In the present case, taking note of the observations and the
purpose for which the EMD has to be deposited, we find that it cannot be
said that failure to upload the scanned copy is an essential term of the
tender process especially considering that there is nothing on record to show
that at any point of time, the Petitioners who were otherwise holding a draft
in favour of the concerned Department had failed to produce the proof of the
scanned copy when demanded. In such circumstances, the action of the
concerned Department in refusing to open the bid of the Petitioners is
arbitrary, unreasonable and cannot be sustained.
IN THE HIGH COURT OF BOMBAY AT GOA
WRIT PETITION NO. 479 OF 2015
Bharat Conductors Pvt. Ltd.,
V
The Executive Engineer,
CORAM :- F.M. REIS &
NUTAN D. SARDESSAI, JJ.
Date : 7/8th September, 2016.
Citation: 2016(6) MHLJ 408
Heard Mr. D. Pangam, learned Counsel appearing for the
Petitioners, Mr. S. D. Lotlikar, learned Advocate General appearing for the
Respondent No.1, 3 and 4, and Mr. V. K. Daniel, learned Counsel appearing
for the Respondent No.5.
2. Rule. Learned Counsel appearing for the respondents waive
service. Heard forthwith, with the consent of the learned Counsel.
3. The above petitioner, inter alia, prays to quash and set aside the
order dated 20/5/2016 issued by the respondent No.4 in favour of the
respondent No.5 and to issue a writ or direction to the respondent No.1, 3
and 4 to consider the tender of the petitioners on merits, by opening the
technical and financial bids.
4. Briefly, it is the contention of the petitioners that the Government
issued a preferential purchase scheme for the Small Scale Industrial Units
and in terms of Clause (2), no Government Department can purchase the
electrical conductors without the NOC from the respondent No.2-Goa
Handicrafts, Rural and Small Scale Industries Development Corporation
Ltd.. The petition was essentially filed by the petitioners by raising a
grievance that the petitioner No.1 is registered as a Small Scale Industrial
Unit in the State of Goa and is having preference in purchase by the State
Government for electrical conductors and consequently, NOC is required
from the respondent No.2 prior to issuing such tenders. It was further their
contention that no NOC has been obtained from the respondent No.2 and
consequently, the tender process initiated by the respondent No.1 stands
vitiated. But, however, after notice was issued to the respondents, a NOC
from the said Corporation came to be produced and thereafter, the
petitioners amended the petition to incorporate subsequent facts. Mr.
Pangam, learned Counsel appearing for the petitioners has pointed out that
as far as such grievance is concerned, the petition has become infructuous,
and consequently, he will rely upon the averments in the petition in support
of the prayers made in the petition to set aside the allotment in favour of the
respondent No.5. It is the contention of the petitioners that in view of the
interim order passed by this Court in the above petition, the petitioners have
also submitted their bid for the tender process which was initiated by the
respondent No.1. It is also pointed out that e-tender process was initiated
and consequently, according to the petitioners, it was required to be
conducted by an Officer of the Goa InfoTech Corporation in the presence of
all the tenderers. It is further pointed out that a complete offer of the
petitioners, including all the documents and their three Demand Drafts were
to be uploaded by the Officers of the InfoTech Corporation only who are
experts and also conduct the tender openings of all the Government
Departments, including the tenders of the respondent No.1. It is further
pointed out that for the first time, respondent No.1 did not call upon any
Officer of the InfoTech Corporation for the tender opening inspite of
payment of Rs.4,000/- as processing fee. It is further pointed out that with
the help of one lady Officer of the respondent No.1 downloading of tender
forms was carried out by the respondent No.1 in order to leave out some of
the persons with vested interest. It is further submitted that as a result of
such illegal expedient, the EMD demand draft of the petitioners could not be
opened by the said Officer. It is further pointed out by the petitioners that as
such, when the tenders were opened in presence of one of the
representatives of the petitioners, it revealed that the EMD demand draft
had not been downloaded. Though the petitioners had scanned a copy of
the Demand Draft of the EMD and in fact other Demand Drafts were
successfully downloaded, there was no reason to accept that the petitioners
had not produced a copy of the EMD.
5. The respondent-State has filed their reply, inter alia, contending
that as the EMD was not uploaded, nor proof shown at the time of the
opening of the e-tender, the petitioners stood disqualified from taking part in
the tender process. The respondent No.5 was a successful bidder. They
have already started the process for manufacturing the requisite conductors
to be supplied to the respondent No.1. It is further pointed out that the price
offered by the respondent No.5 is a minimum price and consequently, the
process of awarding tender in favour of the respondent No.5 stands justified.
6. When the matter was taken up for hearing, on a number of
occasions the parties had sought adjournments to arrive at a settlement. At
one stage, it was even pointed out that the Consent Terms were also likely
to be signed and the matter was posted for filing such terms. But, however,
the learned Advocate General pointed out that as the petitioner did not
satisfy the requirements of being a BIS registered contractor, it was not
eligible to submit the tender. But, however, Mr. Pangam, learned Counsel
appearing for the petitioner has pointed out that the petitioner is an ISO
contractor, duly certified and, as such, according to him, the Petitioners meet
the eligibility criteria. As no final decision in the settlement could be arrived
at, we proceeded to examine the matter on merits.
7. Mr. Pangam, learned Counsel appearing for the Petitioners has
submitted that in terms of the conditions as stipulated in the application, the
Petitioners submitted all the documents as well as the EMD and the other
amounts payable by the Petitioners by three Demand Drafts which were
uploaded through the agency known as Goa Infotech Corporation. Learned
Counsel further pointed out that the Petitioners have been submitting
e-tender for the last many years and, according to him, such tenders were
submitted through the said Corporation. Learned Counsel further pointed
out that on the day of the opening of the tender, a representative of the
Petitioners was present and that signatures were obtained of such
representatives contending that the EMD for a sum of Rs.500/- was not
uploaded. Learned Counsel further pointed out that in fact the Petitioners
have produced material on record to show that as on the date of submitting
the tender application, the requisite Demand Draft was already purchased in
favour of the concerned Department and, in fact, the representative was
carrying such DD for verification. Learned Counsel further pointed out that
when the Petitioners learnt that neither their technical or their financial bid
was opened, they sought the requisite information from the Respondents
and found that in the documents signed by the representative, there was an
interpolation recorded therein which suggests that the EMD was not
produced for verification. Learned Counsel further pointed out that the
contention of the Respondents that the proof of payment of EMD was not
uploaded is not at all relevant as, according to him, the payment of the EMD
has to be effected only after the Petitioners are chosen as the lowest
tenderer. Learned Counsel further submits that showing the payment of
EMD is not an essential term of the tender process as, according to him, the
condition itself stipulates that such payment has to be made if at all the
Petitioners are chosen as the lowest tenderer. Learned Counsel further
pointed out that as such the rejection of the bid of the Petitioners is arbitrary,
unjustified and as such deserves to be quashed and set aside.
