Calcutta High Court (Appellete Side)
Sandip Nayak vs The State Of West Bengal & Ors on 13 January, 2015
Author: Patherya
Bench: Patherya
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
Present : The Hon'ble Justice Nadira Patherya
W. P. NO. 23018 (W) OF 2013
Sandip Nayak
VERSUS
The State of West Bengal & Ors.
For the Petitioner :Mr. Saktinath Mukherjee,
Mr. Saptangsu Basu,
Mr. Sagar Banerjee,
Mr. Arindam Banerjee,
Mr. Satadru Lahiri.
For the State :Mr. Tapan Kumar Mukherjee,
Mr. B.K. Mukherjee.
For the Council :Mr. Laxmi Gupta,
Mr. Ekramul Bari,
Mr. S.S. Mondal.
For the Respondent : Mr. Hirak Kumar Mitra,
No.14 Mr. Dipta Bhanu Dutta,
Ms. Arpita Basu.
Heard on : 05.08.2014, 07.08.2014, 29.08.2014,
31.10.2014, 10.11.2014, 05.12.2014,
11.12.2014, 12.12.2014, 19.12.2014.
Judgment on : 13th January, 2015.
Patherya J. : By this writ petition the petitioner seeks to cancel the decisions taken pursuant to tender notice dated 29th April, 2013, so also to award the work order in respect of textbooks to the petitioner.
The case of the petitioner is that quotations were invited from reputed and bona fide publishers for printing and publishing textbooks for the West Bengal Council of Higher Secondary Education (Council) against annual payment of royalty on terms and conditions set out in the tender notice. One of the conditions of the tender was that the publisher must have a proven record for publishing textbooks for boards for the last three years. As the petitioner had experience in publishing textbooks for the Madrasah Board, an offer was made. The royalty offered by the petitioner was 35%, as against the 25% offered by the successful bidder, therefore, the petitioner's offer ought to have been considered at the time of opening of the tender on 15th May, 2013.
A meeting was held on 16th May, 2013, whereat the Tender Committee decided unanimously to issue a work order in favour of the private respondent no.14 in respect of seven books. At the said meeting the terms of the tender was altered by not making the percentage of royalty as the chief criteria, which is not permissible. The reason given for rejecting the petitioner's offer was lack of experience and the complaint filed against the owner of Grantha Tirtha, father of the petitioner. The Secretary, School Education Department directed a meeting to be held in the Chamber of the President of the Council in the presence of Government observers, which was held on 19th June, 2013 and 24th June, 2013.
At the meeting held on 24th June, 2013 the petitioner was found to have previous experience of publishing books. The rate of royalty was also fixed at 26% and on the basis thereof, a work order was issued to the petitioner for printing and publishing three textbooks of Sanskrit, Environment Studies (English Version) and Paribesh Vidya (Bengali Version). In fact, on 14th March, 2013 the agreement between the Council and respondent no.14 was cancelled pursuant to the objection raised by the petitioner. On 28th June, 2013 a work order was issued in favour of the respondent no.14 for the years 2013-14, 2014-15 & 2015-
16. The said work order issued to the respondent no.14 is contrary to the terms of the tender and although the printing and publishing has been distributed amongst the petitioner and other publishers of College Street the printing of four major textbooks has been entrusted to the respondent no.14. The respondent no.14 has not published books for either the Council or the Board. In fact, it is only to favour the respondent no.14 that in the curriculum of the Council, Gulliver's Travels has been included. The said was not in the syllabus of the Council for the earlier years.
Although a complaint was filed against Grantha Tirtha and an FIR registered, but in the FIR the petitioner is not an FIR accused person. On investigation a charge-sheet has also been issued but the petitioner is not a charge-sheeted accused. Therefore, one of the grounds for not considering the petitioner's candidature is not unsustainable. Another reason for rejecting the petitioner's candidature is lack of experience in publishing textbooks as per Clause (b) of the tender notice.
In the petition filed it has been specifically stated that the petitioner had published textbooks for the Madrasah Board which finds no denial in the affidavit of the Council. The respondent no.14 has also not dealt with the said issue in the affidavit filed by it. Payment of royalty was the sole criteria for floating the tender which is to be paid by the publishers to the Council. The petitioner was ready and willing to give 35% royalty and even if, the Council is of the opinion that it would be satisfied with 26%, the petitioner had expressed its readiness and willingness to pass on 9 % of the royalty proposed to the students. There is no denial of publication of Madrasa textbooks by the petitioner. The petitioner has specifically alleged that the respondent no.14 had no experience in publishing textbooks and it is only books which it had published. The said has not been denied by the respondent no.14 in its affidavit filed.
Section 4 of the West Bengal Council of Higher Secondary Education Act (Act) provides for composition of the Council. Section 23 makes it mandatory for 1/3rd of the Council's members to be present to constitute quorum. Section 18 postulates formation of a Board and Section 19 a Tender Committee. No Board or Tender Committee was, in fact, constituted and the decision was taken solely by the President to issue the work order in favour of the respondent no.14. It is only on protest raised that the agreement with the respondent no.14 was cancelled. Favoritism is writ large. No affidavit has been filed by the President of the Council and the allegation of extraneous consideration raised by the petitioner has not been dealt with. In view of (2005) 8 SCC 438, 10% of the profit earned out of the said project be paid by the respondent no.14 to the petitioner.
