@JUDGMENTTAG-ORDER
K.B.K. Vasuki, J.@mdashBoth the writ petitions are arising out of tender proceedings in respect of house keeping and general services for various offices/exchanges of BSNL located at Dharmapuri. While W.P. No. 5327 of 2010 is filed to quash the impugned notice inviting tender in memo dated 25.02.2010 issued by the 2nd Respondent and to quash the same.W.P. No. 5328 of 2010 is filed against the order of cancellation of the tender dated 10.02.2010 made by the 2nd Respondent to quash the same and to consequently direct the Respondents to award the tender as called for in the tender notice dated 18.11.2009 in favour of the Petitioner.
2. The facts leading to the filing of these writ petitions are as follows:
The Petitioner and the 3rd Respondent firms in WP. No. 5327 of 2010 have been providing service in the field of security house keeping and general services in number of public and private institutions. The Respondents 1 and 2 on 2009 floated tender inviting tenders for house keeping and general services for offices/exchanges of BSNL located at Dharmapuri and the detailed notice inviting tender was made available at the website. In response to the same the Petitioner and the 3rd Respondent submitted their tenders by complying with all other formalities and as both tender were in order the same were opened and as the Petitioner quoted the lowest rate he was rated as L1. The same is followed by another letter dated 19.01.10 issued by the 2nd Respondent seeking certain clarification for finalisation of the tender and the Petitioner furnished the necessary particulars. However, the 2nd Respondent has issued an order on 10.02.2010 thereby cancelling the said tender due to administrative reasons with further communication that the new tender is likely to be called for and EMD deposited by the Petitioner will be refunded. The Petitioner was also subsequently refunded the EMD amount on 12.03.2010. In the meanwhile, the 2nd Respondent has issued fresh notice on 03.02.2010 inviting fresh tenders for the same work and the Petitioner also purchased a tender form containing the general instructions and terms and conditions and the general instructions No. 1 and 2 newly introduced in the latest tender requiring proof of experience from at least one large corporate organisation-PSU-Government body for minimum period of three years continuously by engaging minimum 125 workers (during 2006-07, 2007-2008, 2008-2009 or till date) and copy of contract labour licence having current validity for engaging minimum 125 workers duly issued by labour department authorities is the cause of action for filing these two writ petitions.
3. The learned Counsel for Petitioner in both the writ petitions have seriously argued that the Respondents 1 and 2 have played fraud on the entire tender process by cancelling the earlier tender proceedings without any reason and the action of the Respondents in issuing fresh tender with new instructions 1 and 2 as above referred to with sole intention to favour 3rd Respondent and to exclude all other tenderers including the Petitioner is arbitrary, illegal, malafide and colourable exercise of power and against public interest and is violative of Article 14 of the Constitution of India.
4. Per contra, the learned Counsel for the Respondents 1 and 2 would oppose the Petitioner''s stand on the ground that the Respondents have every right to fix the norms and it is the policy of the Government and the same cannot be questioned and the Petitioner having not paid EPF and ESI regularly has cheated 2 or 3 workers/employees as the tender amount is Rs. 1,28,00,000/-and as the interest of both the BSNL and employees engaged by the tenderers are to be protected the cancellation of the earlier tender was made only with that object. It is the further contention of the learned Counsel for the Respondents that the Government is empowered to stipulate its own tender conditions and the court is not empowered to sit over the same and to decide its validity as appellate court and the tender proceedings are open to all and cannot be said to be to favour one particular individual and the cancellation of the earlier tender is on administrative reasons and fresh tender for the same work with new clause is only to avoid ineligible persons to participate in the tender. It is further contended by the learned Counsel for the Respondents, that the condition relating to engagement of 125 workers is already contained in the earlier tender wherein it is clearly stated that the contractor is bound to provide all or either of the service at 125 point simultaneously by employing each worker at 125 points totaling 125 employees and as there is prohibition of employment under contract labour the question of allowing the tenderer to employ contract labourer does not at all arise herein and the tender condition to have 125 workers and to produce contract labour license for engaging minimum 125 workers issued by the competent labour authority is only with an intention to provide effective service for which the tender is called for and the ulterior beneficiary is only the public and the new instructions contained in the fresh tender is only in the interest of general public.
