JACOB T.K. v. INSTITUTE OF MANAGEMENT IN GOVERNMENT (IMG) and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR THURSDAY, THE 4TH DAY OF AUGUST 2016/13TH SRAVANA, 1938 WP(C).No. 21808 of 2016 (A) --------------------------------------------- PETITIONER: JACOB T.K., AGED 60 YEARS, S/O. KUNJUJU, JACOB'S CATERERS, T.C.12/179, MULAVANA JUNCTION, KUNNUKUZHY, VANCHIYOOR PO, THIRUVANANTHAPURAM-695 035. BY ADVS.SRI.NAIR AJAY KRISHNAN SRI.R.T.PRADEEP SMT.M.BINDUDAS RESPONDENTS: 1. INSTITUTE OF MANAGEMENT IN GOVERNMENT (IMG) REPRESENTED BY ITS SECRETARY, VIKAS BHAVAN PO, THIRUVANANTHAPURAM-695 033. 2. CHIEF SECRETARY/PRESIDENT, INSTITUTE OF MANAGEMENT IN GOVERNMENT (IMG), VIKAS BHAVAN PO, THIRUVANANTHAPURAM-695 033. 3. SATHYAJEET RAJAN, DIRECTOR GENERAL, INSTITUTE OF MANAGEMENT IN GOVERNMENT (IMG), VIKAS BHAVAN PO, THIRUVANANTHAPURAM-695 033. 4. GERORGE, FRIENDS OF KOVALAM ASOKA STAFF SERVICES (FOKASS),NANTHANCODE, KOWDIAR PO, THIRUVANTHANTHAPURAM-695 003. 5. M/S. HOUSE MASTERS SERVICES PVT. LTD, 37/1042A, SUBHASH CHANDRA BOSE ROAD, ELAMKULAM, KADAVANTHARA PO, KOCHI-682 020. BY ADV. SMT.LATHA ANAND BY GOVERNMENT PLEADER SRI.BABY THOMAS THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20-07-2016, THE COURT ON 04-08-2016 DELIVERED THE FOLLOWING: ## **APPENDIX IN WP(C).No. 21808 of 2016 (A)** PETITIONER'S EXHIBITS: EXT. P1 TRUE COPY OF CERTIFICATE ISSUED TO RESTAURANT RUN BY THE PETITIONER IN THIS REGARD WHICH IS NIL DATED. EXT. P2 TRUE COPY OF TENDER NOTICE DATED 6/8/15 PUBLISHED IN MALAYALA MANORAMA DAILY EXT. P3 TRUE COPY OF REPRESENTATION DATED 29/9/15 BEFORE THE 2ND RESPONDENT EXT. P4 TRUE COPY OF NOTICE DATED 30/9/15 GIVEN TO PETITIONER EXT. P5 TRUE COPY OF JUDGMENT DATED 15/10/15 IN WPC NO.29972/2015 EXT. P6 TRUE COPY OF ORDER DATED 15/12/15 IN WPC NO 37884/15 EXT. P7 TRUE COPY OF G.O (RT) NO. 25/2016/P&ARD DATED 16/1/16 EXT. P8 TRUE COPY OF TENDER DOCUMENT FOR SUBMITTING TECHNICAL BID AND COMMERCIAL BID ON OR BEFORE 17/5/16 EXT. P9 TRUE COPY OF COVERING LETTER OF TENDER DOCUMENT DATED 17/5/16 ADDRESSED TO 3RD RESPONDENT EXT. P10 TRUE COPY OF PROCEEDINGS OF PURCHASE COMMITTEE DATED 20/5/16 EXT. P11 TRUE COPY OF EXPERIENCE CERTIFICATE DATED 25/3/94 ISSUED BY 1ST RESPONDENT TO PETITIONER EXT. P12 TRUE COPY OF EXPERIENCE CERTIFICATE DATED 4/5/15 BY HLL LIFECARE LTD EXT. P13 TRUE COPY OF ORIGINAL REGISTRATION CERTIFICATE OF PETITIONER DATED 31/12/10 EXT. P14 TRUE COPY OF CERTIFICATE OF RENEWAL FROM 9/3/16 TO 31/12/16 EXT. P15 TRUE COPY OF PROCEEDINGS OF PURCHASE COMMITTEE DATED 31/5/16 EXT. P16 TRUE COPY OF PROCEEDINGS DATED 10/6/16 BY 3RD RESPONDENT EXT. P17 TRUE COPY OF OFFICE ORDER DATED 13/6/16 BY WHICH 4TH RESPONDENT ## RESPONDENT'S EXHIBITS: EXT. R1(a) TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE RESPONDENT IN WPC 29972/15 EXT. R1(b) TRUE COPY OF THE REPORT SUBMITTED BY THE COMMITTEE P.B.Suresh Kumar, J. ------------------------------------------ W.P.(C)No.21808 of 2016 A ------------------------------------------- Dated this the 4[th] day of August, 2016 ## **JUDGMENT** On 06.08.2015, the Institute of Management in Government ('the Institute' for short), invited tenders from eligible persons to run canteens in the Centres of the Institute at Thiruvananthpauram, Kochi and Kozhikode on contract basis. The petitioner and the fourth respondent were among the participants in the said tender process. As per the terms of the said tender invitation, only those who are found eligible in the technical evaluation are permitted to participate in the financial bid. The petitioner and fourth respondent alone were found qualified in the technical evaluation. Later, when the financial bids were opened, it was found that the fourth respondent was the lowest bidder WPC 21808/16 2 among the qualified tenderers. It was revealed to the petitioner later that the fourth respondent secured qualification to