Rajasthan High Court - Jodhpur
M/S M.K. Enterprises vs State Of Rajasthan on 9 November, 2023
Author: Pushpendra Singh Bhati
Bench: Pushpendra Singh Bhati
[2023:RJ-JD:38726]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 13491/2023
M/s M.k. Enterprises, Through Its Proprietor Madan Lal S/o Shri
Gopal Lal Pancharia, Aged About 45 Years, Address Near
Santoshi Mata Temple, Maharshi Goutam Marg, New Line
Gangashahar, Bikaner, Rajasthan.
----Petitioner
Versus
1. State Of Rajasthan, Secretary, Medical,health And,family,
Welfare Department, Secretariat, Jaipur, Rajasthan.
2. The Rajasthan Medicare Relief Society, Through Its
Member Secretary - Chief Medical Officer, Mgm
Government Hospital, Hanumangarh, Rajasthan.
3. The Chief Medical Officer, Mgm Government Hospital,
District Hanumangarh, Rajasthan.
----Respondents
For Petitioner(s) : Mr. Kuldeep Singh Solanki for Mr.
Manish Patel
For Respondent(s) : Mr. Rishi Soni for Mr. Pankaj Sharma,
AAG
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
Judgment Reserved on 01/11/2023 Pronounced on 09/11/2023
1. This writ petition under Article 226 of the Constitution of India has been preferred claiming the following reliefs:
"It is therefore, respectfully prayed that this Writ Petition may kindly be allowed with costs; and
(i) by an appropriate writ, order or direction, the NIT dated 25.08.2023 (Anx-1) bearing NIT No.22/2023-24 in regard to outsourcing of Manpower of Government District Hospital, Hanumangarh (MGM Government Hospital) (Annex.-1) may kindly be quashed and set aside.(Downloaded on 11/11/2023 at 09:01:59 PM)
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(ii) by an appropriate writ, order or direction, the technical evaluation criteria of the format of technical bid may kindly be quashed and set aside.
(iii) by an appropriate writ, order or direction, the Petitioner bid may not be cancelled in lieu of technical evaluation criteria of the format of Technical Bid.
(iv) Any other appropriate order or direction as may be deemed just and proper in the facts and circumstances of the case, be passed in favour of the Petitioner.
(v) Writ Petition filed by the Petitioner may kindly be allowed with costs."
2. As per the pleaded facts, the Rajasthan Medicare Relief Society issued an NIT No.22/2023-24 dated 25.08.2023 for obtaining Manpower for District Hospital, Hanumangarh, and technical bid was stipulated to be opened on 27.09.2023. The petitioner-Firm engaged in the job of outsourcing basis work applied for the same, however was aggrieved to see the terms and conditions in the NIT in question, particularly the condition no.2 in the Technical evaluation criteria (Table-A); the relevant portion whereof is reproduced hereunder:
Sr. Description Submission Points Documents No. Required
2. Experience in More than 20 Pts. Work providing manpower 05 years completion services (Central / certificate State / Hospitals Between 03 15 Pts. from (Not less than 200 to 05 years competent beds) / Medical authority, College / Rajasthan / along with Center Govt. Between 01 10 Pts. relevant Institution to 02 years work order.
experience criteria of last 01 financial year.
2.1. Being aggrieved of the above-said condition, the present petition has been preferred claiming the afore-quoted reliefs. (Downloaded on 11/11/2023 at 09:01:59 PM) [2023:RJ-JD:38726] (3 of 11) [CW-13491/2023]
3. Learned counsel for the petitioner-Firm submitted that the petitioner-Firm has been doing the work of providing Labour/Manpower in the State of Rajasthan and has vast experience in the work so mentioned in the said NIT; further, the petitioner-Firm has participated in different NIT in other areas and has participated and selected therein.
3.1. It was further submitted that the said condition in question was incorporated in order to give undue benefit to the Firm already working with the MGM Government Hospital and was introduced for the first time by the respondents. 3.2. It was also submitted that the impugned condition was arbitrary and against the provisions of the Rajasthan Transparency in Public Procurement Act, 2012 (hereinafter referred to as 'RTPP Act') as the work in the given tender did not require such type of experience; further, in other districts as well, the same kind of tender had been invited, however the aforesaid condition in question demanding the particular experience was not imposed.
4. On the other hand, learned counsel for the respondents, while opposing the submissions made on behalf of the petitioner- Firm, submitted that the impugned condition was incorporated keeping in mind the requirement of the Government District Hospital, Hanumangarh; earlier the requirement had been less, as the hospital did not have sanction for 200 beds, however vide the communication dated 24.05.2017, the said Hospital has been granted sanction for 200 beds, and thus, appropriate manpower was required for the same, resulting into the prescription of the (Downloaded on 11/11/2023 at 09:01:59 PM) [2023:RJ-JD:38726] (4 of 11) [CW-13491/2023] impugned condition in the technical evaluation criteria of the NIT in question.
