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Madhya Pradesh High Court · body

2002 DIGILAW 303 (MP)

PRAMILA YADAV v. UNION OF INDIA (UOI)

2002-03-13

DIPAK MISRA

body2002
ORDER Dipak Misra, J. The petitioner is the widow of late Shri Ashok Yadav who was working as a Signalman in the Army and while in service he died on 16-10- 1997. The Commanding Officer 1 Technical Training Regiment, 1 STC Jabalpur, the respondent No. 6, invited sealed tenders to run the STD booth and other welfare institutions which cater for the needs of troops, their families and wards at unit shopping complex. The period of the contract is from 1st April 2001 to 31st March 2002. A copy of the tender notice dated 20th February 2001 has been brought on record as Annexure P-1. The petitioner submitted her tender as per the tender rules. According to the writ petitioner, the tender was opened at 10:30 am on 8-3-2001 in presence of the tenderers. The convening authority for conducting tender is the Commanding Officer. It is alleged that the said authority did not comply with the terms and conditions as mentioned in paragraphs 9 and 10 of the Notice Inviting Tender (in short 'the NIT'). It is putforth that the petitioner Hornes within the category in which she has to be given priority as per the terms and conditions of the tender for welfare institutes. The petitioner comes under the priority as Wards of Ex-servicemen whereas the respondent No. 7 who has been awarded the contract comes under the priority No. VI as ex-serviceman category. In spite of the aforesaid, the respondent No. 6 took arbitrary decision and awarded the contract in favour of the respondent No. 7. It is putforth that the respondent No. 7 does not have the past experience of running STD booth in military organizations and in other places and submitted forged certificate along with his tender. He had also not complied with the terms and conditions of the tender and hence, he was not entitled to be considered. It is putforth that the petitioner has the experience of running of the STD booth in military organizations and she has also the experience of running STD booth in the military organization of 1. Technical Training Regiment Jabalpur. But the same was not paid heed to. It is urged that the petitioner has only one source of income that is running STD booth which is run by the organisation of the respondent No. 3 but the said aspect has not been kept in view. Technical Training Regiment Jabalpur. But the same was not paid heed to. It is urged that the petitioner has only one source of income that is running STD booth which is run by the organisation of the respondent No. 3 but the said aspect has not been kept in view. It is averred that she made a representation to the competent authority but did not receive any reply. It is putforth that the respondent No. 7 has been awarded the contract in two military organizations, one STD booth in 1 Technical Training Regiment Jabalpur and other STD booth and wet canteen at Signals Records Jabalpur whereas the petitioner, a widow has not been allotted any STD booth in spite of fulfilling all the terms and conditions. It is urged that the petitioner had better right to be awarded the contract because of her category and the priority she deserved. With these averments the prayer has been made for issue of a direction to the respondents to produce entire records and quash the award of the contract in favour of the respondent No. 7. A return has been filed by the respondents 1 to 6 contending, inter alia, that the respondent No. 6 had followed the terms and conditions of the contract in letter and spirit. A list of priority has been enlisted and it is putforth that it does not show that the priority should be given to the category of the person to which the petitioner belongs. In the case at hand the respondent No. 7 had offered an amount of Rs. 5,600/- which after negotiation came to Rs. 6,000/- per month whereas the petitioner had offered only 5,000/- per month. As there has been a difference of Rs. 1,000/- the Board consisting of seven members i.e. one Colonel, two major, one Subedar Major and three Subedars keeping in view the interest of Revenue accepted the offer of the respondent No. 7. It has also been putforth that there were four tenders for STD booth, One by the petitioner and the other one by the respondent No. 7 and the rest two were by the civilians. It is putforth that the petitioner is a widow of ex-serviceman and she comes under the priority of class 7. It has also been putforth that there were four tenders for STD booth, One by the petitioner and the other one by the respondent No. 7 and the rest two were by the civilians. It is putforth that the petitioner is a widow of ex-serviceman and she comes under the priority of class 7. After opening of the tender by the committee consisted of seven members it was seen that the highest offer was made by the respondent No. 7 and, therefore, the contract was given to him being an ex-serviceman as there was much difference between the amount offered by the petitioner and the respondent No.7 The money collected is used towards the welfare organizations who look after the war widows and their children and, therefore, it is necessary that the respondent has to distribute the largess keeping in view the interest of revenue. It is highlighted that there is no irregularity in award of contract in favour of the respondent No. 7 and Rules and Regulations were strictly adhered to. According to the contesting respondents the last tender was given to the petitioner for a period of 1-4-2000 to 31-3-2001. During the said period it came to the notice of the respondents that the petitioner had sublet the said shop to her father-in-law who was looking after the affairs of the shop and the money earned out of the shop went to his account. The petitioner was not looking after the shop and she probably could not utilize the money for her benefit. There was also violation of the contract conditions inasmuch as the petitioner used to sell certain grocery items and installed a photocopy machine in the shop. A report was submitted by JCO of Signals Training Center whose duty is to check the activities of the shops and to see that they adhere to the terms and conditions. The report of the JCO has been brought on record as Annexure R-l. Allegations have been made about the conduct of the petitioner in respect of the previous while she was running the shop in question. It has also been highlighted that the respondent No. 7 is an ex-serviceman and deserved the sympathy and soft corner from the respondents. 