Madhya Pradesh High Court
Vigro Softech Limited, A 4/5, Mohan ... vs The State Of Madhya Pradesh on 13 May, 2013
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W.P. No.17685 of 2012
Virgo Softech Limited State of M.P. & others.
13.05.2013
Shri R.N. Singh, learned Senior Advocate with Shri
Pancham Surana and Shri Parag Chaturvedi, Counsel for the
petitioner.
Shri Vivek Agrawal, G.A. for the respondents.
Shri Naman Nagrath, Learned Senior Advocate, Shri Sanjay Agrawal with Shri Qasim Ali, Counsel for the Interveners.
Shri Sidharth Gupta, Counsel appears for the petitioner in W.P.21078/12 and W.P.No.20339/12 by filing PIL in the matter.
I.A.No.14120/12 filed on behalf of the State for vacating ad interim writ issued on 12.10.2012. By an order dated 12.10.2012 in this matter, an ad interim writ was issued. For ready reference we quote the entire order which reads thus :-
"Heard on admission.
The learned Deputy Advocate General takes notice of the petition and prays for a week's time to file reply.
Prayer allowed.
Also heard on interim relief.
According to the petitioner, vide Agreement dated 28.7.2011 the State Government through Department of Food, Civil Supplies and Consumer Protection (FCS) granted exclusive rights and works to it for conducting and implementing Public Distribution system (PDS) aligned with the Unique Identification Authority of India, which includes capturing of biometrics and digital signatures of the residents of Madhya Pradesh. And Clause 17 of the Agreement clearly prohibits the FCS from engaging any other person to render similar services except with the prior written consent of the petitioner. But yet the State Government, without prior consent and terminating the contract dated 28.7.2011 with an ulterior motive, has issued the impugned notice for quotation and invited fresh quotation on 24.9.2012 for the implementation of similar
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13.05.2013 works. The petitioner submits that the action of the State Government in doing so is not only illegal and arbitrary but will also cause huge financial loss to it. The scheduled date for opening the bids is 16.10.2012.
We therefore, as an interim measure, direct that although the respondents will be at liberty to open the bids, they will not take a final decision regarding the same until further orders from this Court.
List the case on 19.10.2012.
Certified copy today as per rules."
It is submitted by the petitioner that as per the agreement Annexure P-1, petitioner is entitled to carry out the work of Aadhar Card, as per the clause 17 and 21 of the contract, there is exclusive right of the petitioner in this regard and under the agreement, the work assigned to the petitioner could not have been assigned to any other person. It is submitted by the petitioner that the ad interim writ issued in the matter may be continued till the decision of this petition and the matter may be heard finally.
Shri Vivek Agrawal, learned counsel appearing for the State in nut shell submitted that the work assigned to the petitioner under the agreement Annexure P-1 is entirely different and it is only limited for the purpose of preparation of Ration Card for Public Distribution System for near about 67 lakhs families. It is submitted that the scope of preparation of Unique Identification Card is entirely different and is not covered under the agreement Annexure P-1 in favour of the petitioner. It is submitted that the ad interim writ issued in the matter may be vacated.
Shri Naman Nagrath, learned counsel appearing for
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13.05.2013 the Intervener supported the State and submitted that the scope of the agreement in favour of the petition is limited to the extent of preparation of 67 lakh Ration cards. In this regard he has referred clause 6.9 and 6.3 of the agreement of the petitioner.
Shri Sanjay Agrawal, learned counsel appearing for the Intervener supported the State and also other co- interveners.
To appreciate the rival contentions of the parties, it would be appropriate if the various clauses as contained in the agreement Annexure P-1 entered between the petitioner and the State are referred. The scope of the work with the petitioner has been stated at page 2 of the agreement which reads thus :-
A. To enable the design, development, implementation and maintenance of PDS project (as defined below), inviting the development of Application software as (as defined below), Supply of Hardware (as defined below) & maintenance of solution, data digitization and operations related to coupons (the "PDS Project"), the FCS issued a request for proposal No: G -9835/09(the "RFP"), inviting tenders from interested service providers for selecting a suitable service provider to carry out the above mentioned tasks in relation to the PDS project:
B. Pursuant to the RFP,HCL, VIRGO, and EDENRED together (hereinafter collectively referred to as the "HCL Consortium" or "Consortium", which expression shall include their successors and permitted assigns ) through a consortium agreement between the Consortium Partners, submitted technical and commercial proposal in accordance with the terms of the RFP, proposed to undertake the implementation/execution of the PDS Project for the Customer. Further, HCL is the "Lead
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13.05.2013 Member" of the Consortium and Virgo & Edenred are the "Other Consortium Members". This Consortium is valid for the Project only and is not extendable for any other assignment or project, unless specifically agreed to by the Consortium Members;
C. After receiving the proposals from Consortium and other service providers, the FCS evaluated and selected the Consortium to provide the Services (as defined below) relating to the delivery/execution of the PDS Project, FCS also issued a notification of award of work no: 6064/CR/10 dated 29th July 2010 to the Consortium.
