JUDGMENT
Navaniti Pd. Singh, J.
1. Heard.
2. By the present writ application the petitioner has challenged the proceedings of the Departmental Tender Committee dated 13.4.2006 by which it has decided to consider the technical bid of respondent No. 10 notwithstanding Clause 21 of the notice inviting tender. Consequent to that the technical bird of respondent No. 10 was accepted instead of being declared ineligible and disqualified. Primarily the question is with regard to scope and ambit of Clause 21 of the notice inviting tender which is quoted hereinafter:
21. The tenderers against whom departmental black listing process are going on or the tenderers whose working and conduct are ambiguous will not be considered for allotment of work during decision of tender.
3. State has filed counter-affidavit and supplementary counter affidavit. The private -respondent No. 10 is represented by Mr. Abhay Kumar Singh, learned senior counsel and a counter affidavit has also been filed on behalf of private respondent No. 10.
4. Mr. Chitranjan Sinha, learned senior counsel in support of the writ application urged two points for consideration of this Court. Firstly he stated that bank guarantee as furnished by respondent No. 10 was not a valid guarantee and as such his tender was incomplete and ought to have been rejected as such. Secondly, and more importantly he has submitted that in terms of Clause 21 of the notice inviting tender, respondent No. 10 could not have been allowed to participate and if allowed to participate could not have been considered inasmuchas a proceeding for black listing was pending with the State Government. The State Government had no power to waive Clause 21 of the notice inviting tender and in that view of the matter respondent No. 10 should have been declared ineligible and his technical bid or other bids could not have been considered.
5. On the other hand Mr. Abhay Kumar Singh, learned senior counsel appearing for respondent No. 10 has submitted that so far as bank guarantee is concerned, petitioner has annexed incomplete document on the basis whereof the bank has made a wrong report. He has submitted that bank guarantee has been properly drawn up and submitted. Accordingly, it is submitted that there being no defect in bank guarantee the first ground of the petitioner is not sustainable.
6. Coming to the second ground it is submitted by him that undisputedly a proceeding against him for black listing was initiated in the your 2000. He filed his show cause. The proceedings are still pending. In the meantime three other separate contract works have been allotted to him. This should be taken to be the final exoneration of the private respondent from the charge of black listing. Ultimately he has submitted that where a power has been conferred on the executive government to black list a person the power undisputedly has to be exercised in a reasonable manner. Reasonable manner would predicate reasonable time. It is thus submitted that no final order having been passed for the last six years no order can now be permitted to be passed and in that view of the matter Clause 21 itself cannot be invoked. Lastly it was submitted that Clause 21 of the notice inviting tender itself is ultra vires being arbitrary unreasonable and thus violative of Article 14 and unreasonable restriction in view of Article 19(1)(g)of the Constitution.
7. Having considered the rival contentions so far as the first ground of defect of bank guarantee is concerned, in view of averments made in the counter affidavit by the State and stands taken by respondent No. 10, I do not think the same can be sustained. I accordingly find that bank guarantee as furnished by respondent No. 10 is not incomplete and/or inadequate in any manner.
8. Coming to the second question of Clause 21 of the notice inviting tender, the facts are not in dispute. Respondent No. 10 is facing proceeding for black listing. The proceedings have not been terminated by any order either way. The present notice inviting tender is a fresh tender issued by the State. The respondent No. 10 participated in the process being fully aware of Clause 21 which instantaneously disqualifies him. The State in its counter affidavit has sought to justify its action in not disqualifying him by stating that the show cause of respondent No. 10 was still pending consideration. Respondent No. 10 had not been found guilty of any action enabling the State to black list him. In my view, this consideration by the State is totally under a misapprehension of the contents of Clause 21. Clause 21 clearly predicates even pendency of proceedings. Once Clause 21 has been incorporated in NIT its efficacy cannot be ignored by the Tender Committee which is executing a subordinate function thereto. It is to scrutinise the tenders filed in accordance with the notice inviting tender and the terms and conditions thereunder. It cannot bypass, overlook or ignore the terms and conditions of the notice inviting tender. I therefore find that the consideration of the Tender Committee in not disqualifying the respondent No. 10 was totally misplaced. It cannot be sustained either in fact or in law. The decision making process thus stands vitiated.
