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2019 DIGILAW 1644 (JHR)

Md. Asif Zafar v. State of Jharkhand

2019-09-17

SUJIT NARAYAN PRASAD

body2019
ORDER : I.A. No. 8645 of 2019 1. Learned counsel for the petitioner has submitted by pressing the Interlocutory Application, being I.A. No. 8645 of 2019 that it has been filed for impleadement of the successful bidder, who could not have been impleaded as party to the proceeding, therefore, leave of this Court has been sought for to allow the petitioner to implead the successful bidder, namely, M/s Sarveshwari Construction through its Proprietor Deepak Kumar Gupta, having its office at Baraik Mohala, Bara Durga Road, Gumla, P.O and P.S. Gumla, District-Gumla, as respondent no. 9 to the writ petition. 2. The aforesaid application has not been objected by learned counsel for the respondents. This Court, therefore, before entering into the merit of the issues deem it fit and proper to allow the prayer made in the Interlocutory Application taking into consideration the reasons assigned therein and considering the fact that the petitioner is challenging the decision taken by the tender committee, whereby and whereunder the tender committee has taken decision to allot the work in favour of M/s Sarveshwari Construction, therefore he being the necessary party is required to be impleaded party to the proceeding for proper adjudication of the issue. In view thereof, the prayer made in the Interlocutory Application needs to be allowed. Accordingly, I.A. No. 8645 of 2019 stands allowed. In consequence thereof, M/s Sarveshwari Construction through its Proprietor Deepak Kumar Gupta, having its office at Baraik Mohala, Bara Durga Road, Gumla, P.O and P.S. Gumla, District-Gumla is directed to be impleaded as respondent no. 9. Office is directed to make necessary addition in the cause title of memo of writ petition. W.P. (C) No. 8645 of 2019 3. This writ petition is under Article 226 of the Constitution of India whereby and whereunder the decision taken by the tender committee dated 29.06.2019 has been assailed on the ground that work order has not been issued in favour of the petitioner even though he is the senior to all the bidders, no tender work has been allotted to him. Learned counsel for the petitioner has submitted that the petitioner has come before this Court against the decision taken by the tender committee dated 29.06.2019 whereby and whereunder the work order has been issued in favour of the respondent no. 9, which has been assailed on the ground that the petitioner although is senior to respondent no. Learned counsel for the petitioner has submitted that the petitioner has come before this Court against the decision taken by the tender committee dated 29.06.2019 whereby and whereunder the work order has been issued in favour of the respondent no. 9, which has been assailed on the ground that the petitioner although is senior to respondent no. 9 and as such the work in question ought to have been allotted in his favour, by not taking such decision, the tender committee has committed illegality in reaching to the conclusion in the decision making process, therefore, the same requires interference. 4. Mr. Shashank Shekhar Prasad, learned counsel appearing for respondent no. 4 has submitted, by repudiating the claim and ground agitated by petitioner, referring to the decision taken by the tender committee dated 29.06.2019, as contained in Annexure 2 appended to the writ petition whereby and whereunder altogether four bidders have participated in the bid and all of them have been qualified technically, out of them, on the basis of experience since the work order has been issued in favour of Jagriti Construction of group 3 pertaining to Notice Inviting Tender 01/2018-19, the second bidder, namely, M/s Shamim Khan, who was placed at serial no. 2 in seniority, has also been allotted work pertaining to group no. 2 arising out of Notice Inviting Tender No. 03/2018-19 and rest of two bidders, namely M/s Asif Zafar, the petitioner herein, has also been allotted work being Notice Inviting Tender No. 09/2018-19 in group no. 7, therefore, the last bidder namely, M/s Sarveshwari Construction has been allotted work. Hence, the submission has been made by him that for all the four bidders single parameter has been adopted while allotting the work and in view thereof, there is no error in decision making process. Therefore, this Court may not be interfered with the decision making process taken by the technical committee. 5. Having heard learned counsel for the parties and on appreciation of rival submissions, the fact which is not in dispute in this case is that a Notice Inviting Tender has been issued being NIT No. GML/NP/14/2018-19 for the purpose of certain renovation and rectification of various job situated in the district of Gumla. In pursuance to the aforesaid tender, four bidders have participated including the petitioner. In pursuance to the aforesaid tender, four bidders have participated including the petitioner. Tender committee has assessed the candidature of one and other bidder and in course of taking such decision all the four bidders have been found technically qualified since their rate has been found to be 10 % less than the schedule rate and, therefore, their candidature has been considered on the basis of experience. It is further evident from the said decision that bidder no. 1 and 2, namely, Jagriti Construction and Ms. Shamim Khan, have not been considered reason being that they have already been allotted work pertaining to the other tender of different groups. The petitioner, M/s Asif Zafar, has also not been selected to allot the work on the same parameter as that of decision taken in respect of aforesaid two bidders, namely, Jagriti Construction and Ms. Shamim Khan, since in favour of petitioner also work has been allotted in pursuance to Notice Inviting Tender No. 09/2018-19 in group no. 7 and in consequence thereof, respondent no. 9, namely, M/s Sarveshwari Construction being a single bidder left, the work has been allotted in his favour. The aforesaid decision is being challenged by the petitioner invoking jurisdiction of this Court by exercising power of judicial review conferred under Article 226 of the Constitution of India, in the matter of tender. It is not in dispute that in the matter of tender the scope of judicial review of the High Court is very limited and to be exercised only in the decision making process, if there is any error in decision making process, subject to the arbitrariness, or suffers from the vice of Article 14 of the Constitution of India. 