Orissa High Court
WP(C)/17613/2020 on 22 January, 2021
W.P.(C) No. 17613 of 2020
11. 22.01.2021 1. This matter is taken up by video conferencing mode.
2. Heard Mr. Gautam Mishra, learned Senior Counsel for the
Petitioner and Mr. M.S. Sahoo, learned Additional Government
Advocate for the State-Opposite Parties.
3. This writ petition has been filed by Santoshi Infotech Computer
Centre, a sole proprietary concern represented by its sole Proprietor
Smt. Bharati Choudhury, questioning the rejection of the technical
bid of the Petitioner by the Opposite Party Nos.1 to 3 for providing
Data Entry Operators for MGNREGS, MGNREGS Assistant,
Assistant Computer Programmer and Data Entry Operator for
OLM. The Petitioner challenges the award of the said tender to the
Opposite Party No.4 despite the Petitioner being the lowest
tenderer.
4. The background facts are that on 26th June, 2020, the Project
Director, District Rural Development Agency, Nabarangpur
(DRDA) issued an advertisement inviting tenders for the above
purpose. The Petitioner states that within the due date and time, i.e.,
5 pm on 30th July 2020, the Petitioner submitted all the requisite
documents, which included the Registration Certificate (RC) were
issued under the Odisha Shops & Commercial Establishment Act,
1956 (OSCE Act) issued by the District Labour Commissioner,
Nabarangpur, a GST Registration Certificate, document relating to
the Provident Fund issued by the Sub-Regional Office, Berhampur,
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Certificate issued by the Employees' State Insurance Corporation,
Regional Office, Bhubaneswar. Also included among these
documents was the license issued by the Licensing Officer and
District Labour Officer, Nabarangpur dated 21st November, 2009
containing endorsements of renewal up to 21st November, 2020.
5. It appears that there were 18 bidders, whose technical bids were
opened on 14th July, 2020. 9 out of the 18 bidders qualified in the
technical bid. The Petitioner's technical bid was not accepted.
According to the Petitioner, the Opposite Parties 1 to 3 verbally
communicated to the Petitioner that the technical bid had been
rejected because the Petitioner was not registered with the IGR,
Cuttack and no documents with regard thereto was submitted along
with the tender documents.
8. On 15th July 2020, the Petitioner wrote to the Project Director,
DRDA (Opposite Party No.3) to disclose the reasons for non-
acceptance of its technical bid. On 16th July 2020, the Petitioner
filed an application under the Right to Information Act (RTI Act)
seeking the reasons for rejection of the technical bid. But no reply
was forthcoming. Meanwhile the Petitioner learnt that the contract
was to be awarded to Opposite Party No.4. Hence, the present writ
petition was filed.
9. When the petition was listed on 24th September 2020, learned
Additional Government Advocate sought time to file a reply.
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Thereafter on 5th October 2020, the Court, while directing the writ
petition to be listed along with W.P.(C) No.17709/2020 (M/s.
Famous Security Service v. State of Odisha) required the copy of
the counter affidavit filed by the Opposite Parties 1 to 3 in the
present petition to be served on the Petitioner. The Court granted
time to the Opposite Party No.4 to file its counter affidavit.
10. At this stage, it must be noted that, W.P.(C) No.17709/2020
had been filed in the context of the Project Director, DRDA,
Nabarangpur not conducting a transparent lottery among the
bidders, who had quoted more than Rs.7/- in the tender process.
The Petitioner in the said petition questioned the manner in which
Opposite Party No.3 had desired to award the tender in favour of
the persons, who had quoted abnormally low service charges
contrary to the directives of the Finance Department issued on 22nd
May 2018.
11. Initially in W.P.(C) No.17709/2020, an interim order was
passed by this Court on 6th August, 2020 directing that the Opposite
Parties will not finalise the tender till the next date. It may be noted
here that ultimately W.P.(C) No.17709/2020 was dismissed as
withdrawn on 24th September, 2020 by this Court.
12. Reverting to the present writ petition, in the counter affidavit
filed by the Opposite Parties 2 and 3, the reasons for rejecting the
technical bid of the Petitioner as stated in para 5 are that the Tender
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Evaluation Committee (TEC) had learnt that the Petitioner was not
authorized by the competent authority to carry out the business of
providing manpower services to different government offices and
organizations. It is mentioned in para 5 that the Petitioner had only
submitted the RC issued under the OSCE Act, which was relevant
only for the purposes of the Petitioner running a computer center by
engaging some employees in the office.
13. In para 7, it is stated that, three bidders had quoted Rs.1/- per
person as service charge for providing manpower and were
declared as L-1 bidders. To finalise one of the three L-1 bidders,
the TEC adopted a lottery system and that is how the work was
finally awarded to Opposite Party No.4.
