C.W.P. No.2044 of 2009 1
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
Date of Decision : 22.06.2009
M/s J.S.Construction .....Petitioner
versus
Post Graduate Institute of Medical Education & Research, Chandigarh and
others .....Respondents
CORAM : HON'BLE MR.JUSTICE J.S.KHEHAR
HON'BLE MR.JUSTICE UMA NATH SINGH.
Present: Mr.Har Naresh Singh Gill, Advocate,
for the petitioner.
Mr.Arun Palli, Senior Advocate with
Mr.Tushar Sharma, Advocate,
for the respondents.
---
UMA NATH SINGH, J.
Writ petitioner M/s J.S. Construction has prayed for the
issuance of (i) writ of certiorari for quashment of the order dated 21.1.2009
(Annexure P-3), rejecting his tender though it was the lowest of four bids,
and (ii) writ of mandamus directing the respondents not to allot the tender to
any other firm during the pendency of this writ petition, with further
direction to allow the petitioner to work in terms of his tender.
As per the averments in the writ petition, the petitioner-
company is enlisted as a Class-II Contractor for civil works upto Rs.one
crore. Vide the tender notice published in Hindustan Times on 17.9.2008
(Annexure P-2), the office of Hospital Engineer (Civil-II) of Post Graduate
Institute of Medical Education and Research, Chandigarh (for short
‘PGIMER’), invited tenders, and the petitioner-company submitted its
C.W.P. No.2044 of 2009 2
tender on 26.9.2008 for the allotment of work of ‘painting of internal walls
in the circular area of Advance Paediatrics Centre (for short the ‘APC’)’. The
estimated cost of work was Rs.6,14,844/-, and the time frame to complete it
was within 4 months. Besides the petitioner-company, five other companies
also submitted their tenders. Thus, in total, there were six tenderers, as
follows:
i) M/s J.S.Construction;
ii) M/s Ganpathi Enterprises;
iii)M/s D.P.Enterprises;
iv)M/s Vishwanath Rai;
v) M/s J.P.Construction;
vi)M/s Durga Enterprises.
However, out of them only four companies participated in the tender
process, and on the opening of tenders, the petitioner company was found to
be the lowest bidder. Thus, the Superintending Hospital Engineer
(respondent No.3), called Mr.Jaspal Singh, the Proprietor of petitioner-
company, for negotiation of rates on 23.12.2008. During the negotiation,
the tender rate was further brought down to the extent of coming below the
justification rate, as the petitioner-company wanted to work at the rates to be
fixed by the respondents. However, as a shock and surprise, vide the letter
dated 21.1.2009, the tender of petitioner-company was rejected without
giving any reason, despite knowing well that the company is already
engaged in other civil works allotted by the Hospital Engineer, and that
there was no complaint whatsoever pending or decided against the
company. One Mr.R.K.Verma, who was working as Hospital Engineer
C.W.P. No.2044 of 2009 3
(Civil-II) on deputation was repatriated to his parent department on
20.1.2009, and in his place, one Mr.Prem Chandra was given the current
duty charge on 21.1.2009, who while showing undue haste, rejected the
tender of petitioner-company the same day i.e., 21.1.2009. This is also
averred in the writ petition that on some earlier occasions, Mr.Jaspal Singh,
the proprietor of petitioner-company, had exposed the incidents of
corruption in the working of Engineering Wing of PGIMER. While the
company was engaged on contractual job at the Advance Cardiac Centre,
PGI, Chandigarh, one Mr.Sandeep Kumar, XEN (Civil-II), who was the
incharge, demanded a bribe of Rs.30,000/-. Mr.Jaspal Singh showed his
reluctance and inability to pay the amount, however, while being threatened
to be stopped from working further if the said amount was not paid, and the
contract would be cancelled by black-listing the company, Mr.Jaspal Singh
approached the Superintendent of Police,C.B.I.,and submitted an application
dated 9.5.2008 (Annexure P-4), which led to the trapping and apprehension
of Mr.Sandeep Kumar, XEN, while accepting the bribe. Accordingly, the
FIR dated 9.5.2008 (Annexure P-5) was registered under Section 7 of the
Prevention of Corruption Act, 1988. The other occasion when Mr.Jaspal
Singh had to approach the C.B.I., related to the allotment of tender for
renovation of remaining toilets of various hostel blocks in PGI Campus,
Chandigarh. The tender was opened on 23.5.2008 and the rate quoted by the
company was found to be the lowest, but the work was not allotted to it.