In support of his submissions, the learned Counsel has relied
upon the Judgment of this Court passed in Writ Petition no. 79 of 2016 dated
08.02.2016 in the case of Sudha Facility Management Service vs. the
Managing Director & Ors.
8. Learned Counsel further pointed out that the Petitioners have
been supplying similar conductors for the last 19 years and, according to
him, there was no grievance raised by the concerned Department at any
time with regard to the quality or the material supplied by the Petitioners.
Learned Counsel further pointed out that this condition by itself would as
such not make the Petitioner ineligible and, in any event, this is a matter to
be examined only after the technical and financial bids are opened. Learned
Counsel further pointed out that in fact whilst rejecting the bids of the other
tenderers, the only tender which remained was that of the Respondent no. 5
which itself suggests that there was no competitiveness in the tender
process. Learned Counsel brought to our notice some material on record to
point out that even at the period when the tenders were opened, there were
instances wherein the Respondent no. 5 has submitted tenders for similar
conductors for a price much lower than the price as offered by the
Respondent no. 5. Learned Counsel further pointed out that there would be
loss to the public exchequer by accepting the tender of the Respondent no. 5
which, according to him, considering the conduct of the Respondent in
rejecting the bid of the Petitioners, is arbitrary and deserves to be quashed
and set aside. Learned Counsel as such pointed out that the rejection of the
tender of the Petitioners be quashed and set aside and the Respondent no.
1 be directed to proceed with the tender process from that stage.
9. On the other hand, Shri S. D. Lotlikar, learned Advocate General
appearing for the Respondent no. 1, has pointed out that a judicial review in
a tendering process is very limited and the ultimate decision cannot be
challenged in a Petition under Article 226 of the Constitution of India and the
only aspect that the Court can examine is whether the decision making
process is fair and in accordance with law. Learned Advocate General has
taken us through the terms of the tenders which clearly provide that the
scanned copy of the EMD had to be uploaded along with the tender
application which the Petitioners have failed to upload. Learned Advocate
General further pointed out that in the Minutes recorded by the concerned
Department at the time of the opening of the bids, it was clearly revealed that
as there was no proof of payment of the EMD nor the records reveal that the
scanned copy of the EMD was not uploaded, the Respondents were within
their right to reject the tender of the Petitioners. Learned Advocate General
further pointed out that in any event the Petitioners admittedly did not have a
BIS Certificate as well as the certificate from the competent authority to meet
the suitability of the product for the last ten years. Learned Advocate
General further pointed out that as such, the exercise of opening of the
tender of the Petitioners, would be an exercise in futility especially when
there is an urgent need to supply such conductors. Learned Advocate
General further pointed out that as there is no arbitrariness in the decision
making process by the Respondent no. 1, there is no reason for interference
in the impugned decision of the Respondent no. 1. Learned Advocate
General has brought to our notice some information with regard to the effect
of an ISO Certificate and a BIS Certificate to point out that an ISO Certificate
only guarantees services of the concerned person whereas the BIS
Certificate confirms the product itself. Learned Advocate General as such
pointed out that the Petition be accordingly rejected.
10. Shri V. Daniel, learned Counsel appearing for the
Respondent no. 5, has submitted that the Respondent no. 5 is a
Government Company and in fact has invested a substantial amount to
prepare the conductors in question to supply them to the Respondents.
Learned Counsel further pointed out that Respondent no. 5 has a BIS
Certificate and an ISO Certificate which is the basic eligibility criteria.
Learned Counsel further submits that the bid of the Respondent no. 5 has
been rightly accepted by the Respondent no. 1 and, consequently, the
question of interference in the tender process in the present Petition under
Article 226 of the Constitution of India would not at all be justified. Learned
Counsel has also distinguished the Judgment relied upon by Mr. Pangam,
learned Counsel appearing for the Petitioners, to point out that in the said
Judgment, proof of the EMD was shown at the time of the opening of the
tender. Learned Counsel further submits that as there is no proof of
payment of EMD which is a condition precedent to open the bid of the
Petitioners, the Respondent no. 1 was justified to reject the tender of the
Petitioners. Learned Counsel further submits that as the Petitioners have
not satisfied either the eligibility criteria nor the terms and conditions of the
tender process, the Respondent no. 1 was justified to reject the bid of the
Petitioners.
Learned Counsel in support of his submission, has relied upon
the Judgments of the Apex Court reported in 2015 AIR SCW 6408 in the
case of Elektron Lighting Systems Private Limited & anr. vs. Shah
Investments Financial Developments and Consultants Private Limited
& Ors. Etc.
11. With regard to the contention of the learned Advocate General,
that in any event the Petitioners are ineligible to submit the tender as they
have no BIS Certificate, Mr. Pangam, learned Counsel, pointed out that the
Petitioners have an ISO Certificate which is much superior to such certificate
and, as such, this by itself would not make the Petitioners ineligible.
12. We have considered the submissions of the learned Counsel
and we have also gone through the record. Though there was an elaborate
debate between the learned Counsel with regards to the eligibility of the
Petitioners as, according to the Respondents, the Petitioners did have a BIS
certificate as required, we find that such considerations in the present
Petition would not be required or justified at this stage. The evaluation of the
bid of the Petitioners would depend upon the opinion of the technical expert
who would have to take a decision whether holding of a BIS Certificate is an
essential term of the subject tender process. Though Mr. S. D. Lotlikar,
learned Advocate General and Mr. Pangam, learned Counsel appearing for
the Petitioners, have brought to our notice different information in connection
with the effect of an ISO and a BIS Certificate nevertheless considering that
the bid of the Petitioners was not rejected on such grounds, it would not be
appropriate for this Court to examine the rival contentions with regard to the
necessity or otherwise of holding a BIS Certificate.
13. But the fact remains that as per the information placed on
record by us, BIS is stated to be a National Standard Body of India and is a
founder member of the ISO. BIS represents India in ISO. It is also stated
that BIS has adopted the standards of ISO 9000 and that BIS also provides
certification against ISO 9001 under the Management System Certification
Activity. No doubt, it needs little emphasis that there can be no compromise
with the quality of the product to be purchased. So is the importance of the
consistency in the supply of the subject products. But the question for
consideration would be whether the condition to hold BIS Certificate as
opposed to an ISO Certificate can ensure both.
