0

Delhi High Court set aside the Show cause notice and allowed the writ of mandamus as DG’s displeasure is not a penalty stated in Rule11 of the CCS (CCA) Rules, 1965

Title: RAJDEEP CHOWDHARY Versus UNION OF INDIA AND ORS.

Reserved on: April 25, 2023

Pronounced on: July 14, 2023

+ W.P.(C) 8135/2019

CORAM: HON’BLE MR. JUSTICE SURESH KUMAR KAIT

     HON’BLE MS. JUSTICE NEENA BANSAL KRISHNA

Introduction

Delhi High Court set aside the Show cause notice and allowed the writ of mandamus directing the promotion of petitioner to the post of Deputy Commandant, if found eligible.

Facts of the case

The petitioner asserts that while employed by the 66th Battalion of the BSF as Assistant Company Commandant, he was also administratively searching for two more platoon jobs. An FIR with the number 306/2012, under Sections 8/221/29/25 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) was filed in Jaisalmer, Rajasthan on August 8, 2012, alleging the arrest of four civilians in Jaisalmer City with 8 kg of heroin and $4.35 million in Indian currency that had been smuggled from Pakistan during the previous night of August 4, 2012, to August 5, 2012.

Inspector General (IG) (Head Quarter), BSF, Jodhpur directed a staff court of inquiry to look into how the heroin entered the specified region. Nothing indicated any carelessness or laziness on the part of those in charge.

The Deputy Inspector General (DIG) SHQ, BSF advised the IG (HQ) that the investigation was finished and that no one should be held accountable until the investigation is over or the incidence has been verified by the police in light of the aforementioned inquiry report dated 6.11.2012.

The IG (HQ) on 30.05.2013 advised action against the petitioner for his involvement in failing in appropriate dominance, disregarding the report dated 06.11.2012 and suggestion of the DIG (SHQ) dated 10.12.2012. The petitioner herein was one of six BSF employees who were subject to the disciplinary process, and the DIG, BSF, recorded evidence against them on December 14, 2013.

After reviewing the material, the relevant DIG wrote his observations dated 09.04.2015 and noted that there was no evidence to support the accusation brought against the petitioner.

In the current appeal, the petitioner expresses his unhappiness about receiving a show cause notice from the DIG on May 12, 2016, even though the DG had already made the statements indicated above on April 9, 2015.

Analysis of the court

This Court notes that a staff court of inquiry was launched against the petitioner and other BSF officials in response to the filing of FIR No. 306/2012 under Sections 8/221/29/25 of the NDPS Act, and in an opinion dated November 6, 2012, it was determined that no one in charge acted carelessly or laxly.

Being dissatisfied with the recommendations, the IG recommended action against the petitioner and ROE and Addl. ROE were recorded. Although the petitioner was advised to be dismissed for the relevant offence in the Court of Enquiry dated 10.12.2012 and Recommendations dated 09.04.2015, he was still served with a Show Cause Notice dated 12.5.2016 for a preliminary intended transfer of the DG’s dissatisfaction. The petitioner submitted a response on May 18, 2016, in response to the aforementioned Show Cause Notice from May 12, 2016, and on June 24, 2016, he submitted a request asking for a promotion from April 1, 2014. However, the petitioner’s 18 May 2016 reply to the aforementioned Show Cause Notice of 12 May 2016 was denied by decision dated 22 July 2017 and he was informed of the DG’s “Displeasure”.

Now, the issue that has to be decided by this Court is whether the petitioner may be denied the promotion owing to the DG’s “displeasure”, especially after the case brought against him has been recommended to be dropped. This Court has reviewed the Minutes of DPC Meeting dated 19.02.2014 and 19.02.2015, where the “pendency of ROE” and not “displeasure” is cited as the grounds for continuing the petitioner’s case.

The petitioner bases his argument on the ruling in O.P. Nimesh (Supra), in which the petitioner, a DIG (Medical) in the BSF, requested promotion to the rank of IG (Medical) effective the day his subordinate received promotions. In the aforementioned matter, this Court made notice of two reasons for consideration: first, the DPC had indicated that the petitioner had received two grades below benchmark in the DPC’s APAR for the year 2012–2013; second, the DG’s “displeasure” statement was also cited in detail.