Hence, Mr.Jaspal Singh visited the office of the Superintending Hospital
Engineer and contacted Mr.Santosh Kataria, Circle Head Draftsman, to
enquire about the work. Mr.Kataria demanded Rs.25,000/- to get the
C.W.P. No.2044 of 2009 4
allotment cleared from SHE. He also told that he has to give Rs.15,000/- to
SHE and keep the remaining amount of Rs.10,000/- for himself. It appears
that payment of bribe amount was made a condition precedent for allotment
of work. However, when Mr.Jaspal Singh requested Mr.Kataria to get his
allotment letter cleared, on 26.11.2008, the later got the allotment letter for
work issued. But, Mr. Kataria still persisted with the demand of Rs.25,000/-
and asked Mr.Jaspal Singh to deliver the amount the next day evening, i.e.
27.11.2008 in his office. Hence. Mr. Jaspal Singh again approached the
Superintendent of Police, CBI, and submitted an application dated
27.11.2008 (Annexure P-6), leading to the trapping of Circle Head
Draftsman while accepting the bribe. Thus, another FIR dated 27.11.2008
(Annexure P-7), was registered under Section 7 of the Prevention of
Corruption Act, 1988, on the complaint of Mr.Jaspal Singh.
In the above background, the petitioner-company has alleged
that its tender was arbitrarily rejected by Mr.Prem Chandra, Hospital
Engineer, on 21.1.2009, the day he had assumed the charge. This is also
alleged on behalf of the petitioner-company that the respondents (No.2 to 4),
namely Deputy Director (Administration); Superintending Hospital
Engineer, and Hospital Engineer, having connived with each other, have
rejected the tender of the petitioner-company. According to the petitioner-
company, there were similar other complaints of corruption in the PGIMER,
in as much as vide Annexure P-8, the employees union had also highlighted
the complaint of corruption in the institute. This is also an averment on
behalf of the petitioner-company that the company is ready to work even at
a further lower rate than the one already fixed by the department. According
C.W.P. No.2044 of 2009 5
to the petitioner-company, it was the lowest bidder and in rejecting its
tender vide letter dated 21.1.2009, the authorities have acted arbitrarily and
in an unfair manner which would only demonstrate a malafide exercise of
powers. Thus, the petitioner company has prayed that the order dated
21.1.2009 (Annexure P-3) be set-aside.
On the other hand, the respondents in their reply to the writ
petition have averred that there was no binding relationship in law between
the petitioner-company and the respondents in the form of a concluded
contract, as defined in the Indian Contract Act, 1872. It is also submitted
that the petitioner-company had just made the offers, one by submitting the
tender documents, and the other by way of its letter dated 23.12.2008 while
reducing its rate below the earlier offer, and since the respondents did not
accept the offers so made, there is no concluded and existing contract
between the petitioner-company and the respondents. While controverting
the averments made in the writ petition, this is mentioned that the Director,
PGIMER, Chandigarh had visited the APC on 28.7.2007, and having
observed that the walls and main hall at the entrance of the APC building
give a very dull look, had directed the same to be got painted to give a
bright and pleasant look. The department of Hospital Engineering and
Planning took up the job and calculated the estimated cost at Rs.6,14,844/-
on the basis of collective analysis of DSR-2007 (Delhi Schedule of Rates-
2007). This is also submitted in the reply that pursuant to the aforesaid
exercise, tenders were invited through advertisement vide Annexure P-2 and
in response thereto, in total six companies, including the petitioner had
submitted their tender documents, and out of them, only four had
C.W.P. No.2044 of 2009 6
participated and offered their rates. On the opening of tenders, and
preparation of comparative statement, the rate quoted by the petitioner-
company at Rs.27,46,042/- was found to be the lowest amongst all the bids
made by the participating tenderers. Thereafter, vide the letter dated
23.12.2008, after negotiation, the petitioner-company reduced its rate to
Rs.26,73,257/- as the justified cost. However, the justified cost was also
found to be 346.62% higher than the estimated cost. As the final tender
amount after negotiation was found to be beyond 10% of the sanctioned
amount, it was sent to the competent authority for a revised administrative
approval/expenditure sanction, and a Committee of the Institute constituted
to carry out the task of prioritization of various scheme works, desired that
the whole scheme should be discussed with the Principal of College of Arts
and work should be planned after taking their view so that modern concepts
can be applied for the APC building. In this background, it was decided that
the present tender be scrapped by the Hospital Engineer (Civil-II). The
recommendation of the committee was approved by the competent authority
and the decision was conveyed to the petitioner-company vide the letter
dated 21.1.2009 (Annexure P-3).
