Himachal Pradesh High Court
Authorized Signatory vs State Of H.P. And Others on 15 December, 2021
Bench: Mohammad Rafiq, Sabina
1
REPORTABLE
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
.
ON THE 15th DAY OF DECEMBER, 2021
BEFORE
HON'BLE MR. JUSTICE MOHAMMAD RAFIQ
CHIEF JUSTICE
&
HON'BLE MS. JUSTICE SABINA
CIVIL WRIT PETITION No.2916 of 2021 ALONGWITH
CIVIL WRIT PETITION Nos.2917, 2918 & 2919 of 2021
Between:-
CWP No.2916 of 2021
M/S GLOBAL MANPOWER AND
SANITATION SERVICE,
THROUGH ITS DIRECTOR AND
AUTHORIZED SIGNATORY,
OFFICE NO.44/3,
MOHALLA DHAROG KSAKRA,
WARD NO.2, BLOCK NO.1,
TEHSIL AND DISTRICT
CHAMBA, HP. ....PETITIONER
(BY MS. SEEMA K. GULERIA,
ADVOCATE)
AND
1. STATE OF H.P. THROUGH ITS
SECRETARY HEALTH TO THE
GOVERNMENT OF HIMACHAL
PRADESH, SHIMLA.
2. DIRECTOR HEALTH SERVICES,
HIMACHAL PRADESH, SHIMLA-9.
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3. CHIEF MEDICAL OFFICER,
KANGRA AT DHARAMSHALA,
DISTRICT KANGRA, H.P. CIVIL
HOSPITAL BHAWARNA,
.
DISTRICT KANGRA, H.P. ....RESPONDENTS
(BY MR. AJAY VAIDYA,
SENIOR ADDITIONAL ADVOCATE
GENERAL)
CWP No.2917 of 2021
M/S CHAITANYA ENTERPRISES,
THROUGH ITS SOLE
PROPRIETOR SANJEEV KUMAR,
S/O SH. JAI PAUL, RESIDENT OF
TIKALESHAR, P.O. YOL CANTT.
TEHSIL DHARAMSHALA,
DISTRICT KANGRA, H.P. ....PETITIONER
(BY MS. SEEMA K. GULERIA,
ADVOCATE)
AND
1. STATE OF H.P. THROUGH ITS
SECRETARY HEALTH TO THE
GOVERNMENT OF HIMACHAL
PRADESH, SHIMLA.
2. DIRECTOR HEALTH SERVICES,
HIMACHAL PRADESH, SHIMLA-9.
3. CHIEF MEDICAL OFFICER,
KANGRA AT DHARAMSHALA,
DISTRICT KANGRA, H.P. CIVIL
HOSPITAL BHAWARNA,
DISTRICT KANGRA, H.P. ....RESPONDENTS
(BY MR. AJAY VAIDYA,
SENIOR ADDITIONAL ADVOCATE
GENERAL)
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CWP No.2918 of 2021
M/S GLOBAL MANPOWER AND
SANITATION SERVICE,
THROUGH ITS DIRECTOR AND
.
AUTHORIZED SIGNATORY,
OFFICE NO.44/3, MOHALLA
DHAROG KSAKRA, WARD NO.2,
BLOCK NO.1, TEHSIL AND
DISTRICT CHAMBA, HP. ....PETITIONER
(BY MS. SEEMA K. GULERIA,
ADVOCATE)
AND
1. STATE OF H.P. THROUGH ITS
SECRETARY HEALTH TO THE
GOVERNMENT OF HIMACHAL
PRADESH, SHIMLA.
2. DIRECTOR HEALTH SERVICES,
HIMACHAL PRADESH, SHIMLA-9.
3. CHIEF MEDICAL OFFICER,
KANGRA AT DHARAMSHALA,
DISTRICT KANGRA,
H.P. CIVIL HOSPITAL THURAL,
DISTRICT KANGRA, H.P. ....RESPONDENTS
(BY MR. AJAY VAIDYA,
SENIOR ADDITIONAL ADVOCATE
GENERAL)
CWP No.2919 of 2021
M/S GLOBAL MANPOWER AND
SANITATION SERVICE,
THROUGH ITS DIRECTOR AND
AUTHORIZED SIGNATORY,
OFFICE NO.44/3, MOHALLA
DHAROG KSAKRA, WARD NO.2,
BLOCK NO.1, TEHSIL AND
DISTRICT CHAMBA, HP. ....PETITIONER
(BY MS. SEEMA K. GULERIA,
ADVOCATE)
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AND
1. STATE OF H.P. THROUGH ITS
SECRETARY HEALTH TO THE
.
