Arup Kumar Goswami, J.@mdashHeard Mr. A.R. Sikdar, learned counsel for the petitioners. Also heard Mr. A.K. Sarma, learned counsel appearing for the respondent No. 2 and Mr. M. Khataniar, learned State Counsel representing the respondent No. 1.
2. Facts, as set out in the writ petition, inter alia, are that the petitioners are firms registered under Societies Registration Act, 1860. The petitioner No. 1 and petitioner No. 2, vide representations dated 06/07/2014 and 10/07/2014, respectively, had applied for order to supply cotton yarn to the respondent No. 2, namely, Managing Director, Assam State Development Corporation for Other Backward Classes Ltd. (for short, ''ASDC for OBC Ltd.''). Subsequently, the respondent No. 2 issued a letter dated 04/09/2014 to about 30 firms/agencies intimating them to furnish particulars and documents in respect of their firms and also to deposit Rs. 1 lakh in case of OBC/SC/ST and Rs. 2 lakhs in case of others. On submission of the particulars and documents as required, the said firms were enlisted with the Directorate of Welfare of Plain Tribes and Backward Classes (WPT and BC), Assam. However, no action was taken on the representations of the petitioners. On 09/09/2014, a short notice inviting tender was published in ''Dainik Asam'', an Assamese Daily, by the respondent No. 2, inviting quotations within a period of 7 days from currently enlisted registered firms/suppliers with the Directorate of WPT and BC as valid quotationers against supply of cotton yarn for empanelment as suppliers of ASDC for OBC Ltd. However, the petitioners did not have any knowledge about the publication of the said notice and, as such, they could not participate in the aforesaid process.
3. With the above factual matrix, the writ petition was filed praying for a writ of mandamus directing the respondents to initiate a fresh process for submission of quotations against supply of cotton yarn to the respondent Corporation.
4. This Court, by an order dated 22/10/2014, while issuing notice of motion, passed an interim order to the effect that if the tender process was not finalized, status quo on the same shall be maintained.
5. The respondent No. 2 had filed an affidavit indicating that for procurement of cotton yarn, the Directorate of WPT and BC had invited quotations through local newspaper advertisement on 25/10/2013 and the Departmental Purchase Committee of the Directorate of WPT and BC had held a meeting on 21/12/2013 under the provision of Section 9 of Assam Preferential Store Purchase Act, 1989, (for short, ''the Act of 1989'') for fixation of suitable rate for procurement of 2/80 Count Dyed Cotton Yarn and Rs. 525/- was fixed for per Kg 2/80 Count Dyed Cotton Yarn as the official rate, which will be valid for the year 2013-14 and be applicable to all Directorates, Corporations, Autonomous Councils and other Development Councils under WPT and BC Department. On 01/09/2014, on the request of the respondent No. 2, Directorate of WPT and BC had forwarded the list of suppliers, numbering 162, who had submitted quotations for supply of cotton yarn. While admitting that petitioners and some others had submitted representations for allotment of orders for supply of cotton yarn to the respondent Corporation, their cases could not be taken up for consideration as their names did not figure in the list of quotationers, furnished by the Directorate of WPT and BC Department. Letter dated 04/09/2014 was, accordingly, issued to the suppliers who were enlisted with the Directorate of WPT and BC. The respondent No. 2 had published a Short Notice on 09/09/2014 for empanelment as Cotton Yarn suppliers. It is also highlighted in the affidavit that a screening committee was constituted vide notification dated 16/09/2014 and finally 16 firms were recommended for necessary empanelment and empanelment list was published by notification dated 20/10/2014. Seven supply orders were also issued in respect of empanelled firms prior to receipt of the interim order of this Court. On 03/11/2014, however, in compliance to the interim order of this Court, remaining 9 (nine) Nos. of empanelled firms were not issued supply orders.
