Himachal Pradesh High Court
M/S Corporate Care vs State Of Himachal Pradesh & Others on 16 August, 2023
Bench: M.S. Ramachandra Rao, Ajay Mohan Goel
1 IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA CWP No.4077 of 2022 Reserved on: 07.08.2023 Pronounced on:16.08.2023 .
M/s Corporate Care ......Petitioner Versus State of Himachal Pradesh & Others ...Respondents ________________________________________________________ Coram:
of Hon'ble Mr. Justice M.S. Ramachandra Rao, Chief Justice. Hon'ble Mr. Justice Ajay Mohan Goel, Judge. Whether approved for reporting?
For the petitioner :
rt Mr. Adarsh K. Vashista, Advocate. For the respondents : Mr. Anup Rattan, Advocate General with Mr. Pranay Pratap Singh, Additional Advocate General and Mr. Arsh Rattan & Mr. Sidharath Jalta, Deputy Advocate Generals, for respondents no.1 to 3/State.
Mr. Surender Saklani, Advocate, for respondent no.4.
________________________________________________________ M.S. Ramachandra Rao, Chief Justice.
In this Writ petition, the petitioner has challenged the entire tender process, whereby, respondent no.4 has been declared as L-1 qualified bidder by Shri Lal Bahadur Shastri Govt. Medical College, Mandi at Nerchowk (respondent no.3); and he has also challenged Annexure P-12 letter of award of tender dt. 27.05.2022 awarding the ::: Downloaded on - 16/08/2023 20:33:37 :::CIS 2 contract for hiring of manpower on outsource basis to respondent no.4 Company by respondent No.3.
2) The background facts are that the respondent No.3 invited e-Tenders .
for providing outsource manpower (Ward Attendants/Aya) to the 3rd respondent-Government Medical College & Hospital, Ner Chowk, District Mandi, Himachal Pradesh.
3) The Writ petitioner submitted his bid on 31.01.2022, but the of petitioner was informed by respondent no.3 on 18.04.2022 that the tender was cancelled.
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4) The respondent No.4 then filed CWP no.2666 of 2022 on 21.05.2022 challenging the cancellation of the tender.The petitioner herein was also impleaded as a party.
5) On 17.05.2022, a Division Bench of this Court, on the basis of instructions placed before it by the Additional Advocate General, prima facie, opined that the decision taken by the official respondents was absolutely tainted and they deserve to be punished in accordance with law, but before doing so, it wanted to afford an opportunity to the official respondents to clearly come out with their stand, duly supported by affidavit. But no interim order was granted.
::: Downloaded on - 16/08/2023 20:33:37 :::CIS 36) Thereupon, the 3rd respondent issued an email dt. 21.05.2022, cancelling the revocation of the tender in process. It then proceeded to open the bids and rejected the bid of the petitioner on 23.05.2022 .
and accepted the bid of the 4th respondent vide Annexure P-12 dt. 27.05.2022 and directed work to be commenced by the respondent No.4 from 01.06.2022.
7) Challenging this action of respondent No.3, petitioner filed the instant of Writ Petition on 20.06.2022.
8) On 27.06.2022, this Court, while issuing notice to the respondents, rt directed status quo to be maintained with regard to supply of manpower to respondent no.3, as it existed on that day.
9) The principal contention of the petitioner is that the e-tender dt. 29.12.2021 contained a condition introduced by way of a corrigendum dt. 21.01.2022 (Annexure P-3), which stated that a bidder must have registered office in Himachal Pradesh prior to three years from the time of submission of the bidder and address proof of the registered office should be submitted with the technical bid.
10) It is contended that in spite of such a condition imposed by the respondent No.3, though the respondent No.4 did not have a ::: Downloaded on - 16/08/2023 20:33:37 :::CIS 4 registered office in Himachal Pradesh for the period of three years prior to the time of submission of tender, the respondents no.1 to 3 accepted the tender of the respondent No.4 illegally and, therefore, .
the same ought to be set-aside.
11) From the documents filed by the petitioner, in particular Annexure P-7, an email addressed by respondent no.4 to respondent No.3, it appears that the registered office of the respondent No.4 was in New of Delhi and not in Himachal Pradesh.
12) Even in CWP no.2666 of 2022 filed by the respondent No.4 before rt this Court, it's New Delhi address alone is mentioned, and it is shown to have been represented by its Working Manager, who is said to be resident of Village Gorat, Tehsil Dharampur, District Mandi.
13) This contention was specifically advanced by the Writ petitioner in Para-12(a) to the Writ petition, but there is no reply thereto in the reply-affidavit of respondents no.1 to 3 or the respondent No.4, but reliance is placed upon Annexure R-4 proceedings dt. 12.04.2022 by the respondents.
