Bedi & Bedi Associates vs K.S.Mehra & Ors.
2011 Latest Caselaw 506 Del

             *IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                    Date of decision: 28th January, 2011

+                                          W.P.(C) 3551/2008
         BEDI & BEDI ASSOCIATES                       ..... Petitioner
                       Through: Mr. Amit Tiwari, Advocate.
                                                versus
         M.C.D                                                           .... Respondent
                                     Through:      Mr. Anshum Jain for Ms. Suparna
                                                   Srivastava, Advocate.

                                                  AND

+                                          CONT.CAS(C) 515/2009

         BEDI & BEDI ASSOCIATES                       ..... Petitioner
                       Through: Mr. Amit Tiwari, Advocate.
                               versus
         K.S.MEHRA & ORS.                                                .... Respondents
                      Through:                     Mr. Anshum Jain for Ms. Suparna
                                                   Srivastava, Advocate.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.       Whether reporters of Local papers may
         be allowed to see the judgment?                               NO

2.       To be referred to the reporter or not?                        NO

3.       Whether the judgment should be reported                       NO
         in the Digest?

RAJIV SAHAI ENDLAW, J.

1. The writ petition was filed claiming that the petitioner, a sole

proprietary of a retired Military Officer, was engaged in supply of

manpower and human resources to the various government

organizations since the year 1986; that in October, 2004 the petitioner had

participated in the open tender invited by the respondent MCD for

empanelment of contractors for providing Data Entry Operators to the

respondent MCD; that the petitioner was so empanelled and from October,

2004 onwards as an empanelled contractor was receiving requisitions from

various departments of the respondent MCD and providing them manpower

to execute the work of Data Entry; that on 8th September, 2007 the

respondent MCD issued a fresh advertisement for empanelling the

contractors for providing Data Entry Operators; that the petitioner

participated in the said tender and also deposited `10,000/- as security;

that the respondent MCD however neither declared the result of the said

tender nor refunded the sum of `10,000/- deposited by the petitioner till the

filing of the petition; that the petitioner had learnt that the respondent MCD

has abandoned the said tender and decided to allocate the work only to the

companies empanelled with Govt. of NCT of Delhi for providing Data Entry

Services; that on 25th April, 2008 the respondent MCD had issued a circular

intimating empanelment of only four firms for providing Data Entry

Operators to all departments of the respondent MCD. Upon representations

of the petitioner to the respondent MCD not meeting with any success, this

writ petition was filed contending that the respondent MCD could not

without open tender select the persons for rendering the said services. The

relief of quashing of the circular dated 25th April, 2008 (supra) and

mandamus to the respondent MCD to carry out exercise of empanelment of

contractors for the said purpose by inviting open tender has been claimed.

2. Notice of the petition was issued. On the plea of the petitioner that its

Data Entry Operators till the filing of the writ petition were still working for

various departments of the respondent MCD, it was also ordered that the

circular dated 25th April, 2008 shall not come in the way of the petitioner

supplying Data Entry Operators to the various departments of the respondent

MCD on the terms already applicable. The said interim order was made

absolute on 15th September, 2009.

3. The petitioner has filed an additional affidavit pleading that even

petitioner is empanelled with the Govt. of NCT of Delhi and also with the

Department of Information & Technology of the Govt. of NCT of Delhi.

The respondent MCD has filed a counter affidavit contending that the

petitioner has concealed facts. It is pleaded that in the tender invited in

August, 2007 and in which the petitioner had admittedly participated, it was

expressly provided that the non-conforming bids shall not be considered; as

per the condition of the said tender, the bidders were required to be a

company registered under the Indian Companies Act, 1956 and to have a

valid ISO 9001:2000 certificate; that the petitioner was neither a company

nor having the ISO certificate and the bid of the petitioner was therefore

non-conforming and was rejected as such by the Evaluation Committee. It

is however further pleaded that the companies selected/empanelled pursuant

to the said tender were also unable to provide experienced and skilled Data

Entry Operators; that in these circumstances, it was felt that the process

adopted earlier of empanelment was non-workable and the process being

followed by the Government of NCT of Delhi for empanelling and then

going for limited tenders from empanelled contractors was reasonable;

