A Single Bench of Justice Sanjeev Kumar while quashing the Communication of Department of Rural Development calling upon to initiate action against the petitioners and also to ensure that no contract is allotted to them in future on the basis that the petitioners have failed the security test has held that the restrictions on the fundamental right to practise any profession or to carry on any occupation, trade or business guaranteed by Article 19(1)(g) of the Constitution of India cannot be imposed otherwise than in accordance clause (6) of Article 19. Such restriction must be reasonable, in general public interest and imposed by law. The restriction on the fundamental right to carry on trade or business guaranteed under Article 19(1)(g) of the Constitution, even if it is reasonable, cannot be imposed by the Government through executive fiat.
The petitioners had thrown a challenge to the Communication from Commissioner/Secretary to Government by virtue of which the petitioners were prevented from participating in rendering process of the department. The communication was purportedly on the basis of the report furnished by the CID wherein the printers had failed the security test. As there close relatives of the petitioners had in the past remained involved in subversive activities though there was no direct involvement of any of the petitioners in any anti-national activity. The petitioners contended that they were registered contractors and as such are entitled to do their trade and business of executing government contractors to make their livelihood and, therefore, no authority of the government, howsoever high it may be, can take away the right to livelihood and right to do business or trade from the petitioners. It was argued on behalf of the petitioners that the impugned communication issued by the Commissioner/Secretary to Government Department of Rural Development and Panchayati Raj has taken away and infringed the fundamental rights guaranteed to the petitioners under Article 19(1)(g) and Article 21 of the Constitution of India.
While analysing the scope of regulating trade/occupation of the exciting public works of the government department on the touchstone of J&K Registration of Contractors Act, 1956 & the rules made therein vide SRO 122 dated 26th May, 1992 the court noted that There are some of the salient provisions of the Act of 1956 and the Rules framed thereunder which are in vogue and regulate the contractors’ business of executing works of the Government Departments. The court observed that the competent authority i.e. Head of the Department, if he is satisfied that such contractor has incurred any of the disqualifications under these rules, shall suspend or blacklist or remove his name from the register after serving a show cause notice and considering the explanation, if any tendered by the contractor.
The court further noted that the certificates of registration granted to the petitioners by the competent authority make them eligible to enter into contract with the Government for execution of public works. The Commissioner/Secretary to Government in his capacity as an administrative head or even the Government is not competent to impose any restriction on the right of a citizen to practice any profession or carry on any trader business.
The court held that the restrictions on the fundamental right to practise any profession or to carry on any occupation, trade or business guaranteed by Article 19(1)(g) of the Constitution of India cannot be imposed otherwise than in accordance clause (6) of Article 19. Such restriction must be reasonable, in general public interest and imposed by law. The restriction on the fundamental right to carry on trade or business guaranteed under Article 19(1)(g) of the Constitution, even if it is reasonable, cannot be imposed by the Government through executive fiat.
The court while quashing the impugned Communication directed the respondents shall permit the petitioners to participate in the tendering process, if they are otherwise eligible.
