MOHD TAWWAR Vs. STATE OF UTTARAKHAND

JUDGEMENT

(1.) K .M. Joseph, .J 1. The appellant is the party respondent in the writ petition filed by the 4th and 5th respondents in the Appeal (hereinafter referred to as the writ petitioners). Tender notice for transportation of food -grains was issued on 4th February, 2015. It is, no doubt, mentioned that the tender notice contemplated technical and financial bids. Both the appellant and respondent nos. 4 and 5 bid. The scope of work was transportation of food -grains and sugar from the railhead Haldwani/Ramnagar to the food -grain stores for the year 2015 -16. The appellant quoted for Sl. Nos. 15, 17, 18, 20 and 22. The appellant passed muster at the technical stage. The matter passed on to the consideration of the financial bid. The bid of the appellant in respect of Sl. Nos. 17, 18 and 22 was found to be the lowest. The Government decided to accept the bid of the appellant. According to the learned counsel for the appellant, the contracts were actually entered into in respect of the three works. It is at this stage, the writ petition was filed questioning the acceptance of the bid of the appellant. The case of the writ petitioners was that the tenderers were expected to provide earnest money, which is provided in Rule 20 of the Uttarakhand Procurement Rules. The appellant deposited an FDR for a sum of Rs. 2,27,000/ -. He did not deposit separate FDRs or demand drafts, as contemplated in law in respect of the five works, for which he had bid. At any rate, the amount of Rs. 2,27,000/ - fell short of the total amount required as earnest money in respect of the five works by a sum of Rs. 45,100/ -. This argument of the writ petitioners was accepted by the learned Single Judge, who took the view that Rule 20 of the Procurement Rules stood violated and the Government should not have accepted the bid of the appellant. Accordingly, the relief was granted to the writ petitioners. Feeling aggrieved, the appellant is before us.

(2.) WE heard Mr. Sudhir Kumar, Advocate for the appellant, Mr. Dushyant Mainali, Advocate for the writ petitioners and Mr. P.C. Bisht, Standing Counsel for the State.

(3.) LEARNED counsel for the appellant would contend that the learned Single Judge has erred in relying on Rule 20 of the Procurement Rules. He would point out that Rule 20 is not even applicable to the case at hand as we are not concerned with 'goods' and Rule 20 figures in Chapter -2, which relates to 'goods'. On the other hand, he drew our attention to the definition of word 'service' to be found in Section 2(h) of the Uttarakhand Procurement Rules and he would then refer us to Chapter -4, which comes under the General Heading 'Service'. He would submit that there is no similar provision as Rule 20 in the said Chapter. There is also no provision, which makes the Rule 20 applicable in procuring the service. In this connection, he particularly drew our attention to Chapter - 3, which relates to work, wherein he would point out that the general provision in Chapter -2 relating to goods shall be made applicable, whereas this is conspicuous by its absence in Chapter -4, therefore, in regard to the contract in question Rule 20 does not apply. He would also submit that in the year prior to the year in question, the tenders were floated, specifically, permitting giving of one FDR in respect of several works. It is on that basis and the mistake, no doubt, has been committed by the appellant, by which, he has given a single FDR. The Amount of Rs. 2,27,000/ - covered by the FDR sufficed for legally considering the case of the appellant in respect of the three works, for which, he had quoted the lowest sums. He would, in fact, point out that after the judgment of this Court, a fresh advertisement has been issued. In the said advertisement, it has been explicitly made clear that the FDR in respect of the earnest money must be in respect of each work. Such a requirement was not there in the present advertisement. Moreover, he would submit that the whole purpose behind furnishing the bid security or earnest money is to see that the Government is not prejudiced by a bidder wriggling out of his bid. That is to say, the Government is empowered to tie down the bidder to his bid as he enters into the contract. In this case, the question of earnest money, which is relevant at the stage of the technical bid, in a manner of speaking faded into insignificance when the Government decided to act on the FDR, passed on to the financial status, found the appellant to be the lowest and what is more decided to enter into the contract with him in respect of the same. Therefore, the importance of the bid has ceased to exist as the purpose stood achieved, inasmuch as the appellant has entered into the contract and he has not run away from his obligation. Per contra, learned counsel for the writ petitioners would submit that there has been arbitrary state action in this matter. He would draw our attention to the General Financial Rules of 2005 of the Govt. of India. According to him, the Procurement Rules in question is modeled on the same. In this connection, he drew our attention to Rule 157, which reads as follows: