Jammu & Kashmir High Court
Nd Info Systems Private Limited vs Union Territory Of J&K And Others on 27 May, 2022
Author: Rajnesh Oswal
Bench: Rajnesh Oswal
HIGH COURT OF JAMMU AND KASHMIR AND LADAKH
AT JAMMU
Reserved on: 27.04.2022
Pronounced on: 27.05.2022
WP(C) No. 404/2022(O&M)
ND Info Systems Private Limited .....Appellant(s)/Petitioner(s)
Through: Mr. R. K. Gupta, Sr. Advocate with
Mr. Rajnish Singh Parihar, Advocate
Mr. Shivnath Kumar, Advocate
Vs
Union Territory of J&K and others ..... Respondent(s)
Through: Mr. Amit Gupta, AAG
Coram: HON'BLE MR. JUSTICE RAJNESH OSWAL, JUDGE
JUDGMENT
1. The case set up by the petitioner-company in the present petition is that pursuant to e-Tender Notice No. 13 of 2021 dated 07.12.2021, a Request For Proposal (RFP) for empanelment of agency for conduct of Optical Mark Recognition (Reading) (OMR) based examination for the Jammu and Kashmir Service Selection Board, respondents herein for the period of two years was made by the respondents and in response to the same, petitioner participated in the process by uploading its bid online on 13.12.2021. The petitioner was declared as successful bidder and respondent No. 2 issued a Letter of Intent (LOI) on 28.12.2021 in favour of the petitioner.
2. Prior to that, the respondent No. 1 sent an email to the petitioner thereby stating that the petitioner has been found as Lowest one (L1) bidder. It was also stated that the discussion was held on 23.12.2021 for working 2 WP(C) No. 404/2022 out the modalities regarding the conduct of various OMR examinations by virtue of which, the data of the candidates along with syllabi for the posts of Accounts Assistant (Finance), Patwari and Election Assistant (Jr. Scale) was shared with the petitioner on 23.12.2021 and schedule for the conduct of the examination was also mentioned. On 27.12.2021, the petitioner conveyed its acceptance to email dated 24.02.2021 sent by the respondent No. 2. It was also stated that its representatives along with the Managing Director would schedule a demo presentation on 03.01.2022 with regard to end to end examination activities and other planning processes required. Vide email dated 28.12.2021, the respondent No. 2 agreed for demo presentation on 03.01.2022 with regard to end to end examination activities and other planning process. It is also stated that on 03.01.2022 the representatives of the petitioner being Managing Director and other officials of the petitioner-company visited the office of respondent No. 2 and conducted demo presentation with regard to end to end examination activities and other planning process. The representatives of the respondents sought various clarifications with respect to secrecy and security of the question paper and the same was satisfactorily answered by the representatives of the petitioner. On 05.01.2022, the petitioner vide email intimated the respondents that the petitioner has started the job on a full swing for the OMR examination of Accounts Assistant, Patwari, Election Assistant and other matric level posts. As per data received from the respondents, there would be at least 800 to 900 examination centers and count of the examination centers was yet to be finalized by the respondents and in view thereof, a request was made by 3 WP(C) No. 404/2022 the petitioner to postpone the date of examination and the respondents accepted the suggestion made by the petitioner to shift the schedule of the examination of Accounts Assistant on 06.02.2022, descriptive test for the post of Election Assistant (Election Department) and Patwari (Revenue Department) on 26.02.2022 and matric level examination on 27.02.2022 vide email dated 06.02.2022.
