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Judgment
Sardar Ali Khan, J.—This writ appeal is directed against the order passed by the learned single Judge against the judgment dated, 24-12-1990 in Writ Petition No. 11676 of 1990 dismissing the writ petition filed by the appellant-petitioner herein. The writ petition was filed with the following material averments.
The writ petition was filed for the issue of a writ of mandamus declaring the action of the 1st respondent in ordering 90 per cent, of the tender quantity in respect of Items Nos. 1, 2, 3, 5, 9 and 10 to the 2nd respondent by the Purchase Order No. SP/7/B1/90-91/Sche-dule-III/UCL/47 dated 6-8-1990 as highly illegal, arbitrary, unjust and void and consequently to direct the 1st respondent to award the tender only to the petitioner herein in respect of the items for which lowest rates were offered by the petitioner-appellant herein or in the alternative to award 50% of the tender to the petitioner-appellant herein and 50% to the 2nd respondent equally in respect of all the items accepting the lowest rates.
M/s. Everst Computer Carbons Private Limited, the petitioner-appellant in this writ appeal, is a small scale industry engaged in the manufacture of typewriter carbons, pencil carbons, typewriter ribbons, teleprinter rolls, duplicating ink and adding and parchment machine paper rolls. The appellant-petitioner is an S.S.I, unit established in the industrially backward area. It had become a sick unit and was later on revived with the help of the Andhra Pradesh State Financial Corporation and three new Directors were appointed to make the unit more viable. The appellant claimed that they are having the latest technology and expertise in the fields of manufacture of the above items. The 1st respondent invited sealed tenders from the manufacturers/ suppliers for the supply of the store articles as per Schedule III of the tender notice in respect of the following store items.
Sl. No. Particulars of Stores Quantity
Typewriter Ribbons with I.S.I. mark. 500 Gross
Carbon paper pen and pencil F cab blue with IS1 mark 6,000 Reams
Carbon paper pen and pencil brief blue with ISI mark 2,500 Reams
Duplicating Ink Tubes with ISI mark (double drum) 70,000 Nos.
Stencil paper F''cap with ISI mark 12,000 Reams
Typewriter Erasers 1,250 Dozens
Typewriter Oil 50 Ml. 2,000 Nos.
Correcting Flued with ISI mark 6,000 Bottles of 20 Ml. each
Typewriter carbon paper F''cab purple ISI mark 10,000 Reams
Typewriter carbon paper brief purple Reams ISI mark 5,000 Reams
Ink Tubes for single drum with ISI mark 2,500 Nos. tube of 450 gms.
The sealed tenders were to be submitted before 3 p.m. on 27-7-1990 and were to be opened on 27-7-1990 at 3.30 p.m. In response to the said tender notification, the appellant and the 2nd respondent herein and several others filed three tenders for the supply of the above articles. It may be mentioned that the 2nd respondent viz., M/s. Universal Carbons Limited, is a S.S.I, unit with an experience of about 25 years in the manufacture of the above items. It is not denied that the above items have been supplied by the 2nd respondent over a number of about 15 years and its performance has never invited an adverse comment. The 2nd respondent is also functioning in collaboration with A.P.S.S.I.D.C. The two rival tenderers therefore are contesting parties in this writ petition and claim to have a better right to supply the materials in question. The following table reproduced in the counter-affidavit filed by respondent No.1 shows the rates which have been offered by the appellant and the 2nd respondent respectively in regard to all the items mentioned therein and the I.S.I. Marks which have been put by the rival tenderer, for each item mentioned in the schedule.
Item No. 1 :-- Advertised specification
Typewriter Ribbons with ISI Mark
Rates quoted Bears ISI Mark or not
Petitioner : ''A'' Rs. 1,765/50 per gross Rubber stamp of ISI Mark was put on container
''B'' Rs. 1,549-50 per gross without ISI number.
2nd respondent : Rs. 1,550-00 per gross Sample bears printed ISI mark with No. 4174
Item No. 2 :� Carbon paper (Pen & Pencil) F''cap with ISI Mark
Petitioner : Rs. 181 per ream Rubber stamp of ISI mark was put on samples.