14) Even the contents of the said proceedings indicate that there was a Committee constituted, consisting of Medical Superintendent, Law Officer, Section Officer of the respondent No.3 which noted that the ::: Downloaded on - 16/08/2023 20:33:37 :::CIS 5 said Committee scrutinized the documents submitted by the bidders, out of which, four firms opposed that the condition of registered office has not been considered by the institution as per the condition .
laid down in the tender document; three firms out of seven representatives had stated that their firms are very much working in the respondent No.3 -institution; and the condition of registered office is not justified as their firms are registered under the H.P. of Shops and Commercial Establishments Act.
The Committee had, in fact, recommended cancellation of the rt tenders since none of the firms had a registered office.
15) But notwithstanding the same, the respondent No.3 had proceeded to award the tender to the respondent No.4, and the reason assigned in para-5 of the reply of the respondents no.1 to 3 is that the respondent No.4 had its office in Himachal Pradesh since more than three years with registration under the H.P. Shops and Commercial Establishments Act.
16) We fail to understand how if it was a condition of the tender that the bidder must have a registered office in Himachal Pradesh for a period of three years prior to the time of submission of tender, and the respondent No.4 Company had not produced from the Registrar of ::: Downloaded on - 16/08/2023 20:33:37 :::CIS 6 Companies proof that it has a registered office under the Companies Act,2013 or Companies Act,1956 in the State of Himachal Pradesh for the previous three years, tender could have been awarded to .
respondent No.4 on the basis of registration under the H.P. Shops and Commercial Establishments Act.
17) The Supreme Court has held in Ramana Daya Ram Shetty vs. International Airport Authority of India1 that if a condition of of eligibility is laid down in a tender, which was required to be satisfied by every person submitting the tender, and if a person did not satisfy rt such condition of eligibility, it would render his tender also ineligible for consideration.
It held that it is a well settled Rule of Administrative Law that an executive authority must be rigorously held to the standards by which it professes its actions to be judged and it must scrupulously observe those standards on pain of invalidation of an act in violation of them.
It held that every action of the Executive Government must be informed with reasons and should be free from arbitrariness.
1(1979) 3 SCC 489, ::: Downloaded on - 16/08/2023 20:33:37 :::CIS 7 The Court declared that the power or discretion of the Government in the matter of grant of largess including award of jobs/ contracts etc. must be confined and structured by rational, relevant .
and non-discriminatory standard or norms, and if the Government departs from such standard or norms in any particular case or cases, the action of the Government would be liable to be struck down, unless it can be shown by the Government that the departure was not of arbitrary, but was based on some valid principle which in itself was non-irrational, unreasonable or discriminatory.
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18) This principle has been reiterated in G.J. Fernandez vs. State of Karnataka & Others2.
19) The Supreme Court in Bakshi Security and Personnel Services Private Limited vs. Devkishan Computed Private Limited & Others3, and in B.S.N. Joshi and Sons Limited vs. Nair Coal Services Limited & Others4 has reiterated that essential conditions of a tender have to be strictly complied with.
20) Since admittedly in the instant case, the respondent No.4 did not fulfill the essential condition of the tender of having its registered 2 (1990) 2 SCC 488.
3(2016) 8 SCC 446 4 (2006) 11 SCC 548 ::: Downloaded on - 16/08/2023 20:33:37 :::CIS 8 office in the State of Himachal Pradesh for a period of three years prior to the submission of the tender under the Companies Act,2013 or the Companies Act,1956, notwithstanding its registration under the .
H.P. Shops and Commercial Establishments Act, there could not have been an award of the tender in question to the respondent No.4.
21) Admittedly, the duration of the tender awarded to the respondent No.4 was two years commencing from 01.06.2022 and the respondent of No.4 had already executed the work under the tender from 01.06.2022 till date.
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22) Therefore, we mould the relief and restrain the respondent nos.1 to 3 from utilizing the services of the respondent No.4 forthwith and direct the said respondents to forthwith award the work of hiring the manpower on outsource basis in the respondent-College to petitioner subject to the petitioner also fulfilling the condition that its registered office is in the State of Himachal Pradesh for a period of three years prior to the submission of the tender by it under the Companies Act,2013 or the Companies Act,1956. This shall however be for the period upto 31.5.2024 only. The respondent no.3 & 4 shall also pay costs of Rs.10,000/- each to the petitioner.
::: Downloaded on - 16/08/2023 20:33:37 :::CIS 923) Pending miscellaneous application(s), if any, shall also stand disposed of.
.
(M.S. Ramachandra Rao)
Chief Justice
(Ajay Mohan Goel)
August 16, 2023 Judge
(Yashwant)
of
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