Jharkhand High Court
Gyandeep Products Private Limited ... vs The State Of Jharkhand Through The Chief ... on 12 September, 2022
Author: Aparesh Kumar Singh
Bench: Aparesh Kumar Singh, Deepak Roshan
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P (C) No. 1983 of 2022
1. Gyandeep Products Private Limited through its Director
Shri Ankit Modi, Ranchi
2. Goyal Paper Udyog through its Director
shri Krishna Murari Agarwal, Jamshedpur, East Singhbhum --- Petitioner
Versus
1. The State of Jharkhand through the Chief Secretary, Ranchi, Jharkhand
2. The Secretary, Department of School Education and Literacy Development,
Ranchi, Jharkhand
3. The State Project Director, Jharkhand Education Project Council
represented through State Project Director, Ranchi, Jharkhand
4. The Specialist MRE, Jharkhand Education Project Council, represented
through State Project Director, Ranchi, Jharkhand --- Respondents
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CORAM: Hon'ble Mr. Justice Aparesh Kumar Singh Hon'ble Mr. Justice Deepak Roshan
---
For the Petitioner: Mr. Harsh Preet Singh, Advocate
For the Resp.-JEPC: Mr. Krishna Murari, Advocate
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09 / 12.09.2022 Heard learned counsel for the parties.
2. The petitioner could not qualify in Bid No. JEPC/MRE/33/207/2021- 22/719 issued by the State Project Director, Jharkhand Education Project Council because of certain terms and conditions incorporated therein. Therefore, it has approached this Court for a direction upon the Respondents to consider the objection raised by him and other prospective bidders to the extent of deleting the requirement of printing with Web Offset Technology as mentioned in Section 6 Sl. No. 3 of the tender notice. Petitioner has also prayed for a direction upon the Respondents for issuing a Corrigendum with respect to the with respect to the entire timeline in relation to the said tender notice. Petitioner has also prayed for stay of the entire tender process and not create any third party interest. .
3. One of the grounds raised in support of the plea is to the effect that the decision of the Respondent in not considering different printing technologies other than Web Offset Technology for printing of notebooks is not economical and feasible. The imposition of such a condition amounts to unreasonable restriction on right to carry on trade and business under Article 19(1)(g) of Constitution of India. It is further alleged that this decision would lead to loss to State Exchequer by insisting upon more expensive technology. It would amount to denying the level playing field to the prospective bidders including the petitioner. Conditions of tender being unreasonable would also delay the entire process of providing notebooks to the school children. Petitioner has also 2. made a ground that the eligibility criteria of having completed one contract of the value of not less than Rs. 2.00 crore or aggregate of two contracts of value not less than Rs. 4.00 crore relating to manufacturing / printing of textbooks/notebooks for Central Government/State Government/Public Sector Undertakings/Government Enterprises/Government Aided Institutions during preceding three years or successful completion of job of manufacturing / printing 10 lakh textbooks/notebooks in preceding three years i.e. 2018-19, 2019-20 and 2020-21 is in direct contravention with Jharkhand Procurement Policy which allows waiver of such condition to MSME.
4. Learned counsel for the petitioner submits that notebooks and textbooks come under different HSN Codes assigned by GST Council. The Code assigned for notebooks are 48202000 which is exigible @ 12% GST, while textbooks having HSN Code of 49011010 are exigible @ 5% GST. Learned counsel for the petitioner submits that many international Companies including some based in Germany have migrated to Flexographic Printing for notebooks in view of the cost involved. It is further stated that as per Section II Clause 8.12 and vide Resolution No. 529 dated 06.03.2022, maximum rate of per notebook is Rs. 20/-. F.O.R i.e. to final destination point level, which means that tender is not only for printing the note books but also for transportation of the notebooks. Learned counsel for the petitioner submits that there is no reason why superior technology of flexographic is not being made the sole criteria for participating in the bid. Other State Government like Assam and West Bengal have not specified any printing technology, rather given technical specification regarding notebooks as an end product. As such, the petitioner and other bidders in pre-bid meeting held on 12.04.2022 had raised objection regarding the specific use of Web Offset Technology - both in writing and orally. Despite assurance to issue corrigendum rectifying the lacuna in the terms and conditions, the same has not been finally incorporated. As such, petitioner having no alternative and efficacious remedy, has approached this Court. Tender document is at Annexure-1.
5. As per the Notice inviting Tender (Annexure-1), JEPC had called for offers for printing and supply of notebooks under school kit scheme for Class 1 to VIII students studying in Government schools in the sessions 2021-22 and 2022-23 and for Class IX to XII students studying in Government schools in the sessions 2022-23 through e-tender. Notebooks have to be supplied to the destination points i.e. concerned Blocks / BRCs of the districts in the State.
