Gauhati High Court
Progoty Supply & Co-Operative Society ... vs The State Of Assam And Ors. on 18 September, 1995
Equivalent citations: AIR1996GAU72, AIR 1996 GAUHATI 67, (1996) 1 BANKCLR 434 (1995) 3 GAU LR 327, (1995) 3 GAU LR 327
ORDER D.N. Baruah, J.
1. All the above Civil Rules can be disposed of by a common judgment and order as all the Civil Rules arose out of work orders issued in pursuance of the notice inviting tenders dated 29-5-95 issued by the Commissioner and Secretary to the Government of Assam, Election Department, Dispur, Guwahati.
2. Facts for the purpose of disposal of these Civil Rules are as follows:
Election Commission of India gave direction to the Government of Assam for preparation of photo identity cards of approximately 1.23 crore of voters comprised in 126 Legislative Assembly Constituencies. Pursuant to that the Government of Assam, Election Department issued a notice inviting tender bearing No. ELE. 240/94/111 dated 29-5-95 under the signature of the Commissioner and Secretary to the Government of Assam, Election Department, Dispur. By this notice inviting tender (for short the NIT) sealed tenders were invited from "well established firms/ concerns of national repute" for undertaking the job of preparation and supply of Photo Identity Cards for all electors living in the State of Assam on turn key basis in conformity with the specifications prescribed by the Election Commission of India. The Photo Identify Cards would be prepared for approximately 1.23 crore electors comprised in 126 Legislative Assembly Constituencies in the State of Assam. By the said NIT it was informed that the tenders would be received by the Commissioner and Secretary to the Government of Assam, Election Department, Dispur, up to 4 PM on 20-6-95 and would be opened at 5 p.m. on the same day, if possible. The Commissioner and Secretary to the Government of Assam, Election Department reserved the absolute right to accept or reject any or all tenders without assigning any reason, whatsoever, or to reinvite the tenders. Earnest money deposit fixed for the tender was Rs. 50,000/- only. General norm as indicated in the NIT was that cards should have to be prepared in duplicate. The original Identity Cards should be laminated and sealed individually. But a number of miniature Identity Cards or Photo reduced Identity Cards should be collectively pouch laminated and neatly stored in pouches of the shapes of thin fine but durable sheets of A-4 size. One A-4 size sheet pouch should contain 50 such cards. The size of the card as mentioned in the NIT was 7 cm. (Horizontal) x 9 cm. (vertical) without transparent edges. There should be no complaint regarding the edges and edges should be so fused that the cards could not be opened without destroying the same. The lamination should be fused throughout including at the edges and should be incapable of being opened without destroying and defacing the Photographic Identity Card itself. Further particulars of the Photo Identity Cards had also been mentioned in the said NIT. One of them was hologram. It had been further mentioned that a laser based metallic foil to be affixed or embossed or Laster Printed on the card itself. It should be a circle with 2 cm. diameter embossed on the front page of the card itself in such a way that the same would not be removed or peeled off without destroying the card/ lamination. The hologram should be embossed/affixed/laser printed in such a way that a portion of the hologram covered the photograph of the electors. However, it should be ensured that while embossing/affixing/laser printing of the hologram, the features of the electors would not be obliterated or otherwise made indistinguishable. The hologram should have a printed replica of the official Logo of the State, i.e. one horned Rhinoceros. The place of taking photographs and the particulars of electors as mentioned in the said NIT would be Polling Stations, Panchayat Offices or place/places as might be decided by the concerned District Election Officers or Electoral Registration Officers. If required the photographs and the particulars of the electors should have to be taken by house to house visits in appropriate cases. The format of the card had also been prescribed. General terms and conditions were also mentioned in the said NIT.
3. Pursuant to the said NIT as many as 42 tenderers submitted their tenders and on 20-6-95 the tenders were opened. After opening it was found that 42 tenders submitted their tenders quoting different rates ranging from Rs. 8/- to Rs. 49/-. Tenderer, Lohia Jute Press, Santacruz, Bombay (respondent No, 3 in Civil Rule No. 2901/95, respondent No. 8 in Civil Rule No. 2913/95 and respondent No. 4 in Civil Rule No. 3032/95) quoted Rs. 14.00, Baghmari Tea Estate Ltd., Netaji Subhas Road, Calcutta, respondent No. 4 in CR 2901/95, Respondent No. 7 in CR 2913/ 95 and Respondent No. 3 in CR 3032/95, quoted Rs. 14.00, Saraswati Press Ltd., 5, BT Road, Calcutta (respondent No. 2 in CR 2901/95, Respondent No. 9 in CR 2913/95 and Respondent No. 2 in CR 3032/95). quoted Rs. 16.00, and 16.50 in respect of some districts, SM Computer Consultants, GNB Road, Silpukhuri, Guwahati (petitioner in CR 2913/95) quoted various rates ranging from Rs. 8/- to Rs. 12/-, Progoty Supply andCo-op. Society, Ltd., BT College Road, Lachil Nagar, Guwahati (Petitioner in CR 2901/95) quoted Rs. 15.50 and New Fotolab, Calcutta (Petitioner in CR No. 3032/95) quoted Rs. 11.96.
4. Petitioners came to know from newspaper report published from Guwahati that the contract had already been awarded to the Respondents, namely, Bagmari Tea Estates Ltd., Lohia Jute Press and Saraswati Press Ltd. The petitioners contended that respondent Saraswati Press quoted Rs. 16/- and Rs. 16,50 per Identity Card and 0.25 paise extra per hologram in respect of some of the districts mentioned above and the rates were much higher than the rates quoted by the petitioners. Petitioners further contended that the Authority awarded the contract to Saraswati Press after holding a secret negotiation by reducing the rate from Rs. 16.50 and Rs. 16.00 to Rs. 14.00. They submitted valid tenders fulfilling all the conditions including supplying 60 Nos. of different samples as required under the NIT. The petitioner SM Computer Consultants was also willing to present an Audio-Visual presentation of the profile of the tender before the tender Committee. However, the Authority did not give any opportunity to the petitioners to present their audio visual profile to Judge their ability in connection with the preparation of photo identity cards. The respondent-authority, according to the petitioners, most arbitrarily and illegally by holding a secret negotiation allotted the work to the aforesaid respondents behind the back to the petitioners and other tenders similarly situated at much higher rate in gross violation of all mandatory provisions of the tenderand provisions of Articles 14, 19, 21, 300A of the Constitution and principles of natural justice.
5. Being aggrieved by the decision of the respondent authority in awarding the contract to the three firms, namely, Lohia Jute Press, Baghmari Tea Estate Ltd. and Saraswati Press Ltd., the petitioners have approached this Court by filing separate writ petitions.