2nd respondent : Rs. 180 per ream ISI Mark was embossed on samples.
Item No. 3 : Carbon Paper Pen & Pencil (Brief) :�
Petitioner : Rs. 362/-per ream Rubber stamp of ISI Mark was put on samples.
2nd respondent : Rs. 360/-per ream ISI Mark was embossed on samples.
(Item No. 4 omitted)
Item No. 9 :� Typewriter Carbon Paper F''cap (purple)
Petitioner : Rs. 169-50 ps. per ream Rubber stamp of ISI mark was put on samples.
2nd respondent : Rs. 170-00 ps. per ream ISI mark is embossed on samples.
Item No. 10 : Typewriter Carbon Paper (Brief) :�
Petitioner : Rs. 339/-per ream Rubber stamp of ISI mark was put on samples.
2nd respondent : Rs. 340/-per ream ISI mark was embossed on samples.
The controversy arising in this case is with regard to items Nos. 1, 2, 3, 9 and 10. There is no controversy in so far as items Nos. 4 and 11 given in the above schedule are concerned. It would be necessary to deal with the aspect relating to the ISI Marks awarded by the Bureau of Indian Standards both to the appellant herein and to the 2nd respondent. As informed by the Bureau of Indian Standards al Hyderabad, the appellant is a licenceholder for the following:
"Typewriter ribbon as per IS. 4174/77 for Type-E medium inking only.
Carbon paper as per I�. 3450/ 76 Grade ''A'' only.
Carbon ''paper for Typewriter as per IS 1551/76 Grade-3 only."
The ISI marking for these products has not yet been started by the appellant''s firm and the appellant does not possess the ISI Mark licence for duplicating ink also. A perusal of the above chart/schedule reveals the fact that in so far as item No.1 is concerned, the appellant "has quoted Rs.1549-50 ps. per gross as against the 2nd respondent who has quoted Rs.1550/- i.e. 50 paise more than the appellant. In so far as ISI Mark on this product is concerned, the appellant''s sample contains rubber stamp of ISI Mark on container without IS number. The samples supplied by the 2nd respondent Sears printed ISI mark with IS No. 4174. In regard to item No. 2, the appellant has quoted Rs.181 per ream as against the 2nd respondent, who has quoted Rs.180/- per ream. The sample of the appellant contains rubber stamp of ISI Mark. The sample furnished by the 2nd respondent was embossed with ISI Mark. In regard to item No. 3, the appellant has quoted Rs.362/-per ream. The 2nd respondent has quoted Rs.360/- per ream. The sample furnished by the appellant bears rubber stamp of ISI Mark. The sample furnished by the 2nd respondent is embossed with ISI Mark. For Item No.9 the appellant quoted Rs.169-50ps. per ream. The 2nd respondent quoted Rs.170/- per ream i.e. 50paise more than the appellant. The sample furnished by the appellant contains rubber stamp of ISI Mark. The sample furnished by the 2nd respondent has the ISI mark embossed. For Item No. 10 the appellant quoted Rs.339/- per ream. The sample furnished by the appellant contains rubber stamp of ISI mark. The 2nd respondent quoted Rs.340 per ream for item No.10. The sample furnished by the 2nd respondent contains ISI mark embossed on it. It is a well known fact that the ISI marks are put on a product to ensure the excellence of the products which bear such stamps. It is an essential feature of the quality control of the goods which are marketed openly for purchase by the general members of the public. The ISI marks inspire confidence in the people, who are the consumers of such goods and are therefore of considerable importance in the market over the products which found place on the shelf of stores, shops or super-bazars, as the case may be. It would be necessary in this regard to examine the rival positions of the appellant as well as the 2nd respondent in so far as the ISI Marks are concerned, which they are entitled either to emboss or to rubber stamp on the products which are offered by them in these tenders and important feature to be kept in mind while doing so is to take into consideration the tender schedule, which has been issued in this regard. Even at the risk of certain length in the judgment, we deem it fit and necessary to reproduce the items l, 2, 3, 9 and 10, which are mentioned in the tender schedule and are in the following terms.