3.Section II contains detailed Instructions to Bidders (ITB). Petitioner is particularly aggrieved by the specification under section VI Sl. No. 3 which provided for any such printing technology as a mandatory condition for any interested bidders. The eligibility criteria under Clause (c) of Section VI are also under challenge.
6. It is trite to observe that laying down of the terms and conditions of any tender document are within the domain of the employer. The Courts exercising the powers of judicial review are not expected to step into shoes of the employer while evaluating the terms and conditions unless they are patently arbitrary and unreasonable.
7. Respondent State and JEPC both have filed counter affidavit. Counter affidavit of the Respondent State has specifically addressed the grievance of the petitioner at paragraph-6 to 11. A perusal of the averments made therein indicates that Committee constituted under the Chairmanship of the Director, Secondary Education examined the suggestion made by the prospective bidders in respect of the terms and conditions of the tender during the pre-bid meeting. The Committee undertook meticulous scrutiny of the terms and conditions of the RFP along with the suggestions of the prospective bidders and took the following decisions.
"a. The flexographic printing machine can also be included along with the Web offset machine. This will increase the number of bidders as well as supports the Respondent in choosing and deciding the bidder with a better rate.
b. The number of pages required in the entire bid is approximately 9500 metric tonne. Therefore, in such a situation, the eligibility criteria of 40000 metric tonnes is reduced to 10000 metric tonnes. c. The previous Chief Secretary, Government of Jharkhand had previously approved the watermarked paper in the note books. Also, for many years, the watermarked paper has been in use for printing notebooks. Thus, the status quo shall be maintained for using the watermarked paper for printing the notebooks.
d. The logo of the State Government can be put only on the cover page of the notebook.
e. In the interest of the project, it does not appear suitable to relax the condition of work experience in the Government. f. The rate of the notebook has been fixed by the Cabinet. Therefore, any change in the rate of the notebook requires Cabinet approval. Therefore, keeping the rate of the notebook as it is, determining the number of pages as the bidding parameter is creditable. Therefore, the bidder that provides more number of pages at the rate of Rs. 20/- shall be considered more creditable after the technical scrutiny."
8. Pursuant to the decision of the committee, the JEPC published the corrigendum on 25.07.2022 redressing the dominant grievance of the petitioners (Annexure-C). It is the case of the Respondents that such terms and conditions 4. have been incorporated and further clarified through the corrigendum to fetch potential contractors having sufficient credentials for the execution of the similar nature of work. In this background, Respondents have contended that the grievance of the petitioner have been duly considered, acted upon and remedied. However, it is within the domain of the employer to incorporate the condition relating to both flexographic printing machine and Web Offset machine which would increase the number of bidders as well as supports the Respondents in choosing and deciding the bidder with a better rate. Learned counsel for the Respondents has also relied upon the decision of the Apex Court in the case of Afcons Infrastructure Limited versus Nagpur Metro Rail Corporation Limited and Another [(2016) 6 SCC 818, Para-13] and in the case of Silppi Constructions Contractors versus Union of India and others [2019 SCC OnLine 1133, para-19 & 20]. Learned counsel for the Respondents have also relied upon the latest decision of the Apex Court rendered in the case of Uflex Limited versus Government of Tamil Nadu and other [(2022) 1 SCC 165] which reiterated the legal position regarding the scope of interference in the matter of tender condition prescribing technical qualification under writ jurisdiction
9. Petitioner has also relied upon Wednesbury Principle of Unreasonableness as elucidated in the case of Jagdish Mandal versus State of Orissa and others [(2007) 14 SCC 517] which lays down the principles in which interference is warranted.
9. It appears that the terms and conditions of the eligibility criteria under Clause (c) of Section VI have not been relaxed. Rate of the notebook has been fixed by the Cabinet. All these conditions lie within the specific domain of the employer. On the face of it, none of the conditions are arbitrary and unreasonable.
10. We have considered the rival submissions of the parties in the light of the material pleadings on record and also examined the plea of the petitioner as regards the terms and conditions specifically under challenge. Ex-facie, we do not find any arbitrariness on the part of the employer in incorporating two different technologies for the purposes of inviting bids for procurement of notebooks. In fact, Respondents have redressed the objections of the prospective bidders to the extent that the Flexographic Printing technology has been included in the tender condition along with Web Offset technology by way of a corrigendum. The condition relating to eligibility criteria of past successful 5. transaction also do not appear to be arbitrary or unreasonable. The condition also had reasonable nexus to have more bidders in the fray to fetch best competitive price. Petitioner has been ineligible in the tender process, as per the submission of learned counsel for the petitioner. Learned counsel for the Respondent JEPC informs that in the tender process, technical evaluation of the bids has been undertaken. We, therefore, do not find any ground to interfere in the ongoing tender process. Writ petition being devoid of merit, is accordingly dismissed.
(Aparesh Kumar Singh, J) (Deepak Roshan, J) Ranjeet/