3. On 11.01.2022, the petitioner sent an email to the respondents and sought final examination center list for the exam of Accounts Assistant scheduled to be held on 06.02.2022. It is further stated that the petitioner sent numerous emails and held telephonic conversations with the representatives of the respondents seeking examination centers list and lastly the respondent No. 2 replied to email dated 11.01.2022 of the petitioner on 29.01.2022, but instead of sharing examination centre list, the respondent No. 2 directed the petitioner to share examination conduct manual of OMR examination scheduled to be held in the month of February, 2022 by 30.01.2022 positively. The petitioner on the very next date i.e. 31.01.2022 furnished the manual to the respondent No. 2 and the same was approved by respondent No. 2 on 03.02.2022 through email. It is further averred that the petitioner was shocked to receive email dated 07.02.2022 from the Under Secretary of respondents in which it was stated that a demo presentation with regard to end to end examination activities as agreed earlier has not been conducted as yet and further that the Chairman, Jammu and Kashmir Service Selection Board desired to schedule demo/presentation with regard to end to end conduct of OMR examination on 10.02.2022 in his office chamber at Sector-3, Channi 4 WP(C) No. 404/2022 Himmat, Jammu positively. The petitioner has further stated that the demo had already been satisfactorily conducted by the petitioner on 03.01.2022 and on 08.02.2022, the petitioner confirmed that expert team would be at the designated place on 10.02.2022. On 12.02.2022, the petitioner sought appointment with respondent No. 1 so that they can demonstrate the detailed blueprint of the functionalities involved in confidential part (designing, printing and delivery of QP and OMR) and the operation part as well. It is further stated that the petitioner was completely prepared and well equipped to conduct the examination within the timeline as provided by the respondents in earlier emails and subsequently petitioner procured/hired each and every material/manpower/tool necessary for the successful conduction of Account Assistant examination to be held on 06.03.2022.
4. On 19.02.2022, the petitioner again sent an email to the respondents thereby stating that they were yet to receive response to email dated 12.02.2022 and further requested to share the list of examination centers which was long due. The petitioner has also mentioned about the details of the expenses incurred during the process for preparing the conducting of OMR examinations.
5. On 23.02.2022, while visiting the website of the respondents, the petitioner noticed that the notification of admit cards which is impugned herein was uploaded on website of the respondents. On coming to know about the impugned notice, the Managing Director of the petitioner himself visited the Jammu Office of the respondents on 25.02.2022 and made enquiry as to how such examinations are being conducted without 5 WP(C) No. 404/2022 the involvement of the petitioner being successful bidder and that too without any cancellation/termination of LOI. The petitioner also sent a protest email dated 24.02.2022.
6. The petitioner being aggrieved with the action of the respondents of conducting the OMR based objective written examination for the post of Accounts Assistant, by other entity, has filed the present writ petition for quashing the impugned order/notice dated 23.02.2022 and further has sought to declare the action of the respondents in disallowing the petitioner to conduct the OMR based written examination to be held on 06.03.2022 as null and void. The petitioner has also sought direction to the respondents to allow the petitioner to conduct OMR based written examination in furtherance of LOI dated 28.12.2021 for a period of two years and further that the respondents be restrained from engaging the services of any other service provider/agency with respect to conducting OMR based written examination.
7. The petitioner has prayed for grant of above mentioned reliefs on the grounds that the impugned notice dated 23.02.2022 is illegal and against the principle of natural justice and that the petitioner being L1 bidder was awarded LOI by the respondent No. 2 followed by several confirmations by emails for conducting the aforesaid examinations and the petitioner was not given opportunity to conduct the OMR based examination to be held on 06.03.2022. It is also stated that the act of the respondents of not giving opportunity to the petitioner to conduct the examination to be held on 06.03.2022 is arbitrary and illegal. It is also stated that the petitioner has made huge investment in the form of money and efforts to make the 6 WP(C) No. 404/2022 examination on time in printing, technical solutions, conveyance, QP Manuscripts, Trunks, OMR‟s etc.
