Calcutta High Court (Appellete Side)
M/S. Mannan Travels Transport ... vs Durgapur Projects Limited & Ors on 1 April, 2009
Author: Dipankar Datta
Bench: Dipankar Datta
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
Present : The Hon'ble Justice Dipankar Datta
W.P. No.29351 (W) of 2008
M/s. Mannan Travels Transport Contractor
...Petitioner
Versus
Durgapur Projects Limited & ors.
... Respondents
Mr. Arabinda Chatterjee Ms. Kakali Dutta ...for the petitioner Mr. Bhaskar Mitra ... for the respondents Heard on : March 12, 16, 18 and 23, 2009 Judgment on : April 1, 2009 The writ petition was finally heard on contest on 11.12.2008 and 15.12.2008, and judgment was reserved. Prior to pronouncement of judgment, a Division Bench decision of this Court in NICCO Corporation Ltd. vs. Cable Corporation of India & ors., reported in 2008 (1) CHN 567 (not cited by any of the contesting parties) was brought to my notice in proceedings between different parties. Since the decision had a bearing on one the issues urged by Mr. Mitra, learned Counsel for the Durgapur Projects Limited (hereafter DPL) regarding maintainability of the writ petition on the ground of estoppel, parties were given liberty to address on such point. The parties have since been heard and judgment reserved a second time.
The petitioner, since 2005, was providing bus services for the employees of Durgapur Projects Limited (hereafter DPL) and school-going children of such employees, upon its offer in pursuance of tender notices being accepted.
DPL had issued a tender notice dated 25.8.2008 "for transport facilities with a fleet of at least 7(seven) no. buses and 1 (one) no. of luxury minibus". The tender was to be submitted in four parts, - the 1st part containing the earnest money deposit, the 2nd part containing documents fulfilling "must conditions", the 3rd part containing documents regarding technical and commercial aspects, and the 4th part containing the price bid.
Seven parties including the petitioner and the private respondent offered their bids. Ultimately, DPL selected the private respondent and the contract was awarded to it. Process of selection adopted by DPL leading to selection of the private respondent and award of contract in its favour have been subjected to challenge herein by the petitioner basically on the ground that the private respondent did not satisfy the eligibility criteria and its bid ought to have been rejected, if not on opening of the bid at the 2nd stage but definitely at the 3rd stage.
The private respondent has not appeared to contest the proceedings. Copy of the writ petition sent to it has not been claimed, as it appears from the affidavit-of-service.
Mr. Mitra, at the outset, raised preliminary objection regarding maintainability of the petition on two counts.
First, he contended that the petitioner is an unregistered partnership firm and hence has no locus standi to present the petition. In support of his submission, he relied on the decisions reported in (i) AIR 1956 SC 354 :
Dulichand Laxminarayan vs. Commr. of Income-Tax, Nagpur, (ii) AIR 1956 Nag 225 : Mt. Manbharibai vs. B.R. Mill, (iii) AIR 1954 Assam : Bhawarjit Chetri vs. Kedarmal Banarasilal and (iv) AIR 1952 All 695 : M/s. Ram Kumar Ram Chandra vs. The Dominion of India.
Secondly, an objection was raised by Mr. Mitra to the effect that the petitioner having participated in the 3rd and 4th stages of the tender process despite noticing alleged ineligibility of the private respondent to participate and not having approached the Court at the appropriate stage to stall the participation of the private respondent in the tender process, it must be treated to have waived its objection and having taken a chance of being selected and failed in its pursuit to be the successful bidder, it cannot now turn around and contend that the private respondent was illegally allowed to participate. He relied on the decisions in NICCO (supra), B.L. Sreedhar vs. K.M. Munireddy (dead) & ors., reported in AIR 2003 SC 578 and Noble Resources Ltd. vs. State of Orissa, reported in (2006) 10 SCC 236 in support of his contention that the conduct of the petitioner is a relevant factor for deciding its claim.
