Anil Kumar Grover vs Union of India and Others

Dipak Misra, J.

The petitioner, as pleaded, initially was working along with his father, in the field of construction and thereafter started the work in the name of M/s Anil Kumar Grover. He had undertaken many an important and prestigious works and successfully completed the same. Various assertions have been made with regard to his ability, capacity, efficiency and the work done by him. It is urged in the petition that a notice inviting tender (for short ''NIT'') was published by the respondents with certain stipulations which included that the contractor must be registered with MES in SS Class category. The petitioner is a registered contractor with the Public Works Department (PWD) in A-5 Class. This category is meant for execution of work of unlimited sum. It is contended in the petition that he was eligible for obtainment of the tender inasmuch he had satisfied all the conditions, but he was shocked when he received a letter dated 6-5-2005, Annexure-P/3, issued by the Deputy Director (Contracts) on behalf of the Chief Engineer, MES, to the effect that he would not be issued tender forms. As there was a postulate in tender conditions that an appeal could be filed against the aforesaid order, the petitioner preferred an appeal before the Chief Engineer, Headquarters, Central Command, Lucknow but the appellate authority rejected the appeal in an erroneous manner. Be it noted, the factum of disposal of the appeal as per Annexure-P/9, was brought on record by way of an amendment.

It is asseverated that the petitioner has a very good track record. He is qualified for township project under the Bhopal Development Authority and with many other companies. It is put forth that in February, 2001, a similar situation had occurred and tender form was not issued, as a consequence of which he had to knock at the doors of this Court in Writ Petition No.3434/2001 wherein this Court held in his favour on the foundation that the NIT did not stipulate or incorporate any condition with regard to past track record. The said order was assailed in LPA No.694/2002 which affirmed the order passed by the learned Single Judge. The stand of the petitioner is that it is absolutely erroneous on the part of the respondents to keep him at bay on the spacious ground that he had a very bad past track record, though such a condition was not incorporated in the NIT and further refusal of tender form on the base of past track record is unsustainable inasmuch as the authorities are still carrying on work with him. In addition, the stance is that the decision regarding past track record of the petitioner is fallible and suffers from perversity of approach. It is set forth that tender forms have been issued to certain contractors despite the factum that they do not belong to SS Class. With these assertions prayer has been made to issue a writ in the nature of mandamus commanding the respondents not to issue tender forms to those persons who were ineligible and further to issue tender form to the petitioner by extending the date so that, the petitioner who had the legitimate expectation to get the tender form and participate in the tender, is not shattered and annihilated.

It is pertinent to mention here that on 6.6.2005 this Court had passed an interim order in favour of the petitioner and, therefore, the respondent-owner was compelled to file an application for recall and on a perusal of the said application for recall it is quite vivid that it was a counter affidavit from all angles and accordingly, it is treated to be a counter affidavit. It is set forth in the said application that the petitioner was awarded a work, namely, construction of ''Arrestor Butt'' at LPR, Khamariya and his progress was slow since he had to perform more than 80 percent but he had only achieved 0.98 per cent of work inspite of numerous reminders. The petitioner replied to the said letter addressing it to the Garrison Engineer, as per Annexure-A. Certain explanation had been preferred by the petitioner. It is narrated in the application for recall that on verification the petitioner had completed only 28 per cent of the work and he had not completed the work as per the worksheet and the delay in finalization of the work had affected the owner. An application for taking documents on record has been filed to highlight the issue that several communications were issued to the petitioner and in fact the petitioner was called upon to show cause why he should not be banned from being treated as a tenderer. The progress of work allotted to the petitioner has been drastically slow and he has made a Sisyphean endeavour to continue with the Department.

It is relevant to state that an application for intervention by M/s Rahul Construction (India) Pvt. Ltd. has been filed and this Court at the time of final hearing had observed that the same shall be dealt with at the time of delivery of judgment.

