Calcutta High Court (Appellete Side)
Raj Kumar Ghosh vs The State Of West Bengal And Others on 24 September, 2024
Author: Shampa Sarkar
Bench: Shampa Sarkar
September 24, 2024
Sl. No.3
Court No.9
s.biswas
WPA 23529 of 2024
Raj Kumar Ghosh
vs.
The State of West Bengal and others
Mr. Mr. Biswajit Hazra
Mr. Archisman Sain
... for the petitioner
Mr. Biswabrata Basu Mullick, AGP
Mr. Munmun Ganguly
... for the State
1. Affidavit of service is taken on record.
2. The writ petition has been filed challenging a
condition in the notice inviting tender dated
August 27, 2024. The condition is quoted below:
"SECTION IV : CONSIGNEE LIST
(When the MSVP, Rampurhat Govt. Medical
College & Hospital invites the tender)
1.1 Self,
(326 bedded health facility, maximum
number of contractor/agency's staff
deployable at health facility - 41 Security (40
unskilled, 1 semi-skilled)"
3. According to the petitioner, the requirement of
one semi-skilled security guard was contrary to
the rules framed under the Private Security
Agencies (Regulations) Act, 2005.
4. According to the petitioner, the said regulation
provides that one supervisor could supervise not
more than 15 private security guards. According
to the notice inviting tender, one semi-skilled
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person was to supervise 40 unskilled security
guards, which was contrary to the regulations.
5. The petitioner intends to participate in the tender.
Instead of participating in the process and
attending the pre-bid meeting to clarify any
queries, the petitioner has approached this court
at the fag end of the period as made available to
the bidders to put in their bids, by challenging a
tender condition. First and foremost, the
requirement of 41 security guards (40 unskilled
and 1 semi-skilled) does not appear to be per se
contrary to any law. The condition does not state
that one semi-skilled guard would be the
supervisor of all the 40 unskilled guards.
6. The petitioner's assumption that one semi-skilled
guard would be the supervisor is not supported
by any document.
7. This assumption of the petitioner cannot override
the requirement of the employer i.e. Rampurhat
Government Medical College & Hospital, which
invited the tender. If the tendering authority was
of the view and believed that 41 security guards,
out of which 40 unskilled and one semi-skilled
would be adequate for their requirement, such
decision of the authority cannot be a reason to
strike down the tender condition. It is up to the
successful agency which bags the contract to
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decide how it was going to man the security as
per requirement of the tendering authority. A
bidder who did not even participate in the
tendering process, has challenged a condition,
which does not appear to violate any law.
8. The other condition which the petitioner is
aggrieved by is that the employer/tendering
authority had imposed a condition for deposit of
earnest money of Rs.1,90,000/-. It is submitted
that the amount was exorbitant. Whereas, in
another tender, the same authority had imposed
a condition for depositing earnest money of
Rs.30,000/-. It appears that in the present
contract, the deployment was for 41 security
guards with 40 unskilled and one semi-skilled.
The requirement was for security reasons. The
other contract was with regard to housekeeping.
In this case, the description of the work, the
responsibility, the diligence required are more
and the earnestness of the tenderers who
participate, is of higher magnitude. Deposit of
earnest money is a security taken from the
tenderers, so that the tenderers cannot suddenly
withdraw from the tenders, or alter the terms or
cause delay in execution. It is an assurance taken
for proper execution of work.
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9. Under such circumstances, it was also within the
jurisdiction and wisdom of the authority to decide
what should be the quantum of the earnest
money to be deposited. These conditions are not
open for challenge in a writ petition by an
intending bidder.
10. The proposed bidder cannot challenge a tender
condition because the same does not suit his
purpose or is unjust or unfair in his estimation.
11. The writ court does not have the wisdom to
decide what would be the appropriate
requirement of the employer and what conditions
were required to be incorporated in the bid
document. The author of the documents is the
best judge of the same. The petitioner has not
been able to demonstrate any favouritism, mala
fide or irrationality in the action of the
respondents. The writ petition is dismissed.
12. In the matter of Balaji Ventures Pvt. Ltd. vs
Maharashtra State Power Generation
Company Ltd. and Anr. decided in Special
Leave to Appeal (C) No(s). 1616 & 1673 of
2022, the Hon'ble Apex Court held that the
tendering authority should always have the
freedom to prescribe the eligibility criteria and/or
the terms and conditions of the bid. Unless such
conditions were found to be arbitrary, mala fide
and/or tailor made, the bidder/tenderer should
not be permitted to challenge the bid
condition/clause, which did not suit him and/or
was not convenient to him.