14. It may be also stated that on 18th August 2020, the Petitioner
filed an additional affidavit placing on record, the information
obtained through the RTI Act. The proceedings of the TEC reveal
the reason for rejection of the petitioner's technical bid as under:-
"The firm is not registered under appropriate
authorities i.e. Society Registration
Act/Partnership Act/Company Act, Registered
under shop and Commercial Act by District
Labour Officer is not acceptable."
15. The Petitioner has in a rejoinder to the counter affidavit filed,
pointed out that there was an obvious non-application of mind since
it was overlooked by the TEC that the Petitioner was a proprietary
concern and not a partenrship firm. Therefore, the question of
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having a registration under the Partnership Act/ Companies
Act/Societies Registration Act did not arise at all.
16. In fact, the reason stated in the counter affidavit that the
Petitioner was not authorized to carry out the business of providing
manpower was not the reason stated by the TEC. The Petitioner
has drawn attention to the fact that the question of non-submission
of an IGR registration certificate did not arise, as IGR deals with
registration of partnership firms and societies whereas the
Petitioner is a proprietory concern. The Petitioner has pointed out
how it has been providing DEOs under other contracts for a long
period of time.
17. On this issue, Mr. Gautam Mishra, learned Senior Counsel
appearing for the Petitioner on 6th January, 2021 drew the attention
of the Court to the license dated 21st November, 2009 issued in
favour of the Petitioner by the Licensing Officer and District
Labour Officer, Nabarangpur, authorizing the Petitioner to supply
manpower like Data Entry Operators, Security Personnel, Clerks,
Watchman/Peons etc. to the principal of the employer i.e. Project
Director, DRDA, Nabarangpur. The said licence license was
extended till 21st November, 2020.
18. This Court on 6th January, 2021 has passed the following order:
"06.01.2021- This matter is taken up through video
conferencing.
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One of the grounds of rejection of Petitioner's
technical bid is that, there is no document to
show that it is authorized to supply manpower.
Mr. Mishra, learned Senior Counsel for the
Petitioner draws the attention of the Court to
the document at page-42 of the paper book
purporting to be the license issued by the
Government of Odisha authorizing the
Petitioner to supply manpower with
endorsement thereon to indicate that the
license has been renewed up to 21st
November, 2020.
Mr. Sahoo, learned Additional Government
Advocate seeks time to verify whether in fact
the aforementioned document was submitted
by the Petitioner along with its bid. He states
that he will examine the original record.
At the request of Mr. Sahoo, list on 22nd
January, 2021."
19. Today, Mr. Sahoo, learned Additional Government Advocate
for the Opposite Parties, confirms that the above license copy was
part of the bid document and was not accounted for by either the
TEC or even the Opposite Parties 1 to 3, while rejecting the
technical bid of the Petitioner.
20. On this aspect, learned counsel for the Opposite Party No.4
sought to take an exception to the fact that license was issued in the
name of Smt. Bharati Choudhury and not the bidder which was
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M/s. Santoshi Infotech Computer Centre. The submission is
misconceived for the simple reason that the license reads as under:
"License is hereby granted to SMT. BHARATI
CHOUDHURY, S/O. SUBRAT CHOUDHURY, M/S.
SANTOSHI INFOTECH COMPUTER CENTRE, MAIN
ROAD, NABARANGPUR DIST: NABARANGPUR
under Sec-12(1) of the Contract Labour (R&A) Act, 1970,
subject to the conditions specified in annexure overleaf to
supply of manpower like, data Entry Operators, Security
Personnel, Clerks, watchman/Peon etc. to the Principal
Employer "PROJECT DIRECTOR, D.R.D.A.,
NABARANGPUR."
21. Since it is a sole proprietary concern, the name of the sole
proprietor is mentioned and immediately thereafter, the name of the
proprietary concern is mentioned in the license. It is, therefore,
erroneous on the part of the Respondent No.4 to contend that the
licence is not in the name of the proprietary concern, which
submitted the bid.
22. The further reason given by the TEC for rejecting the technical
bid, viz., that there was no RC of the IGR is also not tenable
because such registration admittedly is only for partnership farms
and not proprietary concerns like the Petitioner. Consequently,
neither of the reasons given by the TEC or by the Opposite Parties
for rejecting the technical bid of the Petitioner is sustainable in law.
