Orissa High Court
Kalinga Warriors Security ... vs State Of Odisha on 22 September, 2023
ORISSA HIGH COURT : CUTTACK
W.P.(C) No.33801 of 2022
In the matter of an application under Articles 226 and 227
of the Constitution of India, 1950.
---------------
Kalinga Warriors Security Service
represented by its partner
Sri Manas Jena
son of Madhabananda Jena
Plot No.202, Krishna Arcade
B.K. Road, District: Cuttack ... Petitioner
-VERSUS-
1. State of Odisha
represented by
Commissioner-cum-Secretary
Department of Health and Family Welfare
Government of Odisha
Bhubaneswar, District: Khurda
2. The Additional Chief Secretary
Department of Health and Family Welfare
Government of Odisha
Bhubaneswar, District: Khurda
3. The Collector & District Magistrate
Bhadrak
4. The Additional District Magistrate
Bhadrak
5. The Chief District Medical &
Public Health Officer
Bhadrak
6. M/s. Bhabani Security Agency
represented through its proprietor
Mr. Akshya Kumar Dash
Plot No.256/1081, Ground Floor
Sahapur, Bhadrak
7. Sarala Security & Facility Services
represented by partner
Mr. Bishnu Mohan Nayak
Plot No.A/5, Sahid Nagar
Bhubaneswar - 751 010 ... Opposite Parties
Counsel appeared for the parties:
For the Petitioner : M/s. Rakesh Behera,
Siddharth Goutam Das,
Advocates for the petitioner
For the Opposite Parties : Mr. Amiya Kumar Mishra,
Additional Government Advocate
for the opposite party Nos.1 to 5;
Mr. Kali Prasanna Mishra,
Senior Advocate with
M/s. Chittaranjan Pattnaik,
Riza Das, Krishna Mohapatra,
Advocates for the opposite party
No.6
M/s. Rabi Narayan Behera,
L.K. Padhi, S. Dora,
Advocates for the opposite party
No.7
P R E S E N T:
THE HONOURABLE DR. JUSTICE B.R. SARANGI
AND
THE HONOURABLE MR. JUSTICE MURAHARI SRI RAMAN
Date of Hearing : 13.09.2023 :: Date of Judgment : 22.09.2023
MURAHARI SRI RAMAN, J.--
THE CHALLENGE:
The petitioner, a security and manpower service
provider, laid challenge to the Letter No.12862, dated
18.11.2022 issued by the Chief District Medical & Public
Health Officer, Bhadrak addressed to M/s. Bhabani
Security Agency to accord consent along with declaration
to provide service on outsourcing basis under "Nirmal"
and Letter No.13126, dated 24.11.2022 calling upon
said M/s. Bhabani Security Agency to furnish
performance security deposit on acceptance of
assignment vide Annexure-6 series for undertaking work
in Request for Proposal: Outsourcing of Security Services
at Government Health Institutions being RFP Reference
No. Nirmal/Security Services/District: Bhadrak-
14/2020, dated 03.12.2020 (Annexure-8), invoking
provisions of Article 226/227 of the Constitution of
India.
THE FACTS:
2. Sri Manas Jena, contractor, for executing security and
manpower service under Executive Officer of Banki
Notified Area Council in the District of Cuttack, got
licence in the name and style "M/s. Kalinga Warriors
Security Services", At/P.O.: Basandhara, P.S.: Biridi,
Jagatsinghpur, issued by Licensing Officer under
Contract Labour (Regulation and Abolition) Act, 1970-
cum-District Labour Officer, Cuttack.
2.1. The Chief District Medical and Public Health Officer,
Bhadrak, the opposite party No.5, vide RFP Reference
No. Nirmal/Security Services/District: Bhadrak-
14/2020, dated 03.12.2020 (Annexure-8), invited
proposals from eligible agencies to undertake security
services at Government Health Institutions in Bhadrak
District. Pursuant to the Request for Proposal ("RFP", for
short) ten bidders including the petitioner and the
opposite party No.6-Bhabani Security Agency,
participated. Out of the ten bidders, eight bids were
found ineligible in the technical evaluation including
that of the present petitioner on the ground that
"submission of invalid labour license" vide Proceeding of
Committee Meeting for opening of technical bids for
outsourcing of security services under NIRMAL held on
18.12.2020 in the Office of the opposite party No.5.
2.2. M/s. Bhabani Security Agency, Bhadrak-opposite party
No.6 and M/s. L&K Services, Bhubaneswar were found
eligible in the Technical Bid evaluation and their
Financial Bids were considered for opening. Whereas the
opposite party No.6 was found to be L-2, M/s. L&K
Services was declared L-1 in the Financial Bid opened on
30.03.2021. M/s. L&K Services declined to work. As a
consequence, letter of acceptance of work order was
issued to the opposite party No.6, which was accepted
on 08.06.2021. Subsequently, on the opposite party
No.6 depositing the performance security and submitting
list of manpower, it was requested to sign the agreement
to work. However, the opposite party No.5 issued a
notice of cancellation of tender dated 18.08.2021.
2.3. Challenging said notice of cancellation dated
18.08.2021, the opposite party No.6 approached this
Court in W.P.(C) No. 30911 of 2021, which came to be
disposed off vide Order dated 08.04.2022 wherein the
notice of cancellation of tender dated 18.08.2021 on the
ground "due to unavoidable circumstances" was
quashed with an observation that "It is open to opposite
party No.2-Chief District Medical & Public Health
Officer, Bhadrak (in the instant case opposite party No.5)
to take necessary steps in accordance with law".
2.4. While so, allegations of irregularities being received
against the opposite party No.5, the Additional District
Magistrate-opposite party No.4 was appointed by the
Collector and District Magistrate-opposite party No.3 to
enquire into the alleged irregularities vide Order No.
5487, dated 06.07.2021. Accordingly, enquiry being
conducted, the opposite party No.4 submitted report
dated 29.07.2021 by pointing out deficiencies in the
documents pertaining to the experience certificate(s)
furnished by the opposite party No.6. It transpires from
the report that the experience certificate submitted by
M/s. Bhabani Security Agency-opposite party No.6 "has
been entertained after the period of receipt of tender
papers which was not ipso facto available at the time of
scrutiny and said experience certificate seems to be not
genuine". Therefore, the opposite party No.4 suggested
for cancellation of tender awarded in favour of the
opposite party No.6 and the opposite party No.5 was
requested to go for fresh tender.
2.5. Acting upon the enquiry report of the opposite party
No.4, notice of cancellation of tender dated 18.08.2021
was issued by the opposite party No.5 and fresh tender
was floated vide Advertisement No. 10/2021, dated
23.09.2021. The petitioner has participated in the said
fresh tender. Being unsuccessful, and the award of
tender being declared in favour of the opposite party
No.6-Bhabani Security Agency by the opposite party
No.5, the petitioner knocked the doors of this Court in
the present writ petition with the grievance that the
opposite party No.5 in awarding the tender in favour of
the Opp. Party No.6 had not acted in the interest of the
State as well as public interest, rather acted with mala
fide. The petitioner sought to impress upon that as an
inquiry under Section 15 of the Odisha Civil Services
(Classification, Control and Appeal) Rules, 1962 has
been initiated against the opposite party No.5 by the
Health and Family Welfare Department vide
Memorandum dated 14.12.2021, the said Authority
could not be part of the Tender Committee.
