WPMS/824/2021
2021 Latest Caselaw 4528 UK

      IN THE HIGH COURT OF UTTARAKHAND
                             AT NAINITAL
            ON THE 12thDAY OF NOVEMBER, 2021
                                    BEFORE:
          HON'BLE SHRI JUSTICE MANOJ KUMAR TIWARI


              Writ Petition (M/S) No. 824 of 2021

BETWEEN:
M/s Matrix Environmental,A Sole
Proprietorship Firm                                         .....Petitioner
       (By Mr. PiyushGarg, Advocate)


AND:
State of Uttarakhand&another                         ......Respondents
        (By Mr.C.S. Rawat, learned C.S.Cfor the State/respondent nos. 1 & 2.)


                                 JUDGMENT

Heard learned counsel for the parties.

2. Petitioner submitted bid pursuant to a Tender notice issued by Directorate of TribalWelfare. His technical bid has been rejected. According to him, he came to know that his bid has been rejected through respondentsweb portal where it was displayed that his technical bid is rejected due to incomplete documentation. Thus, feeling aggrieved, petitioner has approached this Court.

3. A counter affidavit has been filed by respondent no.2. In para-10 of the counter affidavit, it is stated that petitioner's bid was not confirming to the condition contained in clause 39of the tender notice, inasmuch as, EPF registration of the petitioner was of July, 2020,whereas clause 39 required that every bidder must have five year old registration with EPF. In para-11 of the said counter affidavit, it has been further stated that petitioner's bid was not confirming to the condition

contained in clause 36 of the tender notice, inasmuchas, out of the five experiencecertificates produced by the petitioner,only four were in respect of financial year 2018-19 and one was in respect of financial year 2016-17; while, as per the condition, all certificates should have been in respect of financial year2018-19. Regarding condition contained in clause 37 of the tender notice, it is further stated that in the experience certificate submitted by the petitioner for the financial year 2019-20, strength of students of the residential school where he allegedly provided catering service was also not disclosed,which was mandatory. Clause 37 provides that one should have experience of providing catering service to minimum 500 students during financial year 2019-20. In para-11 of the counter affidavit, it is further averred that petitioner's bid was not inconformity with condition no. 33 of the tender notice which requires each bidder to submit balance sheet audited by Chartered Accountant for the last three years (2016-17, 2017-18 and 2018-19).

4. Learned counsel appearing for petitioner submits that although petitioner got his firm registered with EPF in the year 2020, however he had submitted the return for the past five yearsat the time of registration of his firm, therefore, his bid could not have been rejected on this ground.

5. The submission made by petitioner's counsel is bereft of merit. The condition that EPF registration of a firm must be more than five years old is to ensure that the firm is sufficiently experienced and has requisite infrastructure, including manpower, to undertake the work of the magnitude for which bids are invited.

6. Since petitioner's bid was not in conformity with the express conditions of the tender notice, therefore, the

decision taken by the respondents to declare his bid as non-responsive, cannot be faulted. Scope of judicial review in these matters has to be minimal and this Court cannot sit in appeal over the decision taken by the employer, in tender matters. Hon'ble Supreme Court in the case ofAfcons Infrastructure Ltd. v. Nagpur Metro Rail Corpn. Ltd., reported in (2016) 16 SCC 818has held as under:-

"11. Recently, in Central Coalfields Ltd. v. SLL-SML (Joint Venture Consortium)5 it was held by this Court, relying on a host of decisions that the decision-making process of the employer or owner of the project in accepting or rejecting the bid of a tenderer should not be interfered with. Interference is permissible only if the decision-making process is mala fide or is intended to favour someone. Similarly, the decision should not be interfered with unless the decision is so arbitrary or irrational that the Court could say that the decision is one which no responsible authority acting reasonably and in accordance with law could have reached. In other words, the decision-making process or the decision should be perverse and not merely faulty or incorrect or erroneous. No such extreme case was made out by GYT-TPL JV in the High Court or before us.

12. In DwarkadasMarfatia and Sons v. Port of Bombay it was held that the constitutional courts are concerned with the decision-making process. Tata Cellular v. Union of India7 went a step further and held that a decision if challenged (the decision having been arrived at through a valid process), the constitutional courts can interfere if the decision is perverse. However, the constitutional courts are expected to exercise restraint in interfering with the administrative decision and ought not to substitute its view for that of the administrative authority. This was confirmed in JagdishMandal v. State of Orissa as mentioned in Central Coalfields.

13. In other words, a mere disagreement with the decision-making process or the decision of the administrative authority is no reason for a constitutional court to interfere. The threshold of mala fides, intention to favour someone or arbitrariness, irrationality or perversity must be met before the constitutional court interferes with the decision-making process or the decision.

14. We must reiterate the words of caution that this Court has stated right from the time when RamanaDayaramShetty v. International Airport Authority of India was decided almost 40 years ago,

namely, that the words used in the tender documents cannot be ignored or treated as redundant or superfluous -- they must be given meaning and their

necessary significance. In this context, the use of the word "metro" in Clause 4.2(a) of Section III of the bid documents and its connotation in ordinary parlance cannot be overlooked."

7. Petitioner has not challenged any condition of tender notice in this Writ Petition.

8. In such view of the matter, this Court does not find any reason to interfere in the matter.

9. Accordingly, the Writ Petition fails and is dismissed.

(MANOJ KUMAR TIWARI, J.) Nahid