Sl. No. Particulars of Stores Quantity Detailed specifications Rate Unit Whether sample
Typewriter Ribbons with ISI Mark 500 Gross
Ribbons for Typewriters, black record (1.27 cms. or 1/2") width medium inked 10 metres in length. It should be packed in vacumised tin container or plastic containers and supplied in card board boxes of dozen each. The ribbons should have ISI specifications marks IS No. 4174 of 1977 (ISI specification).
A) Rs.1,765-50 Gross (in plastic containers)
B) Rs. 1,549-50 Gross (in card-board packs)
2.
Carbon paper Pen and Pencil F''cap blue with ISI mark
6000 Reams
F''cap size 33 cms. x 20.32 cms. onesided blue with a hand for 25 sheets in packets if 100 sheets, with 5 such packets in a Ream in wrapper packing. The carbon paper should be of ISI mark IS. No. 3450 of 1976 (SSI specification)
A) 181-00 Ream ISI Marked
B) -----
3.
Carbon paper Pen and Pencil Brief blue with 1SI Mark
2500 Reams
33 cms x 40.64 cms. (13" x 16") size one sided blue with a hand for 25 sheets in packet of 100 sheets with a such packets in a ream in wrapper packing. The carbon paper should confirm of ISI No. 3450 of 1976 (ISI Specification).
A) Rs 302.00 Ream ISI MARKED
B) ..........
9.
Typewriter carbon paper F''cap purple ISI mark.
10,000 Reams
F''cap size 33 cm. x 20.32 cms. one side purple with a hand for 25 sheets in pkts. of 100 sheets with 5 such packets in a ream in wrapper packing. The carbon paper should be of ISI mark ISI No. 1551-1976 (ISI specification).
A) Rs. 169-50 Ream ISI MARKED
B) ..........
10.
Typewriter Carbon paper brief purple ISI Mark
5,000
Brief size 33 cm. x 40.64 cms.(13" x 16") size
A) Rs. 39-00 ISI MARKED
B) ..........
11.
Ink Tubes for single drum with ISI Mark.
2,500 Nos. tube; of 450 gms.
Quick drying and : climate emulsion liquid ink black for use single Drum Duplicators, in 450 grams net with ISI Mark 1333.
A) Rs. 32-00 each ISI Marked
B) ..........
The important feature which has to be kept in mind while dealing with this case is that in every item, which is mentioned above, it is the condition of the tender that the 1ST Mark prescribed therein has to be mentioned by the tenderer. We have examined in this regard some of the specimens, which have been produced by the appellant as well as respondent No. 2 to ensure whether this particular condition of the tender has been complied with or not. Taking at random some of the samples in regard to certain items furnished by the 2nd respondent, it is clear that on the wrapper in which the samples were enclosed, there is a tag pasted on it giving in printed or embossed form the ISI emblem with the necessary number assigned to such products for testing the quality of the product. As against these samples furnished by the appellant herein show that on the wrapper a rubber stamp has been put with ISI emblem giving the relevant number (for example like 1551/1976), so that the quality of the product supplied by the tenderer may be compared with the standard quality prescribed under the relevant number assigned to such product by the ISI. These numbers are not in a printed form, but are given on the wrapper in a rubber stamp form. The explanation offered for this apparent disparity in the two forms viz., one with the printed 1ST Mark and the other with the rubber stamp ISI emblem is in terms of the letter dated 22-8-1990 issued by the Bureau of Indian Standards. Since the letter is a short one, but of considerable importance, it would not be out of place to reproduce the entire letter in this judgment to clarify the position as to whether there is any difference between the status enjoyed by the appellant as against the 2nd respondent in so far as ISI certification is concerned.
"This has reference to your letter No. SP/7/90-91/Sch-III dated 17-8-90 seeking information with respect to the ISI licence of M/s. Everest Computer Carbon Private Limited. The following is the information as desired:
1.They are the licenceholders for the following.
a) Typewriter ribbons as per IS 4173/77 for Type 1;
b) Carbon paper, as per IS. 3450;76 Grade ''A'' only;
c) Carbon paper for typewriting as per IS 1551:76 Grade 3 only.