Both the petitioner in O.P. Nimesh (Supra) and the petitioner in front of this court have cited an OM from the Ministry of Home Affairs dated March 27, 2015, which states that “displeasure” is not a penalty stated in Rule 11 of the CCS (CCA) Rules.

In O.P. Nimesh (Supra), this Court held that “displeasure” was not a barrier to the petitioner’s promotion there and ordered the respondents to hold a review DPC and evaluate the petitioner’s case in accordance with the rules because the aforementioned OM dated 27.03.2015 had already been notified when DPC in the said case was held on 15.07.2015.

In our perspective, the petitioner was originally given the all-clear in 2012 itself. However, disciplinary process against the petitioner started on June 8, 2013, and the DIG made statements stating on April 9, 2015 that there was no proof shown against the petitioner based on the evidence presented. Reading through copies of the minutes from the DPC meetings on 19.02.2014 and 19.02.2015 reveals that his case was not taken into consideration for promotion because of the phrase “Due to pending ROE.”

Relevantly, the petitioner received the DG’s “displeasure” via a show cause notice from the DIG on 12.05.2016. In his reply on 05.06.2016 to the aforementioned Show Cause Notice from 12.05.2016, the petitioner conveyed the DG that there was no direct or indirect implication against him in the FIR in question. However, vide order dated 22.07.2016, the DIG rejected petitioners request dated 24.06.2016 conveying him DG’s “displeasure”.

The OM dated 27.03.2015, which specifies that “displeasure” is not a penalty stated in Rule11 of the CCS (CCA) Rules, 1965, has previously been made known. Moreover, “displeasure” has not been recorded against the name of the petitioner in the minutes of meetings that were conducted on February 19 and 20, 2014 and 2015, respectively. Additionally, respondents have not proven that the petitioner’s APARs in 2014 and 2015 fell short of the benchmark, which would have prevented him from being promoted.

The DPC played a significant role in assessing the cases of applicants for promotion, as observed by the Honourable Supreme Court and this Court in a number of rulings. A applicant’s overall effort, performance, and assiduity must also be taken into consideration in addition to the APARs for the pertinent years, particularly when a candidate is being overlooked while his or her juniors are receiving promotions.

In our considered opinion, petitioner case stood deferred for promotion in the years 2014 and 2015 due to pendency of ROE and having been given clean chit, he deserves to get promotion from the date it actually became due to him. 

In view of above-said, the present petition is allowed. In the light of OM dated 27.03.2015, the Show Cause Notice dated 12.05.2016 and order dated 22.07.2016 conveying “displeasure” by the respondents, are set aside. Naturally, if the petitioner meets the requirements, he will be elevated from Assistant Commandant to Deputy Commandant with effect from April 1, 2014, the date his juniors were promoted, and will get all related perks.

“PRIME LEGAL is a full-service law firm that has won a National Award and has more than 20 years of experience in an array of sectors and practice areas. Prime legal fall into a category of best law firm, best lawyer, best family lawyer, best divorce lawyer, best divorce law firm, best criminal lawyer, best criminal law firm, best consumer lawyer, best civil lawyer.”

Written By – Shreyanshu Gupta

Click to view judgement

0

Delhi High Court Dismissed the writ petition and upheld the verdict of the Central Administrative Tribunal, Principal Bench, New Delhi

Title: Hansraj vs Commissioner of police & Anr.

Judgment delivered on: July 12, 2023

 + W.P.(C) 6490/2021

CORAM: HON’BLE MR. JUSTICE V. KAMESWAR RAO

    HON’BLE MR. JUSTICE ANOOP KUMAR MENDIRATTA

Introduction

Delhi High Court dismissed the writ petition filed against the order of the Central Administrative Tribunal, Principal Bench, New Delhi (‘Tribunal’, for short) in Original Application No.4666/2014 (‘OA’, for short) whereby the Tribunal has dismissed the OA filed by three persons including the petitioner herein.

Facts of the case

The ruling dated March 10, 2014, which allowed the petitioner(s) to argue that their training period should be counted when they were promoted to Head Constable (Assistant Wireless Operator) (‘HC (AWO)’, was challenged in the OA by the petitioner(s) therein was rejected for the purpose of increment(s).