6. It is not in dispute that in the matter of tender the scope of judicial review of the High Court is very limited and to be exercised only in the decision making process, if there is any error in decision making process, subject to the arbitrariness, or suffers from the vice of Article 14 of the Constitution of India. 6. So far as legality and propriety of the decision of the tender committee is concerned, it is not in dispute that a writ Court sitting under Article 226 of the Constitution of India, in exercise of power of judicial review, cannot interfere with the tender process but only to the extent where there is error in the decision making process and in the decision taken by the authority as has been held in the case of Tata Cellular vs. Union of India, (1994) 6 SCC 651 , wherein the Hon'ble Apex Court has been pleased to hold, which reads hereunder as: “Judicial review is concerned with reviewing not the merits of the decision in support of which the application for judicial review is made, but the decision-making process itself. It is thus different from an appeal. When hearing an appeal, the Court is concerned with the merits of the decision under appeal. Since the power of judicial review is not an appeal from the decision, the Court cannot substitute its own decision. Apart from the fact that the Court is hardly equipped to do so, it would not be desirable either. Where the selection or rejection is arbitrary, certainly the Court would interfere. It is not the function of a judge to act as a super-board, or with the zeal of a pedantic schoolmaster substituting its judgment for that of the administrator.” Reference may also be made to the judgment rendered in the case of Siemens Public Communication Networks Private Limited and Another vs. Union of India and Others, (2008) 16 SCC 215 wherein at paragraph 40 the Hon'ble Apex Court has been pleased to hold as under: “40.........When the power of judicial review is invoked in the matters relating to tenders or award of contracts, certain special features have to be considered. A contract is a commercial transaction and evaluating tenders and awarding contracts are essentially commercial functions. In such cases principles of equity and natural justice stay at a distance. A contract is a commercial transaction and evaluating tenders and awarding contracts are essentially commercial functions. In such cases principles of equity and natural justice stay at a distance. If the decision relating to award of contracts is bona fide and is in public interest, courts will not exercise the power of judicial review and interfere even if it is accepted for the sake of argument that there is a procedural lacuna.” 7. This Court after going across the factual aspect of the case as also the proposition of law, as has been settled and referred herein above, has found that the tender committee, consisting of five members, have considered the candidature of all four bidders, who have been technically qualified and therefore, has fixed the parameter to consider and select, on the basis of experience and while doing so the candidature of three bidders including the petitioner having found to be not fit to allot work on the basis of fact that all the three bidders have been allotted work in their favour in pursuance to the different tender pertaining to different work. Therefore, the tender committee has adopted the similar parameter for considering the candidature of the bidder namely, Jagriti Construction, Md. Shamim Khan to that of the consideration of candidature of the petitioner, who have found to be not fit to be selected for the work since in favour of petitioner also work has been allotted pertaining to Notice Inviting Tender No. 09/2018-19 in group no. 7 and the respondent no. 9 being the single bidder thereafter has been allotted work. 8. This Court, therefore, is of the view that the tender committee has adopted a policy for assessing the candidature of one or the other bidder and as such the petitioner's submission that his candidature ought to have been considered on the basis of seniority but here the seniority has not been made parameter for consideration of candidature rather experience has been made basis for candidature of allotment of work, therefore, there is no error in the decision making process since no difference yardstick has been adopted in scrutinizing of candidature of the petitioner to that of other two bidders, namely, Jagriti Construction and Md. Shamim Khan and hence it cannot be said that the decision taken by the tender committee suffers from vice of Article 14 of the Constitution of India. Shamim Khan and hence it cannot be said that the decision taken by the tender committee suffers from vice of Article 14 of the Constitution of India. Further, this Court is of the view that since the tender committee has adopted a uniform policy for selecting the candidature of the allotment of work as also for screening out the other candidate, as such it cannot be said that there is any error in the decision making process leading to any interference by this Court in exercise of power of judicial review conferred under Article 226 of the Constitution of India. 9. In view thereof and taking into consideration and taking into consideration the uniform policy that has been adopted in comparing the factual aspect as discussed above, this Court is of the view that decision taken by the tender committee requires no interference by this Court in exercising power of judicial review under Article 226 of the Constitution of India. 10. Accordingly, this writ petition stands dismissed.