Orissa High Court
Afr vs State Of Odisha And Others on 12 May, 2022
ORISSA HIGH COURT: CUTTACK
W.P.(C) NO. 10119 OF 2022
In the matter of an application under Articles 226 and
227 of the Constitution of India.
---------------
AFR
M/s Kamala Agencies ..... Petitioner
-Versus-
State of Odisha and others ..... Opp. Parties
For Petitioner : Mr. Pitambar Acharya,
Sr. Advocate along with
M/s S. Rath and S.S. Tripathy,
Advocates.
For Opp. Parties : Mr. Ashok Kumar Parija,
Advocate General along with
Mr. P.P. Mohanty, Additional
Government Advocate.
P R E S E N T:
THE HONOURABLE DR. JUSTICE B.R.SARANGI
AND
THE HON'BLE MISS JUSTICE SAVITRI RATHO
Date of hearing 02.05.2022:: Date of judgment: 12.05.2022
DR. B.R. SARANGI, J. The petitioner, which is a proprietorship
firm and registered dealer, whole-seller, supplier and
distributor of veterinary drugs/medicines, chemicals,
veterinary instruments and equipments, has filed this
writ petition seeking to quash the decision taken by
opposite parties no. 2 and 3 in the meeting of the tender
committee under Annexure-4 dated 28.03.2022 and to
declare the provisions of clause 5.2, more specifically
clauses 5.2.5, 5.2.5.2 and 5.2.6.3 of the bid document,
bearing reference No. 01/2021-22/DAHVS/ Veterinary
Instruments/ Equipments/ Chemicals/ Reagents/ Media
dated 29.12.2021 as void ab initio. The petitioner further
seeks direction to the opposite parties to consider the
financial bids of the eligible bidders fulfilling the pre-
qualification criteria of un-amended clause 5.2 and to
reject the bids of ineligible bidders, which were otherwise
ineligible before amendment of clause 5.2, more
specifically clauses 5.2.5, 5.2.5.2 and 5.2.6.3 of the bid
documents.
2. The factual matrix of the case, in brief, is that
opposite party no.2 floated an e-tender call notice on
29.12.2021 under Annexure-2, inviting eligible bidders for
"supply of Veterinary Instruments, Equipments, Chemicals,
Reagents & Media etc. for the year 2021-22" vide Bid
Reference No. 01/2021-22/DAHVS/ Veterinary
Instruments/ Equipments/ Chemicals/ Reagents/ Media.
The schedule of dates mentioned in the said notice were
later on amended vide Corrigendum-II dated 25.01.2022
and some of the deadlines were relaxed. The petitioner
duly participated in the tender process and submitted its
bid within the stipulated time. Clause 5.2 of the tender
document prescribed the pre-qualification criteria to
participate in the tender process. As per such clause,
only the distributors, who have experience in supplying
the quoted items, as mentioned in the schedule of
requirement, to any Govt. organization/Govt. /Pvt.
Hospitals / Other Agencies in India are eligible to submit
bid for the tender. Clause 6.13 of the bid document
contains the provisions regarding grounds for rejection of
the bids. It has been specifically mentioned therein that
those bidders, who will not fulfill the requirement of
clause 5.2, will be disqualified from participating in the
tender process. After opening of the technical bids on
15.02.2022, opposite parties No.2 and 3 called a meeting
of the tender committee on 28.03.2022 under the
chairmanship of Director, AH&VS and decided to alter the
pre-qualification criteria, as contained in clause 5.2 of the
bid document, and waive off the requirement of filing the
Performance Statement in the Format-T9. Much after the
opening of the technical bid, in order to accommodate
more number of responsive bidders, as there were limited
business opportunities during COVID-19 pandemic, the
tender committee decided for alternation of pre-
qualification criteria prescribed under clause 5.2. As per
the requirement of clause 5.2, the bidders were to submit
copies of the purchase orders placed by purchasers for
any two financial year during 2017-18, 2018-19, 2019-20
and 2020-21. Due to such decision of the tender
committee in waving off the requirement of filing of the
Performance Statement in Format-T9, an attempt was
made to accommodate some non-serious and ineligible
bidders, which were otherwise ineligible as per the
provisions of the unamended clause 5.2. Alteration of the
provisions of the bid documents, after opening of the
technical bid, also runs contrary to clause 6.17 of the bid
document, which prescribes the procedure for making
amendment in the bid document. The petitioner, having
come out successful and eligible in technical bid by
fulfilling the stringent pre-qualification criteria as
mentioned in clause 5.2 of the bid document, was grossly
prejudiced because of participation of ineligible bidders in
the financial bid, which were otherwise ineligible as per
the provisions of the unamended clause 5.2, more
specifically clauses 5.2.5, 5.2.5.2 and 5.2.6.3 of the bid
document. Being aggrieved by such action of the
authorities, the petitioner has approached this Court by
filing the present writ petition.