2.6. During pendency of the writ petition, and when the
matter was adjourned at the behest of the Additional
Government Advocate for obtaining necessary
instructions, the petitioner has pressed petition being
I.A. No.3711 of 2023, wherein this Court passed the
following Order on 20.03.2023:
"*** This Court vide Order dated 21.12.2022 issued notice
to the opposite parties and on the request of learned State
Counsel the matter was adjourned to 05.01.2023.
Thereby, when the matter is pending before this Court,
the opposite party-authority cannot and could not have
settled the tender in favour of the opposite party No.6 by
executing the agreement on 16.03.2023.
In the above view of the matter, there shall be stay
operation of the agreement dated 16.03.2023 executed
between the opposite party No.6 and the authority, till the
next date."
2.7. Said interim order dated 20.03.2023 has been extended
on subsequent dates and in the meantime pleadings
were completed.
RIVAL CONTENTIONS:
3. Counter-Affidavit has been filed by the opposite party
Nos.3 to 5 by contending that the Tender Committee
comprising of District Accounts Manager, National
Health Mission; District Programme Manager, National
Health Mission; Additional District Public Health Officer
(Family Welfare); District Medical Officer (MS)-cum-
Superintendent, District Headquarters Hospital,
Bhadrak; District Public Health Officer, Bhadrak;
Additional District Public Health Officer (VBD);
Additional District Public Health Officer (TB); Additional
Project Director, Finance DRDA on representative of
Collector & DM; Chief District Medical & Public Health
Officer, Bhadrak, considered papers of ten agencies who
participated in the tender and while finding bids of eight
participants "disqualified", two agencies, namely, M/s.
L&K Services and M/s. Bhabani Security Agency-
petitioner were "qualified". The proceeding was signed by
all the Members of Tender Committee. Then the work
plan was presented and Financial Bid was opened on
30.03.2021. M/s. L&K Services secured 44.50 marks
when M/s. Bhabani Security Agency got 42.7 marks. As
both the bidders quoted the same price in the Financial
Bid, M/s. L&K Services and M/s. Bhabani Security
Agency were selected as L-1 and L-2 respectively. All the
Members of the Tender Committee signed it and the
same was duly approved by the Collector & District
Magistrate, Bhadrak. It is asserted that the entire
exercise was done strictly following the RFP.
3.1. It is further clarified that the inquiry under Section 15 of
the Odisha Civil Services (Classification, Control and
Appeals) Rules, 1962 has been initiated against the
opposite party No.5 on the basis of allegation which were
not true. After selection of L-1 and L-2 bidders, the L-1
bidder was asked to give an undertaking that he will
work in 5 (five) Districts including Bhadrak. As he failed
to give an undertaking, L-2 (M/s. Bhabani Security
Agency) was selected for awarding the work order and
the file was sent to the opposite party No.3 for approval
on 11.05.2021. By providing material particulars as to
conduct of enquiry into the irregularities committed by
the opposite party No.5 and taking note of reports of the
Chartered Accountant in respect of the opposite party
No.6, it has been affirmed that "the allegation to the
effect that the opposite party No.5 has awarded the
tender in favour of the opposite party No.6 in a mala fide
manner is completely false".
3.2. In the Counter-Affidavit filed by the opposite party Nos.3
to 5 clear stand is taken that after receipt of statement
dated 17.08.2022 from M/s. Bhabani Security Agency
and perusal of Judgment of this Court rendered in the
case of Gangadhar Jena Vrs. State of Odisha, 2017 (II)
ILR-CUT 763 and Order dated 08.04.2022 of this Court
passed in Bhabani Security Agency, W.P.(C) No.30911 of
2021, it has been found that the experience certificate
submitted by M/s. Bhabani Security Agency was
genuine and said Agency worked in District
Headquarters Hospital, Bhadrak from 2008 till
17.07.2013.
3.3. Justification for action taken by the Tender Committee
does find place in the Counter-Affidavit in the following
manner:
"The decision to award the tender to the Opp.Party No.6
was taken by the Tender Committee after considering the
following reasons:
a. Regarding signature of tender committee member on
the experience certificate and body of forwarding
letter, the members sign on the checklist page of the
documents submitted by the bidders. Tender
Committee members have not signed on the
experience certificate of any of the bidders as it is
practically not possible to sign on all the pages.
b. The overwriting that was detected was not found in
the initial scrutiny.
c. Tender paper were opened on 18.12.20 in presence
of all tender committee members and the
representative of the agency and marks were given
as per the documents available. So there is no
possibility of inclusion of any document after
opening of technical bid.
d. In the inquiry conducted by opposite party No. 4.
opportunity of hearing was not given to the agency
(Opp. Party No.6) and views of other tender
committee members including that of Opp Party No.5
was not taken.
e. In the DAM report the auditor conducting audit on
the financial activities of Bhabani Security Agency
did not find any irregularities or have given any
adverse remarks.
f. As per RFP bidders can be disqualified only if he is
black marked. There is no clause in RFP to
disqualify a bidder if there is recovery or deduction
from their dues.
Taking into consideration the above facts tender
committee decided to give work order in favour of M/s.
Bhabani Security Agency and the file was sent to opposite
party No.3 for approval. The opposite party No.3 accepted
the decision of the Tender Committee. Then work order
was issued vide Letter No.12862, dated 18.11.2022 and
Letter No.13120, dated 24.11.2022 was issued after the
agency accepted the work order."
3.4. M/s. Bhabani Security Agency, Bhadrak-opposite party
No.6 filed Counter-Affidavit on 13.04.2023 by
contending that the petitioner is not entitled to any relief
from this Court inasmuch as its bid was declared
"disqualified" by the Technical Evaluation Committee on
18.12.2020 and around two years thereafter filed the
writ petition on 09.12.2022 questioning the consent of
the opposite party No.6 and award of work in its favour.
3.5. It has also been explained by the opposite party No.6 in
its Counter-Affidavit that on the earlier occasion,
violating principles of natural justice, and ascribing terse
reason "due to unavoidable circumstances", the
tendering authority cancelled the Tender Notice
No.14/2020, dated 03.12.2020 on 18.08.2021, against
which this opposite party carried the matter to this
Court in W.P.(C) No.30911 of 2021. Vide Order dated
08.04.2022, this Court following the ratio of Gangadhar
Jena Vrs. State of Odisha, 2017 (II) ILR-CUT 763 and
Sical Logistics Ltd. Vrs. Mahanadi Coalfields Ltd., 2017
(II) ILR-CUT 1035, while setting aside the decision of
cancellation of tender notice dated 18.08.2021, observed
that it is open to the Chief District Medical & Public
Health Officer, Bhadrak to take necessary steps in
accordance with law.