9. Now it remains to consider the submission of Mr. Abhay Kumar Singh, learned senior counsel appearing for respondent No. 10 that the power of black listing not having been exercised for six years cannot be now permitted to be exercised even if the proceedings are still pending consideration, the proceeding cannot be said to be valid. What Clause 21 prohibits is consideration of those tenders in respect of whom proceedings for black listing is pending. Even if it be accepted that no final order can be passed then it does not mean that the proceedings are deemed to be dropped. However, Mr. Abhay Kumar Singh placed reliance on two judgments since (paragraph 12) (Mansaram v. S.P. Pathak and Ors.) and (paragraph 11) (The State of Gujrat v. Patil Raghav Natha and Ors.) for the proposition that where the power has been conferred on an authority to perform an act or do a duty the power has to be exercised reasonably and that would include within a reasonable time.
10. There is no quarrel with the said proposition but the question remains, can the respondent now having participated under the said clause turn around and contend that the said clause cannot be invoked against him. The answer to this is that once the respondent No. 10 chose to file his tender pursuant to the aforesaid notice inviting tender without reserving his right to challenge the said clause or challenging that clause subsequently he is bound by the said clause and cannot now be permitted to challenge the same. He has elected to participate with his eye open. Having participated he cannot turn around and challenge the validity when it is used against him. He is estopped from doing so. The said plea thus is not available to respondent No. 10. Coming to the question of validity of Clause 21 for the reasons given above, I find that respondent No. 10 cannot at this stage challenge the validity of the aforesaid clause. I should not be misunderstood in saying that if a clause is violative of constitutional provisions a party can still be estopped from challenging the same. In the present case, he had participated in the tender being fully aware of Clause 21 even closed. He took a chance. He succeeded at the first stage but now he fails. It is too late to permit him to challenge the validity of the said provision.
11. Even otherwise I have examined the said provision with regard to the two cases cited by Mr. Singh in support of validity of the aforesaid provision. The two being 1991 Supp (1) SCC 600 (Delhi Transport Corporation v. D.T.C. Mazdoor Congress and Ors.) and reliance placed on paragraph 232 of the said judgment and (Hindustan Times and Ors. v. State of U.P. and Anr.) in particular paragraph 39 thereof. In the former case the Apex Court held that employment is not a bounty from government. It is as much fundamental as right to work. It cannot be consigned to the limbo of undefined premises and uncertain applications. The present case is not such an undefined or uncertain provision. The later case deals with application of Article 14. I hold that there is nothing arbitrary or unreasonable about Clause 21. In order to appreciate the first, one must accept here, we are dealing with the matter of contract. It is well settled by series of judgments starting from Airport authority case that even in contractual matters the state is bound by Article 14 of the Constitution. There is no dispute with that proposition that government either as an employer or hirer or entering into different contracts cannot hire and fire or choose own its sweet will but must conform to Article 14. Therefore ,one must see whether Clause 21 which is a condition in notice inviting tender is violative of Article 14 or 19(1)(g) of the Constitution.
12. In contract matters it is open to the government to decide whether it would like to deal with people against whom proceedings for black listing are pending. There is nothing unconscionable or unreasonableness in it. It has a valid rational in it. A tainted person, yet not found guilty, can be disqualified. If respondent No. 10 had any grievance he should have come to this Court at the earliest occasion to get the proceedings against him cancelled and/or concluded rather than letting it lie alone to be challenged whenever necessary. He did not challenge it by himself. It is well settled that if a provision is misused, that by itself will not render the provision bad. The action thereunder is liable to be struck down. Thus by applying this test, the provision cannot be invalidated. In the present case the only action that can be taken in view of Clause 21 is to disqualify the respondent No. 10. There is no reason for this Court to hold otherwise. There was no other option available to the Tender Committee.
13. In that view of the matter I do not find any merit in the contention raised by Mr. Singh learned senior counsel appearing on behalf of the respondent No. 10. I hold that the decision to consider his tender pursuant to notice inviting tender notwithstanding Clause 21 thereof is vitiated in fact and in law. The decision making process is thus vitiated. The authorities were bound to reject the tender of respondent No. 10 and exclude him from consideration.
14. This writ application is thus allowed and the technical bid of respondent No. 10 stands rejected. I order accordingly.