2015 (12) TMI 1710 - HC - Indian Laws

Eligibility of tender process - Held that - In view of the perverse manner in which the entire process had been conducted and the repeated abortive attempts to award the selfsame titles in favour of the appellant even prior to the tendering process persuades one to hold that the impugned work order issued in favour of the appellant by the President is a product of arbitrariness and favouritism and is liable to be quashed. Public law remedies are to ensure a fair just and transparent procedure in the realm of awarding contracts in public law and the Courts ought not to shy away from quashing decisions which are patently vitiated with fraud illegality or arbitrariness even at the behest of a participating bidder if the usufruct of such illegality or arbitrariness has not enured to his benefit nor he has taken undue advantage of the same. In view of the aforesaid discussion decision of the learned Single Judge to quash the work order for the year 2015-2016 cannot be faulted. However in the light of the fact that the Council ought to have resorted to fresh tender after alteration of tender conditions instead of resorting to illegal negotiations it cannot be concluded with certainty that the writ petitioner was entitled to the allotment of the work as a matter of right in the instant case and accordingly he is not entitled to compensation in the public law domain in exercise of discretionary jurisdiction of this Court No one has disputed the authenticity of the records of the proceedings of the Council or the letter written by its President communicating the view of the academic committee of the Council in the matter. No dissenting opinion of any member of the Council to such view has been placed before the Court. Accordingly it can safely be concluded that the aforesaid decision is in effect of the Council itself and no further interference is called for in the matter. It is however directed if the Council desires to print and/or publish any of the books which are subject matter of the tender for the year 2015-2016 through an outside agency it must do so by holding a fresh tender.

Summary

Issues Involved:
1. Legitimacy of the initial disqualification of the writ petitioner.
2. Justifiability of the Council's alteration of tender conditions post-submission.
3. Validity of the Government's intervention in the tender process.
4. Entitlement of the writ petitioner to compensation for alleged loss of business.
5. Decision of the Council not to hold fresh tender for 2015-2016.

Issue-wise Detailed Analysis:

1. Legitimacy of the Initial Disqualification of the Writ Petitioner:
The writ petitioner was initially disqualified on grounds of lacking experience and alleged involvement in a criminal case. The tender document required publishers to have a proven record of publishing textbooks for recognized Boards. The court found that the petitioner had sufficient experience with the West Bengal Board of Madrasha Education and had published a book for ISC, meeting the tender requirements. The criminal case against the petitioner's father did not justify disqualification as the petitioner was not named as an accused. Thus, the initial disqualification was deemed unjustified and not in consonance with the terms of the NIT.

2. Justifiability of the Council's Alteration of Tender Conditions Post-submission:
The Council altered the tender conditions after submission, stating that the rate of royalty would not be a chief criterion. This change was not reflected in the original notice inviting tender. The court held that changing the rules mid-process is impermissible, citing the principle that rules of the game cannot be altered once the process has begun. The Council should have issued a fresh tender under the new terms instead of proceeding with the existing bidders, making the decision on 16.05.2013 liable to be quashed.

3. Validity of the Government's Intervention in the Tender Process:
The Government intervened under section 35 of the West Bengal Higher Secondary Act, which allows supervision over the Council's activities. The intervention was deemed lawful due to the Council's unfair and illegal tender process. The court distinguished this case from previous rulings by noting that the Government acted within its supervisory authority. However, the Government's recommendation to proceed with negotiations with existing bidders was not lawful; a fresh tender should have been issued.

4. Entitlement of the Writ Petitioner to Compensation for Alleged Loss of Business:
The petitioner argued for compensation due to the illegal awarding of the work order. The court found that while the tender process was flawed, it could not be concluded with certainty that the petitioner was entitled to the work order as a matter of right. Consequently, the petitioner was not entitled to compensation in the public law domain.

5. Decision of the Council Not to Hold Fresh Tender for 2015-2016:
The Council decided not to hold a fresh tender for 2015-2016, citing a large stock of unused books and the potential to print books through a Government Press if needed. The court found no dissenting opinion within the Council against this decision and concluded that it was a valid decision of the Council. However, if the Council decides to print or publish any of the books through an outside agency, it must do so by holding a fresh tender.

Conclusion:
The court affirmed the decision of the learned Single Judge to quash the work order for 2015-2016 and directed that any future printing or publishing by the Council must be conducted through a fresh tender. Both appeals were dismissed, and no costs were awarded.