Allahabad High Court
Security And Intelligence Services ... vs Director, Sanjay Gandhi Post Graduate ... on 20 April, 2000
Equivalent citations: 2000(3)AWC2074
Author: Kamal Kishore
Bench: Kamal Kishore
JUDGMENT
S. H. A. Raza and Kamal Kishore, JJ.
1. The fate of this writ petition hinges on the reply to the question as to whether in the decision making process in awarding the contract for providing security to Sanjay Gandhi Post-graduate Institute of Medical Sciences (hereinafter mentioned as 'SGPGI), the respondents have committed any mistake, which may be said to be Irrational and arbitrary.
2. It so happened that by means of an advertisement No. 38/99.2000, the SGPGI Issued a tender notice inviting sealed tenders from the eligible security agencies for providing security cover to the SGPGI on contract. The terms and conditions contained in the tender notice which provided that only Ex-servicemen/Para-military Guards and Supervisors having experience of atleast 10 years of providing security services to large hospitals/Institute/ Public undertaking with its own guards/township employing 180 guards who must have on its pay roll atleast 1,000 guards for three to five-years. It also provided that the Director reserves the right to reject any or all tenders without assigning any reasons.
3. Para 8 of the tender notice advised the tenderers to submit their bids strictly on terms and conditions of the bid documents and not to stipulate any deviation.
4. Para 14 of the tender notice provided that if the tenders would give wrong information deliberately to create conditions on acceptance of the tender, the SGPGI reserves the right to reject such tenders without assigning any reason.
5. Para 16 of the tender notice provided that the contractor shall be responsible for the wages and services, conditions and terms extended by the contractor to his workmen and shall in that connection maintain requisite records and comply with all laws/enactments rules and regulations and orders applicable to the contractors/ employees in general and in particular laws /enactments, rules and regulations and orders dealing with employment of contract labour, payment of workmen compensation, contributions under Provident Fund, Payment of Minimum Wages Act and such other applicable enactments from time to time.
6. Condition No. 17 of the tender notice provided that the contractors shall provide a motor cycle/Jeep for the Assistant Commandant for patrolling of the campus at his own cost. The motor cycle/jeep are required to take two round of the campus in each shift. Cost of petrol and maintenance will be borne by the contractor. Every tender required a certificate, by putting signatures that the terms and conditions specified in the said document have been carefully read and accepted thereof.
7. The tender was in two parts ; first contained the technical bid and the second indicated the price bid.
8. According to the petitioner, when the technical bid of the tenders were to be opened by the Tender Committee at 2 p.m. on 30th November, 1999, the Tender Committee headed by the Administrative Officer of SGPGI, opened the said technical bid at 5 p.m.. but there was collusion and chaos at the time when the technical bid was opened. The demand draft of Rs. 2,00,000 was surreptitiously removed from the technical bid of the petitioner's company and the technical bid of the petitioner for that reason was rejected. However, a protest was made by the representative of the petitioner's company to the fact that the petitioner had enclosed the demand draft of Rs. 2,00,000. A search was made and thereafter the demand draft was procured from the loose papers on the table only thereafter the technical bid of the petitioner was accepted.
9. It was alleged that the price bid of the various agencies and companies was opened on 10th December, 1999, although the petitioner's company was invited at the time of the opening of the price bid but no time was fixed. The bid of the petitioner's company was not opened before the representative of the company. It was also asserted that the price quoted was not shown to the representative of the petitioner's company.
10. The grievance of the petitioner appears to be is that its quoted rates of Rs. 4,99,388 was the lowest price amongst M/s. Bombay Intelligence Security (India) Limited and Group-IV company but as the rates were not shown to the representative of the petitioner's company, the representative of the petitioner's company submitted a representation on 20.12.1999 to the Director of the SGPGI in which a request was made that the petitioner's company may also be invited for negotiation. It has been asserted that as intimated earlier in the representation, the Deputy Manager (Marketing) of the petitioner's company came to Lucknow and enquired from the Director as to what was the fate of the bid of the petitioner, but he was, informed by the Director that they were not bound to disclose the price bid. Later on the information reached to the petitioner that although the bid of the petitioner was lowest, the contract was given to Bombay Intelligence Security (India) Limited which has been. impleaded to a party to this writ petition by the order of this Court passed today, for the reason that the contract was given to it.