3. Mr. Pitambar Acharya, learned Senior Advocate
appearing along with Mr. S.S. Tripathy, learned counsel
for the petitioner, vehemently contended that once an
advertisement was issued inviting bids with certain terms
and conditions, and on that basis the bidders were
participated, after opening of the technical bid, the
clauses of the such tender document should not have
been relaxed. As such, the relaxation of such clauses,
after opening of the technical bid, amounts to arbitrary
and unreasonable exercise of power by the authorities,
which amounts to violation of Articles 14 and 19 (1)(g) of
the Constitution of India and runs contrary to the
principle prescribed under Article 299 of the Constitution
of India.
3.1 It is further contended that since the bids were
invited under pre-amended provisions of clause 5.2, if any
amendment is made to the said clause that too after
opening of the technical bid, that itself violates clause
6.17 of the bid document, and by this process the
authorities have acted against the established principle in
awarding government contract, that "rules of the game
cannot be changed mid-way".
3.2 His further contention is that the alternation of
pre-qualification criteria was made much after the
opening of the technical bid, in order to accommodate
more number of responsive bidders, as there were limited
business opportunities during COVID-19 pandemic, but
that decision should have been taken before the
notification was issued. However, after opening of the
technical bid, the decision taken for change of the
conditions of the bid, cannot sustain in the eye of law.
More particularly, pursuant to pre-amended provisions of
clause 5.2, many of the participants had already
submitted their bids and their bids were under scrutiny
and, as such, some of the bidders were qualified in the
technical bid. Thereby, after technical bid was opened,
the incorporation of new clauses under clause 5.2 should
not have been made in the midst of the tender process.
Thereby, the action of the authorities is arbitrary,
unreasonable and contrary to the provisions of law. To
substantiate his contention, he has relied upon the
judgments of the apex Court in the cases of Tata
Cellular v. Union of India, (1994) 6 SCC 651; Jagdish
Mandal v. State of Orissa, (2007) 14 SCC 517; and
Vidarbha Irrigation Development Corporation and
others v. Anoj Kumar Agarwala and others, (2020) 17
SCC 577.
4. Mr. Ashok Kumar Parija, learned Advocate
General appearing along with Mr. P.P. Patnaik, learned
Additional Government Advocate for the State-opposite
parties, vehemently contended that notice was issued on
29.12.2021 inviting online bids through e-tender portal of
Government of Odisha from the eligible bidders for
"supply of Veterinary Instruments, Equipments,
Chemicals, Reagents & Media etc. for the year 2021-22".
Said notice was issued for procurement of 221 items,
including 121 items in instruments & equipments
category and 79 items in chemicals & reagents category.
The technical bid was opened through online mode on
15.02.2022 at 11.30 A.M. The preliminary verification of
all the technical bids was carried out by the members of
the duly constituted Tender Committee taking into
consideration different parameters like acknowledgement
copy of bid document cost of Rs.5600/- submitted
through online mode, bid security declaration, annual
average turnover statement by Chartered Accountant for
any three consecutive financial years during 2017-18,
2018-19, 2019-2020 and 2020-21, i.e. Rs.4.00 crore in
case of manufacture/importer and Rs.2.00 crore in case
of authorized distributor, details of items quoted with
their specifications, details of bidder & service center,
declaration in form affidavit in Form T5 before Executive
Magistrate/ Notary Public, Manufacture's authorization
form in a letter head- in case the bidder is the
manufacturer (OEM), manufacture's authorization form in
a letter head of the manufacturer- in case the bidder is
the authorized importer/distributor of OEM along with
other tender terms and conditions. After opening of
technical bid, it was found that 11 number of bidders had
participated pursuant to the notice inviting bid dated
29.12.2021, out of which bids of 2 number of bidders
were rejected for non-fulfillment of the conditions laid
down in the bid document. Therefore, total 9 number of
bidders, including the petitioner, were selected and
qualified for opening of financial bid.
4.1 It is further contended that the authorities
observed, that 09 bidders, which were qualified during
the technical bid evaluation and were eligible for financial
bid evaluation, were actually qualified for 41 items out of
221 items enlisted in the bid document. In this
circumstance, the purpose of inviting tender for supply of
essential veterinary items was not fulfilled. Therefore, it
was felt necessary to convene an urgent tender committee
meeting, prior to opening of the financial bid, in order to
ensure more responsive bidders in the tender process and
to get the items at competitive price. Accordingly, the
meeting was held on 28.03.2022 under the Chairmanship
of Director, AH&VS, Odisha Cuttack. As there was limited
business opportunity during COVID-19, it was decided in
the meeting to relax some of the clauses of the bid, more
specifically clauses 5.2.5, 5.2.5.2 and 5.2.6.3 of the bid in
order to validate more number of responsive bidders.
4.2 The further submission of learned Advocate
General is that the opposite parties have taken liberal
stand by relaxing clauses of the bid document keeping
larger public interest in mind and meant for benefit of all
the bidders without any bias and prejudice. It was also
emphatically submitted that the petitioner is in no way
affected adversely by such relaxation. According to him,
during the technical evaluation, the petitioner was
qualifying for 26 items, whereas, it was observed that the
petitioner was qualifying for 160 items, after relaxation of
the clauses of the bid, thereby, getting maximum
advantages amongst the bidders.