The objection on the first count was countered by Mr. Chatterjee, learned Counsel for the petitioner, by relying on the decision of the Apex Court reported in AIR 1974 SC 1539 (Andhra Industrial Works vs. Chief Controller of Imports) and an unreported Division Bench decision of this Court dated 19.8.2008 in MAT 593 of 2008 (M/s. Ujjal Transport Service vs. The State of West Bengal & ors.).
Regarding the second objection, Mr. Chatterjee contended that on the facts of this case, the objection ought to be held to be not sustainable in law. It was argued that after receipt of the letter dated 4.11.2008 issued by the Manager (Admn.) of DPL conveying that the 3rd part of the tender would be opened on 11.11.2008, an objection had indeed been raised by the petitioner vide letter dated 12.11.2008 mentioning therein the ineligibility from which the private respondent suffered and praying for consideration of such objection prior to opening its tender. The objection of the petitioner was not considered and 3rd part of the tender was opened. The petitioner was again informed by the said Manager vide letter dated 19.11.2008 that the 4th part of the tender would be opened on 22.11.2008 and the petitioner was called upon to attend. To this, the petitioner vide letter dated 22.11.2008 informed the said Manager that though its objection regarding participation of the private respondent had not been considered, its participation in the 4th part should be treated as one 'with protest and without prejudice' to its rights and contentions and subject to further steps being taken in the matter. The principle of estoppel thus would not apply.
It was further contended that the power that has been conferred by DPL on the body constituted by it to select the most suitable bidder for award of contract is to be exercised bonafide and in the interest of the tender issuing authority. On consideration of the bids submitted by the bidders, the selecting body had to be satisfied that all the bidders were eligible in all respects and thus entitled to have their financial bids opened having regard to the terms of the tender notice. The selecting body, according to him, was authorized to arrive at such satisfaction even in the absence of any objection raised by the rival bidders. Even if no objection had been raised by the petitioner, ipso facto, that did not confer authority on the selecting body to select a bidder who did not fulfill the requisite qualifications. According to him, non-raising of objection by the petitioner was absolutely immaterial on facts and in the circumstances. Reliance in this connection was placed on the decisions in Tata Cellular vs. Union of India, reported in (1994) 6 SCC 651, B.S.N. Joshi & Sons Ltd., reported in (2006)11 SCC 548, Reliance Energy Ltd. & anr. vs. Maharashtra State Road Development Corporation Ltd., reported in (2007) 8 SCC 1, Jespar I. Slong vs. State of Maghalaya & ors., reported in (2004) 11 SCC 485, Noble Resources Ltd. (supra), Nikhil Chandra Das vs. State of West Bengal & ors., reported in 2007 (2) CHN 909, and a unreported decision of a learned Judge of this Court dated 20.4.2004 on W.P.No.1571 of 2003 (Dey Travels vs. Indian Airlines Limited & ors.).
The decision in NICCO (supra) was sought to be distinguished by him by submitting that principles of service law had been invoked, which had no application in respect of award of contracts pursuant to invitation of tenders. According to him, the Division Bench overlooked the decisions of the Apex Court while laying down a law contrary thereto.
He also submitted that the author of the judgment in NICCO (supra) expressed an absolutely opposite view on the same point when urged by the respondents in Dey Travels (supra).
Based on the above submissions, it was contended that the objection raised by Mr. Mitra ought to be overruled.
On merits, Mr. Chatterjee submitted that the private respondent did not satisfy the criterion regarding financial stability which was one of the "must conditions" and, therefore, its bid should have been excluded from consideration immediately after the 2nd stage. Even otherwise, the private respondent could not satisfy at the 3rd stage that it had been operating the required number of buses as stipulated in the tender notice. Referring to the counter-affidavit filed by DPL and in particular the accounts of the private respondent in respect of the last two financial years, he contended that the same do not reflect operation of buses by it and, as such, even if the version of the private respondent is to be believed, it is clear that it is an evader of tax and, therefore, was not entitled to be selected. The decisions referred to above were also relied on to demonstrate when and to what extent interference by a Writ Court in respect of exercise of contractual powers by the State would be justified. Accordingly, he prayed for setting aside of the selection of the private respondent and for a direction on DPL to award contract in favour of the petitioner since the rate quoted by it is L-2.
