Research › Search › Judgment

Jharkhand High Court · body

2009 DIGILAW 145 (JHR)

Educomp Solutions Ltd. v. State of Jharkhand

2009-01-29

AJIT KUMAR SINHA

body2009
Order The present writ petition has been preferred for the following reliefs:- (i) For issuance of an appropriate writ, order or direction particularly a writ in the nature of Mandamus commanding upon the respondent Nos. 2 and 3, to award the contract to the petitioner as he has been declared qualified and lowest bidder in pursuance of Tender No. JEPC/1575 dated 18.8.2008 as contained in Annexure-1. (ii) For issuance of a writ/direction particularly a writ in the nature of Certiorari for quashing of Short Term Re-tender Notice vide tender No. ME/011 541/2008/2960 dated 7.1.2009 (Annexure-4) by which the respondents have invited sealed Technical and commercial bids for implementation of Computer Education & Computer Aided Education Project in nearly 248 Govt. Middle Schools in the State i.e. for the same and exact work for which earlier Tender No. JEPC/1676 dated 18.8.2008 as contained in Annexure-1 was published and in the said process the petitioner has qualified and declared lowest one, but the contract has not been awarded till date for the reasons best known to the respondents and subsequent re-tender for the same work smacks of mala fide and ulterior motive of the respondents on extraneous consideration. (iii) For restraining the respondent Nos. 2 & 3 from proceeding further in light of short term re-tender notice dated 7.1.2009 published vide tender No. ME/01/541/2008/2960 dated 7.1.2009 (Annexure-4). 2. The main contention raised by the Sr. Counsel Sri Anil Kumar Sinha for the petitioner is that issuance of short term re-tender notice was illegal. It has also been contended that without canceling earlier tender Issued vide Annexure-1, the second short term re-tender notice was in violation of Articles 14 and 19(1)(g) of the Constitution of India and there was total non-application of mind and no reasoning has been assigned. It has also been contended that the petitioner was the lowest and successful bidder and thus, he is entitled to be awarded the contract. 3. According to the counsel for the respondents the tender notice was yet to be finalised since no decision was taken to allot the work to any particular tenderer and thus the petitioner has no right to get the work allotted in his favour. 3. According to the counsel for the respondents the tender notice was yet to be finalised since no decision was taken to allot the work to any particular tenderer and thus the petitioner has no right to get the work allotted in his favour. It has further been submitted that after the cancellation of aforesaid tender notice dated 18.8.2008 re-tender was made and the said re-tender is still in process and no final decision whatsoever has been taken in the said re-tender. It has also been contended that as per 23(a) of Clause 2 of the Bid document it is clearly specified as follows:- "The State Project Director, JEPC, reserves the right to accept or reject any bid and to annul the bidding process at any time prior to award of contract without thereby incurring any liability or any obligation to inform the affected bidder or bidders on the grounds for the said action." 4. According to respondents, the tender notice dated 18.8.2008 was not even finalized since no decision was taken to allot the work. It has also assigned the reasons for issuance of fresh short term re-tender notice which is quoted as under:- "That tender notice No. JEPC/1575 dated 18.8.2008 was not finalized since no decision was taken to allot the work to any particular tenderer and the petitioner being the lowest tenderer does not have right to get the work allotted in his favour. During the process of finalization of the said tender, the respondent-authorities reviewed the entire project for which NIT No. 1575 dated 18.8.2008 was issued and then it was decided that ongoing education on computer education and computer aided education, the criteria for taking commercial valuation was not in consonance with the object of computer aided education in schools, and therefore, it needs improvisation of many aspects like monitoring and supervision with school information system. The aforesaid decision was taken in a Review Meeting held on 13.10.2008 in presence of senior officials of Education Department and considering the urgency as well as need for improvisation, it was decided in the meeting to cancel the tender No. JEPC/1575 dated 18.8.2008." 5. I have gone through the pleadings and after hearing the counsel for the parties at length this writ petition is being disposed of at the admission stage. I have gone through the pleadings and after hearing the counsel for the parties at length this writ petition is being disposed of at the admission stage. It appears that the review committee in the re-tender notice in public interest included CAL content, student and school information system since the aforesaid two components are essential for supplementing the study materials of students. CAL content is a multimedia content, which is used for teaching hard spots in different subjects. The students can be given visual teaching in order to get them understood the things in case that particular portion could not be explained by the teacher. The aforesaid materials, in fact, were not included in the first tender notice. The next ingredient which is very important is school information system in which the officers sitting at State Level can come to know the day to day teaching output at the school level which is being carried out in different blocks and villages. It also helps in monitoring the day to day activities of the children and the schools situated at remote village level i.e. attendance of teacher, day to day teaching and recreational activities etc. 6. The aforesaid reason for re-tender is in general public interest and rather in consonance with public policy. Be that as it may, the law in this regard is well settled. The Hon'ble Supreme Court reported in 2007(2) SCC page 588 (Ramchandra Murarilal Bhattad and Others vs. State of Maharashtra and Others) has categorically held that the judicial review in tender matters should be acted with judicial restraints by the Courts and in particular it was held that change in the policy decision in the terms and conditions canceling the earlier bid and inviting fresh tender in view of the change in policy cannot be rendered or said to be illegal or otherwise vitiated by law unless it is opposed to public policy or contrary to any statutory provision. 7. The admitted fact remains that till date neither any notice has been sent for signing the contract/agreement nor the contract has been awarded in favour of the petitioner and thus, in any case there is no legal, accrued or vested right in favour of the petitioner to get it enforced through a writ of mandamus under Article 226 of the Constitution of India. The added new condition is in public interest and it is not contrary to any statutory provision or opposed to public policy. It is further well settled that a judicial review can be made with regard to the decision making process and not the decision itself. 8. Considering the aforesaid facts and circumstances of the case, this writ petition is dismissed being devoid of any merit.