3.6. It is brought to the notice of this Court by the opposite
party No.6 that the tender inviting authority had issued
the show cause notice to the opposite party No.6, to
which it responded and submitted reply/defence
statement proffering the details therein which got
considered by the Tender Committee on 16.09.2022. The
facts relating to enquiry conducted by the Additional
District Magistrate, Bhadrak being placed before the
Members, the same were discussed in the Meeting of
Tender Committee held on 16.09.2022 at 11.00 AM (vide
Annexure-G/5 of the Counter-Affidavit filed by the
opposite party Nos.3 to 5) and said Committee accepting
the genuineness of the experience certificate considered
that the opposite party No.6-Bhabani Security Agency
had, in fact, worked from 08.10.2007 to 30.06.2014 with
the District Headquarter Hospital, Bhadrak. Having
considered the bid of the opposite party No.6 in proper
perspective, the work order was decided to be issued in
favour of M/s. Bhabani Security Agency. Such decision
of the Tender Committee was approved by the Collector,
Bhadrak. In terms of the decision of the Tender
Committee, the Letter No. 12862, dated 18.11.2022 and
the Letter No. 13120, dated 24.11.2022 under
Annexure-6 Series to the writ petition were issued by the
opposite party No.5, Chief District Medical & Public
Health Officer, Bhadrak in favour of the opposite party
No.6, who was requested to submit letter of consent and
deposit the performance security. Accordingly, the
opposite party No.6 complied with the terms of said
letters of the opposite party No.5. Subsequently, on
16.03.2023, agreement has been executed between the
opposite party No.6 (M/s. Bhabani Security Agency) and
the opposite party No.5 (Chief District Medical & Public
Health Officer, Bhadrak).
ARGUMENTS:
4. This Court at the stage of admission, on consent of all
the parties heard the matter finally as the pleadings
have been completed. Heard Sri Rakesh Behera,
Advocate for the petitioner; Sri Amiya Kumar Mishra,
Additional Government Advocate for the opposite party
Nos.1 to 5; Sri Kali Prasanna Mishra, Senior Advocate
with Sri Chittaranjan Pattnaik, Advocate for the opposite
party No.6; and Sri Rabi Narayan Behera, Advocate for
the opposite party No.7.
5. Sri Amiya Kumar Mishra, learned Additional
Government Advocate and Sri Kali Prasanna Mishra,
learned Senior Advocate along with Sri Chittaranjan
Pattnaik, learned Advocate appearing for the opposite
party No.6 made valiant attempt to persuade this Court
that the relief sought for by the petitioner does not invite
exercise of power of judicial review invoking provisions of
Article 226/227 of the Constitution of India inasmuch as
the petitioner has no locus standi to institute the present
proceeding. The petitioner having participated in the
tender process, after being unsuccessful in the Technical
Bid evaluation itself, it could not question the propriety
of the decision taken in the Meeting of the Technical
Committee comprising as many as nine Members held
on 16.09.2022.
5.1. It has been urged by the counsel for the opposite parties
that it has been admitted and accepted at paragraph 4 of
the writ petition that "the petitioner was disqualified in
the Technical Bid" in connection with Advertisement
No.14, dated 03.12.2020 and it also participated in the
tender process in fresh advertisement No.10/2021,
dated 23.9.2021 (paragraph 6 of writ petition). It has not
laid challenge as to rejection of its Technical Bid. In
consideration of Bids of ten participants, only two
namely M/s. L&K Services and M/s. Bhabani Security
Agency were found eligible for opening of the Financial
Bids. On opening the Financial Bids, M/s. L&K Services
was declared L-1. Since it could not comply with the
terms, L-2, i.e., M/s. Bhabani Security Agency was
offered to submit its consent and furnish performance
security, which it did.
5.2. In opposition to the contention of Sri Rakesh Behera,
learned Advocate for the petitioner that Tender
Committee Members reviewed only one experience
certificate of M/s. Bhabani Security Agency and having
held it to be genuine, allowed to open its Financial Bid,
leaving very many other experience certificates adduced
by the opposite party No.6 untouched, by way of
Affidavit dated 24.08.2023 the opposite party Nos.3 to 5
submitted as follows:
"6. That it is respectfully submitted that the opposite
party No.6 in Form-T4 submitted the following
documents alongwith his technical bid:
i) 16 documents regarding experience in
Hospitals for the financial year 2017-18.
ii) 38 documents regarding experience in
organisations other than hospitals for the
financial year 2017-18.
iii) 11 documents regarding experience in
hospitals for the financial year 2018-19.
iv) 31 documents regarding experience in
hospitals for the financial year 2018-19.
v) 11 documents regarding experience in
hospitals for the financial year 2019-20.
vi) 58 documents regarding experience in
hospitals for the financial year 2019-20.
***
7. That the documents filed by the opposite party No.6
in the Technical Bid along with other relevant
documents, are voluminous in nature and there is no
scope for the Tender Committee to verify the veracity
of each and every documents and in the Reference
for Proposal approved by the Government, there is
also no guideline to verify such documents. The
veracity of all the documents filed by all the bidders
in the Technical Bid is not verified as per the
approved Reference for Proposal and also it is not
practically possible for the Tender Committee to very
each and every document."
5.3. Referring to paragraph 10 of the said affidavit, Sri Amiya
Kumar Mishra, learned Additional Government Advocate
further submitted that when L-1, i.e., M/s. L&K Services
failed to comply with the terms, it was decided to award
work to L-2, i.e., the opposite party No.6 as per Request
for Proposal, whose bid was approved by the Collector
and District Magistrate, Bhadrak. The inquiry by the
District Accounts Manager, National Health Mission is
not prior to such approval, report of said inquiry being
received on 31.05.2021. Sri Mishra further submitted
that in such view of the matter, the ratio laid down in
Gangadhar Jena Vrs. State of Odisha, 2017 (II) ILR-CUT
763 while exercising judicial review in the matter of
Government contracts, the primary concern of the Court
is to see whether there is any infirmity in the decision
making process or whether it is vitiated by mala fide,
unreasonableness or arbitrariness. In the instant case,
the experience certificate furnished by M/s. Bhabani
Security Agency-opposite party No.6 was found to be
genuine one in the Meeting of the Tender Committee
held on 16.09.2022. There being no serious irregularity
or illegality in the entire tender process, the writ petition
is liable to be dismissed.
5.4. Sri Rakesh Behera, learned Advocate for the petitioner
vehemently contended that the opposite party No.5-Chief
District Medical and Public Health Officer, as a Member
of the Tender Committee acted with bias and his mala
fide action in awarding the work to the opposite party
No.6-M/s. Bhabani Security Agency is ex facie clear from
the record. Notwithstanding the fact that vide
communication dated 07.08.2021 said opposite party
No.5 was directed by Special Secretary (PH) to
Government of Odisha in Health and Family Welfare
Department to attend inquiry in connection with
irregularities in the tender process for selection under
"Nirmal" programme to undertake the security services
for District Headquarter Hospital and different
Community Health Centres of Bhadrak District, the
opposite party No.5 being a Member of Tender
Committee acted with material irregularity.
5.5. Per contra, to this allegation, it is submitted by Sri Amiya
Kumar Mishra, learned Additional Government Advocate
that aforesaid summons was on account of mere
enquiry, but that is not conclusive proof of illegality or
irregularity. Apart from the Chief District Medical and
Public Health Officer, eight other Members were also
part of the Committee. Therefore, it cannot be said that
there was bias in the entire tender process, particularly
so when the petitioner had participated in the said
process. Belated objection to the constitution of Tender
Committee cannot and should not be entertained.
Furthermore, when mala fide and bias have been alleged
against the Chief District Medical and Public Health
Officer, without making him party in person (by name),
such an averment cannot be examined by this Court. No
specific irregularity could be demonstrated by the
petitioner as to the conduct of the tender process in
relation to the Government approved Request for
Proposal. It is also pointed out by Sri Mishra that the
alleged false experience certificates by the petitioner
relate to other than "experience in hospitals", which
would have no impact on the nature of work in question.