14. In any event, as we are not inclined to examine the effect of how
holding a BIS Certificate would guarantee or not the quality of the subject
product standard, this aspect would have to be examined by the Technical
Expert Committee on its own merits, and, as such, the contentions raised by
the learned Counsel with that regard are left open to be examined at an
appropriate stage.
15. In the present case, the question we propose to examine is
whether the refusal to open the bid of the Petitioners as there was no proof
of payment of EMD stands justified. On perusal of the terms and conditions
of the subject tender, it inter alia provides at clause B(i) that the earnest
money in the form of a Treasury Challan or deposit or call receipt of a
schedule Bank granted by the Reserve Bank of India or Bankers Cheque of
a schedule Bank or Demand Draft of a schedule Bank or a fixed deposit
receipt of a scheduled Bank shall be drawn in the name of the Executive
Engineer of the Electricity Department. It also provides that the physical
scanned copy of the EMD uploaded shall be deposited by the lowest bidder
within a week after opening of the financial bid failing which the bid shall be
rejected and enlistment of the Agency shall be withdrawn by the Enlisting
Authority and the Agency shall be debarred from tendering in the Electricity
Department, Government of Goa. Clause (iii) of the said terms also
reserves a purchase preference conditions to Small Scale Industries Unit
with the Director of Industries and Mines, Government of Goa.
16. No doubt, the terms also provide that the tenderers have
to submit the proof of payment of EMD in any of the forms mentioned
in clause B(i) and further that in case the documents referred to therein
are not submitted, the tender bid is liable to be rejected.
17. The terms referred to hereinabove, clearly show that the
physical EMD of the scanned copy has to be deposited by the lowest bidder
within a week after the opening of the financial bid. The Respondent no. 1
has produced the Minutes of the records to point out that when the tender
were opened, at exhibit 'C' collectively, there is a note that the scanned EMD
of the Petitioners was not uploaded as per the condition and also the proof
of payment of EMD was not produced and hence not authorized to open the
bid. It is vehemently contended by Mr. Pangam, learned Counsel appearing
for the Petitioners that on going through the said notings, it disclosed some
interpolation. But, however, the learned Advocate General, has brought to
our notice the Tender Log Report in respect of the subject tender during the
course of dictation, which, inter alia, shows that on 25.06.2015 at 12.18
hours, general documents referred to therein were attached by the
Petitioners which also include the EMD. The said Log Report is taken on
record and marked 'X' for identification. Thereafter, on the same date at
different timings and on subsequent occasions, documents were uploaded
by the Petitioners in respect of the subject tender. The report further shows
that on 02.07.2015, the tender form was successfully submitted by the
Petitioner. On the date of the opening of the tender i.e. 03.07.2015 at 15.47
hours, the note suggests that the Petitioners have been declared to have
ben qualified but, however, on the same date, at 16.29 hours, the note
suggests that the EMD was rejected as the Petitioners had not uploaded it
and also proof of payment of EMD as per the conditions. The in-congruency
in the said notings on the said date based on the material produced by the
Respondent no. 1 themselves, have not been explained in the affidavit. The
note clearly discloses that the Petitioner was held to be qualified obviously
because all the documents were submitted by the Petitioners but, however,
the tender bid of the Petitioners was not opened as the EMD was not
uploaded. The fact that the Petitioner had obtained a Demand Draft of the
EMD much prior to the submission of his bid cannot be disputed as a xerox
copy thereof has been placed on record.
18. In such circumstances, we find that the stand of the Respondent
no. 1 that the EMD was not uploaded or that proof of payment was not
produced by the Petitioners at the time of the opening of the bid, cannot be
accepted. The said report at Exhibit 'X' itself discloses that EMD was
uploaded on 25.06.2015. There is nothing placed on record to show that at
any point of time when the representative of the Petitioners was present at
the time of the opening of the bids, the Petitioners were asked to produce
the proof of EMD which was refused. Apart from that, as pointed out herein
above, the EMD has to be deposited by the lowest tenderer physically within
one week from the date the financial bid is opened.
19. In view of the above, we are of the opinion that there is no legal
justification on the part of the Respondent no. 1 in rejecting the bid of the
Petitioners on the ground that the proof of EMD was not produced or that the
scanned copy of the EMD was not uploaded.
20. In this connection, this Court in the said Judgment passed in
Writ Petition no. 79 of 2016 in the case of Sudha Facility Management
Service vs. the Managing Dirctor & Ors., (wherein one of us Shri F. M.
Reis, J. is a party) by relying upon the Judgment of the Apex Court, has
observed at Para 8 thus :
8. Apart from that, the payment of earnest
money cannot be considered to be an essential
term of the tender process. The Apex Court, in a
Judgment reported in (1991) 3 SCC 273 in the
case of Poddar Steel Corporation vs. Ganesh
Engineering Works and others, has observed
at paras 6 and 8, thus :
“6. It is true that in submitting its
tender accompanied by a cheque of
the Union Bank of India and not of the
State Bank clause 6 of the tender
notice was not obeyed literally, but the
question is as to whether the said noncompliance
deprived the Diesel
Locomotive Works of the authority to
accept the bid. As a matter of general
proposition it cannot be held that an
authority inviting tenders is bound to
give effect to every term mentioned in
the notice in meticulous detail, and is
not entitled to waive even a technical
irregularity of little or no significance.
The requirements in a tender notice
can be classified into two categories —
those which lay down the essential
conditions of eligibility and the others
which are merely ancillary or subsidiary
with the main object to be achieved by
the condition. In the first case the
authority issuing the tender may be
required to enforce them rigidly. In the
other cases it must be open to the
authority to deviate from and not to
insist upon the strict literal compliance
of the condition in appropriate cases.
This aspect was examined by this
Court in C.J. Fernandez v. State of
Karnataka (1990) 2 SCC 488, a case
dealing with tenders. Although not in an
entirely identical situation as the
present one, the observations in the
judgment support our view. The High
Court has, in the impugned decision,
relied upon Ramana Dayaram Shetty v.
International Airport Authority of India
(1979) 3 SCC 489, but has failed to
appreciate that the reported case
belonged to the first category where
the strict compliance of the condition
could be insisted upon. The authority in
that case, by not insisting upon the
requirement in the tender notice which
was an essential condition of eligibility,
bestowed a favour on one of the
bidders, which amounted to illegal
discrimination. The judgment indicates
that the court closely examined the
nature of the condition which had been
relaxed and its impact before
answering the question whether it
could have validly condoned the
shortcoming in the tender in question.