Answering submissions advanced on behalf of the petitioner on merits, Mr. Mitra submitted that the private respondent had produced documentary evidence to prove to the satisfaction of the tender committee (selecting body) that it had the required number of buses and thus was in a position to work out the contract, if awarded in its favour. It was satisfied on perusal thereof that the private respondent did fulfill the essential conditions and selected it. The decision having been taken by an expert body, he contended, the Court of Writ may not sit in appeal over the decision arrived at by it that the private respondent indeed was eligible and qualified to participate in the tender process in terms of requirement of the tender documents.
He further contended that the offer of the private respondent was much lower than that offered by the petitioner and DPL being the guardian of the State's finances, the Court may not interfere if it could get the work done by spending less.
The decisions in B.S.N. Joshi & Sons Ltd. (supra), Master Marine Services (P) Ltd., reported in (2005) 6 SCC 138 and R & M Trust vs. Koramangala Residents Vigilance Group, reported in AIR 2005 SC 894, were relied on by him to urge this Court not to exercise discretion in favour of the petitioner for such interference would work out immense prejudice to DPL.
He, accordingly, prayed for dismissal of the writ petition. I shall now consider the preliminary objections raised by Mr. Mitra. The decisions relied on by Mr. Mitra although are authorities for the proposition that an unregistered partnership firm is not a juristic person, the same were rendered in course of civil proceedings and are not directly on the point in issue.
In Andhra Industrial Works (supra) though the Apex Court had the occasion to reject the preliminary objection regarding maintainability of the petition under Article 32 of the Constitution by the 'firm' since it stood for all the partners collectively and the petition was deemed to have been filed by all the partners who were citizens of India, it is not clear from the decision as to whether the 'firm' was a registered or an unregistered one.
In M/s. Ujjal Transport Service (supra), it was held by the Division Bench that the Court of Writ has ample power under Articles 226/227 of the Constitution to do substantial justice and that the Trial Court instead of dismissing the writ petition on the ground that it was not maintainable (in view of Section 69 of the Indian Partnership Act, 1932 as it had been filed by an unregistered partnership firm) ought to have treated the writ petition to have been filed in the individual capacity of its managing partner. It was further held that since the managing partner had executed the vakalatnama, the writ petition should be decided afresh after treating the same to have been filed by the individual members of the unregistered partnership.
No support can be derived by the petitioner from the decision in Andhra Industrial Works (supra). However, the Division Bench decision in M/s. Ujjal Transport Service (supra) appears to be directly on the point and since it has the effect of a binding precedent, ought to be followed notwithstanding a lacuna therein. The vakalatnama appended to the petition has been executed by the two partners of the unregistered partnership firm and, therefore, while overruling the objection raised by Mr. Mitra, the writ petition is treated to have been filed by the two partners of the unregistered firm who have executed the vakalatnama.
However, to put matters straight, this Court grants liberty to the Advocate- on-Record of the petitioner to add the two partners of the unregistered partnership firm as additional petitioners here and now.
Now I shall proceed to consider the second objection of Mr. Mitra. The point raised by Mr. Mitra finds full support from the decision of the Division Bench in NICCO (supra). There, the writ petitioner Cable Corporation had not raised any objection prior to opening of the price bids that NICCO, the private respondent, did not possess performance certificate. It was only after NICCO was selected that Cable Corporation raised a grievance in this respect. I had the occasion to decide the writ petition. Selection of NICCO was set aside on the authority of the decision in Raj Kumar vs. Shakti Raj, reported in (1997) 9 SCC 527 wherein, upon considering the decision in Madan Lal (supra) and other decisions referred therein, it was held that if a selection process is vitiated by glaring illegality, principle of estoppel and acquiescence by conduct would not apply. The Division Bench distinguished the said decision and ultimately the appeal was allowed on setting aside of the order under appeal. It was held that production of performance certificate was not an essential condition of the tender terms and conditions and even Cable Corporation did not produce one. Yet, in paragraph 21 of the report, the Court ruled as under:
"21. We, therefore, hold by relying upon the decision of the three-Judges Bench of the Apex Court in the case of Om Prakash Shukla vs. Akhilesh Kumar Shukla, reported in AIR 1986 SC 1043, that if a party has taken a chance of selection without protest but remained unsuccessful on merit, he cannot be permitted to challenge the process of selection on the ground of some illegality even if we assume for sake of argument that filing of performance certificate was an essential condition. ............"