After meeting held on 24th June, 2013 a negligible order for publishing and printing the textbooks was sought to be placed on the petitioner which it has refused to accept as it was eligible to execute the entire tender. Three textbooks which are compulsory in the syllabus of the Council have been awarded to the respondent no.14. The basis of such award is not known and all that can be said is that it is only to favour the respondent no.14 that the said exercise was undertaken. The President or the Council was empowered to cancel the tendering process of April 2013 and issue a first tender but the said was not undertaken, as a work order had been issued in favour of the respondent no.14.
Therefore, as the work order issued to the respondent no.14 is the result of favoritism, the work order and all decisions taken pursuant thereto be set aside.
Counsel for the Council submits that the tender notice is dated 29th April, 2013 and books were to be printed and published for a period of three years starting June 2013 to August 2015. The petitioner did not satisfy condition (b) as only textbooks of the Madrasa Board was printed and published by him.
The term 'proven record' would mean volume of published books. The petitioner ventured to publish textbooks for the Madrasa Board in 2004-05 but the volume of books published was not enough to qualify it, therefore, for lack of experience the petitioner's candidature was not considered. Credibility was the other criteria. In view of the FIR filed against the petitioner he was disqualified. Even assuming that the petitioner was not an FIR accused person, his close connection with Grantha Tirtha disqualified him. Therefore, without any credibility or proven record, 35% royalty offered could not have been the sole criteria to accept the petitioner's offer. The only reason for the petitioner to make such a high offer of royalty was to lure the Council.
Clause (k) of the tender terms was another criteria to be considered. Therefore, for issuance of a work order the bidder was to satisfy Clauses (b), (c) & (k). At the time of opening of tenders on 15th May, 2013 the reason for rejecting the petitioner's candidature was for lack of experience and insufficient credibility and for no other reason.
That the petitioner joined the business of Grantha Tirtha in 1988 cannot be questioned. Therefore, a nexus exists between the petitioner and the owner of Punascha and Grantha Tirtha. As the credibility of the petitioner is in doubt the Council was justified in not initially issuing any work order in favour of the petitioner. At the meeting held on 16th May, 2013 the candidature of the petitioner was found not satisfactory and on the ground of lack of experience and unscrupulous activities the petitioner's offer was rejected. At meeting held on 24th June, 2013 it was found that the petitioner had experience and by placing order credibility criteria was also waived. Although it has been argued by the petitioner that the Tender Committee was not constituted the said issue has not been raised in the writ petition. There is no dispute with the proposition laid down in (2000) 5 SCC 287 as the Counsel was competent to alter the terms. A work order was also issued to the petitioner by letter dated 3rd July, 2013 which the petitioner refused to accept. The 35% bogey sought to be raised by the petitioner, cannot be raised as it was agreed on 24th June, 2013 to fix royalty at 26%. Therefore, there has been no change in the tender term. The Council is justified in not accepting the petitioner's offer in view of AIR 2001 SC 682 wherein it has been held that the eligibility criteria if not satisfied by the highest offerer need not be accepted. By placing reliance on (2005) 8 SCC 438 the petitioner seeks disgorgement of profit. To seek such relief, profit is to be shown and there must be an allegation of work order issued illegally but, no such strong case has been made out. All that has been alleged is that the deprivation of the petitioner is bad, therefore, the reported decision is not to apply. As 26% has been accepted as royalty, the question of raising the same cannot arise. Judicial review can be exercised on three principles as laid down in (2007) 8 SCC 1 and (2006) 10 SCC 1, namely, illegality, irrationality and procedural impropriety. Therefore, scope of interference of a Writ Court in matters of judicial review is limited. The respondent no.14 has published textbooks included in ISC syllabus for class 12, namely, Star Light and for ICSE syllabus for class 9 and 10, namely, Discover history and Civics. Therefore, as the respondent no.14 satisfied not only the eligibility criteria (b) & (c) but all other criteria, a work order was issued in its favour. An offer was also made by the Council to the writ petitioner which has not been accepted. Another reason for non-acceptance is the inability of the petitioner to publish books in volume and textbooks. In fact, a counter-offer was made by the petitioner. The decision reported in AIR 1978 SC 851 is not applicable to the facts of this case. Therefore, this application merits no order and be dismissed.