4.3 The further stand of learned Advocate General
is that, the petitioner kept silent and did not make any
objection to the proceeding dated 28.03.2022, when it
was uploaded in the website on 08.04.2022. The
petitioner started complaining only after the evaluation of
financial bid, which was carried on 12.04.2022. Thereby,
raising of objection on financial bid is not bona fide,
rather colored by ulterior motive. As such, it is contended
that the writ petition is liable to dismissed on the ground
of principle of estoppel.
4.4 It is further contended that knowing fully well
the decision taken by the tender committee on
28.03.2022, with regard to change of clause 5.2 which
was uploaded on 08.04.2022, the petitioner remained
silent, but he raised objection after the financial bid was
opened on 12.04.2022 by filing the present writ petition
on 20.04.2022. Thereby, the action of the petitioner
cannot be considered above board. Having participated in
the process of selection without any objection, after
opening of the financial bid, challenging the amendment
to clause 5.2 enabling more bidders to participate in the
tender process, cannot sustain in the eye of law. Thereby,
the writ petition is liable to be dismissed.
4.5 A further stand is taken that the petitioner has
not impleaded the bidders who had participated in the
process of tender, particularly when the tender process is
going on and it has not been concluded, because of the
interim order passed by this Court. As a consequence
thereof, the writ petition is also liable to be dismissed on
the ground of non-joinder of proper parties.
5. This Court heard Mr. Pitambar Acharya,
learned Senior Advocate appearing along with Mr. S.S.
Tripathy, learned counsel for the petitioner; and Mr.
Ashok Kumar Parija, learned Advocate General appearing
along with Mr. P.P. Mohanty, learned Additional
Government Advocate for the State-opposite parties by
hybrid mode, and perused the record. Pleadings having
been exchanged between the parties, with the consent of
learned counsel for the parties this writ petition is being
disposed of finally at the stage of admission, as it is an
urgent tender matter involving supply of medicines and
other related items to various veterinary hospitals of the
State.
6. The facts, which are undisputed, are that the
Director of Animal Husbandry & Veterinary Services,
Odisha-opposite party no.2 floated an e-tender call notice
on 29.12.2021 under Annexure-2 inviting eligible bidders
for "supply of Veterinary Instruments, Equipments,
Chemicals, Reagents & Media etc. for the year 2021-22"
vide Bid Reference No. 01/2021-22/DAHVS/ Veterinary
Instruments/ Equipments/ Chemicals/ Reagents/ Media,
for online bid through e-tender portal. As per the bid
document, the schedule of dates for different steps to be
taken were provided as follows:-
Sl. Particulars Date and time
No.
1. Date & time of release 29/12/2021, 3.00 PM
of bid
2. Date & time of 03/01/2022, up to 12.30 PM
submission of queries
by E-Mail id-
[email protected]
3 Date & time of Pre-bid 05/01/2022, 3.00 PM
meeting (through online : meeting link
will be shared in the website.
4 Date & time of Online Start Date & End Date &
bid submission Time Time
06/01/2022, 27/01/2022,
11.00 AM 5.00 PM
5. Date & time for Start Date & End Date &
submission of Tender Time Time
Documents 10/01/2022, 02/02/2022,
11.00 AM 3.00 PM
6. Date & time of online 03/02/2022, 11:30 AM
Technical bid opening
7. Date of demonstration To be informed to those
of Equipment (if bidders whose bids are
required by the Tender found to be technically
Inviting Authority for responsive based on
some equipments) documents furnished in
technical bid.
8. Date of opening of To be informed to the
Financial bid qualified bidders.
7. The tender document in clause 5.2 deals with
pre-qualification of bidders. The relevant part of clause
5.2 of the bid document, for an effective adjudication of
the lis between the parties, is quoted hereunder:-
"5.2.5 Product must be BIS/CE/USFDA/IEC etc.
(valid BIS/CE/US FDA/IEC certificate etc.)
certified.
The bidder should have experience in
supplying quoted items (as mentioned in
schedule of requirement) (execute directly by
manufacturer/ importer or through distributor) of
the equipment(s) mentioned in the schedule of
requirement to any Govt. organization/Govt./Pvt.
Hospitals and other Agencies in India and
purchase order copies in support of that in any 2
financial years during 2017-18,2018-19,2019-
20,2020-21 (As per Format T9-Items Wise)
5.2.5.2 Must have any two years of
experience in manufacturing /importing of similar
items during 2017-18,2018-19,2019-20,2020-21.
5.2.6.3. The bidder should have experience in
supplying quoted items (as mentioned in
schedule of requirement) to any Govt.
organization/Govt. /Pvt. Hospitals / Other
Agencies in India and purchase order copies in
support of that in any 2 financial years during
2017-18, 2018-19, 2019-20, 2020-2021 ( Format
T9- Item wise.)"
