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Himachal Pradesh High Court · body

2022 DIGILAW 829 (HP)

Reena Rathore v. State of H. P.

2022-12-16

TARLOK SINGH CHAUHAN, VIRENDER SINGH

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JUDGMENT : TARLOK SINGH CHAUHAN, J. 1. The instant petition has been filed for grant of the following substantive relief: “(i) that rejection of the second tendering process vide Annexure P-3 and P-4 may kindly be quashed and set aside and respondent be directed to declare the petitioner qualified in Technical Evaluation and open the financial bid of the petitioner.” 2. The petitioner is working and engaged in business of supplying of air conditioner refrigeration product along with its installation in government and private sector under the name of M/s Modern Cooling Solution and, thus, has been taking such contracts from government and private organizations. It is averred that the petitioner has extensive experience in the field of supplying and installing air conditioner refrigeration products in big commercial and government projects. The petitioner is duly enlisted with CPWD Haryana and Punjab Governments as a registered supplier and contractor and there is no such requirement as regards State of Himachal Pradesh. 3. It is further averred that respondent No. 2, on behalf of the Government of Himachal Pradesh, invited bids vide e-procurement notice dated 11.4.2022 for the work “C/o Centre of Excellence in Mental Health for Dr. RPGMC Kangra at Tanda (Sh. Providing Variable Refrigeration Volume/Flow based HVAC System therein)” and the salient features of the notice inviting tender read as under: 1. Publish Date/Time 20.4.2022 5.00 P.M. 2. Document Download Start Date/Time 20.4.2022 5.00 P.M. 3. Bid Submission Start Date/Time 20.4.2022 5.00 P.M. 4. Bid Submission End Date/Time 28.4.2022 10.00 P.M. 5. Bid Opening Date/Time 28.4.2022 11.30 A.M. 4. The tender opening date was postponed vide corrigendum dated 5.5.2022 from 28.4.2022 due to administrative reasons and the amended schedule reads as under: 1. Publish Date/Time 12.5.2022 upto 5.00 P.M. 2. Bid submission closing Date/Time 20.5.2022 upto 10.00 A.M. 3. Bid Opening Date/Time 20.5.2022 at 11.30 A.M. 5. The petitioner submitted her bid in the above tendering process along with three bidders namely (i) Chill Point Engineering Limited; (ii) ESS Enterprises Electronics and (iii) Complete Cooling Solution. The bid was opened on 21.5.2022 at 11.30 A.M. when technical evaluation of the bid was undertaken by the committee of the respondents. It is further averred that the petitioner was informed by respondent No. 2 vide e-mail dated 14.7.2022 that her bid had been rejected during the technical evaluation by the committee for the reasons “technically not qualified.” 6. The bid was opened on 21.5.2022 at 11.30 A.M. when technical evaluation of the bid was undertaken by the committee of the respondents. It is further averred that the petitioner was informed by respondent No. 2 vide e-mail dated 14.7.2022 that her bid had been rejected during the technical evaluation by the committee for the reasons “technically not qualified.” 6. Thereafter, the petitioner downloaded technical evaluation summary from the website of the respondents and in the technical qualification, the summary name of the petitioner as found to have been appearing at Sr. No. 1 as she had qualified all the eligibility criteria, which was provided in the tender document and the bid of the petitioner was rejected only on account of the reasons stated in the last column headed as “Comments of this office” stating for the reasons “not qualified (unsatisfactory work execution report by the Executive Engineer, Una for the work C/o Multipurpose Centre at Samoorkalan in District Una (Sh. Providing Variable flow system therein).” Hence, the instant petition. 7. It is not in dispute that the petitioner has not been blacklisted and, therefore, in such circumstances, the moot question is whether the respondents could have held the petitioner, even though having fulfilled all requisite qualifications, to be not qualified only on the ground of unsatisfactory report for the earlier work, the final decision whereof is yet to be taken by the respondents. 8. Why we observe so, even though a plethora of documents and even record pertaining to execution of work at Samookalan have been produced before the Court, however it would go to reveal that final decision with regard to contract is yet to be taken. The matter was initially reported by the respondents to the petitioner vide letter dated 24.4.2022, whereby the petitioner was directed to deploy skilled technicians at the site and test the VRV system and make it in working order so that it could be handed over to the concerned department at the earliest. This was followed by communication dated 19.5.2022, but before any further action could be taken by the petitioner, the respondents while opening the tender in question i.e. “C/o Centre of Excellence in Mental Health for Dr. RPGMC Kangra at Tanda (Sh. Providing Variable Refrigeration Volume/Flow based HVAC System therein)” on 21.5.2022 appended the note against the working of the petitioner as quoted in verbatim in paragraph 6 (supra). 9. RPGMC Kangra at Tanda (Sh. Providing Variable Refrigeration Volume/Flow based HVAC System therein)” on 21.5.2022 appended the note against the working of the petitioner as quoted in verbatim in paragraph 6 (supra). 