With regard to allegations that two criminal cases were
registered on the applications of Mr.Jaspal Singh, the proprietor of
petitioner-company, the respondents have averred in their reply that the
petitioner-company always has been pressurizing the official respondents to
accept its tender, and the allegations levelled by the petitioner-company are
totally false and frivolous, which have been levelled just in order to harass
the official respondents and to cause injury and harm to their reputation.
C.W.P. No.2044 of 2009 7
Thus, the respondents have prayed for the dismissal of this writ petition
while maintaining that it is totally misconceived.
The petitioner-company has also filed a replication to the reply,
and reiterated the stand taken in the writ petition.
We have heard learned counsel for the parties and perused the
rival submissions.
Learned counsel for the petitioner-company has reiterated the
averments made in the writ petition by contending that since Mr.Jaspal
Singh, the Proprietor of petitioner company, had exposed two incidents of
demand of bribe by the Engineering Wing of the Institute, therefore, the
tender of petitioner-company was rejected, even though it was the lowest
bidder. This is also a submission that the act of the respondents in rejecting
the lowest bid of the petitioner-company, was arbitrary and just designed to
show undue favours to some other company. This is a further submission of
learned counsel that the respondents want to keep the petitioner-company
out of business even without following the rules of natural justice. On
21.1.2009, the day Mr. Prem Chandra joined as Hospital Engineer after
repatriation of Mr.R.K.Verma to his parent department on 20.1.2009, in an
undue haste, he rejected the tender of the petitioner-company. This has
created a doubt about the bonafide of the officer. Learned counsel referred
to the notice inviting tender (Annexure P-2), to show the rate quoted for the
painting of internal walls in the circular area of Advance Paediatric Centre
(APC) at PGI, as:
Sr.No. Description Approx. Cost of Earnest Time
cost tender money limit
form
1. xx xx xx xx xx
C.W.P. No.2044 of 2009 8
2. xx xx xx xx xx
3. Painting of internal walls 6,14,844.00 500.00 12,297.00 04
in circular area of APC months
at PGI, Chandigarh.
xx xx xx xx xx xx
_____________________________________________________________
Learned counsel emphatically argued that despite the fact that
the tender of the petitioner-company was below the justified rate, and the
company was ready to work at any reasonable rate to be fixed by the
respondents, its tender was not approved and the earnest money was
refunded without giving any reason. This is also a submission of learned
counsel that there is no complaint whatsoever against the company, and it
has been doing the civil works allotted by the hospital administration from
time to time.
Learned counsel for the petitioner, to fortify his submission,
placed reliance on a judgment of the Apex Court reported in 1995 (4) RSJ
700 (LIC of India and another versus Consumer Education & Research
Centre and others), to argue that the State action in contractual field must be
just, fair, and reasonable in consonance with constitutional conscience and
socio economic justice. In the said judgment, this has been clearly held that
the contract of the Government or its instrumentality with private persons
would be open to judicial review if unreasonable, unfair or irrational,
Learned counsel also cited a Division Bench judgment of this Court,
reported in 1994 (3) R.R.R.727 (The New Kotkapura Truck Operators’
Union versus Food Corporation of India), to submit that the tender of the
C.W.P. No.2044 of 2009 9
petitioner-company could have been accepted after further negotiation. In
the case under reference, as per tender notice, sealed tenders were invited
for transport of foodgrains. Out of three tenderers, two withdrew their
tenders and only one tenderer was left in field. The Corporation called for
negotiation and after negotiation, the tender of sole tenderer, who remained
in the fray, was approved. Acceptance of such a tender was held to be valid,
and the High Court refused to interfere in the writ petition.