8. Clause 6.13 of the bid document deals with
rejection of bids and clause 6.13.1 thereof prescribes as
follows:-
"6.13.1 The bids shall be rejected in case the
bidder fails to meet the pre-qualification criteria as
specified in Clause 5.2 of Section-V."
9. Clause 6.17 of the bid document deals with
amendment of Bid Documents and clause 6.17.1 thereof
prescribes as follows:-
"6.17.1 At any time prior to the deadline for
submission of Bid, the Tender Inviting Authority
may, for any reason, modify the bid document by
amendment and publish it in e-tender portal &
website of DAH&VS, Odisha."
Termination of contract is provided under Clause 6.51 of
the tender document.
10. The opposite parties issued Corrigendum-II on
25.01.2022, by re-scheduling the date and time, which
reads as follows:-
Sl. Particulars Date and time
No.
1. Date & time of release 29/12/2021, 3 PM
of bid
2. Date & time of 03/01/2022, up to 12.30 PM
submission of queries
by E-Mail id-
[email protected]
3 Date & time of Pre-bid 05/02/2022, 3 pm (through
meeting online
4 Date & time of Online Start Date & End Date &
bid submission Time Time
06/01/2022, 09/02/2022,
11 AM 5.00 PM
5. Date & time for Start Date & End Date &
submission of Tender Time Time
Documents, Tender 10/01/2022, 14/02/2022,
Document Fee of 11 AM 5.00 PM
tender Document
6. Date & time of online 15/02/2022, 11:30 AM
Technical bid opening
7. Date of demonstration
of Equipment (if
required by the Tender
Inviting Authority for
some equipments)
8. Date of opening of To be informed to the
Financial bid qualified bidders.
11. Pursuant to the aforementioned re-scheduling
of time and conditions stipulated in the tender
documents, 11 number of bidders participated in the
tender. Out of them, 02 number of bidders became
ineligible and 09 number of bidders, including the
petitioner, became successful in the technical bid. As
such, on perusal of clauses 5.2.6 and 5.2.6.3, it appears
that only the distributors, who have experience in
supplying the quoted items, as mentioned in schedule of
requirement, were eligible to submit the bid for the
tender. After the technical bid was opened on 15.02.2022,
through online mode, opposite parties No.2 and 3 called
for a meeting of the tender committee on 28.03.2022
under the Chairmanship of Director, AH&VS, Odisha
Cuttack, who decided to alter the pre-qualification criteria
as contained in the clause 5.2 of the bid documents and
waived off the requirement of filing the Performance
Statement in the Format-T9. Clause 3 (b) of the Brief
Notes of the meeting held on 28.03.2022 reads as
follows:-
(b) Clause No. 5.2.5, 5.2.5.2 & 5.2.6.3:-
"Performance Statement in Format-T9 supported
with the copies of Purchase orders placed by
purchasers for any 2 financial years during 2017-
18, 2018-19, 2019-20 and 2020-21" was ignored to
validate more numbers of responsive bidders. The
committee considered this case due to limited
business opportunities during COVID-19 pandemic
situation."
12. On perusal of the above clause, it would be
seen that there was an alternation of pre-qualification
criteria, after the technical bid was opened on
15.02.2022, in order to accommodate more number of
responsive bidders, since there was limited business
opportunity during COVID-19 pandemic. But, as it
reveals from the pre-amended clause 5.2, the bidders
were required to submit copies of purchase orders placed
by purchasers for any 2 financial years during 2017-18,
2018-19, 2019-20 and 2020-21. According to the
petitioner, waiving off the requirement of filing of the
performance statement in Format-T9 is nothing but an
attempt to accommodate some non-serious and ineligible
bidders, which were otherwise ineligible as per the
provisions of the un-amended clause 5.2. Even if such
amendment was undertaken on the basis of the decision
of the tender committee dated 28.03.2022, the petitioner
did not raise any objection before the authority concerned
at the relevant point of time and on the basis of such
amended provision of clause 5.2, steps were taken
accordingly. The decision of the committee dated
28.03.2022 was uploaded in the website on 08.04.2022.
Even though such amendment to clause 5.2 had been
brought to the notice of the petitioner on 08.04.2022, no
protest was raised by him. Not that that, on 12.04.2022,
when evaluation of financial bid was carried out, the
petitioner did not also raise any objection. He filed this
writ petition only on 20.04.2022, challenging the action of
the opposite parties.
13. Mr. Pitambar Acharya, learned Senior
Advocate, vehemently contended that the amendment to
clause 5.2 had never been brought to the notice of the
petitioner. This contention cannot be accepted, in view of
the fact that it is an e-tender process and everything was
done through online basis. To be more specific, the
decision of the tender committee dated 28.03.2022 was
uploaded on 08.04.2022, but the petitioner did not raise
any objection to the same. Rather, he participated in the
process of financial bid held on 12.04.2022. Having
participated in the process of financial bid, without any
objection with regard amendment made to clause 5.2,
subsequently, he cannot turn around and say that the
amendment to clause 5.2 is arbitrary, unreasonable and
contrary to the provisions of law. Thereby, he is estopped
to challenge such action by filing writ petition on
20.04.2022 before this Court.