GOVERNMENT OF HIMACHAL
PRADESH, SHIMLA.
2. DIRECTOR HEALTH SERVICES,
HIMACHAL PRADESH, SHIMLA-9.
3. CHIEF MEDICAL OFFICER,
KANGRA AT DHARAMSHALA,
DISTRICT KANGRA, H.P. CIVIL
HOSPITAL JAWALAMUKHI,
DISTRICT KANGRA, H.P. ....RESPONDENTS
(BY MR. AJAY VAIDYA,
SENIOR ADDITIONAL ADVOCATE
GENERAL)
______________________________________________________
This Civil Writ Petition coming on for admission this day,
Hon'ble Mr. Justice Mohammad Rafiq, passed the following:
ORDER
Since all these writ petitions are raising identical
question of law and facts, therefore, the same are heard together
and are being disposed of by this common order.
2. For the sake of convenience, the facts of CWP No.2916
of 2021, titled M/s Global Manpower and Sanitation Service versus
State of H.P. and others, are being taken for deciding these writ
petitions.
CWP No.2916 of 2021
3. According to the facts of that petition, the petitioner is
engaged a duly enlisted Contractor for providing skilled and
unskilled manpower on outsource basis in the State of Himachal
Pradesh. The respondents vide e-Tender Notice dated 08.04.2021,
invited tenders from the registered firms or any legal entities for
.
providing sanitation services for the Civil Hospital Bhawarna, District
kangra, H.P. The last date for submissions of the tender document
was 03.05.2021. According to the petitioner, as he was eligible for
participating in the said tender process, he submitted his bid
alongwith all the requisite documents. As per the tender document
Annexure P-5, the list of the documents which was to be
attached/uploaded with the technical bid, was filed by the
petitioner-Firm alongwith tender documents. The petitioner claims to
have submitted the certificate of the registration of the firm alongwith
the licence with the labour authority, EPF authority and details of the
employees with the firm apart from ESI registration, GST registration
and EPF registration. Apart from these documents, the petitioner
also claims to have furnished an undertaking as per format
Annexure P-3.
4. The respondents opened the technical bid on
04.05.2021 and conveyed to the petitioner on 11.05.2021 that his
bid has been rejected on technical ground that since he failed to
submit an undertaking, as depicted in Sr. No.16 of the technical bid
evaluation report.
5. Ms. Seema Guleria, learned counsel for the petitioner,
has referred to Sr. No.16 of the Tender Bid Technical Evaluation.
According to her, the firm/agency upload an undertaking on the
.
organization letter head that: (i) That firm/agency shall deploy
medically fit personnel's and shall also bear expenses of routine
check-up of its personnel's; (ii) The bidder must be having its office
in Himachal Pradesh at the time of applying for the tender. The
certificate to the above effect, under the Labour and Contract
Act/Shops & Commercial Establishment Act/Company Act, must be
attached with the Tender Document; (iii) That firm/agency shall be
able to deploy at least 70% Himachali; and (iv)That there is no case
pending with the police or any investigating agency against the
Proprietor/Firm/Agency/Partner and the firm/agency has not been
blacklisted by the Government or Non-Government organization.
Learned counsel submitted that the petitioner has furnished all these
declarations/undertakings alongwith the requisite documents as
required in terms of Annexures 3 to 10 of the bid document. The
petitioner also filed the details of its registration as required under
Clause-(ii)(iv) of Serial No.16, as mentioned above.
6. Referring to Check List, Annexure P-2, the learned
counsel for the petitioner submitted that document Serial No.16(i)
and 16(iii) were never directed to be filed by the respondents, even
then the respondents have illegally rejected the technical bid of the
petitioner for want of documents. As regards the petitioner's claim as
per Annexure P-6, alongwith declaration that the petitioner has not
been blacklisted, the same was also filed alongwith the tender
.
document, which is placed on record as Annexure P-5 (colly). The
action of the respondents in rejecting the technical bid of the
petitioner is highly arbitrary and discriminatory. It is intended to give
undue advantage and favour to their favourities in violation of the
Procurement Rules. The respondents have illegally ousted the
petitioner from competition by rejecting his technical bid on the
ground that he had failed to file the document as per Clause 16(i) &
16(iii) of the tender document, whereas, as per the tender
documents, no such document was required to be filed by the
petitioner, neither was there any written direction to the petitioner nor
even the Evaluation Committee raised any such objection prior to
technical bid. The respondents have acted against the public policy.
The evaluation of the bid has to be done as per the tender document
which requires the bidders to file certain documents to prove their
eligibility. The Evaluation Committee cannot include any new
document as the mandatory requirement.