The petitioner Hansraj (who filed this case) was first hired as a constable on August 7, 1991, and on August 7, 2000, he was elevated (absorbed) to the position of HC (AWO) in the Delhi Police’s Communication Unit. The appointment of Radio (Wireless) and MT Staff is governed by Rule 17 of the Delhi Police (Appointment and Recruitment) Rules, 1980 (the “Rules of 1980,” for short), and the appointment of AWOs and Teleprinter Operators (HC) is governed by Rule 17-B(IV). The appointment of Assistant Wireless Operator Grade-III (HC) and Teleprinter Operator Grade-III (HC) in the Delhi Police is covered by Standing Order No. 223/86, which is in line with Rule 17-B(IV) of the modified Rules, 1986, read in conjunction with Rule 13(ii) of the Rules of 1980. Following completion of the VHR R.T. Course Grade-III and six months of radio operator experience, confirmed (Matriculate) Constables were to be given the opportunity to be promoted to the coveted position.

According to the office order, a preliminary selection test was held, and those who received 33% or higher on each paper were chosen to enrol in the AWOs / Teleprinter Operator (HC) programme for a total of nine months, including three months of practical training, in batches. The constables are expected to take a test administered by the Trade Test Board, designated by the Commissioner of Delhi Police, after completing the AWO/TPO Grade-III Course, and they must receive the appropriate score in accordance with Standing Order No. 223/86.

According to Rules from 1980, the names of the constables chosen by the DPC are listed on List B (Technical) in the order of their seniority in the rank of Constable in their respective categories A promotion order is then issued in accordance with Rule 7 of the Rules of 1980.

Analysis of the court

The order dated March 10, 2014, which was based on the petitioner/applicants’ representations on October 8, 2013 and November 27, 2013, was challenged before the Tribunal. In their representations, they requested that the training period for promotion to the post of HC (AWO) be counted for the purpose of increment(s) in the scale of the concerned post.

AWO/Teleprinter Operator (HC) Course for a period of nine months, including three months of practical training in batches according to the merit list, followed by AWO/Teleprinter Operator (HC) Course for a period of nine months, including three months of practical training in batches according to the merit list, which is also followed by a test conducted by the Trade Test Board, may be stated here. According to the respondents’ position, which was noted above, it is clear that the final promotion order to the post

Accordingly, promotion orders are issued and the chosen constables are added to List B (Technical) in the order of their seniority. Direct recruiting does not follow the aforementioned process. There is unquestionably no reason to calculate the training time for the purpose of awarding increment(s), much less on the post of Head Constable, when the constable is still in the training phase and has not been officially or by an order promoted to that position. Only after receiving an order of promotion as HC (AWO) would a constable begin serving in the position of head constable. The petitioner’s claim that the training duration is not taken into account for the purpose of increment(s) in the grade of Constable

In other words, the petitioner was working as a constable during the training period rather than a Head Constable; as a result, the time would only be relevant for the purpose of awarding an increase on the position of Constable and not Head Constable. We previously discussed the respondents’ position on why a directly hired HC (AWO) / Teleprinter Operator is entitled to the scale of Head Constable; specifically, that the straight recruit Head Constable must complete training after being hired as HC (AWO) / Teleprinter Operator.

The Madras High Court’s ruling in Nuclear Power Corporation & Anr. (supra), in which OMs dated October 22, 1990 and March 31, 1992 were mentioned, is not applicable to the facts of this case, especially in light of the position under the Rules of 1980. In the aforementioned instance, the Department of Atomic Energy; Madras Atomic Power Project, an enterprise of the Government of India, issued an invitation for applications to the post of Stipendiary Trainees under several employment categories. A number of applicants were chosen and hired as stipendiary trainees with combined monthly compensation. The trainees were assimilated and assigned to the regular positions of Tradesman-B, bearing the normal time scale of pay, and Apprentice after successfully completing the training term.  In accordance with how well they performed during the training time, they were also granted one or two increments. According to the DoP&T’s OM dated October 22, 1990, a person who is chosen for a regular appointment and who must complete training before officially taking over the post may be treated as working for the purpose of receiving raises during the training period, whether they are receiving pay or a stipend. The benefit in question was given starting on October 1, 1990. A second OM, issued March 31, 1992, extended the same benefit to government employees who had received the training on or after January 1, 1986, with real benefits beginning on October 1, 1990. This OM was the one that came after the first.

Here, it is not the case. As a matter of fact, the aforementioned OMs apply to the position of HC (AWO)/Teleprinter Operator when the appointment is made through direct recruiting, but not to the position of HC (AWO) when the appointment is made through promotion.