14. In Black's Law Dictionary, 7th Edn. at page
570, 'estoppel' has been defined to mean a bar that
prevents one from asserting a claim or right that
contradicts what one has said or done before or what has
been legally established as true.
15. In B.L. Sreedhar v. K.M. Munireddy, (2013) 2
SCC 355 (365), it has been held by the apex Court that
'estoppel' is based on the maxim allegans contrarir non est
audiendus (a party is not to be heard contrary) and is the
spicy of presumption juries et de jure (absolute, or
conclusive or irrebuttable presumption).
16. In the case of H.R. Basavaraj v. Canara
Bank, (2010) 12 SCC 458, the apex Court while dealing
with the general word, 'estoppel' stated that 'estoppel is a
principle applicable when one person induces another or
intentionally causes the other person to believe something
to be true and to act upon such belief as to change his/
her position. In such a case, the former shall be estopped
from going back on the word given. The principle of
estoppel is only applicable in cases where the other party
has changed his positions relying upon the representation
thereby made.
17. Similar view has also been taken by this Court
in the case of M/s. Balasore Alloys Ltd. & Anr. Vs.
State of Odisha & Ors, 2019 (I) ILR-CUT-214.
18. In view of the aforesaid fact and law, it is made
clear that a party is not to be heard contrary, meaning
thereby the estoppel is a principle when one person
induces another or intentionally causes the other person
to believe something to be true and to act upon such
belief as to change his/ her position. In such a case, the
former shall be estopped from going back on the word
given. Needless to mention here that the petitioner was all
along silent, when there was amendment to clause 5.2,
and participated in the financial bid evaluation held on
12.04.2022, even coming to know the fact of amendment
of the provision as per the decision of the tender
committee dated 28.03.2022, which was uploaded in the
website on 08.04.2022. Therefore, he cannot
subsequently turn around and assail the same by way of
writ petition, after having participated in the process of
tender.
19. In Om Prakash Sukla v. Akhilesh Kumar
Sukla, AIR 1986 SC 1043, the apex Court was pleased to
hold that when the petitioner therein appeared at the
examination without protest and when he found that he
would not succeed in the examination he filed a petition
challenging the said examination, the High Court should
not have granted any relief to such a petitioner.
20. In Madan Lal and others v. State of Jammu
and Kashmir and others, AIR 1995 SC 1088, the apex
Court held that if a candidate takes a calculated chance
and appears at the interview, then only because the result
of the interview is not palatable to him he cannot turn
round and subsequently contend that the process of
interview was unfair or Selection Committee was not
properly constituted.
21. Similarly, in Vijendra Kumar Verma v.
Public Service Commission, Uttarakhand and others,
(2011) 1 SCC 150, in paragraphs, 25 to 28, the apex
Court held as follows:
"25. In this connection, we may refer to the
decision of the Supreme Court in G. Sarana
(Dr.) v. University of Lucknow [(1976) 3 SCC
585 : 1976 SCC (L&S) 474] wherein also a
similar stand was taken by a candidate and
in that context the Supreme Court had
declared that the candidate who participated
in the selection process cannot challenge the
validity of the said selection process after
appearing in the said selection process and
taking opportunity of being selected. Para 15
inter alia reads thus: (SCC p. 591)
"15. ... He seems to have voluntarily
appeared before the committee and taken a
chance of having a favourable
recommendation from it. Having done so, it is
not now open to him to turn round and
question the constitution of the committee."
26. In P.S. Gopinathan v. State of
Kerala [(2008) 7 SCC 70 : (2008) 2 SCC (L&S)
225] this Court relying on the above principle
held thus: (SCC p. 84, para 44)
"44. ... Apart from the fact that the
appellant accepted his posting orders without
any demur in that capacity, his subsequent
order of appointment dated 15-7-1992 issued
by the Governor had not been challenged by
the appellant. Once he chose to join the
mainstream on the basis of option given to
him, he cannot turn back and challenge the
conditions. He could have opted not to join at
all but he did not do so. Now it does not lie in
his mouth to clamour regarding the cut-off
date or for that matter any other condition.
The High Court, therefore, in our opinion,
rightly held that the appellant is estopped and
precluded from questioning the said order
dated 14-1-1992. The application of principles
of estoppel, waiver and acquiescence has
been considered by us in many cases, one of
them being G. Sarana (Dr.) v. University of
Lucknow [(1976) 3 SCC 585 : 1976 SCC (L&S)
474] ...."
27. In Union of India v. S. Vinodh
Kumar [(2007) 8 SCC 100 : (2007) 2 SCC
(L&S) 792] in SCC at para 18 it was held that:
(SCC p. 107)
"18. ... It is also well settled that those
candidates who had taken part in the
selection process knowing fully well the
procedure laid down therein were not entitled
to question the same."