Therefore, in the present fact-situation, the writ petition
being devoid of merit, deserves dismissal with cost.
DISCUSSIONS AND ANALYSIS:
6. This Court takes up the first issue as to whether the
petitioner has locus standi to maintain this writ petition.
When the petitioner has admitted at paragraph 6 of the
writ petition that it "participated in the fresh
advertisement" being Advertisement No.10/2021, dated
23.09.2021, it shows its conduct. The petitioner appears
to have not challenged the constitution of the Tender
Committee which comprised of nine Members including
the Chief District Medical and Public Health Officer-
opposite party No.5. It waited till finalization of Financial
Bid, wherein M/s. L&K Services became L-1 and M/s.
Bhabani Security Agency-opposite party No.6 was
declared L-2. Since L-1 could not comply with the terms,
L-2 was offered the option to undertake the work, which
it did. After the opposite party No.6 was issued with
Letter dated 24.11.2022 requesting it to deposit
performance security, the petitioner came up before this
Court alleging that the opposite party No.5 has acted
with mala fide. In the opinion of this Court the
petitioner, having participated in the tender process with
eyes wide open and remained contended with his Bid
being declared "disqualified", cannot challenge the
successful bid on the ground of bias or mala fide by the
one of the Members of the Tender Committee. This
situation arises from the principle of estoppel, which
prevents a party from asserting a claim or right that
contradicts what they have previously stated or done.
Estoppel is a legal doctrine that aims to prevent injustice
by holding parties accountable for their previous
statements or actions. It operates as a bar to a party's
ability to make assertions or claims that are inconsistent
with their prior conduct. In this case, by not challenging
its own rejection of bid, the petitioner is effectively
precluded from challenging the successful bid on
grounds of bias or mala fide. The principle of estoppel is
based on fairness and equity. It ensures that parties are
held to their previous positions and prevents them from
taking advantage of their own prior actions or omissions.
If the petitioner is allowed to challenge the successful
bid after accepting its rejection or disqualification, it
would undermine the integrity of the tender process and
create uncertainty and instability in contractual
relationships.
6.1. On the inability of L-1 (M/s. L&K Services,
Bhubaneswar) to perform the work, L-2 was offered to
give consent which it did and furnished performance
security by making deposit of required amount. This
would not in any way affect adversely to the claims of
the petitioner, inasmuch as its Technical Bid was
declared "disqualified", which it did not question at any
stage.
6.2. It is important to note that estoppel is not an absolute
rule and can be subject to exceptions. For example, if
there is evidence of fraud or misrepresentation by the
Tender Committee, it may be possible for the petitioner
to challenge the successful bid on the ground of bias or
mala fide. However, in the absence of such exceptional
circumstances, estoppel would generally apply to
prevent such challenges. Here in this case, the petitioner
remained satisfied when its bid was rejected on
participation in pursuance of the fresh advertisement
dated 23.09.2021.
6.3. In Sterling Computers Ltd. Vrs. M & N Publications Ltd.,
(1993) 1 SCC 445 = (1993) 1 SCR 81 it has been held:
"Under some special circumstances a discretion has to be
conceded to the authorities who have to enter into
contract giving them liberty to assess the overall situation
for purpose of taking a decision as to whom the contract
be awarded and at what terms. If the decisions have
been taken in bona fide manner although not strictly
following the norms laid down by the Courts, such
decisions are upheld on the principle laid down by Justice
Holmes, that Courts while judging the constitutional
validity of executive decisions must grant certain measure
of freedom of 'play in the joints' to the executive."
6.4. In conclusion, when the petitioner has not laid challenge
against the decision of the Tender Committee whereby
its bid was rejected, it is estopped from challenging the
successful bid on the specious plea of possible bias or
mala fide of one of the Members of the Tender
Committee, which comprised eight other Members.
6.5. Under the above circumstances, this Court accedes to
the objection of Sri Amiya Kumar Mishra, learned
Additional Government Advocate that the petitioner,
after participating in the tender process remained
contended without questioning the constitution of
Tender Committee. It has come forward to challenge the
decision to extend the benefit of execution of work
enumerated in the fresh advertisement dated
23.09.2022 to the L-2 bidder-M/s. Bhabani Security
Agency, after inability was expressed by the L-1 bidder,
namely M/s. L&K Services.
6.6. Thus, the petitioner has no locus standi to maintain the
present writ petition at the belated stage particularly
when its Technical Bid got rejected on 18.12.2020 for
want of valid labour licence on verification by as many
as nine Members of the Tender Committee. Having not
raised any objection at the initial stage, the petitioner is
precluded from raking up the issue after L-2 bidder
became successful to execute on the expression of
inability to execute the work by the L-1 bidder.
7. Sri Rakesh Behera, learned counsel for the petitioner
confined his argument to the point raised in the Written
Note of Arguments filed on behalf of the petitioner on
04.08.2023. Reading of said Written Note would go to
indicate that the petitioner seeks to put forth his
grievance by alleging that fraud has been committed by
the opposite party No.6 by furnishing "forged
documents" and the Chief District Medical and Public
Health Officer-opposite party No.5 should not have been
the Member of the Tender Committee as he is facing
enquiry and proceeding under Rule 15 of the Odisha
Civil Services (Classification, Control and Appeal) Rules,
1962. It is contested by learned Additional Government
Advocate that mere enquiry into an allegation of
irregularity will not disentitle the opposite party No.5 to
be a Member of the Tender Committee, more so when
the Committee was constituted with eight other
Members. The petitioner has not brought forth any
allegation against any other Member of the Tender
Committee and has not placed any material particulars
leading to concrete proof of bias or mala fide.
7.1. At this juncture it is noteworthy to quote from the
Written Note of Argument filed by the petitioner:
"That before deciding to issue work order in favour of
opposite party No.6, the opposite party No.3 had
instructed through a marginal order to District Accounts
Manager (DAM), Bhadrak to find out if any financial
irregularities are committed by the opposite party
No.6. The DAM, Bhadrak submitted report showing
certain irregularities by the opposite party No.6. However,
the opposite party No.5 did not place the said report
before the opposite party No.3 and proceeded to award
work order in favour of the opposite party No.6, which is
illegal and arbitrary."
7.2. To this, it is apt to refer to paragraph 10 of the Affidavit
dated 24.08.2023 filed at the behest of the opposite
party Nos.3 to 5, which is to the following effect:
"That in reply to the averments made in paragraph 8 of
the Rejoinder-Affidavit, it is humbly submitted that as per
decision of the Tender Committee, the bid submitted by
the opposite party No.6 was approved by the Collector &
District Magistrate, Bhadrak vide Annexure-A/5 series.
As per RFP, when L-1 was not eligible, it was proposed to
give work order to L-2 i.e. the opposite party No.6. Hence,
the inquiry by DAM is not prior to approval and the
DAM enquiry report was received on 31.05.2021
vide Anenxure-D/5. Hence the ratio decided in case of
Gangadhar Jena Vrs. State of Odisha passed in W.P.(C)
No.19914 of 2016 [2017 (II) ILR-CUT 763] is applicable in
this case, which was mentioned by the Hon'ble High
Court in the order dated 08.04.2022 passed in W.P.(C)
No.30911 of 2021 (Annexure-2 series). The opposite
party No.6 was already approved as L-2 and in the
inquiry report submitted by the DAM, Bhadrak,
there was no serious financial irregularity to
disqualify the opposite party No.6. As per RFP only
the bidders, who are black marked will be disqualified.