This part of the judgment demonstrates
the difference between the two
categories of the conditions discussed
above. However it remains to be seen
as to which of the two clauses, the
present case belongs.
8. In the present case the certified
cheque of the Union Bank of India
drawn on its own branch must be
treated as sufficient for the purpose of
achieving the object of the condition
and the Tender Committee took the
abundant caution by a further
verification from the bank. In this
situation it is not correct to hold that the
Diesel Locomotive Works had no
authority to waive the technical literal
compliance of clause 6, specially when
it was in its interest not to reject the
said bid which was the highest. We,
therefore, set aside the impugned
judgment and dismiss the writ petition
of respondent 1 filed before the High
Court. The appeal is accordingly
allowed with costs throughout.” In the
present case, considering the purpose
for which the earnest money is being
deposited, we find that it is not an
essential term of the tender process.
On going through the terms of the
tender, it appears that the earnest
money would be adjusted as security
deposit if the bid of the tenderer is
accepted. Hence, once the tender
documents, along with the demand
draft, were accepted by the
respondent-Corporation, it was not
open to the respondent-Corporation to
unilaterally reject the bid of the
petitioner. In such circumstances, we
find that the rejection of the bid of the
petitioner cannot be sustained and
deserves to be quashed and set aside.
Consequently, the order passed by the
Board of Directors of the respondent
No.3 with that regard deserves to be
quashed and set aside. Once, rejection
of the bid of the petitioner is set aside
and having regard to the fact that the
tender was for cleaning of buses, we
find that the respondent-Corporation
shall have to take a fresh decision with
regard to the tender process initiated
pursuant to the tender notice dated
27/10/2015, in accordance with law. In
such circumstances, the second tender
process initiated by the respondents
would not survive. Hence, the decision
dated 18/01/2016 deserves to be
quashed and set aside, and the
respondents be accordingly directed to
take a fresh decision in the said tender
process.”
In the present case, taking note of the observations and the
purpose for which the EMD has to be deposited, we find that it cannot be
said that failure to upload the scanned copy is an essential term of the
tender process especially considering that there is nothing on record to show
that at any point of time, the Petitioners who were otherwise holding a draft
in favour of the concerned Department had failed to produce the proof of the
scanned copy when demanded. In such circumstances, the action of the
concerned Department in refusing to open the bid of the Petitioners is
arbitrary, unreasonable and cannot be sustained.
21. In such circumstances, the Judgment of the Apex Court relied
upon by the learned Counsel appearing for the Respondent no. 5 is not
applicable to the facts and circumstances of the present case. The refusal
to open the bid of the petitioners has vitally vitiated the decision making
process by the Respondent no.1 whilst awarding the tender to the
Respondent no. 5, which would justify interference of this Court in the
present Writ Petition. When the power of judicial review is invoked in the
matters relating to the tenders or award of a contract, certain special
features should be borne in mind. A contract is a commercial transaction.
Evaluating tenders and awarding of contracts are essentially commercial
functions. Principles of equity and natural justice stay at a distance. If the
decision relating to award of a contract is bonafide and is in public interest,
the Court will not exercise its jurisdiction or power of judicial review to
interfere even if a procedural aberration or error in assessment or prejudice
to a tenderer is made out. There has to be competitiveness in assessing
the tenders. We have to keep in mind that by rejecting the other bids except
that of the respondent no.5, it has resulted in eliminating the participation of
the other manufacturers of the subject product who were otherwise eligible
to supply similar products. The evaluation of the respective bids would have
to be performed by the Technical Committee whilst evaluating the bids of the
respective tenderers. Rejecting the bid of the Petitioners though there is
material to suggest that the EMD was uploaded by the Petitioners has
resulted in a material irregularity in the decision making process which led to
accepting the tender of the respondent no.5 without any competitive bids for
evaluation which is unreasonable, arbitrary and irrational. The committee
did not have as such the competitive bids of other tenderers to evaluate the
bid of the respondent no.5. In such circumstances, we find that the process
adopted by the respondent no. 1 in the decision to reject the bid of the
Petitioners on the ground that the scan copy nor the proof of the EMD was
produced by the Petitioners, for the aforesaid reasons is irrational which
would call for interference of this Court in the present petition. The Court is
entitled to investigate the action of the respondent no.1 with a view to see
whether or not they have taken into account matters which they ought to
have taken note of or conversely had refused to take note accordingly of the
matters which they ought to have taken into account. Even though the
respondent may have a discretion in accepting the offer in contractual
matters, the same will have to be done within the four-corners of the
requirements of law essentially Article 14 of the Constitution.
22. Considering the facts of the present case and as the offer of the
Petitioners of the subject tender has been irrationally and arbitrarily rejected,
we find that the impugned decision accepting the tender of the respondent
no.5 stands vitiated and deserves to be quashed and set aside. As already
pointed out herein above, the Technical Committee will have to re-evaluate
the bids of the respondent no.5 and the Petitioners and take a decision in the
light of the observations made herein above in accordance with law.
23. In view of the above, we pass the following :
O R D E R
(i) The work order dated 20.05.2016 issued to the
respondent no.5 is quashed and set aside.
(ii) The rejection of the bid of the Petitioners on
03.07.2015 is also quashed and set aside.
(iii) The respondent nos. 1 to 3 are accordingly
directed to consider the tender of the Petitioners on
merits by opening the technical and financial bid and
proceed with the tender process in the light of the
observations made hereinabove in accordance with
law.
(iv) Rule is made absolute in the above terms.
NUTAN D. SARDESSAI, J. F. M. REIS, J.
ssm/arp/*/at*
DATE : 8th September, 2016
JUDGMENT CONTINUED
At this stage, Mr. V. Daniel, learned Counsel appearing for the
Respondent no. 5, seeks stay of the Order passed today. Mr. Pangam,
learned Counsel appearing for the Petitioners opposes the stay of the
operation of the Order. Mr. S. D. Lotlikar, learned Advocate General,
appearing for the Respondent no. 1, also pointed out that there is an urgent
need to the subject conductor to the concerned Department.
Considering the directions issued and the urgency as pointed out by
the learned Advocate General, we are not inclined to stay the operation of
the Order and, as such, the prayer for stay sought by the learned Counsel
appearing for the Respondent no. 5 stands rejected.
NUTAN D. SARDESSAI, J. F. M. REIS, J.