D. Consortium has therefore entered into this Agreement and hereby undertaken to render its Services in relation to the PDS Project. Consortium has made and will continue to make necessary investments in accordance with this Agreement for the due execution of the Project and it shall recover the same from FCS through bi-monthly invoicing to FCS, based on the coupons distributed to BPL & AY ration card holders at the beginning of the annual cycle as explained under Clause 7.12.5 of this Agreement. HCL, the lead consortium member, will raise bi-monthly invoices on FCS on behalf of the Consortium and the FCS shall make payments for such invoices to the respective Consortium Escrew Account Heads, as per the payment terms mentioned under this Agreement under Clause 6 for onward agreed sharing of the same amongst the Consortium members. It is further agreed between the Parties that the obligations to provide the Services and receiving the payments under this Agreement are the joint and several responsibilities and rights of the Consortium Members respectively. E. The Parties (as defined below) have agreed on the below mentioned terms and conditions for the engagement of the Consortium for providing the Services relating to the PDS Project."
The clause as are incorporated in clause 1 of the agreement are relevant, which reads thus :-
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13.05.2013 1.1.43. "PDS Project" means the project for public distribution system in the state of M.P. and as defined by the Government of India/State Government of Madhya Pradesh defined in the recitals of this Agreement. 1.1.45. "service" means all services indicated to be provided by Consortium to the FCS for the PDS Project on such terms and conditions as detailed in this Agreement.
Clause 2 provides nature of service which were to be provided by the petitioner which reads thus :-
2. The FCS hereby engages the services of Consortium for the services relating to the application development and system integration, preparation of electronic database of all Beneficiaries of the food coupon based distribution mechanism and managing the operations as required as per this Agreement under the PDS Project during the Term and on the terms and conditions contained in this Agreement.
6.9. The estimated number of BPL and AAY families to be covered under this Agreement for issue of ration cards and food coupons are 67 lacs.
7. Pre-enrolment Data Entry (Preparation of electronic database of all beneficiaries) 7.4.1. Consortium will be required to enter the details of the existing ration card holders (APL, BPL & AAY) as supplied by the FCS in the application to create digital database. After this, Department will collect any missing and additional details of the beneficiaries by way of printed check list provided by Consortium. The Consortium shall correct and complete the new collected details to complete the beneficiary database.
7.4.2. The corrections required shall be carried out by the Consortium and the final checklist would be used for organisation of camps for capturing the biometrics as per UIDAI.
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13.05.2013 7.5.1. Consortium will be required to organize camps for collecting biometric impressions & digital photographs as per UIDAI norms using AADHAR software and certified operatiors and kits (laptops, biometric devices etc.) as per the standard prescribed by UIDAI and conforming to the guidelines issued from time to time in discussion with collector and finalised by the FCS.
7.6 Data Upload for de-duplication and generation of AADHAR number.
7.6.1. Biometric data collected as per the AADHAR requirement (KYR) shall be sent to CIDR by the Consortium for de-duplication and generation of AADHAR number. Data packets to CIDR shall be sent through SWAN or other means deemed fit by the Consortium. Department shall allow Consortium to use SWAN and instruct NIC and district headquarters accordingly.
7.6.2 Copy of the data packets collected for KYR & KYR+ fields shall also be submitted to the department and shall be stored/hosted on the servers installed with the department for future use.
7.7. Printing and delivery of Ration Cards 7.7.1. The AADHAR numbers issued by the UIDAI shall then be linked with the ration cards and the ration cards incorporating the UID numbers shall be generated and printed as per the specimen and design approved by the department.
7.8.3 The estimated ration card holders in the BPL & AAY category are 67 lakhs. The estimated ration card holders in the APL category are 80 lakhs. These numbers are as per current ration card data with FCS.
