235) this Court considered the issue as to whether relief not asked for by a party could be granted and that too without having proper pleadings. The Court held as under: (AIR p.240, para 22) "22..... It is well settled that the decision of a case cannot be based on grounds outside the pleadings of the parties and it is the case pleaded that has to be found. Without an amendment of the plaint, the court was not entitled to grant the relief not asked for and no prayer was ever made to amend the plaint so as to incorporate it it an alternative case." A similar view has been reiterated by this Court in Krishna Priya Ganguly v. University of Lucknow and Om Prakash v. Ram Kumar observing that a party cannot be granted a relief which is not claimed. Dealing with the same issue, this Court in Bharat Amratlal Kothari v. Dosukhan Samadkhan Sindhi held: (SCC p.246, para 30) "30. .... Though the court has very wide discretion in granting relief, the court, however, cannot, ignoring and keeping aside the norms and principles governing grant of relief, grant a relief not even prayed for by the petitioner." In view of the above, law on the issue can be summarised that the court cannot grant a relief which has not been specifically payed by the parties.
Calcutta High Court (Appellete Side)
Glodyne Technoserve Ltd vs State Of M. P. Reported In on 19 March, 2013
M.A.T. 231 of 2013
with
A.S.T. 38 of 2013
Since both the appeals have arisen out of a common order passed by a learned Single Judge of this court, we propose to dispose of the appeals by a common judgment also. For such purpose, although the matter is appearing under the heading "application", by consent of the learned advocates appearing for the parties, we take up the appeals for final hearing by treating those as on day's list and upon dispensation of all other formalities.
The intra court appeals have been preferred by Rausheena Udyog Ltd. and three others, who were permitted to intervene in the writ proceeding, as also by the State of West Bengal questioning the sustainability of the order passed by the learned Single Judge of this court on February 1, 2013 in W.P. No. 280 (W) of 2013 in the process of e- tender for procurement of micro nutrient fortified/energy dense food in the form of RTE(THR) dated November 21, 2012.
By the order impugned in the intra court appeals, the learned Single Judge has adjudicated upon certain conditions subject to which the tender was invited and the points put forth with respect to non-eligibility of the petitioner no. 1, namely, M/s. Bishamber Dayal Ram Niwas Gupta being a partnership firm of which the petitioner no. 2, namely, Pankaj Gupta, is a partner, at the interim stage without calling for affidavits by the respective parties.
It is pertinent to note that the writ petition was filed by the petitioners questioning the conditions subject to which the tender was invited and that the petitioners did not submit the tender papers till January 9, 2013, which was the last date for submitting e-tenders.
The interim order was passed by the learned Single Judge initially on January 9, 2013 to the effect that the bids of the prospective bidders might be accepted, but the same should not be opened without obtaining leave of the court. It was also observed by the learned Single Judge that non-submission of the bid by the petitioner no. 1 in course of the last date should not be treated as disqualification of it for participation in the tender process and that its participation should be subjected to further orders of the court.
Thereafter, the writ petition was taken up on January 10, 2013 on the point of allowable processing loss on which the learned advocate appearing for the State respondents stated that five (5) per cent processing loss would be allowed. With regard to the prescription of ISI mark, the learned advocate for the State prayed for time to obtain instruction as to whether any of the six (6) bidders complied with the mandatory conditions of clause 3, third bullet point of statutory technical documents subject to which tender was invited.
On January 15, 2013, though the e-tenders were invited, the learned Single Judge, without any prayer having been made in the writ application for participation of the petitioners in the tendering process, ordered that the writ petitioner no. 1 should be entitled to submit hard copy of its bid - both technical as well as financial - by 12-00 noon of January 16, 2013, whereas the last date for submitting tender was already over on January 9, 2013 and no prayer had been made in the writ application for issuance of the interim relief to the aforesaid effect. It was also ordered by the learned Single Judge that the State respondents should be entitled to open the technical bids received by them for ascertaining that who were eligible to participate further in the tender process and have their financial bids opened. The writ petition was ordered to be listed on January 17, 2013.
Thereafter it appears that the writ petition was taken up on January 28, 2013 and the interim order was extended till January 29, 2013. Ultimately, the writ petition was heard on January 29 and 30, 2013, when the court ordered to produce the technical bid of the petitioner no. 1 in its entirety and the interim order was extended further till the next date of hearing.
On January 31, 2013, the intervention, as prayed for by the appellants in M.A.T. 231 of 2013, was allowed. The matter was heard on the question of extension of interim order and was posted for orders on February 1, 2013, on which date the impugned order has been passed by the learned Single Judge adjudicating upon the various terms and conditions of the e-tender as also the eligibility of the petitioner no. 1. It has been held by the learned Single Judge that annual average turn over is to be taken into consideration. The turn over of Macrosoft for the year 2009- 10 has also been ordered to be taken into consideration as the turn over of the petitioner no. 1. It has also been held that the Bureau of Indian Standard has not prescribed any code or standard for food nutrients fit for consumption of adolescent girls. It is only food nutrients for infants that carries ISI mark. The learned Single Judge has also observed that the terms and conditions of the notice inviting tender are not ordinarily open to challenge, but the court can interfere in an exceptional case. It has been held that the petitioner no. 1 cannot be excluded from the zone of consideration for not having ISI code for food nutrients for adolescents. The learned Single Judge held that the aforesaid stipulation apparently had no relation with the objects sought to be achieved.
