Uttarakhand High Court
WPMS/103/2019 on 25 November, 2021
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
ON THE 25TH DAY OF NOVEMBER, 2021
BEFORE:
HON'BLE SHRI JUSTICE MANOJ KUMAR TIWARI
WRIT PETITION (M/S) No. 103 of 2019
BETWEEN:
Roop Singh Kathayat. ..........Petitioner
(By Mr. Shobhit Saharia, Advocate)
AND:
State of Uttarakhand & others. ....Respondents
(By Mr. T.S. Phartiyal, Addl. C.S.C. with Mr. M.S. Bisht,
Brief Holder for the State of Uttarakhand and Mr. S.S.
Chauhan, Advocate for respondent nos. 2 to 6)
JUDGMENT
Respondent no. 2 had issued a notice
inviting e-tender for six different works for
relaying/construction of roads under Pradhan
Mantri Gram Sadak Yojana (PMGSY). Total 6
tenders were received in respect of package No.
UT 04-16, i.e., relaying of road between Narsingh
Danda to Bhagina Bhandari, including that of the
petitioner. However, bid submitted by petitioner
for aforesaid work has been rejected.
2. Petitioner is aggrieved by rejection of his
bid. The Bid Evaluation Report is on record as
Annexure No.3 to the writ petition. Perusal of the
same reveals that a Procurement Evaluation
Committee headed by Chief Engineer, PMGSY, was
constituted, which examined bids to determine
their responsiveness. The said Committee found
the bid submitted by petitioner as non-responsive,
on the ground that demand draft of bid security
was not submitted in original. The
recommendation made by Procurement Evaluation
Committee was accepted by Bid Accepting
Authority. The decision of Procurement Evaluation
Committee was uploaded on website, against
which petitioner filed a complaint. Petitioner's
complaint was rejected by Tender Technical
Committee on 22.12.2018. Thus, feeling
aggrieved, petitioner has approached this Court.
3. Learned counsel for petitioner contends
that petitioner had submitted Demand Draft
amounting to ` 8,25,000/- in original, towards bid
security, therefore, rejection of his bid on the
ground that demand draft was not submitted in
original is illegal. He further contends that
respondent no.5 was serving as Superintending
Engineer, PMGSY, Srinagar, therefore, he could
not have signed bid evaluation report dated
13.12.2018 as Superintending Engineer, PMGSY,
Pithoragarh and Chief Engineer, PMGSY, Kumaon.
4. Learned counsel appearing for
respondent nos. 2, 3 and 4 however contended
that petitioner had not submitted the original
demand draft as bid security as per condition of
tender document but he had submitted scanned
copy of demand draft, with his technical bid,
therefore, his bid was not confirming to the
conditions, therefore, it was rightly rejected. He
further pointed out that respondent no.5 is posted
as Superintending Engineer, PMGSY, Pithoragarh,
and he was holding additional charge of Chief
Engineer, PMGSY, Kumaon region, therefore, he
signed the Technical Evaluation Report dated
13.12.2018 in dual capacity. The charge certificate
dated 03.12.2018, which shows that respondent
no.5 assumed additional charge as Chief Engineer,
PMGSY, Kumaon region is on record as Annexure
No.1 to the counter affidavit. He further submitted
that technical bid of three bidders, namely, M/s
Barai Construction, M/s Panchghati Construction
and petitioner were rejected on this ground that
Bank Draft of bid security was not submitted in
original.
5. Ground of rejection of petitioner's bid is
referable to a condition in Instruction to bidders.
Clause 16.3 of Instruction to Bidders provides that
a bid not accompanied by acceptable bid security,
shall be rejected as non-responsive.
6. Petitioner has contended that he had
submitted bid security through bank draft in
original, in the Office of Superintending Engineer
at Pithoragarh, on 05.12.2018. However, this
statement is refuted by learned counsel for
respondent nos. 2, 3 and 4. There is no material
on record to corroborate the stand now taken
before this Court. Whether petitioner had
submitted Bank Draft with his bid or not, is a
question of fact. Since respondents have refuted
the submission made on behalf of petitioner that
he had submitted original copy of Bank Draft,
therefore, there is a dispute whether Bank Draft
was submitted in original by petitioner or not.
Such disputed question of fact cannot be decided
by this Court while exercising power of judicial
review under Article 226 of the Constitution of
India.
7. Learned counsel for the petitioner then
submitted that respondent no.5 was purposely
brought to Pithoragarh in order to extend undue
favours to rival bidders. He further submitted that
petitioner was wrongly eliminated from zone of
consideration with a view to facilitate award of
Contract to other bidders, who had formed a
cartel.
8. Learned counsel appearing for
respondent nos. 2, 3 and 4 however disputes this
allegation made against respondent no.5. He
submits that respondent no.5 was already posted
as Superintending Engineer at Pithoragarh and as
Chief Engineer, PMGSY, Kumaon had proceeded on
leave, therefore, respondent no.5 was given
additional charge as Chief Engineer, in terms of
order dated 22.11.2018 passed by Competent
Authority in Uttarakhand Rural Roads
Development Agency.
9. Learned counsel for the respondents
further pointed out that petitioner's bid alone was
not rejected for not submitting demand-draft in
original, but technical bid of two other bidders was
rejected, on the same ground.
10. It is not uncommon in Government
Departments that whenever a temporary vacancy
is occurred on an administrative position, a
subordinate officer is asked to perform the duties
of such administrative position in addition to his
own duties. From the evidence brought on record,
it is revealed that respondent no. 5 was posted as
Superintending Engineer at Pithoragarh and, due
to temporary vacancy caused on the post of Chief
Engineer, he was given additional charge as Chief
Engineer. Therefore, the allegation of foul play
against respondent no. 5, is without any
substance.
11. Having regard to the facts and
circumstances of the case, rejection of bid of the
petitioner cannot be said to be arbitrary or illegal.
Even otherwise also, this Court does not find any
substance in the allegation of wrong doing, by
respondent no.5.
12. For the aforesaid reasons, this Court
does not find any reason to interfere in the matter.
13. Accordingly, the writ petition fails and is
hereby dismissed. No order as to costs.
(MANOJ KUMAR TIWARI, J.)
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