I have heard Mr.Rajendra Tiwari, learned Senior Counsel along with Mr. S. Awasthi for the petitioner and Mr.B.D''Silva, learned Senior Counsel along with Mrs. Kanak Gaharwar for the respondents. Mr. Satish Sharma, learned Senior Counsel for the intervener has also addressed this Court.

It is worth -mentioning here that this Court had directed to produce the file dealing with the tender and the same has been produced. Taking leave of the Court Mr. Rajendra Tiwari, learned Senior Counsel has perused the said record which was made available to him by Mr. B. D''Silva.

At the very outset, it is imperative to clarify that the application for intervention has been filed after opening of the tender and as put forth by Mr. Sharma, learned Senior Counsel for the intervener, he has substantial right and it should not be put to jeopardy. Considering the aforesaid, I am inclined to allow the application for intervention.

Mr. Rajendra Tiwari, learned Senior Counsel appearing for the petitioner has raised the following contentions:

(a) In the absence of stipulation in the Notice Inviting Tender that the contractor whose past track record is unsatisfactory would not be issued tender forms, the said condition cannot be taken resort to deny the tender forms to the petitioner as such an action epitomises whims, fancy and total arbitrariness which is not permissible while awarding contract by a public authority.

(b) Assuming such a condition has been incorporated, there is no ounce of material to show that the petitioner''s past track record is unsatisfactory and, therefore, the original authority as well as appellate authority should have been well advised to issue the tender form to him when applied for.

(c) No opportunity of hearing was given to the petitioner before deciding that no tender form would be available to him and that makes the decision sensitively vulnerable.

(d) The intervener has been selected though he had not applied for and his offer was solicited by the respondents and hence, the whole action is replete with malafide and deserves to pave the path of extinction.

Mr. B. D''Silva, learned Senior Counsel appearing for the respondents countering the aforesaid arguments propounded as under:

(i) Submission of the learned counsel for the petitioner that there was no incorporation of the condition as regards the unsatisfactory past track record to be disabled for issue of tender form, is not an acceptable argument, since the petitioner was very much well aware of the same because of the document that has been brought on record at his instance as per Annexure-P/2.

(ii) The appellate authority while dismissing the appeal has categorically and unequivocally expressed the view that there has been delay and laches in the progress of work on the part of the petitioner, for he had concluded 0.98 per cent of work instead of 52 per cent and, thereafter, the exclusion of the petitioner at the threshold cannot be found fault with.

(iii) The petitioner, being put of the fray from the very beginning and decision in that regard being justified, has no locus standi to prefer a petition and further even if is argued that he has a grievance which is to be taken note of in law by treating it to be legal right, then also at his instance the whole tender proceeding should not be quashed.

(iv) The respondents have to complete the work in a particular stipulated period and the work is meant for the Army and hence, they have to be allowed some free play in the joints and once the said concept gets ushered in, the grievance of the petitioner is sans substance.

(v) The respondents had received six tenders as per NIT but as six of them were not suitable for the job, as felt by the Tender Committee, correspondences were made with eight SS Class contractors out of whom two responded and the intervener has been selected. In a case of this nature tremendous public interest is involved and the same should not be guillotined at the instance of a person, who really basically has no right.

Before I proceed to deal with the factual score whether the petitioner was entitled to issue of tender form, it is condign to refer to certain decisions with regard to the scope of judicial review as regards to grant of contract and distribution of State largess and further the scope of judicial interference in the context of the NIT.