Since the Division Bench relied on the decision in Om Prakash Shukla (supra), I shall now note the facts of that case and the circumstances in which the Apex Court laid down the law that a candidate who takes a calculated chance of being selected, on finding himself unsuccessful, cannot thereafter challenge the process of selection.
A competitive examination, with which the Apex Court was concerned, was held by the District Judge of Kanpur. The said examination was held in September 1981 and its results were announced on July 25, 1983. Respondent 1 and many others appeared in the said examination. The competitive examination was, held in accordance with the 1950 Rules. The 1969 Amending Rules amending the 1947 Rules were not, however, followed. Respondent 1 who had appeared for the competitive examination was not successful. Aggrieved by the result of the examination, he filed the writ petition before the High Court of Allahabad. His principal contention before the High Court was that the competitive examination which had been held in accordance with the 1950 Rules was an unauthorised one and that it should have been held in accordance with the 1947 Rules, as amended by the 1969 Amending Rules. The High Court upheld his contention and was of the view that since within the judgeship of Kanpur the examination had not been held in accordance with the syllabus prescribed by the 1947 Rules, as amended by the 1969 Amending Rules, all those who were successful and selected for appointment had no legal right to be appointed. It accordingly by its judgment dated April 12, 1985 quashed the examination held in 1981 by the District Judge of Kanpur, the results of which had been announced in 1983. The High Court clarified that all the candidates who had applied for the 1981 examination were, however, entitled to appear for the fresh examination to be held by the District Judge of Kanpur.
Aggrieved by the judgment of the High Court, the appellant who was one of the selected candidates in the Kanpur examination filed the appeal by special leave. On hearing the parties, the Apex Court held as under:
"23. We do not agree with the view of the High Court that the 1950 Rules have been repealed by the 1975 Rules insofar as the subordinate civil courts are concerned. It is true that Rule 20 of the 1975 Rules clearly stated that the 1950 Rules had been repealed. But the 1975 Rules did not apply to the subordinate courts under the control and superintendence of the High Court. Hence the 1950 Rules insofar as they applied to the subordinate courts continued to be in force. The finding of the High Court on this question is erroneous and is liable to be set aside.
24. Moreover, this is a case where the petitioner in the writ petition should not have been granted any relief. He had appeared for the examination without protest. He filed the petition only after he had perhaps realised that he would not succeed in the examination. The High Court itself has observed that the setting aside of the results of examinations held in the other districts would cause hardship to the candidates who had appeared there. The same yardstick should have been applied to the candidates in the district of Kanpur also. They were not responsible for the conduct of the examination.
25. For the foregoing reasons we feel that the judgment of the High Court should be set aside. We accordingly set aside the judgment of the High Court and dismiss the writ petition. The appellant and all other successful candidates at the 1981 examination held in Kanpur shall be appointed in accordance with the Rules.*****"
It would appear from a reading of the decision that there was no challenge to the eligibility of the selected candidates. What was under challenge was whether the process of selection ought to have been conducted in terms of the 1950 Rules or the 1947 Rules, since amended by the Rules of 1969. It is in those circumstances that the Apex Court held that the aggrieved unsuccessful candidate could not have challenge the process of selection having participated therein without demur.
The decision in Om Prakash Shukla (supra) was followed by the Apex Court in Madan Lal v. State of J & K, reported in (1995) 3 SCC 486. The process of selection of Munsifs in the State of Jammu and Kashmir undertaken by the Jammu and Kashmir Public Service Commission, pursuant to an advertisement notice, inviting applications in the months of July and August 1993, was challenged. The Apex Court found on a mere look at the prayers that the attack of the petitioners clearly was on the manner and method of conducting viva voce test and result thereof. So far as the result of written test was concerned, not only the petitioners had no grievance against the same but they relied thereon.