8. The respondents have filed the response in which it has been stated that the petitioner has no cause of action to file the present writ petition. The respondents have also mentioned about the various examinations conducted by the Jammu and Kashmir Service Selection Board in the past and to be conducted in near future. The respondents have stated that the Jammu and Kashmir Service Selection Board has conducted various examinations with utmost transparency, confidentiality and purity notwithstanding the fact that the examinations, particularly for recruitments, are highly challenging and extremely sensitive in nature. The conduct of fair and transparent examination remains at the heart and soul of any recruitment process and integrity and transparency are such attributes which cannot be bartered for any other consideration, including pricing. Fair, clean and transparent conduct of examination for recruitment has wide ranging implications for upholding values of meritocracy and building trust of society upon institutions of governance. Therefore, it is solemn duty of the recruiting body to entrust the job of conducing examinations to any agency which, being able to meet professional standards, is also able to generate confidence amongst youth and enhance reputation of the recruiting body. The recruiting body is duty bound to exercise due diligence and arrive at reasonable satisfaction about the procedures and protocols those shall be employed by the entity for maintenance of confidentiality and secrecy during content development, printing and packaging, transportation, conduct of examinations, 7 WP(C) No. 404/2022 preparation of result, etc. A slight laxity at any stage of the process can shake the confidence of youth and society at large on the recruiting body and have irreparable impact on its reputation and image. It is also stated that while hiring service provider for most of the services, the possibility of making course corrections or amends is available before, during and even post execution of a job, however, conducting examinations are extremely sensitive, challenging and time bound jobs and as such, scope for errors and omissions is almost nonexistent. To be L1bidder for empanelment of examination agency cannot entitle or give unqualified rights upon any entity to lay claim for the job of conducting examination, unless it simultaneously succeeds in demonstrating its capability and competence to handle the assignment with professionalism and quality, in accordance with laid down protocols and procedures. Being L1 bidder may be a necessary condition but may not be the sufficient condition to qualify for the job. It is stated that Jammu and Kashmir Service Selection Board floated online open tenders vide e-NIT No. 01 of 2021 dated 15.01.2021, e-NIT No. 05 of 2021 dated 30.07.2021, e-NIT No. 12 of 2021 dated 22.11.2021, however, the response to the online bidding process despite repeated attempts, was not as enthusiastic as was expected, for unknown reasons and consequently, the respondents could not finalize/empanel examination agency till December, 2021. Subsequently, once again a fresh online tender was floated vide e-NIT No. 13 of 2021 dated 07.12.2021, in which the petitioner was found to be the L1 bidder. The meeting was held with the petitioner agency on 23.12.2021 and petitioner was requested to schedule demo presentation 8 WP(C) No. 404/2022 with regard to conduct of end to end examination activities in person followed by an email dated 24.12.2021. The same was acceded to by the petitioner vide email dated 27.12.2021. However, no such demo/examination manual was conducted/shared by the petitioner with the respondents. The petitioner was again requested vide email dated 07.02.2022 to schedule a demo presentation with regard to end to end OMR activities on 10.02.2022 by the representatives of the petitioner. It was observed that the petitioner had deputed a junior level functionary for the said assignment who did not seem to be well acquainted with various examination activities with particularly the methodology and procedures to be employed for content designing and secure handling. Moreover, the representative of the petitioner agency also could not satisfy the respondents about its expertise and professional competence/caliber to conduct examination of such a large scale, spread across far flung areas of 20 districts in a Union Territory like Jammu and Kashmir which is characterized by inhospitable terrain and topography, harsh weather conditions and many other challenges.
9. It is further stated in the objections that there was inability on the part of the petitioner to generate confidence about its professionalism and capability during the demo presentation and its failure to satisfactorily explain critical aspects, i.e. methodology and protocols that will be adopted for maintaining secrecy and confidentiality during the content designing, printing, packing and transportation of examination material, except for making certain vague statements. The petitioner could not satisfactorily reply about the organizational structure and hierarchy of 9 WP(C) No. 404/2022 functionaries, including their exact number, on the rolls of the agency at present. All this has created a void between the respondents and the petitioner. The respondents being the functionaries of a reputed selection body, are duty bound to exercise due diligence, being custodian of the trust of lakhs of aspirants of the Union Territory of Jammu and Kashmir and tie all loose ends and leave nothing to chance, for examination cannot be allowed to be compromised merely for the fact that the petitioner has figured as L1 bidder in the bidding process. It is a solemn duty cast upon the respondent-Board to take all possible steps not only for ensuring completion of all ongoing selection process smoothly and transparently, but also to conclude them in a speedy and transparent manner. The delay in recruitment process was going to further aggravate stress and anxiety amongst aspirants and thus adding to their woes. The Jammu and Kashmir Services Selection Board cannot put a premium on incompetence and non professional conduct of the petitioner agency by delaying examinations those have been scheduled much earlier, thus wasting precious time and hard work of the candidates preparing for these examinations. It is further stated that the COVID-19 pandemic has already caused delay in the activities of the Jammu and Kashmir Service Selection Board due to imposition of lockdown, restrictions and social distancing norms during the past two years and it would not be morally and legally tenable to allow further delays in conducting the examinations.
