Delhi High Court
M/S. Himalayan Tiffin Services vs Csir-Counicl Of Scientific & ... on 14 February, 2017
THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 14.02.2017
+ W.P.(C) 1312/2017 & CM 5980/2017
M/S. HIMALAYAN TIFFIN SERVICES ... Petitioner
versus
CSIR-COUNICL OF SCIENTIFIC &
INDUSTRIAL RESEARCH ... Respondent
Advocates who appeared in this case:-
For the Petitioner : Mr Rahul Pandey
For the Respondent : None
CORAM:-
HON'BLE MR JUSTICE BADAR DURREZ AHMED
HON'BLE MR JUSTICE ASHUTOSH KUMAR
JUDGMENT
BADAR DURREZ AHMED, J (ORAL)
1. The present petition is directed against the notice inviting tender for
providing catering and housekeeping services which was issued by the
CSIR (Council of Scientific and Industrial Research), New Delhi. The said
notice was issued on 21.01.2017 and the last date and time for submission
of tenders is 14.02.2017 at 2:30 pm.
2. The petitioner is aggrieved by the eligibility condition, whereby only
prospective bidders having experience of rendering both catering and
housekeeping services to guest houses have been stated to be eligible. The
petitioner does not have any experience in housekeeping service.
According to the learned counsel for the petitioner, the condition stipulated
by the respondent is onerous and restricts competition. According to him,
even persons who have experience only in catering ought to also be allowed
to participate in the tender.
3. From the notice inviting tender, we find that the object of the tender
is to select a person/entity which would be providing catering and
housekeeping services for the Science Centre and Maharani Bagh Guest
House for a period of two years. In other words, both catering and
housekeeping services are to be rendered by the successful bidder.
Therefore, it is not at all arbitrary or unusual on the part of the respondent
to have required experience of rendering both catering & housekeeping
services to Guest houses of Institutes of Government/Semi
Government/Autonomous Bodies/PSUs/Nationalised Banks.
4. In Michigan Rubber (India) Limited v. State of Karnataka and
Others: (2012) 8 SCC 216, the Supreme Court, after a review of several
decisions, including the decision in Jagdish Mandal v. State of Orissa:
(2007) 14 SCC 517 culled out the following principles:-
"23. From the above decisions, the following principles
emerge:
(a) The basic requirement of Article 14 is fairness in action
by the State, and non-arbitrariness in essence and substance is
the heartbeat of fair play. These actions are amenable to the
judicial review only to the extent that the State must act validly
for a discernible reason and not whimsically for any ulterior
purpose. If the State acts within the bounds of reasonableness, it
would be legitimate to take into consideration the national
priorities;
(b) Fixation of a value of the tender is entirely within the
purview of the executive and courts hardly have any role to play
in this process except for striking down such action of the
executive as is proved to be arbitrary or unreasonable. If the
Government acts in conformity with certain healthy standards
and norms such as awarding of contracts by inviting tenders, in
those circumstances, the interference by Courts is very limited;
(c) In the matter of formulating conditions of a tender
document and awarding a contract, greater latitude is required
to be conceded to the State authorities unless the action of
tendering authority is found to be malicious and a misuse of its
statutory powers, interference by Courts is not warranted;
(d) Certain preconditions or qualifications for tenders have to
be laid down to ensure that the contractor has the capacity and
the resources to successfully execute the work; and
(e) If the State or its instrumentalities act reasonably, fairly
and in public interest in awarding contract, here again,
interference by Court is very restrictive since no person can
claim fundamental right to carry on business with the
Government.
24. Therefore, a court before interfering in tender or
contractual matters, in exercise of power of judicial review,
should pose to itself the following questions:
(i) Whether the process adopted or decision made by the
authority is mala fide or intended to favour someone; or
whether the process adopted or decision made is so arbitrary
and irrational that the court can say: "the decision is such that
no responsible authority acting reasonably and in accordance
with relevant law could have reached" and
(ii) Whether the public interest is affected?
If the answers to the above questions are in negative, then there
should be no interference under Article 226."
(underlining added)
5. It will be seen from the above extract that in the matter of
formulating conditions of a tender document and also for award of a
contract, a high degree of latitude is required to be conceded to the State
authorities unless the action of the tendering authority is found to be
malicious or in misuse of its powers. Interference of the Court is not
warranted unless the action is arbitrary, irrational or malicious. It is also
provided in the said decision that certain preconditions or qualifications for
tenders have to be laid down to ensure that the contractor has the capacity
and the resources to successfully execute the work.
6. Considering these principles, it becomes clear that the respondent has
invited tenders for providing catering and housekeeping services for the
Science Centre and Maharani Bagh Guest House for a period of two years.
Therefore, providing for an eligibility condition that only those persons
who have experience of rendering both catering and housekeeping services
cannot, by any stretch of imagination, be regarded as arbitrary or
whimsical.
7. This Court also in Sunil Gulati v. Delhi Development Authority and
another connected matter decided on 03.01.2017 in WP(C) 11911/2015 and
WP(C) 6481/2016, following the principles in several Supreme Court
decisions, including Tata Cellular v. Union of India: 1994 (6) SCC 651
and Monarch Infrastructure (P) Limited v. Commissioner, Ulhasnagar
Municipal Corporation and Others: 2000 (5) SCC 287, reiterated that the
authority inviting a tender ought to have a free hand in setting the terms of
the tender and that not allowing this much play in the joints to a
government agency which invites the tender would amount to denying the
government its administrative rights and functions of fixing of an eligibility
criteria.
8. In view of the foregoing, we find that the eligibility criteria of
requiring bidders to have experience of rendering both catering and
housekeeping services has a clear nexus with the object of the tender, that
is, to provide catering and housekeeping services for the Science Centre
and Maharani Bagh Guest House for a period of two years. Therefore, the
action on the part of the respondent in prescribing such a condition, as an
eligibility criteria, cannot be faulted. There is no merit in the writ petition.
The same is dismissed.
BADAR DURREZ AHMED, J
ASHUTOSH KUMAR, J
FEBRUARY 14, 2017
SR