6. The contention of the petitioner in Civil Rule No. 2913/95 -- M/s. S. M. Computer Consultants, inter alia, is that it is a partnership firm in the district of Kamrup at Guwahati and Ms. Mamoni Barthakar, one of the partners of the said firm, in fact, has been managing the affairs of the said firm. She passed B.Sc. with honours in Physics from Delhi University. She qualified herself in Radio Physics and Electronics and obtained her B.Tech. Degree from Calcutta University. She is a leading entrepreneur of the State. On completion of all her higher studies, she established a computer firm with her husband Sanjeeb Borthakur and they have been undertaking various job works like electronic data processing, software development self-service of computer and accessories, imparting training etc. and their firm has been able to earn a good reputation in the entire North Eastern Region. This firm is registered as a Small Scale Industrial Unit and is also registered with National Small Industries Corporation Ltd. -- a Government of India Enterprise. As a registered Small Scale Industrial Unit under the State of Assam and under the National Small Industrial Corporation, the petitioner firm is entitled to various preferences including the price preference up to 15% over the quotation of large scale units and other tenderers.
7. Petitioner in Civil Rule No. 2901/95 --Progoty Supply and Co.Op. Society Ltd., in its writ petition has stated, inter alia, that the petitioner society is a cooperative society registered under the Cooperative Societies Act. The Society's main aim and objective is for economic upliftment of its members. The Society is formed with members belonging to Scheduled Caste, Scheduled Tribe and other Backward Classes. Being a Cooperative Society, the petitioner enjoys some preferential treatment and concession in settlement of contract and permit etc. The petitioner Society is the only Co-operative Society which submitted tender pursuant to NIT. The Society quoted Rs. 15.50, but the respondent authority allotted the work to respondent --Saraswati Press at Rs. 14/- although it offered much higher rate than the petitioner by private negotiation with it behind the back of the tenderers. If that be so, the petitioner also ought to have been invited for negotiation. However, the petitioner was not invited. According to this petitioner there was no compelling reason necessitating departure from tender procedure after the tenders were duly called and when the tender process was in progress, and therefore, such action of the respondent authority was highly irrational and suggestive of discriminatory and devoid of public good. As such, the impugned order of allotment dated 15-7-95 was liable to be quashed and set aside.
8. Now Fotolab, petitioner in Civil Rule No. 3032/ 95 is a proprietorial concern owned by Smt. Sokhisona Mullick. The petitioner has been engaged in photography business since 1978. It is registered as a Small Scale Industrial Unit under the Government of West Bengal for coloured, black and white photo processing. The petitioner possesses an air-conditioned studio and three colour photographic laboratory units. The Government of West Bengal appointed the petitioner as an Agency for preparation and issue of Photo Identity Cards to the electors in 9 Assembly Constituency in the Hoogly district for an electorate of approximately 14, 36, 144 persons by order dated 8-12-94 passed by the Government of West Bengal. The work in the West Bengal started for the entire State on 27-1-95 and the time for completion was extended up to 15-8-95. Petitioner for this job engaged about 65 Video Cameramen and purchased 30 highly sophisticated computer, laser printers, 5 laminating machines. 8 VCRs and many other related machinery. Petitioner has in fact completed about 75% of the work assigned to it by the Government of West Bengal and its performance has been to the satisfaction of the authority of the Government of West Bengal. Annexure-E certificate, according to the petitioner is a testimony to this. Petitioner's business is managed by a professional management team. The owner of the firm is also a Graduate from Calcutta University and has, thereafter, completed successfully Diploma Course in Photography under the Eastern Indian Photographic Traders Association in 1981 and has also acquired PG Diploma Course in Computer Application from UPTRON -- a Government of UP Enterprise. The petitioner quoted a uniform rate of Rs. 11.96 which is much lower than the rate at which the work orders were given to three concerns, namely Lohia Jute Press, Baghmari Tea Company Ltd. and Saraswati Press Ltd. Thus by this, the petitioner wanted to give an impression that the petitioner has full experience in this line and was capable of performing the job.
9. Affidavits-in-opposition have been filed by respondents -- Saraswati Press Ltd, Baghmari Tea Company and Lohia Jute Press and reply affidavits have also been filed. Government has also filed affidavit-in-opposition.
10. Heard Mr. N. Dutta, learned counsel appearing on behalf of the petitioners in Civil Rule Nos. 3032/95 and 2901-/95 and Mr. P. Pathak, learned counsel appearing on behalf of the petitioner in Civil Rule No. 2913/95. Also heard Mr. S.N. Bhuyan, learned Advocate General, Assam appearing on behalf of the State of Assam and other official respondents. Mr. A. K. Phukan, learned senior counsel appearing on behalf of respondent Lohia Jute Press, Mr. B. K. Das, learned Senior counsel appearing on behalf of respondent Saraswati Press Ltd. and Mr. H. Mitra, learned counsel appearing on behalf of respondent Baghmari Tea Company.
11. Mr. Pathak submitted before this Court that the rejection of the tender of the petitioner -- S. M. Computer Consultants was illegal and contrary to the NIT. Learned counsel further submitted that the rejection on the ground of lack of experience was also illegal inasmuch as the petitioner's tender was not properly scrutinised. The ground of non furnishing of proper sample and lack of experience for the purpose of rejection of the tender, on the face of it was without any basis. In fact these were only clever ruse just to get rid of the petitioner. The petitioner wanted to present an audio visual profile to show its capability it was rejected without any reason. This audio visual display was one of the conditions of the NIT which was not followed. The petitioner, having filed valid tender, has reasonable expectation to get the work order for doing the job.
12. Mr. N. Dutta challenged the decision of the respondent authority to give the work to the respondents, namely, Saraswati Press Ltd., Baghmari Tea Company and Lohia Jute Press. According to Mr. Dutta, the Selection Committee without proper application of mind selected only Baghmari Tea Company and Lohia Jute Press although the petitioners quoted lower rate. Thereafter, at the instance of the Commissioner and Secretary a portion of the contract work of 23 Lakh photo identity cards had been allotted to Saraswati Press Ltd., who quoted much higher rate than the rate offered by the petitioner. This had been done in private negotiation. Mr. Dutta further submitted that this opportunity also ought to have been given to the petitioner as well. Mr. Dutta also submitted that as per the NIT tenders should be capable of performing the entire job within the time prescribed, however, nobody was ready to perform the entire job within the time specified, except respondent Lohia Jute Press Ltd. This itself, according to Mr. Dutta was a departure from the conditions laid down in the NIT. Learned counsel further emphasized that the petitioner's tender was rejected on the ground that it was a conditional tender and as per the NIT conditional tender could not be accepted. Saraswati Press Ltd. was given work order although the said press also submitted conditional tender. Therefore, awarding of contract to Saraswati Press was discriminatory and violative of Article 14 of the Constitution. Learned counsel further submitted that the entire action of the respondent authority was unreasonable, unfair and as such cannot sustain.