Their main contention was that viva voce test was so manipulated that only preferred candidates, by inflating their marks in the viva voce test, were permitted to get in the select list.
At the final hearing of the petition, one of several contentions raised was that the impugned viva voce test conducted by Respondent 2, Commission is patently illegal as there is nothing to show that the Members who conducted the test had assigned separate marks facultywise for assessing the performance of the candidates concerned as per Rule 10 of the Rules.
Dealing with this contention, the Apex Court ruled as follows:
" 9. Before dealing with this contention, we must keep in view the salient fact that the petitioners as well as the contesting successful candidates being respondents concerned herein, were all found eligible in the light of marks obtained in the written test, to be eligible to be called for oral interview. Up to this stage there is no dispute between the parties. The petitioners also appeared at the oral interview conducted by the Members concerned of the Commission who interviewed the petitioners as well as the contesting respondents concerned. Thus the petitioners took a chance to get themselves selected at the said oral interview. Only because they did not find themselves to have emerged successful as a result of their combined performance both at written test and oral interview, they have filed this petition. It is now well settled that if a candidate takes a calculated chance and appears at the interview, then, only because the result of the interview is not palatable to him, he cannot turn round and subsequently contend that the process of interview was unfair or the Selection Committee was not properly constituted. In the case of Om Prakash Shukla v. Akhilesh Kumar Shukla (AIR 1986 SC 1043) it has been clearly laid down by a Bench of three learned Judges of this Court that when the petitioner appeared at the examination without protest and when he found that he would not succeed in examination he filed a petition challenging the said examination, the High Court should not have granted any relief to such a petitioner.
10. Therefore, the result of the interview test on merits cannot be successfully challenged by a candidate who takes a chance to get selected at the said interview and who ultimately finds himself to be unsuccessful. It is also to be kept in view that in this petition we cannot sit as a court of appeal and try to reassess the relative merits of the candidates concerned who had been assessed at the oral interview nor can the petitioners successfully urge before us that they were given less marks though their performance was better. It is for the Interview Committee which amongst others consisted of a sitting High Court Judge to judge the relative merits of the candidates who were orally interviewed, in the light of the guidelines laid down by the relevant rules governing such interviews. Therefore, the assessment on merits as made by such an expert committee cannot be brought in challenge only on the ground that the assessment was not proper or justified as that would be the function of an appellate body and we are certainly not acting as a court of appeal over the assessment made by such an expert committee."
The Apex Court thereafter proceeded to hold on merits that the contention raised was unacceptable.
There are other subsequent decisions of the Apex Court holding that one who participates in a process of selection, cannot on finding the result unpalatable to him, raise his voice in respect of the procedure of selection.
One common thread that runs through the decisions aforesaid is that the Court did not find the selected candidates to be ineligible for selection on the terms of the notices inviting applications for the posts for which recruitment processes were initiated.
Question that now arises is whether the law laid down in these cases would apply in case of a tender process where the challenge is that an ineligible bidder, who did not fulfill the criteria mentioned in the notice inviting tender, has been selected for award of the contract though the rival bidder challenging his selection, despite being aware of the alleged ineligibility, did not object.
No discussion on the powers of judicial review of administrative action in relation to award of contracts upon considering bids submitted by interested parties pursuant to tender notices would be complete without reference to the decision in Tata Cellular (supra), which is widely acclaimed as a locus classicus.
Relevant passages from the decision are quoted below:
"70. It cannot be denied that the principles of judicial review would apply to the exercise of contractual powers by Government bodies in order to prevent arbitrariness or favouritism. However, it must be clearly stated that there are inherent limitations in exercise of that power of judicial review. Government is the guardian of the finances of the State. It is expected to protect the financial interest of the State. The right to refuse the lowest or any other tender is always available to the Government. But, the principles laid down in Article 14 of the Constitution have to be kept in view while accepting or refusing a tender. There can be no question of infringement of Article 14 if the Government tries to get the best person or the best quotation. The right to choose cannot be considered to be an arbitrary power. Of course, if the said power is exercised for any collateral purpose the exercise of that power will be struck down.
