TMI Blog2015 (12) TMI 1710X X X X Extracts X X X X X X X X Extracts X X X X ..... il ought to have resorted to fresh tender after alteration of tender conditions instead of resorting to illegal negotiations it cannot be concluded with certainty that the writ petitioner was entitled to the allotment of the work as a matter of right in the instant case and accordingly he is not entitled to compensation in the public law domain in exercise of discretionary jurisdiction of this Court No one has disputed the authenticity of the records of the proceedings of the Council or the letter written by its President communicating the view of the academic committee of the Council in the matter. No dissenting opinion of any member of the Council to such view has been placed before the Court. Accordingly, it can safely be concluded that the aforesaid decision is in effect of the Council itself and no further interference is called for in the matter. It is however directed if the Council desires to print and/or publish any of the books which are subject matter of the tender for the year 2015-2016 through an outside agency it must do so by holding a fresh tender. - MAT 111 of 2015, CAN 1012 of 2015, With MAT No. 133 of 2015 - - - Dated:- 23-12-2015 - Manjula Chellur (CJ) And ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant had proposed a rate of royalty at 25% of the total sale proceeds while writ petitioner/respondent no. 1 proposed a royalty to the tune of 35% and another bidder Book Syndicate Pvt. Ltd. proposed a royalty of 26% of the sale proceeds. The offers of other bidders were cancelled for not meeting the eligibility criteria. No decision, however, was taken with regard to allotment of work order on that day. On the next day, that is, 16 th May, 2013 pursuant to deliberations between the members of tender sub-committee it was claimed that points of consideration were drawn up wherein it was, inter alia, recorded as follows :- Though there were fourteen points mentioned in the Tender Notice the subcommittee shall put emphasis on the following points :- (a) Tenderer must be a bona fide publisher not bookseller and must be a member of any recognized association of publisher. (b) Tenderer must have long experience of publishing text books with proper in house editorial efficiency, own warehouse and state wide supply network. (c) Tenderer must have long experience of publishing text books for Boards/Councils like WBBSE, WBCHSE, CBSE, ISC and ICSE. (d) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Book Syndicate and the appellant was awarded seven out of eight titles. The other title was awarded to Book Syndicate. In response, the appellant increased his royalty to 26% but expressed its interest only in respect of 5 titles out of 7 titles offered to it. The writ petitioner/respondent, though his rate of royalty was the highest, was not communicated the reasons of his disqualification. He came to know of such allotment to appellant and Book Syndicate only through newspaper reports. Thereupon, the writ petitioner by letters dated 24 th and 27 th May, 2013 addressed to the Secretary of the Council protested about discrimination and favouritism by the President of the Council towards the appellant in the tendering. On 28 th May, 2013 Secretary of the Council also complained about gross discrepancies in the decision making process of the tender sub-committee and placed on record the fact that though he was absent on 16.05.2013, the points of consideration were drawn up and the consequential decision was taken thereon on that day and he had erroneously signed the said documents without verifying them. On the basis of representations, the Government intervened in the ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... titioner was ineligible to maintain the writ petition. He had unlawfully sought intervention by the Government in the tendering process and had thereafter illegally participated in the said process and was awarded a part of the work order. Having done so, the petitioner was estopped from challenging the same. It was further argued that the conduct of the petitioner was not beyond reproach as he had not come to the Court with clear hands. His father is an accused in a criminal case involving plagiarizing books of the Council. The name of the petitioner transpired in the FIR of the criminal case. The business of the father and that of the petitioner are carried on from the same premises and the decision of the Council to disqualify the petitioner in the light of such suspicious circumstances in terms of clause (c) of NIT cannot be said to be unreasonable. It was emphasized that the Court should not substitute its opinion in place of the Council. On the other hand, such decision was overridden by an unlawful intervention by the State at the bidding of the petitioner who elbowed himself back into the negotiations for allotment. Such intervention in the tendering process by outsiders is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e President of the Council in favour of the appellant which vitiated the entire tendering process. Even Secretary of the Council admitted that he had not present on 16.05.2013 when the points of consideration were drawn up and the aforesaid decision was taken. Under such circumstances, in exercise of statutory powers the Government intervened in the matter and at the behest of observers the President was constrained to permit the petitioner to participate in the negotiations. Notwithstanding such supervision, the President by the impugned work order dated 28.06.2013 awarded most of the titles in favour of the appellant and only a minor part of the work to the petitioner. Writ petitioner did not accept the said offer and instituted the first writ petition and when the grounds of disqualification were disclosed to the writ petitioner, the latter instituted the instant writ petition after withdrawing the first petition. The entire process of tender was illegal and the work order being a product of such vitiated and biased procedure was liable to be quashed. He even suggested that his client was willing to accept lower royalty and pass on the benefits to the students. Hence, the wri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner had been disqualified, inter alia, on the ground that he had no previous experience of publishing text books except some minor books for Madrasha Board. Clause (b) of the tender document is important in this respect. The said clause, inter alia, provides that the publisher must have a proven record of publishing text books on different subjects for other Boards like CBSE, ICSE and ISCE for the last three consecutive years. It has been strenuously argued that Madrasha Board for which the petitioner had admittedly printed and published books does not fall in the aforesaid category. We are unable to accept such contention. It is undisputed that the syllabi and the course prescribed in the Madrasha Board are similar to that of the Council for whom the books were proposed to be printed and published. Admittedly, the petitioner has been successfully printing and publishing a large quantity of books for the Madrasha Board for more than eight years. One cannot also lose sight of the fact that the Boards cited in the said clause are merely illustrative and not exhaustive. Hence, the decision to exclude the petitioner on the premise that he had no previous experience of publishing t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the authority, it was incumbent on its part to proceed with a fresh tender and not award work order to existing bidders under such altered terms. At this juncture, it may be profitable to note the observations of the Apex Court in Monarch Infrastructure (P) Ltd. Vs. Commissioner, Ulhasnagar Municipal Corporation Ors., (2000) 5 SCC 287. .The High Court had taken the view that if a term of the tender having been deleted after the players entered into the arena it is like changing the rules of the game after it had begun and, therefore, if the Government or the Municipal Corporation was free to alter the conditions fresh process of tender was the only alternative permissible. Therefore, we find that the course adopted by the High Court in the circumstances is justified because by reason of deletion of a particular condition a wider net will be permissible and a larger participation or more attractive bids could be offered. The aforesaid principle applied with full force to the facts of the case and the only course possible for the Council was to go for fresh tender after altering the terms of the tender in its meeting on 16.05.2013. It has also been argued vehe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity in exercise of statutory powers. However, the recommendation of the Government observers to the extent it directed the tender sub-committee to proceed with the tender through negotiations with existing bidders was not in consonance with law. If terms of tender had been altered and royalty had been fixed at 26% of the sale proceeds, fresh tender under such altered terms ought to have been resorted to. No doubt the writ petitioner also participated in the said process. However, in view of the perverse manner in which the entire process had been conducted and the repeated abortive attempts to award the selfsame titles in favour of the appellant even prior to the tendering process, persuades one to hold that the impugned work order issued in favour of the appellant by the President is a product of arbitrariness and favouritism and is liable to be quashed. Public law remedies are to ensure a fair, just and transparent procedure in the realm of awarding contracts in public law and the Courts ought not to shy away from quashing decisions which are patently vitiated with fraud, illegality or arbitrariness even at the behest of a participating bidder if the usufruct of such illega ..... X X X X Extracts X X X X X X X X Extracts X X X X
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