13. Mr. Dutta learned counsel also appearing on behalf of the petitioner in Civil Rule No. 2901/95 -- Progoty Supply and Coop. Society Ltd., submitted that the tender of this petitioner was also rejected without proper scrutiny. The petitioner was a Cooperative Society formed with members of Scheduled Castes, Scheduled Tribes and other Backward Classes and was, therefore, entitled to preferential treatment. But without considering that aspect its tender was rejected on some grounds which were absolutely irrelevant and extraneous.
14. From the arguments advanced by the learned counsel for the petitioners it appears that the main attack of the petitioners was against awarding of contract work to Saraswati Press Ltd. They did not specifically challenge the action of the respondent authority in giving work order to other respondents viz. Baghmari Tea Company Ltd. and Lohia Jute Press.
15. Mr. B. K. Das, learned counsel appearing on behalf of respondent -- Sara-swati Press Ltd., on the other hand, tried to justify the action of the respondent authority in awarding a portion of the contract work to Saraswati Press Ltd. The first contention of Mr. Das was that the petitioners had not challenged the work order issued to Saraswati in the writ petitions. According to the learned counsel this respondent attended a meeting held on 17-5-95 and thereafter, when the agreement was concluded, respondent proceeded with the preparation of the infrastructure. The interim order maintaining status quo only halted the further progress of the execution of the contract work. The agreement between the Government of Assam and the respondent Saraswati Press Ltd. had formally been executed on 7th July, 1995 vide Annexure-14 of the affidavit-in-opposition filed by Saraswati Press Ltd. According'to the learned counsel, validity of the contract which was entered into by the Government with this respondent could not be challenged by way of writ petition in a concluded contract like in the present writ petitions. Learned counsel further submitted that the present petition would not be maintainable as the work order ought to have been challenged specifically. Regarding petitioners legitimate expectation to get work order, the learned counsel submitted that there could be three classes of cases, namely, (a) application cases, (b) forfeiture and (c) expectation cases. In application cases no right accrued and, as such, there could not be any legitimate expectation. Furthermore, legitimate expectation would not create any enforceable right. The applicant who fell in the category of application cases which was liable to be summarily rejected apart from the invalidity of the tender itself could not raise the question of legitimate expectation. In this connection, learned counsel drew my attention to several decisions of the Apex Court.
16. Mr. Phookan, learned counsel appearing on behalf of Lohia Jute Press also supported the action of the respondent authority. According to him the work order had been issued rightly after proper scrutiny and evaluation of tenders. He further submitted that the work order having followed by execution of agreement, the contract was complete. Therefore, the petitioner could not have invoked the power of this Court under Article 226 of the Constitution. In other words, Mr. Phookan submitted that in case of this nature judicial review was not possible and, therefore the petitions were liable to be dismissed summarily. Mr. Phookan further submitted that as per N.I.T. tenderers were required to submit along with other documents, the document of experience and the petitioners having failed to produce such documents, they remained outside the zone of consideration for receiving the work orders. Mr. Phookan also refuted the claim of the petitioners that they have the legitimate expectation of receiving the work orders pursuant to the N.I.T. In the facts and circumstances of the cases, according to Mr. Phookan, the petitioners did not have any enforceable right. Mere legitimate expectation, according to him, was not enough to approach this Court for a writ of certiorari or mandamus.
17. Mr. Mitra, learned counsel appearing on behalf of respondent Baghmari Tea Company also supported the action of the respondent authority, Mr. Mitra submitted that as nothing had been stated against this respondent he was not required to make any submission.
18. Mr. S. N. Bhuyan, learned Advocate General, Assam appearing on behalf of the State of Assam and other official respondents, on the other hand, submitted that the work orders had been given after proper evaluation of the tender papers. There was nothing wrong in the decision making process and, therefore, the decision, even if it was not proper, would not be interfered with by this Court, Article 226 did not empower a High Court to sit as a Court of Appeal. Findings arrived at regarding award of contract could not be questioned if the process by which the respondents had come to the conclusion did not suffer from any vice. Learned Advocate General further submitted that the rates quoted by some of the tenderers were though lower, their tenders were rejected on various grounds. Rs. 14/- being the lowest quoted rate after rejection of other tenders, the action of the respondent authority could not be said to be arbitrary. According to learned Advocate General it was not that the rates quoted by the petitioners were not workable, but their tenders were rejected being defective.
19. On the rival contentions of the parties now the questions fall for determination is whether writ petitions are maintainable and if so, whether awarding of the contract to the said three respondents, namely, Saraswati Press Ltd., Lohia Jute Press and Baghmari Tea Company was just, proper and reasonable and whether the action suffers from other vices.
20. Learned counsel for the respondents Saraswati Press Ltd. and Lohia Jute Press contended that the said respondents tenders were accepted by the authorities and agreements had already been executed by and between the Government and those respondents and the work orders had also been issued. Therefore, judicial review was not open.
21. It is true, contract for execution of the work had already been concluded. It is well settled that there cannot be judicial review for enforcement of the terms of the contract. But then the petitioners in the present cases have challenged the action of the respondent authority in accepting the tenders of the aforesaid three respondents, namely, Baghmari Tea Company, Lohia Jute Press and Saraswati Press Ltd. By no means it can be said that the petitioners have sought for a judicial review for enforcement of the terms of the contract.
22. In view of the above, I do not find any force in the submission of the learned counsel for respondents Saraswati Press Ltd. and Luhia Jute Press.
23. Before considering the merit of the case it would be apposite to notice some of the provisions of the N.I.T. I have perused the N.I.T. From the N.I.T. it appears that the Government of Assam, Election Department issued N.I.T. under the signature of Shri P.P. Verma, Commissioner and Secretary to the Government of Assam, Election Department, inviting sealed tenders "from well established firms of national repute" for undertaking the job of preparation and supply of Photo Identity Cards for all electors living in the State of Assam (approximately 1.23 crore) comprised in 126 Legislative Assembly Constituencies on turn-key basis. Clause 4 of the terms and conditions of the N.I.T. requires a uniform rate to be quoted in words and figures for each Identity Card issued including the duplicate one as specified. Under Clause 9 tenderer should be able to undertake the work in full quantity within the time specified. A successful tenderer, as per Clause 13, should have to equip its Camera/Identity Card preparation teams with portable generator sets and provide other infrastructural facilities to them to carry out their work. As per Clause 15, the tenderers should submit a documentated profile of the firms standing, work experience in the field of preparation of laminated photographic Identity Cards with hologram along with certificates/testimonials in support of such work experience. Under Clause 19, the tenderers should not under any circumstances revise their rate already quoted and must complete the work within the time limit indicated in the N.I.T. Any delay on the part of the tenderer in execution of work beyond the time limit fixed should make him liable to pay penalty to be decided by the Commissioner and Secretary to the Government of Assam, Election Department up to 10% of the total work value. Clause 22 requires audio visual presentation of the profile of the tender offer on the date that may be specified by the Commissioner and Secretary to the Government of Assam, Election Department or before such committee as may be appointed by the State Government after submission of the tender papers. I quote the relevant clauses of the N.I.T. "4. A uniform rate should be quoted both in words and figures for each Identity Card issued including the duplicate one as specified above. The rates should be inclusive of all costs including paper, photographs, printing of details on the card, affixing hologram, lamination, preparation of laminated miniature duplicates and all taxes, duties and cess/surcharge. Separate rates should be quoted for each system of photography whether conventional, polaroid or digitised with photograph in black and white.
