Pratheep vs The Travancore Devaswom Board ... on 2 August, 2024

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Kerala High Court

Pratheep vs The Travancore Devaswom Board ... on 2 August, 2024

The petitioners, who have submitted tenders pursuant to Ext.P1 tender notification dated 10.05.2024 issued by the 2nd respondent Devaswom Commissioner, Travancore Devaswom Board, for supply of manpower for preparing 'Appam Prasadam', 'Vella Nivedyam' and 'Sarkara Payasam' in Sabarimala Devaswom, for the year 1200 ME (2024-25), from 10.11.2024 till 31.10.2025, have filed this writ petition under Article 226 of the Constitution of India, seeking a declaration that the conduct of auction for the Kuthaka right for preparing Appam Prasadam in Sabarimala Devaswom, in furtherance of Ext.P1 tender notification is liable to be cancelled as there was no prequalification bid for verifying the credentials of the bidders, as contemplated in Clause (20) of the general conditions and Clause 2(15) of the special conditions, which form part of the tender conditions, as the sealed tenders were collected in a dilapidated cardboard box, as evident from Ext.P2 photograph, without sufficient security measures, which might have led to the leakage of the bid amounts. The petitioners have also sought for a writ of mandamus commanding respondents 1 to 3 to reauction the Kuthaka right for preparing Appam Prasadam in Sabarimala Devaswom, through e-tender, and 5 W.P.(C)No.22882 of 2024 after a prequalification verification process and in accordance with law; and a writ of mandamus commanding respondents 1 to 3 to award the contract for preparing Appam Prasadam in Sabarimala Devaswom, in furtherance of Ext.P1 tender notification, to the petitioners.

2. On 26.06.2024, when this writ petition came up for admission, the learned Standing Counsel for Travancore Devaswom Board took notice on admission for respondents 1 to 3 and the learned Senior Government Pleader for additional respondents 10 and 11. Notice on admission by e-post, in terms of the guidelines contained in notification No.HCKL/5266/2024-A7 dated 15.06.2024, was issued to respondents 4 to 9, returnable by 01.07.2024.

3. On 01.07.2024, respondents 4 to 9 entered appearance through counsel, who sought time to file a counter affidavit. The learned Standing Counsel for Travancore Devaswom Board sought for time to file a counter affidavit on behalf of the 1st respondent Board.

4. Respondents 5 to 7 have filed a counter affidavit dated 07.07.2024 opposing the reliefs sought for, producing therewith Exts.R6(a) to R6(p) documents. Respondents 1 to 3 have also filed a counter affidavit dated 09.07.2024 opposing the reliefs sought 6 W.P.(C)No.22882 of 2024 for in this writ petition, which is one sworn to by the Secretary of the Board.

5. By the order dated 23.07.2024, this Court directed the learned Standing Counsel for Travancore Devaswom Board to make available for the perusal of this Court the files relating to the tender process pursuant to Ext.P1 tender notification, for the Kuthaka item in question.

6. On 29.07.2024, the learned Standing Counsel made available for the perusal of this Court the relevant files. From the files, this Court noticed that in the absence of the Devaswom Commissioner, a person holding the charge of the Devaswom Commissioner is heading the Tender Evaluation Committee. On a query made by this Court, the learned Senior Government Pleader submitted that pursuant to the direction contained in the order of this Court dated 26.06.2024 in DBP No.44 of 2024, which stands modified by the order dated 02.07.2024, Sri.C.V. Prakash, Additional Secretary to Government, is ordered to be appointed as Devaswom Commissioner, Travancore Devaswom Board, on deputation basis, till 18.05.2025. He will be relieved from duties only after a formal order is issued by the Travancore Devaswom Board. The learned Standing Counsel for Travancore Devaswom 7 W.P.(C)No.22882 of 2024 Board sought time to get instructions. Therefore, this matter was adjourned to 02.08.2024.

7. Heard the learned counsel for the petitioners, the learned Standing Counsel for Travancore Devaswom Board for respondents 1 to 3, the learned counsel for respondents 4 to 7 and 9 and also the learned Senior Government Pleader for additional respondents 10 and 11.