5. I have heard and appreciate the submissions made on both sides and perused the records produced on both sides.
6. The facts as referred to above would reveal that the 2nd Respondent has called for tender for the same work, on two occasions and the Petitioner was declared as the L1 on the first occasion and the same was cancelled on administrative ground by specific order and fresh tender was called for on the second occasion containing additional general instructions which are according to the Petitioner arbitrarily included with malafide intention to favour the 3rd Respondent and to exclude the other tenderers. The Petitioner has come forward with these two writ petitions one to set aside the cancellation order of the earlier tender and to consequently direct the 2nd Respondent to issue tender in favour of the Petitioner who is admittedly declared as L1 and also to set aside the tender notice issued with such objectionable new instructions on the 2nd occasion. It is not the case of the Petitioner that the 2nd Respondent has no authority to either cancel the proceedings tender initiated on administrative ground or to call for fresh tender, it is equally true that the 2nd Respondent is not bound to while doing so give specific reasons as to why the earlier tender was cancelled.
7. The grievance raise by the Petitioner in both these writ petitions is that the 2nd Respondent acted so with malafide intention to favour 3rd Respondent to exclude other tenders including the Petitioner herein. That being the nature of allegations the burden is on the Petitioner to prove the allegation of malafide. It is noteworthy to mention at this juncture that the Petitioner had received the communication regarding the order of cancellation of the earlier tender and had also received the EMD deposited by him for processing his tender on the first occasion without any demur or protest and such refund is after the issuance of fresh tender on 03.03.2010 and after the tender form was obtained and after the instructions 1 and 2 contained in the same are personally known to the Petitioner and the same was received by the Petitioner without any protest and without reserving his right to question the earlier cancellation and what is claimed in his representation is only for refund of EMD. Having received the amount without any protest on 12.03.2010 the Petitioner has come forward with these writ petitions supported by the affidavit sworn in by the Petitioner on the very next day on 13.03.2010. When that being his conduct it raises a reasonable apprehension in the mind of this Court as to whether the Petitioner has any locus standi to question the earlier cancellation on the grounds of malafide, arbitrariness and colourable exercise of power. Further as far as the tender notice inviting fresh tender is concerned the same is admittedly open to all and the presumption raised on the part of the Petitioner before ever the tender notice and before ever ascertaining the number of participants in the same that the earlier cancellation and calling for fresh tender is with an intention to favour 3rd Respondent and to exclude other tenderers appears to be baseless and unfounded.
8. Be that as may, the two new instructions No. 1 and 2 which are according to the Petitioner introduced with malafide intention are relating to three years experience in the filed and relating to engaging 125 workers as certified by the competent labour authority. It may be true that part of the instruction No. 1 to have satisfactory served one large corporate organisation or Government body for continuous period of 3 years that too by engaging 125 workers is newly introduced one. But the clause regarding engaging 125 employees is as rightly pointed by the learned Counsel for the Respondents cannot be said to be new one for the following reason.
9. In this connection the attention of this Court is drawn to Annexure-2 of the earlier tender relating to scope of works the copy of which is enclosed at Pages 17 to 19 of the typed set of papers. The reading of the same reveals that the services to be provided under the award of tender are 36 in number under two captions house keeping number A1 to A5 and general service B1 to B21 and it is clearly stated in more than one place in page 18 that all or any of the above services B1 to B21 shall have to be provided at 125 points simultaneously and independently during normal office hours which pre supposes engagement of each worker in each point totaling 125 workers. That being so, the clause regarding engagement of 125 workers is available in both the tender forms. The additional requirement in the impugned tender notice dated 03.03.2010 is the production of copy of contract labour license issued by the competent labour authority for engaging minimum 125 workers.
10. As a matter of fact, the clarification sought from by the Petitioner on earlier occasion by letter dated 19.01.2010 by the 2nd Respondent enclosed at pages 27 of the typed set of papers is only regarding the requirement of 125 labourers. The Petitioner is in the said communication dated 19.01.2010 not only called upon to explain but is also called upon to furnish EPF and ESI monthly challan contribution for the labourers supplied to Tamil Nadu Tourism Development Ltd, Uthagamandalam and Southern Rivers Division, Central Water Commission, Coimbatore for the period till November 2009. The reply by the Petitioner in this regard issued on 25.01.2010 is enclosed at pages 28 and 29 of the typed set of papers wherein it is explained that as the labour licence is issued on individual basis to each unit for which man power is supplied, the labour licence can be taken for the contract staff to be supplied to BSNL after the award of contract. However the Petitioner did not enclose the copy of ESI and EPF monthly challan contribution as referred to in the notice dated 19.01.2010. That being so, the Petitioner cannot be now permitted to say that clause regarding requirement of 125 workers is newly introduced.
