Writ jurisdiction applies in cases of non-statutory contracts involving the State or its instrumentality, allowing for judicial review of state actions based on constitutional and statutory grounds.

M. Katju and R. S. Tripathi, JJ.—This special appeal has been filed against the impugned judgment of the learned single Judge dated 10.3.2004.

2. Heard Shri Ramendra Asthana learned counsel for the appellant and the learned standing counsel for the respondents.

3. Shri Ramendra Asthana, learned counsel has informed that the respondent No. 4 has been served through registered post.

4. There is an office report that the special appeal is not maintainable in view of the decisions of this Court in Vajara Yojna Seed Farm Kalyanpur (M/s.) and others v. Presiding Officer, labour court-II, U. P. Kanpur and another, 2003 UPLBEC 496 and Sita Ram Lal v. District Inspector of Schools, Azamgarh and others, 1994 ACJ 180. These decisions have referred to Chapter VIII, Rule 5 of the Allahabad High Court Rules which states that an appeal lies against the judgment of a learned single Judge under Article 226 of the Constitution except when the writ petition was filed against such judgment or order or award (a) of a Tribunal, Court or statutory arbitrator, (b) of the Government or any Officer or authority, made or purported to be made in the exercise or purported exercise of appellate or revisional jurisdiction under any such Act mentioned in Chapter VIII, Rule 5. In this case, the writ petition filed before the learned single Judge was against the order of the Commissioner who decided the appeal provided for under the Government order dated 3.7.1990. Thus, the impugned judgment before the learned single Judge, was not against an order of a Tribunal or Court or statutory arbitrator. It was also not against an order passed in exercise of appellate or revisional jurisdiction ‘conferred by some Act’. In fact, the appellate jurisdiction was conferred by a Government order and not by an Act. Hence, in our opinion this special appeal is maintainable.

5. Coming to the merits of the case, we have carefully perused the impugned judgment of the learned single Judge dated 10.3.2004. The learned single Judge was of the view that the writ petition was not maintainable as it was in respect of a contractual matter. The learned single Judge has referred to several decisions of this Court and the Supreme Court e.g., Shiv Mohan Lal v. State of U. P. and others, 1993 (1) AWC 196 (FB) : 1993 (21) ALR 121 and U. P. Sasta Galla Vikreta Parishad v. State of U. P. and others, 1992 (2) EFR 655. There is also a subsequent decision of a Division Bench of this Court in Writ Petition No. 48296 of 2003, Har Charan Sharma v. Nagar Panchayat and others, decided on 16.3.2004 which supports the view taken by the learned single Judge.

6. In our opinion, there is a distinction between a contract between two private persons and a contract where one of the parties is the State or an instrumentality of the State. In case of a contract where both the parties are private individuals no writ will lie in relation to such a contract (though a suit or other remedy may lie). However, where one of the parties to the contract is the State or an instrumentality of the State, the position becomes totally different. In such a case. Article 14 and other provisions of the Constitution will clearly apply because the Government cannot discriminate or Act arbitrarily in respect of grant of contracts. Now-a-days the Government or instrumentality of the State grants contracts often worth hundreds of crores of rupees, and therefore, it is essential that there should be totally transparency in such contracts, otherwise the public confidence will be eroded. For example, it has often been held by the Court that such contracts are ordinarily to be awarded after advertising the same in well known newspapers having wide circulation and thereafter a public auction or public tender should be held vide Ziauddin v. Commissioner, 2003 (1) AWC 5 and V. K. Jaiswal v. State of U. P., 2004 ALJ 951, etc. The position is different with regard to contracts where both the parties are private individuals and h