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TMI Blog2015 (12) TMI 1710X X X X Extracts X X X X X X X X Extracts X X X X ..... ithin a stipulated time. Cross appeal being MAT No. 133 of 2015 has also been preferred against the said order by the writ petitioner/respondent no. 1. Facts giving rise to the aforesaid appeals are as follows : On 29th April, 2013 the Council published a notice inviting tender from reputed and bona fide publishers for printing, binding, publishing and distribution of 8 text books against annual royalty on sale proceeds for the years 2013 -2014, 2014-2015 and 2015-2016. The salient terms of the said tender are as follows :- (a) The publisher must be a member of any recognized publishers' association of West Bengal as well as of Federation of Indian Publishers (FIP) and the Federation of Publishers' and Booksellers' Associations in India (FPBA) for the last three consecutive years; (b) The publisher must have a proven record of publishing Test Books on different subjects for other Boards like CBSE, ICSE and ISCE for the last three consecutive years; (c) The publisher must have a long history of credibility in the market and transparency both in financial and business dealings." Subsequently by a corrigendum issued on 02.05.2014 clause (a) was modified to the extent that me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ainst Text Books. Therefore, the Council will be happy to receive royalty either at previous rate or a marginal enhanced rate as the Council has no financial involvement in printing, binding and distributing the books." In the selfsame document writ petitioner/respondent no. 1, though he had offered the maximum rate of royalty, was held to be disqualified on the following grounds :- "Tenderer No. 14. Punascha- No previous experience of publishing text books except some minor books for WBBME. In 2012 Mr. Shankari Bhusan Nayak, (father of Mr. Sandip Nayak, Proprietor of Punascha), the owner of GranthaTirtha, a College Street Book Shop with its godown at 11 B Nabin Kundu Lane, Kolkata - 700 009, P.S. Amherst Street was caught red handed for publishing and selling guide-books. On Gulliver's Travels with passages taken from the original book published by Orient Blackswan on behalf of WBCHSE without taking any permission from the publisher. FIR and Charge Sheet were framed u/s IPC 120B/420 and 63/65 Copyright Act. Later Mr. S.D. Nayak, was released on bail on 26.06.2012. In the FIR, the name of Mr. Sandip Nayak has been mentioned who could not be found at the time of inspection. The n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thers. Titles which were not part of the Notice inviting Tender were also allotted to various parties. Rate of royalty was fixed at 26% uniformly. Work orders were accordingly issued to the appellant, writ petitioner and Book Syndicate. The writ petitioner did not accept such work order and approached this Court in W.P. No. 20068 (W) of 2013, inter alia, praying for quashing of the entire process of allotment and for allotment of the tender exclusively to him as he had offered the highest bid. Initially, an order of stay was passed but the said stay order was vacated upon production of original records which contained the aforesaid points of consideration, inter alia, indicating that the petitioner was ineligible due to lack of experience and his alleged involvement in plagiarizing books of the Council. Copies of the documents were handed over to the petitioner and the petitioner instituted the instant writ petition after withdrawing the earlier writ petition. After hearing the parties, learned Single Judge partly allowed the writ petition by quashing the work order for 2015-2016 and directed the Council to take a fresh decision in the matter. Prayer for compensation of the los ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e President had executed written agreements with the appellant for printing, publishing and distribution of three books of the Council for the years 2013, 2014 and 2015. Due to public outcry, such agreements were not given effect to and tender process was initiated. In the initial NIT, unamended clause (a) was incorporated to exclude all competitors apart from the appellant. The said tender condition was however watered down pursuant to another bout of public outcry. On 16.05.2013 the writ petitioner was illegally disqualified although he had sufficient experience of successfully publishing books on behalf of the West Bengal Board of Madrasha Education and had not criminal case registered against him. The father of the petitioner carried on separate business and his implication in a criminal case cannot by any stretch of imagination be a ground to disqualify the petitioner. The tender conditions were illegally varied after the tendering process had commenced and in a blatant show of favouritism appellant was given seven out of eight titles although he was the 3rd highest bidder. Incidentally the aforesaid titles were similar to the titles in respect of which the President of the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n unsuccessful party who had knowingly participated in the tendering process but was dissatisfied with the quantum of allotment in its favour. However, the course of events in the instant case smack of an unusual procedure of dealing with state largesse namely, bartering away the work between the participating bidders through open tender and negotiations instead of following the well establishment norms of fairness and transparency by resorting to fresh tender for allotment of work after alteration of tender conditions by the Council. In the aforesaid factual backdrop, in order to test the locus standi of the writ petitioner to assail the tendering process, it is incumbent to examine the justifiability of the reasons for his initial disqualification from the said process. If such initial disqualification was not in terms of the NIT, the reconsideration of such decision at the behest of Government cannot be faulted and would give the writ petitioner sufficient locus to assail the subsequent steps in the tendering process and the consequential work order. On the other hand, if it appears that the Council was justified in disqualifying the writ petitioner and the Government at his ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of investigation his name did not feature in the charge sheet submitted before the Court. Merely, because of the father of the petitioner is an accused in a pending criminal case, the credibility of the petitioner cannot be said to be tarnished and he cannot be visited with civil consequences on that score. No reasonable man of ordinary prudence would read clause (c) of NIT so as to impute bad character to the writ petitioner under such circumstances. It is therefore evident that the initial disqualification of the writ petitioner, who was highest bidder, from the tendering process was unjustified and not in consonance with the terms of the NIT. It is also strange as to how the tendering committee could have changed the terms of the tender after offers had been received and stipulate that the rate of royalty would not be a determining criteria. Such rate is ordinarily of vital importance in any tendering process and if rate of royalty was not to be given priority it ought to have been reflected in the notice inviting tender itself. It is trite law that rules of the game cannot be changed in the midst of the tendering process and in the instant case such charge of terms of te ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the appellant who was the 3rd highest tenderer is contrary to all conceivable parameters of fair procedure contemplated in the matter of tender of state largesse. Further the grounds of disqualification of the writ petitioner as recorded in the said meeting were also not in consonance to the tender conditions. It is accordingly held that the decision of the tender sub-committee on 16.05.2013 was contrary to law in the facts of the case and was rightly reversed by the Government observers. It has been argued on behalf of the appellant that tendering process ought not to have been interfered with by the State Government. Reliance has also been placed on 63 CWN 1. The State Government under section 35 of the Act is entitled to supervise the activities of the Council and even suspend the resolutions and/or decisions taken by it. As it appears that the tendering process was carried on by the Council in the instant case in an unfair and illegal manner, as aforesaid, interference by the supervisory body, namely, the Government in the matter in exercise of statutory powers cannot be said to be arbitrary, whimsical or contrary to law. The cited case is distinguishable inasmuch as in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Council. It appears from the said records that in its meeting held on 18.02.2015 the Council initially not taken any decision regarding allotment of work due to pendency of the instant appeal before this Court. However, in a subsequent letter written by the President of the Council to its advocate it is recorded that in view of a large stock of unused books there is no need to go for fresh tender and if such need arose in future the Council proposed to get the books printed by a Government Press with due approval of the Court. It has been argued that the aforesaid decisions are not of the Council inasmuch as the aforesaid decisions were not taken in a meeting of the Council having requisite quorum. 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 directe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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