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9. The tenderers who are capable of undertaking this work in full quantity within the time limit mentioned in this tender notice alone may submit their tenders.
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13. The successful tenderer shall have to equip its Camera/Identity Card preparation teams with portable generator sets and provide other infrastructural facilities to them to carry out their work of preparation of Identity Cards on their own and no such facility shall be provided by the Commissioner and Secretary to the Government of Assam, Election Department or District Election Officers/ Electoral Registration Officers. Some Polling Stations and areas in the State are accessible only on foot. The Identity Cards preparation teams of the successful tenderer, therefore, shall have to make their own arrangements in this regard for undertaking the required work.
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15. The tenderers shall submit a documentated profile of the firms standing, work experience in the field of preparation of laminated photographic Identity Cards with hologram along with certificates/ testimonials in support of such work.
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19. The tenderers shall not under any circumstances revise their rate already quoted and must complete the work within the time limit indicated in this notice. Any delay on the part of tenderer in execution of work beyond the time limit fixed shall make him liable to pay penalty to be decided by the Commissioner and Secretary to the Govt. of Assam, Election Department up to 10% of the total work value.
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22. An Audio visual presentation of the profile of the tender offer shall be arranged on the date to be specified before the Commissioner and Secretary to the Govt. of Assam, Election Department or before such committee as may be appointed by the State Govt. after submission of tender papers."
24. On reading of the N.I.T. especially the clauses mentioned above, it appears that the Government of Assam invited tenders from "well established firms of national repute" for undertaking the job of preparation and supply of Photo Identity Cards. Rates were to be quoted in both words and figures for each Identity Card issued including the duplicate one as specified, etc. The tenderers must be capable of undertaking the work in full quantity within the time limit mentioned in the said tender notice. Commissioner and Secretary to the Government of Assam, Election Department reserved the right to accept or reject any tender or all the tenders without assigning any reason whatsoever and to negotiate the rates with the tenderer or re-invite the tender. Successful tenderers must have to equip its Camera/ Identity Card preparation teams etc. Tenderers were to submit a documentated profile of the firm standing, work experience, etc. Tenderers could not have revised their rates quoted. Audio visual presentation of the profile of the tender offer was also one of the conditions.
25. In Civil Rule No. 2913/95 an affidavit-in-opposition was filed on behalf of respondent Nos. 1 to 6. Learned Advocate General submitted that the said affidavit would be applicable to all the writ petitions. In the said affidavit-in-opposition, respondent authorities have stated that the petitioner in Civil Rule No. 2913/95 failed to fulfil the terms and conditions of the N.I.T. As per Clause 20 of the N.I.T. tenderers were required to supply duly authenticated sample of identity card to be prepared and supplied along with the tender. Petitioner in the said Civil Rule, according to these respondents, did not submit duly authenticated samples as required under the N.I.T. and this was the reason which led the committee to believe that this petitioner would not be able to carry out the job as per the requirement of the N.I.T. The matter relating to the financial position of the State was totally irrelevant in the process of selection of the tenderers since the capability of a particular tenderer was to be judged on the basis of materials on the tenders. Petitioner supplied samples which were below standard and, as such, the tender of this writ petitioner could not be accepted although the petitioner offered rate below the rate accepted by these respondents. The allotment of work had been made in accordance with the recommendation of the committee.
26. Law regarding the award of contract is now well settled in view of various decisions of the Apex Court. It is a settled law that in the matter of entering into a contract, the State does not stand on the same footing as a private person who is free to enter into a contract with any person he likes. The State, in exercise of its various functions, is governed by the mandate of Article 14 of the Constitution which excludes arbitrariness in its actions and requires the State to act fairly and reasonably. Every State action must be fair and be informed of reasons. The action of the State or its instrumentality in the matter of award of contract has to satisfy this criterion. Moreover, a contract would either involve expenditure from the State exchequer or augmentation of a public revenue and consequently the discretion in the matter of selection of the person for award of contract has to be exercised keeping in view the public interest involved in such selection. A State or the instrumentality of a State while dealing with public, whether by way of givingjobs or entering into contracts or issuing quotas or licences or granting other forms of largesse, cannot act arbitrarily at its sweet will and like a private individual, deal with any person it pleases, but its action must be in conformity with the standards or norms which are not arbitrary, irrational or irrelevant. It is, however, recognised that certain measure of "free play in the joints" is necessary for an administrative body functioning in an administrative sphere. (See Ramana Dayaram Shetty v. The International Airport Authority of India, reported in AIR 1979. SC 1628 and Kasturi Lal Lakshmi Reddy v. The State of Jammu & Kashmir, reported in AIR 1980 SC 1992.)
27. The Supreme Court again in a very recent decision in Tata Cellular v. Union of India, reported in (1994) 6 SCC 651 dealt with various aspects of judicial review. In the said case the Apex Court held --
"Observance of judicial restraint is currently the mood in England. The judicial power of review is exercised to rein in any unbridled executive functioning. The restraint has two contemporary manifestations. One is the ambit of judicial intervention; the other covers the scope of the court's ability to quash an administrative decision on its merits. These restraints bear the hallmarks of judicial control over administrative action."
The Court does not sit as a Court of appeal but merely reviews the manner in which the decision has been made. The Court does not have the expertise to correct the administrative decision. If a review of the administrative decision is permitted it would be substituting its own decision, without the necessary expertise which itself may be fallible. The Government must have the freedom of contract. In other words, a free play in the joints is a necessary concomitant for an administrtive 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 mala fides. Another aspect was considered by the Supreme Court in Tata Cellular, (1994) 6 SCC 651 (supra) that a quashing decision might impose heavy administrative burden on the administration and lead to increased and unbudgeted expenditure. In the said case the Supreme Court further observed that it was not open to the Court to review a decision maker's evaluation of the facts. The Court would intervene only where the facts taken as a whole would not logically warrant the conclusion of the decision makers.
