Madhya Pradesh High Court
Glodyne Technoserve Ltd vs The State Of Madhya Pradesh on 29 July, 2010
(1)
HIGH COURT OF MADHYA PRADESH : JABALPUR
W.P. No. 7348/2010
Glodyne Technoserve Ltd.
Vs.
State of M.P. and others
DB : Hon. Arun Mishra & Hon. S.C. Sinho, JJ
Shri S. Ganesh, Sr. Counsel, Shri R.N. Singh, Sr. Counsel,
Smt. Shobha Menon, Sr. Counsel, Shri Vikram Mehta, Shri Amal
Pushp Shroti, Shri Vikas Mehta and Shri N. Singh, counsel for
petitioner.
Shri Ravindra Shrivastava, Sr. Counsel, Shri Samdarshi
Tiwari, GA and Shri Vinay Jain, counsel for respondents No. 1
and 2.
Shri Atul Sreedharan, Counsel for respondent No. 3.
Shri Brian D'Silva, Sr. Counsel, Shri Kishore Shrivastava,
Sr. Counsel, Shri Parag Chaturvedi, Shri Pancham Surana and
Shri Suryanarayana Singh, Counsel for intervenor.
Order reserved on : 8.7.2010
Order passed on : 29.7.2010
ORDER
As Per : Arun Mishra, J.
1. Petitioner Glodyne Technoserve Ltd. has prayed for quashment of letter dated 29.4.2010 received by the petitioner on 27.5.2010 rejecting its bid on the ground of not qualifying the eligibility criteria.
2. On 12.12.2009 the State Government through Department of Food, Civil Supplies and Consumer Protection (2) (FCS) issued a Request for Proposal (RFP) for appointment of Vendor for District Mechanism for Public Distribution System (PDS). The last date of submission of bid was 7.1.2010 which was extended till 17.2.2010.
3. Section 3.1 of RFP provides that the bidder/one partner in the consortium must possess a valid certification in the Capability Maturity Model (CMM) Level 3 or above. The bidder/all the partners of consortium (in case of Consortium) should have an active (valid at least till June 2010) ISO 9001:2000 certification at the time of submission of the bid. Section 7.1 of RFP provides for the bidders check list. On 18.1.2010, first corrigendum to RFP was issued and pre qualification criteria was changed to the aforesaid effect. On 5.2.2010, second corrigendum was issued. On 17.2.2010 the petitioner submitted his bid. In all six bids were submitted namely; HCL Infosystems (HCL), Tata Consultancy Services (TCS) and ITC Infotech Ltd. (ITC), Aditya Birla, UTI Techno Service and Glodyne. On the same date, the bids were opened in the presence of authorized representatives of the bidders. Representative of the petitioner Mr. Sharad Rege was also present.
4. Respondent No. 3 Wipro Consultancy Services had been appointed as process consultant by respondents No. 1 and 2/ State for the said tender. On 27.3.2010 Mails (P-6) were sent to all the bidders for technical presentation on 7.4.2010 with a stipulation that the scheduling/call for this (3) presentation does not imply in any way that your bid has qualified at any stage. The petitioner was asked to make technical presentation on 7.4.2010 at 2.00 PM. On 29.3.2010, petitioner confirmed that its representatives would make the technical presentation on 7.4.2010. On 30.3.2010 it was intimated that the opening of the financial bid will be made on 9.4.2010. On 3.4.2010, it was intimated by a letter written by respondents No. 1 and 2 to the petitioner that the scheduled technical presentation and opening of financial bid, as mentioned in letters dated 27.3.2010 and 30.3.2010, has been postponed till further notice. On 9.4.2010, a meeting of committee was convened to consider the eligibility criteria and decision was taken to reject the petitioner's bid on the ground of non compliance of the eligibility criteria. The committee recorded that the clarification be sought from three consortium namely: HCL, TCS and ITC. The bids of two other bidders namely UTI and TSL & AB Minacs were non complaint. On 29.4.2010, final decision with respect to the eligibility of bidders was taken. The decision with respect to the petitioner, which was taken on 9.4.2010, was reiterated. The bids of 2 others were also rejected on ground of eligibility and thereafter on 4.5.2010 technical evaluation was made in which the bids of three bidders were evaluated. On 11.5.2010, final bids of two bidders were opened namely; (1) the consortium led by HCL and (2) the consortium led by TCS. On evaluation the bid of (4) the consortium led by HCL was found as lowest. On 18.5.2010, a caveat petition was filed along with letter of rejection. The letter of rejection dated 29.4.2010 was annexed with the caveat petition which was received by the petitioner on 27.5.2010. On 19.5.2010, the bid was placed before Cabinet of the Government of Madhya Pradesh, which approved the proposal for appointment of Vendor and the lowest bid found. On 20.5.2010, the lowest bidder was called for the meeting. On 31.5.2010, second meeting took place to give final shape and workout the implementation of the program.
5. It is submitted that the petitioner company is a public limited company and listed Company having an annual turn over of almost Rs. 750 Crores. It has been carrying out large scale infrastructure projects for various State Governments in India including Maharashtra and Bihar where bio-metrics of millions of people are to be collected to ensure identification of the targeted population for whom various Government Welfare Schemes have been framed such as National Rural Employment Guarantee Scheme. The petitioner company has been holding the ISO-9001:2000 Certificate for the highest quality standards in the services rendered by it. The petitioner company was selected to carry out a Pilot Project using the latest available information technology enabled methods and devices. The petitioner carried out a Pilot Project in respect of 10 shops in the State (5) Government Public Distribution System in Bhopal. The Project was successful and as a result, the State Government decided to implement a large scale project for reform of the Public Distribution System throughout the State. For this purpose, a tender was issued and the petitioner submitted its bid. Due to mistake the petitioner enclosed ISO-9001:2000 quality certificate which had expired 18.11.2009. However, it was renewed by the Certifying Agency QA International on 3.12.2009 and the same was valid up to 18.11.2010. Inadvertently, the earlier ISO-9001:2000 certificate which was valid up to 18th November, 2009 was submitted along with the bid instead of the latest certificate, which was valid upto November, 2010. It was an inadvertent clerical error because at the time of submission of bid on 17.2.2010, the petitioner was in possession of the renewed and extended Quality Certificate which had been issued on 3.12.2009 and was valid up to 18.11.2010.