 Therefore, we believe that the Tribunal’s decision to dismiss the OA cannot be criticised. We find no justification for interfering with the Tribunal’s contested order. The writ petition is rejected because it lacks any merit.

“PRIME LEGAL is a full-service law firm that has won a National Award and has more than 20 years of experience in an array of sectors and practice areas. Prime legal fall into a category of best law firm, best lawyer, best family lawyer, best divorce lawyer, best divorce law firm, best criminal lawyer, best criminal law firm, best consumer lawyer, best civil lawyer.”

Written By – Shreyanshu Gupta

Click to view the judgement

0

Delhi High Court held that teachers of unaided private schools are entitled to the same pay and emoluments as those of government schools.

Title: BHARAT MATA SARASWATI BAL MANDIR SENIOR SECONDARY SCHOOL vs VINITA SINGH AND ORS.

Date of Decision: 07th July, 2023

+ LPA 601/2022 & CM APPLs. 45446-45447/2022

CORAM: HON’BLE MR. JUSTICE MANMOHAN HON’BLE MS. JUSTICE MINI PUSHKARNA

Introduction

Delhi High Court dismissed the appeal filed against the judgement dated 14th December, 2021, whereby the writ petition filed by three teachers seeking payment of 7th Central Pay Commission (hereinafter referred to as ‘7th CPC’) has been allowed and held that teachers of unaided private schools are entitled to the same pay and emoluments as those of government schools, in terms of the obligation enjoined upon the private recognized schools under the DSE Act, 1973. The schools cannot evade their statutory responsibility and are bound to pay the statutory dues.

Facts of the case

The pertinent information is that respondents 1 through 3 have been regularly employed by the appellant institution. Respondent No. 5/Directorate of Education (DOE) issued a notification on October 17, 2017, requesting that all private recognised schools adopt the recommendations of the 7th CPC. Respondents 1 to 3 sought this Court by filing a writ case after the appellant school refused to extend the benefit of the 7th CPC. By the impugned judgement on 14th December 2021, the learned Single Judge found that the respondents 1 through 3 herein were entitled to arrears of their benefits/salaries beginning on January 1, 2016, and also required the school to give them in accordance with the 7th CPC’s rules. Hence, the current appeal has come to be filed by the school.

Analysis of the court

The Delhi High court held that the writ petition filed by the three teachers was maintainable as it involves a public law element, inasmuch as, the original writ petitioners were seeking the implementation of Section 10(1) of the Delhi School Education Act, 1973 (DSE Act, 1973)

In reality, the writ petitioners sought implementation of the circular/order/notification dated October 17, 2017 issued by DOE requiring the schools to pay teachers’ wages in line with the 7th CPC through the underlying writ petition. In reality, the Supreme Court has unequivocally stated the following in the case of St. Mary’s Education Society (Supra):

“75.1. An application under Article 226 of the Constitution is maintainable against a person or a body discharging public duties or public functions. The public duty cast may be either statutory or otherwise and where it is otherwise, the body or the person must be shown to owe that duty or obligation to the public involving the public law element. Similarly, for ascertaining the discharge of public function, it must be established that the body or the person was seeking to achieve the same for the collective benefit of the public or a section of it and the authority to do so must be accepted by the public.”

Hence the present writ was maintainable.

This Court further believes that, given the recurrent nature of the claim, the writ petition submitted by the original writ petitioners is not precluded by laches or delay.

In Union of India v. Tarsem Singh (supra), the Supreme Court itself said by way of an example that remedy should be given regardless of delay if the problem relates to pay payment as it does not impact third party rights.

Furthermore, because the decision in Rushibhai Jagdishbhai Pathak v. Bhavnagar Municipal Corporation (above) deals with a matter of a higher grade pay scale in the following promotional post, which is not the situation in the present issue, it is of no use to the appellant.

To sum up, it should be stated once again that the respondents in the writ case requested the payment of their entire salaries in accordance with the 7th CPC’s recommendations. According to Section 10 of the DSE Act, a recognised private school’s pay scale and allowances, medical services, pension, gratuity, provident fund, and other permitted benefits must not be less than those of the employees in the same position at the public school. According to a statement from the DOE dated October 17, 2017, all recognised schools are required to follow the 7th CPC’s recommendations in compliance with the DSE Act, 1973. at light of this, it is unquestionable that instructors at unassisted private schools are entitled to the same pay and benefits as emoluments as those of government schools, in terms of the obligation enjoined upon the private recognized schools under the DSE Act, 1973. The schools cannot evade their statutory responsibility and are bound to pay the statutory dues.

