Delhi High Court

The Delhi Brotherhood Society vs Govt Of Nct Of Delhi & Anr on 23 January, 2009

Author: S.Ravindra Bhat

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

                                               Pronounced on: 23.01.2009

+                       W.P. (C) 2593/2008

      THE DELHI BROTHERHOOD SOCIETY                   ..... Petitioner
                     Through: Mr. Vikram Nandrajog, Advocate.

                  versus


      GOVT OF NCT OF DELHI & ANR                     ..... Respondents
                     Through: Ms. Jyoti Singh with Mr. Ankur Chhibber,
                     Advocate for Resp-1.
                     Mr. JPN Shahi, Advocate for Resp-2.

      CORAM:
      HON'BLE MR. JUSTICE S. RAVINDRA BHAT

1.    Whether the Reporters of local papers
      may be allowed to see the judgment?

2.    To be referred to Reporter or not?

3.    Whether the judgment should be
      reported in the Digest?

      S.RAVINDRA BHAT, J. (ORAL)

% Issue Rule. Ms. Jyoti Singh and Mr. J.P.N. Shahi, learned counsel for the

respondents waive notice of rule. With consent of counsel, the matter was

heard finally.

2. The petitioner in these proceedings under Article 226 claims directions

to quash the approval dated 14.2.2008 given to the second respondent for

managing an Old Age Home at Lampur and further directions that it (the

petitioner) should be allowed the management of the said Old Age Home.

WP (C) 2593/08 Page 1

3. The brief facts necessary to decide this case are that by a cabinet

decision of the Government of NCT of Delhi a policy was framed for

partnership with Non-Governmental Organizations (NGOs) having expertise

and experience in that field, to manage and administer Night Shelters, and

other Institutions for the benefit of destitute children, women, beggars,

handicapped, and Old Age Homes. It is claimed that pursuant to this policy,

the Delhi Government invited applications from Institutions and NGOs to

apply on or before 24.11.2007. This process, involved the two Old Age

Homes located at Dwarka & Lampur. It is not in dispute that the petit ioner

applied for managing the Dwarka Old Age Home. The second respondent

along with 14 others applied for the Lampur Old Age Home.

4. The pleadings disclose that all the applications were considered

together by a Committee constituted for the purpose, on 29.1.2008. The

Committee, on the basis of the materials placed before it, noted that there

were 19 applicants for Dwarka; it was of opinion that 6 of them could be

short listed as they seemed capable to run the Old Age Home. They were

accordingly invited to make presentations. The petitioner was one among

such 6 short listed candidates. In respect of Lampur, the Committee noted

that 15 applications were received, it proceed to give its recommendations,

inter alia, in the following terms: -

"Out of the 19 applications on the basis of their experience, financial position and District Officers report, following 6 organisations were short listed who seemed to be capable of running institution. Hence they were invited to give their presentation before the selection committee.

WP (C) 2593/08 Page 2

1. Organisation of Understanding & Fraternity.

2. Society for Social Services.

3. Asian Society for Entrepreneurship, Education and Development.

4. Society for Advancement of Village Economy.

5. Delhi Brotherhood Society.

6. Ayudham Society for Old and Infirm.

3. On the basis of the criteria laid down for selection of the NGO, Organisation of Understanding and Fraternity, Asian Society for Entrepreneurship and Development (ASEED) and Delhi Brotherhood Society were proposed, but since Delhi Brotherhood Society showed their interest in running Old Age Home Lampur also, it was decided by the committee that both (ASEED) and Organization of Understanding and Fraternity will be given offer letters with terms and conditions laid down and the willing will be offered to run the Old Age Home Dwarka.

The Committee also considered the case of handing over the management of Old Age Home Lampur. In response to EOI invited on 19th Oct.07, following 15 applications were received.

Lampur List

1. Dr. Ambedkar Mission

2. Prabhat Organisation

3. R.S. Rohini Education & Charitable Society

4. Novlok Welfare Society

5. Shiva Jan Jagran Avom Kalyan Samiti

6. Surbhi Gyan Bharti

7. Jag Jivan Samaj Kalyan Sanstha

8. Dev's Educational Society

9. Women Educational & Welfare Society.

10.Antar Rashtriya Manav Sewa Sansthan

11.Samaj Sewa Yuva Dal

12.Indian Society for Integrated Women and Child Development

13.Art Rural Development Research Society

14.Nav Chetana Vikas Sanghtan

15.Bhartiya parivardhan Sansthan

After perusing all the applications the committee gave the considered opinion that none of the applicants had requisite experience and financial position sound enough to run the Old Age Home Lampur. However Delhi Brotherhood Society who had basically applied for running Old Age Home Dwarka showed inclination to run OAH Lampur, also because of the proximity of

WP (C) 2593/08 Page 3 Lampur to their project areas at Seema Puri, Shahid Nagar etc.