From our records, it is for your information that the ISI marking of these products has not been started by the firm.
M/s. Everest Computer Carbons do not possess an ISI Certification Marks Licence for duplicating ink as per IS: 1222:73 "specification for Ink, duplicating, for twin cylinder rotary machines and IS 1333:78 "specification for Ink, duplicating, for single drum rotary machine".
It is requested that your Department may please provide samples of ISI marked products to enable this office to carry out testing of the same as a part of our certification Marks Activity as the same gives us a feed back from the market for ISI certified products.
Hope the above information is as desired by you."
It is significant to note that the "Bureau of Indian Standards" has written in the said letter that according to their information the ISI Marking of these products in so far as the appellant is concerned has not yet been started by the firm. This obviously means that the Unit which has regained health only recently has not yet embarked upon the manufacture of the goods is question. Even more important is the fact that it is mentioned in the letter that the Department is requested to provide samples of ISI mark products furnished by the appellant to enable the office of the Bureau to carry but testing of the same as a part of Certification Marks Activity and for the purpose of feed back from the market for ISI Certified products. The obvious conclusion to be drawn from a reading of this letter is that while it is true that the appellant is a licenceholder of the ISI to sell its products, has not yet been fully tested by the Bureau of Indian Standards either because of the fact that the unit has not gone into production or that the articles in question have not been compared with the standard specifications laid down by the I.S.I. Bureau. This factor is one which has to be kept in mind while dealing with a case of this nature to arrive at a just conclusion out of the intricated controversy, which is raised in the writ petition by two rival tenderers.
Sri Ravindranath, learned counsel appearing for respondent No.2, has furnished the Indian Standard Specification for carbon papers for Typewriters (First Revision) as reprinted in June, 1982 and the Indian Standard Specification for Carbon Papers for Typewriters dealing with slightly different products, for consideration. Under I.S.S. 5.2 under the head "marking", it is provided that each container and cardboard marking shall be with the following information viz., the name of the Typewriter, degree of ink, length of the ribbon etc. Under 5:2:1 it is mentioned that the containers and card board boxes may also be marked with IS1 Certification Mark. Under 6.3 it is stated that the sheets and packets may also be marked with the I.S.I. Certification mark. It is not known whether the sheets and packets in this case were bearing I.S.S. Certification marks or not. But as stated earlier, we have examined the samples along with the covers it is clear that both the appellant and respondent No. 2 have given on the containers wrappers marks with I.S.I, Certification marks. This means that in so far as the question of embossing or rubber stamping of I.S.I, certification marks on the wrappers are concerned, both sides have complied with the requirement as laid down by the I.S.I. Bureau.
The next step for consideration arising in this matter is the fact that the respondent No. 2 Unit has been supplying the material from the last 15 years. It is a manufacturing unit with considerable experience and expertise behind it. As stated earlier, their supplies have been found to be up to the mark by the authorities concerned.
By virtue of G.O.R.T. No. 943 dated 30-6-1983 the Stores Purchase Committee was constituted by the Government consisting of the following.