“PRIME LEGAL is a full-service law firm that has won a National Award and has more than 20 years of experience in an array of sectors and practice areas. Prime legal fall into a category of best law firm, best lawyer, best family lawyer, best divorce lawyer, best divorce law firm, best criminal lawyer, best criminal law firm, best consumer lawyer, best civil lawyer.”

Written By – Shreyanshu Gupta

click to view the judgement

 

 

 

 

 

 

0

Delhi High Court dismissed the appeal filed against the judgement passed by the single judge bench upholding the candidature of respondents

Title: MR KISHOR BANDEKAR AND ORS vs MR MAHESH CANDOLKAR AND ORS

Reserved on: 03rd July, 2023

Pronounced on: 06th July, 2023

+ LPA 504/2023 & CAV 312/2023, CM APPLs. 32400-32403/2023, 32711/2023

CORAM: HON’BLE THE CHIEF JUSTICE MR. SATISH CHANDRA SHARMA

HON’BLE MR. JUSTICE SANJEEV NARULA

Introduction

Delhi High Court dismissed the appeal filed against the judgement dated 02nd June, 2023 passed by the learned Single Judge in W.P.(C) 15097/2021, upholding the order dated 14th December, 2021 passed by Appellate Authority of All-India Chess Federation, New Delhi [“AICF”].

Facts of the Case

The Goa Chess Association [“GCA”] is a state-level sports organisation that is affiliated with both the AICF and the Sports Authority of Goa. It was established in accordance with the Societies Registration Act, 1860. The GCA’s Memorandum of Association (hence, “MoA”) and Rules and Regulations, all of which have been endorsed by the association’s General Body, serve as the framework for its governance.

A crucial adjustment to the GCA’s constitution was made by the General Body at its meeting on January 8th, 2017, raising the number of elected members of the Executive Committee from seven to twelve.

The GCA announced the elections for the Executive Committee on July 22, 2021. The list of accepted nomination forms was made public on August 5, 2021, and on August 10, 2021, the Presiding Officer (the “PO”) announced the names of the candidates elected to the North and South Goa Taluka Associations. The nomination forms of Respondents Nos. 1 through 4 were also ruled to be invalid, and a number of candidates from the talukas of Barder, Tiswadi, Ponda, and Salcete were found to have won their elections without opposition.

Respondents Nos. 1 to 4 contested the aforementioned PO disqualification of candidature before the AICF Ethics Commission in line with the AICF Code of Ethics. The Commission reversed PO’s decision through an order that was signed on October 19, 2021, and instructed that the voting procedure be completed within two weeks of the day that the order was received. The Appellants filed an appeal against this ruling with the AICF Appellate Authority, but it was denied on December 14 of that year, and the Ethics Commission’s judgement was upheld.

2.5. Invoking Article 226 of the Constitution of India, 1950, the appellants filed W.P.(C) 15097/2021 after being dissatisfied with the Appellate Authority’s ruling.

However, on June 2, 2023, the learned Single Judge dismissed the appeal and upheld Appellate Authority’s decision.

Analysis & Decision of the court

The Delhi high court held that The General Body meeting on January 8, 2017, when it was decided to expand the number of elected members of the GCA’s Executive Committee, is where the dispute’s origins may be found. This choice was made in order to permit additional committee members who might aid in the growth of chess in Goa and broaden the association’s operations. The MoA and GCA Rules and Regulations modifications were authorised by the resolution that came out of this meeting. Twelve elected members and one nominated member from each associated Taluka Chess Association will make up the Executive Committee of the GCA, according to the updated bye-laws and MoA.

 The challenged ruling exhibits a careful consideration of the provisions of the MoA and Rules and Regulations of GCA. The prerequisites for a candidate, the election process, the tenure of the Committee members, and the mechanism for filling any vacancies on the Executive Committee are all outlined in Rule 42(i)(a) (extracted above). Additionally, it describes the election process, including the criteria for nominations, the review of nominations, and the roles of the President, Secretary, and designated Presiding Officer. Contrary to what Mr. Nayyar has emphasised, this clause does not support his allegation. The aim to expand the number of delegates is mentioned in the minutes of the meeting, but it is not stated expressly that these representatives should be equally divided across all talukas. That would imply that it is possible for a taluka to have more than one representative on the Executive Committee.