77. The duty of the court is to confine itself to the question of legality. Its concern should be :
1. Whether a decision-making authority exceeded its powers?
2. Committed an error of law,
3. committed a breach of the rules of natural justice,
4. reached a decision which no reasonable tribunal would have reached or,
5. abused its powers.
Therefore, it is not for the court to determine whether a particular policy or 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 the duty to act fairly will vary from case to case. Shortly put, the grounds upon which an administrative action is subject to control by judicial review can be classified as under :
(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.
(iii) Procedural impropriety.
The above are only the broad grounds but it does not rule out addition of further grounds in course of time.
81. Two other facets of irrationality may be mentioned.
(1) 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.***** (2) A decision would be regarded as unreasonable if it is impartial and unequal in its operation as between different classes. ****
94. The principles deducible from the above are :
(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 open 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.
Based on these principles we will examine the facts of this case since they commend to us as the correct principles."
The Apex Court in Noble Resources (supra) ruled that the Courts can scrutinize the award of contract by the Government or its agencies in exercise of their power of judicial review to prevent arbitrariness and favouritism.
In B.S.N. Joshi (supra), the Apex Court observed that if there are essential conditions, the same must be adhered to and that if a party fails or neglects to comply with the requisite conditions which are essential for consideration of its case by the employer, it cannot supply the details at a later stage.
The necessity to provide "level playing field" to all the bidders and justifiability of interdicting state policy or an act of an Article 12 authority even in contractual matters failing to satisfy the test of reasonableness were recognised in Reliance Energy (supra).
The principles that would guide the 226 Court when grant of contract is questioned at the threshold are well delineated and needs no elaboration.
From a conspectus of decisions on the point of availability of judicial review in respect of exercise of contractual powers by a State, it is clear that it is the obligation of the tender issuing authority to select that bidder who is qualified in all respects as per the notified norms to participate and has quoted a rate that would suit it best, consistent with Article 14 of the Constitution. In the matter of selection, arbitrariness, unreasonableness and favouritism, which are sworn enemies of Article 14, have no place at all. The power to select the most suitable bidder is not circumscribed or made dependant on the conduct of a rival bidder. The fact that no demur has been raised by a rival bidder regarding ineligibility of another whom the selecting authority proposes to select would hardly afford justification to select it without recording a satisfaction that it is qualified to have its financial offer considered. The right to choose if not exercised consistent with Article 14 would attract judicial review. This Court is of the considered view that in relation to matters of award of contract, the principles laid down by the Apex Court in Om Prakash Shukla (supra) and Madan Lal (supra) would hardly be applicable if the selectee is not qualified in terms of the notified norms. If any such party is selected despite ineligibility, that would deprive other parties suffering from similar ineligibility of opportunity to participate. Such an action has been frowned upon by the Apex Court in Ramana Dayaram Shetty vs. International Airport Authority, reported in (1979) 3 SCC 489, paragraph 34 whereof is relevant:
"34. It is, therefore, obvious that both having regard to the constitutional mandate of Article 14 as also the judicially evolved rule of administrative law, respondent 1 was not entitled to act arbitrarily in accepting the tender of respondents 4, but was bound to conform to the standard or norm laid down in paragraph 1 of the notice inviting tenders which required that only a person running a registered IInd Class hotel or restaurant and having at least 5 years' experience as such should be eligible to tender. It was not the contention of the appellant that this standard or norm prescribed by respondent 1 was discriminatory having no just or reasonable relation to the object of inviting tenders, namely, to award the contract to a sufficiently experienced person who would be able to run efficiently a IInd Class restaurant at the airport. Admittedly the standard or norm was reasonable and non-discriminatory and once such a standard or norm for running a IInd Class restaurant should be awarded was laid down, respondent 1 was not entitled to depart from it and to award the contract to respondents 4 who did not satisfy the condition of eligibility prescribed by the standard or norm. If there was no acceptable tender from a person who satisfied the condition of eligibility, respondent 1 could have rejected the tenders and invited fresh tenders on the basis of a less stringent standard or norm, but it could not depart from the standard or norm prescribed by it and arbitrarily accept the tender of respondents 4. When respondent 1 entertained the tender of respondents 4 even though they did not have 5 years' experience of running a IInd Class restaurant or hotel, it denied equality of opportunity to others similarly situate in the matter of tendering for the contract. There might have been many other persons, in fact the appellant himself claimed to be one such person, who did not have 5 years' experience of running a IInd Class restaurant, but who were otherwise competent to run such a restaurant and they might also have competed with Respondents 4 for obtaining the contract, but they were precluded from doing so by the condition of eligibility requiring five years' experience. The action of Respondent 1 in accepting the tender of respondents 4, even though they did not satisfy the prescribed condition of eligibility, was clearly discriminatory, since it excluded other persons similarly situate from tendering for the contract and it was also arbitrary and without reason. The acceptance of the tender of Respondents 4 was, in the circumstances, invalid as being violative of the equality clause of the Constitution as also of the rule of administrative law inhibiting arbitrary action."