28. Besides, in K.H. Siraj v. High Court of
Kerala [(2006) 6 SCC 395 : 2006 SCC (L&S)
1345] in SCC paras 72 and 74 it was held
that the candidates who participated in the
interview with knowledge that for selection
they had to secure prescribed minimum marks
on being unsuccessful in interview could not
turn around and challenge that the said
provision of minimum marks was improper,
said challenge is liable to be dismissed on the
ground of estoppel."
22. Though some of the cases cited above relate to
service matter, but the principle laid down therein by the
apex Court is applicable to the present context. Therefore,
by applying the said well settled principle of the apex
Court to the present context, it can be construed that the
petitioner, having been participated in the process of
tender, should not have turned around and challenged
the decision of the tender committee by filing this writ
petition. As such, the writ petition at the instance of the
petitioner is not maintainable.
23. Reliance was placed by the learned Senior
Counsel appearing for the petitioner on Tata Cellular
(supra) wherein the apex Court categorically held that it
shall always be the endeavour of the Government to
prevent arbitrariness or favoritism. There is no doubt
about such principle laid down by the apex Court. The
ratio decided in the said case is of little help to the
petitioner, as because in the case at hand the materials
available on record reveal that the decision of the tender
committee has been taken in the greater interest of the
public and the petitioner is in no way affected adversely
by such relaxation.
24. Similarly, in the case of Jagdish Mandal
(supra), the apex Court held as follows:-
"..........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";
ii) Whether public interest is affected."
25. This Court is conscious of the position of law
laid down by the apex Court, as mentioned above, but the
conduct of the petitioner is also to be considered in the
light of the law laid down by the apex Court in various
judgments. The petitioner should have immediately
approached the authority, when the amendment with
regard to clause-5.2 was placed on website on
08.04.2022, and could have protested the same, when he
participated in the financial bid evaluation proceeding on
12.04.2022. Therefore, having participated in the process
of tender without any objection, the petitioner is now
precluded from challenging such amendment by filing the
present writ petition.
26. In Vidarbha Irrigation Development
Corporation (supra), the apex Court held that the tender
documents cannot be ignored or treated as redundant or
superfluous and they must be given meaning and their
necessary significance. Given the fact that in the present
case, an essential tender condition, which had to be
strictly complied with, was not so complied with, the
appellant would have no power to condone lack of such
strict compliance. Any such condonation, as has been
done in the present case, would amount to perversity in
the understanding or appreciation of the terms of the
tender conditions, which must be interfered with by a
constitutional court.
27. On perusal of the writ petition, it is evident
that the petitioner has not impleaded other bidders as
parties to the writ petition.
In Afcons Infrastructure Ltd. v. Nagpur
Metro Rail Corporation Ltd. & another, (2016) 16 SCC
818, the apex Court, at paragraph-18 thereof, has held as
follows:-
"18. Before we conclude, it is necessary to point out
that the High Court was of opinion that the eligible
bidders were not entitled to be either impleaded in
the petition filed in the High Court by the ineligible
bidder GYT-TPL JV or were not entitled to be heard.
With respect, this is not the appropriate view to take
in matters such as the present. There are several
reasons for this, one of them being that there could
be occasions (as in the present appeals) where an
eligible bidder could bring to the notice of the owner
or employer of the project that the ineligible bidder
was ineligible for additional reasons or reasons that
were not within the contemplation of the owner or
employer of the project. It was brought to our notice
by Afcons Infrastructure in these appeals that GYT-
TPL JV did not have any experience in the
construction of a viaduct by the segmental
construction method and that the translations of
documents in Mandarin language filed in the High
Court were not true English translations.
Submissions made by learned counsel for Afcons
Infrastructure in this regard are important and
would have had a bearing on the decision in the writ
petition filed in the High Court but since Afcons
Infrastructure was not a party in the High Court, it
could not agitate these issues in the writ petition but
did so in the review petition which was not
entertained. It is to avoid such a situation that it
would be more appropriate for the constitutional
Courts to insist on all eligible bidders being made
parties to the proceedings filed by an unsuccessful
or ineligible bidder."
In view of the law laid down by the apex Court, as
mentioned above, when the petitioner has not impleaded
all the bidders as parties to this case, the writ petition is
also not maintainable, as the same suffers from non-
joinder of parties.
28. Mr. Pitambar Acharya, learned Senior Advocate
appearing for the petitioner vehemently contended that
amendment to clause-5.2 after opening of technical bid
cannot sustain, being violative of the established principle
in awarding government contract that "rules of the game
cannot be changed mid-way".
29. This question no more remains res integra. In
Secretary, A.P. Public Service Commission v. B.