Learned counsel for the respondents also reiterated the
averments made in the reply, in his contentions to counter the submissions
of learned counsel for the petitioner. Learned counsel in his arguments
highlighted that the petitioner-company wants to pressurise the Institute by
dragging it in to unnecessary litigation, as that is also obvious from the fact
that the petitioner-company has filed a Criminal Misc. No.CRM-M-5063 of
2009 (Jaspal Singh versus UT Administration and others) seeking directions
to the Superintendent of Police, CBI, to investigate the complaint dated
23.1.2009 made by him. Giving the background as to how the tender in
question was floated, learned counsel referred to the request made by the
Joint Medical Superintendent, Advance Paediatric Centre (APC), vide his
letter dated 31.7.2007, to the Superintending Hospital Engineer of the
Institute as under:
“It is to inform you that Hon’ble Director, PGIMER,
Chandigarh, visited Advanced Paediatric Centre, on
28.07.07 at 5.30 pm. It was observed that the main hall
after entrance into APC and the walls of the floors give a
very dull look. It has been desired by Hon’ble DPGI that
C.W.P. No.2044 of 2009 10the walls be painted on the pattern of Advanced Eye
Centre.
It is, therefore, requested that the walls on all the
floors of Advanced Paediatric Centre be pleased painted
to give a bright and pleasant look of APC.”
According to learned counsel, the entire exercise of inviting
tenders was done in pursuance of the aforesaid communication. Initially, the
estimated cost was calculated to be Rs.6,14,844/-, which was worked out on
the basis of collective analysis of “DSR-2007” (Delhi Schedule of Rates-
2007) for the scheduled items and the prevailing market rates for the non-
scheduled items. Thereafter, it was finally worked out to Rs.8,20,000/- by
adding the cost index on scheduled items to the amount of estimated cost.
In the present case, the cost index on the cost of the scheduled items was
46.99% which was included in the total estimated cost of Rs.6,14,844/- and,
thus, the final figure was arrived at Rs.8,20,000/- by adding Rs.2,03,262/-
(46.99% cost index upon the cost of scheduled items), to the estimated cost
of Rs.6,14,844/-. Hence, the sanction of the competent authority was
obtained only for Rs.8,20,000/-. Thus, vide the letter of Hospital Engineer
(C-II) No.2933-45 dated 16.9.2008, tenders were invited through leading
newspapers. The date for receiving applications was fixed on 22.9.2008, and
for issuing the tenders on 24.9.2008. Tenders were to be submitted till 3.00
pm, on 26.9.2008, and were to be opened at 3.30 pm, the same day. In
response to the said advertisement dated 17.9.2008 (Annexure P-2), in total
8 agencies applied for the issuance of tender on 22.9.2008, and after the
scrutiny of applications, the tender documents were issued only to 6
C.W.P. No.2044 of 2009 11
agencies including the petitioner-company, on 24.9.2008. Out of 6 agencies,
only 4 agencies offered their rates/tender documents on 26.9.2008 at 3.00
pm, and the tenders were opened on the same day at 3.30 pm by the Tender
Opening Committee. After the opening of tenders, a comparative statement
was prepared and the rate of petitioner-company quoted at Rs.27,46,042/-,
was found to be the lowest amongst the 4 tenderers. However, this rate was
found to be 346.62% higher than the estimated cost of Rs.6,14,844/-. As per
the procedure followed by the PGIMER, Chandigarh, after the tenders were
opened, justified cost was calculated purely on the basis of prevailing
market rates, which came out to be Rs.26,73,541/- as against the sanctioned
amount of Rs.8,20,000/-. Thus, the rate quoted by the petitioner company
was much higher as compared to the estimated cost, and the sanctioned
amount. Hence, the petitioner company was called for negotiations. Finally,
the petitioner company vide the letter dated 23.12.2008 reduced the rate to
Rs.26,73,257/-, which was only 0.01% below the justified cost of
Rs.26,73,541/-. As per clause 19.4.1-1 (IV) of the Central Public Works
Department Manual (CPWD Manual), if the tender liability is more than
10% of the sanctioned cost, a revised expenditure sanction of the competent
authority would be required. The said clause on reproduction reads as:
“19.4.1 Conditions to be fulfilled before inviting/accepting
tenders
( 1 ) The officers of CPWD shall invite/accept tenders only
after the following conditions are fulfilled:
(i) xx xx
( ii ) xx xx
C.W.P. No.2044 of 2009 12
( iii ) xx xx
( iv ) When the tender involves liability exceeding the
expenditure sanction for the work by an amount greater than
10%, such excess will require a revised expenditure sanction.