8. During the course of arguments, the learned Senior Government Pleader has made available for the perusal of this Court a copy of the Government Order, i.e., G.O.(Rt.)No.1753/ 2024/RD dated 26.07.2024 issued by the additional 10th respondent State, whereby the Government has placed the service of Sri.C.V. Prakash, Additional Secretary to Government at the disposal of Travancore Devaswom Board on deputation basis, till 18.05.2025, so as to enable the Board to issue a formal order of appointment as the Devaswom Commissioner, as per the provisions contained in the Travancore-Cochin Hindu Religious Institutions Act, 1950 and the Kerala Service Rules, who shall also act as the Member Secretary of the High Power Committee for Implementation of Sabarimala Master Plan. In the said Government Order, it is provided that he shall be relieved of his 8 W.P.(C)No.22882 of 2024 duties only after receiving an order in this regard from the Travancore Devaswom Board.

9. The learned Standing Counsel for Travancore Devaswom Board, on instructions, would submit that after the issuance of the Government Order dated 26.07.2024, the Board issued a formal order appointing Sri.C.V. Prakash, Additional Secretary to Government, as the Devaswom Commissioner and he has already taken charge. The newly appointed Devaswom Commissioner is heading the Tender Evaluation Committee.

10. The learned counsel for the petitioners and the learned counsel for respondents 4 to 7 and 9 addressed arguments with reference to the rival contentions raised in the writ petition and the counter affidavit. The learned Standing Counsel, who addressed arguments with reference to the contentions raised in the counter affidavit filed by respondents 1 to 3, submitted that while finalising the tender process, the Tender Evaluation Committee headed by the Devaswom Commissioner will certainly consider the rival contentions of the petitioners and the party respondents.

11. The shortage of Appam Prasadam at Sabarimala Devaswom for the year 1197 ME (2021-22) was the subject matter in SSCR No.17 of 2021 filed by the Special Commissioner, 9 W.P.(C)No.22882 of 2024 Sabarimala. During the pendency of that SSCR, the Travancore Devaswom Board filed DBA No.16 of 2021, on 17.12.2021, seeking permission to engage the second lowest tenderer for making Appam Prasadam at Sabarimala Sannidhanam, in order to ensure uninterrupted supply of Prasadam to the pilgrims. The said SSCR and DBA were disposed of by Ext.P4 order dated 04.07.2022. Paragraphs 18 to 22 and also the last paragraph of that order read thus;

"18. As already noticed hereinbefore, the Special Commissioner, Sabarimala, had to file this report before this Court when there was shortage of 'Appam Prasadam' in Sabarimala Sannidhanam during Mandala-Makaravilakku festival season. In that report a statement on behalf of the Devaswom Commissioner was filed on 17.12.2021, regarding the decisions taken by the Board after negotiation with the second lowest tenderer, Sri.Pradeep, producing therewith Annexure R6(b) report dated 16.12.2021 submitted before the Board and Annexure R6(c) decision taken by the Board to engage Sri.Pradeep at the rates referred to therein. Though the Special Commissioner, Sabarimala, in his report dated 17.12.2021 suggested an alternative option to make Appam by posting Special Officers to supervise the process in all the three units and by employing daily wage employees, it was pointed out by the learned Standing Counsel for Travancore Devaswom Board that considering the daily requirements of Appam Prasadam the aforesaid suggestion made by the Special Commissioner is not viable. It was pointed out that during 10 W.P.(C)No.22882 of 2024 the festival season of 1195 ME, as stated in the report of the Special Commissioner, 26,73,597 numbers Appam was made out of 3,140 koottu. In paragraph 4 of the affidavit filed in support of DBA.No.16 of 2021, seeking an order granting permission to engage Sri.Pradeep, the second lowest tenderer, for making Appam Prasadam at Sabarimala Sannidhanam, in order to ensure uninterrupted supply of Prasadam to the devotees, it is stated that, the present contractors, namely, Sri.Reji S. and Sri.B. Sudhan, were issued with show cause notice for not supplying sufficient 'Appam Prasadam' as per the requirements. In the said affidavit, which is one sworn to by the Secretary of the Board, it is stated that in response to that show cause notice, Sri.Reji S. gave reply stating that he will engage sufficient employees in the coming days. However, Sri.Sudhan, stated that he will not be able to get more employees and therefore, the Board may go for alternative arrangement. The aforesaid facts were brought to the notice of the Devaswom Commissioner, vide report dated 15.12.2021 of the Executive Officer, Sabarimala. Taking note of the practical difficulty of a fresh tender, the Devaswom Commissioner, invited the second lowest tenderer for negotiation. He submitted Annexure A2 report dated 16.12.2021 to the Board for further negotiation and thereafter, the Board decided vide Annexure A3 proceedings to engage Sri.Pradeep on the rates mentioned therein after obtaining permission from this Court.