Print Page
purpose for which the EMD has to be deposited, we find that it cannot be
said that failure to upload the scanned copy is an essential term of the
tender process especially considering that there is nothing on record to show
that at any point of time, the Petitioners who were otherwise holding a draft
in favour of the concerned Department had failed to produce the proof of the
scanned copy when demanded. In such circumstances, the action of the
concerned Department in refusing to open the bid of the Petitioners is
arbitrary, unreasonable and cannot be sustained.
IN THE HIGH COURT OF BOMBAY AT GOA
WRIT PETITION NO. 479 OF 2015
Bharat Conductors Pvt. Ltd.,
V
The Executive Engineer,
CORAM :- F.M. REIS &
NUTAN D. SARDESSAI, JJ.
Date : 7/8th September, 2016.
Citation: 2016(6) MHLJ 408
Heard Mr. D. Pangam, learned Counsel appearing for the
Petitioners, Mr. S. D. Lotlikar, learned Advocate General appearing for the
Respondent No.1, 3 and 4, and Mr. V. K. Daniel, learned Counsel appearing
for the Respondent No.5.
2. Rule. Learned Counsel appearing for the respondents waive
service. Heard forthwith, with the consent of the learned Counsel.
3. The above petitioner, inter alia, prays to quash and set aside the
order dated 20/5/2016 issued by the respondent No.4 in favour of the
respondent No.5 and to issue a writ or direction to the respondent No.1, 3
and 4 to consider the tender of the petitioners on merits, by opening the
technical and financial bids.
4. Briefly, it is the contention of the petitioners that the Government
issued a preferential purchase scheme for the Small Scale Industrial Units
and in terms of Clause (2), no Government Department can purchase the
electrical conductors without the NOC from the respondent No.2-Goa
Handicrafts, Rural and Small Scale Industries Development Corporation
Ltd.. The petition was essentially filed by the petitioners by raising a
grievance that the petitioner No.1 is registered as a Small Scale Industrial
Unit in the State of Goa and is having preference in purchase by the State
Government for electrical conductors and consequently, NOC is required
from the respondent No.2 prior to issuing such tenders. It was further their
contention that no NOC has been obtained from the respondent No.2 and
consequently, the tender process initiated by the respondent No.1 stands
vitiated. But, however, after notice was issued to the respondents, a NOC
from the said Corporation came to be produced and thereafter, the
petitioners amended the petition to incorporate subsequent facts. Mr.
Pangam, learned Counsel appearing for the petitioners has pointed out that
as far as such grievance is concerned, the petition has become infructuous,
and consequently, he will rely upon the averments in the petition in support
of the prayers made in the petition to set aside the allotment in favour of the
respondent No.5. It is the contention of the petitioners that in view of the
interim order passed by this Court in the above petition, the petitioners have
also submitted their bid for the tender process which was initiated by the
respondent No.1. It is also pointed out that e-tender process was initiated
and consequently, according to the petitioners, it was required to be
conducted by an Officer of the Goa InfoTech Corporation in the presence of
all the tenderers. It is further pointed out that a complete offer of the
petitioners, including all the documents and their three Demand Drafts were
to be uploaded by the Officers of the InfoTech Corporation only who are
experts and also conduct the tender openings of all the Government
Departments, including the tenders of the respondent No.1. It is further
pointed out that for the first time, respondent No.1 did not call upon any
Officer of the InfoTech Corporation for the tender opening inspite of
payment of Rs.4,000/- as processing fee. It is further pointed out that with
the help of one lady Officer of the respondent No.1 downloading of tender
forms was carried out by the respondent No.1 in order to leave out some of
the persons with vested interest. It is further submitted that as a result of
such illegal expedient, the EMD demand draft of the petitioners could not be
opened by the said Officer. It is further pointed out by the petitioners that as
such, when the tenders were opened in presence of one of the
representatives of the petitioners, it revealed that the EMD demand draft
had not been downloaded. Though the petitioners had scanned a copy of
the Demand Draft of the EMD and in fact other Demand Drafts were
successfully downloaded, there was no reason to accept that the petitioners
had not produced a copy of the EMD.
5. The respondent-State has filed their reply, inter alia, contending
that as the EMD was not uploaded, nor proof shown at the time of the
opening of the e-tender, the petitioners stood disqualified from taking part in
the tender process. The respondent No.5 was a successful bidder. They
have already started the process for manufacturing the requisite conductors
to be supplied to the respondent No.1. It is further pointed out that the price
offered by the respondent No.5 is a minimum price and consequently, the
process of awarding tender in favour of the respondent No.5 stands justified.
6. When the matter was taken up for hearing, on a number of
occasions the parties had sought adjournments to arrive at a settlement. At
one stage, it was even pointed out that the Consent Terms were also likely
to be signed and the matter was posted for filing such terms. But, however,
the learned Advocate General pointed out that as the petitioner did not
satisfy the requirements of being a BIS registered contractor, it was not
eligible to submit the tender. But, however, Mr. Pangam, learned Counsel
appearing for the petitioner has pointed out that the petitioner is an ISO
contractor, duly certified and, as such, according to him, the Petitioners meet
the eligibility criteria. As no final decision in the settlement could be arrived
at, we proceeded to examine the matter on merits.
7. Mr. Pangam, learned Counsel appearing for the Petitioners has
submitted that in terms of the conditions as stipulated in the application, the
Petitioners submitted all the documents as well as the EMD and the other
amounts payable by the Petitioners by three Demand Drafts which were
uploaded through the agency known as Goa Infotech Corporation. Learned
Counsel further pointed out that the Petitioners have been submitting
e-tender for the last many years and, according to him, such tenders were
submitted through the said Corporation. Learned Counsel further pointed
out that on the day of the opening of the tender, a representative of the
Petitioners was present and that signatures were obtained of such
representatives contending that the EMD for a sum of Rs.500/- was not
uploaded. Learned Counsel further pointed out that in fact the Petitioners
have produced material on record to show that as on the date of submitting
the tender application, the requisite Demand Draft was already purchased in
favour of the concerned Department and, in fact, the representative was
carrying such DD for verification. Learned Counsel further pointed out that
when the Petitioners learnt that neither their technical or their financial bid
was opened, they sought the requisite information from the Respondents
and found that in the documents signed by the representative, there was an
interpolation recorded therein which suggests that the EMD was not
produced for verification. Learned Counsel further pointed out that the
contention of the Respondents that the proof of payment of EMD was not
uploaded is not at all relevant as, according to him, the payment of the EMD
has to be effected only after the Petitioners are chosen as the lowest
tenderer. Learned Counsel further submits that showing the payment of
EMD is not an essential term of the tender process as, according to him, the
condition itself stipulates that such payment has to be made if at all the
Petitioners are chosen as the lowest tenderer. Learned Counsel further
pointed out that as such the rejection of the bid of the Petitioners is arbitrary,
unjustified and as such deserves to be quashed and set aside.