This should be applied for as soon as such an expense is
foreseen. In the case of road works under administrative
control of MOT, Department of Surface Transport (Roads
Wing), an excess upto 15% of the sanctioned amount or Rs.1
crore, whichever is less, is permissible.
xx xx xx”
Thus, as the final tender amount of petitioner company was in
excess beyond 10% of the sanctioned amount of Rs.8,20,000/-, it was sent
to the competent authority (Director, PGI), for a revised administrative
approval/expenditure sanction. It would be pertinent to mention that the
quotation submitted by the petitioner on measurements taken in feet, was
according to the learned counsel for the respondents in consequential
because conversion of the rate from feet to meters would not have rendered
the contract invalid.
Learned counsel for the respondents during the course of
hearing, has placed reliance on various judgments of the Apex Court and the
High Courts in support of his contentions. He referred to a judgment of the
Apex Court reported in (1982) 2 Supreme Court Cases 365 (State of Uttar
Pradesh and others versus Vijay Bahadur Singh and others), to argue that
the Government is not always bound to accept the bid, and can also cancel
C.W.P. No.2044 of 2009 13
the entire auction for good and sufficient reason. Learned counsel also
referred to another judgment of the Apex Court, reported in (2006) 1
Supreme Court Cases 751 (Dresser Rand S.A. versus Bindal Agro Chem
Ltd., and another), to contend that by the act of reaching an agreement as to
terms subject to which a purchase will be made, is not entering into an
agreement to purchase or a contract. “Invitations of bid” by themselves are
neither agreements nor contracts. Process of bidding or submission of
tenders would result in a contract only when a bid or offer is made by a
prospective party, and such bid or offer is accepted by the first party which
had invited the bid or offer. Mere acceptance by the first party of
modifications to its standard form offer i.e., its “General Conditions of
Purchase”, as suggested by the other party, does not lead to the conclusion
of a contract or purchase order. Such acceptance of modifications to its
General Conditions of Purchase would merely finalize the General
Conditions which would be applicable if and when the first party decided to
place a purchase order with the supplier. By citing yet another judgment of
the Apex Court, reported in (2007) 1 Supreme Court Cases 477 (Rajasthan
Housing Board and another versus G.S.Investments and another), learned
counsel argued that even if some defect is found in the ultimate decision
resulting in cancellation of the auction, the Court should exercise its
discretionary power under Article 226 with great care and caution and
should exercise it only in furtherance of public interest. Learned counsel
while placing reliance on a judgment of Orissa High Court reported in AIR
1990 ORISSA 26 (Executive Engineer, Sundargarh R & B Division and
others versus Mohan Prasad Sahu), argued that an advertisement calling for
C.W.P. No.2044 of 2009 14
tenders is not a proposal, and rather, the submission of tender is only in the
nature of offer, which unless accepted, would not amount to a concluded
contract. Learned counsel also cited a Division Bench judgment of Gujarat
High Court, reported in AIR 1981 GUJARAT 117 (Prabhudasbhai
Bhikhabhai Patel versus State of Gujarat and others), to contend that the
High Court is not to sit in appeal against the administrative decision to
award or not to award a contract and substitute its own decision for the
decision taken by the State Government. The decision to award contract can
be quashed and set-aside provided it is established that the decision is
arbitrary and discriminatory, so as to attract Article 14 of the Constitution.