Hence the committee felt that Delhi Brotherhood Society may be handed over the management of OAH Lampur (as the building is ready and needed to be put in use) from out of the 15 Applicants stated above.

The meeting ended with note of thanks to the chair."

5. The petitioner contends that contrary to the recommendations, on

14.2.2008 the first respondent did a volte face and awarded the Lampur Old

Age Home to the second respondent whose application was expressly

rejected by the Committee.

6. The petitioner is further aggrieved that its case which had been

positively recommended by the Committee, was reversed by the competent

authority and instead the applicant who was rejected i.e. the second

respondent was awarded the task of administering and managing the Old

Age Home at Lampur. The petitioner contends that the materials on record

show that after the recommendation made on 29.1.2008, internal notes were

all in its favour. It claims to be a reputed and well established agency,

engaged in welfare activities since long. It submits that although it had

applied for the Dwarka Old Age Home, during the stage of consideration of

its application as only two agencies could be awarded that Old Age Home,

the Committee was of the opinion that its (the petitioner's) application

should be considered and that its candidature was the most suitable for the

Lampur Old Age Home. In the circumstances, without even recording that

why the committee's recommendations were being rejected and an agency

was deemed unsuitable, granted the benefit of the administration of the Old

WP (C) 2593/08 Page 4 Age Home, the respondents could not have proceeded arbitrarily to award

the running and management to the second respondent.

7. The first respondent does not dispute that for taking over the

management and day-to-day running of the Old Age Home at Lampur by

advertisement dated 19.1.2007, it invited expression of interest from NGOs.

It does not even dispute that the petitioner had applied for managing the Old

Age Home at Dwarka. Its position may be best described in its return, in

para 5 of the counter affidavit: -

"That in response to the Expression of Interest invited for Old Age Home, Lampur, 15 Applications were received while for Old Age Home, Dwarka, 19 Applications were received. During the preliminary scrutiny of the application, on the basis of their experience, financial position, fact finding report of the District Officers none of them was found suitable for Old Age Home, Lampur. However, in the case of proposals received in respect of Old Age Home, Dwarka, six Organizations were found suitable. During the assessment of these Organizations and in light of the fact that none of the Organization were found suitable for running the management of Old Age Home, Lampur it was decided to consider the case of these six Organizations for Old Age Home, Lampur also. From amongst these six Organizations, the Petitioner Organization voluntary offered to serve and undertake the running of the Old Age Home, Lampur. The matter was taken ;up with the higher authorities for taking a decision. After considering the facts and circumstances and materials records placed before the competent authority, a decision was taken by the Respondent No.1 in favour of Respondent No.2"

8. The second respondent, i.e., the successful NGO alleges being involved

in the National Service Scheme and engaged in the field of welfare to

HIV/AIDS patients. It submits that the petition should not be entertained by

this Court since the Writ Petitioner never applied to manage and administer

WP (C) 2593/08 Page 5 the Old Age Home at Lampur. It is contended further that the Selection

Committee which considered the cases of the applicants, no doubt had the

power to recommend yet the competent authority i.e. the Government

acting through the Minister was duly empowered to consider the matter and

after being satisfied, he could take the most appropriate step including

rejecting the recommendations and awarding the management to one of the

applicants instead of someone who had not even applied.

9. The above narrative would show that there is no controversy about the

fact that the petitioner had applied for managing and administering the Old

Age Home at Dwarka. Out of 19 applicants, the petitioners and 5 others

were short-listed; a common Selection Committee was set up, to consider

the applications for both Dwarka and Lampur. That Committee having regard

to the petitioner's track record, felt, after short-listing it from amongst the six

that two of them including the petitioner could be awarded the management

of a Home. Since in its determination, another agency could be granted the

award of the Dwarka Old Age Home and further that the 15 applicants who

had sought for the Old Age Home at Lampur, were unsuitable, the most

appropriate course was to award the management of the Lampur Old Age

Home to the petitioner.