10. The respondents have placed reliance upon Clause 9 of e-NIT relating to general information and terms and conditions and further that the petitioner was under obligation to retain one copy of Letter of Intent by 10 WP(C) No. 404/2022 inscribing the letter with words "Accepted Unconditionally", under the signatures of the authorized signatory of the petitioner to the answering respondents which the petitioner has failed to do so. The respondents have also stated that the Letter of Intent has no binding effect unless it is culminated into a contract.
11. The petitioner has filed a supplementary affidavit in which the petitioner has given the details of the work executed by the petitioner and also of its office bearers. It is also stated that the petitioner vide email dated 07.03.2022 has requested the respondents to assign the further work as per LOI but till date the respondents have not responded to the same and also the respondents have failed to disclose the name of the service provider executing the work as mentioned in Letter of Intent on 28.12.2021. The petitioner has referred to various clauses of the tender those demonstrate the criteria that determine the eligibility criteria as well as technical evaluation criteria. It is also stated that the petitioner has never been intimated by the respondents what they have alleged against the petitioner in the objections and rather the petitioner has acted bona fide in accordance with the terms and conditions of Letter of Intent. It is also stated that prior to the tender in question also, tender was floated and the petitioner emerged as L1 bidder but the respondents cancelled the said tender for the reasons best known to them. It is also stated that once the respondents has accepted the proposal of the petitioner, the termination of the contract can be only in accordance with Clause 9.9 of the Tender. It is also stated that on 03.01.2022 the representative of the petitioner being Managing Director and other officials of the petitioner visited the office of 11 WP(C) No. 404/2022 respondent No. 2 and conducted the demo presentation with regard to end to end examination activities. It is also stated in the supplementary affidavit that the allegations leveled by the respondents that the petitioner- company had deputed a junior level functionary, who could not satisfactorily conduct the demo/presentation are false, rather the Managing Director also visited the office of the respondents on 11.02.2022 after successful demonstration and discussed with the representatives of the respondents for further course of action.
12. Mr. R. K. Gupta, learned senior counsel appearing for the petitioner has vehemently argued that there is a concluded contract between the parties, particularly when the petitioner has acted in pursuance to the Letter of Intent dated 28.12.2021 and as per the instructions of the respondents. He further submitted that the respondents without any notice to the petitioner has infact terminated the contract between the parties particularly when the petitioner had made huge investment for the purpose of conducting the examination and rather the petitioner was legitimately expecting that the petitioner would be assigned the work for conducting OMR examination but the respondents by issuing the notification dated 23.02.2022 for down loading the admit cards have acted in an arbitrary manner. Mr. Gupta has placed reliance upon the judgments of the Apex Court in State of Utter Pradesh v Sudhir Kumar Singh, AIR 2020 SC 5215, Zonal Manager, Central Bank of India v Devi Spark Limited and others, Manu/SC/0542/2010, Secretary Kananore, District Muslim Education Association v State of Kerala, Manu SC 0354/2010, Karnataka State Forest Industries Corporation v Indian Blocks, Manu SC 4771/2018 12 WP(C) No. 404/2022 and Satyapal Anand v State of Madhya Pradesh, Manu SC/0925/2015.
13. Mr. Amit Gupta, learned AAG appearing on behalf of the respondents has vehemently argued that the petitioner has miserably failed to satisfy the respondents with regard to its professionalism and certain critical aspects vis-a-vis methodology and protocol those will be adopted for maintaining secrecy and confidentiality during (designing, printing and delivery of QP and OMR) and the operation part as well. He further argued that as per Letter of Intent, the petitioner was under obligation to return one copy of the Letter of Intent by accepting it unconditionally and the petitioner has failed to do so. He further argued that there is no concluded contract between the parties and also as per the Letter of Intent, the contract was also required to be signed between the parties. He laid stress that the writ petition is not maintainable as the contract if any, has no statutory backing. He produced the requisite record as also placed reliance upon the judgments of the Apex Court in the Silppy Construction Contractors v Union of India and another, 2019(11) Scale 592 and Southern Eastern Coal Field Ltd. and others v M/s S Kumars Associates.