19. In the order dated 18.12.2021 in SSCR No.17 of 2021 and DBA No.16 of 2021, on a finding that the proposal contained in Annexure A3 is a viable option available to the Board, considering the urgency and also the situation 11 W.P.(C)No.22882 of 2024 prevailing at Sannidhanam on account of shortage of 'Appam Prasadam', this Court granted permission to the Board to proceed with Annexure A3 at the risk and cost of the existing contractors, namely, Sri.Reji S. and Sri.B. Sudhan, subject to the condition that the new contractor, namely, Sri.Pradeep, shall be directed to make use of Steam kara to the maximum extent possible, since the rate of the Steam kara is on the lower side, compared to that for Gas kara. By the order dated 18.12.2021, the Devaswom Commissioner was directed to take necessary steps in this regard on the date of that order itself. By that order, the Board was directed to initiate appropriate action, in accordance with law, against Sri.Reji S. and Sri.B. Sudhan, the additional respondents 3 and 4 in SSCR No.17 of 2021, who are additional respondents 2 and 3 in D.B.A.No.16 of 2021, for breach of contract.

20. From the affidavits placed on record, we notice that without initiating appropriate action, in accordance with law, against Sri.Reji S. and Sri.B. Sudhan, for breach of contract, the Board awarded contract to Sri.Pradeep, who is the second lowest tenderer. By the order dated 18.12.2021 in SSCR No.17 of 2021 and DBA No.16 of 2021, this Court granted permission to the Board to proceed with Annexure A3 at the risk and cost of the existing contractors, namely, Sri.Reji S. and Sri.B. Sudhan, subject to the condition that the new contractor, namely, Sri.Pradeep, shall be directed to make use of Steam kara to the maximum extent possible, since the rate of the Steam kara is on the lower side, compared to that for Gas kara, the Board and its officials committed a grave irregularity in permitting the existing contractors, namely, Sri.Reji S. and Sri.B. Sudhan, to 12 W.P.(C)No.22882 of 2024 continue along with the new contractor, namely, Sri.Pradeep. On account of 740 Koottu Appam made by Sri.Pradeep, the additional expenditure incurred by the Devaswom comes to Rs.2,70,100/-, at the rate of Rs.365/- per Koottu.

21. In the affidavits filed by Sri.Reji S. and Sri.B.Sudhan, and also in the additional affidavit filed by Sri.Reji S., they have raised various contentions, in order to justify their conduct in not making the required quantity of Appam as per the tender conditions. The furnace (kara) for making Appam and even its ingredients are provided by the Travancore Devaswom Board and the tender was for providing the required manpower to make sufficient quantity of Appam during Mandala-Makaravilakku festival season. As already noticed hereinbefore, on receipt of show cause notice as to why the contract should not be cancelled for not making sufficient quantity of Appam as per the requirements, the reply given by Sri.Reji S was that he will engage sufficient employees in the coming days. On the other hand, the reply given by Sri.B.Sudhan was that he will not be able to get more employees and therefore, the Board may go for alternative arrangements. This is the specific stand taken in the statement filed on behalf of the 6th respondent Devaswom Commissioner on 17.12.2021.