This viewpoint is reinforced by the modified Clause 13 of the Memorandum of Agreement, which stipulates that one delegate from each associated taluka should be a member of the Executive Committee, however it leaves open the possibility of electing an unlimited number of office holders from each taluka. The number of office bearers who can be chosen from a particular taluka is not limited under Rule 42(i)(a) of the GCA’s Rules and Regulations. The language employed in Rule 42(ii)(a), which requires that candidates for the Executive Committee elections be delegates with voting rights of and sponsored by Taluka Associations, supports the learned Single Judge’s view. According to this regulation, eligibility is dependent on being a delegate and instead of the number of representatives per taluka, voting rights.

Rule 42(i)(a), which is instrumental in the formation of Executive Committee comprising of both elected and nominated representatives, does not impose any limitations as canvassed by the Appellants. There is no requirement to guarantee that each taluka is represented on the Executive Committee under Rule 42(i)(a). This interpretation conforms to the erudite Single Judge’s opinion, which we also agree with.

We see no justification for interfering with the challenged finding relating to the PO’s judgement since we do not think the Appellants’ objection to the interpretation of such regulations has any validity. Therefore, the learned Single Judge’s opinion is still unchallengeable with regard to this matter as well. In conclusion, the erudite Single Judge’s interpretation based on the explicit wording employed in the GCA’s Rules and Regulations as well as the General Body resolution, appears to be accurate. Instead than restricting the number of office bearers per taluka, it appears that the stated requirements’ main goal is to increase representation and guarantee that each taluka has at least one delegate on the Executive Committee.

“PRIME LEGAL is a full-service law firm that has won a National Award and has more than 20 years of experience in an array of sectors and practice areas. Prime legal fall into a category of best law firm, best lawyer, best family lawyer, best divorce lawyer, best divorce law firm, best criminal lawyer, best criminal law firm, best consumer lawyer, best civil lawyer.”

Written By – Shreyanshu Gupta

click here to view the judgement

0

Delhi High Court allowed the writ petition filed and dismissed the order passed by the Container Corporation of India Ltd.

Title: Loadstar Equipment Ltd. Vs Container Corporation of India Ltd.

Decision: 04.07.23

W.P.(C) 5040/2023 & CM APPL. 19721/2023

CORAM: HON’BLE THE CHIEF JUSTICE MR. SATISH CHANDRA SHARMA

 HON’BLE MR. JUSTICE SUBRAMONIUM PRASAD

Introduction

Delhi High Court allowed the writ petition filed and dismissed the order passed by the Container Corporation of India Ltd, disqualifying the petitioner from participating in the bidding of tender bearing reference no. CON/AREA1/TECH/FORKLIFT-20/2023, which was floated by Respondent No. 1 on their website vide NIT dated 08.02.2023.

Facts of the Case

The Respondent No. 1 invited applications on the government portal for bids from Original Equipment Manufacturers (OEMs)/authorized dealers through a two packet online open tendering system, at an estimated total cost of Rs. 38,11,40,000/-, for the design, manufacture, supply, and commissioning of 20 forklifts with a capacity of 35 tonnes at a specified terminal. This is the background to the current petition.

Respondent No.1/CONCOR subsequently issued a corrigendum in respect of the part of the NIT document which lays down qualification criterion for bidders. Accordingly, Clause 2.1(b) under Section II “General Instructions to Bidders” was added to the NIT document.

Upon examination of the bid documents in the technical stage, Respondent No.1 issued communications to the bidding parties on 23.03.2023 and again on 24.03.2023, calling upon them to submit additional documents to rectify discrepancies found in the documents, latest by 29.03.2023. and The Petitioner submitted their reply to the aforesaid communication and submitted documents to the Respondent vide emails dated 28.03.2023 and 29.03.2023

On a perusal of the documents submitted by the Petitioner, the Tender Evaluation Committee of Respondent No.1 found the Petitioner to be technically not qualified and rejected the bid of the Petitioner vide impugned communication dated 18.04.2023. The Petitioner thereafter addressed an email to the CMD of Respondent No. 1, stating that no reasons had been assigned for their disqualification, and requested the intervention of CMD of Respondent No. 1 to permit the Petitioner to give further clarifications. However, there was no response to this communication.