7. Mr. Ajay Vaidya, learned Senior Additional Advocate
General, submitted that as per the mandatory terms and conditions
of the tender document at Sr. No.49, which the petitioner has
referred to as Clause-16, the service provider was required to upload
an undertaking on the letter head of the organization to the effect: (i)
that firm/agency shall deploy medically fit personnel's and shall also
bear expenses of routine check-up of its personnel's; (ii) that bidder
.
must be having its office in Himachal Pradesh at the time of applying
for the tender. The certificate to the above effect, under the Labour
and Contract Act/Shops & Commercial Establishment Act/Company
Act, must be attached with the Tender Document; (iii) that
firm/agency shall be able to deploy at least 70% Himachali; and (iv)
that there is no case pending with the police or any investigating
agency against the Proprietor/Firm/Agency/Partner and the
firm/agency has not been blacklisted by the Government or Non-
Government organization. It is contended that as per the information
gathered by respondent No.3, the petitioner, alongwith the other
firms, have submitted their documents for participating in the
e-Tendering process. However, the meeting of the local e-Tender
Opening-cum-Evaluation Committee of respondent No.3, after
making the technical evaluation of the bids of all the participating
firms, declared four of them, including the firm of the petitioner, as
technically disqualified firms, for its failure to adhere to the
requirement of providing undertaking on the letter head of the
organization in terms of the above referred to mandatory Condition
in Clause 49 of the tender document. The tender has, therefore,
rightly been rejected in respect of the petitioner-firm on technical
ground by the duly constituted Tender Scrutiny Committee at the
level of the Chief Medical Officer, Kangra.
8. Learned Senior Additional Advocate General, in support
.
of his arguments, has relied upon the Supreme Court judgments in
cases titled Jagdish Mandal versus State of Orissa and others,
reported in (2007)14 SCC 517 and Michigan Rubber (India)
Limited versus State of Karnataka and others, reported in (2012)
8 SCC 216.
9. We have given our anxious consideration to the rival
submissions made and gone through the record.
10. The petitioner-firm has itself placed on record the Check
List of the documents to be attached with the technical bid, Clauses
1, 9 & 10 whereof, read as under:-
"01. I, the undersigned certify that I have gone
through all the terms and conditions
mentioned in the tender document and
undertake to comply with them.
02 to 08. xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
09. Damage of hospital property if any, due to
lapse on my part/my staff may be recovered
from me.
10. Should any lapse occur on my part or on my
staff while discharging the services the
hospital authorities may cancel my contract
and award the work to another agency and
the costs difference may be recovered from
me and can forfeit security money."
.
11. The respondents-State, in their reply, have placed on
record the complete Model E-Tender Document for Outsourcing of
Sanitation Services in the Hospitals/Health Institutions of the State,
vide Annexure R-1/T. This is accompanied by the instructions for
submission of cost of tender document and earnest money deposit.
It also provides that the e-tender document shall be uploaded in two
parts, i.e. Pre-qualification/Eligibility Bid & Financial Bid/Price
Bid/BOQ. The eligibility criteria for participation in the tender has
been incorporated therein. The terms and conditions at Item No.49,
are enumerated as under:-
"49. Service provider will upload an Undertaking
on organization letter head:
(i) That firm/agency shall deploy medically fit
personnel's and shall also bear expenses
of routine check-up of its personnel's.
(ii) The bidder must be having its office in
Himachal Pradesh at the time of applying
for the tender. The certificate to the above
effect, under the Labour and Contract
Act/Shops & Commercial Establishment
Act/Company Act, must be attached with
the Tender Document.
(iii) That firm/agency shall be able to deploy at
least 70% Himachali.
(iv) That there is no case pending with the
police or any investigating agency against
the Proprietor/Firm/Agency/Partner and the
.
firm/agency has not been blacklisted
by the Government or Non-Government
organization."
12. It would be evident from the above that service provider
was mandatorily required to upload an undertaking on the letter
head of the organization to the effect that: (i) the firm/agency shall
deploy medically fit personnel's and shall also bear expenses of
routine check-up of its personnel's, (ii) the bidder must be having its
office in Himachal Pradesh at the time of applying for the tender. The
certificate to the above effect, under the Labour and Contract
Act/Shops & Commercial Establishment Act/Company Act, must be
attached with the Tender Document, (iii) the firm/agency shall be
able to deploy at least 70% Himachali and (iv) there is no case
pending with the police or any investigating agency against the
Proprietor/Firm/Agency/Partner and the firm/agency has not been
blacklisted by the Government or Non-Government organization.