In the case of Mahabir Auto Stores vs. Indian Oil Corporation, AIR

1990 SC 1031 their Lordships expressed the view that the State when acting in its executive power, into contractual relations with the individual, Article 14 would be applicable to the exercise of power. It was also further held therein that the action of the State or its instrumentality can be checked under Article 14. Their action must be subject to rule of law. If the governmental action even in the matter of entering or not entering into contracts, fails to satisfy the test of reasonableness, the same would be unreasonable and subject to judicial review. Rule of reason and rule against arbitrariness and discrimination, rules of fair play, natural justice are part of the rule of law applicable in situation or action by State/instrumentality in dealing with citizens. Even though the rights of the citizens, are in the nature of contractual rights, the manner, the method and motive or a decision of entering or not entering into a contract, are subject to judicial review on the touchstone of relevance and reasonableness, fair play and natural justice, equality and non-discrimination. It is well settled that there can be "malice in law". It was also further held that whatever be the act of the public authority in such monopoly or semi-monopoly, it must be subject to rule of law and must be supported by reasons and it should meet the test of Article 14.

In the case of Kumari Shrilekha Vidyarthi and Others Vs. State of U.P. and Others, it has been held that the scope of judicial review in respect of disputes falling within the domain of contractual obligations may be more limited and in doubtful cases the parties may be relegated to adjudication to their rights by resort to remedies provided for adjudication of purely contractual disputes. However, to the extent challenge is made on the ground of violation of Article 14 by alleging that the impugned act is arbitrary, unfair or unreasonable, the fact that the dispute also falls within the domain of contractual obligations would not relieve the State of its obligation to comply with the basic requirement of Article 14.

In this regard I may profitably refer to the decision rendered in the case of Sterling Computers Limited and Others Vs. M and N Publications Limited and Others, wherein their Lordships laid down that once a procedure has been prescribed by the Government it has to be more strictly followed while awarding contract, keeping in view the commercial element which has a public purpose. It has also been held therein, the whole conception of unfettered discretion is inappropriate to a public authority, who is expected to exercise such power only for public good. The decisions which are extravagant or capricious can not be legitimate. But if decision is within the confines for reasonableness, it is no part of the court''s function to look further into its merits. With the question whether a particular policy is wise or foolish the court is not concerned; it can only interfere if it is beyond the powers of the authority. While exercising the power of judicial review, in respect of contracts entered into on behalf of State, the Court is concerned primarily as to whether there has been any infirmity in the "decision making process". In the said case their Lordships referred to the case of Chief Constable of the North Wales Police vs. Evans wherein it has been held as under:

The purpose of judicial review is to ensure that the individual receives fair treatment, and not to ensure that the authority, after according fair treatment, reaches on a matter which it is authorised or enjoined by law to decide for itself a conclusion which is correct eyes of the court.

In the said case it has been held that once the procedure adopted by an authority for purpose of entering into a contract is held to be against the mandate of Article 14 of the Constitution, the courts can not ignore such action saying that the authorities concerned must have some latitude or liberty in contractual matters. It was also laid that there may be cases where in the special facts and circumstances and due to compelling reasons, departure from the aforesaid rules cannot be made but such compelling reasons must withstand the test of Article 14.

In the case of Union of India and others Vs. Hindustan Development Corpn. and others, it was ruled that Government while entering into contracts or issuing quotas is expected not to act like a private individual but should act in conformity with certain healthy standards and norms. Such actions should not be arbitrary, irrational or irrelevant.

In the case of Tata Cellular Vs. Union of India, the Apex Court culled out the following principles:

(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 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 it self 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 negotiations through several tiers. More often than not, such decisions are made qualitatively by experts.

(5) The government must have freedom of contracts. In other words, a fair play in the joints is necessary concomitant for an administrative body functioning in an administrative sphere or quasi-administrative sphere. However, the decision must not only be tested by application of Wednesbury principle of reasonableness including its other face pointed out above but must be free from arbitrariness not affected by bias or actuated by mala fides.

(6) Quashing decisions may impose heavy administrative burden on the administration and lead to increased and unbudgeted expenditure.

Based on these principles be will examine the facts of this case since they commend to us as the correct principles.

In the case of Union of India and others Vs. M/s. Graphic Industries Co. and others, it has been expressed that even in contractual matters public authorities have to act fairly and if they fail to do so approach under Article 226 would always be permissible because that would amount to violation of Article 14 of the Constitution. Their Lordships have further held that the arms of the High Court are not shackled with technical rules or procedure.