Merely because the lowest bid is not accepted, it cannot be said that the
decision is rendered arbitrary. Learned counsel also cited a judgment of
Manipur High Court, reported in AIR 1962 MANIPUR 47 (Nameirakpam
Pishak Singh versus Forest Officer, Manipur Forest Department and others),
to urge that a tender notice means only an invitation extended to the
contractors for making offers and it does not amount to an offer or proposal
and the quotation of rates offered by the contractor does not amount to an
acceptance of offer or proposal, thereby creating any promise or agreement.
It is by the acceptance of any of those offers or proposals by the person
calling for tenders that it becomes promise or an agreement. Mere fact that a
person made certain quotations in response to the tender notice even
granting that it was the lowest quotation, will not in any manner, create an
obligation on the person who issued the tender notice. There is no duty cast
on such a person to accept any of the tenders or quotations or even the
lowest bid made in response to the tender notice.
C.W.P. No.2044 of 2009 15
Learned counsel for the respondents also referred to a judgment
of this High Court reported in The Punjab Law Reporter Vol.CX-(1995-2)
467 (Haryana Financial Corporation and another versus M/s Bhagat Foods
Private Limited and another), to argue that merely by giving a bid, the
bidder does not acquire a vested right, and there is no completed contract
until the bid is accepted.
On a careful consideration of rival submissions, we notice that
this is now settled by the judgment of Apex Court (supra), cited by learned
counsel for the petitioner, that a contract between the Government or its
instrumentality with private persons would be open to judicial review if
found to be unreasonable, unfair or irrational. We also notice that a contract
or an auction can be cancelled only for a good and sufficient reason.
Besides, this is also evident that a tender can be accepted after further
negotiation between the parties. In these premises, if we examine the case
in our hand, we find a considerable force in the submission made on behalf
of the petitioner-company, as noticed herein above. Indisputably, the
petitioner-company was the lowest bidder; the rate given by the company
was initially more than the justified rate, which was successfully brought
down after negotiation, and the petitioner-company is ready to work at a rate
to be fixed by the respondents. We also notice that the petitioner-company
has been given other contracts of civil works by the Institute, and there is no
complaint whatsoever to cause any dissatisfaction to the respondents. This
is evident from the facts narration that the consultation with the Principal of
Arts College was done only in the month March, 2009, after the rejection of
tender on 21.1.2009 and filing of this writ petition. It would have been
C.W.P. No.2044 of 2009 16
appropriate on the part of the respondents to have consulted the Principal of
Arts College before taking a decision to reject the tender of the petitioner
which was admittedly the lowest bid. We also notice that Mr.Jaspal Singh,
the sole proprietor of petitioner-company had lodged two complaints against
the demand of bribe by officers of the Engineering Wing of the Institute and
pursuant thereto, two FIRs had been registered under Section 7 of the
Prevention of Corruption Act. This also appears that the respondents
wanted a favourable statement from Mr.Jaspal Singh in those CBI cases
before granting the acceptance of his tender. Besides, the rate quoted by the
petitioner-company was per square meter, whereas, the justified cost was
calculated by the respondents on the basis of per square feet. Thus, the
justified rate if calculated on the basis of per square feet by the respondents
would have gone 11 times higher than the rate quoted by the petitioner-
company. In its replication, the petitioner-company has averred as:
“….That the averments made in sub-paras (d & e) of para
4, it is stated that the amount of Rs.27,46,042/-, as
quoted by the petitioner, was 346.62% was not higher
than estimated cost. Rather, respondents have mis-
calculated the amount. The amount given by the
petitioner was as per square meters. When the justified
cost was assessed by the department, they found mistake
qua the measurement i.e., rather than in square meters, it
was to be shown/published as square feet. This affected
11 times, the rate quoted by the respondents. Keeping in
view the above facts, the petitioner quoted the rate in
C.W.P. No.2044 of 2009 17square meter, which is not at higher side.