participate in the tender by producing false documents. The petitioner took up the matter with the Government and as per Exhibit P7 order, the Government found that the fourth respondent is not qualified to participate in the bid. Consequently, as per the said order, the Government directed the Institute to re-scrutinize the technical bids and accept the bid which offered the rate at par with the bid submitted by the disqualified fourth respondent. According to the petitioner, though he was willing to run the canteen at the rates quoted by the fourth respondent, the Institute invited fresh bids with a view to avoid the grant of right to the petitioner. 2. Exhibit P8 is the fresh invitation made by the Institute. The petitioner participated in Exhibit P8 tender WPC 21808/16 3 process also. In the said process, the petitioner and the fifth respondent were found eligible. Thereupon, the financial bids submitted by the petitioner and the fifth respondent were opened. The case of the petitioner is that he was the lowest tenderer as far as the Thiruvananthapuram Centre of the Institute is concerned and the fifth respondent was the lowest tenderer for the Kochi and Kozhikode Centres of the Institute. Consequently, the purchase committee of the Institute recommended to the third respondent to award the right to conduct canteen at the Thiruvananthapuram Centre to the petitioner. Exhibit P10 is the decision rendered by the purchase committee of the Institute in this regard. Thereupon the third respondent, the Director General of the Institute called upon the purchase committee to waive the eligibility criteria fixed as per Exhibit P8 to have maximum bidders to compete in bidding. The purchase WPC 21808/16 4 committee of the Institute has, however, taken the view that waiver of a condition to include more bidders is a matter for the Institute to take a decision and not for the purchase committee. Exhibit P15 is the decision taken by the purchase committee in this regard. According to the petitioner, ignoring Exhibits P10 and P15 decisions of the purchase committee, the third respondent permitted the fifth respondent to run the canteen at the Thiruvananthapuram Centre of the Institute provisionally for a period of three months as per Exhibit P16 order. According to the petitioner, he being the lowest tenderer as far as the canteen at Thiruvananthapuram Centre of the Institute is concerned, the decision of the third respondent in permitting the fifth respondent to run the said canteen is illegal. The petitioner, therefore, seeks orders to quash Exhibit P16 decision of the third respondent. He also seeks WPC 21808/16 5 directions to respondents 1 to 3 to assign the right to run the canteen at Thiruvananthapuram Centre of the Institute to the petitioner. 3. A counter affidavit has been filed on behalf of the first respondent. It is stated in the counter affidavit that on verification of Exhibit P10 decision of the purchase committee, it was noticed that there were certain defects in the bid submitted by the petitioner and that the financial bid submitted by the petitioner is incomplete. According to the first respondent, it is on account of the said reasons, the matter was referred back to the purchase committee and it is on account of the very same reasons, Exhibit P16 award was made in favour of the fifth respondent. 