Swapna and others, 2005 (2) Supreme 615, the Andhra
Pradesh Public Service Commission had initially
advertised for recruitment to eight posts of Asst. Public
Relation Officers. Subsequently, seven more vacancies
were advertised. Therefore, the recruitment was made for
fifteen vacancies. The selection was finalized on
02.07.1996. During the currency of the waiting list, the
competent authority again notified 14 more vacancies on
14.4.1997 to be filled up by the candidates from the
waiting list. In that case, the apex Court held that there
were two principles in service laws, which were
indisputable. Firstly, there could not have been
appointment beyond the advertised number and secondly,
the norms of selection could not have been altered after
the selection process had started. In paragraph-16 of the
said judgment, the apex Court held as follows:-
"The High Court has committed an error in holding that
the amended rule was operative. As has been fairly
conceded by Learned Counsel for the applicant-
respondent No.1 it was unamended rule, which was
applicable. Once a process of selection starts, the
prescribed selection criteria cannot be changed. The logic
behind the same is based on fair play. A person who did
not apply because a certain criteria e.g., minimum
percentage of marks can make a legitimate grievance, in
case the same is lowered, that he could have applied
because he possessed the said percentage. Rules
regarding qualification for appointment if amended during
continuance of the process of selection do not affect the
same. That is because every statute or statutory rule is
prospective unless it is expressly or by necessary
implication made to have retrospective effect. Unless
there are words in the statute or in the Rules showing the
intention to affect existing rights the rule must be held to
be prospective. If the Rule is expressed in a language
which is fairly capable of either interpretation it ought to
be considered as prospective only."
30. Similar question had come up for
consideration before this Court in Mrs. Madhumita Das
v. State of Orissa, 100 (2005) CLT 465, wherein the
question before this Court was not that the modalities
fixed by the Committee/Full Court were illegal, but the
question was that once norms were published in the
advertisement for notice of all, whether it could be
changed at a later stage without notice to any of the
candidates and general public and without issuing any
corrigendum to the advertisement in question. In the said
case, the Court opined that once an advertisement was
issued to fill up a post in any office under the State, it is
the duty of the recruiting authority to give necessary
information to all in a precise and clear manner, and
relying upon the judgment in Secretary, A.P. Public
Service Commission (supra), the Court came to a
conclusion, which reads as follows:-
"Once selection process was started the norms fixed in
the advertisement could not have been changed and if
they were liable to be changed then the same should
have been published in the like manner in which initial
advertisement was published. Non-publication of the
norms changed subsequently after starting of the
selection process was violative of Article 16 of the
Constitution and thus is not sustainable in the eye of
law."
31. In M/s. Monarch Infrastructure (P) Ltd. v.
Commissioner, Ulhasnagar Municipal Corporation,
AIR 2000 SC 2272, the apex Court held that if the term of
a tender is deleted after the players entered into the
arena, it is like changing the rules of the game after it had
begun and, therefore, if the Government or the Municipal
Corporation was free to alter the conditions, fresh process
of tender was the only alternative permissible.
32. In West Bengal Electricity Board v. Patel
Engineering Co. Ltd, AIR 2001 SC 682, the apex Court
held that tenders were invited only from the bidders who
have satisfied in pre-qualification and the instructions to
the bidders issued by the employer required the bidder to
fill in rates and prices for all items of the works described
in the bill of quantities both in figures and words and as
such errors been confined to a case of either recording in
U.S Dollar equivalent to the unit rates already noted in
Indian Rupee or vice versa, the mistakes could have been
corrected. More so, if a mistake has been committed may,
be unilateral or mutual, but it is always unintentional. If
it is intentional, it ceases to be a mistake.
33. In Central Coalfields Ltd v. SLL-SML (Joint
Venture Consortium), AIR 2016 SC 3814, the apex Court
held that rejection of bid not accompanied by bank
guarantee in format prescribed in bid documents treating
it as non-responsive in view of the General Terms and
Conditions governing bidding process, is not arbitrary,
unreasonable or perverse. Therefore, it is not open to
judicial review.
34. In Ramana Dayaram Shetty v. The
International Airport Authority of India, AIR 1979 SC
1628, the apex Court, while considering the terms of
contract, the interpretation, deed and construction, held
that on a proper construction what the notice required
was that only a person running a registered IInd Class
hotel or restaurant and having at least 5 years' experience
as such should be eligible to submit a tender. This was a
condition of eligibility and it is difficult to see how this
condition could be said to be satisfied by any person who
did not have five years' experience of running a IInd hotel
or restaurant. The test of eligibility laid down was an
objective test and not a subjective one. Therefore, the
tender cannot be accepted of a person, who does not
fulfill the requisite qualification.
35. Therefore, in view of the law laid down by the
apex Court, as discussed above, this Court, adhering to
the view taken by the apex Court and applying the same
to the present context, makes it clear that the petitioner
had never raised any objection to the amendment to
clause 5.2, even though the same was placed in the
website on 08.04.2022 and, more so, while participating
in the process of tender, that is to say in the financial bid
evaluation, he had also raised no objection. As a matter of
fact, by such amendment no prejudice has also been
caused to the petitioner, in view of the fact that 09
successful bidders were actually qualified for 41 items out
of 221 items enlisted in the bid document and, thereby,
the purpose of inviting the tender for supply of essential
veterinary items was not fulfilled, as a consequence
thereof, the tender committee, prior to opening of the
financial bid took a decision to amend clause 5.2 to
ensure more number of responsive bidders in the tender
process and to get the items at competitive price, which
the petitioner knows very well when the matter was
placed in the website on 08.04.2022, and in such
process, during the technical bid evaluation though the
petitioner had qualified for 26 items, after clauses of the
bid were relaxed it was observed that the petitioner
qualified for 160 items and, thereby, got maximum
advantages amongst the bidders. Therefore, the petitioner
is in no way adversely affected by such relaxation.
