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2016 (4) TMI 223 - HC - Companies LawValidity of public tender - Held that:- Given the nature of the equipment to be installed at such crucial places, and going by the nature of work and the prior experience condition that is reproduced by us hereinabove, we cannot accept the stand taken in para 8 that the tender does not require any previous experience of three years, or the denial that a previous requirement experience of 3 years was mentioned in earlier tender notice but was deleted from the present tender notice. The requirement of experience is very much mentioned in that column of even the present tender. We do not think that the mandate of Article 14 of the Constitution of India has been adhered to by the State. Respondent no. 3 has also stated that as regards the earlier tender being relied upon by the petitioner company, they had bid at par with the aforesaid estimated cost of respondent no. 2, while the present respondent had submitted a bid of 8.1% below the estimated cost i.e. ₹ 3,38,67,804/-. It blames the petitioner for indulging in litigation, but we are not concerned here with the conduct of the petitioner, but the conduct of the State in a matter of public tender. We are aware of the principles laid down in the case of Michigan Rubber (India) Limited (2012 (3) TMI 512 - SUPREME COURT). We are also aware that we cannot interfere with the tender conditions. We are interfering in this case simply because the respondent nos. 1 and 2 represent that the terms and conditions of the tender are those which have been notified for the benefit of all bidders and participants and then makes a marked departure therefrom without producing any material justifying such deviation. We have found that the work experience is a vital and important eligibility criteria. That could not have been compromised or given up by the State in the manner done. We have found that the State itself and particularly the Department of Public Works, its Executive Engineer (Electrical) are not serious in adhering to the terms and conditions of the tender. Given the nature of the work and the maintenance that is required, the State ought to choose the best and the most experienced in the field. Once the tender process does not meet the requirements of fairness and reasonableness, then there is no alternative for this Court but to interfere. If the State, or its instrumentality, acts reasonably and in public interest in awarding contracts, then the Court's interference is not justified or permissible. However, no person can claim a fundamental right to carry on business with the Government. When the decision of awarding contract is not in accordance with the terms and conditions of the tender notified and the larger public interest is affected adversely, then this Court can, in its writ jurisdiction, interfere with the decision of the State. As a result of the above discussion, the writ petition succeeds. Rule is made absolute in terms of prayer clause (b) to the extent that the work order in favour of 3rd respondent being vitiated as above, is quashed and set aside.
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