10. The first question which this Court has to consider is whether the

decision of the first respondent to award the Lampur Old Age Home to the

second respondent is justified in the circumstances of the case. The original

file was produced during the hearing. It disclosed that the Committee's

WP (C) 2593/08 Page 6 notings favourably recommended the award of management of the Lampur

Home to the petitioner. In other words, the concerned Department i.e. the

Social Welfare Department was of the opinion that the Committee's

recommendations were reasonable and could be accepted. However, when

the matter was referred to the Minister, he merely stated that as proposed

by the Committee so far, Dwarka Old Age Home could be offered to the Sl.

No. 1 (a) Organization of Understanding and Fraternity and that Lampur Old

Age Home could be offered to the applicant at Sl. No.9 i.e. the second

respondent in this case. Now the entire file and the notings, which has been

carefully considered by this Court, discloses that the recommendations of the

Committee were not that second respondent should be awarded the Lampur

Old Age Home. No doubt as far as Dwarka Home is concerned, the

Organization of Understanding and Fraternity was recommended. The

Committee's recommendations as far as Lampur goes clearly stated that Sl.

No.9 was found unsuitable. It went on to recommend the petitioner since it

had experience and had been also short listed in two phase process evolved

by it.

11. Although, there can be no two opinions that the highest authority in

the Government would have the right to decide finally on any particular issue

falling within its domain either in the rules of business or in any particular

statute, yet one important aspect of non-arbitrariness and non-discrimination

is that every public agency and authority has to make decisions based on

some reasoning. One need not confuse such reasoning with a judicial order;

WP (C) 2593/08 Page 7 an administrator's choice of what should be rational may differ from what is

recommended to him, however, some reasons should appear on the file as to

why a particular choice of action is preferred over another. It is not even

necessary that the ultimate order in such cases shall invoke that power of

exercise of discretion have to be communicated, yet those reasons should be

available on file, (UOI & Ors. v. G. Nambudiri AIR 1991 SC 1216). In this

case, the entire file nowhere discloses any reasons why the candidature of

second respondent found favour with the competent authority - GNCTD. In

fact the recommendations of the Committee were to the contrary; inasmuch

as the second respondent's application was not found suitable.

12. In this view of the matter, the award of the management of the Lampur

Old Age Home to the second respondent is held to be arbitrary.

13. As far as the award of agency to the petitioner is concerned, this Court

is of the opinion that the second respondent is, in its technical sense, correct

in contending that application was not made for Lampur, yet the fact

remains that the Committee which considered the application was a common

one. It did take into account the relevant field experience of all the

concerned parties and applied some criteria for Dwarka as well as Lampur.

No infirmity can be found in that regard.

14. It is now well settled that in regard to the award of contracts and other

largesse, the State or its agencies, have to act in a rational and non-arbitrary

manner. As to what should be the appropriate procedure would be largely

adopted by the circumstances of the case. Generally speaking, previous

WP (C) 2593/08 Page 8 decisions have noted that a procedure involving vide publicity and outlining

clear procedures such as the nature of the applications to be elicited, the

time frame evolved and essential eligibility conditions have to be spelt out to

enable the applicants to approach and seek the benefit. However, at the

same time, one cannot be unmindful of the fact that the agency in this case

is essentially concerned with a social welfare measure. It is nobody's case

that the Committee which went into the matter was not competent. The

decisions of the various Courts including the Supreme Court in Nitai Bag v.

State of West Bengal (2000 (8) SCC 262) and Sachidanand Pandey v.

State of West Bengal (1987 (2) SCC 295) have held that the State or its

Agencies have sufficient circumstantial flexibility in proceeding to award

contracts wherever required having regard to the nature of the objective of

the concerned scheme. In the circumstances of this case, the Court is of

opinion that the approach and procedure adopted by the Committee in

considering all the applications both for Lampur as well as Dwarka was

perhaps appropriate. It certainly evolved a common criteria and applied it.

In the process it was able to discern a common standard upon which it

recommended the petitioner for the Lampur Home. Having regard to these

facts, Court is of the opinion even while striking down the award of the

contract to the second respondent, the report of the Committee submitted to

the first respondent so far as it recommended the petitioner's case for award

of the contract in the Lampur Old Age Home should be re-considered and

appropriate orders be made within four weeks.

WP (C) 2593/08 Page 9

15. In the above circumstances, the following order is made: -

(a) Letter dated 14.2.2008 (Annexure P/5) whereby the second

respondent was awarded the management of the Old Age Home

at Lampur is hereby quashed.

(b) The first respondent is hereby directed to consider and process

the candidature of the petitioner as recommended by the

Selection Committee on 29.1.2008 and pass appropriate orders

within four weeks.