accordingly the panel/process of Govt. of NCT of Delhi for procuring Data

Entry Operators by limited tenders on need basis by various

departments/divisions was adopted and circulated on 25 th April, 2008. It is

however further pleaded that vide circular dated 13th July, 2009 the circular

dated 25th April, 2008 impugned in this petition has also been discharged

and w.e.f. 1st July, 2009 Data Entry Operators are being procured from

government agencies like M/s DOEACC, as per the requirement of various

departments of the respondent MCD.

4. The petitioner has filed a rejoinder in which the circular dated 13th

July, 2009 discharging the circular dated 25 th April, 2008 is not disputed.

5. In view of the aforesaid subsequent event of the circular dated 25 th

April, 2008 impugned in this petition having been discharged, the relief qua

the circular dated 25th April, 2008 does not survive.

6. As far as the other relief claimed of directing the respondent MCD to

carry out exercise of empanelment of contractors for providing Data Entry

Operators, is concerned, as long as the respondent MCD is not favouring

any particular party/person/company by awarding the contract therefor to

that party only, the respondent MCD cannot be compelled to empanel the

contractors or to invite the tender therefor. The petitioner cannot insist that

the respondent MCD should avail of supply of Data Entry Operators from

private persons/entities/companies only and not from government agencies.

The government companies/agencies fall in entirely different class from the

private players/suppliers. The respondent MCD is fully entitled to fulfill its

requirements from government agencies/companies. However if the

respondent MCD at any point of time requires the Data Entry Operators

from private players/suppliers as the petitioner, the same has to be in a

transparent manner through an open tender and the respondent MCD/its

officials cannot pick and choose the private parties/persons/companies with

whom it may choose to deal.

7. It is not the case of the petitioner that the respondent MCD at present

is availing Data Entry Operators from any private party. Thus the petitioner

is not entitled to the second relief claimed also at this stage, save for the

observations aforesaid.

8. Contempt petition was filed averring breach of the interim order in the

writ petition by issuance of a circular dated 23rd March, 2009 by the

respondent MCD informing all the departments concerned that writ petition

filed by the petitioner stood dismissed on 17 th July, 2008 and thus the

interim order stood vacated and advising its various departments to revert

the Data Entry Operators engaged through the petitioner. Notice was issued.

The respondent MCD has filed a reply explaining that on 17 th July, 2008,

Contempt petition No.350/2008 earlier filed by the petitioner was dismissed;

however mistakenly it was understood that the writ petition had been

dismissed and circular dated 23rd March, 2009 issued under such mistaken

belief; however immediately on realizing the mistake another circular dated

6th July, 2009 was issued informing the correct position to all the

departments and withdrawing the circular dated 23rd March, 2009. No

rejoinder has been filed by the petitioner inspite of opportunity. I am

satisfied with the explanation given by the respondent MCD and do not find

any willful disobedience of the order of this Court by any official of the

respondent MCD. Moreover the petitioner under the interim orders in this

petition has continued to supply Data Entry Operators even after 1 st July,

2009 when the respondent MCD switched to the government

companies/agencies. The petitioner has thus been sufficiently compensated.

9. The counsel for the petitioner during the hearing had relied on

Harminder Singh Arora v. Union of India (1986) 3 SCC 247 and on Dutta

Associates Pvt. Ltd. v. Indo Merchantiles Pvt. Ltd. (1997) 1 SCC 53.

However the said judgments in the circumstances are not found apposite.

10. The writ petition is therefore dismissed as infructuous and no case for

proceeding for contempt is made out; the Contempt petition is dismissed.

The interim order stands vacated. No order as to costs.

RAJIV SAHAI ENDLAW (JUDGE) JANUARY 28, 2011 pp