Being aggrieved by the decision of the Respondent No.1 dated 18.04.2023, disqualifying the Petitioner from the tender process, the Petitioner has filed the instant petition on 19.04.2023, challenging the impugned communication.

Analysis and Decision of the court

In accordance with Clause 2.1, a qualified bidder must have submitted at least one purchase order for a comparable good to at least one government department, CPSC, SPSC, public limited company, etc. during the previous three years and on or before the last day of the financial year immediately preceding the one for which the bid is being submitted. Additionally, it states that a bidder and an authorised dealer cannot submit separate bids for the same product or item in the same tender.

According to Clause 2.1, the manufacturer or an authorised dealer must demonstrate that they have successfully delivered or completed one purchase order in order to be taken into consideration for the tender. According to the certificate provided by APL Apollo Steel Pipes, M/s Excellent Engineering & Allied Service Private Limited provided the device produced by the petitioner.

The justification offered by Respondent No. 1 was that M/s Excellent Engineering & Allied Service Private Limited was the beneficiary of the certificate issued by APL Apollo Steel Pipes. This justification is inadmissible since the proof demonstrates that M/s Excellent Engineering & Allied Service Private Limited worked with Apollo Steel Pipes to complete the machine the petitioner built.

It is undeniably well established that judicial review of administrative acts, including those involving tenders, is severely constrained. However, judicial review may be used to stop arbitrary, unreasonable, and illogical behaviour.

The fundamental requirement of Article 14 of the Indian Constitution is now well established and has been upheld numerous times by the Apex Court. Non-arbitrariness in substance and essence is the lifeblood of fair play, and State actions are subject to judicial review to the extent that the State must act lawfully for a discernible reason and not arbitrarily. The Court must intervene in order to exercise its authority under Article 226 of the Indian Constitution if the State or an instrumentality of the State fails to behave reasonably or fairly in the awarding of contracts. Vice Chairman & Managing Director, City and Industrial Development Corporation of Maharashtra Ltd. and Others v. Shishir Realty Private Limited and Others, 2021 SCC OnLine SC 1141 a case decided by the Supreme Court, where it was held that “Fairness and the good faith standard ingrained in the contracts entered into by public authorities mandates such public authorities to conduct themselves in a non-arbitrary manner during the performance of their contractual obligations” and “The constitutional guarantee against arbitrariness as provided under Article 14, demands the State to act in a fair and reasonable manner unless public interest demands otherwise. However, the degree of compromise of any private legitimate interest must correspond proportionately to the public interest, so claimed”

Arbitrariness is the antithesis of Article 14 of the Indian Constitution, and the State must operate in a fair and reasonable manner, as has been well-established and stated by the Apex Court. As previously stated, the bidder who is a manufacturer only needed to demonstrate that it has experience supplying at least one single purchase order of government departments, CPSEs, SPSEs, Public Listed Companies, ICD, DCT, MMLP, Ports, CFS, CTOs for similar item during the previous three financial years and current financial year last day of month prior to the one in which tender is invited.

A thorough study of Clauses 2.1, 5.4, and Annexures 10 and 11 of the NIT reveals that the maker must merely demonstrate that it has provided a machine that has been installed satisfactorily. In a similar vein, Annexure-14 stipulates that the maker must also provide the certificate.

Since the Petitioner has demonstrated that it satisfies the qualifying requirements, their bid shouldn’t have been turned down.

The Respondent No. 1 was instructed to open the Petitioner’s financial bid during the hearing, and it turned out that the Petitioner was the lowest bidder.

 Given the foregoing, the writ petition and any pending applications, if any, are approved. It is mandated that the Respondents go forward in line with the law.

“PRIME LEGAL is a full-service law firm that has won a National Award and has more than 20 years of experience in an array of sectors and practice areas. Prime legal fall into a category of best law firm, best lawyer, best family lawyer, best divorce lawyer, best divorce law firm, best criminal lawyer, best criminal law firm, best consumer lawyer, best civil lawyer.”

Written By – Shreyanshu Gupta

Click to view the judgement

1 2 3 4 5 6