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2017 DIGILAW 476 (ORI)

Sriram Intelligence Securities Pvt. Ltd. , Bhubaneswar v. Collector-cum-Chairman, RMSA Nuapada

2017-04-26

K.R.MOHAPATRA, VINEET SARAN

body2017
JUDGMENT : K.R. MOHAPATRA, J. This writ petition has been filed assailing the Tender Cancellation Notice dated 28.10.2016 (Annexure-3) and also for a direction to opposite parties to award the tender in favour of the petitioner pursuant to tender call notice dated 24.02.2016 (Annexure-1) for selection of Manpower Services Providers for engagement of 15 numbers of Class-IV post in Odisha Adarsha Vidyalaya (Model Schools) under Nuapada district. 2. The case of the petitioner is that the District Project Coordinator-cum-District Education Officer, Nuapada-opposite party No.2 had invited sealed tender vide tender call notice dated 24.02.2016 for selection of Manpower Services Provider for engagement of 15 numbers of Class–IV posts in Odisha Adarsha Vidyalaya (Model Schools) under Nuapada district for the year 2016-17. Pursuant to the said tender call notice dated 24.02.2016 (Annexure-1), petitioner had submitted its tender papers within the stipulated period, last date being dated 11.03.2016. The technical bid was opened on 11.03.2016. Petitioner along with ten others were found eligible in the technical bid. Out of them, nine bidders were qualified for the financial bid, including the present petitioner. Subsequently, on 22.03.2016 the financial bid was opened. On scrutiny, it was ascertained that the petitioner was the L-1 and M/s Sumeet Security Services was L-2. Other bidders were not qualified as they had quoted less than 2% of the gross amount quoted by them as service charges. It is worth-mentioning here that as per Clause-4 of the financial bid, the service charges quoted should not be less than 2% of the gross amount. The petitioner-agency had quoted the gross amount of Rs.6248.99/- paisa per person, which included Rs.124.98/- paisa as service charges, which was Rs.0.01 paisa more than the 2% gross amount quoted by the petitioner. Similarly, M/s. Sumeet Security Agency had quoted a gross amount of Rs.6245.00/- paisa per person and Rs.125/- as service charges, which was also more than 2% towards service charges. As such, the petitioner was hopeful of being awarded with the contract. But to his utter surprise, the tender call notice was cancelled vide tender cancellation notice dated 28.10.2016 (Annexure-3) without assailing any reason thereto. Hence, the petitioner being deeply aggrieved by such tender cancellation notice, has filed the writ petition seeking aforesaid relief. 3. As such, the petitioner was hopeful of being awarded with the contract. But to his utter surprise, the tender call notice was cancelled vide tender cancellation notice dated 28.10.2016 (Annexure-3) without assailing any reason thereto. Hence, the petitioner being deeply aggrieved by such tender cancellation notice, has filed the writ petition seeking aforesaid relief. 3. Counter affidavit has been filed by the opposite party No.2 contending that at Clause-4 of the application for financial bid, it was categorically mentioned that, as District Office is to deduct TDS (IT) @ 2% of the gross billed amount, the service charges quoted should not be less than 2% of the gross amount. Bid of the bidder quoting less than 2% of the gross amount as service charges will be rejected. The tender committee meeting was held on 19.03.2016 in the official chambers of Additional District Magistrate. Out of eleven numbers of bidders participated in the process, nine were qualified for financial bid and after opening of the financial bid, it was found that six numbers of bidders had quoted the service charges of Rs.124.97/- paisa. One M/s. Quantum Global Infratech Ltd. quoted lowest service charges of Rs.105/-. The petitioner-agency had quoted the service charges at Rs.124.98/- paisa and M/s.Sumeet Security Service had quoted Rs.125/-. Since the service charges quoted by the petitioner along with seven others being less than 2% of the gross amount, they were not found eligible in the financial bid. However, the service charges quoted by M/s. Sumeet Security Service was exactly 2% of the gross amount. Thus, it was unanimously decided to put up the matter before the Collector, Nuapada for final decision. It is further contended in the counter affidavit that the Odisha Adarsha Vidyalaya Sangathana, vide letter dated 07.02.2016 (Annexure-E/2), communicated to the Collector and District Magistrate, Kandhamal, copy of which was communicated to different Collectors and District Education Officers including the Collector, Nuapada as well as DEO, Nuapada, indicating the breakup of consolidated remuneration of Rs.6,250/- of Class-IV staff (Science Attendant, Office Peon and Night Watcher-cum-Sweeper) to be outsourced for Odisha Adarsha Vidylya (Model Schools). It was indicated therein that the base remuneration is Rs.4,515/-, employer’s contribution to EPF is Rs.603/-, employer’s contribution to ESI is Rs.215/- services charges @ 2% of ‘gross remuneration’ is Rs.125/-, Service Tax (@ 14.5%) of column (1+2+3+4) is Rs.792/-, which comes to ‘gross remuneration’ per manpower per month to be Rs.6,250/-. Taking into consideration letter under Annexure-E/2, the Collector, Nuapada opined that some of the bidders had quoted less than 2% of services charges keeping the remuneration intact, which was incongruous. Further, the condition of service charges notified by the DEO, Nuapada (opposite party No.2) in the tender call notice was in contradiction of the Government guidelines for which he recommended for cancellation of tender call notice. Accordingly, Annexure-3 was issued. As such, there is no illegality in issuing Annexure-3. Further, it was specifically mentioned in the tender call notice that the Collector and Chairman, RMSA reserves the right to annul any of the bids without assigning any reason thereof. Thus, no fault can be attributed to the opposite parties for issuance of Annexure-3. Hence, the writ petition is liable to be dismissed. 4. Heard Mr. Dhananjaya Mund, learned counsel for the petitioner and Mr.S.K. Samal, learned Standing Counsel for the School and Mass Education Department. 