For further clarification, one square meter is equal
to 10.76 square feet. The rate given for the construction is
Rs.3100/- per square meter. The justified case made by
the department for the same item is Rs.3204 square meter
which comes to Rs.26,73,541/-., i.e. total cost. The rates
quoted by the petitioner come to Rs.27,46,042/-. The
negotiation were held on 23.12.2008 and petitioner was
asked to reduce the rate. Thus, it was agreed by the
petitioner to reduce the rate by .01% below the justified
cost of Rs.26,73,541/-. Thus, final amount of petitioner
comes to Rs.27,73,257/-. So, Rs.7250/- was reduced by
the petitioner.
Therefore, the rate of construction given by the
petitioner was not at higher side, i.e. 346.62%. Rather,
the same was miscalculated by the respondents……”
There is no dispute that the impugned order of rejection of bid
by the PGIMER, an instrumentality of the State, is subject to judicial review
as it suffers from unreasonableness and arbitrariness. The tender of
petitioner-company was rejected in a background of complaints made by
Mr.Jaspal Singh, the proprietor of the company, with the CBI against the
demand of bribe by the Engineering Wing of PGIMER by one Prem
Chandra, who joined the post of Hospital Engineer on 21.1.2009 and the
same day, without proper application of mind and knowing the background,
rejected the tender of the petitioner-company. This is unreasonable also for
C.W.P. No.2044 of 2009 18
the reason that the petitioner’s bid was the lowest and there was no
complaint whatsoever against the working of the company which has
already been given some other contracts of civil works by the PGIMER.
Even vide Annexure R-1, on 1.4.2009, some more work was allotted to the
petitioner-firm by the respondents after the rejection of tender in question.
Besides, the petitioner-company is also ready to work at a rate to be fixed by
the respondents. The plea of the Institute that a Committee headed by the
Director, had decided to consult the Principal, Arts College, also does not
find favour with us. In fact, it seems to us to be an after thought at the hands
of the respondents so as to defeat the claim of the petitioner. In order to
substantiate the instant plea, learned counsel for the respondents has placed
reliance on Annexure R-1 appended to the written statement, which is a
communication dated 31.7.2007, addressed by the Joint Medical
Superintendent, Advance Paediatric Centre of the PGI, to the
Superintendent Hospital Engineer, which is being extracted hereunder:
From
Joint Medical Superintendent,
Advance Paediatric Centre,
PGIMER, Chandigarh.
To
Superintendent Hospital Engineer,
PGIMER, Chandigarh.
Subject: Regarding painting of internal walls of APC on the
pattern of Advanced eye centre.
It is to inform you that Hon’ble Director, PGIMER,
Chandigarh visited Advanced Paediatric Centre, on 28.7.2007
at 5.30 p.m. It was observed that the main hall after entrance
into APC and the walls of the floors give a very dull look. It has
been desired by Hon’ble DPGI that the walls be painted on the
pattern of Advanced Eye Centre.
It is, therefore, requested that the walls on all the floors of
C.W.P. No.2044 of 2009 19Advanced Paediatric Centre be please painted to give a bright
and pleasant look of APC.
An early action is requested please.
Thanking you,
Sd/- 31.7.2007
Joint Medical Superintendent,
Advance Paediatric Centre,
PGIMER, Chandigarh.
The tender in question was floated on 17.9.2008, whereas, the
communication relied upon is dated 31.7.2007. All the deliberations which
ought to have been conducted on the basis of the aforesaid communication
must have essentially culminated before issuance of the aforesaid tender
notice. Additionally, it would be pertinent to mention that the Principal of
Arts College was consulted in March, 2009 i.e. well after the rejection of
the contract issued in favour of the petitioner on 12.1.2009. It is this plea at
the hands of the respondents which lead us to conclude that the action at the
hands of the respondents to cancel the contract issued in favour of the
petitioner, was unreasonable, unfair and after thought.
In view of all the aforesaid, we quash the rejection order dated
21.1.2009 (Annexure P-3), and allow this writ petition without costs, with a
direction to the respondents to fix the justified rate after making proper
calculation and further negotiation, if any, although admittedly the tender of
the petitioner-company is the lowest of four bids submitted by the
participating tenderers.
(UMA NATH SINGH)
JUDGE
(J.S.KHEHAR)
22.06.2009 JUDGE
*mohinder
Whether this judgment be referred to Reporter or not? YES/NO