The eligibility criteria for the bidders is clearly mentioned
in the RFP vide Clause No.2.2 of Section 2 vide Annexure-
8 to the writ petition."
7.3. In order to appreciate the above explanation offered by
the opposite party Nos.3 to 5, it is pertinent to refer to
"Eligibility Criteria" contained in Clause 2.2 of Section
2-- "Instructions to Bidders", which are extracted herein
below in extenso:
"The bidder should fulfil the following Eligibility Criteria:
I. Should be registered in India as a Company, Firm,
Society or a Trust.
II. Consortium is not allowed.
III. Should have an average Annual Tornover of Rs. 3
Crores or more during the last three financial years
(2017-18, 2018-19 & 2019-20)
IV. Should have minimum 3 years of working experience
in the field of Security services In Public/Private
sector [State Govt./Govt. of India Institution/Govt.
undertaking/Corporation/ Banks/ Govt. & Pvt.
Hospitals/ Pvt. Organizations) on the stipulated
date of bid submission.
V. Should have enrolled at least 100 security guards as
on date of bid submission. Work order / contract
copies must be submitted in support of the no. of
security guards deployed as per Format T4
VI. The Bidder must not have been blacklisted either
by the tender inviting authority or by any State Govt.
or Govt. of India organization. The agency shall
submit undertaking regarding the same on Non-
Judicial Stamp paper of Rs. 20/- as per Format T6
VII. Must have labour registration certificate
VIII. Must have valid licence to engage in the business of
Pvt. Security Agency from Home Dept., Govt. of
Odisha. However, if the validity of the license is
expired, then the bidder in their technical bid has to
furnish the copy of the application letter for renewal
to Home Dept. Govt. of Odisha alongwith
acknowledgement proof of the same. But the bidder
must have to furnish the valid renewal certificate at
the time of signing of contract in case it gets selected
for award of contract.
IX. Must have ISO 9001 certification
X. Must be registered under EPF
XI. Must be registered under ESI
XII. Must have a PAN
XIII. Must have GST registration number."
7.4. In the case of Afcons Infrastructure Limited Vrs. Nagpur
Metro Rail Corporation Limited, (2016) 16 SCC 818, the
Hon'ble Supreme Court of India has expounded by
observing that the decision-making process in accepting
or rejecting the bid should not be interfered with.
Interference is permissible only if the decision-making
process is arbitrary or irrational to an extent that no
responsible authority, acting reasonably and in
accordance with law, could have reached such a
decision. It has been cautioned that Constitutional
Courts are expected to exercise restraint in interfering
with the administrative decision and ought not to
substitute their view for that of the administrative
authority. Mere disagreement with the decision-making
process would not suffice.
7.5. It may be noted that when fraud is alleged against the
public officer/authority to have committed malfeasance
and misfeasance, onus rests heavily on the person who
asserts. It is fairly well-settled that "fraud" has a definite
meaning in law and it must be proved and not merely
alleged and inferred. Reference can be had to Harjas Rai
Makhija Vrs. Pushparani Jain, (2017) 1 SCR 1. Vide,
Satish Chandra Chatterji Vrs. Kumar Satish Kantha Roy,
AIR 1923 PC 73 = XXVIII Calcutta Weekly Notes 327 it
has been well-nigh established that charges of fraud and
collusion must, no doubt, be proved by those who make
them-- proved by established facts or inferences
legitimately drawn from those facts taken together as a
whole. Suspicions and surmises and conjectures are not
permissible substitutes for those facts or those
inferences, but that by no means requires that every
puzzling artifice or contrivance resorted to by one
accused of fraud must necessarily be completely
unravelled and cleared up and made plain before a
verdict can be properly found against him. If this were
not so, many a clever and dexterous knave would
escape.
7.6. Analysis of the evidence on record would transpire that
the petitioner by way of Rejoinder-Affidavit dated
02.05.2023 enclosed documents obtained under the
Right to Information Act, 2005, which pertain to
experience certificates of M/s. Bhabani Security Agency,
opposite party No.6, issued by Organisations like St.
Mary's School, District Fisheries and Management
Society of Dhamara Fishing Harbour. Relying such
documents Sri Rakesh Behera, learned Advocate for the
petitioner asserted that these organisations have denied
to have engaged the petitioner. Nonetheless, Affidavit
dated 24.08.2023 in opposition to said contention came
to be filed by the opposite party Nos.3 to 5 by affirming
that though the Tender Committee undertook
verification of experience certificates, but being
voluminous in nature, there was little scope to examine
the veracity of each and every document furnished by
bidders. Said Affidavit contained document at Annexure-
K/5 with respect to "past experience in security services
during the last three years" in Form T4 furnished by the
petitioner, which was a requirement under Clause 2.6(d)
of the Request for Proposal to furnish along with
"Technical Proposal". Said Form contained two
categories namely "Experience in Hospitals" and
"Experience in Other Organisations (Other than
Hospitals)". None of the experience certificate furnished
in the category of "Experience in Hospitals" has been
demonstrated by the petitioner to have been fake or
obtained by practicing fraud. Thereby there is no scope
also to hold that the decision of the Tender Committee,
which comprised of nine Members including the Chief
District Medical and Public Health Officer-opposite party
No.5, was tainted with bias in favour of M/s. Bhabani
Security Agency, which was declared L-2.
7.7. Notice Inviting Proposal being RFP No.Nirmal/Security/
Bhadrak/14/2020, dated 3rd December, 2020 which is
enclosed as Annexure-8 to the writ petition, shows that
the scope of Request for Proposal involves "to provide
security services in DHH, SDHs, CHCs, PHCs of
Bhadrak District". Clause 2.6(a) of Section 2 of Request
for Proposal requires bidders to submit in Cover A
"Technical proposal for Security Services at Health
Facilities, Bhadrak District/Office of the CDM&PHO,
Bhadrak" and Cover B "Financial Proposal for Security
Services at Health Facilities, Bhadrak District/Office of
the CDM & PHO, Bhadrak". Clause 2.6(d) which
specifies "Content of the Proposal" inter alia requires
"T4-- Relevant Experience Details in managing security
services in State Govt./Govt. of India Institution/Govt.
Undertaking/Corporation/Banks during the last three
years." From the above analysis it is quite clear that
there was no allegation of fraud or deception or falsity in
the documents related to experience certificates
furnished by the petitioner pertaining to hospital
services. Therefore, no infirmity is attached to the
decision taken by the Tender Committee.
7.8. During the hearing of this case, it is pointed out to the
counsel for the petitioner that when scurrilous attack
has been made against public authority like the Chief
District Medical and Public Health Officer-opposite party
No.5, as to why said authority is not impleaded as party
to this proceeding in his personal capacity. No answer
could be given by the counsel for the petitioner.
