2010 (4) TMI 1215 - HC - Customs

Summary

Issues Involved:
1. Maintainability of the petition by a foreign company.
2. Allegation of arbitrary and unreasonable conditions in the Request for Proposal (RFP).
3. Compliance with General Financial Rules (GFR) and Central Vigilance Commission (CVC) guidelines.

Summary:

1. Maintainability of the Petition by a Foreign Company:

The first question that arises is whether the petition in the present form is maintainable at the instance of Petitioner No.1 which happens to be a Russian company. Although Petitioner No.2 is its Managing Director and is an Indian citizen, the challenge is in fact by Petitioner No.1 whose bid was unsuccessful for the contract of visa outsourcing. As long as the writ petition only seeks enforcement of the fundamental right under Article 14 of the Constitution which fundamental right is available to all persons, there should be no difficulty in entertaining such writ petition on behalf of Petitioner No.1. If, however, as is contended by the learned counsel for Respondents, what is sought to be enforced is a right under Article 19(1)(g) of the Constitution, then obviously the writ petition would not be maintainable.

2. Allegation of Arbitrary and Unreasonable Conditions in the RFP:

The precise conditions contained in the above RFP which according to the Petitioners, are arbitrary and unreasonable are as under: "(b) The bidder must have experience of operating a centre for visa services on behalf of a Diplomatic Mission or Missions for at least one year with electronic data entry, dealing with at least 250 applications per day on an annual average basis." The Petitioners argue that this condition is "arbitrary and tailor-made to ensure a monopoly is created in favour of M/s. VFS Global Ltd." The Court, however, finds that the Respondents were entitled to insist upon possession by bidders of appropriate and adequate experience in handling of visa centres for Diplomatic Missions abroad. The experience of a visa agent, which is what the Petitioner No.1 was, is very different from running a full-fledged visa centre. The number of applications that are required to be dealt with on a daily basis also is best left to the assessment of the Respondents. This Court is unable to hold that any of the above conditions is either arbitrary or unreasonable.

3. Compliance with General Financial Rules (GFR) and Central Vigilance Commission (CVC) Guidelines:

Turning to the requirement of the GFR, this Court finds that although Rule 137 states that the specifications worked out "should meet the basic needs of the organisation without including superfluous and non-essential features," under Rule 160 it has been emphasised that "all Government purchases should be made in a transparent, competitive and fair manner, to secure best value for money." It has further been emphasised in Rule 160 (i) that the text of the bidding document "should be self-contained and comprehensive without any ambiguities". Even the CVC in its guidelines has emphasised that the conditions for qualification should not be too onerous. However, it has been emphasised that tender should be invited from "firms having requisite experience depending upon the size of the contract in a fair and transparent manner." This Court does not find anything in the impugned conditions which are inconsistent with the requirements of the GFR or the CVC guidelines.

Conclusion:

For the aforementioned reasons, this Court finds that the impugned conditions in the RPF for visa outsourcing in the Indian Embassy in Moscow cannot be said to be arbitrary and unreasonable. No ground is made out for holding that the impugned conditions are violative of Article 14 of the Constitution of India. The writ petition is accordingly dismissed with costs of Rs. 10,000/- which will be paid by the Petitioners to the Respondent UOI within four weeks. The applications are dismissed.