6. An additional affidavit-in-reply was filed on 23/02/2015 by Abdul Malik. It is stated that the respondent No. 2 happens to be also the Director of WPT and BC. It is pleaded that advertisement dated 09/09/2014 inviting quotations exclusively only from the enlisted suppliers with Directorate of WPT&BC is illegal and consequently, the supply orders are illegal and are liable to be set aside and quashed. It is also stated that before the interim order dated 22/10/2014 was communicated on 03/11/2014, the writ petitioners had submitted a certified copy of the order on 22/10/2014 itself and had placed the same before the respondent No. 2 at around 3.30 P.M. However, the respondent No. 2 had refused to accept the same and prepared the selection list showing the same to be dated 20/10/2014. This additional affidavit-in-reply is in addition to the affidavit-in-reply filed earlier.
7. Mr. A.R. Sikdar, learned counsel for the petitioners submits that the respondents acted illegally and arbitrarily in restricting the Short Notice dated 09/09/2014 only to the registered firms enlisted with the Directorate of WPT and BC instead of also permitting other registered firms from participating in the said process. It is also submitted that process of empanelment was restricted to certain blue-eyed firms who were issued the letter dated 04/09/2014 (Annexure-5). It is further submitted that the list prepared by the Directorate of WPT and BC enlisting certain firms could not have been made the basis for inviting quotations by different departments, including by the ASDC for OBC Ltd. He has vehemently argued that as the petitioners had submitted representations, the case of the petitioners should also have been taken up for consideration.
8. Relying on the affidavit-in-reply filed by the petitioners on 21/01/2015, the learned counsel further submits that in the year 2013, the names of the petitioners were empanelled and were approved by the WPT and BC Department but no supply order was issued in their favour, though supply orders were issued to some of the empanelled firms. He has submitted that petitioners had submitted quotations by paying earnest money, which is still with the respondents.
9. Mr. A.K. Sarma, learned counsel appearing for the respondent No. 2 has submitted that the exercise was carried out for procurement of 2/80 Count Dyed Cotton Yarn for the year 2013-14. An advertisement was issued on 25/10/2013 by the Director of WPT and BC inviting quotations from willing tenderers for supplying 2/80 Count Dyed Cotton Yarn during the year 2013-2014 and 224 quotations were received from various individuals and firms. On consideration of the rates offered by various quotationers, Rs. 525/- was fixed as the reasonable rate for the year 2013-14. This rate was to be valid as the departmental rate for all the Departments, Corporations etc. under the WPT and BC Department including the ASDC for OBC Ltd. It is submitted by him that if the petitioners were empanelled for the year 2013 as stated in the affidavit-in-reply and submitted by Mr. Sikdar, they could have certainly taken part pursuant to the Short Notice published in the ''Dainik Asam'' on 09/09/2014, whereby quotations were invited from currently enlisted registered firms/suppliers with the Directorate of WPT and BC. It is, however, submitted that the assertion of the writ petitioners that they are enlisted and that they had submitted earnest money is not backed up by any cogent materials. He has submitted that inviting quotations from the empanelled quotationers with the Directorate of WPT and BC, which has administrative control over the ASDC for OBC Ltd., cannot be said to be arbitrary and discriminatory. Mr. Sharma has placed reliance on the judgment of the Apex Court in the case of
10. I have considered the submissions of the learned counsel for the parties and have perused the materials on record. I have also perused the records produced by Mr. Sarma.
11. Cotton yarn is procured by the respondent No. 2 Corporation for distribution amongst poor OBC women weavers of Self Help Groups on subsidy under Family Orientation Income Generation (FOIG) Scheme of the Corporation. Procurement of the yarn is depended on the fund released by the Government against the financial year 2013-14.
12. The records produced by Mr. A.K. Sarma goes to show that the Directorate of WPT and BC, on 25.10.2013, had invited sealed quotations by way of paper publication from intending Registered Manufacturers/Authorized Dealers/Distributors/Govt. Agencies and Govt. Registered suppliers for supply of 2/80 Count Dyed Cotton Yarn.