9. To say the least, the action of the respondents is nothing, but an arbitrary exercise of power. Since the impugned decision has deprived the petitioner of a fair chance to even participate in the tender process, the same leads to civil consequence, therefore, what was least expected of the respondents was to have at least observed bare minimal requirement of principles of natural justice and fair play. 10. The rights of persons or contractors, who submit tenders for government contracts, have been coming up increasingly before the Courts in the recent years. Several propositions have been innovated and settled by now. The Government cannot reject a tender arbitrarily or without following due process. Likewise, it is also imperative for the Government to follow requisite procedure and principles of natural justice before deciding to exclude someone from consideration. 11. Equally settled is the proposition that insofar as the government contracts realm is concerned, the Government is not and should not be permitted to act like an individual in selecting the persons for its largesse. Whatsoever its activity or deal, still the Government is and will be subject to restraints inherent in a democratic set-up. The government cannot lay down arbitrary or capricious standards or criteria, regarding the choice of a person with whom it would like to deal with and move like a free roman knight, thus, has to be adhered to equality as enshrined under article 14 of the Constitution and also respect the guarantee to freedom of trade; subject to reasonable restrictions in the public interest. 12. It is also no longer res integra that no action of the Government should prejudice or affect adversely the rights of its subjects, more so, when it impinges upon its subjects' right relating to trade, commerce or for that matter even political interests. 13. 12. It is also no longer res integra that no action of the Government should prejudice or affect adversely the rights of its subjects, more so, when it impinges upon its subjects' right relating to trade, commerce or for that matter even political interests. 13. Therefore, in such circumstances, if the respondents were really serious and content that the petitioner had to be kept away from the consideration in the tender process, then, the least that was expected of the respondents to have at least taken a decision upon earlier tender relating to work of construction of multipurpose culture centre at Samoor Kalan and having not taken the final call, the respondents cannot be permitted to predetermine the issue, that too, to the disadvantage of the petitioner without affording him a fair opportunity of putting forth her version. 14. What, thus, is required to be examined, analyzed and evaluated by this Court, on the anvil of judicial scrutiny under Article 226 of the Constitution of India, is as to whether the respondents have acted fairly, reasonably and justly with regard to the impugned decision. The Court has to consider the decision making process and examine as to whether it is, in any manner, adulterated, polluted or affected by extraneous considerations, including bias, mala-fide and unreasonableness, unfairness, and/or in violation of principles of natural justice. It is the content and the colour of the decision making process and not the quality that should be in the focus. 15. As observed above, the respondents are yet to take final decision with regard to not only the payments, but also with regard to satisfactory and unsatisfactory work of the earlier project undertaken by the petitioner and in absence of any decision, solely on the basis of certain correspondence, the respondents cannot be permitted to have damocles’ sword hanging over the head of the petitioner indefinitely. 16. It is incumbent upon the respondents to have first taken the decision with regard to earlier tender relating to work of construction of multipurpose culture centre at Samoor Kalaln in District Una and then proceeded to take action in accordance with law against the petitioner and having failed to do so, the decision of the respondents to exclude the petitioner even from consideration is rendered vulnerable and cannot sustain in the eyes of law. 17. 17. By not considering the case of the petitioner and rejecting it at the threshold, the respondents have virtually tried and treated the petitioner to have been blacklisted, which action is impermissible in law. Even as per the respondents, the petitioner has not been blacklisted and if that be so, then the least that the petitioner was having is the right of consideration, more so, when no final decision on the earlier work executed by the petitioner has been arrived at. The least that was otherwise expected of the respondents to have supplied the material, on the basis of which, charges against the petitioner were based and further opportunity of show cause ought to have been afforded to the petitioner in the peculiar facts and circumstances of the case and what cannot be done directly or cannot be permitted to be done indirectly is that the petitioner should not have been excluded from an opportunity to carry on trade that would be in violation of articles 14 and 19(1) of the Constitution of India. 18. In view of the aforesaid discussions and for the reasons stated hereinabove, we find merit in the instant petition and the same is accordingly allowed by quashing rejection of the second tender process vide Annexure P-3 and P-4 and directing the respondents to reconsider the case of the petitioner initially for the technical bid evaluation and if found, eligible and qualified, then open the financial bid submitted by him and thereafter take the decision for allotment of tender in question in accordance with law. Pending applications, if any, also stands disposed of.