(emphasis supplied) In a case of appointment of an ineligible candidate by making a departure from the advertisement, the Apex Court in District Collector & Chairman, Vizianagram Social Welfare Residential School Society, Vizianagram & ano. vs. M. Tripura Sundari Devi, reported in (1990) 3 SCC 655, ruled as follows:
"6. It must further be realised by all concerned that when an advertisement mentions a particular qualification and an appointment is made in disregard of the same, it is not a matter only between the appointing authority and the appointee concerned. The aggrieved are all those who had similar or even better qualifications than the appointee or appointees but who had not applied for the post because they did not possess the qualifications mentioned in the advertisement. It amounts to a fraud on public to appoint persons with inferior qualifications in such circumstances unless it is clearly stated that the qualifications are relaxable. No court should be a party to the perpetuation of the fraudulent practice. We are afraid that the Tribunal lost sight of this fact."
Even the learned Judge who spoke for the Division Bench in NICCO (supra) in more or less similar circumstances in Dey Travels (supra) had the occasion to repel an identical contention by observing as follows:
"I do not find any substance in the contention of Mr. Mazumder that merely because the petitioner did not raise any objection at the time of consideration of financial bid as regards eligibility of private respondent, they are estopped from challenging the qualification of private respondent in this writ application."
I am convinced that merely because a bidder does not object to the eligibility of a rival bidder to participate in the process of selection cannot be a ground that could legitimately be urged by the tender issuing authority to support the selection of that ineligible bidder made by it. Such selection strikes at the very root of the process initiated by the tender issuing authority to enable it choose the best amongst the worthy.
I do not think that by expressing my views on the point, any bias on account of judicial obstinacy is exhibited in favour of a preconception or predisposition pertaining to a pure question of law. So long as the view which has been reversed is not expressed in subsequent stages of the same proceedings or in collateral proceedings between the same parties, I believe that a Judge acting impartially and neutrally and who is in a position to apply his mind objectively to the facts put up before him should be entitled to express his views without fear of admonition.
However, whatever are the view of the learned Judge in Dey Travels (supra) and my view on the point, such views stand upturned by the decision of the Division Bench of this Court in NICCO (supra) to which I must submit since no pronouncement of the Apex Court or a Division Bench of this Court holding that the principle of law laid down in Om Prakash Shukla (supra) would not apply in respect of tender matters has been brought to my notice. The principle of law laid down by the Division Bench in paragraph 21 of its decision in NICCO (supra), extracted above, is binding on me and proceeding to decide the issue raised herein without following it would be an act of judicial indiscipline, impropriety and imprudence on my part.
Accepting the law laid down in NICCO (supra) to be correct, it would now be my endeavour to ascertain whether the writ petition ought to fail on the point of estoppel as contended by Mr. Mitra.
For a decision to be given on the said objection of Mr. Mitra, the pleadings in the petition as well as the contents of the petitioner's two letters dated 11.11.2008 and 22.11.2008 are required to be noticed.
