Ambedkar Anusuchit Jati Mahila ... vs The State Of Bihar
2022 Latest Caselaw 903 Patna

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                 Civil Writ Jurisdiction Case No.20317 of 2021
     ======================================================

Ambedkar Anusuchit Jati Mahila Vikas Swablambi Kalyan Samati Chakiya at P.O. Brahmapur, District - Darbhanga (Bihar) through its Secretory Vijay Shankar Thakur, aged about 48 years, Gender - Male, Son of Baleshwar Thakur, Resident of Ward - 3, Barhampur, P.S. - Barhampur, District - Darbhanga.

... ... Petitioner/s Versus

1. The State of Bihar through the Additional Chief Secretary, Health Department, Government of Bihar, Patna.

2. The Principal Secretary, Health Department, Government of Bihar, Patna.

3. The District Magistrate Cum President, District Health Society, Darbhanga.

4. The Civil Surgeon Cum Member Secretary, District Health Society, T.B.D.C.

Building Opp. K.S. College, Darbhanga.

... ... Respondent/s ====================================================== Appearance :

For the Petitioner/s : Mr. Rikesh Sinha, Advocate Mr.Dileep Kumar Singh, Advocate

For the Respondent/s : Md. Mujtabaul Haque, GP-12 ====================================================== CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE S. KUMAR ORAL JUDGMENT (Per: HONOURABLE THE CHIEF JUSTICE)

(The proceedings of the Court are being conducted by Hon'ble the Chief Justice/Hon'ble Judges through Video Conferencing from their residential offices/residences. Also the Advocates and the Staffs joined the proceedings through Video Conferencing from their residences/offices.)

Date : 03-02-2022

Heard learned counsel for the parties.

Petitioner has prayed for the following relief(s):- Patna High Court CWJC No.20317 of 2021 dt.03-02-2022

Petitioner lays challenge to condition No. 3 of NIT i.e.

tender document for Outsourcing of Cleaning Services at

Government Healthcare Facilities in Darbhanga, issued on

21.11.2021 (Annexure-2 Page 11). The said condition, subject

matter of challenge is reproduced as under:-

In Hindustan Construction Co. Ltd. v. State of

U.P., 2014 SCC OnLine All 15379 : (2014) 6 All LJ 337 :

(2015) 1 BC 332 at page 341, the Division Bench of Hon'ble

Allahabad High Court held as under:-

"8. While evaluating merits of the submission, it Patna High Court CWJC No.20317 of 2021 dt.03-02-2022

would be appropriate, at the outset, to formulate the nature and extent of judicial review where a challenge is made to a condition imposed by a body which invites tenders by a bid document or, as the case may be, in a Request For Qualification. The principles which must govern such a case have been formulated in a recent judgment of the Supreme Court in Michigan Rubber (India) Limited v. State of Karnataka [(2012) 8 SCC 216 : (AIR 2012 SC 2915).] :

"From the above decisions, the following principles emerge:

(a) the basic requirement of Article 14 is fairness in action by the State, and non-arbitrariness in essence and substance is the heartbeat of fair play. These actions are amenable to the judicial review only to the extent that the State must act validly for a discernible reason and not whimsically for any ulterior purpose. If the State acts within the bounds of reasonableness, it would be legitimate to take into consideration the national priorities;

(b) fixation of a value of the tender is entirely within the purview of the executive and courts hardly have any role to play in this process except for striking down such action of me executive as is proved to be arbitrary or unreasonable. If the Government acts in conformity with certain healthy standards and norms such as awarding of contracts by inviting tenders, in those circumstances, the interference by Courts is very limited;

(c) In the matter of formulating conditions of a tender document and awarding a contract, greater, latitude is required to be conceded to the State authorities unless me action of the tendering authority is found to be malicious and a misuse of its statutory powers, interference by Courts is not warranted;

(d) Certain preconditions or qualifications for tenders have to be laid down to ensure that the, contractor has the capacity and the resources to successfully execute the work; and

(e) If the State or its instrumentalities act reasonably, fairly and in public interest in awarding contract, here again, interference by. Court is very restrictive since no person can claim a fundamental right to carry on business with the Government.

Patna High Court CWJC No.20317 of 2021 dt.03-02-2022

(24) 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 audiority 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"; and

(ii) Whether the public interest is affected, if the answers to the above questions are in negative, then there should be no interference under Article 226."

It is brought to our notice that for the first time, the

Government, by way of policy decision, has taken a decision of

inviting the tenders for whole of the district. Nature and the

scope of work are to provide cleaning services at different

healthcare centres in District-Darbhanga. 42 such centres in the

said district of different categories stand notified.

We notice that all such centres are having facility for

treatment of indoor patients and the scope of work includes

cleaning of the entire areas. All such centres within the district

are covered by a single tender. One of the conditions stipulated

in the document is that the bidder must have financial turnover

of more than Rs. 1.5 crores for the last three preceding years.

Another condition being that technical bid must accompany a Patna High Court CWJC No.20317 of 2021 dt.03-02-2022

pre-deposit of Rs.20,00,000/- (Rupees Twenty Lakh)(Clause

3.3).

It is argued that the petitioner is a poor person and has

been executing the work of similar nature, in some of the

institutions notified in the tender document, for the last eight

years.

Well, such factor cannot be a ground to challenge the

tender condition, reproduced supra, more so, in the absence of

any material on record to establish that the tender condition

stands tailor made or malafidely inserted to suit a particular

individual or oust another. Nor do we find any material, pointing

finger of arbitrariness in the policy decision, whereby the

Government, for the first time, has taken a decision of inviting

tenders for outsourcing the work of cleaning of all the

institutions within the very same district. Perhaps, such a

measure is only for a better management and to facilitate proper

monitoring of the party undertaking the work, subject matter of

the tender document. The scope of the work is notified in

Annexure-5 of the tender document is quite extensive; requires

sufficient deployment of human resources as also cleaning

material. Condition of pre-deposit is directly linked with the

financial capacity of the party desiring to furnish the bid. This Patna High Court CWJC No.20317 of 2021 dt.03-02-2022

condition has a direct nexus with the object sought to be

achieved. Financial ability; potential; and capacity, being a

necessary concomitant for qualification.

Under these circumstances, we find ourselves not to

be persuaded to even issue notice. As such, present petition

stands dismissed.

Interlocutory application, if any, shall also stand

disposed of.

(Sanjay Karol, CJ)

( S. Kumar, J) Sujit/-

AFR/NAFR
CAV DATE
Uploading Date         08.02.2022
Transmission Date