[2023:RJ-JD:32066] HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 13015/2023 S.k. Bikes (P) Limited, D-233-234-235, Phase Vii, Focal Point, Ludhiana - 141010 (Punjab) Through Its Manager Institutional Sales Mr. Sandeep Kumar.
----Petitioner Versus
1. State Of Rajasthan, Through Its Chief Secretary, Government Of Rajasthan, Chief Secretary Office, Secretariat, Jaipur, Rajasthan.
2. Director, Secondary Education, Government Of Rajasthan, Lalgarh Palace, Bikaner, Rajasthan.
----Respondents For Petitioner(s) : Mr. Sanjeet Purohit with Ms. Payal Kakra Mr.Yogendra Singh Charan Mr. Chaitanya Mahajan For Respondent(s) : Mr. Pankaj Sharma, AAG with Mr. Rishi Soni Mr. CS Kotwani a/w Mr. Dinesh Kumar Godara HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI Order 27/09/2023
1. The petitioner has preferred the present writ petition claiming the following reliefs :-
"Iv. By an appropriate writ, order or direction the eligibility criteria as laid down in "Section-(V); Eligibility Criteria for Technical Bid in E-Bid Notice Cum Tender Document dated 14.08.2023 (Annex.2) bearing Ref. No.Shivira - Sec/Accounts/D-2/28011/2023-24" may kindly be declared illegal and the same may kindly be set aside.
v. Issue an appropriate writ/order/directions to the Respondent No.2 to allow the petitioner to equally (Downloaded on 12/11/2023 at 06:40:08 AM) [2023:RJ-JD:32066] (2 of 6) [CW-13015/2023] participate in the tender process while relaxing /dispensing with the eligibility criteria prescribed at Serial Number 4 of the impugned E-bid notice cum tender document dated 14.08.2023 and also award the tender to the petitioner if it provides the competitive prices subject to the final outcome of the present writ petition or any other suitable terms and conditions as may deem fit and proper by this Hon'ble Court in the interest of justice."
2. After hearing learned counsel for the parties at length, this Court found some substance only for the purpose of interim order in the case made out by the petitioner and thus, the following order was passed on 04.09.2023 permitting the petitioner to provisionally participate in the technical bid and financial bid in pursuance to E-bid notice cum Tender document dated 14.08.2023 bearing Ref. No.Shivira - Sec/Accounts/D-2/28011/2023-24.
"1. Heard.
2. The crux of the matter is that the petitioner- Company's work experience on an average was required to be as under:
4 Work The OEM should have Copy of
Experi satisfactorily supplied valid
ence 200000 (Two Lakh) certificat
On an Bicycles in which the e the
Avera bidder is participating in bidder
ge last three years (2019- should
20, 2020-21 & 2021-22) enclose
to any center relevant
government office/ any copy of
state government the
office/center government certificat
PSU/State Government e in
PSU i.e. total of six lakh support
bicycles in last 3 yrs. of cycle
Mentioned as above. item
quoted.
3. Mr. Sanjeet Purohit assisted by Ms. Payal Kakra, Mr. Yogendra Singh Charan and Mr. Chaitanya Mahajan, (Downloaded on 12/11/2023 at 06:40:08 AM) [2023:RJ-JD:32066] (3 of 6) [CW-13015/2023] appearing on behalf of the petitioner-Company submit that the petitioner-Company is fulfilling all the conditions necessary for bidding as stipulated for the technical and financial bid except for that the petitioner-Company has not supplied 600000 bicycles in last three years to the government outfits, at the same time, learned counsel for the petitioner-Company submit that in last three years, the petitioner-Company has supplied/sold more than 700000 bicycles in three years, which are fulfilling the specification of I.S.O. certification.
4. Mr. Pankaj Sharma, learned Additional Advocate General assisted by Mr. Rishi Soni, appearing on behalf of the respondents, does not dispute that the petitioner- Company fulfills all basic requirement including being a valid legal entity, having required requisite turn over, having a proper net worth, but he categorically submits that the petitioner-Company is not fulfilling on count of work experience, which requires it to have supply 600000 bicycles in three years to any of the government outfits.
5. This Court, after hearing learned counsel for the parties at length as well as seeing the record of the case, finds that the mandatory condition of work experience of selling/supplying 200000 bicycles in last three years to the government outfits alone (particularly when the petitioner- Company has supplied/sold more than 200000 bicycles every year as specified to private outfits as well as partly to government outfits though not 600000 bicycle to the government outfits) is a condition of work experience, which requires consideration of this Court.
6. Issue notice.
7. On instructions of this Court, Mr. Pankaj Sharma, learned Additional Advocate General is already appearing on behalf of the respondents and has already filed reply to the writ petition and prays for early disposal of the case.
