Mr. S.J. Vazifdar, ACJ.:- The petitioners have challenged clause-2 of the communication dated 18.03.2015 addressed by the Principal Secretary, Government of Punjab, Food Civil Supplies and Consumer Affairs Department to all the District Controllers of the department.

2. While testing the validity of clause-2 it would be necessary to consider clause-19. Clauses 2 and 19 of the impugned communication read as under:-

“In reference to the above subject, following policy guidelines/directions are issued for labour work of the storage of agricultural produce at storage points (open plinth and covered godowns)/P.E.G. godowns for year 2015-16.

2. The loading work of agricultural produce shall be done by commission agents on the rates fixed by Punjab Mandi Board.

xx xx xx xx xx xx

19. After the auction of agricultural produce in Mandi, the commission agents shall be bound to complete work of labour (loading) within 48 hours, and in event of not doing so, agency shall have right to get the work executed at his risk and cost from other sources at approved rate of concerned tender. Excess expenditure shall be recovered from the commission agents. The Punjab Mandi Board shall have responsibility for taking disciplinary action against the defaulter commission agent.

(A) The payment of work of loading done by the commissionagents shall be made directly to the commission agents and loading shall be submitted by commission agents by preparing it separately.”

3. The petitioners’ grievance is that as a result of clause-2 of the instructions, the parties persons other than commission agents are excluded from bidding for the said work.

4. It is true that absent anything else, every party is entitled to participate in the commercial activities of the State and of the instrumentalities of the State. The State cannot discriminate against any party. It cannot choose to contract with some parties alone or to exclude others arbitrarily or irrationally. The State is, however, entitled in certain circumstances to deal with certain specified persons depending on the peculiar requirements of a case. It is also entitled to stipulate the eligibility conditions. We are not concerned here with the validity of the conditions of eligibility. We are concerned here with the decision of the respondents to award the contract only to a certain class of persons, namely, the Commission Agents. Normally, the State would not be entitled to do so. The question is whether the State has in this case justifiably decided to award the contract only to a particular class of persons, namely, the Commission Agents.

5. Considering the facts and circumstances of the case we are of the opinion that the decision cannot be said to be arbitrary, unreasonable or malafide. The decision making process is also reasonable and satisfactory. We have been unable to notice any arbitrariness or malafides in the process.

6. The respondents have filed two affidavits which indicate the decision making process and the decision, neither of which can be said to be unsatisfactory on the basis of the record that is available. It is important to note at this stage itself that there has been no replication to the written statement/affidavits in reply filed by the respondents.

7. The case of the respondents is as follows:-

Prior to the notification the work was carried out by the labour cartage contractors. The work was found to be unsatisfactory. The respondents found that it was suffering at the hands of the labour cartage contractors on account of the delay in the procurement and delivery of food grains from the Mandis to the storage points. The labour contractors did not lift the grains within the stipulated time leaving the food grains lying in open. Food grains are perishable commodities. On account of the delay and mishandling the food grains perished. Moreover as a result of the delay the food grain which was not lifted in time occupied valuable space in the Mandis which was required for the