11. In the counter-affidavit it has been pointed out, that on the tender form at the bottom, the petitioner put a note that the terms and conditions specified in the tender document were accepted subject to their deviations as per the list enclosed. Thus, according to the respondents, it was not only contrary to the terms and conditions of the tender notice, but the bid of the petitioner was conditional, while the condition No. 8 of the tender document asked the tenderers to submit their bids strictly on terms of conditions of the bid document and not to stipulate any deviation.
12. In the price bid, the petitioner has quoted monthly rates for providing security services to SGPGI which were inclusive of allowances and statutory payments under the prevailing laws in the State of U. P. The petitioner Instead of providing the information of ex-servicemen and ex-paramilitary men quoted 93 unarmed guard by clubbing the same in the case of armed security supervisors. Similarly, column Nos. 2 and 3 of the price bid was grouped together by the petitioner in which basic minimum wages rates and allowances were required to be mentioned in each category and in the bottom a condition was put contrary to the condition No. 17 of the general term and condition for security contract, thereby quoting charges for providing of motor cycle @ Rs. 6,000 per unit for running 2,000 kms. per month and for additional run was further charged Rs. 5.50 per km. extra. The petitioner in the typed price bid indicated the minimum wages for unskilled workers ad Rs. 1840-50 for 26 days as on 1.4.1999 and in place of Assistant Commandant, as provided in the terms and conditions, the petitioner proposed/quoted security manager in the bottom. As averred in the counter-affidavit there was a further deviation from the format price bid Inasmuch as it was stated that for every running km. more than 2,000 kms. Rs. 4.50 will be charged extra, whereas the petitioner quoted in the proforma price bid at page No. 88 of the writ petition, that additional run will be charged @ Rs. 5.50 per km. extra.
13. It was also pointed out by the respondents that Instead of minimum wages and other benefits which are obligatory under law to be paid, the price bid showed that the same was quoted less than the basic minimum pay for ex-servicemen. According to the Government of India, ex-servicemen. Security Guard have been equated with a semi-skilled worker and the wage structure for the security guard comes to Rs. 2,124.95, thus according to the respondent the petitioner has quoted less than the minimum wages for unarmed ex-servicemen guard, secondly, the said rates were quoted for 26 days instead of full month.
14. Regarding the allegations of the petitioner contained in the writ petition, it is pointed out that the technical bid of the petitioner was Opened in the presence of the representative of the petitioner's company. The demand draft was not found in the technical bid in accordance with the terms and conditions of the tender notice. It appears that the petitioner has annexed the demand draft with the price bid which is evident from his own letter dated 30.11.1999 wherein it was Indicated that the original demand draft was on the price bid which was accepted.
15. It was also asserted that actually the confusion, if any, was created by the petitioner by annexing the demand draft with the tender of the price bid, instead of tender of the technical bid. Further it was contended that the technical bid of the petitioner was accepted. As far as the tender of the price bid Is concerned, undoubtedly a fax message was sent to all bidders Including the petitioner on 9th December, 1999 at 3-30 p.m. The representative of the petitioner's company was present, when the price bid was opened and he signed over the attendance sheet at the time of the opening of the price bid, but it was found that the price bid was contrary to the terms and conditions of the tender document, and to some extent it was vague for that reason, the price bid of the petitioner was cancelled and other bidders were invited for negotiation and ultimately the offer of Bombay Intelligence Security (India) Limited was accepted by the Director SGPGI.
16. It was submitted by the petitioner that the petitioner's company has been providing security to 33 installations all over the country and also provides security to Taj Mahal and it is one of the best company to provide security.
17. It is well-settled that in a matter pertaining to contract, this Court cannot delve into the merit of claim of rival parties. The principle in the matter of contracts which have been enunciated by Hon"ble Supreme Court in Tata Cellular v. Union of India, (1994) 6 SCO 651, Is reproduced below :
"1. The modern trend points to judicial restraint in administrative action.