14. Heard and perused the record.
15. The following question arises for determination in the instant writ petition:
Whether there is a concluded contract between the parties notwithstanding the execution of formal contract and if it is so, whether the respondents have acted in an arbitrary and unfair manner?13 WP(C) No. 404/2022
16. Before appreciating the rival contention of the parties, it would be appropriate to take note of the relevant terms and conditions of the RFP.
17. The Clause Nos. 9.4 and 9.5 of RFP are reproduces as under:
" 9.4 Award of Contract After evaluation of all accepted proposals by the evaluation committee, a contract may be awarded to the successful Bidder whose proposal meets the requirements of this RFP i.e. the bid submitted by him is able to qualify technically as explained in this RFP and has the lowest value for the financial bid, hence providing the best value to the Government.
9.5 Signing of Contract The Bidder/Bidders shall be required to enter into a contract incorporating all agreements between the bidder and J&K SSB, including any agreements reached during the negotiation process, if any with the Authorized Representative/Committee, within ten (10) days of the award of the contract or within such extended period, as may be specified by the Authorized Representatives, J&K SSB. This contract shall be on the basis of this document, the bid of the bidder, the letter of intent and such other terms and conditions as may be determined by the authorized representative of J&K SSB to be necessary for the due performance of the work, as envisaged herein and in accordance with the Bid and the same acceptance thereof."
18. The contention of the petitioner is that once the Letter of Intent was issued in favour of the petitioner there was a concluded contract between the parties particularly when the petitioner had spent huge amount for the purpose of conducting the OMR examination. Clause 9.5 of RFP provides that the bidder shall be required to enter into a contract incorporating all agreements between the bidder and the respondents-Board and it includes any agreement reached during the negotiation process, if any, with the authorized representative/committee within 10 days of the award of the contract. Further the contract has to be on the basis of RFP, the bid of the bidder, Letter of Intent and such other terms and conditions as may be determined by the authorized representative of the respondents-Board to be necessary for the due performance of the work and as envisaged in the 14 WP(C) No. 404/2022 RFP and in accordance with the bid and the acceptance thereof. In the contractual/tender matters, the parties often enter into negotiations and during negotiations the parties may not only negotiate the commercial issues but even the employer can ask for its satisfaction with regard to the capability, capacity of the bidder to execute the work proposed to be offered, if the same is technical in nature or to know the mode of execution of the same. No doubt the petitioner has spent some money for the furtherance of the performance of work but from the email dated 24.12.2021 intimating the petitioner about the petitioner being L1 bidder, it also transpires that demo presentation with regard to end to end examination activities was planned simultaneously for 03.01.2022. Thereafter, vide email dated 27.12.2021 also the petitioner stated that its representative with the Managing Director will schedule the demo presentation on 03.01.2022(as per the appointment of the department) with regard to end to end examination activities and planning process required. The respondents vide email dated 28.12.2021 confirmed the schedule of the demo presentation on 03.01.2022. Thereafter, till 07.02.2022 there was no exchange of any email with regard to the conduct of demo presentation till 07.02.2022 when the respondents wrote a following mail to the petitioner:
"With reference to the trailing mail, a demo presentation with regard to end to end examination activities as agreed earlier has not been conducted as yet.
Accordingly, I am directed to convey, that learned Chairman, JKSSB has desired to schedule demo/presentation with regard to end to end conduct of OMR examination on 10.02.2022 in his office chamber at sector-3 Channi Himmat Jammu positively."15 WP(C) No. 404/2022
19. Though it is contended by the petitioner in the writ petition that the demo presentation was made on 03.01.2022 nonetheless, the email dated 08.02.2022 sent by the petitioner in response to email dated 07.02.2022 of the respondents as mentioned above, reads as under:
"We Acknowledge the mail and our Expert team will be there by 2:30 PM on 10th February 2022 for the detailed presentation with regard to end to end conduct of OMR examination for JKSSB."