7.9. The issue of 'malus animus' was considered in Tara
Chand Khatri Vrs. Municipal Corporation of Delhi, AIR
1977 SC 567, wherein the Supreme Court has held that
the High Court would be justified in refusing to carry on
investigation into the allegation of mala fides, if
necessary particulars of the charge making out a prima
facie case are not given in the writ petition and burden
of establishing mala fide lies very heavily on the person
who alleges it and there must be sufficient material to
establish malus animus.
7.10. Similarly, in E.P. Royappa Vrs. State of Tamil Nadu, AIR
1974 SC 555, the Supreme Court observed as under:
"Secondly, we must not also overlook that the burden of
establishing mala fides is very heavy on the person who
alleges it. *** The Court would, therefore, be slow to draw
dubious inferences from incomplete facts placed before it
by a party, particularly when the imputations are grave
and they are made against the holder of an office which
has a high responsibility in the administration. Such is
the judicial perspective in evaluating charges of unworthy
conduct against ministers and other, not because of any
special status... but because otherwise, functioning
effectively would become difificult in a democracy."
7.11. The Hon'ble Supreme Court of India in Sukhwinder Pal
Bipan Kumar Vrs. State of Punjab, AIR 1982 SC 65; and
Shivajirao Nilangekar Patil Vrs. Dr. Mahesh Madhav
Gosavi & ors., AIR 1987 SC 294 has made similar
observations.
7.12. In M. Sankaranarayanan, IAS Vrs. State of Karnataka,
(1993) 1 SCC 54, the Supreme Court observed that:
"12. It may not always be possible to demonstrate malice
in fact with full and elaborate particulars and it may
be permissible in an appropriate case to draw
reasonable inference of mala fide from the facts
pleaded and established. But such inference must
be based on factual matrix and such factual matrix
cannot remain in the realm of insinuation, surmise or
conjecture."
7.13. In N.K. Singh Vrs. Union of India, (1994) 6 SCC 98 the
Supreme Court of India has held that:
"the inference of mala fides should be drawn by reading
in between the lines and taking into account the
attendant circumstances."
7.14. There has to be very strong and convincing evidence to
establish the allegations of mala fides specifically alleged
in the petition as the same cannot merely be presumed.
The presumption is in favour of the bona fides of the
order unless contradicted by acceptable material. [Vide
State of U.P. Vrs. Dr. V.N. Prasad, 1995 Suppl (2) SCC
151; Arvind Dattatraya Dhande Vrs. State of
Maharashtra, (1997) 6 SCC 169; Utkal University Vrs. Dr.
Nrusingha Charan Sarangi, (1999) 2 SCC 193; Kiran
Gupta Vrs. State of U.P., (2000) 7 SCC 719; Netai Bag Vrs.
State of W.B., (2000) 8 SCC 262].
7.15. In State of Punjab Vrs. V.K. Khanna, (2001) 2 SCC 330,
the Supreme Court of India examined the issue of bias
and mala fide, observing as under:
"Whereas fairness. is synonymous with reasonableness--
bias stands included within the attributes and, broader
purview of the word 'malice' which in common acceptation
means and implies 'spite' or 'ill will'. One redeeming
feature in the matter of attributing bias or malice and is
now well-settled that mere general statements will not be
sufficient for the purpose of indication of ill will. There
must be cogent evidence available on record to come to
the conclusion as to whether in fact, there was existing a
bias or a mala fide move which results in the miscarriage
of justice *** In almost all legal inquiries, 'intention as
distinguished from motive is the all-important factor' and
in common parlance a malicious act stands equated with
an intentional act without just cause or excuse."
7.16. Identical view has been reiterated in Samant Vrs.
Bombay Stock Exchange, (2001) 5 SCC 323.
7.17. In First Land Acquisition Collector Vrs. Nirodhi Gangoli,
(2002) 4 SCC 160; and Jasvinder Singh Vrs. State of J&K,
(2003) 2 SCC 132, the Hon'ble Supreme Court held that
burden of proving mala fides is very heavy on the person
who alleges it. Mere allegation is not enough. Party
making such allegations is under the legal obligation to
place specific materials before the Court to substantiate
the said allegations.
7.18. It is settled legal proposition that in case allegations of
mala fide are made against any person he is to be
impleaded by name, otherwise the allegations cannot be
considered. [Vide State of Bihar Vrs. P.P. Sharma, I.A.S.
of Delhi, AIR 1996 SC 326; All India State Bank Officers'
Federation Vrs. Union of India, (1997) 9 SCC 151; and
I.K.Mishra Vrs. Union of India, (1997) 6 SCC 228].
7.19. In Federation of Railway Officers Association Vrs. Union
of India, AIR 2003 SC 1344, the Supreme Court of India
has been pleased to hold that the allegation of mala fide
has to be specifically made and the person against whom
such allegations are made has to be impleaded and in
his absence such allegations cannot be taken into
consideration.
7.20. At this stage, reference to the Written Note of
Submission dated 25.08.2023 filed by Sri Chittaranjan
Pattnaik, learned Advocate for the opposite party No.6 is
appropriate, wherein it has been specifically stated as
follows:
"Admitedly, this opposite party No.6 has submitted all the
relevant documents in his reply to show cause before the
Bidding Authority. Therefore, nine numbers of officials
have examined the same and decided that this opposite
party No.6 has satisfied all the requirements of the above
said bid. But, none of them have been made parties by
the petitioner, though bald allegation of mala fide is
alleged against them."
7.21. In the instance case, no factual foundation is laid to
substantiate the scandalous allegation of mala fide
against the Chief District Medical and Public Health
Officer-opposite party No.5 and the petitioner has
conveniently avoided to implead said opposite party No.5
by name as party to this proceeding. This Court having
perused the documents on record and regard being had
to the pleadings of the respective parties, it is observed
that relevant and related experience of the petitioner in
providing security services to the hospitals has been
considered by the Tender Committee comprising of nine
Members which are found to be genuine. This apart, this
Court takes note of the Order dated 08.04.2022 passed
in W.P.(C) No.30911 of 2021 (Bhabani Security Agency
Vrs. State of Odisha), wherein the Chief District Medical
and Public Health Officer, Bhadrak was directed to "take
necessary steps in accordance with law".
7.22. Therefore, this Court is unable to persuade itself that
there are sufficient materials from which reasonable
inference of malice, in fact for granting work
order/awarding work to the petitioner, declared L-2, on
the inability of L-1, can be taken.
7.23. The ratio of Judgments in United India Insurance Co. Ltd.
Vrs. Rajendra Singh, AIR 2000 SC 1165 and S.P.
Chengalvaraya Naidu Vrs. Jagannath, AIR 1994 SC 853,
as relied upon by the counsel for the petitioner, is
relating to "fraud" and its impact on the decree obtained
by practicing fraud on Court, which has been discussed
in the foregoing paragraphs. This Court has referred to
the principles enunciated in these cases, but does not
follow the result or ultimate decision of these cases for
the simple reason that they are rendered under different
context and distinguishing facts. In this context the
dictum of the Hon'ble Supreme Court of India, as
reflected in Union of India Vrs. Arulmozhi Iniarasu, (2011)
9 SCR 1, is felt to be quoted:
"12. Before examining the first limb of the question,
formulated above, it would be instructive to note, as
a preface, the well-settled principle of law in the
matter of applying precedents that the Court should
not place reliance on decisions without discussing as
to how the fact situation of the case before it fits in
with the fact situation of the decision on which
reliance is placed. Observations of Courts are neither
to be read as Euclid's theorems nor as provisions of
Statute and that too taken out of their context. These
observations must be read in the context in which
they appear to have been stated. Disposal of cases
by blindly placing reliance on a decision is not
proper because one additional or different fact may
make a world of difference between conclusions in
two cases. (Ref.: Bharat Petroleum Corpn. Ltd. &
Anr. Vrs. N.R. Vairamani, (2004) 8 SCC 579; Sarva
Shramik Sanghatana (KV), Mumbai E Vrs. State of
Maharashtra, (2008) 1 SCC 494 and Bhuwalka
Steel Industries Limited Vrs. Bombay Iron & Steel
Labour Board, (2010) 2 SCC 273)."