10. FCS'S RIGHTS UNDER THIS AGREEMENT Department of FCS's right under this Agreement are as under.
10.1. Department of the FCS has the rights to
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13.05.2013 monitor the SLA through an appointed project monitoring unit. The Project Monitoring Unit (PMU) thus appointed by the department would monitor the work of the consortium in the quantitative and qualitative terms and asper the time lines of the project. Any non compliance of SLA parameters or deviations in the time lines shall be quantified by the PMU for the penalties imposable defined under the terms of SLA. 10.2. The vendor shall submit a weekly/monthly report on the progress made as per the time lines defined under this agreement or as mutually agreed upon under the clause of this agreement or otherwise. The frequency of the above reporting would be mutually decided by the department and the consortium.
10.3. Department of the FCS has the right on all IT hardware procured for data centre and service windows post completion of 60 months from the State Go Live Date or completion of the Project whichever is later. 10.4. Department of the FCS has the sole right on the ownership of data so collected, generated or compiled as the result of the PDS Project execution.
10.5. Department of the FCS shall have sole rights on usage of the application Software specifically developed for the PDS Project. The IPR for the application Software shall get vested with the FCS only upon the completion of the term of PDS Project and not otherwise. However the Consortium shall not use the Application Software used under the PDS Project elsewhere (outside the State of MP) during the term of the PDS Project. The FCS may only after obtaining a written confirmation from HCL Consortium, allow other State Governments or the Government of India, the limited rights of usage of the Application Software developed by HCL Consortium, for PDS Project. All Software procured for the PDS Project shall be in the name of Government of Madhya Pradesh or in the name as advised by FCS in advance. The clauses which are pressed by the petitioner to claim
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13.05.2013 work of UID are thus :-
17. EXCLUSIVITY During the Term, except with the prior written consent of HCL Consortium, the FCS shall not engage any other person to render the services similar to the Services contemplated in this Agreement.
18. DISPUTE RESOLUTION 18.1 If any dispute arises between the Parties hereto during the subsistence or thereafter, in connection with the validity, interpretation, implementation or alleged material breach of any provision of this Agreement or regarding a question, including the questions as to whether the termination of this Agreement by one Party hereto has been legitimate, both Parties hereto shall endeavour to settle such dispute amicably.
The attempt to bring about an amicable settlement is considered to have failed as soon as one of theParties hereto, after reasonable attempts [which attempt shall continue for not less than 30 (thirty) days, give 15 days notice thereof to the other Party in writing.
18.6 The arbitrator's award shall be substantiated in writing. The court of arbitration shall also decide on the costs of the arbitration procedure.
18.7 the parties hereto shall submit to the arbitrator's award and the award shall be enforceable inany competent court of law.
24.10 The Government has not and shall not award a tender, execute any Agreement and/ or enter into any arrangement, with any other Person for rendering any service which is similar or identical to the Services provided by Consortium herein during the Term."
At this juncture it would be appropriate to refer NIT
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13.05.2013 issued for the purpose of UID tender which is Annexure P-2 and relevant clauses reads thus:-
"Report Title: Appointment of Enrollment Agencies for capturing Biometrics and Digital signatures of the residents in Madhya Pradesh."
2.1 About UID Project -
The Government of India (GoI) has embarked upon an ambitious initiative to provide a Unique Identification (UID) to every resident of India and has constituted the Unique Identification Authority of India (UIDAI) for this purpose. The timing of this initiative coincides with the increased focus of the GoI on social inclusion and development through massive investments in various social sector programs, and transformation in public services delivery through e-Governance programs. The UID has been envisioned as a means for residents to easily and effectively establish their identity, to any agency, anywhere in the country, without having to repeatedly produce identity documentation to agencies. More details on the UIDAI and the strategy overview can be found on the website.
The widespread implementation of the UID project needs the reach and flexibility to enroll residents across the country. To achieve this, the UIDAI proposes to partner with a variety of agencies and service providers (acting as Registrars, Sub-registrars and Enrolling Agencies) to enroll residents for UID. By participating in enrolling residents, registrars and enrollment agencies across the country would be part of a truly historic exercise, one which can make our welfare systems far more accessible and inclusive of the poor, and also permanently transform service delivery in India.
In this context, the Registrars shall engage enrolment agencies empanelled by UIDAI for carrying out the various functions and activities related to UID enrollment such as setting up of enrollment centers, undertaking collection of demographic and biometric data for
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W.P. No.17685 of 2012Virgo Softech Limited State of M.P. & others.
13.05.2013 UID enrollment and any other data required by the Registrar for the effective implementation of their projects. This Request for Quotation document is intended to invite bids from only those agencies which are empanelled with UIDAI for undertaking demographic and biometric data collection for enrolment of residents.