20. In this email it was no where stated by the petitioner that the demo presentation was conducted on 03.01.2022, thus giving credence to the version of the respondents that no demo presentation was conducted on 03.01.2022.
21. Be that as it may, the petitioner conducted the presentation on 10.02.2022 regarding which certain observations were made by the respondents and they are reproduced as under:
"Subject: Minutes of the demo presentation held on 10.02.2022.
A demo presentation with regard to end-to-end conduct of the OMR Examination activities was conducted on 10.02.2022 in the central office JKSSB, Jammu by Mr. Kuldeep representative from M/s N. D. Info Systems Pvt. Ltd.
1. Mr. Khalid Jahangir, JKAS Chairman, JKSSB.
2. Mr. Shafiq Chak, JKAS, Member, JKSSB
3. Mr. Pritam Lal Atri, JKAS, Hon‟ble Member, JKSSB
4. Ms. Harvinder Kour, JKAS, Hon‟ble Member, JKSSB
5. Mr. Ashok Kumar, JKAS Controller of Examination, JKSSB
6. Mr. Jang Bhadur, Special Secretary to Law, JKSSB
7. Mr. Sachin Jamwal, JKAS Secretary, JKSSB
8. Mr. Kashif Altaf Bhat, JKAS, Under Secretary The demo presentation was conducted by Mr. Kuldeep representative from M/s N. D. Info Systems Pvt. Ltd. It was observed that the M/s N. D. Info Systems Pvt. Ltd. had deputed a junior level functionary for making demo presentation and his credentials were not communicated to the Board, before the said demo presentation by M/s N. D. Info Systems Pvt. Ltd.
At the outset, Mr. Kuldeep was asked to explain in detail step wise procedure of the pre and post activities of OMR examinations, i.e., 16 WP(C) No. 404/2022 setting up of base version of paper, printing of question paper sets, fool proof packing and storage of question papers, transportation of sensitive material, training and deployment of manpower, etc. Mr. Kuldeep could not explain in detail the end-to-end steps/activities related to examination processes that constitute core and inseparable part of whole examination process, except for making certain vague and sketchy statements. The PPT presentation was sketchy and incomplete, with grossly inadequate details about various activities like organizational structure and hierarchy of functionaries with their names and number working on the roll of the company, previous examinations conducted, protocols to be followed during content designing, printing and packing of examination material, safe and secure transportation of examination material to the Headquarter of the Board, etc. The demo presented failed to explain about the criteria to be adopted for hiring the manpower to be deployed for conduct of examination.
The representative of M/s N. D. Info Systems Pvt. Ltd. during demo presentation expressed complete ignorance about procedure/protocols adopted for handling of confidential material and repeatedly stressed that the „confidential aspect‟ is dealt by some other functionary who will come subsequently for making the presentation. His knowledge about terrain and topography of the Union Territory was also found grossly deficient.
It was noted that after having wasted considerable time of the Board, which is engaged in "Accelerated Recruitment Drive", M/s N. D. Info Systems Pvt. Ltd. has demonstrated glaring non seriousness to satisfy the Board about the procedures/protocols that shall be employed for fair and transparent conduct of examination.
The entity was unable to generate confidence about its professionalism and capability, during the demo presentation and failed to satisfactorily explain critical aspect, i.e, procedure and protocols that will be adopted for maintaining secrecy and confidentiality during content designing, printing, packing and transportation of examination material, which remains the core of any examination process.
The representative of M/s N. D. Info Systems Pvt. Ltd. was asked to submit a copy of the PPT to the Board by the Chairman, during the demo presentation which he did not and evaded by leaving the office premises without intimating any officer.
In view of the afore-stated facts and circumstances, the Board observed that before M/s N. D. Info Systems Pvt. Ltd. is able to fully satisfy the Board about its professional competence and capability to handle large scale end-to-end examinations being conducted by the JKSSB, it was to be expedient to go ahead with the conduct of OMR examination for which the schedule have already been issued, keeping in view the larger interest of the candidates, sensitivity and credibility of the Board, by assigning the said job to the examination agency who has previously been associated with the Board, and have already 17 WP(C) No. 404/2022 conducted successfully OMR examination of Class IV and Accounts Assistant (Panchayat) of more than 5.00 lacs, for the JKSSB, as an interim measure.