22. Having considered the pleadings and materials on record and also the submissions made at the Bar, we find that, this Court need not go into the explanations offered in the affidavits filed by Sri.Reji S. and Sri.B. Sudhan on their inability to engage sufficient employees for making required quantity of Appam at Sabarimala Sannidhanam, during the Mandala-Makaravilakku festival season. The loss sustained 13 W.P.(C)No.22882 of 2024 by the Board by engaging Sri.Pradeep, who is the second lowest tenderer, comes to Rs.2,70,100/-, which has to be recovered from the concerned contractor and proceedings will have to be initiated against the concerned officer of the Board in not terminating the contract, at the risk and cost of the concerned existing contractor. It is for the Board to consider the aforesaid issue and take an appropriate decision with notice to the affected parties, as expeditiously as possible, at any rate, within a period of two months from the date of receipt of a certified copy of this order. The decision taken by the Board shall be brought to the notice of this Court by way of a report filed by the Special Commissioner, Sabarimala, which shall be filed within a period of two weeks from the date of such decision. As already noticed hereinbefore, the furnace (kara) for making Appam and even its ingredients are provided by the Travancore Devaswom Board and the tender was for providing the required manpower to make sufficient quantity of Appam during Mandala-Makaravilakku festival season. The shortage of 'Appam Prasadam' during Mandala- Makaravilakku season on account of the default committed by the contractors in supplying the required manpower, is causing huge financial loss to Sabarimala Devaswom. The pilgrims are also put to difficulties, due to shortage of 'Appam Prasadam' during peak season. Therefore, it is for the Board to take an appropriate decision as to the manner in which making of Appam at Sabarimala Sannidhanam during festival season is regulated, in order to ensure that the sufficient quantity of 'Appam Prasadam' is available at Sannidhanam during festival season. The Board shall take a decision on this issue, as expeditiously as possible, at any 14 W.P.(C)No.22882 of 2024 rate, within a period of two months, which shall be placed before this Court immediately thereafter, for necessary orders."

12. As noticed by this Court in Ext.P4 order dated 04.07.2022, the furnace (kara) for making Appam Prasadam and even its ingredients are provided by the Travancore Devaswom Board and the tender was for providing the required manpower to make sufficient quantity of Appam Prasadam during Mandala- Makaravilakku festival season and Maasapooja. The shortage of Appam Prasadam during Mandala-Makaravilakku season on account of the default committed by the contractors in supplying the required manpower, is causing huge financial loss to Sabarimala Devaswom. The pilgrims are also put to difficulties, due to shortage of Appam Prasadam during peak season. Therefore, by the order dated 04.07.2022, this Court directed the Board to take an appropriate decision as to the manner in which making of Appam Prasadam at Sabarimala Sannidhanam, during the festival seasons is regulated, in order to ensure that sufficient quantity of Appam Prasadam is available at Sannidhanam during festival seasons.

13. Clause (2) of Ext.P1 tender notification dated 10.05.2024 issued by the 2nd respondent Devaswom Commissioner deals with the making of Appam Prasadam at 15 W.P.(C)No.22882 of 2024 Sabarimala Devaswom. The learned counsel for the petitioner pointed out the general conditions and the special conditions, which form part of Ext.P1 tender notification. In view of Clause (20) of the general conditions, the contractors who submit tenders for making Unni Appam, Avil, Modakam, Vella Nivedyam and Sarkara Payasam must be persons with previous experience and they should not be involved in any criminal cases, in which event, the Board will have absolute discretion to exclude such persons. Clause 2(15) of the special conditions, which forms part of Ext.P1 tender notification, provides that the contractor and the employees engaged by him for making Appam Prasadam, should be persons who are not involved in criminal cases and for substantiating the same, a certificate - non-involvement in offences certificate - issued by a police officer not below the rank of Station House Officer in their locality, shall be produced.

