Ajay Kumar vs State Of H.P. & Ors
2021 Latest Caselaw 3331 HP

            IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA

                                                   CWP Nos. 3302/2019 & 3303/2019
                                                   Reserved on: 28.7.2021




                                                                                      .
                                                   Decided on : 2.8.2021





    CWP No.3302/2019





    Ajay Kumar                                                                   .....Petitioner
                                          Versus
    State of H.P. & ors.                                                         ....Respondents





    CWP No. 3303/2019
    Pawan Kumar Sharma                                                           .....Petitioner

                                          Versus
    State of H.P. & ors.
                                 r                                               ....Respondents

    Coram:
    The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.


    The Hon'ble Mr. Justice Satyen Vaidya, Judge.
                                                      Yes
    Whether approved for reporting?1




    For the petitioner(s):                  Mr. Tarun K. Sharma, Advocate.





    For the Respondents:                    Mr. Ashok Sharma, A.G. with Mr. Rajinder
                                            Dogra, Sr. Addl. A.G., Mr. Vinod Thakur,Mr.
                                            Hemanshu Misra, Mr. Shiv Pal Manhans,





                                            Addl. A.Gs., and Mr. Bhupinder Thakur,
                                            Dy.A.G. for respondents­State.
                                             (Video Conferencing)
    _____________________________________________________________________

    Justice Tarlok Singh Chauhan, J.

Since common questions of law and facts arise for

consideration in both the petitions, therefore, the same were

Whether reporters of the local papers may be allowed to see the judgment? Yes.

taken up together for consideration and are being disposed of by

.

common judgment.

2 The respondents­State floated tender(s) for providing

LWSS to PC habitation under LWSS Jakhyol phase 2 nd and LWSS

Karohta in Tehsil Bhoranj, District Hamirpur, Himachal Pradesh

(estimated cost: Rs.86,54,171/­) in the case of petitioner in CWP

No.3302/2019 and for augmentation of LWSS Bani Barsar Garli

Phase 1st and 2nd improvement of LWSS Bani Barsar Garli

distribution system in Tehsil Barsar, District Hamirpur, SH

constructing 4 Nos. overhead storage tanks (estimated cost:

Rs.41,81,250/­) in the case of the petitioner in CWP No.

3303/2019.

3. The petitioner in CWP No. 3302/2019 is aggrieved by

condition No.6 in the tender, which reads as under:­

(6) Experience having successfully completed similar works (Similar work means providing and laying of rising main/gravity main, supply & erection of pumping machinery) executed by the intending contractor along with performance certificate issued from the competent authority be uploaded online.

Whereas, petitioner in CWP No. 3303/2019 is

aggrieved by condition No.10 in the tender, which reads as

under:­

(10) only such contractor shall participate in the tender who

.

executed the similar work i.e. RCC over head tank, otherwise

tender will be rejected.

4 According to the petitioners, the aforesaid conditions

are illegal, void and against the instructions dated 28.5.2014

issued by the Additional Chief Secretary (I&PH) to the

Government of Himachal Pradesh, wherein it has been

specifically mentioned that the eligibility criteria shall be

introduced in the tender notice for the work above Rs. 1 crore

only, which, according to the petitioner, means that the tender

notice for the work less than Rs. 1 crore cannot contain any

condition muchless the condition(s) as aforesaid, therefore, the

same are liable to be struck down.

5 The respondents­State have contested the petitions

by raising various preliminary objections like the petitioners

having not approached the Court with clean hands and having

mislead the Court by misrepresenting and suppressing material

facts etc.

6 Material objections are contained in paras 4 and 5

thereof, wherein it is averred that unless the petitioners are able

to demonstrate that the government largesse is suffering because

of incorporating the conditions in the notice inviting tenders or

.

there is some mala fide intent in incorporating the same, the

same cannot be interfered with. It is further averred that the

issue of specifying any term and condition in the notice inviting

tender or under the eligibility criteria falls exclusively within the

domain of the Tender Approving Authority and it can lay down

any such condition(s) as it may consider fit and proper for

execution of the work(s) in question.

7 We have heard the learned counsel for the parties and

have also gone through the material placed on record.

8 At the outset, we need to notice that similar issue had

earlier come up before the learned Division Bench of this Court in

CWP No. 6928/2013, titled as M/s Himachal Techno

Engineers & ors. vs. State of Himachal Pradesh & ors.,

decided on 4.10.2013, wherein challenge was laid to the

condition specified in the tender document regarding

qualification of the bidder, which was stated to be inconsistent

with the condition specified in the previous tender process in

spite of being the same work.

9 This Court while dealing with the issue held that it is

always open to the authority to change the tender condition in

the successive tender process including the qualification

.

requirement, if the situation so warrants. That is the subjective

satisfaction of the authority on technical matters. It shall be

apposite to refer to the relevant observations, as contained in

para 9 of the judgment, which reads as under:­

"9. Notably, it is not the case of the petitioners that the qualification condition specified in the impugned tender document is, in any way, lower than the bench mark noted in

the purported Rules of 1993. It is always open to the Authority to

change the tender condition in the successive tender process including the qualification requirement, if the situation so warrants. That is the subjective satisfaction of the Authority on

technical matters. The learned Advocate General has justly invited our attention to the exposition of the Apex Court in Villianur Iyarkkai Padukappu Maiyam Vs. Union of India and

others (2009) 7 SCC 561, in particular, paragraph 167 onwards,

which has taken the view that the policy decision and economic tests determined by the Authorities, judicial review thereof is very limited. No case for judicial review of qualification condition

has been made out, which may warrant its judicial review. The legal question raised by the petitioners about the authority to alter the qualification condition, as aforesaid, is untenable."

10 We see no reason to take a different view that then

one taken in the aforesaid judgment.

11 Apart from above, the courts have repeatedly held

that the government policy can be changed with changing

circumstances and only on the ground of change, such policy will

.

not be vitiated. The Government has a discretion to adopt a

different policy or alter or change its policy calculated to serve

public interest and make it more effective. Choice in the

balancing of the pros and cons relevant to the change in policy

lies with the authority, but like any discretion, exercisable by the

Government or public authority, change in policy must be in

conformity with Wednesbury reasonableness and free from

arbitrariness, irrationality, bias and malice.

12 The Court cannot strike down a policy decision taken

by the Government merely because it feels that another decision

would have been fairer or more scientific or logical or wiser. The

wisdom and advisability of the policies are ordinarily not

amenable to judicial review unless the policies are contrary to

statutory or constitutional provisions or arbitrary or irrational or

an abuse of power.

13 Thus, what emerges to be a settled legal proposition is

that the Government has the power and competence to change

the policy on the basis of ground realities, but the same should

not be indirectly amounts to favouring or depriving a person of a

legal right or, in some cases, even the legitimate expectation.

14 It has to be remembered that whenever the issues

.

brought before the Court are intertwined with those involving

determination of policy and a plethora of technical issues, the

Courts are very wary and must exercise restrained and not

trespass into policy­making. The burden is heavy to demonstrate

a manifest illegality or arbitrariness or procedural lapses in the

culmination of rthe policy decision, which the petitioners

unfortunately have not been able to discharge. The petitioners

have miserably failed to prove on record violation of any

fundamental or legal right.

15 In view of aforesaid discussions, we find no merit in

both the petitions and the same are accordingly dismissed, so

also the pending application(s), if any, leaving the parties to bear

their own costs.

                                              (Tarlok Singh Chauhan)
                                                      Judge


                                                      (Satyen Vaidya)
    2.8.2021                                               Judge
     (pankaj)