Sd/-
Controller of Examinations
No: SSB/COE/OMR/2022/1370-72 Dated 18.07.2022"
22. The issues raised by the respondents in the minutes of the demo presentation held on 10.02.2022 were sought to be responded by the petitioner as is evident from the email dated 12.02.2022, which is reproduced as under:
"This is regarding the subject cited above and the meeting held at JKSSB, Jammu with Chairman sir and our MD Mr. Niladri Das. We would like to request you to kindly provide us the date and time for the meeting preferably on 17th or 18th of February, 2022, wherein we can demonstrate you the detailed blueprint of functionality involved in confidential part (designing, printing and delivery of QP and OMR) and the operations part as well.
Sir, We again want to apprise you with the fact that we are very pleased and thankful to the department to provide us the opportunity to conduct the OMR based examination and we ate completely prepared and well equipped to conduct the same within the timelines as provided by the department in the mail earlier. We have procured/hired each and every material/manpower/tool necessary for the successful conduction of Accounts Assistant examination to be held on 6th March 2022 along with other examinations for those the data was shared by the department."
23. From the contents of the e-mail mentioned above of the petitioners, it is evident there were certain issues with regard to confidentiality and operation part for conducting the examination and the respondents were not satisfied with the presentation of the petitioner.
24. The contention of the petitioner is that there was concluded contract between the parties. In South Eastern Coalfields Ltd. v. S. Kumar's Associates AKM (JV), (2021) 9 SCC 166, Supreme Court has held as under:
"22. We would like to state the issue whether a concluded contract had been arrived at inter se the parties is in turn dependent on the 18 WP(C) No. 404/2022 terms and conditions of the NIT, the LoI and the conduct of the parties. The judicial views before us leave little doubt over the proposition that an LoI merely indicates a party's intention to enter into a contract with the other party in future. [Dresser Rand S.A. v. BindalAgro Chem Ltd., (2006) 1 SCC 751; Rajasthan Coop. Dairy Federation Ltd. v. Maha Laxmi Mingrate Mktg. Service (P) Ltd., (1996) 10 SCC 405] No binding relationship between the parties at this stage emerges and the totality of the circumstances have to be considered in each case. It is no doubt possible to construe a letter of intent as a binding contract if such an intention is evident from its terms. But then the intention to do so must be clear and unambiguous as it takes a deviation from how normally a letter of intent has to be understood. This Court did consider in Dresser Rand S.A. case [Dresser Rand S.A. v. Bindal Agro Chem Ltd., (2006) 1 SCC 751] that there are cases where a detailed contract is drawn up later on account of anxiety to start work on an urgent basis. In that case it was clearly stated that the contract will come into force upon receipt of letter by the supplier, and yet on an holistic analysis--it was held that the LoI could not be interpreted as a work order."
25. Thus, whether there is a concluded contract between the parties or not is dependent upon not only the terms and conditions of the NIT and Letter of Intent but also upon the conduct of the parties. No doubt the petitioner has been acting as per instructions of the respondents and the petitioner might have spent huge amount as well but the fact remains that the respondents right from the very beginning had been insisting upon the holding of the demo presentation and when the same was conducted on 10.02.2022, the petitioner‟s representative could not satisfy the respondents. Thus this court has no hesitation to hold that there was no concluded contract between the parties.
26. In view of above, no fault can be found with the respondents in getting the OMR examination conducted through some other agency as they were left with no other alternative but to get the OMR examination conducted through any other agency.
27. In Montecarlo Ltd. v. NTPC, AIR 2016 SC 4946, it was held that where a decision is taken that is manifestly in consonance with the language of 19 WP(C) No. 404/2022 the tender document or subserves the purpose for which the tender is floated, the court should follow the principle of restraint. Technical evaluation or comparison by the court would be impermissible. The principle that is applied to scan and understand an ordinary instrument relatable to contract in other spheres has to be treated differently than interpreting and appreciating tender documents relating to technical works and projects requiring special skills. The owner should be allowed to carry out the purpose and there has to be allowance of free play in the joints.