Counsel for the respondent no.14 submits that on the ground of suppression alone this application merits no order. The relation between father and son is apparent. Grantha Tirtha is run by the father and Punascha is run by the son. The business of both father and son is carried on from the same premises. Both use the same Fax number and Telephone number too. The undertaking postulated under Clause (h) of the tender notice has not been satisfied by the petitioner as it is indulging in piracy of Gulliver's Travels. Although the grounds of rejection is lack of experience and unscrupulous activities, the said finding has not been challenged by the petitioner. It was the Secretary who raised questions in respect of the work order of the respondent no.14. There has been no compliance with Section 35 of the 1975 Act and the Secretary has no power to raise such issue. The work order issued is not based on royalty alone but various other factors which form the terms and conditions of the tender. To allege that the highest rate of royalty is to be considered at the instance of an outside agency is pre- posterous.
Reliance is placed on AIR 1952 SC 16. It was a legally appointed body which issued the work order but it was at the instance of the Government that the work order was set aside and it was under
Government influence that the meeting of 24th June, 2013 was held and although the petitioner has alleged that it has published textbooks for the Madrasa Board but such Board is not included in the tender notice and, therefore, the writ petition is not maintainable.
Plagiarism alone should warrant dismissal of the writ petition. (2005) 8 SCC 438 is distinguishable so also (2000) 5 SCC 287. Reliance is placed on 63 CWN 1 for the proposition that the proceeding and decision of a miscellaneous body must be adjudged to be void. Reliance is also placed on (1976) 3 SCC 585. Therefore, the application be dismissed.
In reply Counsel for the writ petitioner submits that royalty which formed the sole criteria of the tender notice was given a go bye. Quotation was called for royalty. The forward of Gulliver's Travels is dated prior to the tender notice. The entire exercise was undertaken by the President of the Council to favour the respondent no.14 and, therefore, the decisions be set aside.
Having considered the submissions of the parties, on 29th April 2013 a tender was floated inviting offers from printers and publishers of textbooks. The relevant clause of the tender were clauses (b) and (c). Initially the petitioner's offer was rejected as it did not satisfy the clauses mentioned above. Subsequently a meeting was held in the presence of Government observers by the Council on 24th June, 2013 and the reasons for rejecting the petitioner's offer, namely, lack of experience and unscrupulous activities was waived. An offer letter was also issued to not only the petitioner but to the respondent no.14 and Book Syndicate. The offer made to Book Syndicate has been accepted by it while the petitioner refused to accept the offer made to it for the reason that the major textbooks for printing had been given to the respondent no.14. The placement of bulk order on the respondent no.14 is objectionable as it is not equal distribution of largesse in the true sense of the term. On cancellation of the agreement of the respondent no.14 and when the petitioner was found eligible at the meeting held on 24th June 2013, it should have been treated on par with the other bidders. In not doing so the favoritism shown to the respondent no.14 initially was continued and maintained. It is the specific case of the petitioner that the respondent no.14 was favoured by the Council and the said case has been proved by issuance of work order in favour of the respondent no.14 for the major textbooks of the Council even in June 2013 for the period covered by the tender of 2013.
On 14th March, 2013 the respondent no.14 was issued a work order for printing and publishing the following textbooks:-
a) English-A and alternative English for Class XI & XII - 5000 copies.
b) English-B Prose, Poems and Plays for Class XI & XII - 7,00,000 copies.
c) Bangla-B Prose, Poems and Plays for Class XI & XII - 5000 copies.
Separate agreement was also entered into between the Council and the respondent no.14 for the aforesaid. Agreement was also entered for - Bangla-A Prose, Poems & Short story for Class XI.
The said books also find mention in the work order issued on 28th June, 2013, i.e., after the meeting dated 24th June, 2013. The numbers of the books to be published have negligibly been reduced. Therefore, in effect the textbooks given for publication to the respondent no.14 in March 2013 remain unaltered even in June 2013. This, therefore, does not evidence fairness on the part of the Council despite the duty to act fairly cast on it.
Although the petitioner has contended that the respondent no.14 did not publish textbooks for any board for three consecutive years therefore had not satisfied criteria (b), the said cannot be accepted as from the records produced in Court by the Council it is evident that textbooks had been published by the respondent no.14 for Boards. One of the books printed and published is 'Star Light' which was a part of the syllabus for ISC (Class XI and XII) for examination to be held in 2011 and the textbook had to be published in 2009. Therefore, this submission of the petitioner cannot be accepted.
That favoritism has been shown to the respondent no.14 cannot be doubted but the tender was floated in 2013 and was for a period of three years. Textbooks have been published for 2013-14 and 2014-15. Publication for 2015-16 is yet to be made. Accordingly the work order issued in favour of the respondent no.14 for 2015-16 is cancelled and the Council directed to take a decision in respect of the tender of 2013 restricted to 2015-16 only, within three weeks from the date of receipt of this order.
This order is passed to ensure transparency and fair play in the procedure to be followed and in no way to affect the future of the students.
Although the petitioner relied on (2005) 8 SCC 438 for the purpose of disgorging 10% of the profit earned by respondent no.14, the said relief cannot be granted as the reported decision is distinguishable on facts. In the reported decision the project was completed, it is not so in the instant case. However it will be open to the petitioner to claim damages if so entitled to in law from the Council or the respondent no.14.
In view of the aforesaid this application is disposed off.
(Patherya J.)