6. The petitioner has further submitted that the aforesaid inadvertence is not at all fatal, the petitioner still fulfilled the eligibility criteria of the tender. The tender conditions permit either ISO certificate or document of quality policy to be submitted along with the bid. The petitioner has submitted along with its bid the full details, documents of its quality policy and detailed procedures followed and implemented by (6) it for the purpose of ensuring rigorous maintenance of quality standards.
7. Respondent No. 3 Wipro Consultancy Services had been appointed as the Process Consultants of Respondents No. 1 and 2 in pursuance to a detailed written proposal form submitted by Wipro Consultancy Services to Respondents No. 1 and 2, which provided that Wipro Consultancy Services would frame and draft the tender document and would also participate in the entire selection process and would render all necessary aid and assistance to the State Government in that regard.
8. It is further averred that though the petitioner inadvertently had submitted the expired ISO-9001:2000 quality certificate not the latest one, nevertheless the petitioner's bid was not rejected. The petitioner was called for to make technical presentation of its bid before Technical Evaluation Committee on 7.4.2010 vide letter dated 27.3.2010. The tender document provides that the technical review would take place only of the proposals of those bidders who were found to have fulfilled the pre-qualification (eligibility criteria). Once the petitioner was called for technical presentation, it was clear that the petitioner fulfilled the pre-qualification criteria. The petitioner had confirmed that the technical presentation would be made on 7.4.2010. On 3.4.2010 the petitioner was informed that the scheduled technical presentation and opening of the (7) financial bid, has been postponed till further notice. The new dates would be intimated separately. Thereafter, on 9.4.2010 at about 2.15 PM before the meeting of the selection committee to consider the eligibility criteria held between 3 to 5 PM, Mr. Navin Prakash of Wipro Consultancy Services addressed an e-mail to the Certifying Agency QA International asking for details of ISO-9001:2000 Certificate issued to the petitioner. On 9.4.2010, the petitioner's bid was rejected on the ground of non compliance of the eligibility criteria. With respect to other bidders, whose eligibility had raised serious issues, only clarifications were sought by the Committee but their bids were not rejected. There was no mention of the minutes of said email sent by Mr. Navin Prakash of Wipro Consultancy Services on the same day an hour before the said meeting, to QA International seeking clarification on the status of the ISO Certificate of the petitioner. Mr. Navin Prakash has attended all the meetings of the selection committee numbering about 25-30 and has also signed the minutes of each of these meetings. In the minutes of meeting dated 31.5.2010, it was specifically mentioned that Mr. Navin Prakash may invite the bidder and may also enter into direct correspondence with him. Mr. Navin Prakash on behalf of Wipro Consultancy Services was associated at every stage as the Senior Consultant and involved in the entire selection process and was acting for and on behalf of the Selection Committee in (8) that regard, which has been made clear in the counter affidavit filed by respondents No. 1 and 2.
9. On 22.4.2010 QA International clarifying the position to Mr. Navin Prakash confirmed that petitioner's ISO-9001:2000 certificate was renewed in November, 2009 and the same was valid up to 18.11.2010. QA International also forwarded both the current and the previous certificates along with the said email. It is pertinent to mention here that after filing of the reply by Wipro Consultancy Services, the stand taken by the petitioner is that email was in fact received on 12.4.2010. The computer was wrongly running 10 days ahead. Communication dated 9.4.2010 of QA International also indicated that the computer of QA International was running 10 days ahead, thus in fact the communication was made by QA International on 12.4.2010. Petitioner has submitted that petitioner was not informed by respondents No. 1 and 2 about the rejection of its offer on 9.4.2010 or on 27.4.2010. The petitioner was still awaiting for fresh letter for making the technical presentation as apparent from its letter. On 27.5.2010 along with the caveat petition dated 18.5.2010, a copy of letter of rejection dated 29.4.2010 was received by the petitioner. The rejection letter dated 29.4.2010 was not dispatched to the petitioner for the reasons best known to respondents No. 1 and 2. Petitioner's technical bid was far superior to that of other bidders because the petitioner had most extensive (9) experience in carrying out the similar projects at a very large scale in other States such as Bihar, Maharashtra, etc. Ultimately, the writ petition was filed on 31.5.2010.
10. The petitioner has submitted that its bid could not have been rejected in view of various provisions of the tender document and also the fact that petitioner has submitted quality policy and the system to be followed, along with the tender document. The corrigendum issued does not in any way touch or modify Section 7.1.3 of RFP. The only relevant and material change made in the eligibility criteria was that the bidder/lead partners of Consortium (in case of Consortium) should have an active (valid at least till June 2010) ISO-9001:2000 certification at the time of submission of the bid. There is similar change made in respect of CMM certificate. It was not necessary for the petitioner to submit ISO-9001:2000 certificate along with the bid, if the petitioner had given the details of its quality policy along with the bid. It is also submitted that submitting of ISO certificate was not necessary along with the bid. The renewed quality certificate could have been made available at the time of signing of the contract. Even if certificate had not been submitted at the time of signing the contract, it lies at the discretion of the Department to award the work to L2 bidder, thus the submission of latest and up to date quality certificate along with the bid was not at all necessary. Thus, the petitioner's bid could not have been rejected on the (10) ground of eligibility i.e. the bid was not accompanied with ISO-9001:2000 certificate. Petitioner was called for technical evaluation on 7.4.2010 which indicated that its bid was not rejected due to non fulfillment of eligibility criteria. Decision dated 29.4.2010 is bad in law. Letters of rejection were issued to all the three parties on 29.4.2010, there is no explanation why the petitioner's bid was rejected twice on 9.4.2010 and than on 27.4.2010. The action of the respondents suffers with malafide.
11. Respondents No. 1 and 2 in the reply contended that first corrigendum to RFP was issued on 18.1.2010 by which Section 3.1 was amended. It was necessary for eligibility that the bidder/lead partners of Consortium (in case of Consortium) should have an active (valid at least till June 2010) ISO-9001:2000 certification at the time of submission of the bid. Mails (P-6) dated 27.3.2010 are of no avail. Though the petitioner was called for technical presentation, but there was a stipulation to the effect that the scheduling/ call for this presentation does not imply in any way that your bid has qualified at any stage. The technical presentation was ultimately cancelled and eligibility criteria was examined on 9.4.2010 and minutes of selection committee recorded on the said date indicate that petitioner had only submitted ISO-9001:2000 certificate, which had expired 18th November, 2009 and was not valid as against the requirement of it being active and valid at least till June (11) 2010. The committee accordingly decided that the bid of the petitioner is liable to be rejected and recorded the minutes to the said effect. However, clarification was sought from three other consortium as such the matter was again considered with respect to others also and the decision with respect to the petitioner was again recorded. Though Mr. Navin Prakash had sent an e-mail to QA International and QA International sent the reply on 22.4.2010, however, no valid certificate as required under the conditions of the tender was submitted, thus the petitioner has failed to meet the eligibility criteria.
