.I. were to take further steps in pursuance of the tender notification, there was every chance and scope for the petitioners-society to compete for the award of the Handling and Transporting Contract and if the petitioners-society were to be awarded with the Handling and Transporting Contract its members would have gained experience and that would have made them eligible for being considered for appointment in terms of the new policy dated 05-11-1997. This contention of the learned Counsel, in my considered opinion, is totally hypothetical. If F.C.I. administration were to take further steps in pursuance of tender notification dated 05-07-1996, the Handling and Transporting Contract work should have been awarded to the petitioners-society only and not to the 4th respondent. It may be that not taking steps by the F.C.I. administration in pursuance of the tender notification dated 05-07-1996 is an irregularity in the light of the judgments of this Court in W.P.No.7862 of 1990 dated 16-10-1990 and in W.P.No. 13673 of 1992 dated 01-04-1994 but only on the basis of that flaw the certainty of awarding Handling and Transporting Contract work to the petitioners-society for the block period 1996-98 cannot be inferred as a certainty, and if the Court were to infer such certainty it would tantamount to creating a fiction. Such a course is totally impermissible.

In the result, writ petition fails and it is accordingly dismissed with no order as to costs. However, this order shall not come in the way of the F.C.I. administration in considering the claims of the members of the petitioners-society for appointment, if they are so advised.