8. In the context of challenging the tender condition which
is alleged to have been tailor-made to suit a particular
bidder, and scope of intervention when mala fide is
levelled against tendering authority, in Balaji Ventures
Pvt. Ltd. Vrs. Maharashtra State Power Generation
Company Ltd., 2022 LiveLaw (SC) 295 the Hon'ble
Supreme Court has been pleased to observe as follows:
"5.1 Now so far as the impugned Judgment and order
passed by the High Court dismissing the writ
petitions is concerned, what was challenged before
the High Court was one of the tender
conditions/clauses. The High Court has specifically
observed and noted the justification for providing
clause 1.12(V). The said clause was to be applied to
all the tenderers/bidders. It cannot be said that
such clause was a tailor made to suit a particular
bidder. It was applicable to all. Owner should
always have the freedom to provide the eligibility
criteria and/or the terms and conditions of the bid
unless it is found to be arbitrary, mala fide and/or
tailor made. The bidder/tenderer cannot be
permitted to challenge the bid condition/clause
which might not suit him and/or convenient to him.
As per the settled proposition of law as such it is an
offer to the prospective bidder/tenderer to compete
and submit the tender considering the terms and
conditions mentioned in the tender document.
5.2 In the case of Silppi Constructions Contractors Vrs.
Union of India, (2020) 16 SCC 489, it is observed in
para 20 as under:
"20. The essence of the law laid down in the
judgments referred to above is the exercise of
restraint and caution; the need for
overwhelming public interest to justify judicial
intervention in matters of contract involving the
State instrumentalities; the courts should give
way to the opinion of the experts unless the
decision is totally arbitrary or unreasonable;
the court does not sit like a court of appeal over
the appropriate authority; the court must
realise that the authority floating the tender is
the best judge of its requirements and,
therefore, the court's interference should be
minimal. The authority which floats the
contract or tender, and has authored the tender
documents is the best judge as to how the
documents have to be interpreted. If two
interpretations are possible then the
interpretation of the author must be
accepted. The courts will only interfere to
prevent arbitrariness, irrationality, bias, mala
fides or perversity. With this approach in mind
we shall deal with the present case."
5.3 In the case of Montecarlo Limited Vrs. National
Thermal Power Corporation Limited, (2016) 15 SCC
272, it is observed and held that the tender inviting
authority is the best person to understand and
appreciate its requirement and tender documents, so
long as there are no mala fides/arbitrariness etc. It
is further observed and held that the Government
must have freedom of contract and such action can
be tested by applying Wednesbury principle and
also examining whether it suffers from arbitrariness
or bias or mala fides."
8.1. In Galaxy Transport Agencies Vrs. New J.K. Roadways,
(2020) 12 SCR 1090 = 2020 SCC OnLine SC 1035, it was
held:
"15. In the judgment in Bharat Coking Coal Ltd. Vrs. AMR
Dev Prabha, 2020 SCC OnLine SC 335, under the
heading "Deference to authority's interpretation",
this Court stated:
"51. Lastly, we deem it necessary to deal with
another fundamental problem. It is obvious that
Respondent No. 1 seeks to only enforce terms
of the NIT. Inherent in such exercise is
interpretation of contractual terms. However, it
must be noted that judicial interpretation of
contracts in the sphere of commerce stands on
a distinct footing than while interpreting
statutes.
52. In the present facts, it is clear that BCCL and
India have laid recourse to Clauses of the NIT,
whether it be to justify condonation of delay of
Respondent No. 6 in submitting performance
bank guarantees or their decision to resume
auction on grounds of technical failure. BCCL
having authored these documents, is better
placed to appreciate their requirements and
interpret them. (Afcons Infrastructure Ltd. Vrs.
Nagpur Metro Rail Corporation Ltd., (2016) 16
SCC 818)
53. The High Court ought to have deferred to this
understanding, unless it was patently perverse
or mala fide. Given how BCCL's interpretation
of these clauses was plausible and not absurd,
solely differences in opinion of contractual
interpretation ought not to have been grounds
for the High Court to come to a finding that the
appellant committed illegality."
8.2. In Jagdish Mandal Vrs. State of Odisha, (2007) 14 SCC
517, where dealing with the exercise of power of judicial
review in the matters relating to tenders and award of
contracts, the Hon'ble Supreme Court identified the
special features to be borne in mind while judicially
reviewing award of contracts. The following are the
observations:
"22. Judicial review of administrative action is intended
to prevent arbitrariness, irrationality,
unreasonableness, bias and mala fides. Its purpose
is to check whether choice or decision is made
"lawfully" and not to check whether choice or
decision is "sound". When the power of judicial
review is invoked in 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 bona fide and is in public interest, 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."
8.3. In Heinz India (P) Ltd. Vrs. State of U.P., (2012) 5 SCC
443, the Hon'ble Supreme Court examined the legal
dimensions of judicial review and quoted with approval
the following passage from Reid Vrs. Secy. of State for
Scotland, (1999) 1 All ER 481, which succinctly sums up
the law:
"Judicial review involves a challenge to the legal validity
of the decision. It does not allow the court of review to
examine the evidence with a view to forming its own view
about the substantial merits of the case. It may be that
the tribunal whose decision is being challenged has done
something which it had no lawful authority to do. It may
have abused or misused the authority which it had. It
may have departed from the procedures which either by
statute or at common law as a matter of fairness it ought
to have observed. As regards the decisions itself it may be
found to be perverse, or irrational or grossly
disproportionate to what was required. Or the decision
may be found to be erroneous in respect of a legal
deficiency, as for example, through the absence of
evidence, or of sufficient evidence, to support it, or through
account being taken of irrelevant matter, or through a
failure for any reason to take account of a relevant matter,
or through some misconstruction of the terms of the
statutory provision which the decision-maker is required
to apply. But while the evidence may have to be explored
in order to see if the decision is vitiated by such legal
deficiencies it is perfectly clear that in case of review, as
distinct from an ordinary appeal, the court may not set
about forming its own preferred view of evidence."
8.4. There is no gainsaying that what is to be examined is the
legality and regularity of the process leading to award of
contract. What the Court has to constantly keep in mind
is that it does not sit in appeal over the soundness of the
decision. The Court can only examine whether the
decision making process was fair, reasonable and
transparent. In cases involving award of contracts, the
Court ought to exercise judicial restraint where the
decision is bona fide with no perceptible injury to public
interest. In Siemens Aktiengeselischaft & S. Ltd. Vrs.
