M/S Resoursys Telecom Delhi Thru ... vs State Nutrition Thru Secy. ...
2021 Latest Caselaw 10532 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

  Judgment reserved on: 06.08.2021
 
	Judgment delivered on :18.08.2021
 
Court No. - 2
 

 
Case :- MISC. BENCH No. - 14582 of 2021
 

 
Petitioner :- M/S Resoursys Telecom Delhi Thru Partner Sh. Raghav Bansal
 
Respondent :- State Nutrition Thru Secy. Lucknow
 
Counsel for Petitioner :- Shobhit Nigam,Dhananjai Jain
 

 
Hon'ble Rajan Roy,J.

Hon'ble Ravi Nath Tilhari,J.

Heard Shri Dhananjai Jain along with Shri Shobhit Nigam, learned counsel for petitioner and Shri H.P. Srivastava, learned Additional Chief Standing Counsel for State.

The opposite party has filed a counter affidavit to which no rejoinder affidavit has been filed by the petitioner nor any time was sought before us for filing the same. An additional affidavit has been filed by the petitioner copy of which has not been furnished to the learned counsel for the opposite party.

Petitioner a partnership firm has filed this writ petition under article 226 of the the constitution of India seeking a writ of certiorari for quashing the tender/Bid document No. GEM/2021/B/12703377 dated 09.06.2021. A direction has also been sought for the opposite party to extend the date of submission of tender for four weeks with effect from 12.07.2021.

The facts of the case in brief are that the opposite party invited tenders/Bid from eligible persons for purchase of 1,23,398 units of Smart Phones with a particular software, namely, MDM/EMM/SDK-IS:13252, on 09.06.2021. On 18.06.2021, the last date for submission of bid was extended till 28.06.2021 and a pre-bid conference/consultation meeting was scheduled on 21.06.2021. A corrigendum was issued on 26.06.2021 pursuant to which the last date for submission of bid was extended to 06.07.2021. Consequent to the pre-bid discussion held on 21.06.2021 with the proposed bidders, the opposite party considering the departmental requirements and recommendation of the committee concerned and after approval of the State Nutrition Mission issued another corrigendum on 02.07.2021. By the same corrigendum the last date for submission of bid was also extended to 12.07.2021. In pursuance to the aforesaid four bidders submitted their bid. We have been informed that the tender has been finalized and the contract/ agreement has already been executed in favour of one of them.

The contention of Shri Dhananjai Jain, learned counsel for the petitioner was that inadequate time was given for submission of tender after the corrigendum dated 02.07.2021, which, according to him, was contrary to the U.P. Procurement Manual, according to which 21 days time for submitting bids was necessary from the date of publication of tender notice. He further submitted that by means of corrigendum dated 02.07.2021 technical changes have been made by the opposite party which were not in accordance with law. In this regard he relied upon certain documents which are on record allegedly prescribing the norms for such tender. The third submission of Shri Jain was that the opposite party had asked for a tender sample which again was impermissible as per the U.P. Procurement Manual and only advanced samples could be sought. Fourthly, he submitted that the opposite party did not respond to the representation of the petitioner. He submitted that the change brought about in the specifications by the opposite party vide its corrigendum dated 02.07.2021 prejudiced the petitioner, as, he did not have sufficient time to acquire the said specifications and had he been given sufficient time i.e. about 4 weeks, then, he would also have acquired the said specifications and participated in the tender. He stated that he also had a right to do the business with the Government.