12. Respondent No. 3 Wipro Consultancy Services has filed a reply contending that the ISO certificate filed by the petitioner showed the date of issuance as 4.3.2009 and the expiry date was shown as 18.11.2009. Mr. Navin Prakash felt that the period of validity of the ISO certificate submitted by the petitioner was 8 months which was unusual as against the normal validity of period of 3 years, therefore, he thought it necessary to ascertain the validity and authenticity of the said document. He addressed an electronic mail (P-9) to the certifying agency on 9.4.2010. The certifying agency QA International sent its reply (P-10) dated April 12th, 2010 (incorrectly recorded in the computer as April 22nd, 2010). A scanned copy of the certificate was issued by it to the petitioner by e-mail (P-11) which showed that the bidder had been issued a renewed certificate that (12) was valid till 18.11.2010. Certificate was forwarded by Mr. Navin Prakash to respondent No. 2 vide e-mail dated 12.4.2010. It is further contended that decision to accept or reject the bid lay with respondents No. 1 and 2 based on the documents submitted by the petitioner at the stage of submission of bid and the answering respondent had no role to play in respect of such a decision.
13. Respondent No. 2 Shri Ajit Kesri had filed an affidavit. He has submitted that he was on leave from 10.4.2010 to 21.4.2010, he was not holding the charge of Commissioner, Department of Food, Civil Supplies and Consumer Protection, Govt. of M.P. for the aforesaid period. The said e-mail was neither sent to official e-mail address of Director Food, Govt. of M.P. i.e. [email protected] nor to each committee member and appears to have been sent to on personal e-mail address of Shri Ajit Kesri as information. The bid condition did not permit to take on record bid documents of the petitioner or any communication sent through e-mail, not submitted by an authorized representative of the petitioner and documents which were not verified and authenticated under the signatures of the authorized representative, particularly when the last date of the bid had expired on 17.2.2010. The committee had already evaluated the bid of the petitioner on 9.4.2010 and any communication in the form of e-mail was irrelevant and could not have been made part of record. Mr. Navin Prakash (13) was not directed to make any communication either with the petitioner or its certifying agency QA International.
14. Shri S. Ganesh, Sr. Counsel along with Shri R.N. Singh, Sr. Counsel, Smt. Shobha Menon, Sr. Counsel, Shri Vikram Mehta, Shri Amal Pushp Shroti, Shri Vikas Mehta and Shri N. Singh, counsel for petitioner, has submitted that as per terms and conditions of the tender document, petitioner fulfilled the eligibility criteria. The check list to the documents which was required to be submitted included that either quality certification ISO 9001:2000 has to be filed or documentation of quality policy. Thus the bidder has a choice of submitting either ISO certificate or its quality policy. The petitioner has filed the documents of its quality policy along with the tender, thus its tender could not have been rejected. Amendment made by corrigendum to the bid documents applies to section 7.1.1 of RFP, it does not in any way touch or modify section 7.1.3. The corrigendum brought about the amendment to an extremely limited extent as indicated in Annexure-1 of the corrigendum to the qualification criteria. The only relevant material change made to the qualification criteria is that the ISO 9001:2000 certificate submitted should be of the lead partner of the bidder, if the bidder is a consortium. There is also a similar change made in respect of the CMM Certificate which is not material for the purpose of the present petition. It was also submitted that submission of ISO certificate is not at all an (14) essential condition and is merely directory as Section 7.1 specifically provides that where the certificate is due for renewal it is not necessary for the bidder to submit the ISO certificate at all along with the bid and all that is required is that the renewed quality certificate should be made available at the time of signing of the contract. Even the production of certificate at the time of signing of the contract is not mandatory as the committee has to take into consideration whether to award the work to L2 bidder. It was further submitted by the petitioner's counsel that only pre-qualified bidders could be asked to make the technical presentation of their bid. Communication dated 27.3.2010 was sent to the petitioner to make technical presentation on 7.4.2010, thus it is apparent that petitioner was found eligible to make the technical presentation. It was not lawful for the committee to reverse/review its earlier decision. Decision dated 29.4.2010 is vitiated with malafide. The bid is alleged to be rejected on 9.4.2010 whereas in respect of some other bids, only clarifications were sought. There is no explanation why the petitioner's bid has been rejected twice; first on 9.4.2010 and then on 27.4.2010. The minutes dated 9.4.2010 appear to be fabricated. In the aforesaid minutes, there was no mention of the e-mail sent by Mr. Navin Prakash to QA International one hour before the commencement of the said meeting. There is no explanation why the intimation of purported decision dated 9.4.2010 was not sent to the (15) petitioner. Even the intimation of the decision dated 27.4.2010 vide letter dated 29.4.2010 was served on the petitioner on 27.5.2010 along with caveat dated 18.5.2010. It appears that respondents were bent upon to give contract to HCL that is why timely intimation was not given to the petitioner about rejection of its offer. It is also submitted that ISO certificate was sent by QA International on 22.4.2010, which was received on 12.4.2010. The computer of QA International was advanced by 10 days as apparent from communication which was received on 9.4.2010 and the communication which was received on 12.4.2010. Thus the ISO certificate was available with respondent No. 3 Wipro Consultancy Services appointed by respondents No. 1 and 2 as process consultants. The said certificate was also sent by Mr. Navin Prakash to respondent No. 2 on 12.4.2010. Thus the final decision dated 27.4.2010 stands vitiated as valid certificate was available with respondents No. 1 and 2. Learned Sr. Counsel has further submitted that in case bid of the petitioner would have been accepted, State would have been benefited by approximately 200 Crores as the bid of the petitioner was much lower than the bid of HCL which has been accepted. Thus the acceptance of the bid of HCL is against the public interest.