The extent of the duty to act fairly would vary from case to case. Shortly put, the grounds upon which an administrative action is subject to control by judicial review can be classified thus -- (i) the decision maker must correctly come to a decision following the accepted principles and shall regulate his decision making power and must give effect to it; (ii) it must not be unreasonable and (iii) there must not be procedural impropriety.
28. In Sterling Computers Limited v. M & N Publications Limited, reported in (1993) 1 SCC 445, the Supreme Court held thus --
"At times it is said that public authorities must have the same liberty as they have in framing the policies, even while entering into contracts because many contracts amount to implementation or projection of policies of the Government. But it cannot be overlooked that unlike policies, contracts are legally binding commitments and they commit the authority which may be held to be a State within the meaning of Article 12 of the Constitution in many cases for years. That is why the courts have impressed that even in contractual matters the public authority should not have unfettered discretion. In contracts having commercial element, some more discretion has to be conceded to the authorities so that they may enter into contracts with persons, keeping an eye on the augmentation of the revenue. But even in such matters they have to follow the norms recognised by courts while dealing with public property. It is not possible for courts to question and adjudicate every decision taken by an authority, because many of the Government undertakings which in due course have acquired the monopolist position in matters of sale and purchase of products and with so many ventures in hand, they can come out with a plea that it is not always possible to act like a quasi-judicial authority while awarding contracts. Under some special circumstances a discretion has to be conceded to the authorities who have to enter into contract giving them liberty to assess the overall situation for purpose of taking a decision as to whom the contract be awarded and at what terms. If the decisions have been taken in bona fide manner although not strictly following the norms laid down by the courts, such decisions are upheld on the principles laid down by Justice Holmes, that courts while judging the constitutional validity of executive decisions must grant certain measure of freedom of 'play in the joints' to the executive."
Again in Union of India v. Hindustan Development Corporation, reported in (1993) 3 SCC 499, the Supreme Court held thus --
".....the Government had the right to either accept or reject the lowest offer but that of course, if done on a policy, should be on some rational and reasonable grounds."
Also in Erusian Equipment & Chemicals Ltd. v. State of West Bengal, reported in (1975) 1 SCC 70 : (AIR 1975 SC 266) the Supreme Court held thus --
"When the Government is trading with the public, 'the democratic form of Government demands equality and absence of arbitrariness and discrimination in such transactions'. The activities of the Government have a public element and, therefore, there should be fairness and equality. The State need not enter into any contract with anyone, but if it does so, it must do so fairly without dis-crimination and without unfair procedure'".
The action of the State or instrumentality of a State while awarding a contract in respect of properties belonging to the State can be judged and tested in the light of Article 14 of the Constitution. 29. The Government of Assam constituted a committee for consideration of various offers given by various tenderers for preparation of photo identity cards in response to N.I.T. issued by the Commissioner and Secretary to the Government of Assam, Election Department. The Committee held its meetings on four days i.e. on 20-6-95, 6-7-95, 7-7-95 and 11-7-95. As informed by the Member Secretary, rates were quoted between Rs. 8/- to Rs. 49/-. He further informed the committee that the terms and conditions laid down in N.I.T. mentioned in clauses 5, 2, 4, 7, 12 and 15 were of greater significance apart from the quality aspects referred in Clauses 2, 3, 4 and 6 of the General Norms of the N.I.T. He also informed that time available was rather short and the task was enormous involving 123 lakh cards approximately and, as such, it was desirable to have more than one party for the job. The committee thereafter, scrutinised all the tenders in ascending order of the offered rates. Scrutiny of first 17 lowest offers revealed that 13 of these offers which were below Rs. 14/- were not acceptable. Reasons for non-acceptance of the said offers were listed in Annexure-I to the report in respect of each of the concerned tenderers. Paragraph 5 of the committee's report reads thus --
"Having found successful bidders, Com mittee considered the rates offered by other 25 tenderers which are all higher than Rs. 14.00, as unacceptable."
Accordingly, the committee recommended that the work of preparation of Voters' Identity Cards in Assam might be offered to the two parties, namely M/s. Baghmari Tea Co., Calcutta and Lohia Jute Press, Bombay.
Reasons for rejection of other tenders were considered by the committee on 6th and 7th July, 1995 and were enclosed with the recommendation. Reasons recorded against the offers of Lohia Jute Press and Baghmari Tea Co. are as follows :
"11.
Lohia Jute Press, Bombay.
Rs. 14.00 Offer acceptable, No condition, uniform rates. Capable to work in entire State.
12. Baghmari Tea Co., Calcutta Rs. 14.00 Offer acceptable."
Reasons recorded against the offers of the petitioners in Civil Rule No. 2913/95 (M/s. S.M. Cumputer Consultants) and Civil Rule No. 3032/95 (New Photo) Lab) are as follows:
"18.
S. M. S. Computers Consultants, Guwahati.
Rs. 8.00-12.00 Sample given is of inferio qualitythan required by NIT. No document submitted to show experience.
17. New Photo Lab, Calcutta Rs. 11.96 Conditional offer, Tenderer not will-ing to work in NCH/KA/Kokra-jhar/Sonitpur districts,"
Reasons for rejection of petitioner in Civil Rule No. 2901/95 (Progoty Supply & Co-op. Society Ltd.) does not find place on record. It is not known on what ground the offer of this petitioner was rejected. From the recommendation it appears that out of 17 lowest offers 13 offers were not acceptable. Apart from that I do not find any reason for non-acceptance of the offer of this petitioner. After the recommendation made by the selection committee, the Member Secretary i.e. the Commissioner and Secretary to the Government of Assam, Election Department put up a note to the Chief Minister. In the said note the Member Secretary informed the Chief Minister that the committee had recommended the rate of Rs. 14/- per card and suggested allotment of work to M/s. Baghmari Tea Company Ltd, and M/s. Lohia Jute Press, Bombay, The Commissioner in his note stated that if it was agreed to allot work to two parties only, each of them would be getting about 62 lakh cards for preparation. The Commissioner further pointed out that in case it was decided to allot the work of preparing 50 lakh cards to each of the two parties, it would be required to look for a 3rd party for remaining 23 lakh cards for which he suggested two options, as under :
"1. Choose one of the other two parties, namely, M/s. HPS India Ltd. and M/s. A. Dhekial, both of whom have quoted rates of Rs. 14/- and are inexperienced.
2. Choose any one else from the tenderers who has experience and agrees to accept the Rates of Rs. 14/- without conditions."