11. As far as experience certificate is concerned the same cannot be said to be arbitrary. When the tender amount is more than Rs. 1,28,00,000/-the reasonable clauses can be introduced so as to restrict the number of tender applications and to disqualify the ineligible persons to participate in the tender process. When the Petitioner says that he has 10 years experience in the field private and public institutions and Government bodies, the Petitioner may not be unable to produce one such certificate even otherwise the incapacity to comply with the tender condition by any one of the intending tenderers cannot render the terms and conditions imposed by the authority concerned to be arbitrary and malafide. But for the first tender notice the Petitioner cannot be permitted to raise any grievance against the fresh tender notice having such clause. As it is well settled law, that the Government has every authority to change the policy and to specify alter or add any terms and conditions, it is not for this Court or the individual to sit over and interfere with the same unless and otherwise it is satisfactorily made out to be arbitrary, illegal and malafide. Such an argument is fortified in the recent judgment of the Supreme Court reported in
64. It is true that the State or its tendering authority is bound to give effect to essential conditions of eligibility stated in a tender document and is not entitled to waive such conditions but that does not take away its administrative discretion to cancel the entire tender process in public interest provided such action is not actuated with ulterior motive or is otherwise not vitiated by any vice of arbitrariness or irrationality or in violation of some statutory provisions. It is always open to the State to give effect to new policy which it wished to pursue keeping in view "overriding public interest" and subject to principles of Wednesbury reasonableness.
12. In the case dealt with by the Supreme Court the State Government decided to cancel first NIT and to issue 2nd NIT with particular condition and it was satisfactorily explained before Calcutta High Court that the reason for deviating from the conditions set out in the first NIT and for setting out new clause is only for increasing competition. It is further stated by the State Government it was done only with public interest by taking into account the financial implication. The Calcutta High Court accepted the stand of the Government and the Supreme Court confirmed the same by observing:
52. We have no justifiable reason to take a view different from the High Court insofar as correctness of these reasons is concerned. The courts have repeatedly held that the government policy can be changed with changing circumstances and only on the ground of change, such policy will not be vitiated. The Government has a discretion to adopt a different policy or alter or change its policy calculated to serve public interest and make it more effective. Choice in the balancing of the pros and cons relevant to the change in policy lies with the authority. But like any discretion exercisable by the Government or public authority, change in policy must be in conformity with Wednesbury reasonableness and free from arbitrariness, irrationality, bias and malice.
53. In Assn. of Registration Plates this Court while dealing with the challenge to the conditions with regard to experience in foreign countries and prescribed minimum turnover from that business observed that these conditions have been framed in NIT to ensure that the manufacturer selected would be technically and financially competent to fulfil the contractual obligations and to eliminate fly-by-night operators and that the insistence of the State to search for an experienced manufacturer with sound financial and technical capacity cannot be misunderstood. While maintaining the State Government''s right to get the right and most competent person, it was held that in the matter of formulating conditions of a tender document and awarding a contract of the nature of ensuring the supply of HSRP, greater latitude is required to be conceded to the State authorities and unless the action of the tendering authority is found to be malicious and a misuse of statutory powers, tender conditions are unassailable.
13. The Supreme Court has also in the same judgment referred to the earlier judgments of the Supreme Court reported in
14. In my considered view, the Respondents have satisfactorily explained the reasons for introducing the new clause with regard to experience and requirement of 125 workers as such the question of holding earlier cancellation and the fresh tender notice as vitiated does not at all arise herein. As the reasons set out on the side of the authority concerned are quite valid and acceptable and does justify the actions impugned herein the same renders the Petitioner''s, theory of malafide to be lacking in substance and the Petitioner is hence disentitled to get any relief in both the writ petitions.
15. In the result, both the writ petitions fail. No costs. Consequently, connected miscellaneous petitions are closed.