15. Shri Shri Ravindra Shrivastava, Sr. Counsel with Shri Samdarshi Tiwari, GA and Shri Vinay Jain, counsel for respondents No. 1 and 2 has submitted that the last date of (16) submission of bid was 17.2.2010. It was an essential condition of the tender document that active ISO 9001:2000 certification be submitted at the time of submission of bid. The petitioner has filed certificate, the validity of which stood expired on 18.11.2009. The said defect was fatal and it could not have been cured. Though all the bidders were asked for making technical presentation on 7.4.2010 but communication dated 27.3.2010 contained a stipulation that presentation does not imply in any way that your bid has qualified at any stage and subsequently the technical presentation was cancelled and thereafter the committee considered the eligibility criteria on 9.4.2010 and decided to reject the bid submitted by the petitioner on the ground that petitioner has submitted the ISO certificate which was valid up to 18.11.2009. The committee decided and recorded that the bid of the petitioner is not responsive and should be rejected. The clarification was sought from three consortium i.e. HCL, TCS and ITC. No decision was taken to seek any clarification from the petitioner. Sending of e-mail by Mr. Navin Prakash was to verify the validity of the certificate which was for 8 months. He was not asked by the committee to do so as apparent from minutes dated 9.4.2010. On 27.4.2010 the previous decision was confirmed and it was also decided to cancel the bid of two other incumbents on 27.4.2010. The decision with respect to the petitioner remained the same, thereafter three tenderers were called (17) for technical evaluation i.e. TCS, HCL and ITC and finally on 11.5.2010 after technical round was over, financial bids were opened of the consortium led by HCL and the consortium led by TCS. The petitioner was rightly disqualified at pre-qualification stage as per section 3.1 read with section 4.8 and section 4.11.6. The aforesaid being essential condition, no deviation or relaxation was permissible. Technical evaluation as per section 5.8 could have been made for only those bidders who fulfilled the pre- qualification criteria. All the documents/certificates are required to be duly signed by authorised representative of the bidder/consortium. It is necessary as per Section 5.7 that authorised person of the bidder represents the bidder in all its dealings related to the project. It was not permissible to add, substitute or modify the bid. It could not have been said to be a case of clerical error, such a mistake cannot be corrected. The petitioner's eligibility was duly considered. Mr. Navin Prakash was not authorised to seek any clarification. Clarification could only be sought by the committee. E-mails are discrepant and unworthy of use. The petitioner has submitted the check list as per section 7.1.1. Petitioner has not stated that he was relying upon and submitting quality policy document. Pre-qualification bid does not make reference to alleged quality policy document nor in letter dated 12.5.2010 petitioner relied upon the quality policy document. The condition of quality policy (18) document stood omitted and substituted by ISO certificate and CMM certificate, thus quality policy, even if submitted, could not have been relied upon for determining the eligibility. Scope of judicial review in such matters is limited and no public interest is involved.
16. Shri Atul Sreedharan, Counsel for respondent No. 3 has submitted that the decision was taken by respondents No. 1 and 2 with respect to eligibility criteria as Mr. Navin Prakash, representative of Wipro Consultancy Services doubted the authenticity of the certificate as its validity was for 8 months which was less than the usual period of 3 years. Mr. Navin Prakash had sent an e-mail to QA International and he received reply on 12.4.2010 which he had forwarded to respondent No. 2 Shri Ajit Kesri.
17. Counsel for intervener HCL has supported the stand of respondents No. 1 and 2.
18. It is admitted fact that petitioner Glodyne Technoserve Limited did not submit valid ISO 9001:2000 certificate on 17.2.2010 along with the bid document. Section 3 of the tender document deals with the Requirements (Technical, Operational, Functional and others). Section 3.1 provides for pre-qualification (eligibility criteria). Relevant portion is quoted below :-
3.1 : PRE-QUALIFICATION (ELIGIBILITY) CRITERIONS This section gives the details of the evaluation criterion for the pre-qualification stage as well as the details which the bidder should provide as part of the bid document.(19)
The bidder should comply with the following eligibility criteria for Pre-qualification:
S. No. Criteria Documents to be
submitted as qualifying
documents
1. .......... .....
2. ......... .....
3. The Bidder/ one partner in CMM certificate and ISO the consortium must possess 9001:2000 certificate. a valid Certification in the Capability Maturity Model (CMM Level 3 or above).
The Bidder/all the partners of consortium (in case of Consortium) should have an active (valid at least till June 2010) ISO 9001-2000 certification at the time of submission of the bid.
19. The aforesaid corrigendum changed the following criteria contained in Section 7.1.1 which was to the following effect :-
7.1 BIDDER RESPONSE FORM 7.1.1 BIDDER'S CHECK LIST S. Criteria Details Supporting Yes/ No. Documents No/ NA
9. Quality The Company/one of Copy of Quality Certification the partners of certificate/ consortium (in case documentation of Consortium) of Quality Policy should have an active SO 9001:2000 certification at the time of submission of the bid. A copy of the Quality certificate or documentation of the Quality policy needs to be provided along (20) with the bid document. In case the certificate is due for renewal, the bidder should ensure that the renewed certificate is made available at the time of signing of contract. In case the same is not provided, the Department may consider negotiating the award of contract with the L2 Bidder
20. It is apparent from the corrigendum to bid document that pre-qualification (eligibility criteria) stood changed at Page 17-18 of RFP which contained section 3.1 and bidders response form Section 7.1 at Page 103-105 of RFP. As apparent from Annexure-1 the aforesaid changes were brought out in Section 3.1 and Section 7.1.
21. It is not disputed by the petitioner's counsel that there has been change in the bidders check list contained in Section 7.1.1 at Sr. No. 9 brought about by corrigendum to the bid but change is not made in the qualification of the bidder contained in Section 7.1.3 and rightly, as apparent from the following corrigendum to the bid document:-
Sr. Section Page Earlier Action Changed
No. No. Content Content
1. Pre- 17-18 Please Refer Changed Please refer
qualification Page 17-18 the annexure
(eligibility) of the RFP 1 of the
criterions corrigendum
for Pre
qualification
Criteria
(21)
27. Bidder 103- Please Refer Changed Please refer
Response 105 Page the annexure
Form 103-105 of 1 of the
(Annexure the RFP corrigendum
7.1) for
Prequalificati
on Criteria
22. The condition, as amended, brought about drastic change in the eligibility criteria. Earlier it was permissible for the purpose of eligibility either to file copy of quality certificate or documentation of quality policy, later was omitted and it was inserted that the Bidders/all the partners of consortium (in case of Consortium) should have an active (valid at least till June 2010) ISO 9001-2000 certification at the time of submission of the bid and the Bidder/ one partner in the consortium must possess a valid Certification in the Capability Maturity Model (CMM Level 3 or above). The necessary documents to be submitted as qualifying documents i.e. CMM certificate and ISO 9001:2000 certificate. Reliance has been placed by the petitioner on Section 7.1.3, relevant portion of which is quoted below :-
7.1.3 QUALIFICATION OF THE BIDDER
a) BIDDER INFORMATION SHEET S. No. Particulars Details Page no. (for any attach ment)
8. Bidder should have active ISO 9001:2000 Certification at the time of submission of Bids. Copies of the certificates or brief on Quality (22) policy & System being followed to be provided.