36. Considering from the other angle, it appears
that e-tender notice was issued inviting bid documents
from eligible bidders for "supply of Veterinary
Instruments, Equipments, Chemicals, Reagents & Media
etc. for the year 2021-22". In course of hearing, this
Court made a query with regard to "for the year 2021-22".
In reply, learned Advocate General, appearing for the
State-opposite parties, contended that since the tender
process was started on 29.12.2021 and it is still
continuing, the mention of "for the year 2021-22", has no
meaning. But fact remains, the year 2021-22 should have
been clarified as to if the same stands for a "calendar
year"; or "financial year"; or "assessment year"; or a year
as applicable for the tender process. In absence of any
such specific meaning attached to "for the year 2021-22",
if normal presumption would be drawn, that the said
period relates to a financial year, then it starts from
01.04.2021 and ends on 31.03.2022. Since the tender
process is continuing beyond this period, the tender call
notice cannot sustain in the eye of law. If the year is
assumed to be a calendar year, which remains from 1st of
January to 31st of December, the said period has also
been over. Therefore, in normal parlance, wherever the
word "year" or the word "month" is used, it is to be
understood that the year of the month is to be reckoned
according to British calendar.
37. In the above context, it is worthwhile to
mention, in Section 3 of the Converts' Marriage
Dissolution Act (21 of 1866), the "year" has to respectively
mean "month" according to the British calendar. As per
Section 3 (66) of General Clauses Act (10 of 1897), the
"year" means, a year reckoned according to British
calendar. As per Section 3 (n) of the Coffee Act (7 of
1942), "year" means the period of twelve months
beginning with the first day of July and ending with
thirtieth day of June next following. According to Section
2 (13) of the Electricity (Supply) Act (54 of 1948), the
"year", in relation to the Board or a Generating Company,
means, the year commencing on the 1st day of April. As
per Section 2 (i) of the Chartered Accounts Act (38 of
1949), "year" means, the period commencing on the 1st
day of April of any year and ending on the 31st day of
March of the succeeding year. As per Section 2 (k) of the
Central Sales Tax Act (74 of 1956), "year" in relation to a
dealer, means the year applicable in relation to him under
the general sales tax law of the appropriate State, and
where there is no such year applicable the financial year.
As per Section 2 (g) of the Sugar (Regulation of
Production) Act (55 of 1961), "year" means, the year
beginning on the first day of November and ending on the
thirty-first day of October in the following year. Similarly,
as per Section 2 (f) of Food Corporation Act (37 of 1964),
year means the financial year.
38. Therefore, looking at the meaning of the year as
defined under different provisions of law, this Court is of
the considered view that, if the period of 2021-22 is
already over, and the tender process, which was started
at the end of the year, is still continuing, it can be safely
construed that to favour some persons such an attempt
has been made by the State functionaries. Meaning
thereby, if it relates to a financial year, the process of
tender should have been started before the month of
March, 2021 and it should have been completed by end of
March, 2021. But tender being invited in the month of
December, 2021 for the year 2021-22 and till end of April,
2022 the process has not been concluded, that speaks
volume on the action taken by the State functionaries, for
which the government should be careful in future.
Furthermore, in one hand, argument has been advanced,
that the tender was invited for supply of essential
commodities which cannot wait and should be supplied
with all promptitude, but, on the other hand, delay has
been caused at the level of the State authorities in
inviting the tender. Therefore, it clearly indicates that it
has been done to favour somebody, who is supplying the
essential commodities, so that the continuity of supply
should be made by such person. Thereby, this Court is of
the considered view that the Government should be very
careful while inviting tender for a particular year, may be
financial year or may be British calendar year, and the
tender process should have been started before the start
or at the very beginning of the year itself, instead of
waiting till the end of the year. Therefore, we hope and
trust that Government should adhere to the principle, in
letter and spirit.
39. Be that as it may, keeping in view the fact that
the tender in question was invited for supply of essential
commodities, since amendment to clause-5.2 was made
keeping larger public interest in mind and the same was
meant for benefit of all the bidders, including the
petitioner, and that such decision of tender committee
amending clause-5.2 was not objected to by the petitioner
either when it was published in the website or when it
participated during the process of evaluation of financial
bid, this Court is of the considered view that the writ
petition at the behest of the petitioner does not warrant
interference of this Court in exercise of jurisdiction under
Article 226 of the Constitution of India.
40. In view of the foregoing discussions, this Court
does not find any merit in this writ petition, which is
accordingly dismissed. No order as to costs.
..................................
DR. B.R. SARANGI,
JUDGE
SAVITRI RATHO, J. I agree.
..................................
SAVITRI RATHO,
JUDGE
Orissa High Court, Cuttack
The 12th May, 2022, Arun/GDS