4.1. It was further submitted that being a procuring entity, the respondents had responsibility as per the provisions of Section 4
(a) of RTPP Act, to ensure efficiency and transparency for the process of NIT seeking manpower, and thus, in order to ensure effective working, such condition was prescribed in the technical evaluation criteria. In furtherance, more points were given for more number of experiences as providing similar facilities for many years showcases excellence in providing the said facilities. 4.2. It was also submitted that the bidders were required to have work completion certificate from the competent authority along with relevant work order, however the petitioner-Firm had not submitted any certificate of work completion with experience in providing manpower services (not less than 200 beds) of last one financial year nor were there any records to prove the providing of manpower in different NITs in entire Rajasthan by the petitioner- Firm.
4.3. It was also submitted that any bidder could ask for clarifications from the procuring entity with respect to bidding documents as per Section 22 of RTPP Act, Rule 46 of the Rajasthan Transparency Public Procurement Rules, 2013 and the aforesaid NIT specifying the pre-bid meeting on 12.09.2023; objections of the bidders were taken in this meeting, however no participation was seen from the petitioner-Firm in that regard. 4.4. In furtherance, it was submitted that it is a disputed question whether the petitioner-Firm is a registered entity and in addition (Downloaded on 11/11/2023 at 09:01:59 PM) [2023:RJ-JD:38726] (5 of 11) [CW-13491/2023] the petitioner-Firm has failed to place any documents proving its contentions of undue benefit being given to a particular Firm as the conditions inculcated in the technical evaluation bid were for every bidder participating in the said NIT.
5. Heard learned counsel for the parties as well as perused the record of the case.
6. This Court observes that the Rajasthan Medicare Relief Society floated the aforesaid tender for obtaining manpower and certain conditions were incorporated in the said tender for the purposes of evaluation in the technical bid and the petitioner-Firm being aggrieved particularly of condition no.2 of the said tender preferred the present writ petition.
7. This Court further observes that vide communication dated 24.05.2017, the District Hospital, Hanumangarh received sanction by the Deputy Secretary, Medical and Health (Group-2) Department, Government of Rajasthan, for 200 beds, and accordingly, the tender was floated with the necessary requirement for manpower, wherein the conditions were the same for every participating bidder, thus failing to provide the required work experience certificate, the petitioner-Firm could not raise the issue of arbitrariness, when no case is being made out in favour of the petitioner-Firm, in that regard.
8. This Court is conscious of the judgment rendered by this Court in the case of Dileep Trading v. State Of Rajasthan & Ors. (S.B. Civil Writ Petition No. 9818/2023, decided on 29.08.2023); relevant portion whereof is reproduced as hereunder:
(Downloaded on 11/11/2023 at 09:01:59 PM)
[2023:RJ-JD:38726] (6 of 11) [CW-13491/2023] "8. This Court also observes that it is a settled proposition of law that there should be minimum interference of Courts, when it comes to the terms of a bid document, and that the same should not be open for judicial scrutiny/review, unless there is apparent and proved arbitrariness, malafide or discrimination on the part of the State Government; however, the present case does not fall within either of the said parameters, so as to persuade this Court to make the interference as prayed for.
9. This Court is conscious of the judgment rendered by the Hon'ble Apex Court in the case of Uflex Ltd. (supra);
relevant portion whereof is reproduced as hereunder:
"2. The judicial review of such contractual matters has its own limitations. It is in this context of judicial review of administrative actions that this Court has opined that it is intended to prevent arbitrariness, irrationality, unreasonableness, bias and mala fide. The purpose is to check whether the choice of decision is made lawfully and not to check whether the choice of decision is sound. In evaluating tenders and awarding contracts, the parties are to be governed by principles of commercial prudence. To that extent, principles of equity and natural justice have to stay at a distance.
3. We cannot lose sight of the fact that a tenderer or contractor with a grievance can always seek damages in a civil court and thus, "attempts by unsuccessful tenderers with imaginary grievances, wounded pride and business rivalry, to make mountains out of molehills of some technical/procedural violation or some prejudice to self, and persuade courts to interfere by exercising power of judicial review, should be resisted."
4. In a sense the Wednesbury principle is imported to the concept, i.e., the decision is so arbitrary and irrational that it can never be that any responsible authority acting reasonably and in accordance with (Downloaded on 11/11/2023 at 09:01:59 PM) [2023:RJ-JD:38726] (7 of 11) [CW-13491/2023] law would have reached such a decision. One other aspect which would always be kept in mind is that the public interest is not affected."
