The High Court
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P. (C) No. 671 of 2021 Commando Industril Security Force, through its Proprietor, Sri Nawal Kishore Singh, S/o Sri Laxmi Narayan Singh, resident and office at New Forest Colony, Besides vision Enclave Apartment, Hurhuru Road, P.O. and P.S. Sadar, Dist. Hazaribag (Jharkhand) 825301 ... ... ... ... Petitioner Versus 1.The State of Jharkhand, through the Secretary, Development of Transport having its office at Ground Floor M.D.I. Building, Dhurwa, P.O. & P.S. Dhurwa, District Ranchi (Jharkhand) 834004 2.Transport Commissioner, Govt. of Jharkhand, having its office at Ground Floor F.F.P. Building, Dhurwa, P.O. & P.S. Dhurwa, District- Ranchi (Jharkhand)-834004 3.Joint Transport Commissioner, Road Safety, Department of Transport, office of Ground Floor, Engineering Hostel-II, Near Gol Chakkar, P.O. & P.S.- Dhurwa, District- Ranchi (Jharkhand)-834004. 4.Deputy Secretary, Ministry of Secretariat & Vigilance Department (Vigilance) Govt. of Jharkhand, office at Gol Chakkar, P.O. & P.S.- Dhurwa, District- Ranchi (Jharkhand)- 834004 5.Deputy Labour Commissioner, Labour Employment & Training Department, office at Sharam Bhawan, P.O. & P.S.- Doranda, District- Ranchi (Jharkhand) -834002. 6.Under Secretary, Department of Industries, Government of Jharkhand, having its office at Nepal House, P.O. & P.S. Doranda, District- Ranchi (Jharkhand)-834002. 7.Under Secretary, Department of Transport, Government of Jharkhand, having its office at F.F.P. Building, Dhurwa, P.O. & P.S.- Dhurwa, District- Ranchi (Jharkhand)- 834004. 8.Under Secretary, Planning cum Finance Department (Department of Finance), Government of Jharkhand, having its office at A.G. Office, P.O. & P.S.- Doranda, District- Ranchi (Jharkhand)- 834002. 9.Frontline (NCR) Business Solutions Pvt. Ltd. Through its Managing Director Narendra Kumar Singh having its office at Forth Floor (A+B), Sri Durga Tower, Old H.B. Road, Opposite Srilok Complex, P.O. & P.S.- Lalpur, Dist. Ranchi-834001. 10.Shiva Protection Force Pvt. Ltd., through its Managing Director Rajesh Nidhi having its office at Flat No.201, Second Floor, Laxmi Tower, Main Road, Hinoo, P.O. and P.S. Doranda, District- Ranchi … … … Respondents (Jharkhand)- 834002. ……. CORAM: SRI SANJAYA KUMAR MISHRA, C.J. SRI ANANDA SEN, J. --------- For the Petitioner For the Resp./State ---------
Legal Reasoning
: Mr. Indrajit Sinha, Advocate Mr. Dhirendra Kumar Deo, Advocate : Mr. Piyush Chitresh, A.C. to A.G. 06/ Dated: 08.12.2023 Upon hearing the learned counsel for the parties, this Court passed the following, (Per, Ananda Sen, J.) -2- 2. Petitioner by filing this writ petition under article 226 of the Constitution has prayed to quash the technical evaluation of Tender No.Pari.vi.(R.S.)/28/2018-21 dated 03.02.2021 issued by the respondents by which the petitioner has been disqualified on the ground of less annual turnover, in respect of man power supply. 3. Petitioner prays to reconsider the case of the petitioner, considering the provisions of Jharkhand Procurement Policy of 2014. 4. Learned counsel for the petitioner submits that the petitioner is a Micro, Small and Medium Enterprise (MSME) and has been duly registered as small enterprise. The petitioner participated in the tender, whose technical bid was rejected on the ground that the petitioner did not fulfill the criteria of annual average turnover. He argues that Micro, Small and Medium Enterprises MSME’s are exempted from fulfilling the minimum annual turnover condition, by virtue of the policy framed by the State. This aspects have not been considered by the State while floating the tender and later while evaluating the technical bid, thus, illegally rejected the technical bid of the petitioner. It is their argument that the case of the petitioner needs to be reconsidered after setting aside the tender or the petitioner’s bid be treated to be technically qualified and accordingly the financial bid be opened and be reconsidered. 5. The counsel appearing on behalf of the State submits that there was a duly constituted tender committee, which considered all the aspects including the technical qualifications of each of the tenderers and thereafter, finding the petitioner not qualified, rejected its technical bid. It is submitted that in the “request of proposal”, which was notified by the department, the annual turnover the clause was specified, wherein the average annual turnover of the bidder to qualify -3- technically, was fixed at Rupees 20 (twenty) crores per year, over the last three years, whereas the turnover on the aspect of the man power services, was specified to be not be less than 15 (fifteen) crores per year. This was a necessary clause in the tender. Once the proposal was floated and an invitation was sought for, from all concerned, there could not have been any deviation from the said mandatory conditions. Considering the volume of work and the service required, the minimum turnover was fixed, for which no fault can be founded. He argues that department needed an agency which could hire 300 employees and considering the magnitude of the services, minimum turnover was fixed. He lastly submits that if the petitioner is taking the plea of the Jharkhand Procurement Policy 2014 on the basis of the Micro, Small and Medium Enterprises (MSME), then there is an alternative grievances redressal mechanism which the petitioner ought to have approached. He lastly submits that the tender was finalized and the successful bidder has been awarded the work, which is being performed satisfactorily and moreover, the contract period will come to an end sometime in March, 2024. 