In paragraph 11 of the petition, it has been averred by the petitioner that on the date 2nd part of the tender was opened the private respondent could not produce documents to satisfy its financial stability. The petitioner knew that in terms of the tender conditions, the 3rd part bid would not be opened unless one satisfied the 'must conditions' comprising the 2nd part; yet, it participated in the 3rd part without raising any objection. That the petitioner was of the impression that the private respondent would be disqualified after opening of the 2nd part bid and therefore was surprised to find its representative at the 3rd stage has not impressed this Court. The reason as to why no objection was raised before opening of the 3rd part bid has not been explained. The first real attempt from the side of the petitioner to object appears to have been made only after opening of the 3rd part bid of the private respondent upon noticing that it did not have the credential to operate required number of buses in terms of the tender conditions and that it was only a ticket booking agent of South Bengal State Transport Corporation having no experience of operating contract carriages. By the objection letter dated 12.11.2008, the petitioner had indeed called upon DPL to consider the issue of eligibility of the private respondent to participate prior to opening of its price bid at the 4th stage. It is not in dispute that DPL did not consider the objection dated 12.11.2008 raised by the petitioner and the petitioner also did not question the inaction of DPL before any appropriate forum. Once no order was passed on the petitioner's objection and the private respondent was invited to participate in the 4th stage, the objection of the petitioner must be presumed to have been rejected notwithstanding the fact that no formal order was passed thereon.
Knowing fully well that no order on its objection had been communicated to it, the petitioner again attended at the time of opening of the 4th part i.e. price bid on 22.11.2008. It must have noticed presence of the representative of the private respondent. It does not appear from paragraph 12 of the petition, where the petitioner has pleaded facts relating to opening of the price bids of the bidders, that any objection had been raised by it prior to such opening that the private respondent's price bid should not be opened and even if opened, the petitioner's participation in the 4th stage should be treated as 'with protest and without prejudice' to its rights and contentions. The petitioner allowed DPL to open the price bids and only after consideration of the rates quoted by the parties it having transpired that the private respondent was L-1 and the petitioner was L-2 that the objection letter dated 22.11.2008 was lodged asking DPL to treat the petitioner's participation in the 4th part as 'with protest and without prejudice'.
On these facts, this Court is convinced that despite having a cause of action to move Court after the private respondent was allowed to participate in the 3rd stage and no response having been given by DPL to the objection dated 12.11.2008, the petitioner acquiesced so far as participation of the private respondent in the 4th part bid is concerned and took a calculated chance of being selected by participating in the 4th stage without, however, expressing the objection which it ultimately did after it was adjudged L-2. It is a case where the petitioner had initially raised a demur after opening of bids at the 3rd stage which was not continued at the opening of the price bids at the 4th stage and must, in the circumstances, be deemed to have been waived.
The principle of law laid down by the Division Bench of this Court in NICCO (supra) squarely applies in a situation of the present nature.
The conclusion is inescapable that the petitioner took a calculated chance of being selected and having found that it was not the lowest bidder, it recorded its so called objection regarding its participation 'with protest and without prejudice' vide letter dated 22.11.2008.
The decision in Jespar I. Slong (supra) does not assist the petitioner. The Apex Court accepted it as a fact that the appellant had no knowledge of rejection of his bid and acceptance of the bid of respondent no.4 and thus was justified in filing the appeal. That is not the case here. The petitioner was well and truly aware that the private respondent was ineligible, as referred to above.
The decision in Nikhil Chandra Das (supra) does not lay down any law which might be of assistance to the petitioner.
For whatever the contentions raised by Mr. Chatterjee on the merits are worth, this Court is unable to exercise discretionary powers and grant relief to the petitioner since the objection raised by Mr. Mitra regarding the conduct of the petitioner deserves to be and is upheld on the authority of the decision in NICCO (supra).
The writ petition stands dismissed without any order as to costs. Urgent photostat certified copy of this judgment, if applied for, be furnished to the applicant within 4 days from date of putting in requisites therefor.
(DIPANKAR DATTA, J.)