8. Looking into the paucity of time as there is hardly 20 minutes remaining for completion of Court timing, the matter cannot be finally heard today, and therefore, let the matter be listed on 19.09.2023.
9. In the meanwhile, the petitioner-Company shall be permitted to provisionally participate in the Technical Bid and Financial Bid in pursuance to E-Bid Notice Cum Tender Document dated 14.08.2023 (Annexure-2) bearing Ref.
No.Shivira-Sec/Accounts/D-2/28011/2023-24 and further process in pursuance of the same. However, the respondents shall not award any kind of work order to the petitioner-Company without permission of this Court, in (Downloaded on 12/11/2023 at 06:40:08 AM) [2023:RJ-JD:32066] (4 of 6) [CW-13015/2023] case the petitioner-Company qualifies, but at the same time, at any stage, the petitioner-Company's bid shall not be disqualified on count of not having supplied/sold 600000 bicycles in last three years to the government outfits. "
3. Learned counsel for the petitioner today submits that after the order dated 04.09.2023 was passed, the petitioner immediately informed the respondents about the aforementioned interim order and sought reasonable time to complete the mandatory and necessary formality to apply and participating in the bidding process regarding receiving of test reports from R&D Centre and procuring the necessary bank guarantee, because initially the last date of filing the same was 05.09.2023.
4. Learned counsel for the petitioner further submits that the respondents acceded to such request and by a notification dated 05.09.2023, the date and time for the technical bid were extended to 11.09.2023 upto 3.00 P.M. He further submits that since the working days were less, therefore, they could not complete the necessary formalities of seeking test report from R&D Centre and procuring the necessary bank guarantee and thus, the last date for bid submission, which was extended upto dated 11.09.2023, also lapsed.
5. Learned counsel for the petitioner also submits that the petitioner's bid was competent as its stood at Rs.4,050/-, which was lower than the other bidders, who succeeded in the bid in question. He further submits the petitioner had raised the issue of cartelization at the threshold and thus, this Court ought to quash the tender process in question relying upon following judgment. (Downloaded on 12/11/2023 at 06:40:08 AM) [2023:RJ-JD:32066] (5 of 6) [CW-13015/2023] "(i). B.S.N. Joshi & Sons Lted. Vs. Nair Coal Services Ltd. & Ors. reported (2006) 11 SCC 548.
(ii). B.S.N. Joshi and sons Ltd. Vs. Ajoy Mehta & Anr., reported in (2009) 3 SCC 679.
(iii) Association of Registration Plates Vs. Union of India reported in (2005) 1 SCC 679.
(iv) Reliacne Energy Limited & ors., Vs. Maharashtra State Road Development Corporation Ltd. and Ors. reported in (2007) 8 SCC 1.
(v) Holoflex Ltd. Vs. State of M.P. (Writ Petition No.7866/2016).
(vi) Rajasthan Cylinders & Container Ltd. Vs. Union of India reported in (2020) 16 SCC 615.
(vii) Punjab Communication Ltd. Vs. Union of India reorted in (1999) 4 SCC 727. "
6. Learned Additional Advocate General Mr. Pankaj Sharma however submits that adjudication on merits could have taken place, if the petitioner had complied with the interim order passed by this Court on dated 04.09.2023, which he could not. He further submits that the State was benevolent to extend the date upto 11.09.2023 and by acceding it for so many days also, the petitioner could not fulfill the necessary parameters of test report from R&D Centre and the bank guarantee and thus, could not submit his bid within the stipulated time period.
7. Learned Additional Advocate General further submits that since the time to submit the bid has lapsed due to the inability of the petitioner, therefore, no further adjudication is called for. He further submits that though they were not aware of the bid of the petitioner, but they called the successful bidder for negotiation and the bid has been finalized at the rate of Rs.3,857/-, which is lower than the bid disclosed by the petitioner in the Court. (Downloaded on 12/11/2023 at 06:40:08 AM)
[2023:RJ-JD:32066] (6 of 6) [CW-13015/2023]
8. After hearing learned counsel for the parties and seeing the record of the case, this Court finds that the litigation has failed at the threshold because the petitioner, who was granted an interim indulgence of participating in the bid on 04.09.2023, could not complete the necessary parameters of participating in the bid even upto 11.09.2023, which was the date extended by the respondents from the last date i.e. 05.09.2023. Since the petitioner has failed to participate in the bid, the other propositions raised by the petitioner become redundant for being adjudicated at this stage. The petitioner being excluded from the bid process on his non-completion of the bid before the last date is reason sufficient for closure of the present writ petition.
9. In view of above, the present petition is dismissed. It is needless to say that the issue with regard to the eligibility condition remains open for appropriate times.
10. Application for impleadment of applicant as party respondent is disposed of.
(DR.PUSHPENDRA SINGH BHATI), J.
c-7-Sudheer/-
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