On the other hand Shri H.P. Srivastava, learned counsel for opposite party submitted that smart phones were being procured for being provided to the ''Anganwadi Workers' under the ''POSHAN' Abhiyan/ National Nutrition Mission which is being implemented under the aegis of the Ministry of Women and Child Development, Government of India. The programme is designed to improve nutritional outcomes for children, pregnant mothers and lactating mothers. ''POSHAN' (Prime Minister's Overarching Scheme for Holistic Nutrition) Abhiyan seeks to address and redress the problem of malnutrition in a mission mode. Distribution of smart phones to Anganwadi Workers (AWW) was critical to ensure success of the programme. The State and Union Territories have been directed to ensure that the device reaches the respective beneficiaries with a preloaded and functional ICDS-CAS application through which the benefits and key markers can be tracked. He submitted that there is no change in the software specified in the original bid dated 09.06.2021 but only the specifications have been clarified and what has been added is the requirement of there being a ''Secure Chat' in the software which is necessary as no other application is available on ''Google Play' store which allows 1,23,398 users to participate in one group. The requisite notifications, guidelines, training, presentations etc. are required to be circulated to the Anganwadi Workers for which ''secure chat' was the appropriate application as such information can be communicated to users within a very short time which otherwise would take days to reach them across several districts of the State. On account of ''secure chat' no stranger group/ unauthorized person will be able to see and use data. He submitted that earlier attempts to procure such smartphones on at least five separate occasions did not fructify and had been cancelled. He informed the Court that the tender has already been finalized and contract/agreement has been executed in favour of one of the four bidders who had participated in the tender process in which the petitioner had not participated. The changes made by the corrigendum dated 02.07.2021 were as per the wisdom of the opposite party keeping in mind its needs in light of the project referred hereinabove. He submitted that as per the norms applicable for tender on GeM Portal, 10 days time was permissible for submitting the tender and it was sufficient. The corrigendum dated 02.07.2021 is neither arbitrary nor is it designed to suit any particular tenderer and no such specific averments have been made in the writ petition. The corrigendum issued has a rational nexus with the smartphones to be procured considering the nature of work to be performed under the ''POSHAN' Abhiyan. No material changes have been made to the tender's specification or technical qualification. The software remains the same. Only the requirement of ''secure chat' has been added. Issuance of corrigendum is permissible as per the prescribed norms. No substantial changes have been made in the tender document. He further submitted that in order to avoid delay in procurement of devices samples of smart phones had been sought, as it is the obligation of the opposite party to conduct quality testing of smart phones procured and to ensure compatability of the smart phones with software including the ''POSHAN' tracker software application which is provided by the Ministry of Women and Child Development and to ensure compatability of mobile phones with MDM Software solution features. The purpose behind it was to ensure that the quoted product matches with sample submitted and is duly tested for compatability with the other mobile applications and software so as to avoid any mismatch at a later stage which may otherwise lead to wastage of public money and could also delay the project. He submitted that the representation of the petitioner was duly responded by the opposite party as is evident from the document annexed as Annexure No. 4 to the writ petition itself and the contention of the learned counsel for petitioner to the contrary, was factually incorrect. He says that the petitioner appears to be a proxy for some other vested person as he does not even satisfy the requirements of the tender.

From the relief clause we find that the petitioner has challenged the original tender notice/document dated 09.06.2021 and not specifically the corrigendum dated 02.07.2021. As he is aggrieved by the corrigendum dated 02.07.2021 and the changes brought by it in the original tender document dated 09.06.2021, therefore, he should have sought a quashing of the corrigendum dated 02.07.2021, specifically, which has not been done, nevertheless, we categorically asked learned counsel for petitioner as to which condition inserted by the corrigendum dated 02.07.2021 was prejudicial to him and was under challenge he invited our attention to only one condition mentioned at Serial No. 8 (Page 26 of the writ petition) which reads as under:-

"8- In case of 3rd party support the bidder is agreeable to submit the Certificate from handheld/mobile device OEM- Yes

MDM solution should provide Secure Team Chat with following features - Secure chat only between authorized department personnel. No outsider should be allowed to join the chat. Team Chat with ability to create groups, should be able to share contract, should support Voice call."

We have also perused the contents of the counter affidavit filed by the opposite party wherein the justification for issuance of corrigendum has been mentioned in detail in Paragraph 12. The said paragraph clearly mentions as to why the requirement of ''secure chat' in the MDM Software was inserted by the corrigendum dated 02.07.2021. Clause (a) to (d) of Para- 12 and Para- 13 of the said counter affidavit are quoted herein below:-

"12.......

(a) Department needs a secured chat feature for all its 123,398 Smart Phone user because no application otherwise available on the Google Play store allows 123,398 users in one group. Department from time to time needs to circulate its notifications, policy guidelines, training presentations, training video content to all its users, and without a secure chat application the transfer of this information to all Anganwadi workers is not possible. Using the secure chat feature Department can circulate its notifications, policy guidelines, training presentations, training video content to all its users within few minutes, which otherwise would take days to reach the end users and eventually slow down the information transfer from Head office in Lucknow to Anganwadi workers spread across 51 districts.

(b) Secure chat feature asked also restricts any outsider from entering a Department group, ensuring that no Data is leaked to any unauthorized user/person.

