1994 (7) TMI 307 - SC - Indian Laws

Scope of judicial review in matters of this kind Whether the selection is vitiated by arbitrariness? -(a) regarding financial projection and (b) regarding rental. Whether Bias of Mr Nair whether affected the selection ? Whether the Apex Committee has been bypassed? Evolving of hidden criteria whether valid? Held that - The modem trend points to judicial restraint in administrative action. The court does not sit as a court of appeal but merely reviews the manner in which the decision was made.The court does not have the expertise to correct the administrative decision. If a review of the administrative decision is permitted it will be substituting its own decision, without the necessary expertise which itself may be fallible.The terms of the invitation to tender cannot be open to judicial scrutiny because the invitation to tender is in the realm of contract.Normally speaking, the decision to accept the tender or award the contract is reached by process of negotiations through several tiers.More often than not, such decisions are made qualitatively by experts.The Government must have freedom of contract. However, the decision must not only be tested by the application of Wednesbury principle of reasonableness (including its other facts pointed out above) but must be free from arbitrariness not affected by bias or actuated by mala fides.Quashing decisions may impose heavy administrative burden on the administration and lead to increased and unbudgeted expenditure. It is clearly established that the system provides for facility of roaming to visitors. International roaming in GSM is well-accepted technique.The roaming can be easily extended internationally and is already being done in parts of Europe. Since the systems are compatible, all that is required is an agreement between the operators for revenue sharing etc. Thus, we find the argument that paragraph 2.4.7, namely, the financial projection of the proposed Cellular Mobile Cellular and the 7th criterion having been left out of consideration cannot be accepted. Mr B.R. Nair s involvement did not vitiate the selection on the ground of bias. Since we have reached this conclusion we are not going to the other questions argued by Mr F.S. Nariman whether India Telecomp or Tata Cellular could urge this point relating to bias. The D.O. came to be issued in accordance with the note of 10-9-1992 dissolving the apex committee. Therefore, it is not correct to contend, as urged by Mr Harish Salve, that the apex committee had been bypassed. The learned Solicitor General is right in his submission. Bharati Cellular could not claim the experience of Talkland. This conclusion has come to be arrived at on the basis of the parameters we have set out in relation to the scope of judicial review. We may reiterate that it is not our intention to substitute our opinion to that of the experts. Apart from the fact that the Court is hardly equipped to do so, it would not be desirable either. Where the selection or rejection is arbitrary, certainly this Court would interfere.In the result, we hold that Bharati Cellular s claim based on Talkland s experience is incorrect. Talkland s experience will have to be excluded. The matter will have to be reconsidered on a factual basis as on 20-1-1992, in the light of what we have observed above. The claim of Tata Cellular will have to be reconsidered in the light of the above observations.

Summary

Issues Involved:
- Bias
- Invoking hidden criteria
- Irrelevant considerations
- Bypassing the Selection Committee
- Selection of underqualified parties
- Evaluation by the second Technical Evaluation Committee

Detailed Analysis:

1. Bias:
The appellants argued that Mr. B.R. Nair's involvement constituted bias because his son was employed by BPL Systems and Projects. The High Court concluded that the nexus between Mr. Nair and his son was too remote to affect the decision-making process. The Supreme Court upheld this finding, noting that Mr. Nair was not the sole decision-maker but one of several recommending authorities. The Court applied the doctrine of necessity, recognizing that Mr. Nair's involvement was indispensable due to his official position.

2. Invoking Hidden Criteria:
The appellants contended that hidden criteria were applied to disqualify certain bidders. Specifically, the criterion of having experience with one lakh lines or 80,000 with a GSM license was introduced later. The Supreme Court found that while the introduction of new criteria was necessary to ensure the selection of competent operators, these criteria were applied uniformly. However, the Court noted that Bharati Cellular's experience was incorrectly evaluated by including Talkland, which was not a foreign collaborator.

3. Irrelevant Considerations:
The appellants argued that irrelevant considerations influenced the selection process. The Supreme Court examined the criteria used for evaluation, such as financial strength and reliance on Indian public financial institutions. The Court found that these criteria were relevant and appropriately applied, except in the case of Bharati Cellular, which was incorrectly credited with Talkland's experience.

4. Bypassing the Selection Committee:
The appellants claimed that the Apex Committee was bypassed. The Supreme Court found that the Apex Committee was dissolved and a new committee was constituted. The process of evaluation and selection was conducted by the newly formed committee, which was in line with the procedural requirements.

5. Selection of Underqualified Parties:
The appellants argued that underqualified parties were selected. The Supreme Court examined the qualifications and experience of the selected bidders. The Court found that while most selections were justified, Bharati Cellular's selection was based on incorrect evaluation criteria. The Court directed that Bharati Cellular's qualifications be re-evaluated without considering Talkland's experience.

6. Evaluation by the Second Technical Evaluation Committee:
The appellants contended that the second Technical Evaluation Committee's marking system was arbitrary. The Supreme Court found that the Committee adopted a consistent marking system based on various parameters, such as rental, project financing, and foreign exchange inflow/outflow. The Court upheld the Committee's evaluation process, noting that it was conducted by experts in the field.

Conclusion:
The Supreme Court upheld the High Court's decision to reconsider the selection of certain bidders. The Court directed that Bharati Cellular's qualifications be re-evaluated without considering Talkland's experience. The Court also emphasized the importance of transparency and fairness in the selection process, ensuring that all criteria are applied uniformly and without bias.