In the case of Delhi Science Forum and others Vs. Union of India and another, it has been held that any decision taken by the statutory authority can be questioned primarily on the grounds, decision has been taken in bad faith; decision is based on irrational or irrelevant consideration; and decision has been taken without following the prescribed procedure which is imperative nature. In the said case it was held that while granting license a statutory authority or the body so constituted should have latitude to select the best offers on the terms and conditions to be prescribed taking into account the economic and social interest of the nation.

In Asia Foundation and Construction Ltd. Vs. Trafalgar House Construction (I) Ltd. and Others, the Apex Court expressed the opinion that it is not within the permissible limits of interference for a court of law, particularly when there has been no allegation of malice or ulterior motive and particularly when the court has not found any mala fides or favouritism in the grant of contract. Decision of the Court is only to criticise the manner in which the decision has been taken.

In Krishnan Kakkanth Vs. Government of Kerala and ohters, it has been held that to ascertain unreasonableness and arbitrariness in the context of Article 14 of the Constitution, it is not necessary to enter upon any exercise for finding out the wisdom in the policy decision of State Government. Their Lordship further expressed that Courts should avoid embarking on unchartered ocean of public policy.

In the case of Air India Ltd. Vs. Cochin Int., Airport Ltd. and Others, it has been held that award of contract, whether it is by a private party or by a public body or the State, is essentially a commercial transaction and in arriving at a commercial decision considerations which are paramount are commercial considerations. The State can choose its own method to arrive at a decision and fix its own terms of invitation to tender and that is not open to judicial scrutiny. Their Lordships further expressed the view that it can enter into negotiations before finally deciding to accept one Of the offers made to it and it has freedom to grant relaxation. It is worthwhile to state here that in the said case it has been held that Court should always keep the larger public interest in mind in order to decide whether its intervention is called for or not. Only when it comes to the conclusion that overwhelming public interest requires interference, the Court should intervene.

In center For Public Interest Litigation and Another Vs. Union of India and Others, it has been held that it will be very difficult for the courts to visualise the various factors like commercial/technical aspects of the contract, prevailing market conditions, both national and international and immediate needs of the country etc. which will have to be taken note of while accepting the bid offer.

In this context the decision referred in West Bengal State Electricity Board Vs. Patel Engineering Co. Ltd. and Others, is also to be taken note of. It has been ruled that rule of law and constitutional values must be adhered to while awarding contract. Their Lordships expressed the view that relaxation by State or its agencies of a rule or a condition in favour of a particular bidder will not be permissible unless expressly provided for in the rules.

In the case of Union of India and Others Vs. Dinesh Engineering Corporation and Another etc., opinion has been expressed to the effect that a public authority even in contractual matters should not have unfettered discretion and in contracts having commercial element even though some extra discretion is to be conceded in such authorities they are bound to follow the norms recognized by the Courts.

Recently in the case of Association of Registration Plates Vs. Union of India (UOI) and Others, it has been pronounced that certain preconditions or qualifications for tenders have to be laid down to ensure that the contractor has the capacity and the resources to successfully execute the work. Their Lordships have expressed the view that no person can claim a fundamental right to carry on business with the Government.

In the cast of State of N.C.T. of Delhi and Another Vs. Sanjeev @ Bittoo, their Lordship of the Apex Court in Paragraph 15 had held as under:

One of the points that falls for determination is the scope for judicial interference in matters of administrative decisions. Administrative action is stated to be referable to broad area of governmental activities in which the repositories of power may exercise every class of statutory function of executive, quasi-legislative and quasi-judicial nature. It is trite law that exercise of power, whether legislative or administrative, will be set aside if there is manifest error in the exercise of such power or the exercise of the power is manifestly arbitrary (see State of U.P. v. Renusagar Power ((G). At one time, the traditional view in England was that the executive was not answerable where its action was attributable to the exercise of prerogative power. Professor de Smith in his classical work Judicial Review of Administrative Action, 4th Edn. At pp. 285-87 states the legal position in his own terse language that the relevant principles formulated by the courts may be broadly summarized as follows: The authority in which discretion is vested can be compelled to exercise that discretion, but not to exercise it in any particular manner. In general, discretion must be exercised only by the authority to which it is committed. That authority must genuinely address itself to the matter before it, it must not act under the dictate of another body or disable itself from exercising discretion in each individual case. In the purported exercise of its discretion, it must not do what it has been forbidden to do, nor must it do what it has not been authorized to do. It must act in good faith, must have regard to all relevant considerations and must not be influenced by irrelevant considerations, must not seek to promote purposes alien to the letter or to the spirit of the legislation that gives it power to act, and must not act arbitrarily or capriciously: (i) failure to exercise a discretion, and (ii) excess or abuse of discretionary power. The two classes are not, however, mutually exclusive. Thus, discretion may be improperly fettered because irrelevant considerations have been taken into account, and where an authority hands over its discretion to another body it acts ultra vires.

I am conscious that the said decision was rendered in a different context but as their Lordships have dealt with the concept of judicial review of administrative action, I have referred to the same.

The main thrust of the matter is whether refusal to tender form to the petitioner is sound and correct. Mr. Tiwari has vehemently urged that in the absence of incorporation of a condition that the past track record has to be good, the same cannot be taken into consideration at the threshold i.e. issue of tender form. In the case of Pawan Kumar Jain Vs. Union of India and Others, this Court had held as under:

The aforesaid submission of Mrs. Nair does not stand to reason in as much as if a person is eligible or entitled to receive the tender form and participate in the tendering process he cannot be deprived of the said right. If the same is not done the whole action would be arbitrary and would be hit by the equality clause as envisaged under Article 14 of the Constitution of India. Debarring a person at the very threshold because of the possibility of his ultimate rejection is not only unreasonable but an anathema to the conscience of Article 14 of the Constitution of India. The owner may incorporate certain terms and conditions at the time of inviting of tender and if such incorporation does not violate the basic essence of Article 14 of the Constitution of India, not arbitrary and un-reasonable, the Courts would not interfere in that arena. But in absence of such an incorporation when an intending tenderer satisfies the eligibility criteria, it would be against the concept of fair play, equality and good conscience to deny him the previlege to participate. It has to be borne in mind that supply of tender form and grant of permission to some one to participate in the tender does not necessarily mean that he will be awarded the work. The award of work by an instrumentality of the State is governed by the law laid down by the Apex Court in the decisions referred to above. The action of the instrumentalities of the State is subject to judicial review on the ground of illegality, irrationality and procedural impropriety as has been laid down by the Apex Court in the case of Tata Cellular (supra). That apart the concept of public interest has also a role to play. In view of this the submission of Mrs. Nair that the petitioner can claim the award of contract as a matter of right on certain premises is neither correct nor sound and infact in my considered opinion is based on unwarranted apprehension.

In W.P. No. 3434/2001 this Court in paragraph 10 had expressed the view as under:

On a perusal of the aforesaid regulation it is quite vivid that discretion has been vested with the authority to provide the tender forms to the P.W.D contractors with the stipulation that the successful tenderer would get himself registered with the MES before his tender is accepted. Quite apart from the above, this regulation has also not been incorporated in the NIT. On a query being made Mrs. Nair fairly stated that as the discretion has been vested with the authority concerned to choose a PWD contractor the same regulation has not been published in NIT as that would have worked as a mandatory condition. In absence of such incorporation, I am of the considered view the petitioner was eligible to receive the tender form, I am conscious the Court should be very slow in the matter of interference with regard to the conditions imposed in the NIT as that is the previlege of the owner. This view of mine get support from the decision rendered in the case of AIR 1995 SC 11. But the present factual matrix stand on the different footing inasmuch as the question of interference in the terms and conditions of the NIT does not arise inasmuch as the NIT does not stipulate any terms and conditions and in absence of any postulate the petitioner cannot be deprived to receive the tender form. I may hasten to add supply of a tender form to the petitioner does not confer any right to him to get the work. It is open to the owner to have a comparative merit to choose the best. This is his prerogative. However, as far as the present relief is concerned a direction is issued to the respondent nos. 2 and 3 to supply the tender form to the petitioner by tomorrow i.e., 21.08.2001. The petitioner shall submit his tender by the stipulated date i.e., 23.8.2001.