In case the certificate is due for renewal, the bidder should ensure that the renewed certificate is made available at the time of signing of contract. In case the same is not provided, the Department may consider negotiating the award of contract with the L2 Bidder.
23. It is apparent from Section 3.1 that submission of CMM Level 3 certificate and ISO 9001:2000 certification were necessary. In view of the aforesaid clear provision contained in Section 3.1, we are not able to accept the submission raised on behalf of the petitioner that instead of ISO 9001:2000 certificate, it was permissible to submit documentation of quality policy. Section 7.1.3 deals with the details of the documents to be filed for the purpose of qualification of the bidder and the bidder information sheet. The aforesaid entry at Sr. No. 8 has to be read harmoniously with eligibility criteria which stood amended as provided in Section 3.1, thus merely not amending the bidder information sheet as a consequence to the amendment to the main eligibility criteria, is not going to dilute the eligibility criteria contained in Section 3 as amended by corrigendum in the month of January, 2010 for the bids submitted in February, 2010.
24. The change brought about by the corrigendum to the bid document indicated that first change is that in case of (23) consortium, the partner developing the software application should have CMM Level 3 certification. Secondly, a part of Section 7.1.1 was amended to the effect that in case the certificate is due for renewal, the bidder should ensure that the renewed certificate is made available at the time of signing of contract. In case the same is not provided, the Department may consider negotiating the award of contract with the L2 Bidder. The third change was that in case of copy of quality certificate or documentation of quality policy, words "CMM Certificate and ISO 9001:2000 Certificate"
have been substituted.
Thus there is omission with respect to documentation of quality policy. The amendment was well known to the petitioner, thus merely on the basis of provision of Section 7.1.3 it is not open to the petitioner to rely upon the quality policy as a document forming part of eligibility criteria.
Apart from that, in our opinion, the requisite documents of quality policy have not been placed on record. When quality document contained in Para 22.9, which deals with the quality control procedures, filed along with the rejoinder is perused, it has been mentioned that Glodyne led Consortium has a 'Quality Manual' which defines the 'quality policies'. It is not the case of the petitioner that quality manual had been filed along with the tender document, thus the important document with respect to quality policy in the form of quality (24) manual has not been placed on record. Relevant portion of Para 22.9 is quoted below :-
"GLODYNE LED CONSORTIUM has a Quality Manual which defines the Quality policies and the people responsible for implementing them at a high level.
The Quality Manual serves as an interface between ISO 9001:2000 clauses, SEI-CMMI ver 1.2 and SEI-PCMM ver 2.0 key practices and the remaining QMS documentation. The policies for ISMS are documented in the ISMS security policy and related sections.
Furthermore, it has been mentioned in Para 22.9 that our quality system is documented in our web based Quality Management System called SPECTURM which is available through our internet portal www.iGLODYNELED CONSORTIUMian.com. Following is the submission made with respect to quality system :-
Our quality system is documented
in our web based Quality
Management System called
SPECTURM which is available
through our internet portal
www.iGLODYNELED
CONSORTIUMian.com.
The screen provides a glimpse
of the maturity of processes that
exist across Glodyne.
The other details of quality policy have also not been given, only outline of Project Reviews, Project Metrics Reviews, Quality Reviews, Internal Audits Final Inspection and all deliverable reviews have been mentioned. It could (25) not be said to be a quality policy documentation, that is why the petitioner has not mentioned it in the check list also.
There is only passing reference to the quality manual and Specturm in Para 22.9. On fact, the same could not be said to be compliance of furnishing of documentation of the quality policy. Moreover, the requirement of filing in alternative quality policy stood omitted by the corrigendum issued to section 3.1 and 7.1 to the RFP.
25. The petitioner has in fact failed to file the quality policy along with the tender document. Admittedly the petitioner has failed to file valid quality certificate along with the bid. The certificate which was filed was not valid as on the date of submission of the tender. There is no averment in the main petition that quality policy documentation was filed. Even assuming that lack of pleading is not coming in the way of the petitioner and we consider the same on merits, we find that firstly the requirement of filing quality policy has been deleted from the eligibility criteria by corrigendum to the bid document quoted above, secondly the petitioner has no where stated to be relying on quality policy document in substitution of requirement of submitting valid quality certificate as apparent from the original check list found in the tender document. The condition of RFP was changed, CMM Level 3 certificate and ISO 9001:2000 certificates were required to be submitted not the quality policy documentation.
(26)
26. Coming to the submission of the petitioner's counsel that documents required to be filed, are not governed by Section 3.1 but by Section 7.1.3 which remained unchanged. When we consider the aforesaid argument, it is apparent that Section 3.1 and Section 7.1 have to prevail and there is amendment in both. Merely failure of amending the bidders information sheet, is not going to come to the rescue of the petitioner. The Reliance has been placed by the petitioner's counsel on the decision of K. Vinod Kumar Vs. S.Palanisamy and others - (2003) 10 SCC 681, wherein the Apex Court has laid down that the requirement of Instruction (g) does not appear to be mandatory. The requirement of godown facilities and distributorship arrangements from a commercial angle is mandatory but satisfying the requirement at the stage of making the application is only directory. The Apex Court has made the following discussion:-
8. So far as the requirement of Instruction (g) as stated above is concerned, it does not appear to be mandatory. The purpose of furnishing particulars of land in the application is to enable a determination as to whether the specified place would accommodate the godown facilities and distributorship arrangements from a commercial angle. This requirement is mandatory but satisfying the requirement at the stage of making the application is only directory. The particulars of such land can be made available even subsequent to the filing of the application, and may even by subsequent to the selection. The (27) consequence of failure to make the suitable land available within a period of two months from the date of selection is that the selection of such candidate would be liable to be cancelled.