23. Mr. Sahoo submitted that the Petitioner had quoted an
absorbedly low price of Re. 0.01, which is contrary to the Finance
Department Circular dated 22nd May, 2018, referred to earlier. In
the first place, it has been noticed that the notice inviting tender did
not refer to the aforementioned Circular of the Finance Department
at all. Therefore, that could not be used to be a ground to reject the
bid of the Petitioner. Even in the counter affidavit, this has not been
raised as an issue because it would have arisen only in the event the
financial bid of the Petitioner was to be considered.
24. In I.A. No.14629 of 2020 filed by the Petitioner, instances
where price was quoted below Rs.1/- for certain other contracts by
bidders and have been accepted, have been set out. The Petitioner
has cited the following instances:
"1) Puri District Headquarters Hospital - Agency Name
(Care Security);
2) Puri Municipality - Agency Name (Jagruti Security);
3) Sarva Sikshya Abhiyan, Nabarangpur - Agency Name
(Mind Mart, Bhubaneswar)
4) Industrial Training Institute, Puri - concerned Agency
has also made bids below Re.1/-
5) Mid Day Meal Programme by District Education Office,
Nabarangpur - concerned Agency has also made bids
below Re.1/-.
6) District Headquarters Hospital, Bhawanipatna, District
Kalahandi - Agency name (Anil Security Service)
7) Government College of Engineering, Bhawanipatna,
District Kalahandi - Agency Name (M/s. Sai Security
Service, Bhubaneswar)."
25. There is no denial of the above facts by the Opposite Parties 1
to 3. If indeed the Finance Department Circular was being acted
upon, there was no reason to accept the above bids. There is merit
in the contention of Mr. Mishra that the Circular of the Finance
Department dated 22nd May, 2018 cannot be relied upon to reject
the Petitioner's price bid unless it was mentioned in the tender
document itself, in which case the Petitioner and other bidders may
have been put on notice that they could not quote below a certain
minimum amount.
26.1 Mr. Mishra refers to the decision of the Supreme Court in
Govt. of A.P. v. Mhaharishi Publishers Pvt. Ltd. (2003) 1 SCC 95
in support of the contention that a different treatment cannot be
meted out to the Petitioner in such instance. In that case, pursuant
to the Policy of the Government of Andhra Pradesh and a Scheme
for encouraging newspaper concerns and educational institutions,
lands were allotted at affordable prices. Two acres of such lands
was assigned to the Respondent. Despite complying with all
conditions and depositing the amount demanded, possession was
not given of the land to the Respondent, which was in contrast with
the treatment meted out to three other publishers/institutions, which
were similarly situated. When this was challenged in a writ petition
by three such entities including the Petitioner, the learned Single
Judge allowed the petition and directed the State Government to
hand over possession of the respective lands to the three
Petitioners.
26.2 When the appeal filed by the State was still pending, fresh
GOs were issued by the State Government purporting to cancel the
allotments with a direction to the Collector to repay the amount
deposited to the Respondent. The States' writ appeal was dismissed
by the Division Bench and the fresh GOs cancelled.
26.3 Dismissing the further appeal filed by the State Government,
the Supreme Court, inter alia, observed that, there was hostile
discrimination against the Petitioners in the High Court, by being
subjected to a treatment different than other similarly situated
newspaper concerns and other institutions. It was held that there
was a violation of the fundamental rights of the writ petitioners
under Article 14 of the Constitution of India.
27. In the present case, when similarly situated entities have been
allowed to quote Rs.1/- and their bids have been accepted in other
contracts without enforcing the Circular dated 22nd May, 2018 of
the Finance Department, there is no reason why the Petitioner's bid
alone was liable to be rejected because of the Petitioner quoted
Rs.0.01 paise in the price bid. This again would not be a valid
ground for rejection of the Petitioner's bid.
28. For the aforementioned reasons, the writ petition is allowed
and the decision of the TEC to award the tender for the "Selection
of the Manpower Service Provider to provide The Service of Data
Entry Operators for MGNREGS, MGNREGS Assistant, Assistant
Computer Programmer and Data Entry Operator for OLM" in
favour of the Opposite Party No.4 is hereby quashed. A direction is
issued to the Opposite Parties 1 to 3 to award the aforementioned
work in favour of the Petitioner and issue necessary orders in this
regard not later than two weeks from today.
29. The writ petition is allowed in the above terms. No orders as to
costs.
30. As the restrictions due to the COVID-19 situation are
continuing, learned counsel for the parties may utilize a soft copy
of this order/judgment available in the High Court's website or
print out thereof at par with certified copy in the manner prescribed,
vide Court's Notice No.4587 dated 25th March, 2020.
( Dr. S. Muralidhar )
S. Mohanty/PA Chief Justice
A.Dash/Secy.
22nd January,2021.
(C.R. Dash)
Judge