If the aforesaid decisions are understood in proper perspective, it is clear as crystal, if a condition is not incorporated in the NIT on that ground the owner, an instrumentality of the State, a Government of India Undertaking, cannot refuse the tender form. In the case at hand there is no dispute that for complete information one should go to www.Geocities.Comchiefengineerjabalpurzonemes. The petitioner, as it demonstrably manifest had collected the information from the website. In clause (iv) it has been mentioned as under:

Invitation of application for issue of tender does not constitute any guarantee for issue of tender to the applicant even to contractors of appropriate class enlisted in the MES. Issue of tender will be decided by the Accepting Officer based on interalia, past track record, financial position and experience of similar works executed by the applicant/contractor. The Accepting Officer shall consider applicants received upto the due date of receipt of application for issue of tenders received after the due date of receipt of application/ extended date of receipt of applications.

(Emphasis supplied)

On a perusal of the aforesaid paragraph it is clear as day, issue of tender is to be decided by the Accepting Officer on the base of, past track record, financial position, experience and similar work executed by the applicant - contractor. The aforesaid stipulation does not give rise to any kind of equivocation as the terms used are ''issue of tender''. There is a reference of website in the NIT. The petitioner had availed the benefit of the website and an enquiry was required to be done, as that was mentioned in the NIT. Hence, the decisions are distinguishable inasmuch as there was no such a condition in the NIT. But in the present case there has been incorporation. Ergo, the contention advanced by the learned counsel for the petitioner has no substance.

On the anvil of the aforesaid pronouncement of law the present obtaining factual matrix is to be tested.

The next facet that arises for consideration is whether the decision on the petitioner''s past track record is correct. Submission of Mr. Tiwari the order passed by the original authority is totally cryptic and the affirmation thereof by the appellate authority is laconic and fundamentally factually erroneous and it is founded on earlier measurements.

The appellate authority vide his letter dated 30-5-2005 passed the following order:

Your representation against non issue of tender by CEJZ for subject work has been considered by competent authority and has been rejected due to the following reasons:

(a) Your performance is not satisfactory inspite of notices in the contracts already awarded by the department. The progress in respect of Constn of Arrester Butt at LPR Khamaria is reported to be meagre 0.98% against the planned progress of 52%.

(b) The court cases mentioned by you are not applicable in the present case since the tender has not been denied on ground of being un-enlisted which was the matter of earlier court cases as quoted by you.

To appreciate the whole scenario, I have perused the file that has been produced before this Court. On a scrutiny of the same it is apparent that certain documents have been filed to show the respondents were not satisfied with the progress of the work of the petitioner in respect of earlier contracts. I have perused the minutes of the Tender Selection Committee which is reproduced below:

FINDINGS AND RECOMMENDATIONS OF TENDER

SELECTION COMMITTEE

NIT and Press advertisement for the subject work issued vide letter No. 752268-A/02/E8 dated 08 Feb 2005. The details of three applications received in response to the NIT are given in Annexure ''A''.

As per the NIT, appropriate class for the present tender is ''SS'' of MES (tendering limit unlimited) and corresponding classes of Railways, PWD.

As per para ''4'' of NIT, the firms not enlisted with MES (but enlisted with PWD, Railways) are required to submit following documents, in order to verify their eligibility, past performance and suitability for provisional enlistment in MES, in case the firm is considered for issue of tender and becomes the lowest. This condition is laid down in Para 419 of Regulation - MES.