2. The Court does not sit as a court of appeal but merely reviews the manner in which the decision was made.
3. The Court does not have the expertise to correct the administrative decision. If a review of the administrative decision is permitted It will be substituting its own decision, without the necessary expertise which itself may be fallible.
4. The terms of the Invitation to tender, cannot be opened to judicial scrutiny because the Invitation to tender is in the realm of contract. Normally speaking, the decision to accept the tender or award the contract is reached by process of negotiations through several tiers. More often than not, such decisions are made qualitatively by experts.
5. The Government must have freedom of contract. In other words, a fair-play in the joints is a necessary concomitant for an administrative 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 (including its other facts pointed out above) but must be free from arbitrariness not affected by bias or actuated by mala fides.
6. Quashing decisions may impose heavy administrative burden on the administration and lead to increased and unbudgeted expenditure.
Thus, it is evident for the Court to determine whether a particular policy or a particular decision taken in the fulfilment of that policy is fair. It is only concerned with the manner In which those decisions have been taken. The extent of duty to act fairly will vary from case to case. Shortly put, the grounds upon which an administrative action is subjected to control by judicial review can be classified as under (Tata Cellular v. Union of India) :
(i) Illegality : This means the decision maker must understand correctly the law that regulates his decision-making power and must give effect to it.
(ii) Irrationality, namely, Wednesbury unreasonableness. It applies to a decision which is outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided would have arrived at. The decision is such that no authority properly directing itself on the relevant law and acting reasonably could have raised it.
(iii) Procedural impropriety.
Further it is open to the Court to review the decision-maker's evaluation of the facts. The Court will Intervene where the facts taken as a whole could not logically warrant the conclusion of the decision-maker. If the weight of facts pointing to one course of action is overwhelming, then a decision, the other way, cannot be upheld. A decision would be regarded as unreasonable if it is impartial and unequal in its operation as between different classes."
18. In the light of the aforesaid principles, which have been formulated by the Hon'ble Supreme Court in various pronouncements including Tata Cellular v. Union of India, if we put the case of the petitioner on the scale of Article 14 of the Constitution of India, in which all those principles are Imbedded, we would find that the manner in which the decision has been arrived at cannot be faulted. The matter pertains to security cover of such a big institute. There were certain terms and conditions which were a part of the tender notice. The petitioner made a conditional offer by making a note at the bottom of his Tender Notice, which we have Indicated earlier. Besides the above, he did not provide the details which were asked for and the details which were furnished were in conflict with the terms and conditions. The petitioner was given an opportunity to participate into the said process. In his presence his tender bid was opened which was also rejected. But when it was found that the petitioner had wrongly annexed the demand draft of Rs. 2,00,000 with the price bid instead of technical bid, the technicalities were brushed aside and the tender bid of the petitioner was accepted. The representative of the petitioner's company was present, when the price bid was opened but his tender was rejected for the reasons indicated hereinabove. He was informed about the date and timing of the opening of the price bid.
19. The right to refuse the lowest or the highest tender is always available to the authority which invites the tender. There can be no question of infringement of Article. 14 if the party inviting tenders tries to get the best person or the best quotation. The right to choose cannot be said to be an arbitrary power. If the said power is exercised for any collateral purpose or suffers from patent illegality, irrationality or arbitrariness, only then the exercise of that power can be struck down.
20. We have delved into the details as well as the merit of the case, from which it transpires that in decision-making process, the respondents have not committed such a grave mistake which tilt the balance of equality, contained in Article 14 of the Constitution of India in favour of the petitioner or against the respondent. It cannot be said that the decision taken by the respondents Is such, as no prudent person who has applied his mind to the questions would have arrived at the same conclusion. This Court while exercising its jurisdiction under Article 226 of the Constitution of India, cannot substitute its own decision particularly when it had no expertise with regard to the requirement of the respondents regarding the security cover. Moreover in such matters "fairplay in joints" is always possible. We do not find, that while rejecting the tender of the petitioner, the respondents have exceeded their power and committed any error of law or committed any breach of the rules or In any way abused the power or acted arbitrarily and Irrationally.
21. The writ petition is devoid of merit and it is accordingly dismissed. Interim order, if any, vacated.