DMRC Ltd., (2014) 2 SCR 824, it has been referred to
thus:
"29. *** This Court has in Federation of Railway Officers
Association Vrs. Union of India, (2003) 2 SCR 1085,
stated the wholesome principle applicable in such
situations in the following words:
'Further, when technical questions arise and experts
in the field have expressed various views and all
those aspects have been taken into consideration by
the Government in deciding the matter, could it still
be said that this Court should re-examine to interfere
with the same. The wholesome rule in regard to
judicial interference in administrative decisions is
that if the Government takes into consideration all
relevant factors, eschews from considering irrelevant
factors and acts reasonably within the parameters
of the law, courts would keep off the same.'
30. Reference may also be made to the decision of this
Court in N.D. Jayal Vrs. Union of India, (2004) 9 SCC
362 where this Court observed:
'This Court cannot sit in judgment over the cutting
edge of scientific analysis relating to the safety of
any project. Experts in science may themselves
differ in their opinions while taking decisions on
matters related to safety and allied aspects. The
opposing viewpoints of the experts will also have to
be given due consideration after full application of
mind. When the Government or the authorities
concerned after due consideration of all viewpoints
and full application of mind took a decision, then it is
not appropriate for the court to interfere.' ***"
8.5. In Jagruti Welfare Organisation Vrs. State of Odisha, 124
(2017) CLT 1041 = 2017 SCC OnLine Ori 485, this Court
referred to Maa Binda Express Carrier Vrs. Northeast
Frontier Railway, (2014) 3 SCC 760 = AIR 2014 SC 390,
and observed that the Hon'ble Supreme Court, dealing
with the scope of judicial review in contract matters,
held as follows:
"8. The scope of judicial review in matters relating to
award of contract by the State and its
instrumentalities is settled by a long line of decisions
of this Court. While these decisions clearly recognize
that power exercised by the Government and its
instrumentalities in regard to allotment of contract is
subject to judicial review at the instance of an
aggrieved party, submission of a tender in response
to a notice inviting such tenders is no more than
making an offer which the State or its agencies are
under no obligation to accept. The bidders
participating in the tender process cannot, therefore,
insist that their tenders should be accepted simply
because a given tender is the highest or lowest
depending upon whether the contract is for sale of
public property or for execution of works on behalf of
the Government. All that participating bidders are
entitled to is a fair, equal and non-discriminatory
treatment in the matter of evaluation of their tenders.
It is also fairly well-settled that award of a contract
is essentially a commercial transaction which must
be determined on the basis of consideration that are
relevant to such commercial decision. This implies
that terms subject to which tenders are invited are
not open to the judicial scrutiny unless it is found
that the same have been tailor made to benefit any
particular tenderer or class of tenderers. So also the
authority inviting tenders can enter into negotiations
or grant relaxation for bona fide and cogent reasons
provided such relaxation is permissible under the
terms governing the tender process."
8.6. Under the aforesaid premise, given the ruling of the
Hon'ble Supreme Court, there is no occasion for this
Court to examine the factual aspects which the
petitioner wishes this Court to do.
CONCLUSION:
9. Applying the law laid down by the Supreme Court as
discussed above to the facts of the case at hand, it is
made clear that Letter dated 18.11.2022 of the Chief
District Medical and Public Health Officer, Bhadrak
seeking "to provide services on outsourcing basis in the
Bhadrak District" with a request to M/s. Bhabani
Security Agency-opposite party No.6 to submit "consent
along with declaration that the total number of
assignments made" to it "under Nirmal (including
Bhadrak District) do not exceed 5 (five)" vide Annexure-6
is not arbitrary. This consent was sought for after L&K
Services, L-1, has expressed its inability to perform the
contract. The tender process, thus, cannot be said to be
arbitrary or tainted with mala fide or is there tinge of
bias on the part of the Chief District Medical and Public
Health Officer, opposite party No.5.
9.1. Sri Kali Prasanna Mishra, learned Senior Advocate for
the opposite party No.6 submitted that the petitioner
having not come with clean hands cannot be extended
protection of this Court as the opposite party No.7-
Sarala Security & Facility Services has been working till
date. Having participated in the tender process and not
impleaded the Member of the Tender Committee by
name nor did the petitioner implead other Members as
party to the proceeding, the writ petition is not
maintainable. He relied on Jagruti Welfare Organisation
Vrs. State of Odisha, 2018 (I) ILR- CUT 873, wherein it
has been observed as follows:
"*** Apart from the same, the petitioner, having
participated in the process of bid, cannot turn around and
challenge the same by filing the present writ application.
More so, the writ application also suffers from non-joinder
of proper parties. On all these counts, the writ application
is liable to be dismissed and the same is hereby
dismissed."
9.2. The petitioner herein is bound to suffer the same result
in the present case. Neither all the participants were
made parties nor the Members of the Tender Committee.
It is noteworthy that the Member of the Tender
Committee who is alleged to have been facing enquiry
has not been impleaded as party (by name) to the
present proceeding.
9.3. Ergo, the writ petition suffers from non-joinder of
necessary and proper party, as conceded by Sri Rakesh
Behera, learned counsel for the petitoner.
10. For the discussions made in the foregoing paragraphs
and reasons assigned, this Court, on the aforesaid fact
and in the circumstances, is of the considered view that
there is no infirmity in issue of Letter bearing No.12862,
dated 18.11.2022 by the Chief District Medical and
Public Health Officer, Bhadrak (opposite party No.5) to
M/s. Bhabani Security Agency (opposite party No.6)
seeking for consent along with necessary declaration
(Annexure-6). Upon the consent of the opposite party
No.6, subsequent Letter being No.13126/DPMUBDK,
dated 24.11.2022 of the opposite party No.5 requesting
it to submit "performance security deposit" is in
consonance with the terms of the Request for Proposal.
10.1. In the result, the writ petition, sans merit, deserves to be
dismissed. Accordingly, the writ petition stands
dismissed.
10.2. During the course of pendency of the present writ
petition, I.A. No.3711 of 2023 was filed on 17.03.2023 by
the petitioner bringing it to the notice of this Court that
Special Secretary to Government of Odisha in Health
and Family Welfare Department had issued Letter
bearing No.5878-HFW-SCH-MISC-0005-2023/H&FW,
dated 15.03.2023 instructing the Collector and District
Magistrate, Bhadrak to complete agreement process with
M/s. Bhabani Security Agency. Considering that the
matter was sub judice before this Court, vide Order
dated 20.03.2023 it was directed that "there shall be
stay of operation of the agreement dated 16.03.2023
executed between the opposite party No.6 and the
authority, till the next date". However, said interim order
stood extended from time to time. Since the present writ
petition is dismissed, the interim order dated 20.03.2023
as extended stands vacated. All the pending
applications, if any, also stand disposed off. The opposite
parties are at liberty to work out accordingly.
10.3. In the result, with the above observation and direction
the writ petition is dismissed, but in the circumstances
there shall be no order as to costs.
(MURAHARI SRI RAMAN)
JUDGE
DR. B.R. SARANGI, J. I agree.
Signature Not Verified
Digitally Signed
Signed by: MANORANJAN SAMAL
Designation: PERSONAL ASSISTANT
Reason: Authentication
(DR. B.R. SARANGI)
Location: Orissa High Court, Cuttack
Date: 22-Sep-2023 14:44:59 JUDGE
Orissa High Court, Cuttack
The 22nd September, 2023//MRS