(a) Registration letter in other deptt.

(b) Valid ITCC giving annual turnover of the firm for last three years.

(c) Particulars of works completed in other govt. deptts. During the last three years giving designation & full address of the office under whom work(s) executed.

(d) Affidavit of immovable & movable assets. T & P etc. held by the firm on non-judicial paper duly signed by a first class magistrate.

(e) Valuation report of assets from a registered Valuer.

(f) Details of contracts where arbitration invoked during last five years.

This Committee has considered the applications received in light of the stipulations in NIT and departmental policy and recommended as under:

1 Firms considered eligible for issue: - Having regard to the class and categories of enlistment, present work load, past performance, financial and technical competence etc of the firms and relevant provisions, Regulation of MES 1968, compendium of Instructions on contracts issued by E-in-C, contract manual and policy instructions of E-in-C and CE Central Command Lucknow as on record till date, the committee considers six applicant firms listed in Annexure ''B-1'', suitable and eligible for issue of tender for the subject work and are recommended. The latest Work Load Returns of HQ E-in-C''s Branch for QE Sep 2004 and CE, CC, CESC of QE Dec 2004 have been considered.

The applicant firm M/s Anil Kumar Grover is an un-listed firm. Considering the Notice Inviting Tender (NIT) and policy regarding issue of tenders to un-listed contractors, vide E-in-C''s enlistment firm can be issued tenders in following circumstances:

(a) The firm should be registered in other Govt. department viz Railway, PWD, CPWD.

(b) Sufficient applications are not received from eligible class firms i.e. ''SS'' class in this case.

(c) The performance of firm in the similar works executed by the firms should be satisfactory.

(d) The firm meet the enlistment criteria corresponding to value of work i.e. minimum reserves, financial soundness, technical qualification and adequate experience in the relevant categories of works i.e. the firm should be eligible for enlistment in ''SS'' class in the present case.

(e) The tender is to be issued after the approval of the next higher authority i.e. CECC.

Considering the case of Shri Anil Kumar Grover in the light of the above, following position emerges:

(a) The applications from eligible class firms (SS) are less than the stipulated Nos. i.e. six.

(b) The firm is registered in MP PWD in A-5 Class (unlimited tendering limit) as SOLE PROPRIETORSHIP CONCERN.

(c) The performance report for the works being executed in MES has been received from CWE (Fy) Jabalpur vide letter No. 89764/KH/236/E8 dt. 14 Mar 2005. The performance in respect of "CONSTRUCTION OF ARRESTOR BUTT AT LPR KHAMARIA" reported as "SLOW PROGRESS".

(d) Considering the latest policy, requirements for enlistment in ''SS'' class and the position of M/s Anil Kumar Grover is as under:

Sl

Criteria

Requirement

Status

(a)

Constitution

Pvt. Ltd. Co.

Sole Proprietorsip firm.

(b)

Solvency from Bank

20 Crores

Not submitted.

(c)

Immovable Assets (Fin)

64 Lakhs

Minimum value satisfied but no proof of registration submitted.

(d)

Movable Assets (with present valuation)

16 lakhs

Value Rs. 44 Lakhs, but without any valuation report.

Evidently, the requirements/eligibility for enlistment in ''SS'' class is not met by the firm M/s Shri Anil Kumar Grover. The performance in the ongoing works and the shortcomings/ discrepancies in the documents/records, the firm cannot be considered for issue of the present tender.

Since insufficient applications from eligible firms have been received and recommended for issue of tender as per Annexure B1, six additional firms have been recommended for issue of tender as per Annexure ''B-3''. These selected firms be asked to submit DD of requisite amount towards cost of and tender and tender be issued to them only after receipt of DD, as per latest policy.