In support of his submissions, the learned Counsel has relied
upon the Judgment of this Court passed in Writ Petition no. 79 of 2016 dated
08.02.2016 in the case of Sudha Facility Management Service vs. the
Managing Director & Ors.
8. Learned Counsel further pointed out that the Petitioners have
been supplying similar conductors for the last 19 years and, according to
him, there was no grievance raised by the concerned Department at any
time with regard to the quality or the material supplied by the Petitioners.
Learned Counsel further pointed out that this condition by itself would as
such not make the Petitioner ineligible and, in any event, this is a matter to
be examined only after the technical and financial bids are opened. Learned
Counsel further pointed out that in fact whilst rejecting the bids of the other
tenderers, the only tender which remained was that of the Respondent no. 5
which itself suggests that there was no competitiveness in the tender
process. Learned Counsel brought to our notice some material on record to
point out that even at the period when the tenders were opened, there were
instances wherein the Respondent no. 5 has submitted tenders for similar
conductors for a price much lower than the price as offered by the
Respondent no. 5. Learned Counsel further pointed out that there would be
loss to the public exchequer by accepting the tender of the Respondent no. 5
which, according to him, considering the conduct of the Respondent in
rejecting the bid of the Petitioners, is arbitrary and deserves to be quashed
and set aside. Learned Counsel as such pointed out that the rejection of the
tender of the Petitioners be quashed and set aside and the Respondent no.
1 be directed to proceed with the tender process from that stage.
9. On the other hand, Shri S. D. Lotlikar, learned Advocate General
appearing for the Respondent no. 1, has pointed out that a judicial review in
a tendering process is very limited and the ultimate decision cannot be
challenged in a Petition under Article 226 of the Constitution of India and the
only aspect that the Court can examine is whether the decision making
process is fair and in accordance with law. Learned Advocate General has
taken us through the terms of the tenders which clearly provide that the
scanned copy of the EMD had to be uploaded along with the tender
application which the Petitioners have failed to upload. Learned Advocate
General further pointed out that in the Minutes recorded by the concerned
Department at the time of the opening of the bids, it was clearly revealed that
as there was no proof of payment of the EMD nor the records reveal that the
scanned copy of the EMD was not uploaded, the Respondents were within
their right to reject the tender of the Petitioners. Learned Advocate General
further pointed out that in any event the Petitioners admittedly did not have a
BIS Certificate as well as the certificate from the competent authority to meet
the suitability of the product for the last ten years. Learned Advocate
General further pointed out that as such, the exercise of opening of the
tender of the Petitioners, would be an exercise in futility especially when
there is an urgent need to supply such conductors. Learned Advocate
General further pointed out that as there is no arbitrariness in the decision
making process by the Respondent no. 1, there is no reason for interference
in the impugned decision of the Respondent no. 1. Learned Advocate
General has brought to our notice some information with regard to the effect
of an ISO Certificate and a BIS Certificate to point out that an ISO Certificate
only guarantees services of the concerned person whereas the BIS
Certificate confirms the product itself. Learned Advocate General as such
pointed out that the Petition be accordingly rejected.
10. Shri V. Daniel, learned Counsel appearing for the
Respondent no. 5, has submitted that the Respondent no. 5 is a
Government Company and in fact has invested a substantial amount to
prepare the conductors in question to supply them to the Respondents.
Learned Counsel further pointed out that Respondent no. 5 has a BIS
Certificate and an ISO Certificate which is the basic eligibility criteria.
Learned Counsel further submits that the bid of the Respondent no. 5 has
been rightly accepted by the Respondent no. 1 and, consequently, the
question of interference in the tender process in the present Petition under
Article 226 of the Constitution of India would not at all be justified. Learned
Counsel has also distinguished the Judgment relied upon by Mr. Pangam,
learned Counsel appearing for the Petitioners, to point out that in the said
Judgment, proof of the EMD was shown at the time of the opening of the
tender. Learned Counsel further submits that as there is no proof of
payment of EMD which is a condition precedent to open the bid of the
Petitioners, the Respondent no. 1 was justified to reject the tender of the
Petitioners. Learned Counsel further submits that as the Petitioners have
not satisfied either the eligibility criteria nor the terms and conditions of the
tender process, the Respondent no. 1 was justified to reject the bid of the
Petitioners.
Learned Counsel in support of his submission, has relied upon
the Judgments of the Apex Court reported in 2015 AIR SCW 6408 in the
case of Elektron Lighting Systems Private Limited & anr. vs. Shah
Investments Financial Developments and Consultants Private Limited
& Ors. Etc.
11. With regard to the contention of the learned Advocate General,
that in any event the Petitioners are ineligible to submit the tender as they
have no BIS Certificate, Mr. Pangam, learned Counsel, pointed out that the
Petitioners have an ISO Certificate which is much superior to such certificate
and, as such, this by itself would not make the Petitioners ineligible.
12. We have considered the submissions of the learned Counsel
and we have also gone through the record. Though there was an elaborate
debate between the learned Counsel with regards to the eligibility of the
Petitioners as, according to the Respondents, the Petitioners did have a BIS
certificate as required, we find that such considerations in the present
Petition would not be required or justified at this stage. The evaluation of the
bid of the Petitioners would depend upon the opinion of the technical expert
who would have to take a decision whether holding of a BIS Certificate is an
essential term of the subject tender process. Though Mr. S. D. Lotlikar,
learned Advocate General and Mr. Pangam, learned Counsel appearing for
the Petitioners, have brought to our notice different information in connection
with the effect of an ISO and a BIS Certificate nevertheless considering that
the bid of the Petitioners was not rejected on such grounds, it would not be
appropriate for this Court to examine the rival contentions with regard to the
necessity or otherwise of holding a BIS Certificate.
13. But the fact remains that as per the information placed on
record by us, BIS is stated to be a National Standard Body of India and is a
founder member of the ISO. BIS represents India in ISO. It is also stated
that BIS has adopted the standards of ISO 9000 and that BIS also provides
certification against ISO 9001 under the Management System Certification
Activity. No doubt, it needs little emphasis that there can be no compromise
with the quality of the product to be purchased. So is the importance of the
consistency in the supply of the subject products. But the question for
consideration would be whether the condition to hold BIS Certificate as
opposed to an ISO Certificate can ensure both.
