SARGOUS TOURS AND TRAVELS Vs. UNION OF INDIA

JUDGEMENT

(1.) In a State, which is governed by rule of law, every tender process set in motion by the State or its instrumentalities should undoubtedly, be transparent, fair and open. Can a tender process, which does not notify the procedure, which will be followed for acceptance or rejection of tenders, be described or treated as transparent, fair and open and if such a grievance is brought before the writ Court, should the writ Court interfere, are the questions, which have been raised in the present writ application.

(2.) In a nut-shell, the case of the petitioners may be described as follows:- The petitioner No. 1 as a company dealing with the supply of vehicles, such as, trucks, buses and taxis and is registered as a transporter under the Head Quarters Eastern Command, Fortwilliam, Kolkata. The petitioner No.2 is the sole proprietor of petitioner No.1. A notice inviting tender (NIT), dated 28.12.2002, was issued by the Brigadier DDST Head Quarters Area, 101 Area, Shillong, for supply of various taxies and buses for the period commencing from 1.4.03 to 31.3.04 to various destinations. In accordance with the requirements of the NIT, the petitioner No. 2 submitted his tender in the name of petitioner No. 1 along with all requisite documents and earnest money. In pursuance of the NIT, the petitioner No. 2 was invited to participate in the open tender process to be held on 3.3.03. In all the items in which the petitioners participated, the petitioners had quoted lowest rates, but the respondent-authorities did not issue Acceptance of Tender in favour of the petitioners for the works mentioned at Sl. Nos. 26 (ABSD, Ghy to SP Hatigarh, CHT), 43 (Ghy, to Narangi-local duty) and 44, (Ghy to Shillong-Jorhat-Tezpur Michamari- Dimapur-Rangia-Tenga-Silchar CHT) the petitioners having, however, been allotted the work as mentioned at Sl.No. 23 (FCI, Ghy, to CHT ABSD) and 42(ABSD, Ghy. Narangi-Basistha-Rly. Station and back CHT). Since the petitioners were the lowest bidder in respect of item Nos. 26,43 and 44, the petitioners ought to have been, in terms of the requirement of para-8 of the NIT, invited for negotiation, but instead thereof, the works were allotted in favour of private respondent Nos. 5 and 6 violating, thus, the procedural norms set by the respondent-authorities themselves. The respondent-authorities issued Acceptance of Tender Note, dated 12.3.2003, in favour of private respondent Nos. 5 and 6 in respect of items aforementioned, though their rates were higher than those of the petitioners in all respects. Such action on the part of the respondent-authorities is illegal, arbitrary, unfair, unreasonable, capricious and against the principles of natural justice. The petitioners have been carrying on the work of supply of vehicles as mentioned hereinbefore to the fullest satisfaction of the authorities concerned. Thus, the exercise of the power by the respondent-authorities is on extraneous considerations and contrary to the factors governing the public interest and public welfare. The exercise of power is, thus, colourable in nature. The petitioners have, therefore, approached this Court seeking issuance of appropriate writ or writs setting aside and quashing the impugned Acceptance of Tender Note, dated 12.3.2003, aforementioned and commanding the official-respondents to issue allotment of work, in question, in favour of the petitioners.

(3.) The respondent-authorities, namely, respondent Nos. 1 to 4, have resisted the reliefs as sought for by the petitioners, the case of these respondents being, briefly stated, thus : The Army-authorities conclude contracts for supply of civil hired transport mainly taxies, buses and load carriers on annual basis from amongst contractors, whose names appear in the list of approved contractors maintained by the Head Quarters Eastern Command(Supply & Transport Branch), Kolkata. These contracts are concluded by open tendering by the Deputy Director of Supply & Transport (i.e. DDST) on behalf of the General Officer Commanding(GOC), 101 Area, Shillong, who constitutes a Board of Officers for processing the tenders and a panel of two senior Army Officers of the rank of Brigadier and Colonel and a representative of Controller of Defence Accounts, who is a senior officer of Indian Defence Accounts Service Cadre. The Deputy Director of Supply & Transport, who is an officer of the rank of a Brigadier, is a part of this panel and he is known as the Executive Officer. The decision of the GOC, who, as per the Government Rules and Regulations, is the competent Financial Authority to finally settle all matters relating to tenders is final. In pursuance of the NIT, dated 28.12.2002, the petitioner No. 2 submitted his tender documents as per the procedure set by the respondent-authorities on 3.3.2003. The tenders were opened by the Board of Officers consisting of a Commissioned Officer along with a Junior Commissioned Officer in presence of all the tenderers or their authorised representatives. The tenders were, thereafter, processed by the panel of Officers constituted as stated hereinbefore. The panel of Officers made their recommendations taking into consideration all parameters as has been compiled in the booklet under the heading " Procedure for Conclusion of ASC Contracts", and the said recommendations had been put up before the competent Financial Authority. It is the further case of the respondent-authorities that there are several sets of parameters, which are to be taken into consideration by the competent Financial Authority as per terms and conditions of the contract amongst other things and the Financial Authority is empowered either to accept or reject any tender in whole or in part without assigning any reason or cause whatsoever. Extract of para-13 of IAFZ-2137, relating to Invitation to Tender and Instruction to Tenders, reads as under :