It is apparent that facts of the aforesaid case are wholly distinguishable. Instruction (g) was not construed to be mandatory at the stage of making application, though the requirement was mandatory. In the instant case, requirement is found to be mandatory at the stage of submitting the bid document.
27. Coming to the submission that the condition of filing of valid ISO certificate was not mandatory but merely directory. In Kanhaiya Lal Agrawal Vs. Union of India and others - (2002) 6 SCC 315, the Apex Court has laid down that when an essential condition of tender is not complied with, it is open to the person inviting tender to reject the same. Whether a condition is essential or collateral could be ascertained by reference to the consequence of non compliance thereto. If non-fulfillment of the requirement results in rejection of the tender, then it would be an essential part of the tender otherwise it is only a collateral term. We are unable to accept the aforesaid submission for various reasons. Considering the requirement of Section 3.1, it was necessary to submit CMM Level 3 certificate and ISO 9001:2000 certificate. The aforesaid condition is mandatory and essential to be observed. (28) Section 4.11.6 provides that the proposal submitted by bidder is liable to be quashed if not submitted in accordance with the tender document and bid not accompanied by all the requisite documents. With respect to the aforesaid requirement, there is no deviation or relaxation clause in the bid document. It could not be said to be a case of clerical error, if it is so, there could not have been any deviation or relaxation. The respondents could not have deviated from the condition which required strict adherence, as laid down in R.D.Shetty Vs. The International Airport Authority of India and others - AIR 1979 SC 1628. The supporting documents with respect to eligibility are required to be filed along with the bid. Section 3.1 gives details of the evaluation criteria for the pre-qualification stage as well as details which the bidder should provide as part of the bid document. The bid document is required to be signed by authorized representative and as per section 5.7, it is necessary that the bidder must designate a person to represent the bidder. Petitioner has submitted that it was a case of clerical error that wrong certificate was filed as such a valid certificate could have been filed later on. The submission cannot be accepted in the light of decision of Apex Court in W.B. State Electricity Board Vs. Patel Engineering Co. Ltd. and others - (2001) 2 SCC 451, wherein the Apex Court has dealt with the concept of negligent mistakes in bid documents and laid down that mistakes cannot be permitted (29) to be corrected on basis of equity where facts indicate that
(i) it was not beyond the control of bidder to correct the error before submission of bid; (ii) that he was not vigilant, and (iii) that he did not seek to make corrections at the earliest opportunity. It was held that such bidder cannot be permitted to correct his bid documents afterwards. More so in the case of major public works involving international competitive bidding, in which only parties able to fulfill pre- qualification criteria may participate. The Apex Court has further laid down that in such circumstances strict adherence to instructions to bidders is essential and cannot be branded a pedantic approach. When such corrections are not permissible under the rules governing the bid, it was not within the scope of judicial review. In our considered opinion, when conditions as to eligibility were strictly required to be fulfilled and necessary documents are filed along with the bid, such errors are not permissible to be corrected at a later stage as that would have been an unequal treatment to the other bidders.
28. In Sorath Builders Vs. Shreejikrupa Buildcon Limited and another - (2009) 11 SCC 9, the Apex Court has dealt with the requirement of filing pre-qualification document to be received physically one day before price bidding closed. Same was held not an unreasonable/arbitrary requirement. The Apex Court has laid down that terms and conditions of the tender document (30) are required to be adhered strictly. In the instant case documents as to eligibility were required to be submitted along with the bid. The terms and conditions of Notice Inviting Tender cannot be upset by the Court.
29. Coming to the submission raised by Shri S. Ganesh, learned Sr. Counsel appearing on behalf of the petitioner that it is provided under Section 7.1.3 (Qualification of Bidder) at Sr. No. 8 that in case certificate is due for renewal, the bidder should ensure that renewed certificate is made available at the time of signing of contract. Similar condition in Section 7.1.1(Bidders check list) stood deleted by corrigendum to bid. Even assuming the condition at Sr. No. 8 in Section 7.1.3 to be valid, it is not the case of the petitioner that the certificate of the petitioner was due for renewal. Petitioner has not mentioned in the tender document that the certificate which was filed along with the bid, was due for renewal nor it was mentioned that renewed certificate would be made available at the time of signing of contract. It is a case of wrong certificate having been filed. Filing of CMM Level 3 and ISO 9001:2000 certificates was mandatory as provided under section 3.1 and 7.1.1. Thus the said condition cannot be said to be directory. Since it was not the case set up by petitioner of renewal at any point of time, petitioner could not have been permitted to submit requisite ISO certificate at the signing of the contract. (31)
30. Coming to the submission raised by the petitioner's counsel that the petitioner was called vide letter dated 27.3.2010 for technical presentation on 7.4.2010, it could only be done on the basis of committee having regarded the petitioner to be technically pre-qualified. Reliance has been placed on Section 5.2 with respect to "proposal opening and evaluation". The evaluation of the proposal has to be carried out in three stages; (1) EMD Submission, (2) Technical Evaluation and (3) Financial Evaluation. As per procedure of Technical Evaluation, the bid will be rejected, in case it does not meet the pre-qualification criteria. The next stage of the evaluation will be an assessment of the technical bid. Relevant portion of Section 5.2 of RFP is quoted below :-
2) Technical evaluation : The bidder shall be examined prima facie to substantiate the compliance with the bidder's eligibility criteria as set out for this project in terms of organizational, financial and technical experience etc. The bid will be rejected, in case it does not meet the Pre-qualification criteria. The next stage of the evaluation will be an assessment of the technical bid.
Based on the short-listing of the pre-
qualified bidders, the committee will proceed to a detailed evaluation of the Technical Bids of such pre-
qualified bidders in order to
determine whether they are
substantially responsive to the
requirements set forth in the Request
for Proposal. In order to reach such a
determination, department will
examine the information supplied by
the bidders, and shall evaluate the
same as per the evaluation criteria
specified in this RFP.
(32)
It is apparent that after pre-qualification criteria is
fulfilled, the next stage of evaluation would be an
assessment of the technical bid.
It appears that respondents No. 1 and 2 have issued a letter on 27.3.2010 to all the bidders for technical presentation and for opening of financial bid on 9.4.2010. Later on, on realizing the mistake that pre-qualification criteria has not been considered and before that assessment of technical bid could not have been made and therefore, there was no question of issuing of notice for financial evaluation, said notices were cancelled on 3.4.2010. It is not the case that at any point of time before issuing the notices dated 27.3.2010, pre-qualification criteria was considered by the Committee. We have gone through the original record and note sheets, it is apparent that at no point of time the pre-qualification criteria was considered on or before 27.3.2010. Thus, there was no question for issuance of notices for technical and financial evaluation. The technical evaluation was to be made only of those tenderers, who have cleared the pre-qualification criteria and financial evaluation was to be made of such tenderers who have cleared the technical evaluation. For the first time it is apparent from the minutes recorded by the committee on 9.4.2010 available on record that eligibility criteria was considered and it was found that petitioner has filed ISO (33) certificate which has expired on 18.11.2009, the bid of the petitioner was liable to be rejected. Thus, a firm decision was taken on 9.4.2010 to reject the petitioner's bid on the aforesaid ground at pre-qualification stage. With respect to three other bidders namely; HCL, TCS and ITC certain clarifications were sought. Ultimately a decision was taken with respect to other bidders also and two of them were disqualified at pre-qualification stage. In all three tenderers were disqualified at pre-qualification stage and for technical evaluation, three bidders were called namely; TCS, HCL and ITC and two of them for financial evaluation. Merely by issuance of communication dated 27.3.2010, in which there was a stipulation that "The scheduling/call for this presentation does not imply in any way that your bid has qualified at any stage. The department reserves the right to reject the bid based on criteria's as mentioned in the RFP and subsequent corrigendum.", no right accrued to the petitioner and it could not be said that at any point of time the respondents have treated the petitioner to have possessed the eligibility criteria.
31. The submission has been raised that in case quality certificate has not been submitted by the successful L1 bidder, it lies at the discretion of the Department to consider the award of work to the L2 bidder as such the submission of the latest and upto date quality certificate along with the bid is not at all mandatory.
(34)
We are unable to accept the aforesaid submission as we have held that submission of the quality certificate was mandatory condition not the directory and secondly by the said stipulation the discretion of the Department is to negotiate with L2 bidder, whether it wants to go in contract with L2 bidder or not. It is not necessary that it should enter into contract with L2 bidder or negotiate with it, it is open to the Department to go for re-tendering also. It cannot be inferred at all by the aforesaid condition that the condition as to submission of the quality certificate is not mandatory.
32. Petitioner's counsel has also submitted that Mr. Navin Prakash in the capacity of representative of Wipro Consultancy Services, acting on behalf of respondents No. 1 and 2, had sent an e-mail on 9.4.2010 at 2.15 PM to QA International enquiring about the validity of ISO 9001:2000 certificate. He made the query about date of issuance and date of expiry of ISO 9001:2000 certificate and current status of the certification. The reply was sent in fact on April 12th, 2010, though it appears in the e-mail (P-10) April 22 nd, 2010. It was confirmed by QA International that the certificate is valid till 18.11.2010 and would continue to be valid if the re-assessment is conducted on or before 18.11.2010. Another e-mail was sent on the same date April 12th, 2010 at 1:48 PM, though the date appeared April 22nd, 2010 as computer was advanced by 10 days. The copies of both the certificates, one of which had expired and another (35) was valid till 18.11.2010, were sent to Mr. Navin Prakash and Mr. Navin Prakash had forwarded these certificates to respondent No. 2 Mr. Ajit Kesri on the same date. Thus valid certificates were in possession of respondents No. 1 and 2. The copy sent by QA International of valid certificate was in possession of respondents No. 1 and 2 at the time when final decision was taken on 27.4.2010.
Though the aforesaid submission appears to be attractive, but is not acceptable for the various reasons; firstly it was necessary to submit the said document as to condition of eligibility along with the bid, secondly the decision was taken on 9.4.2010 itself by the committee holding the petitioner to have failed in pre-qualification criteria as valid ISO certificate was not submitted at the time of submission of the bid, though the minutes dated 9.4.2010 mentioned that information from three other bidders be called but with respect to petitioner firm decision had already been taken. Thirdly, eligibility documents were required to be submitted under the signatures of the tenderer or its authorized representative as provided under Section 3.1 of RFP and authorized person of the bidder could have represented the bidder in all proceedings related to the project. It appears that Mr. Navin Prakash had made the enquiry from QA International as mentioned in the return of Wipro Consultancy Services that he doubted the genuineness of the certificate as it was for an unusual period (36) of 8 months and its validity stood lapsed on 18.11.2009. It was for a period of 8 months whereas it should have been for a period of 3 years. The copy of reply sent by the QA International was also sent to the petitioner on [email protected].
Even if the said e-mail was sent on 12.4.2010, the petitioner was well aware that there was some discrepancy with respect to its ISO certificate. The petitioner even thereafter did not ask respondents No. 1 and 2 neither made enquiry as to invalidity of the certificate nor tried to submit a valid certificate under its signatures or signatures of its authorized representative. Petitioner did not file initially the certificate which was necessary and thereafter did not take any step even after receipt of said e-mail to file requisite certificate. The respondents have explained that it was not prudent to act upon the e-mails particularly the document sent along with the e-mail. Moreover for considering the condition of eligibility, the documents sent along with the e- mail could not have been entertained as that would have been discriminatory to other tenderers, which recourse was not permissible. In our opinion in the facts and circumstances of the case, respondents No. 1 and 2 were justified in not taking into consideration the certificates sent with the e-mail. Apart from that there is nothing on record indicating that said certificate was placed before the committee. Whatever that may be, as the firm decision stood (37) taken on 9.4.2010 and it was reiterated in the meeting dated 27.4.2010. The sending of the certificate on April 12th, 2010 was of no avail as on the said date respondent No. 2 Mr. Ajit Kesri was not on duty, he was on leave for 10 days and the said communication was not sent on the official e-mail of the Director. It passes comprehension how the petitioner could have made the legal use of the aforesaid communication not made to the Director on official e-mail to the detriment of other tenderers. As it was not open to the petitioner to submit its documents, subsequently. The said documents could not have been accepted by backdoor method by the respondents as the condition as to eligibility was mandatory.