6. Learned counsel appearing on behalf of the successful bidder submits that he is performing the work to the full satisfaction of the respondents and considering the magnitude, there is no illegality in fixing the criteria of minimum turnover. The clause of fixing minimum turnover is a rational clause as a company without a decent turnover cannot perform the job in a proper manner. He lastly submits that the period will expire in sometime in March, 2024 though there is a provisions of extension also. 7. We find that the petitioner is a Micro, Small and Medium Enterprise (MSME), duly registered with the Ministry of Micro, -4- Small and Medium Enterprises, Government of India. The Government of Jharkhand has a policy, which is “Jharkhand Procurement Policy 2014”. The said policy was published in the official gazetted on 20.10.2014. The objective of the said policy is to promote and develop Micro, Small and Medium Enterprises MSME’s of the State of Jharkhand, by giving preference in purchases of its production, services. As per the said policy, a Micro, Small and Medium Enterprise (MSME) is exempted from furnishing earnest money deposit while participating in the tender. 8. Admittedly, the petitioner has been extended the said benefit. The said policy was amended vide Memo No.1342 dated 16.07.2019, and a sub-para was incorporated in para 11(i) of the original policy i.e. Sub-para No.-11(i)(e). 9. The original clause- 11(i)(a) provides for supplying the tender documents free of cost to these units, (b) provides for exemption of earnest money deposited, (c) provides that MSMs shall be required to deposit only 10% of the Security Deposit and (d) provides for Bill discounting facility on Government orders. The newly incorporated clause (e) exempted the unit from fulfilling any minimum annual turnover and work experience clause in relation to tender conditions, but without compromising on quality and specification. The newly added Clause 11(i)(e) reads as follows:- “No minimum Annual Turn Over and work experience related tender conditions for working MSEs of Jharkhand State. (Without compromising on quality and specification of the product/service and department has complete right to decide on the quality and specification).” 10. From the materials on record and also from the argument, we find that it is an admitted case that though the relaxation in respect of depositing earnest money as per the procurement policy, was extended to the petitioner, but the relaxation in respect of minimum -5- annual turnover was not extended. Since the policy of the State provides for such exemption, it was expected that the said provision of the policy should have been followed by the State. It is not expected that the State will not adhere to the condition of the policy, which they have framed. While observing above, another factor which needs to be taken into consideration is that admittedly, this exemption was not incorporated in the notice inviting tender. When this exemption is not incorporated in the notice inviting tender, the respondents could not have given this benefit to the petitioner or others, in the midst of the process of tender evaluation. All these benefits which can be extended to Micro, Small and Medium Enterprises (MSME) as per policy of the Government in any tender, should be reflected in the tender itself so that the conditions become clear an ambiguous, leaving no room for any dispute in future. The respondents should have incorporated the said clause in the tender and should have invited bids from Micro, Small and Medium Enterprises (MSME’s) with specific condition that they are exempted from the minimum annual turnover clause and other clause, but without compromising the quality and specification of the services. By not doing so they violated their own policy. 11. Now the question, which falls for our consideration is what relief can be granted to the petitioner in this instant case. Admittedly the period of contract will come to an end in March, 2024. At this stage setting aside the tender and the cancelling the agreement will not be a proper action on the part of this Court. Since the contract will come to
Decision
end in March, 2024, though there is provision for extension, we direct the respondents not to extend the contract any further. -6- 12. The respondents-State is further directed to issue fresh tender specifically incorporating the reliefs and the exemptions available to the Micro, Small and Medium Enterprises (MSME) therein and proceed immediately. 13. It is made clear that the process of fresh tendering should start much before expiry of the present agreement, so that as far as possible and practicable, no extension is granted. Once the fresh tender is issued with all the conditions and exemptions available, it will be open for the petitioner and others to participate in the same. 14. With the aforesaid observations and direction the instant writ petition stands disposed of. (Sanjaya Kumar Mishra, C.J.) R.S. (Ananda Sen, J.)