13. In the matter of Airport Authority of India v. Centre for
Aviation Policy, Safety & Research (CAPSR), reported in 2022
SCC OnLine SC 1334, the Hon'ble Apex Court held as follows:-
"27. Even otherwise, even on merits also,
the High Court has erred in quashing and
setting aside the eligibility criteria/tender
conditions mentioned in the respective
RFPs, while exercising the powers under
Article 226 of the Constitution of India. As
per the settled position of law, the terms
and conditions of the Invitation to Tender
are within the domain of the
tenderer/tender making authority and are
not open to judicial scrutiny, unless they
are arbitrary, discriminatory or mala
fide. As per the settled position of law, the
terms of the Invitation to Tender are not
open to judicial scrutiny, the same being
in the realm of contract. The
Government/tenderer/tender making
authority must have a free hand in setting
the terms of the tender."
. In the case of Silppi Constructions Contractors vs. Union of
India, reported in (2020) 16 SCC 489, the Hon'ble Apex Court held
as follows:-
"20. The essence of the law laid down in
the judgments referred to above is the
exercise of restraint and caution; the need
for overwhelming public interest to justify
judicial intervention in matters of contract
involving the State instrumentalities; the
courts should give way to the opinion of
the experts unless the decision is totally
arbitrary or unreasonable; the court does
not sit like a court of appeal over the
appropriate authority; the court must
realise that the authority floating the
tender is the best judge of its requirements
and, therefore, the court's interference
should be minimal. The authority which
floats the contract or tender, and has
authored the tender documents is the best
judge as to how the documents have to be
interpreted. If two interpretations are
possible then the interpretation of the
author must be accepted. The courts will
only interfere to prevent arbitrariness,
irrationality, bias, mala fides or perversity.
With this approach in mind we shall deal
with the present case."
. In the decision of Montecarlo Limited vs. National Thermal
Power Corporation Limited, reported in (2016) 15 SCC 272, the
Hon'ble Apex Court held that the tender inviting authority was the
best person to understand and appreciate its requirements. The
tendering authority had the freedom to enter into contracts.
. In the matter of Michigan Rubber (India) Ltd. v. State of
Karnataka and Ors., reported in (2012) 8 SCC 216, the Hon'ble
Apex Court held as follows:-
"35. As observed earlier, the Court would
not normally interfere with the policy
decision and in matters challenging the
award of contract by the State or public
authorities. In view of the above, the
appellant has failed to establish that the
same was contrary to public interest and
beyond the pale of discrimination or
unreasonable. We are satisfied that to have
the best of the equipment for the vehicles,
which ply on road carrying passengers, the
2nd respondent thought it fit that the
criteria for applying for tender for
procuring tyres should be at a high
standard and thought it fit that only those
manufacturers who satisfy the eligibility
criteria should be permitted to participate
in the tender. As noted in various
decisions, the Government and their
undertakings must have a free hand in
setting terms of the tender and only if it is
arbitrary, discriminatory, mala fide or
actuated by bias, the courts would
interfere. The courts cannot interfere with
the terms of the tender prescribed by the
Government because it feels that some
other terms in the tender would have been
fair, wiser or logical. In the case on hand,
we have already noted that taking into
account various aspects including the
safety of the passengers and public
interest, CMG consisting of experienced
persons, revised the tender conditions. We
are satisfied that the said Committee had
discussed the subject in detail and for
specifying these two conditions regarding
pre-qualification criteria and the
evaluation criteria. On perusal of all the
materials, we are satisfied that the
impugned conditions do not, in any way,
could be classified as arbitrary,
discriminatory or mala fide."
. In the matter of Maa Binda Express Carrier v. North-East
Frontier Railway, reported in (2014) 3 SCC 760, the Hon'ble Apex
Court held as follows:-
"8. The scope of judicial review in matters
relating to award of contracts by the State
and its instrumentalities is settled by a
long line of decisions of this Court. While
these decisions clearly recognise that
power exercised by the Government and its
instrumentalities in regard to allotment of
contract is subject to judicial review at the
instance of an aggrieved party, submission
of a tender in response to a notice inviting
such tenders is no more than making an
offer which the State or its agencies are
under no obligation to accept. The bidders
participating in the tender process cannot,
therefore, insist that their tenders should
be accepted simply because a given tender
is the highest or lowest depending upon
whether the contract is for sale of public
property or for execution of works on
behalf of the Government. All that
participating bidders are entitled to is a
fair, equal and non-discriminatory
treatment in the matter of evaluation of
their tenders. It is also fairly well settled
that award of a contract is essentially a
commercial transaction which must be
determined on the basis of consideration
that are relevant to such commercial
decision. This implies that terms subject to
which tenders are invited are not open to
the judicial scrutiny unless it is found that
the same have been tailor-made to benefit
any particular tenderer or class of
tenderers. So also, the authority inviting
tenders can enter into negotiations or
grant relaxation for bona fide and cogent
reasons provided such relaxation is
permissible under the terms governing the
tender process."
18. There shall be no order as to costs.
19. Urgent photostat certified copy of the order, if
applied for, be given to the parties, upon usual
undertakings.
(Shampa Sarkar, J.)