He further suggested thus :
"Option 'I' may not be accepted as both parties are inexperienced and it will not be wise to take risk. For option '2' I would suggest that offer be made to M/s. Saraswati Press, Calcutta which is a W. B. Govt. Undertaking and has requested us to allot work at 10% less than their offer with some conditions. Our offer shall be @ Rs. 14/- per card with Hologram and no choice of the districts. If they agree then work may be allotted as below --
1. M/s. Baghmari Tea (..50 lakhs for 52 constituencies) of (Tezpur + Nowgaon + 8 const. 10 const. old SRR Dist......)
2. M/s. Lohia Jute Press (..50 lakhs for 51 constituencies) (old Goalpara Dist + 19 const. + Old Kamrup Dist......) 23 const.
3. M/s. Saraswati Press (..23 lakhs for 23 constituencies) of Barak Valley/2 Hill (15 constituencies....)"
The Commissioner also proposed that in case Saraswati Press Ltd. did not agree to their proposal they might divide it to the other two parties equally.
The Chief Minister agreed to the said proposal. Thereafter, the work orders were issued to the three parties mentioned above. Baghmari Tea Company and Lohia Jute Press were given the work of preparation of 50 lakh cards each and Saraswati Press Ltd. was given the work of preparation of 23 lakh cards. Being aggreived, out of the remaining 39 tenderers, three tenderers have approached this Court by filing these writ petitions.
30. Now it is to be seen whether the said three parties, namely, Baghmari Tea Company Ltd., Lohia Jute Press and Saraswati Press Ltd. were rightly awarded the work orders and whether the petitioners' tenders were rightly rejected.
31. It will be apposite if the respective tenders of the said three parties are examined. Respondent Baghmari Tea Company Ltd. quoted Rs. 14/- per card for digital computerised imaging system. The above price was inclusive of all costs including paper, photographs, printing of details on the card, affixing hologram, lamination, preparation of laminated miniature duplicates. Delivery time as per their tender was 40 lakh cards per month. Therefore, this company was capable of completing only 80 lakh cards in two months. From the tender it also appears that the company had work experience. It also enclosed "ID Cards in West Bengal". Lohia Jute Press Ltd. is also a press engaged in this type of business with its head office at Santacruz, Bombay. This press also quoted the same rate of Rs. 14/-. Lohia Jute Press, however, stated that they were in a position to execute the entire job of producing 1.23 crore of voters' cards in the State along with duplicate etc. within the time. I find there is nothing wrong in the said tender. Baghmari Tea Company, however, stated that it would be able to complete the work of 80 lakh cards within a period of two months at the rate of 40 lakh cards per month.
32. Learned counsel appearing on behalf of the petitioners did not raise any serious, objection against these two tenderers. Only objection of the petitioners New Fotolab and Progoty Supply and Co-op. Society Ltd. was that they also fulfilled all the requirements of the N. I. T. and they were also capable of performing the job and, therefore, they ought to have been given some work out of 1.23 crore cards. Except this the petitioners did not make any serious complaint against Lohia Jute Press and Baghmari Tea Co.
33. Saraswati Press Ltd., a Government of West Bengal Undertaking with its registered office at 11 B. T. Road, Calcutta also submitted its tender on 17-6-95. In the said tender the Press mentioned that they would be able to carry out the job covering approximately 60 lakh voters in the State of Assam preferably in the districts mentioned in the said tender at an average rates mentioned therein. Rates quoted by the said firm are quoted below:
"1. Rs. 16.00 .... Dhubri, Goalpara, (Rs. sixteen only) Barpeta, Nalbari, Kamrup, Nagaon, Morigaon.
2. Rs. 16.50 .... Dibrugarh, Sibsagar, (Rs. sixteen fifty Golaghat, Jorhat, paise only) Tinsukhia.
We also offer Hologram @ Re. 0.24 (24 paisa) per Hologram landed in Guwahati plus Government Taxes and Duties as applicable."
They assured that they would comply with the tender specification.
On perusal of the tender paper it appears that the press assured to complete 60 lakh cards in the State of Assam and the preference was given to the districts mentioned above and quoted two rates for those districts. Over and above, the firm mentioned that they would charge at the rate of Re. 0.24 per Hologram landed in Guwahati plus Government Taxes and duties as applicable.
34. On careful scrutiny of the tender papers it appears to me that respondent Saraswati Press Ltd. quoted two rates for some districts mentioned above. However, for the rest of the districts of the State I find no rate was quoted.
35. The eligibility criterion as per N. I. T. dated 29th May, 1995 is that the tenderers must be "well established firms/concerns of national repute" for undertaking the job for preparation and supply of photo identity cards of all the electorates living in Assam,
36. Other conditions of the NIT are :
Tenderers must be capable of undertaking those works in full quantity within the time limits mentioned in the tender document. Besides, the tenderers should submit documents of the profile of firm standing, work experience in the field, of preparation of laminated photographic identity cards with hologram along with certificates/ testimonials in support of such works. Conditional tenders would not be accepted.
37. On perusal of the tender of the respondents, namely; Baghmari Tea Company, Lohia Jute Press, Saraswati Press Ltd. I find that except Lohia Jute Press other respondents did not assure to complete the entire job within the period of two months. Baghmari Tea Company in its tender undertook to complete photo identity cards of 40 lakh voters per month. Calculating at that rate the said respondent Baghmari Tea Company was to complete 80 lakhs of photo identity cards within a period of two months. Saraswati Press Ltd. also assured to complete 60 lakhs of cards within the said period. Only Lohia Jute Press assured in its tender paper that it would be able to complete the entire job within the period of two months. The respondent authority accepted the tenders of Baghmari Tea Company and Saraswati Press Ltd. The acceptance of their limited offer may not be in accordance with the terms of the N.I.T. as indicated above. But then in a N.I.T. there may be certain terms the fulfilment of which are obligatory, and there may be some other conditions, fulfilment of which may not be obligatory always. Such conditions may only give additional claim for consideration of the tenders. In such case the authority may, not insist on fulfilment of those conditions.
38. In the present cases one of the terms of the N.I.T. was that the tenderers must be capable of completing the job in full within the period prescribed, however, on looking to the papers placed before this Court it appears that the authority did not adhere to that condition and in my opinion it was rightly so. Therefore, acceptance of the tender of the respondent Baghmari Tea Company cannot be said to be illegal and arbitrary. Another condition which was necessary for the purpose of consideration of the tender papers was that the tenderers should not submit conditional tender.