14. In any event, as we are not inclined to examine the effect of how
holding a BIS Certificate would guarantee or not the quality of the subject
product standard, this aspect would have to be examined by the Technical
Expert Committee on its own merits, and, as such, the contentions raised by
the learned Counsel with that regard are left open to be examined at an
appropriate stage.
15. In the present case, the question we propose to examine is
whether the refusal to open the bid of the Petitioners as there was no proof
of payment of EMD stands justified. On perusal of the terms and conditions
of the subject tender, it inter alia provides at clause B(i) that the earnest
money in the form of a Treasury Challan or deposit or call receipt of a
schedule Bank granted by the Reserve Bank of India or Bankers Cheque of
a schedule Bank or Demand Draft of a schedule Bank or a fixed deposit
receipt of a scheduled Bank shall be drawn in the name of the Executive
Engineer of the Electricity Department. It also provides that the physical
scanned copy of the EMD uploaded shall be deposited by the lowest bidder
within a week after opening of the financial bid failing which the bid shall be
rejected and enlistment of the Agency shall be withdrawn by the Enlisting
Authority and the Agency shall be debarred from tendering in the Electricity
Department, Government of Goa. Clause (iii) of the said terms also
reserves a purchase preference conditions to Small Scale Industries Unit
with the Director of Industries and Mines, Government of Goa.
16. No doubt, the terms also provide that the tenderers have
to submit the proof of payment of EMD in any of the forms mentioned
in clause B(i) and further that in case the documents referred to therein
are not submitted, the tender bid is liable to be rejected.
17. The terms referred to hereinabove, clearly show that the
physical EMD of the scanned copy has to be deposited by the lowest bidder
within a week after the opening of the financial bid. The Respondent no. 1
has produced the Minutes of the records to point out that when the tender
were opened, at exhibit 'C' collectively, there is a note that the scanned EMD
of the Petitioners was not uploaded as per the condition and also the proof
of payment of EMD was not produced and hence not authorized to open the
bid. It is vehemently contended by Mr. Pangam, learned Counsel appearing
for the Petitioners that on going through the said notings, it disclosed some
interpolation. But, however, the learned Advocate General, has brought to
our notice the Tender Log Report in respect of the subject tender during the
course of dictation, which, inter alia, shows that on 25.06.2015 at 12.18
hours, general documents referred to therein were attached by the
Petitioners which also include the EMD. The said Log Report is taken on
record and marked 'X' for identification. Thereafter, on the same date at
different timings and on subsequent occasions, documents were uploaded
by the Petitioners in respect of the subject tender. The report further shows
that on 02.07.2015, the tender form was successfully submitted by the
Petitioner. On the date of the opening of the tender i.e. 03.07.2015 at 15.47
hours, the note suggests that the Petitioners have been declared to have
ben qualified but, however, on the same date, at 16.29 hours, the note
suggests that the EMD was rejected as the Petitioners had not uploaded it
and also proof of payment of EMD as per the conditions. The in-congruency
in the said notings on the said date based on the material produced by the
Respondent no. 1 themselves, have not been explained in the affidavit. The
note clearly discloses that the Petitioner was held to be qualified obviously
because all the documents were submitted by the Petitioners but, however,
the tender bid of the Petitioners was not opened as the EMD was not
uploaded. The fact that the Petitioner had obtained a Demand Draft of the
EMD much prior to the submission of his bid cannot be disputed as a xerox
copy thereof has been placed on record.
18. In such circumstances, we find that the stand of the Respondent
no. 1 that the EMD was not uploaded or that proof of payment was not
produced by the Petitioners at the time of the opening of the bid, cannot be
accepted. The said report at Exhibit 'X' itself discloses that EMD was
uploaded on 25.06.2015. There is nothing placed on record to show that at
any point of time when the representative of the Petitioners was present at
the time of the opening of the bids, the Petitioners were asked to produce
the proof of EMD which was refused. Apart from that, as pointed out herein
above, the EMD has to be deposited by the lowest tenderer physically within
one week from the date the financial bid is opened.
19. In view of the above, we are of the opinion that there is no legal
justification on the part of the Respondent no. 1 in rejecting the bid of the
Petitioners on the ground that the proof of EMD was not produced or that the
scanned copy of the EMD was not uploaded.
20. In this connection, this Court in the said Judgment passed in
Writ Petition no. 79 of 2016 in the case of Sudha Facility Management
Service vs. the Managing Dirctor & Ors., (wherein one of us Shri F. M.
Reis, J. is a party) by relying upon the Judgment of the Apex Court, has
observed at Para 8 thus :
8. Apart from that, the payment of earnest
money cannot be considered to be an essential
term of the tender process. The Apex Court, in a
Judgment reported in (1991) 3 SCC 273 in the
case of Poddar Steel Corporation vs. Ganesh
Engineering Works and others, has observed
at paras 6 and 8, thus :
“6. It is true that in submitting its
tender accompanied by a cheque of
the Union Bank of India and not of the
State Bank clause 6 of the tender
notice was not obeyed literally, but the
question is as to whether the said noncompliance
deprived the Diesel
Locomotive Works of the authority to
accept the bid. As a matter of general
proposition it cannot be held that an
authority inviting tenders is bound to
give effect to every term mentioned in
the notice in meticulous detail, and is
not entitled to waive even a technical
irregularity of little or no significance.
The requirements in a tender notice
can be classified into two categories —
those which lay down the essential
conditions of eligibility and the others
which are merely ancillary or subsidiary
with the main object to be achieved by
the condition. In the first case the
authority issuing the tender may be
required to enforce them rigidly. In the
other cases it must be open to the
authority to deviate from and not to
insist upon the strict literal compliance
of the condition in appropriate cases.
This aspect was examined by this
Court in C.J. Fernandez v. State of
Karnataka (1990) 2 SCC 488, a case
dealing with tenders. Although not in an
entirely identical situation as the
present one, the observations in the
judgment support our view. The High
Court has, in the impugned decision,
relied upon Ramana Dayaram Shetty v.
International Airport Authority of India
(1979) 3 SCC 489, but has failed to
appreciate that the reported case
belonged to the first category where
the strict compliance of the condition
could be insisted upon. The authority in
that case, by not insisting upon the
requirement in the tender notice which
was an essential condition of eligibility,
bestowed a favour on one of the
bidders, which amounted to illegal
discrimination. The judgment indicates
that the court closely examined the
nature of the condition which had been
relaxed and its impact before
answering the question whether it
could have validly condoned the
shortcoming in the tender in question.