14. As already noticed in Ext.P4 order of this Court dated 04.07.2022 in SSCR No.17 of 2021 and DBA No.16 of 2021, the tender in question is for supplying the required manpower for making Appam Prasadam, Vella Nivedyam, Sarkara Payasam, etc. at Sabarimala Devaswom. The inability of the Kuthaka holders to engage sufficient number of employees for making the required quantity of Appam Prasadam at Sabarimala during the previous 16 W.P.(C)No.22882 of 2024 festival seasons had resulted in the Board sustaining loss on account of shortage of Appam Prasadam, which has also caused difficulties to the pilgrims. Since Sabarimala and its vicinity has been notified as a Special Security Zone, invoking the provisions under sub-section (1) of Section 83 of the Kerala Police Act, 2011, so as to impose restrictions as provided under sub-section (2) of Section 83, the Kuthaka holder and the employees engaged by him shall be persons who are not involved in any criminal cases, as certified in the manner provided in the general conditions/ special conditions, which forms part of Ext.P1 tender notification.

15. While undertaking the process of evaluation, the Tender Evaluation Committee has to ensure the ability of those who have submitted tender pursuant to Ext.P1 tender notification to engage a sufficient number of employees for making the required quantity of Appam Prasadam, especially during the Mandala-Makaravilakku festival season. Pursuant to the order of this Court dated 26.06.2024 in DBP No.44 of 2024, an Additional Secretary to Government, who had experience in the Vigilance Department for about four years as Under Secretary and Deputy Secretary and experience in the Home Department for about three years as Joint Secretary and Additional Secretary has taken charge as Devaswom Commissioner, on deputation basis, who is 17 W.P.(C)No.22882 of 2024 presently heading the Tender Evaluation Committee, after replacing a Deputy Devaswom Commissioner, who was holding charge of the Devaswom Commissioner. It is for the Tender Evaluation Committee to evaluate the tenders submitted by the petitioners and the party respondents pursuant to Ext.P1 tender notification, for making Appam Prasadam, etc. and take an appropriate decision, strictly in terms of the general and special conditions which forms part of that tender notification, and also the directions contained in Ext.P4 order of this Court dated 04.07.2022 in SSCR No.17 of 2021 and DBA No.16 of 2021.

16. The petitioners and the party respondents shall submit written submissions before the Tender Evaluation Committee, on or before 07.08.2024, addressed to the 2nd respondent Devaswom Commissioner, which shall be submitted in the office of the Devaswom Commissioner, raising appropriate legal and factual contentions, which shall be dealt with by the Tender Evaluation Committee, along with the report of the Chief Vigilance and Security Officer, Travancore Devaswom Board, on the eligibility/ disqualification of those who have submitted tenders pursuant to Ext.P1 tender notification, with specific reference to the general and special conditions, which forms part of that tender notification. The decision taken by the Tender Evaluation Committee shall reflect the 18 W.P.(C)No.22882 of 2024 application of mind on the relevant aspects necessary for such evaluation. The decision taken by the Board based on the report of the Tender Evaluation Committee shall be served on the petitioners and the party respondents, along with the relevant extract of the report of the Tender Evaluation Committee, immediately thereafter.

With the above directions, this writ petition is disposed of.