13. It is not disputed before us that the petitioner failed to
furnish the undertaking to the above aspect on the letter head of the
organization. The Supreme Court in Jagdish Mandal's case (supra),
has elaborately dealt with the scope of interference by the High
Court under Article 226 of the Constitution of India, in the contractual
matters. It was held that when the power of judicial review is invoked
in the matters relating to tenders or award of contracts, certain
special features should be borne in mind. A contract is a commercial
.
transaction. Evaluating tenders and awarding contracts are
essentially commercial functions. Principles of equity and natural
justice stay at a distance. If the decision relating to award of contract
is bonafide and is in public interest, the Courts will not, in exercise of
power of judicial review, interfere even if a procedural aberration or
error in assessment or prejudice to a tenderer, is made out. The
power of judicial review will not be permitted to be invoked to protect
private interest at the cost of public interest, or to decide contractual
disputes. The tenderer or the contractor with a grievance can always
seek damages in a Civil Court. Attempts by unsuccessful tenderers
with imaginary grievances, wounded pride and business rivalry, to
make mountains out of molehills of some technical/procedural
violation or some prejudice to self, and persuade Courts to interfere
by exercising power of judicial review, should be resisted. Such
interferences, either interim or final, may hold up public works for
years, or delay relief and succour to thousands and millions and may
increase the project cost manifold.
14. Their Lordships further held that the argument to the
effect that the tender of the lowest bidder was rejected on the
ground that it was defective, as not being accompanied by a valid
earnest money deposits, when the action was challenged by the
concerned bidder, the Supreme Court in that case interfered in the
matter by way of judicial review and noted that the Tender
.
Committee, before consideration of tenders, receiving a complaint
alleging tampering and manipulation in the postal TD account
passbook submitted as EMD, sought confirmation from Postal
Department as to whether the TD Passbook was genuine and valid.
The Superintendent of Post Offices replied that the passbook in
respect of the tender document should not be acted upon. Thus,
treating the tender to be defective in absence of a valid EMD, the
Committee rejected the same. The Supreme Court held that the
limited question that had to be examined by the High Court in
exercise of its power of judicial review was whether the decision of
the Committee and consequential rejection of the lowest tenderer's
tender was irrational, unreasonable or arbitrary. Since the act in
question of the Committee was not arbitrary and unreasonable, no
interference therewith was called for. The High Court was held to
have erred in interfering with the said decision after relying on a
contradictory police report submitted during the pendency of the writ
petition.
15. In Michigan Rubber (India) Limited's case supra, also
dealing with the scope of interference by the High Court in exercise
of the powers under Article 226 of the Constitution of India, the
Supreme Court held that the basic requirement of Article 14 is
fairness in action by the State, and non-arbitrariness in essence and
substance, being exercised within the purview of judicial review only
.
to the extent that the State must act validly for a discernible reason,
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. For 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, the scope of interference by the Courts is very
limited.
16. As regards the matter of formulating conditions of a
tender document for awarding a contract, their Lordships held that
the greater latitude is required to be conceded to the State
authorities. Unless the action of the tendering authority is found to
be malicious and a misuse of its statutory powers, interference by
Courts is not warranted. It was held 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 and that if the State or its instrumentalities act
reasonably, fairly and in public interest in awarding contract, the
interference by Court is very restrictive since no person can claim
fundamental right to carry on business with the Government.
.
The Government and their undertakings must have a
free hand in setting terms of the tender and only if it is arbitrary,
discriminatory, malafide or actuated by bias, only with regard to that
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.
17. In the present case, it is not in dispute that the
petitioner, while furnishing the undertaking in terms of Clause 49
with the Notice Inviting Tender (NIT), failed to abide by the
requirement of uploading such undertaking on the letter head of the
organization and therefore, the respondents uniformly, not only in
respect of the petitioner-firm but also in respect of other three firms,
have taken the decision by rejecting all such technical bids.
18. In view of the aforesaid discussion/observations, we do
not find any infirmity in the action of the respondents, so as to justify
interference in exercise of power of judicial review by this Court
under Article 226 of the Constitution of India. Consequently, the writ
petition is dismissed. Interim order dated 13.05.2021, passed by this
Court, shall stand vacated.
19. Pending miscellaneous application(s), if any, shall also
stand disposed of.
CWPs No. 2917, 2918 & 2919 of 2021
.
20. In view of the dismissal of CWP No.2916 of 2021,
raising similar question of law and facts, these writ petitions are also
dismissed. Interim orders passed by this Court in these writ petitions
on 13.05.2021, shall stand vacated.
21. Pending miscellaneous application(s), if any, shall also
stand disposed of. r
( Mohammad Rafiq )
Chief Justice
( Sabina )
December 15, 2021 Judge
(Yashwant)