7 It is putforth that the petitioner comes within the category of 7 i.e. others. It has also been highlighted that the respondent No. 7 is an ex-serviceman and deserved the sympathy and soft corner from the respondents. 7 It is putforth that the petitioner comes within the category of 7 i.e. others. That apart it is averred that even if the petitioner comes under the category 3, the comparison cannot be made between the rebate offer granted by the respondent No. 7 and the same made by the petitioner. A rejoinder affidavit has been filed by the petitioner where it has been pleaded that the petitioner's husband died during Army service and, therefore, she comes under the priority, being in category 3 and, therefore, she has a better claim as per the terms and conditions of the tender but the same has been given a go by the respondents. It is also putforth that the respondent No. 6 had not called the petitioner for negotiation and the sealed cover was not opened in presence of the petitioner. The respondent No. 7 comes under the category priority 7 and, therefore, the petitioner should have been given the privilege. Other allegations have been disputed in the rejoinder affidavit. 1 have heard Mr. R.B. Yadav, learned counsel for the petitioner and Mr. R. Menon, learned counsel for the respondents 1 to 6. The core question that arises for consideration is whether the contract in question has been awarded in favour of the respondent No. 7 by following the due process of law. Submission of Mr. Yadav, learned counsel is that the petitioner comes under the category mentioned in paragraph 10 of the tender notice and the same could not have been given a go by under any circumstances. The learned counsel for the petitioner has referred to paragraphs 9 and 10 of the Notice Inviting Tender. They read as under: "9. Contract will be awarded purely on merit such as past experience in the business/service, rate of rebate offered and credibility of contractor. The following categories of persons, if they are unemployed, will be given priority as shown below against each for accepting the tenders submitted by them if all other conditions are met satisfactorily and completely: (a) War widows ? Priority I (b) Wards of deceased ex-serviceman ? Priority II (c) Wards of Ex-Serviceman deceased due to other reasons ? Priority III (d) Disabled Ex-servicemen ? Priority IV (e) Other disabled persons ? Priority I (b) Wards of deceased ex-serviceman ? Priority II (c) Wards of Ex-Serviceman deceased due to other reasons ? Priority III (d) Disabled Ex-servicemen ? Priority IV (e) Other disabled persons ? Priority V (f) Ex-servicemen ? Priority VI (g) Others ? Priority VII It is submitted by Mr. Yadav, learned counsel that the petitioner comes under the Clause (c) of the priority clause and, therefore, she has to be created under the priority 3 and has an edge over the respondent No. 7. Per contra, it is contended by Mr. Menon, learned counsel for the respondents 1 to 6, that the petitioner comes under the category 7. It has also submitted by him that the question of priority does not arise as the offer of the respondent No. 7 was more than that of the petitioner. It is putforth by him that the priorities arise when there is parity. That apart certain document vide Annexure P-l has been brought on record to show that in the previous year the petitioner had utilized the STD booth for different purpose. To appreciate the factual scenario the interpretation of the clause is absolutely essential. It is not necessary to put the petitioner and the respondent No. 7 in any category. The petitioner claims to be a widow of the ex-serviceman and the respondent No. 7 is an ex-Havaldar. Paragraph 10 stipulates that the categories mentioned in the said paragraph would be given priority for acceptance of the tender submitted by them if the other conditions made satisfactorily are completed. If the said clause is understood in proper perspective, it means, if the bid given by the person belonging to different categories are in competitive sphere, the priority would be given to the person who comes in the first priority category and or such other priority shall be considered. If the offer of the petitioner would have been six thousand and the respondent No. 7 had also offered six thousand indubitably as claimed by the petitioner, the priority would have been given. But such is not the case here. The respondent No. 7 had initially given a higher offer and on negotiation enhanced it. If the offer of the petitioner would have been six thousand and the respondent No. 7 had also offered six thousand indubitably as claimed by the petitioner, the priority would have been given. But such is not the case here. The respondent No. 7 had initially given a higher offer and on negotiation enhanced it. It is to be borne in mind the money collected is used for welfare organization to look after the war widows and their children and hence, it is necessary to collect more money for which the largess are awarded. If the concept of priority as has been interpreted by the petitioner is accepted then the persons who come in the priority list No. 1, namely, the war widow if gives an offer of 100/- per year and putforth the claim in terms and conditions with the tender then the authorities would be bound to accept the same. In that event, in my considered view, the laudable purpose for which these contracts have been awarded would be frustrated. The purpose for which it is spent is for the collective who have suffered because of war. It is meant to be spent on war widows and their children. 11-A. That apart the petitioner was given the tender in respect of the previous year but the return shows that she has abused the same. One who abuses the privilege cannot claim it as a matter of right. Considering from both the angles, I do not find any error in awarding the contract in favour of the respondent No. 7. Consequently, the writ petition, being devoid of merit, stands dismissed. However, in the facts and circumstances of the case there shall be no order as to costs. Final Result : Dismissed