5. Mr. Mund, learned counsel for the petitioner, referring to paragraph-6 of the writ petition, submitted that as per Claus–4 of the financial bid application, he had quoted the gross amount as Rs.6,248.99/- paisa per person, which included Rs.124.98/- paisa as service charges. As such, the service charges quoted by him was Rs.0.01 paisa more than 2% of the gross amount he had quoted. The tender call notice never indicated that the service charges should be more than 2% of the ‘gross remuneration’. The opposite parties, in order to justify their action, have resorted to Annexure E/2, which is not permitted in law in view of the ratio decided in Mohinder Singh Gill & Anr. Vs. The Chief Election, reported in AIR1978 SC 851. The law is well-settled that the order canceling tender should be reasoned one. Due to the arbitrary action of the opposite parties, the petitioner had suffered a lot. In that view of the matter, he prayed for setting aside the tender cancellation notice issued under Anneuxre-3 and prayed for awarding the contract in his favour. The law is well-settled that the order canceling tender should be reasoned one. Due to the arbitrary action of the opposite parties, the petitioner had suffered a lot. In that view of the matter, he prayed for setting aside the tender cancellation notice issued under Anneuxre-3 and prayed for awarding the contract in his favour. Mr.Mund also placed reliance on a decision of this Court in the case of M/s Shree Ganesh Construction Vs. State Orissa and others, reported in 2016 (II) OLR 237. 6. Mr. Samal, learned Standing Counsel for the School and Mass Education Department reiterated the plea taken in the courter affidavit and prayed for dismissal of the writ petition. He relied upon the case of State of Jharkhand and others Vs. M/s. CWE-Soma Consortium, reported in AIR 2016 SC 5566 and submitted that in case of a tender, there is no obligation on the part of the person issuing tender notice to accept any of the tenders or even the lowest tender. He further submitted that so long as the bid is not accepted the lowest bidder acquires no vested right to have an auction concluded in his favour. Hence, he prayed for dismissal of the writ petition. 7. Having heard learned counsel for the parties and on perusal of the record, it appears that the tender call notice under Annexure-1 does not whisper a single word about quoting service charges more than 2% of the ‘gross remuneration’. Clause-4 of the financial bid application clearly stipulates that the service charges quoted should not be less than 2% of the ‘gross amount’. The opposite parties have tried their level best to justify their action resorting to the letter dated 17.02.2016 (Annexure-E/2) issued by the State Project Director to the Collector and District Magistrate, Kandhamal, copy of which was communicated was also communicated to the Collector and District Magistrate, Nuapada as well as DEO, Nuapada. In the said letter, it is indicated that the service charges should be calculated @ 2% of the ‘gross remuneration’, which was not there in the tender call notice. There is no quarrel to the ratio decided in the case of M/s. CWE-Soma Consortium (supra) relied upon by Mr.Samal. But, the same has no application to the present case in view of the fact that the impugned tender cancellation notice under Annexure-3 has been issued without assigning any reason thereto. There is no quarrel to the ratio decided in the case of M/s. CWE-Soma Consortium (supra) relied upon by Mr.Samal. But, the same has no application to the present case in view of the fact that the impugned tender cancellation notice under Annexure-3 has been issued without assigning any reason thereto. Mr.Samal referring to the counter affidavit has made an endeavour to justify the action of the authorities in cancelling the tender call notice which is not permissible in law. In the case of Mohinder Singh Gill (supra), Hon’ble Apex Court at para-8 held as follows: “8. The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought, out. We may here draw attention to the observations of Bose J. in Gordhandas Bhanji ( AIR 1952 SC 16 "Public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to, do. Public orders made by public authorities are meant to have public effect and are intended to effect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself." Similar view is taken by this Court in M/s Shree Ganesh Construction (supra). As such, the opposite parties cannot justify their action in cancelling the tender call notice by supplementing reasons, which was not available in the impugned notice under Annexure-3 itself. As such, the cancelation of tender resorting to a reason, which was not there in the tender call notice, cannot be held to be justified being de hors the law. The petitioner at paragraph-6 of the writ petition, has specifically stated that he had quoted gross amount Rs.6,248.99/- paisa per person which included Rs. 124.98/- paisa as service charges quoted by him. The service charges quoted by him is more than 2% of the gross amount of Rs.6248.99/- paisa. The petitioner at paragraph-6 of the writ petition, has specifically stated that he had quoted gross amount Rs.6,248.99/- paisa per person which included Rs. 124.98/- paisa as service charges quoted by him. The service charges quoted by him is more than 2% of the gross amount of Rs.6248.99/- paisa. There is no specific denial to the same in the counter affidavit. There being no specific denial to the averment that the petitioner was L-1 bidder, in all probability, the petitioner would have been the successful bidder. Thus, due to the arbitrary action of the opposite parties, the petitioner being the L-1 bidder had to suffer. 8. In that view of the matter, tender cancellation notice dated 28.10.2016 (Annexure-3) is not sustainable in the eyes of law and is quashed. Since the period for which the tender was invited has already been over since March, 2017, we are not in a position to direct the opposite parties to award the tender in favour of the petitioner. However, due to the illegal and arbitrary action of the opposite parties, the petitioner is made to suffer and should be duly compensated for the same. Accordingly, we direct that a sum of Rs.50,000/- (rupees fifty thousand) shall be paid by the opposite parties to the petitioner towards loss he has suffered, which according to us is just and adequate in the facts and circumstances of the case. 9. The writ petition is accordingly allowed.