13. The said invitation of quotation, dated 25.10.2013, which is available in the records produced by Mr. Sarma, did not indicate that the invitation was for empanelment in the Directorate of WPT and BC. It was only an invitation for quotation for supply of 2/80 Count Dyed cotton yarn. The said invitation of quotation also did not indicate that the Departments, Corporations etc. under its administrative control including respondent No. 2 will, while ordering for cotton yarn, permit only the suppliers who had responded to the said advertisement dated 25/10/2013, to participate in any tender process initiated by them. Though in the additional affidavit-in-reply, the petitioners have sought to question the legality of the advertisement dated 09/09/2014 and the list of enlisted suppliers numbering 162 (Annexure-B of the affidavit-in-opposition of respondent No. 2), the empanelled suppliers and more particularly, the 16 suppliers who have been notified by the respondent No. 2 for empanelment with the respondent No. 2, have not been arrayed as party respondents, in spite of the fact that on 12/12/2014, the said facts were brought on record by the respondent No. 2. In the facts of the case, the 16 empanelled suppliers out of which 7 had already been issued work orders are necessary parties and in absence of them, no effective relief can be granted to the petitioners.
14. In the first affidavit-in-reply, the petitioners had also taken the stand that in the year 2013, their names were empanelled by WPT and BC Department. If they were empanelled as contended by them, they could have also participated pursuant to the Short Notice dated 09/09/2014, because the restrictive clause limiting only the currently enlisted suppliers with the Directorate of WPT&BC would not have operated against the petitioners. The stand of the writ petitioners is also not found consistent. In paragraph 5 of the writ petition, categorical statement was made by the petitioners that petitioners had no knowledge about the publication of the Short Notice dated 09/09/2014 and they were not intimated through issuance of letter dated 04/09/2014 as given to other suppliers and therefore, they could not participate in the aforesaid process. More or less similar stand was taken in paragraph 4 of the affidavit-in-reply. An altogether different stand is portrayed in the additional affidavit-in-reply stating that inviting applications/documents/quotations exclusively from the list of panel prepared by the Directorate of WPT&BC is arbitrary.
15. In the additional affidavit-in-reply, as noted earlier, certain allegations were leveled against the respondent No. 2. The said additional affidavit-in-reply was filed on 23/02/2015. Said allegations were not put on record for almost 4 months. Even in the first affidavit-in-reply, no such allegations were made and, on the contrary, averments were made that on 31/10/2014, 3 firms were allotted orders to supply and on 03/11/2014, 4 firms were given order to supply and 9 firms were yet to be given supply orders. The said affidavit-in-reply was sworn by the same person, namely, Abdul Malik, who had also sworn the additional affidavit-in-reply. In the first affidavit-in-reply, no allegation of preparation of panel of 16 suppliers and issuance of work orders on a back date as well as refusal of the respondent No. 2 to receive a certified copy of the interim order of this court was made.
16. In Tejas Constructions (supra), the Apex Court had held that interference with an ongoing work is not conducive to public interest. The cotton yarn is to be supplied as a measure of social welfare scheme to poor OBC women weavers of self-help group as subsidy. It is to be noted that 7 supply orders were already issued to 7 firms out of 16 firms selected on the basis of the advertisement dated 09/09/2014.
17. Present is not a case where there was lack of transparency in the matter of distribution of State largesse and supply orders were issued purely on a pick and choose basis. However, this Court will observe that in future, if the Corporations/Departments etc. under the administrative control of WPT and BC Department has to follow the empanelled list of suppliers made by the WPT and BC Department, then it will be obligatory on the part of the WPT and BC Department, while inviting quotations, to make it explicitly clear that the Departments/Corporations etc. under its administrative control, while placing supply orders, will restrict the field to only such of the suppliers who had responded to the quotation for enlistment by the WPT and BC Department. In absence of such clear and unequivocal stipulation, such Departments/Corporations cannot limit or restrict participation of suppliers, who, for many reasons, may not want to be enlisted with WPT and BC Department. Such a course of action will further promote openness and transparency, which are essential sine qua non in the matter of distribution of state largess.
18. In view of the above discussions, this writ petition fails and accordingly, same is dismissed. The interim order passed earlier shall stand vacated.
