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Himachal Pradesh High Court · body

2017 DIGILAW 864 (HP)

Chaitanya Enterprise v. State of H. P.

2017-07-28

AJAY MOHAN GOEL, SANJAY KAROL

body2017
JUDGMENT : Sanjay Karol, J. Petitioner lays challenge to Condition No.9, contained in the ‘Notice Inviting Tender’ for the work “Cleanliness of Municipal Council Area for Dehra Town” for the period 1.4.2017 to 31.3.2018. Condition No.9 prescribes the minimum eligibility criteria of work with any department of the Government, for a period of five years. 2. Certain facts are not in dispute. The work in issue pertains to the cleanliness of Municipal Council Area of Dehra. For the year 2015-16, work came to be allotted in favour of the present petitioner. 3. It is not in dispute that with the finalization of the tender, work stands allotted to private respondent No.4, who has also completed all the formalities. 4. From the response so filed on behalf of the Municipal Council, Dehra, it is evident that for the year 2016-17, though work was awarded to the petitioner, but however, he failed to fulfill the contractual obligations, inasmuch as neither stipulated and sufficient manpower was provided nor was the work executed to the satisfaction of the respondents. In fact, petitioner was found to be negligent, in executing the work of cleaning and sweeping the municipal area, due to which the public suffered. Noticeably, petitioner was informed of such fact, which is evident from communication dated 18.7.2016 (Page-88). Also petitioner failed to comply with the statutory obligations, vis-à-vis, the employees so engaged by him, which fact is also evident from the correspondence placed on record. Hence, it would not lie in the mouth of the petitioner to contend that for the previous year work executed by him was found to be satisfactory. 5. Be that as it may, only for the reason that work stood awarded to the petitioner for the previous year, and as such a right accrued, entitling him for automatic continuation of the contract beyond the stipulated period is not the legal position. Solely, on such account, no vested right accrues in favour of the petitioner. Now, what is that indefeasible and enforceable right of the petitioner, which stands violated, needs to be examined. 6. We do not find Condition No.9 stipulated in the Notice Inviting Tender, relating to work experience to be in any manner unreasonable, illogical or arbitrary. 7. Significantly, this Condition is being uniformly applied with respect to other Municipal Councils/Areas also. Now, what is that indefeasible and enforceable right of the petitioner, which stands violated, needs to be examined. 6. We do not find Condition No.9 stipulated in the Notice Inviting Tender, relating to work experience to be in any manner unreasonable, illogical or arbitrary. 7. Significantly, this Condition is being uniformly applied with respect to other Municipal Councils/Areas also. It is not that the Condition came to be incorporated malafidely only to suit the private respondent. In fact, as is so evident from the record, private respondent was not the sole bidder. Three persons had participated in the bidding and finding the private respondent to be eligible and competent, in all respects, work came to be awarded to him. 8. Scope of interference in the tendering process is now well settled. In the given facts and the circumstances, we find the following observations, so made by the apex Court, in the most recent decision, reported in JSW Infrastructure Limited & another v. Kakinada Seaports Limited & others, (2017) 4 SCC 170 , to be absolutely applicable: “8. We may also add that the law is well settled that superior courts while exercising their power of judicial review must act with restrain while dealing with contractual matters. A three Judge Bench of this Court in Tata Cellular v. Union of India, (1994) 6 SCC 651 , held that: (i) there should be judicial restraint in review of administrative action; (ii) the court should not act like court of appeal; it cannot review the decision but can only review the decision-making process; (iii) the court does not usually have the necessary expertise to correct such technical decisions; (iv) the employer must have play in the joints i.e. necessary freedom to take administrative decisions within certain boundaries.” 9. This Court in Saroj Garg v. State of Himachal Pradesh & others, 2011(3) Shim.LC 481 , has observed as under: “10. The scope of interference by the Court in tender/contractual matters in exercise of powers of judicial review is not well settled. This Court in Saroj Garg v. State of Himachal Pradesh & others, 2011(3) Shim.LC 481 , has observed as under: “10. The scope of interference by the Court in tender/contractual matters in exercise of powers of judicial review is not well settled. The Court is obliged to pose itself the following questions:- (i) Whether the process adopted or decision made by the authority is mala fide of intended to favour someone; or Whether the process adopted or decision made is so arbitrary and irrational that the Court can say: ‘the decision is such that no responsible authority acting reasonably and in accordance with relevant law could have reached’; (ii) Whether public interest is affected. If the answers are in the negative, the Court would refrain from granting indulgence of interference in the matter. [Jagdish Mandal v. State of Orissa, (2007) 14 SCC 517]” 10. In a recent decision rendered by a Coordinate Bench of this Court, in CWP No.359 of 2017, titled as M/s Zenith Event and Service and another v. State of H.P. and others, and connected matter, decided on 19.4.2017, has held as under: “22. In the judgments referred herein above, Hon’ble Apex Court has held that there is every presumption in favour of the administration that the power has been exercised bona fide and in good faith. It is to be remembered that the allegations of mala fides are often more easily made than proved and proof of high degree is required to prove the same.” 11. We cannot be oblivious to the fact that the work pertains to sanitation and cleanliness of municipal area, involving public hygiene and public health. As such, condition of experience of having worked with any Government organization for a period of five years cannot, by any stretch of imagination, be held to be unreasonable, illogical or arbitrary. Hence, for all the aforesaid reasons, we do not find any merit in the present petition, which is accordingly dismissed. Pending applications, if any, also stand disposed of. Interim orders stand vacated.