This part of the judgment demonstrates
the difference between the two
categories of the conditions discussed
above. However it remains to be seen
as to which of the two clauses, the
present case belongs.
8. In the present case the certified
cheque of the Union Bank of India
drawn on its own branch must be
treated as sufficient for the purpose of
achieving the object of the condition
and the Tender Committee took the
abundant caution by a further
verification from the bank. In this
situation it is not correct to hold that the
Diesel Locomotive Works had no
authority to waive the technical literal
compliance of clause 6, specially when
it was in its interest not to reject the
said bid which was the highest. We,
therefore, set aside the impugned
judgment and dismiss the writ petition
of respondent 1 filed before the High
Court. The appeal is accordingly
allowed with costs throughout.” In the
present case, considering the purpose
for which the earnest money is being
deposited, we find that it is not an
essential term of the tender process.
On going through the terms of the
tender, it appears that the earnest
money would be adjusted as security
deposit if the bid of the tenderer is
accepted. Hence, once the tender
documents, along with the demand
draft, were accepted by the
respondent-Corporation, it was not
open to the respondent-Corporation to
unilaterally reject the bid of the
petitioner. In such circumstances, we
find that the rejection of the bid of the
petitioner cannot be sustained and
deserves to be quashed and set aside.
Consequently, the order passed by the
Board of Directors of the respondent
No.3 with that regard deserves to be
quashed and set aside. Once, rejection
of the bid of the petitioner is set aside
and having regard to the fact that the
tender was for cleaning of buses, we
find that the respondent-Corporation
shall have to take a fresh decision with
regard to the tender process initiated
pursuant to the tender notice dated
27/10/2015, in accordance with law. In
such circumstances, the second tender
process initiated by the respondents
would not survive. Hence, the decision
dated 18/01/2016 deserves to be
quashed and set aside, and the
respondents be accordingly directed to
take a fresh decision in the said tender
process.”
In the present case, taking note of the observations and the
purpose for which the EMD has to be deposited, we find that it cannot be
said that failure to upload the scanned copy is an essential term of the
tender process especially considering that there is nothing on record to show
that at any point of time, the Petitioners who were otherwise holding a draft
in favour of the concerned Department had failed to produce the proof of the
scanned copy when demanded. In such circumstances, the action of the
concerned Department in refusing to open the bid of the Petitioners is
arbitrary, unreasonable and cannot be sustained.
21. In such circumstances, the Judgment of the Apex Court relied
upon by the learned Counsel appearing for the Respondent no. 5 is not
applicable to the facts and circumstances of the present case. The refusal
to open the bid of the petitioners has vitally vitiated the decision making
process by the Respondent no.1 whilst awarding the tender to the
Respondent no. 5, which would justify interference of this Court in the
present Writ Petition. When the power of judicial review is invoked in the
matters relating to the tenders or award of a contract, certain special
features should be borne in mind. A contract is a commercial transaction.
Evaluating tenders and awarding of contracts are essentially commercial
functions. Principles of equity and natural justice stay at a distance. If the
decision relating to award of a contract is bonafide and is in public interest,
the Court will not exercise its jurisdiction or power of judicial review to
interfere even if a procedural aberration or error in assessment or prejudice
to a tenderer is made out. There has to be competitiveness in assessing
the tenders. We have to keep in mind that by rejecting the other bids except
that of the respondent no.5, it has resulted in eliminating the participation of
the other manufacturers of the subject product who were otherwise eligible
to supply similar products. The evaluation of the respective bids would have
to be performed by the Technical Committee whilst evaluating the bids of the
respective tenderers. Rejecting the bid of the Petitioners though there is
material to suggest that the EMD was uploaded by the Petitioners has
resulted in a material irregularity in the decision making process which led to
accepting the tender of the respondent no.5 without any competitive bids for
evaluation which is unreasonable, arbitrary and irrational. The committee
did not have as such the competitive bids of other tenderers to evaluate the
bid of the respondent no.5. In such circumstances, we find that the process
adopted by the respondent no. 1 in the decision to reject the bid of the
Petitioners on the ground that the scan copy nor the proof of the EMD was
produced by the Petitioners, for the aforesaid reasons is irrational which
would call for interference of this Court in the present petition. The Court is
entitled to investigate the action of the respondent no.1 with a view to see
whether or not they have taken into account matters which they ought to
have taken note of or conversely had refused to take note accordingly of the
matters which they ought to have taken into account. Even though the
respondent may have a discretion in accepting the offer in contractual
matters, the same will have to be done within the four-corners of the
requirements of law essentially Article 14 of the Constitution.
22. Considering the facts of the present case and as the offer of the
Petitioners of the subject tender has been irrationally and arbitrarily rejected,
we find that the impugned decision accepting the tender of the respondent
no.5 stands vitiated and deserves to be quashed and set aside. As already
pointed out herein above, the Technical Committee will have to re-evaluate
the bids of the respondent no.5 and the Petitioners and take a decision in the
light of the observations made herein above in accordance with law.
23. In view of the above, we pass the following :
O R D E R
(i) The work order dated 20.05.2016 issued to the
respondent no.5 is quashed and set aside.
(ii) The rejection of the bid of the Petitioners on
03.07.2015 is also quashed and set aside.
(iii) The respondent nos. 1 to 3 are accordingly
directed to consider the tender of the Petitioners on
merits by opening the technical and financial bid and
proceed with the tender process in the light of the
observations made hereinabove in accordance with
law.
(iv) Rule is made absolute in the above terms.
NUTAN D. SARDESSAI, J. F. M. REIS, J.
ssm/arp/*/at*
DATE : 8th September, 2016
JUDGMENT CONTINUED
At this stage, Mr. V. Daniel, learned Counsel appearing for the
Respondent no. 5, seeks stay of the Order passed today. Mr. Pangam,
learned Counsel appearing for the Petitioners opposes the stay of the
operation of the Order. Mr. S. D. Lotlikar, learned Advocate General,
appearing for the Respondent no. 1, also pointed out that there is an urgent
need to the subject conductor to the concerned Department.
Considering the directions issued and the urgency as pointed out by
the learned Advocate General, we are not inclined to stay the operation of
the Order and, as such, the prayer for stay sought by the learned Counsel
appearing for the Respondent no. 5 stands rejected.
NUTAN D. SARDESSAI, J. F. M. REIS, J.
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