4. Heard the learned counsel for the petitioner as also the learned counsel for the first respondent. WPC 21808/16 6 5. The fact that though the Government directed the Institute to award the right to run the canteen to one among the participants in the earlier tender process at the rate offered by the fourth respondent, the Institute has not assigned the right to the petitioner who was the lowest tenderer in the earlier tender process and who was willing to run the canteen at the rate offered by the fourth respondent, is not disputed. As stated above, the technical evaluation of the bids received pursuant to Exhibit P8 tender notice has been made by the purchase committee of the Institute. Exhibit P10 is the minutes of the purchase committee of the Institute held on 20.05.2016. It is seen from Exhibit P10 that the purchase committee of the Institute in their meeting held on 18.05.2016 evaluated the technical bids received from the tenderers and found that the petitioner and the fifth respondent alone have satisfied WPC 21808/16 7 the eligibility criteria. It is also seen from the said minutes that on 20.05.2016, the purchase committee of the Institute opened the financial bids submitted by the eligible tenderers and found that the petitioner is the lowest tenderer as far as the canteen of the Institute at Thiruvananthapuram is concerned. It is further seen that after the evaluation of the technical as also financial bids, the third respondent has directed the purchase committee to consider the question as to whether the eligibility criteria fixed for Exhibit P8 tender can be waived. Accordingly, the matter was considered by the purchase committee on 31.05.2016. Exhibit P15 is the minutes of the meeting of the purchase committee held on 31.05.2016. Exhibits P10 and P15 minutes of the purchase committee do not indicate that the contentions of the institute that the petitioner did not satisfy the eligibility criteria and that his technical bid was WPC 21808/16 8 incomplete, are correct. Exhibit P15 minutes would also show that the case set up by the Institute that the matter was referred to the purchase committee to consider the eligibility the petitioner is incorrect. It is evident from the said minutes that the matter was referred to the purchase committee to consider the question whether eligibility criteria could be waived to include more bidders in the zone of consideration. Further, as stated above, the petitioner was found eligible by the purchase committee in its meeting held on 18.05.2016 and since the Institute has approved the said decision of the purchase committee, the financial bids submitted by the tenderers were opened and evaluated by the purchase committee. After the opening of the financial bids, according to me, the Institute cannot be heard to contend that one of the tenderers was not qualified. As noted above, the matter was placed before the WPC 21808/16 9 purchase committee by the Director again to consider the question as to whether the eligibility criteria fixed in the tender can be relaxed to bring in more competitors. According to me, even the said exercise of the Institute was wholly unauthorised, for, it is now settled that an executive agency must be rigorously held to the standards by which it professes its action to be judged (See **Ramana Dayaram Shetty v. International Airport Authority of India** [(1979) 3 SCC 489]. It is thus evident that Exhibit P16 decision has been taken solely with a view to deny the right to run the canteen at the Thiruvananthapuram Centre of the Institute to the petitioner. In so far as the petitioner was found eligible by the purchase committee in the technical evaluation and in so far as the petitioner was the lowest bidder for the canteen at the Thiruvananthapuram Centre of the Institute, I am of the view that the petitioner is entitled WPC 21808/16 10 to succeed. In the result, the writ petition is allowed. Exhibit P16 decision of the first respondent is quashed to the extent it relates to the right to run the Canteen at the Thiruvananthapuram Centre of the Institute. The first respondent is directed to assign the right to run the canteen at the Thiruvananthapuram Centre to the petitioner in accordance with the terms of Exhibit P8 tender notice, within 30 days from the date of receipt of a copy of this judgment. P.B.Suresh Kumar, Judge tkv