YUMMY BITES AND ANOTHER Vs. STATE OF PUNJAB

JUDGEMENT

(1.) This order shall dispose of CWP Nos. 17890, 17892 and 17894 of 2017 as learned counsel for the parties are agreed that the issue involved in all these appeals is identical. However, the facts are being extracted from CWP No.17890 of 2017.

(2.) Prayer in CWP No.17890 of 2017 filed under Articles 226 and 227 of the Constitution of India is for quashing Clause 'G' of the eligibility conditions prescribed in the bid document Annexure P-11 to award the contract for hostel mess and facility shop for meritorious school for Gurdaspur which prescribes that the contractor must have average annual turnover of Rs. 1.50 crores in similar type of work during the last three financial years, as the said condition is unreasonable, arbitrary, irrational, and eliminates fair competition, having no nexus with the object to be achieved. Further, direction has been sought to the respondents to invite fresh tender on the basis of reasonable average annual turnover of the contractor for the last three years.

(3.) A few facts relevant for the decision of the controversy involved as narrated in the petition may be noticed. The society for promotion of quality education for poor and meritorious students of Punjab-respondent No.2 has been set up by the Government of Punjab to run the meritorious residential schools set up by it. The society comprises of Chief Minister, Education Minister, Chief Secretary, Principal Secretary, Department of School Education and Deputy Commissioner of the concerned District. In the meritorious residential schools, poor students who have passed the matriculation examination from Government Schools in the State of Punjab and have scored more than 80 per cent marks are admitted to the 10+1 and 10+2 classes in the non-medical, medical and commerce streams. The students are provided free education, lodging/boarding, books, stationary and uniforms. On 4.08.2014, six meritorious schools, started functioning in the State of Punjab which are situated at Amritsar, Bathinda, Jalandhar, Ludhiana, Patiala and Mohali. Each of these six schools has about 900 students. All the meritorious schools are 100 per cent residential and affiliated to the Punjab School Education Board and 70 per cent of students are girls. In December, 2015, the society invited separate e-tenders for seven existing meritorious schools i.e. Ludhiana, Amritsar, Jalandhar, Patiala, Bathinda, Mohali and Talwara for a period of two years, through the Deputy Commissioner of concerned District. However, in Clause 'G' relating to the eligibility of the contractor, different annual turnover during the last financial three years was prescribed for each school. The incumbent mess contractors of the aforesaid seven meritorious schools challenged Clause 'G' of the tender document, relating to the requirement of turnover in the last three years by filing separate writ petitions before this Court i.e. CWP No.8 of 2016 and other connected writ petitions. On January 5, 2016, the aforesaid writ petition came up for hearing before this court. Notice was issued and meanwhile, it was ordered that till further orders, the work order shall not be issued in favour of any party. Liberty was given to the respondents to adopt adequate measures for continuing to run the mess in the meantime. On 12.1.2016, it was recorded that in the event of respondents permitting the petitioner to continue till the disposal of the petition, he undertakes to make good any loss that may be caused to the respondents in the meantime. Thereafter, the respondents allowed the incumbent mess contractors to continue running the hostel mess. The respondents contested the writ petitions by submitting that the society had informed the Deputy Commissioner of each district vide letter dated 2.11.2015 to fix the turnover as per the CVC guidelines dated 17.12.2002 and the turnover shall not be less than anticipated bill for three months. By applying the aforesaid CVC guidelines, the respondents justified the prescription of turnover for the meritorious school Jalandhar as Rs. 1.50 crores. Vide detailed judgment dated 2.6.2016, this Court disposed of all the writ petitions by holding that the prescription of different turnover for different schools was an arbitrary and irrational act on the part of the respondents and showed a flaw in the decision making process. The Court further held that there was no rationale while working out and finally stipulating the required turnover. In such circumstances, this court quashed and set aside Clause 'G' of the bid document and directed the respondents to issue a fresh tender and if they wished to stipulate a required turnover, they must do so in a rationale and fair manner. It was further directed that the interim orders shall continue till the appointment of a regular contractor. On the opening of the meritorious school, Gurdaspur in August 2016, the Principal of the school invited quotations for running the Hostel Mess. As the rate of Rs. 140/- per day per student quoted by the petitioner was the lowest, the petitioner was awarded the mess contract for the meritorious school, Gurdapsur. At present, there are about 200 students in the meritorious school, Gurdaspur. The petitioner is running the hostel mess of meritorious school Gurdapsur till date for which it has invested Rs.n 5 lacs to buy the utensils, defreezer etc. Vide public notice dated 28.7.2017, the society invited tender for all ten meritorious schools in Punjab for the period from 1.10.2017 to 30.9.2019. In pursuance to the public notice, the society issued the bid document for award of contract for running the hostel mess of meritorious school, Gurdapsur. As per clause G of the bid document, it has been stated that the contractor must have average annual turnover of Rs. 1.50 crores in the similar type of work during the last three financial years. According to the petitioner, the society has wrongly fixed the condition of turnover as Rs. 1.50 crores for school at Gurdaspur whereas in other five schools where the strength of students is 900, the annual turnover has also been fixed as Rs. 1.50 crores and for school at Talwara, for the strength of 200 students, the turnover has been fixed as Rs. 30 lacs. As per CVC guidelines, the prequalification is a process to select competent contractors having technical and financial capacity commensurate with the requirements of a particular procurement. The petitioner asserts that the action of the respondents to prescribe the unreasonable condition of very high turnover is violative of the right to equality, livelihood and life as guaranteed under Articles 14, 19 and 21 of the Constitution of India. Hence the instant petition by the petitioners.