10. This Court is also conscious of the judgment rendered by the Hon'ble Apex Court in the case of Airport Authority of India v. Centre for Aviation Policy, Safety & Research (CAPSR) & Ors., (supra); relevant portion whereof is reproduced as hereunder:
"28. While considering the scope and ambit of the High Court under Article 226 of the Constitution of India with respect to judicial scrutiny of the eligibility criteria/tender conditions, few decisions of this Court are required to be referred to, which are as under:
29. In the case of Maa Binda Express Carrier (supra), in paragraph 8, this Court observed and held as under: "8. The scope of judicial review in matters relating to award of contracts by the State and its instrumentalities is settled by a long line of decisions of this Court. While these decisions clearly recognise that power exercised by the Government and its instrumentalities in regard to allotment of contract is subject to judicial review at the instance of an aggrieved party, submission of a tender in response to a notice inviting such tenders is no more than making an offer which the State or its agencies are under no obligation to accept. The bidders participating in the tender process cannot, therefore, insist that their tenders should be accepted simply because a given tender is the highest or lowest depending upon whether the contract is for sale of public property or for execution of works on behalf of the Government. All that participating bidders are entitled to is a fair, equal and non- discriminatory treatment in the matter of evaluation of their tenders.
It is also fairly well settled that award of a contract is essentially a commercial transaction which must be determined on the basis of consideration that are relevant to such commercial decision. This implies that terms subject to which tenders are invited are not open to the judicial scrutiny unless it is found that the same have been tailor-made to benefit any particular (Downloaded on 11/11/2023 at 09:01:59 PM) [2023:RJ-JD:38726] (8 of 11) [CW-13491/2023] tenderer or class of tenderers. So also, the authority inviting tenders can enter into negotiations or grant relaxation for bona fide and cogent reasons provided such relaxation is permissible under the terms governing the tender process."
30. In the case of Michigan Rubber (India) Ltd. (supra), after considering the law on the judicial scrutiny with respect to tender conditions, ultimately it is concluded in paragraph 23 as under:
"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 the 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 the 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 (Downloaded on 11/11/2023 at 09:01:59 PM) [2023:RJ-JD:38726] (9 of 11) [CW-13491/2023] again, interference by court is very restrictive since no person can claim a fundamental right to carry on business with the Government."
31. In the aforesaid decision, it is further observed that the Government and their undertakings must have a free hand in setting terms of the tender and only if it is arbitrary, discriminatory, mala fide or actuated by bias, the courts would interfere. It is further observed that the courts cannot interfere with the terms of the tender prescribed by the Government because it feels that some other terms in the tender would have been fair, wiser or logical.
32. Similar views have been expressed in the case of Educomp Datamatics Ltd. (supra) and Meerut Development Authority (supra).
33. In the present case, the AAI explained before the High Court the rationale behind the respective conditions, namely, clustering of 49 airports into 4 region-wise sub-categories/clusters; criteria for evaluation - 36 months experience in past 7 years in providing 3 out of 7 Core GHS and the financial capacity
- Annual Turnover of Rs. 30 crores (modified as Rs. 18 crores) in any one of last three financial years.
34. Having gone through the respective clauses/conditions which are held to be arbitrary and illegal by the High Court, we are of the opinion that the same cannot be said to be arbitrary and/or mala fide and/or actuated by bias. It was for the AAI to decide its own terms and fix the eligibility criteria."
11. This Court also observes that the very purpose of the legislation in incorporating Sections 4 & 6 in the RTPP Act, 2012 was to ensure the accountability and responsibility of the procuring entity in the procuring process and to promote transparency, fairness and competition among the bidders (place limitation only when required and with reasons) so that the scarce public funds are well spent and the public projects are carried out in a timely manner." (Downloaded on 11/11/2023 at 09:01:59 PM) [2023:RJ-JD:38726] (10 of 11) [CW-13491/2023]
9. This Court also observes that the petitioner-Firm though contended that the aforesaid Condition No. 2 of the tender is against the provisions of the RTPP Act and further has been inculcated to provide advantage to a particular Firm working with the MGM Government Hospital, however the petitioner-Firm failed to specify in what manner, the said condition is arbitrary or which provisions of the RTPP Act are being violated or how a particular Firm is being benefitted by the said condition, and further, has not provided any documents to substantiate such contentions.
10. This Court further observes that a pre-bid meeting had also taken place on 12.09.2023 inviting objections with regard to the conditions of the said tender. however according to the respondent-department, the petitioner-Firm did not raise such contentions in the said meeting and failed to participate in the same.
11. In the backdrop of the precedent laws and the present factual matrix, this Court is of the opinion that it is a settled position of law that there should be minimum interference by the Courts in conditions of tender, and further, the condition impugned in the present matter does not fall within the category of arbitrariness, irrationality, malafide or unreasonableness, the same being the criteria for interference by the Courts in the conditions of tender. The respondents are well within their authority to have such terms and conditions while floating a tender, which they deem fit, not only to save the funds of the public exchequer, but also for efficient working. (Downloaded on 11/11/2023 at 09:01:59 PM)
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12. Thus, in light of the aforesaid observations as well as looking into the factual matrix of the present case, this Court does not find it a fit case so as to grant any relief to the petitioner in the present petition.
13. Consequently, the present petition is dismissed. All pending applications stand disposed of.
(DR.PUSHPENDRA SINGH BHATI),J SKant/-
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