Sd/-

ANIL K. NARENDRAN, JUDGE Sd/-

HARISANKAR V. MENON, JUDGE anm 19 W.P.(C)No.22882 of 2024 APPENDIX OF WP(C) 22882/2024 PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE NOTIFICATION DATED 10.5.2024 ALONG WITH THE TENDER CONDITIONS Exhibit P2 TRUE COPY OF PHOTOGRAPH SHOWING THE CARD BOX WHEREIN THE SEALED TENDERS IN FURTHERANCE TO EXHIBIT P1 TENDER WERE TO BE DROPPED Exhibit P3 TRUE COPY OF THE JUDGMENT DATED 10.8.2022 IN O.S. NO. 2176/2015 ON THE FILES OF PRINCIPAL MUNSIFFS COURT, THIRUVANANTHAPURAM Exhibit P4 TRUE COPY OF THE JUDGMENT DATED 4.7.2022 IN SSCR 17/2021 OF THIS HONOURABLE COURT RESPONDENT EXHIBITS Exhibit-R6(a) TRUE COPY OF THE ID CARD NO.591 DATED 19.11.2009 ISSUED TO THE 4TH RESPONDENT BY 1ST RESPONDENT Exhibit-R6(b) TRUE COPY OF THE I.D. CARD NO.352 ISSUED TO THE 5TH RESPONDENT BY 1ST RESPONDENT Exhibit-R6(c) TRUE COPY OF THE I.D. CARD NO.155 ISSUED TO THE 6TH RESPONDENT BY 1ST RESPONDENT Exhibit-R6(d) TRUE COPY OF THE I.D. CARD NO.248 ISSUED TO THE 7TH RESPONDENT BY 1ST RESPONDENT Exhibit-R6(e) TRUE COPY OF THE I.D. CARD NO.CMS-677 COMMERCIAL ISSUED TO THE 8TH RESPONDENT BY 1ST RESPONDENT Exhibit-R6(f) TRUE COPY OF THE I.D. CARD NO.CM1545 DATED 21.11.2015 ISSUED TO THE 9TH RESPONDENT BY THE 1ST RESPONDENT Exhibit-R6(g) TRUE COPY OF THE NIOC (NON-INVOLVEMENT IN OFFENCES CERTIFICATE ISSUED TO THE 4TH RESPONDENT BY THE STATION HOUSE OFFICER 20 W.P.(C)No.22882 of 2024 (S.H.O.), PALODE POLICE STATION DATED 1.7.2024 Exhibit-R6(h) TRUE COPY OF THE NIOC (NON-INVOLVEMENT IN OFFENCES CERTIFICATE ISSUED TO THE 5TH RESPONDENT BY THE STATION HOUSE OFFICER (S.H.O.), KILIMANOOR POLICE STATION DATED 25.6.2024 Exhibit-R6(i) TRUE COPY OF THE NIOC (NON-INVOLVEMENT IN OFFENCES CERTIFICATE ISSUED TO THE 6TH RESPONDENT BY THE STATION HOUSE OFFICER (S.H.O.), VATTIYOORKAVU POLICE STATION DATED 29.5.2024 Exhibit-R6(j) TRUE COPY OF THE NIOC (NON-INVOLVEMENT IN OFFENCES CERTIFICATE ISSUED TO THE 7TH RESPONDENT BY THE STATION HOUSE OFFICER (S.H.O.), VATTAPARA POLICE STATION DATED 10.06.2024 Exhibit-R6(k) TRUE COPY OF THE NIOC (NON-INVOLVEMENT IN OFFENCES CERTIFICATE ISSUED TO THE 8TH RESPONDENT BY THE STATION HOUSE OFFICER (S.H.O.), ARYANAD POLICE STATION DATED 24.6.2024 Exhibit-R6(l) TRUE COPY OF THE NIOC (NON-INVOLVEMENT IN OFFENCES CERTIFICATE FROM THE STATION HOUSE OFFICER (S.H.O.), VENJARAMOODU POLICE STATION DATED 6.6.2024 Exhibit-R6(m) TRUE COPY OF PROCEEDINGS OF THE DEVASWOM OMBUDSMAN FOR TRAVANCORE AND COCHIN DEVASWOM BOARDS IN COMPLAINT NO.38/2014 Exhibit-R6(n) TRUE COPY OF THE MEMORANDUM OF APPEAL IN A.S. NO.302/2022 DATED 20.12.2022 ON THE FILE OF DISTRICT COURT, THIRUVANANTHAPURAM Exhibit-R6(o) TRUE COPY OF THE SETTLEMENT AGREEMENT DATED 30.10.2023 EXECUTED BETWEEN 3RD PETITIONER AND 6TH RESPONDENT IN CRIME 21 W.P.(C)No.22882 of 2024 NO.1114/2023 OF MUSEUM POLICE STATION, THIRUVANANTHAPURAM DISTRICT Exhibit-R6(p) TRUE COPY OF THE LETTER NO.EOP 511/2023/SAB DATED 23.8.2023 SENT BY 2ND RESPONDENT TO DEVASWOM COMMISSIONER, TRAVANCORE DEVASWOM BOARD

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