39. The tender of respondent Baghmari Tea Company and Lohia Jute Press cannot be said to be a conditional tender. Learned counsel for the petitioners also did not make any submission to that effect. On the other hand, the learned counsel for the petitioners submitted that their tenders were also in accordance with the terms of the NIT. But their tenders were rejected. So far the tender of Saraswati Press Ltd. is concerned, learned counsel for the petitioners had seriously disputed. They challenged the action of the respondent authorities in giving the work order for 233 lakhs of voters in the districts namley, Karimganj, Hailakandi, Cachar, Nagaon, N. C. Hills and Karbi Anglong for which no rate was quoted by this Press except for1 Nagaon District. Mr. Dutta learned counsel for the petitioner in Civil Rule No. 3032/95 submitted that the tender of the petitioner New Fotolab was rejected on the ground of conditional tender. In its tender the said petitioner made some submission as will appear in Clause 18 of the tender. The petitioner submitted that they were ready to complete only 70 lakhs of identity cards. They, however, very candidly said that they were not in a position to complete 1 crore 23 lakhs cards. As the authority had accepted the tender of Baghmari Tea Company who was agreeable to complete only 60 lakhs of identity cards I do not find any ground for rejection of the tender of the said petitioner on the ground that they were ready to complete only 70 lakhs out of 1 crore 23 lakhs. They made further submission as will appear from item 14-B of the tender that if they were selected by the Committee for awarding the job for preparation of identity cards in Assam, they would request the authority not to allot the work in N. C. Hills, Karbi Anglong, Kokrajhar and Sonitpur. By this they only requested the authority that if possible the said districts should not be given, that cannot be said to be a conditional tender.
40. Learned counsel for the petitioners strenuously argued that the award of contract to the extent of 23 lakhs of identity cards to Saraswati Press Ltd, was unreasonable, unfair and violative of Article 14 of the Constitution. Mr. Dutta, learned counsel appearing for the petitioner New Fotolab (Civil Rule. No. 3032/95) and for the petitioner in Civil Rule No. 2901/1995 (Progoty Supply and Co-op. Society Ltd.) submitted that Saraswati Press Ltd. quoted the price of Rs. 16/- for Dhubri, Goalpara, Barpeta, Nalbari, Kamrup, Nagaon, Mori-gaon and Rs. 16.50 for Dibrugarh, Sibsagar, Golaghat, Jorhat and Tinsukia and did not quote any rate for some districts and, therefore, the tender of the said press was defective. Learned counsel further submitted that the respondent authority acted unfairly and unreasonably in awarding the contract. Besides, the Committee in its report did not recommend Saraswati Press Ltd. for awarding contract. Only the Member Secretary Shri P. P. Verma put up a note that for various reasons, it might not be possible for the two firms namely, Baghmari Tea Company and Lohia Jute Press to complete the entire job within the time specified, He suggested that one prore should be divided between them namely, Baghmari Tea Company and Lohia Jute Press. Work order should be allotted to the remaining 23 lakhs to Saraswati Press Ltd. if Saraswati Press agreed to reduce the price to Rs. 14/-. If the said press would not agree, the entire job should be divided between the other two parties, namely, Baghmari Tea Company and Lohia Jute Press. Mr. Dutta submitted that there was no reason why Saraswati Press Ltd. should be given the work order. He pointed out that in the affidavit-in-opposition Saraswati Press Ltd. had mentioned that there was a private negotiation between the Press and the Government. The contention of Mr. Dutta was that the authority had no right to pick and choose one tenderer to the exclusion of the others. New Fotolab quoted Rs. 11.96 which price was lower than the rate quoted by Saraswati Press Ltd. In spite of that the said tender was rejected on the ground of conditional tender and accepted the tender of Saraswati Press Ltd. This according to Mr. Dutta was a clear discrimination.
41. I have looked the tender papers of New Fotolab and Saraswati Press Ltd. On . perusal of the said two tenders, I find that Saraswati Press in fact did not quote any rate for some districts whereas New Fotolab quoted rates for all the districts. The petitioner New Fotolab only requested the authority to exclude few districts. In my opinion this cannot be a conditional tender. If Saraswati Press Ltd. could be considered for awarding contract on such tender I find no reason why New Fotolab's tender should not be considered. Therefore, awarding the contract to Saraswati Press Ltd. having private negotiation with the said Press alone that too in the absence of any recommendation of the committee, cannot be said to be just and proper. On this ground alone awarding of contract to Saraswati Press Ltd. cannot be said to be fair, just and reasonable and therfore, in my opinion, liable to be set aside. The case of the writ petitioner Progoty Supply and Co-op. Society Ltd. (Civil Rule No. 2901 / 95) was not at all considered. I have perused the evaluation of the contract which has been annexed to the recommendation of the committee. Strangely enough in the said evaluation statement Progoty Supply and Co-op. Society Ltd.'s name did not find place even though the said Progoty Supply and Coop. Society Ltd. is a local Co-operative Society and quoted Rs. 15.50. In view of the above the rejection of Progoty Supply and Co-op. Society Ltd.'s tender paper and acceptance of the tender papers of Saraswati Press Ltd. in my opinion, is illegal and arbitrary and not informed by reasons.
42. Mr. P. Pathak, learned counsel for the petitioner M/s. S. M. Computer Consultants (C. R. No. 2913/95) submitted that the rejection as will appear from the statement was on the ground the the petiitoner was not experienced and the apples supplied were of below standard. The evaluation committee came to the conclusion that the samples were below standard: It is not known on what basis the samples were found as inferior in quality. At least I do not find anything from the materials placed before me. In the record I find 60 numbers of photo identity cards submitted by Saraswati Press Ltd. Those identity cards were never opened. It is still in sealed condition. It is not known how the authority could decide about the standard of the samples without opening the same. It clearly indicates that the authority accepted the tender in a hurry. It also indicates that the samples were not properly examined.
