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2018 DIGILAW 494 (JK)

Nice Electricals v. Union of India

2018-07-11

DHIRAJ SINGH THAKUR

body2018
JUDGMENT : 1. Petitioners challenge the action of the respondents in rejecting the technical bids submitted by them. 2. Briefly stated, the material facts are as under: I. The respondents issued a tender notification dated 8th May, 2018 inviting eligible contractors to submit the bids for allotment of various works highlighted therein. The works required to be executed were electrical in nature. II. According to the terms and conditions of the tender document, the intending bidders were required to be approved eligible electrical contractors of the CPWD and those of the appropriate list of departments of MES, BSNL, Railways and State PWD (R&B). The petitioners claim to be the registered electrical contractors of the State of Jammu and Kashmir through Power Development Department. III. It was urged that the petitioners had approached the respondents not to insist upon the condition of registration with the Public Works Department of the State as the said department was only concerned with the civil works and not the electrical works and that the respondents had assured the petitioners that their bids would be considered accordingly. IV. Considering themselves eligible, on the assurance extended by respondent No.4, therefore, petitioners urged that they submitted the on-line bids for participation and evaluation in the tendering process. However, to their surprise, the technical bids submitted by the petitioners were rejected in the status updated on the official website of the respondents on 2nd July, 2018. 3. In the background of the aforementioned facts, it was urged that the rejection of the technical bids by the respondents without its communication was arbitrary and unfair and further that the petitioners should have been considered as eligible, inasmuch as they had been licensed under category ‘A’ by the State Power Development Department and were otherwise technically qualified for participation in the tendering process. It was reiterated that the registration with the State Public Works Department, which is not in the least concerned with the electrical trade, was, therefore, totally irrational and arbitrary rendering the rejection of the technical bids totally illegal and bad. 4. Counsel for the respondents, Mr. Shamsi, ASGI, submitted that the petitioners cannot question the rejection of their technical bids, inasmuch as, admittedly, they did not qualify as the petitioners were not registered with the State Public Works Department. 4. Counsel for the respondents, Mr. Shamsi, ASGI, submitted that the petitioners cannot question the rejection of their technical bids, inasmuch as, admittedly, they did not qualify as the petitioners were not registered with the State Public Works Department. It was submitted that the petitioners had submitted their bids and participated in the tendering process without raising any objection to the clause which required their registration with the Public Works Department. In any case it was submitted that the petitioners cannot be permitted to question the terms and conditions of the tender notice including the one which required contractor’s registration with the Public Works Department as the terms and conditions of a tender notice are in themselves in the realm of contract and thus not open to judicial scrutiny. Reference in this regard was made to the “Tata Cellular v. Union of India, (1994) 6 SCC 651 . 5. It was also urged that the technical bids were opened on 30th May, 2018 and the rejection uploaded on 2nd July, 2018 on the official website as is reflected in the annexure figuring at page No.29 of the writ petition. It was further stated that pursuant to the opening of financial bids, the work was allotted on 30th June, 2018 and is currently in progress. It was thus urged that the petitioners having remained silent all along cannot, at this stage, be permitted to challenge the process of tendering when third party rights have already been created in the successful bidder. 6. Heard learned counsel for the parties. 7. The primary ground on which the petitioners challenge the rejection of their technical bids is that even though they did not fulfil the terms and conditions of the tender notice as regards registration with Public Works Department, they should have been considered as eligible as they were registered with the State Government through Power Development Department. Whether the condition, prescribing registration of the contractors with the Public Works Department, was a good condition or not cannot be gone into by this Court in the writ jurisdiction in view of what was observed by the Hon’ble Apex Court in Tata Cellular (supra), wherein paragraph 94, their Lordships held thus: “(1)The modern trend points to judicial restraint in administrative action.(2) The Court does not sit as a court of appeal but merely reviews the manner in which the decision was made. (3) The court does not have the expertise to correct the administrative decision. If a review of the administrative decision is permitted it will be substituting its own decision, without the necessary expertise which itself may be fallible. (4) The terms of the invitation to tender cannot be open to judicial scrutiny because the invitation to tender is in the realm of contract. Normally speaking, the decision to accept the tender or award the contract is reached by process of negotiation through several tiers. More often than not, such decisions are made qualitatively by experts. 8. Assuming that the petitioners could have challenged even the terms and conditions of the tender notice yet it needs to be noticed that the petitioners did not do anything in that regard and proceeded to submit their bids which were bound to be rejected in view of the fact that they did not have the registration with the Public Works Department. Not only this, the petitioners continued to remain silent from the date when their technical bids were rejected and the allotment made in favour of the successful bidder on 30th June, 2018. Any interference at this stage, even otherwise, would affect third party rights. 9. Having considered the matter in its entirety, I am of the opinion that the rejection of the petitioners’ technical bids, in those circumstances, cannot be said to be bad or illegal. 10. For the reasons stated above, petition is found to be without merit and is, accordingly, dismissed along with connected MP.