The petitioner''s work was not found satisfactory by the respondents. It is not a telltale case to come to the conclusion under Article 226 of the Constitution that recording of satisfaction of the authorities is perverse, arbitrary and totally irrational. Be it noted, it is a prima facie satisfaction. The same may be eventually erroneous in other proceeding but to rely on the same for the purpose of grant of tender form cannot be found fault with.

The next aspect that is required to be dealt with is whether the respondents should have called other eight persons to participate in the tender when they had not taken tender forms and applied for it. Submission of Mr. D''Silva, learned Senior Counsel is that discretion has been given by letter circular to the respondents dated 8.4.2005 which has been issued on the term ''transparency in tendering system and contract documents. Clause (b) and (c) stipulates as under:

(b) Selection of contractors for issue of tender: In this connection, attention is invited to this HQ letter No. 3416/Policy/E8, dated 5.11.2004 33416/Policy/E8 dated 15.12.2004 & 33416/Policy/E8 dated 11.2.2005. The broad guidlines are given as under:

(i) When sufficient (7 or more) applications are not received from eligible contractors, tenders will be issued to one class below the eligible class contractors as per criteria given in ibid letters.

(ii) When sufficient (7 or more) applications are received from eligible contractors, tenders will normally be issued to eligible class applicant contractrors only. However to infuse better competition, tender may also be issued to one class below the eligible class as per criteria given in ibid letter.

(iii) Tenders may also be issued to two class below eligible class in remote/difficult areas notified by the CE command. In other cases, tenders will be issued to two class below eligible class only after prior approval of CE Zone in case of GE''s & CWE''s tenders and CE, Command in case of CE Zone''s tenders.

(iv) Tenders may also be issued to unenlisted contractors in case sufficient applications are not received, after obtaining approval of next higher engineer authority, provided the contractors meet the criteria of enlistment corresponding to the value of work.

(v) Selection and short listing of contractors in respect of high value works (costing more than Rs. 10 crores), consultancy (costing more than Rs. 50 lakhs) & specialist works (costing more than Rs. 50 lakhs) shall be done by constituted a "tender selection committees" as per criteria given in bid letter.

In addition to above instructions, efforts should also be made to issue tenders to eligible outside contractors for better transparency & competition.

(c.) Issue & non issue reports :- This report will no longer be a confidential report. Necessary report on issue and non-issue of tenders shall be rendered to the next higher engineer authority in two parts. Part I shall contain the names of tenderers to whom the tenders have been issued and part II shall contain the names of applicant contractors to whom the tenders have not been issued as per the proforma given on page 45 in compendium part I. In case offenders issued on basis offender selection committee, the complete proceedings along with decision of the accepting officer for issue/non issue shall be furnished to next higher engineer authority. In addition of furnishing the report to next higher engineer authority, the names of tenderers to whom tenders have been issued shall also prominently be displayed on the notice boards.

It is submitted by Mr. D''Silva that persons who were called were not found suitable. Submission of Mr. D''Silva is that it would be a travesty of justice and anathema to concept of rule of law in a case of this nature to direct for re-tendering. It is his proponement that as per these instructions certain contractors were issued tenders and tender has been accepted. I have already referred to the same only to show that there is an admitted position that certain contractors were called to participate. Whether the policy is correct or not, I am not disposed to advert to the same, for the simon pure reason, the petitioner as has been held hereinabove, was rightly not issued the tender form. Once he is out of fray, by virtue of the finding recorded by the authorities, there can be no scintilla of doubt that at his instance the grant of contract in favour of any other person should not be entertained. What should have been the effect if other tenderers who had participated in the lender process had come need not be dwelled upon. Whether such action would be within the ambit and sweep of free play in the joints and would have attracted the concept of public element, would have been a matter of further debate. The said debate or discussion, in the case at hand, is unnecessary. The issue, I am disposed to think, is academic in praesenti and hence, need not be dealt with.

Consequently, the Writ petition, being sans merit, stands dismissed without any order as to costs.