(c) Secure chat feature allows Department to create user groups at Block Level enabling the Block level officers to chat and discuss important matters with the Anganwadi workers.

(d) Secure chat feature allows two users in any group to call each other through the application using data call, this enables them to have a conversation without having to pay from the normal calls. In case Anganwadi workers do not want to use their own SIM for calling purpose, they can use the voice call feature of the secure chat and make the necessary calls to Department officials and other Anganwadi workers without incurring any cost burden. This shall result into a massive saving for the Department as only data SIM's can resolve the purpose.

13. That further, the android service application requirement sought for in the Bid and its Corrigendum, has been done to ensure certain service requirements such as location of the nearest service center are available, to enable the end user to book an appointment at the nearest service centre and also to allow feedbacks on the service provided which is the basis purpose of any service application."

In view of the reasons given by the opposite party as noticed hereinabove it can not be said that insertion of such a condition by way of a corrigendum is in any manner arbitrary, malafide or against public interest.

It is the admitted case of the petitioner that it did not have the aforesaid feature in the software which it proposed to supply, assuming that the petitioner wanted to participate in the tender process.

Shri Jain specifically stated before us that his client would like to have some more time for submitting the tender i.e. extension of time period beyond 12.07.2021 so that it may also acquire the specifications added by the corrigendum and there may be a larger field of competition. We are of the opinion that there is no such right in a petitioner to pray for extension of time for submission of tender on the ground that it may also fulfill certain conditions specified in the tender document and acquire the necessary specifications.

There are vague assertions in the writ petition that the condition has been added only to suit a particular player but no details of such a player has been given in the writ petition nor has it been elaborated as to how it suits and helps only one particular player. We are of the opinion that for the reasons mentioned in the counter affidavit there was a justification for issuance of the corrigendum and the time of 10 days which was available till 12.07.2021 was sufficient in the facts and circumstances of the case. In any case considering the context in which the procurement is being made i.e. for the purposes of providing smart phones to Anganwadi Workers under the National Nutrition Mission/ ''POSHAN Abhiyan', the public interest involved therein far outweighs any other consideration. From the facts before us it can not be said that the impugned action is in any manner malafide or suited to help a particular tenderer, at least there is no such foundation in the writ petition which could persuade us to believe that it is so.

As regards the tender samples being invited the opposite party has given some justification in the counter affidavit but no rejoinder affidavit has been filed by the petitioner to rebut the same. The justification as noticed earlier is to ensure quality of the phones and that they do not mismatch with the requirements of the opposite party and they are in sync with the software including ''POSHAN' Tracker Software application etc., as, any mismatch at a later stage may lead to wastage of public money and also delay the project itself. The software which was required as per the bid document dated 09.06.2021 is the same even after the corrigendum dated 02.07.2021. The only thing is that the requirement of ''secure chat' in the said software has been added which is as per requirements of the opposite party. Annexure No. 4 shows that the opposite party has responded to the representation of the petitioner.

Four bidders had participated in response to the tender notice, out of which the contract/agreement had been entered into with one of them on 29.7.2021 as informed by Shri H.P. Srivastrava, learned counsel for the opposite party.

Any and every error or deviation from the norms, assuming that there is one in this case, can not be made a ground for interference by the High Court under Article 226 of the Constitution of India in such matters unless the action is in flagrant violation of statutory and constitutional provisions and it results in grave miscarriage of justice. The smart phone which the petitioner proposed to offer to the opposite party admittedly did not satisfy the requirement of ''secure chat' , therefore, to say that if he was given more time i.e. about 4 weeks, he could have acquired the said specification, is not acceptable as there is no such right available to the petitioner in such matters. This is especially so considering the purpose for which the device is being procured and the public interest involved therein.

In this view of the matter and for the reasons aforesaid we are not inclined to exercise our extraordinary discretionary and equitable jurisdiction in the facts of the present case, as, there is neither any malafide nor it can be said that the impugned action is against public interest. There is no such unreasonableness or arbitrariness in the facts of the case so as to warrant our interference in the matter. The petitioner does not have any indefeasible right to do business with the Government or its agencies.

We accordingly dismiss this writ petition.

 (Ravi Nath Tilhari,J.)        (Rajan Roy,J.)
 
Order Date :- 18.08.2021
 
R.K.P.