2.2 About Enrollment of Residents in Madhya Pradesh-
Government of Madhya Pradesh is committed towards the success of the UID projects, and is the leading Registrar in the country till date in terms of number of UID generated. As part of the program, more than 1.00 Cr. residents have already been enrolled till date in the State. The State Government now envisages completion of enrolment of the remaining residents in Phase II of the project by December,2013.
Department of Planning, Economics and Statistics, Govt. of M.P. is the Nodal Agency for the implementation of the project in the state, various government departments/under taking organizations shall be the state registrars and various Banks, NSDL etc shall be the non state registrars in their respective districts/revenue divisions as the case may be.
4.1 Functional scope-
The functional scope of this engagement shall include all the steps from setting up an enrolment station/center for enrolment of residents for the UID project up to providing requisite MIS reports to Registrar and UIDAI on enrolments completed on a daily basis till the whole enrolment operation for the targeted population is completed. The Enrolling Agency shall also be responsible for delivering additional services as required by the Registrar through this RFQ.
Now in the light of the aforesaid provisions as contained in both the agreements, the contention of the petitioner may be looked into. The emphasis of the petitioner is, that as per the
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W.P. No.17685 of 2012Virgo Softech Limited State of M.P. & others.
13.05.2013 contract, the petitioner has to prepare the entire data necessary for Aadhar Card as per the requirement of the Authority. In this regard reference is made to clause 7.6.1 and 7.6.1 and it was submitted that as per clause 7.4, the petitioner has to prepare electronic database of all beneficiaries. Referring aforesaid it was submitted that as per clause 17 and 24.10, the petitioner has exclusive right to prepare Aadhar Card which is included in the agreement Annexure P-1.
Learned counsel appearing for the State has opposed the aforesaid contention and submitted that the preparation of Ration Card under the Public Distribution System is the subject matter of the agreement Annexure P-1 and for preparation of the Ration Card, various informations which are required to be included in the Adhar Card are to be collected by the petitioner. He has referred clause 7.4.1 and 7.6.2 in this regard in support of his contention that the data so collected by the petitioner can be utilise for the preparation of the Aadhar Card by the respondents.
To appreciate the aforesaid, firstly we have to examine the scope of the work of the petitioner. From the perusal of the scope of the work of the petitioner as stated hereinabove, A,B,C,D & E of the agreement, it is apparent that the entire process of the agreement is only for the preparation of the Ration Card for Public Distribution System. Certain parameters have been fixed as per para 7.4.1 and 7.6.2. Some of the parameters are the same which are required for the preparation of the Aadhar Card, meaning thereby for preparation of the Ration Card, petitioner was required to collect the data which
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13.05.2013 are also required for the preparation of the Aadhar Card, meaning thereby, the data collected by the petitioner could have been used for the preparation of the Aadhar Card also. So far as the Aadhar Card is concerned, the entire scheme is broad in nature as referred hereinabove. The entire scheme of the Aadhar Card is of Government of India and the Aadhar Card is to be prepared on the basis of certain parameters. Though the parameters which are used for the preparation of the Ration Card are also required for the preparation of the Unique Identification Card. But the entire scheme is different. The entire scope of work as per the NIT Annexure P-2 is different. The U.I.D. is to be prepared for all the residents residing in the State of Madhya Pradesh. Though the Ration card are also be prepared but it is only for the purpose of Public Distribution System.
In view of the aforesaid, we find that the purpose of NIT Annexure P-2 is for preparation of UID which are more broader in comparison to the Ration card work which are assigned to the petitioner under Annexure P-1. Merely some parameters are overlapping, could not have been a ground to assume that the petitioner is entitled for assignment of the work of preparation of Aadhar Card. So far as clause 17 and 24.10 are concerned, though these gives exclusivity to the petitioner but this relates only in respect of preparation of Ration card and not in respect of Aadhar Card. In view of the aforesaid, we find that the order passed by this Court dated 12.10.2012 deserves to be modified and accordingly we direct thus :-
"Respondents are permitted to process the NIT issued for
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13.05.2013 the preparation of UID enrollment and to finalise the tender in accordance with NIT. The respondents shall be entitled to issue appropriate works orders in this regard. However, all the aforesaid exercise shall be subject to final decision in this petition."
Looking to the nature of the matter, the petition itself deserves to be heard at an early date and accordingly, we direct that this petition be listed for hearing on 9th July,2013.
C.C.as per rules.
(Krishn Kumar Lahoti) (M.A. Siddiqui)
Acting Chief Justice Judge
vj
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W.P. No.17685 of 2012
Virgo Softech Limited State of M.P. & others.
13.05.2013