The Patna High Court, while allowing a writ petition filed against the order dated 20.10.2023 issued by respondent no.4 by which the petitioner was debarred from working for examinations conducted by the Bihar School Examination Board for three years, held that any such decision is subject to judicial review when the same is taken by the State or any of its instrumentalities.
Brief Facts:
The petitioner having been the lowest bidder and successful in all respects, was awarded a contract by the respondent. The period of contract was two years and as per the agreement BELTRON was to dispense fees and charges to the petitioner. After the commencement of the contract, various examinations were conducted by the petitioner. However, with respect to some of the examinations, certain disturbances and delays had occurred in conducting the examination, not attributable to the petitioner. The negligent, erratic, and irresponsible approach by the petitioner in conducting the computer-based examination is said to be the basis for passing the impugned order dated 20.10.2023.
Contentions of the Petitioner:
The Learned Counsel for the petitioner submitted that the impugned order was passed in a mechanical manner without considering the explanation/reply of the writ petitioner by merely recording that the reply filed by the petitioner was not satisfactory. He argued that debarment/ blacklisting brings serious civil consequences, it should not be done casually, without authority; without following the proper procedure prescribed; without following the process of law, and without proper application of mind.
Contentions of the Respondent:
The Learned Counsel for the respondent submitted that the unsatisfactory service of the petitioner not only resulted in an extreme level of inconvenience and embarrassment, but it also brought a bad name to the Board, which had compelled the Board to issue the impugned order. He argued that the power to blacklist a contractor is inherent in any person legally capable of entering into contracts, subject to all constitutional limitations, which bind the State in its dealings with its subjects.
Observations of the Court:
The Court noted that the power to terminate the agreement rests with either of the parties, who are privy to the agreement. Between two private parties, the right to take any such decision is absolute and untrammeled by any constraints whatsoever. But any such decision is subject to judicial review when the same is taken by the State or any of its instrumentalities.
The Court observed that an order of blacklisting operates to the prejudice of a commercial person not only in praesenti but also puts a taint that attaches far beyond and may well spell the death knell of the organization/institution for all times to come described as civil death. In the absence of an adequate and meaningful opportunity to show cause against the blacklisting, the impugned order is vitiated.
The decision of the Court:
The Patna High Court, allowing the petition, held that the impugned order of debarment/blacklisting passed by the Board is wholly without jurisdiction and is fit to be set aside.
Case Title: M/s Edutest Solutions Private Limited Bahan v Bihar School Examination Board & Ors.
Coram: Hon’ble Justice K. Vinod Charan and Hon’ble Justice Harish Kumar
Case no.: Civil Writ Jurisdiction Case No.16224 of 2023
Advocate for the Petitioner: Mr. Mrigank Mauli
Advocate for the Respondents: Mr. Satyabir Bharti
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