43. From all these I find that the Commissioner and Secretary in a haste put up the note to the higher authority for acceptance of the tenders. This action of the Commissioner and Secretary may have a practical approach but it cannot be accepted because it will be discriminatory and violative of Article 14 of the Constitution. Therefore, in my opinion, the rejection of the tender of M/s. S. M. Computer Consultants on the ground of inferior quality of samples cannot be sustained inasmuch as the authority did not care to look to the samples of photo identity cards submitted by Saraswati Press. From this, only conclusion that can be arrived at is that the respondent authority did not give much importance to the quality of the samples. Therefore, contention of Mr. Pathak, counsel for the petitioner in Civil Rule No. 2913/95 that the ground of inferior quality of samples was only a clever ruse to exclude the said petitioner cannot be brushed aside. Another ground on which the tender paper of S. M. Computer Consultants was rejected is that the Committee found that the tenderer was inexperienced. As I have already indicated that experience may be an added qualification and having experience may get additional preference; but this was not the eligibility criteria. The eligibility criteria was of "firms/concerns of national repute". But from the record I do not find that the authority made any attempt to determine as to whether the other tenderers were of national repute or not. They may or may not be; but I do not find any observation in this regard. Learned counsel for the petitioner S. M. Computer Consultants submitted that as per terms of the N. I. T. -it was obligatory for the tenderers to display video photo to show whether the n was capable of doing such job. The petitioner insisted on. However, the authority refused to look it. No doubt that is one of the terms and conditions. The authority has the right to know about the capability because the authority cannot take the risk of giving a work order to any firm/concern who will ultimately be not in a position to carry out the work. No attempt was made to determine that. Looking to the audio visual display the authority could come to a conclusion whether or not the tenderers were capable of performing their jobs. Mr. Pathak further submitted that photo identity cards was a new phenomenon in the country and, therefore, the question of insisting on work experience in that line might not be proper and, therefore, Mr. Pathak suggested that the experience in the line could be an added qualification; but it was never an eligibility criterion. Mr. Pathak, however, admitted that the petitioner firm might not have the experience. But the partners of the firm are fully qualified to do the job. In this regard, the principle of "Lifting the veil" or "seeing through the veil was applicable" in this case. The petitioner's partners being, as stated by the petitioner, fully qualified in this line would definitely be capable of performing the job. Its rates having not been said as not workable, the rejection of tender was unjust and unfair. They having submitted valid tenders had the legitimate expectation to get the work order. Mr. B. K. Das, learned counsel for the petitioner submitted that the petitioner's case comes within the scope of "application case". In my opinion, in the present case this concept is not applicable. Legitimate expectation does not confer enforceable right to the parties. It gives rise to a locus standi. Non-consideration of the matter may infringe the provisions of Article 14 but this cannot give rise to any enforceable right.
44. Prof. Wade in his book Administrative Law (6th Edn.) stated thus --
" 'Legitimate expectation : positive effect.-- The classic situation in which the principles of natural justice apply is where some legal right, liberty or interest is affected, for instance where a building is demolished or an office-holder is dismissed or a trader's licence is revoked. But good administration demands their observance in other situations also, where the citizen may legitimately expect to be treated fairly. As Lord Bridge has explained :
The courts have developed a relatively novel doctrine in public law that a duty of consultation may arise from a legitimate expectation of consultation aroused either by a promise or by an established practice of consultation.'"
In Food Corporation of India v. Kam--dhenu Cattle Feed Industries, reported in (1993) 1 SCC 71, the Supreme Court also observed thus --
"The mere reasonable or legitimate expectation of a citizen, in such a situation, may not by itself be a distinct enforceable right, but failure to consider and give due weight to it may render the decision arbitrary, and this is how the requirement of due consideration of a legitimate expectation forms part of the principle of non-arbitrariness, a necessary concomitant of the rule of law. Every legitimate expectation is a relevant factor requiring due consideration in a fair decision-making process. Whether the expectation of the claimant is reasonable or legitimate in the context is a question of fact in each case. Whenever the question arises, it is to be determined not according to the claimant's perception but in large public interest wherein other more important considerations may outweigh what would otherwise have been the legitimate expectation of the claimant. A bona fide decision of the public authority reached in this matter would satisfy the requirement of non-arbitrariness and withstand judicial scrutiny. The doctrine of legitimate expectation gets assimilated in the rule of law and operates in our legal system in this manner and to this extent."
In view of the above, petitioner's mere legitimate expectation nay not give rise to any right. They only desrve consideration.
45. Considering ail the aspects I am of the opinion that the work orders issued to Baghmari Tea Company and Lohia Jute Press do not suffer any infirmity. The administrative authority while awarding contract must have the right to choose the best tenderer and at the best price. The authority may also look to the capacity of the tenderers as to whether the tenderer would be able to complete the job. The administrative authority is also required to consider about the consequence of the tenderers failure to perform the job. It is, therefore, all the more necessary for the administrative authority to have some free play at thejoints. If so much of freedom is not given, it may sometimes lead to a chaotic condition. Therefore, the work orders issued to respondent Baghmari Tea Company Ltd. and Lohia Jute Press Ltd. cannot be said to be unjust, unreasonable and unfair. So far M/s. S. M. Computer Consultants is concerned, I also agree with the submission of Mr. Pathak that to consider about the experience of the petitioner firm, the respondent authority should consider the experience of its partners also. In the expanding horizon of Modern Jurisprudence seeing through the veil and pay regard to economic reality is permissible.
46. In view of the above, I hold that the work orders given to Baghmari Tea Company and Lohia Jute Press are just and proper and there is no ground for interference. However, the case of Saraswati Press Ltd. falls in a different category. The tender of Saraswati Press Ltd. was not recommended by the Committee for awarding the contract. It was done at the instance of the Commissioner and Secretary and that too without any reasonable ground. The work order was issued to said Saraswati Press Ltd. in respect of certain districts for which the Press did not quote any rate. There was a private negotiation with Saraswati Press Ltd. whose tender was first rejected by the committee on the ground that it quoted higher rate. Similar opportunity for negotiation was denied to other tenderers including the petitioners. The tender of Saraswati Press Ltd. was accepted without looking to the sample photographs (Anne-xure-II to the Lender papers). But the tender of M/s. S. M, Computer Consultants was rejected on the ground of inferior quality of samples. Many tenderers who quoted the rates below the rate quoted by Saraswati Press Ltd. were not given any chance for negotiation. All these only indicate that the authority acted arbitrarily in giving favourable treatment to said Saraswati Press Ltd. and discriminatory treatment to other tenderers including the petitioners. Therefore, it is unfair and violative of Article 14 of the Constitution. It is also unreasonable which is very important factor in Administrative Law.
47. Accordingly, I am of opinion that the work order issued to Saraswati Press Ltd. is liable to be set aside and quashed. Therefore, I set aside the action of the respondent authority in accepting the tender of Saraswati Press Ltd. I also, set aside the work order issued to Saraswati Press Ltd. for preparing and supplying 23 lakh of Photo Identity Cards. The Commissioner and Secretary has suggested that it may not be possible for those two firms i.e. Baghmari Tea Company and Lohia Jute Press to complete the entire job. I am in full agreement to it and, therefore, respondent authority is required to reconsider the matter of allotment of work of remaining 23 lakh identity cards which were given to Saraswati Press Ltd. and it must be done as early as possible, at any rate, within a period of 15 days from today. As I have held that rejection of the tenders of the petitioners was unreasonable and unfair, their tenders deserve consideration while making allot-ment of work of preparation and supply of remaining 23 lakh cards which was given to Saraswati Press Ltd. and take necessary steps for issuing work orders. This Court directed to maintain status quo on 19-7-95 and later on 27-7-95 directed the respondents not to commence work. In view of the above, the works could not be carried out by the respondents Baghmari Tea Company and Lohia Jute Press till today. Therefore, this period shall be given to the said respondents by extending the time for completion of the work to that extent.
48. Looking to the facts and circumstances of the cases I make no order as to costs.