33. Coming to the scope of judicial review in such matters; the Apex Court in Siemons Public Communication Pvt. Ltd. & Another Vs. Union of India & others - AIR 2009 SC 1204 has laid down that there should be personal allegations of mala fides or favouritism levelled against Govt. Corporation otherwise judicial review in the matter of tender or award of contract is not permissible, even if there is procedural lacuna. Though the principle of judicial review cannot be denied so far as exercise of contractual powers of government bodies are concerned, but it is intended to prevent arbitrariness or favouritism and it is exercised in the large public interest or if it is brought to the notice of the Court that in the matter of award of a contract power has been exercised for any collateral purpose.
(38)
34. In M/s Star Enterprises and others Vs. City and Industrial Development Corporation of Maharashtra Ltd. and others - (1990) 3 SCC 280, it has been observed by the Apex Court that State or its instrumentality entering commercial field must act in consonance with rule of law. While dealing with tenders, State is entitled to look for the best deal and for that it can refuse to accept even the highest bid. But while rejecting the highest offer in the tender, it must record reasons for such action and communicate the same to the concerned party. In the instant case reasons have been duly recorded.
35. In Mohinder Singh Gill and another Vs. The Chief Election Commissioner, New Delhi and others - AIR 1978 SC 851, it has been laid down that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought out. We find in instant case reason given on 9.4.2010 has not been improved later on.
36. In G.J. Fernandez Vs. State of Karnataka and others
- (1990) 2 SCC 488, it has been laid down that in the matter of contract with instrumentality of State, minimum qualifying requirements for intending tenderers and (39) information and documents in support thereof to be furnished along with the application for issue of blank tender book prescribed in two separate paragraphs of NIT. Both the paragraphs of NIT should be read harmoniously, so read, the Apex Court held that apart from possessing the minimum qualifying requirements, the documents which are material in assessing whether applicant fulfilled those requirements must be furnished, otherwise the intending tenderer would be excluded from consideration. The minimum qualifying requirement should be strictly observed by the instrumentality of the State equally in cases of all the intending tenderers. Where the instrumentality of State consistently and bona fide interpreting the standards so prescribed in a particular manner and acting accordingly, Court would not interfere and substitute an interpretation which it considers to be correct.
In the instant case, in our opinion, respondents No. 1 and 2 have acted on due consideration of Sections 3.1, 7.1.1 and 7.3.1, thus no case for interference is made out
37. In Tata Cellular Vs. Union of India - (1994) 6 SCC 651, the Apex Court has laid down that only in the case of irrationality it is open to the Court to review the decision- maker's evaluation on the facts. A decision would be regarded as unreasonable if it is impartial and unequal in its operation as between different classes. The Apex Court has laid down certain principles. The modern trend points to (40) judicial restraint in administrative action. The Court does not sit as a Court of appeal but merely reviews the manner in which the decision was made. The Court does not have the expertise to correct the administrative decision. The terms of the invitation to tender cannot be open to judicial scrutiny because the invitation to tender is in the realm of contract. The Government must have freedom of contract. In other words, a fair play in the joints is a necessary concomitant for an administrative body functioning in an administrative sphere or quasi-administrative sphere. However, the decision must not only be tested by the application of Wednesbury principle of reasonableness but must be free from arbitrariness not affected by bias or actuated by malafides. Quashing decisions may impose heavy administrative burden on the administration and lead to increased and unbudgeted expenditure.
38. The Apex Court in Air India Ltd. Vs. Cochin International Airport Ltd. And others - (2000) 2 SCC 617, has laid down that Courts should exercise discretionary power with great caution and only in furtherance of overwhelming public interest. The State can choose its own method to arrive at a decision. It can fix its own terms of invitation to tender and that is not open to judicial scrutiny.
39. In M/s B.S.N. Joshi & Sons Ltd. Vs. Nair Coal Services Ltd. and others - AIR 2007 SC 437, the Apex (41) Court has laid down the principles governing contracts, thus :-
68. We are also not shutting our eyes towards the new principles of judicial review which are being developed; but the law as it stands now having regard to the principles laid down in the aforementioned decisions may be summarized as under :
(i) If there are essential conditions, the same must be adhered to;
(ii) If there is no power of general relaxation, ordinarily the same shall not be exercised and the principle of strict compliance would be applied where it is possible for all the parties to comply with all such conditions fully;
(iii) If, however, a deviation is made in relation to all the parties in regard to any of such conditions, ordinarily again a power of relaxation may be held to be existing.
(iv) The parties who have taken the benefit of such relaxation should not ordinarily be allowed to take a different stand in relation to compliance of another part of tender contract, particularly when he was also not in a position to comply with all the conditions of tender fully, unless the court otherwise finds relaxation of a condition which being essential in nature could not be relaxed and thus the same was wholly illegal and without jurisdiction.
(v) When a decision is taken by the appropriate authority upon due consideration of the tender document submitted by all the tenderers on their own merits and if (42) it is ultimately found that successful bidders had in fact substantially complied with the purport and object for which essential conditions were laid down, the same may not ordinarily be interfered with.
(vi) The contractors cannot form a cartel. If despite the same, their bids are considered and they are given an offer to match with the rates quoted by the lowest tenderer, public interest would be given priority.
(vii) Where a decision has been taken purely on public interest, the Court ordinarily should exercise judicial restraint.
Considering the aforesaid principles, it cannot be said in the facts of instant case that respondents No. 1 and 2 have acted arbitrarily. We are not sitting in appeal. The Apex Court in Sterling Computers Limited Vs. M/s M&N Publications Limited and others - (1993) 1 SCC 445, has laid down that only decision making process is open to judicial review. Court cannot act as an Appellate Authority but if process is violative of Article 14, Court can strike down the decision and action taken pursuant thereto.
40. In State of Punjab Vs. V.K. Khanna and others - AIR 2001 SC 343, it has been laid down that there must be real danger of bias and not mere apprehension. In State of M.P. and others Vs. Nandlal Jaiswal and others - (1986) 4 SCC 566, the Apex Court has laid down that mere use of words such as mala fide, corruption and corrupt practice is (43) not enough. It is necessary to give full particulars of such allegations and to set out the material facts specifying the particular person against whom such allegations are made so that he may have an opportunity of controverting such allegations. In the instant case there is no specific plea of malafide as required and on facts decision could not be said to be suffering with malice.
41. Resultantly, we find the decision taken by respondents No. 1 and 2 does not call for any interference. Writ petition being bereft of merits, deserves dismissal, same is hereby dismissed. No costs.
(Arun Mishra) (S.C.Sinho)
Judge Judge
PB