28. In Municipal Corpn., Ujjain v. BVG (India) Ltd. [Municipal Corpn., Ujjain v. BVG (India) Ltd., (2018) 5 SCC 462, it was held that the authority concerned is in the best position to find out the best person or the best quotation depending on the work to be entrusted under the contract. The court cannot compel the authority to choose such undeserving person/company to carry out the work. Poor quality of work or goods can lead to tremendous public hardship and substantial financial outlay either in correcting mistakes or in rectifying defects or even at times in redoing the entire work.
29. In Silppi Constructions Contractors v. Union of India, (2020) 16 SCC 489, the Supreme Court has held as under:
"19. This Court being the guardian of fundamental rights is duty- bound to interfere when there is arbitrariness, irrationality, mala fides and bias. However, this Court in all the aforesaid decisions has cautioned time and again that courts should exercise a lot of restraint while exercising their powers of judicial review in contractual or commercial matters. This Court is normally loathe to interfere in contractual matters unless a clear-cut case of arbitrariness or mala fides or bias or irrationality is made out. One must remember that today many public sector undertakings compete with the private industry. The contracts entered into between private parties are not subject to scrutiny under writ jurisdiction. No doubt, the bodies which 20 WP(C) No. 404/2022 are State within the meaning of Article 12 of the Constitution are bound to act fairly and are amenable to the writ jurisdiction of superior courts but this discretionary power must be exercised with a great deal of restraint and caution. The courts must realise their limitations and the havoc which needless interference in commercial matters can cause. In contracts involving technical issues the courts should be even more reluctant because most of us in Judges' robes do not have the necessary expertise to adjudicate upon technical issues beyond our domain. As laid down in the judgments cited above the courts should not use a magnifying glass while scanning the tenders and make every small mistake appear like a big blunder. In fact, the courts must give "fair play in the joints" to the government and public sector undertakings in matters of contract. Courts must also not interfere where such interference will cause unnecessary loss to the public exchequer.
20. The essence of the law laid down in the judgments referred to above is the exercise of restraint and caution; the need for overwhelming public interest to justify judicial intervention in matters of contract involving the State instrumentalities; the courts should give way to the opinion of the experts unless the decision is totally arbitrary or unreasonable; the court does not sit like a court of appeal over the appropriate authority; the court must realise that the authority floating the tender is the best judge of its requirements and, therefore, the court's interference should be minimal. The authority which floats the contract or tender, and has authored the tender documents is the best judge as to how the documents have to be interpreted. If two interpretations are possible then the interpretation of the author must be accepted. The courts will only interfere to prevent arbitrariness, irrationality, bias, mala fides or perversity. With this approach in mind we shall deal with the present case."
30. So far as instant case is concerned, the nature of work requires professional competence and secrecy as the future of lacs of aspirants would be dependent upon the examination sought to be conducted by the respondents through the petitioner. The respondents are well within their rights to satisfy themselves with the competence as well as efficiency of the petitioner to conduct the said examination and it is the sole prerogative of the respondents to determine the professional competence and 21 WP(C) No. 404/2022 efficiency of the petitioner and not of this Court. So far as petitioner is concerned, the interest of the petitioner is mainly commercial but the respondents have acted in public interest, as such, this Court does not find that the respondents have acted in an unfair and arbitrary manner by issuing the notification impugned and also the doors have not been closed by the respondents for the petitioner, particularly when in the minutes dated 18.02.2022, it has been observed that the petitioner can still satisfy the Board about its professional competence and capabilities to handle large scale examination. Needless to say that public interest must prevail over the commercial interest of the bidder. Also, no directions can be issued at this stage to the respondents to conduct the OMR examinations through the petitioner in terms of LOI issued by the respondents in favour of the petitioner.
31. The judgments relied upon by the petitioner are not applicable in the present facts and circumstances of the case.
32. Viewed thus, there is no merit in the present petition and as such the same is dismissed.
(Rajnesh Oswal) Judge JAMMU 27.05.2022 Rakesh Whether the order is speaking: Yes/No Whether the order is reportable: Yes/No