Nishka Security and Intelligence Services Private Limited v. The State of Bihar

who was earlier the service provider. The Tender Committee first evaluated tenders. The difference between the two was negligible. Petitioner, on those calculations, was L1 and respondent No 5 was L2. The Tender Committee again met after a few days. The figures in relation to calculation of amount of taxes which had earlier been rounded off were then taken exactly without rounding off. On this calculation, now respondent No 5 marginally became L1. Petitioner was, thus, not finally selected by the decision of the Tender Committee and respondent No 5 was selected. Petitioner took serious objections especially in view of satisfactory work that he was already performing there but notwithstanding the same, respondent No 5 has been given the work order and the petitioner has been restrained from working there. 2 Mr Vinay Krishna Tripathi, learned counsel appearing for the petitioner submits that howsoever small the difference may have been, respondents should not have revised the calculations. Petitioner was No 1 and should have been given a chance to continue. His second submission was that respondent No 5 had earlier been providing services but had been terminated by the authorities of PMCH. This fact was not considered. Thirdly, he submitted that respondent No 5 had a labour registration for only 320 persons whom he was already fully utilizing, as such, he did not have the capacity to offer more persons. To this, State submitted that the difference between the two was such a small difference that there was hardly any consideration therein with reference to the tabulation. It was pointed out that the sum total difference in payment for the whole year as between the two was only about Rs 3.11 P as against the total payment of Rs 7,41,712/-. Respondent No 5 and the respondent-State state that it is incorrect to state that respondent No 5, on an earlier occasion, had faced cancellation of his contract by way of any punishment. It was pointed out that his earlier contract was for a period of one year but as no arrangement could be made for subsequent period, till arrangement was made, they were allowed to continue. In the arrangement so made, it was petitioner who stepped in. There was no curtailment or deficiency in their service. With regard to the labour certificate, it was pointed out that as per the notice inviting tender, the requirement was that the organization should be registered with the Labour Department. Submission is, there is no restriction or requirement to register large 3 number of labourers therein. Moreover, it was submitted by the State that respondent No 5 has got his registration enhanced for over one thousand workers. Mr Tripathi correctly contends that this document cannot be looked into having obtained after the finalization of the tender. With consent of parties, the writ petition has been heard for disposal at this stage itself. In my view, the writ petition cannot succeed. It is well established that in matters of contract, the authorities have to be given some space for “play in the choice”. As admitted by the parties, there was negligible difference in choosing between the two. Both had given satisfactory service in the past though it may have been prudent for the authorities in such a situation to call both the parties for a negotiation giving fair chance to both the parties to make competing bids but then not having done so does not vitiate the decision, as taken. The decision, as taken, cannot be said to be per se arbitrary or fanciful on any ground. There is nothing wrong in the decision making process and it is well settled that in judicial review, this Court does not sit as an appellate authority over the decision but interferes only in the decision making process. This is not such a case. So far as the first contention is concerned, in my view, there is nothing wrong in what the authorities did instead of rounding of paisa, where the difference was little too, they worked out the exact figures. In that, respondent No 5 gained position. As noticed above, there is hardly anything to choose with especially when there is no allegation of mala fide or any favouritism. 4 Coming next to the submission with regard to premature cancellation of respondent No 5’s earlier stint with the organization, I think petitioner is not correct. The categorical stand of the authorities and respondent No 5 is that they had an extended term because of non- finalization of the next service provider. On the next service provider being chosen, their term ended. This is, accordingly, decided against the petitioner. The third is with regard to the Labour Department certificate. A reference to NIT would show that the requirement is mere registration and not in respect of all the workers at a time. There is yet another reason for the same. Let us assume, if respondent No 5 needed five hundred extra hands for the work in question and he got a registration for that but he failed to get the tender from the authorities, he would be left with registration showing that he had over eight hundred employees. He would have obligation to meet statutory requirements in respect of those eight hundred employees. Those employees would never be employed. Thus, there being no requirement of registration vis-à-vis the number of employees, the certificate, as furnished by respondent No 5, was sufficient. Thus, on all counts, the decision or the decision making process cannot be said to be vitiated calling for any interference by this Court. The writ petition is, thus, dismissed. M.E.H./ (Navaniti Prasad Singh)