Director, Printing, Stationery and Stores Purchase:
Chairman
Joint Secretary/Deputy Secretary to Government, Finance & Planning (Exp. Ind) Department:
Member
Joint Secretary/ Deputy Secretary to Government, Industries & Commerce (SSI) Department:
Member
Joint Director of Industries (Marketing):
Member
Representative of the A. P. Small Scale Industries Development Corporation:
Member
Deputy Director (Stores Purchase) Office of the Director of Printing, Stationery and Stores Purchase:
Convenor
The Stores Purchase Committee after considering all the relevant material on record awarded 90 per cent i.e. bulk of the contract, to the 2nd respondent and 10 per cent only to the appellant herein. In the purchase order dated 6-8-1990 addressed to the appellant herein, it is stated that they may arrange supply of the undermentioned articles therein, within 31-12-1990 from the date of receipt of this order. The total expenditure of supplies are for the value of Rs.6,14,475/-only, which constitute about 10 per cent of the total supplies to be made in the tender schedule. The other 90 per cent of the supplies have been awarded to the 2nd respondent by purchase order No.SP/7/Bl/90-91/Sch. III/UCL/47 dated 6-8-1990. Apart from this nothing is mentioned in the purchase order either about the experience of the rival contestants or their lack of expertise, as the case may be. Nevertheless a reading of the counter-affidavit filed in this regard reveals the mind of the authorities as to why 90 per cent of the total contract has been awarded to the 2nd respondent herein. It is stated inter alia that the Department has no experience about the performance of the appellant, who is a new entrant in the field and as such only 10 per cent of the quantity was given to the appellant. Furthermore, to watch their performance and to assess the quality, it was decided to distribute supplies to the appellant, to the Printing Department and also to government Offices in twin cities in order to obtain performance report for future orders. The 2nd respondent has quoted more rates for terns 2 and 3 and has been supplying the abovesaid material over a period of several years. The fact that the rates quoted by the appellant and respondent No.2 only have a marginal difference sometimes of only 50 paise per unit, has also been taken note of by the authorities. By applying an inductive method of analysis in this regard, the question which has to be considered is whether under the circumstances indicated herein, the authorities were justified in awarding 90 per cent of the total supplies to respondent No.2 in view of their experience and past performance. It is a matter of record that the performance of respondent No.2 has been beyond approach, if not really commendable from every point of view. The appellant is an enterprising new unit, which has entered the field only a few months back and may be that they also possess the necessary technology and expert assistance, which is required to go into the manufacture of such products. Sri Ravindranath learned counsel appearing for respondent No.2 has also submitted that in the past when the 2nd respondent was a new unit struggling to make its existence felt by entering the field of this nature, they were also given contracts of lower percentage as compared to other experienced units. It is a matter of normal practice that the Department must consider the respective merits of the parties from all points of view. The experience of a Unit, particularly when it has done well in the past, is a factor to be taken into consideration for the award of contracts of this nature. Similar view has been taken by the Supreme Court in Kasturi Lal Lakshmi Reddy, Represented by its Partner Shri Kasturi Lal, Jammu and Others Vs. State of Jammu and Kashmir and Another, on the relevant facts. It is from this point of view and after seeing the necessary records in this matter, we find it extremely difficult to disagree with the learned single Judge on the fact that the 2nd respondent has not been really favoured unduly by the award of 90 per cent of the contract by the authorities. It is also to be taken note of that the limited number of supplies which have been made by the appellant have also been found to be up to the mark and there has been no delay in furnishing the same to the authorities Concerned. In so far as the quality of the products is concerned, both sides appear to be evenly balanced though with a slight age in favour of respondent No.2 in so far as I.S.S. Certification is concerned. Taking into consideration all these factors, we find ourselves in agreement with the conclusions reached by the learned single Judge that there is no bias against the appellant herein in awarding him contract to the extent of 10 per cent only. However, we deem it fit and proper to make it clear that in so far as the future supplies are concerned, the appellant herein shall not be at a disadvantage due to the fact that it does not have the experience or the expertise which is required of all units that were called upon to supply the material in response to the tenders invited by the Government. The appellant unit has come out of sickness with a commendable speed and deserve encouragement at the hands of the authorities in so far as future supplies are concerned.
There is yet another aspect of the problem which is to be mentioned briefly to indicate the factual aspect existing with regard to the supplies covered under the contract. By an interim order dated 24-1-1991 the 2nd respondent was allowed to continue supply material up to the value of Rs.40 lakhs. It has come to light that they have reached the figure of Rs.40 lakhs by supplying material mostly in items 9 and 10 where they had quoted slightly higher rates than the appellant. The Balance of Rs.16 lakhs and odd, which remains to be supplied, is for the products in items 2 and 3 where the respondent No.2 has quoted lower rates as compared to the appellant. As a result of this, the rest of the supplies is to be made by respondent No.2 only with regard to those items where they had already quoted lower rates as such.
Taking into consideration all the factors, this writ appeal in dismissed, but under the circumstances of the case, there will be no order as to costs. Advocate''s fee Rs.250/-.
Appeal dismissed.