With respect to the certification of annual production capacity, it has been held by the learned Single Judge that on the basis of a certificate issued by the Rajasthan Pollution Control Board, the production capacity of the petitioner no. 1 is 72,000 MT. Therefore, there would be no reason to exclude the petitioner no. 1 from the zone of consideration on this ground.
Lastly, it has been held by the learned Single Judge that the licence, which has been issued in favour of Vijay Goel, who is a partner of the petitioner no. 1, is valid till March 31, 2013 and it has been carrying on business from the premises of the partnership firm.
Various objections raised with respect to the non- eligibility of the petitioner no. 1 have been dealt with by the learned Single Judge without calling for affidavits in opposition by the respondents and participation of the petitioner no. 1 in the tender process has been allowed. The learned Single Judge ordered for opening of the financial bids of the petitioner no. 1 as well as of other eligible bidders. In the event, the financial bid of the petitioner no. 1 was found to be lowest, the State should not issue supply order without obtaining leave of the court. If the bid offered by the petitioner no. 1 found to be abnormally low and the State was inclined to issue supply order to some other bidder, then in that case, the learned Single Judge gave liberty to the State to mention the writ petition for appropriate order. But if the bid offered by the petitioner no. 1 found to be not lowest and some other bidder found to be suitable for issuance of supply order, the State would be at free to proceed in accordance with law.
Thus, by passing the interim order, certain conditions of the e-tender have virtually been diluted and the petitioner no. 1 has been held to be eligible to participate in the tender process for which the financial bid of the petitioner no. 1 has been ordered to be taken into consideration, whereas no such prayer is made in the writ application.
The writ petition has been filed by the writ petitioners with the following prayers :-
b) A writ of and/or in the nature of
Mandamus do issue directing the
respondent authorities to forthwith rescind and/or cancel and/or withdraw the purported Clause 3. Technical Doc under
(a) "Statutory cover containing the following documents" (3rd bullet at page 5 of the Notice Inviting Tender dated 21st November, 2012) and other arbitrary clauses as enumerated in paragraphs 15 to 19 of the writ petition.
c) A writ of and/or in the nature of Mandamus do issue directing the respondents not to give any effect to and/or further effect and to act and/or further act on the basis of the purported clause 3. Technical Doc under (a) "Statutory cover containing the following documents" (3rd bullet at page 5 of the Notice Inviting Tender dated 21st November, 2012) and other arbitrary clauses as enumerated in paragraphs 15 to 19 of the writ petition.
d) A writ of and/or in the nature of
Mandamus do issue commanding the
respondents to forthwith remove the
arbitrary and anomalous clauses of the
Notice Inviting Tender as quoted in
paragraphs 15 to 19 of the writ petition
and issue necessary corrigendum and
thereafter proceed to continue with the
tender process.
e) A writ of and/or in the nature of
Mandamus do issue directing the
respondents to prescribe the recipe for the product and issue clarifications in respect of various issues raised by the petitioner.
f) A writ of and/or in the nature of Certiorari do issue commanding the respondents to transmit the records of the case forming the basis of the insertion of the impugned clause (a) 3.Technical Doc of the Notice Inviting Tenders as enumerated in paragraphs 15 to 19 of the writ petition as and where appearing in the tender document and to certify the same and on being so certified quash the same so that conscionable justice may be rendered.
h) An order do issue directing the respondents not to give any effect to and/or further effect and to act and/or further act on the basis of the purported Clause 3.Technical Doc, under (a) "Statutory cover containing the following documents" (3rd bullet at page 5 of the Notice Inviting Tender dated 21st November, 2012) and other arbitrary clauses as enumerated in paragraphs 15 to 19 of the writ petition till the disposal of this application. .
In substance, the writ petition was filed praying for quashing the conditions in the notice inviting tender and to stop the entire tender process. The petitioners have not prayed that they should be permitted to participate in the tender process, nor they submitted the tender within the time stipulated in the e-
tender.
The writ petition was filed with the averments that in the year 2000 the Ministry of Women and Child Development, Government of India launched a scheme called 'Kishori Shakti Yojna' with the object to improve the nutritional and health status of girls in the age group of 11-18 years as well as to equip them to improve and upgrade their home-based and vocational skills etc. In the year 2002-03, National Programme for Adolescent Girls was initiated as a pilot project in 51 identified districts across the country to address the problem of under nutrition among adolescent girls. On 9.7.2003 by an office order the CVC issued the guidelines.
On 21.11.2012, the Director of Social Welfare, Department of Women Development and Social Welfare, Kolkata, issued a notice inviting e-tender for procurement of micronutrient fortified/energy dense food in the form of RTE (THR) for supply of the same to the Ananwadi centres as supplementary nutrition to adolescent girls under SABLA of Integrated Child Development Department Services Scheme. On 26.11.2012, the petitioner/respondent no.1 submitted a letter mentioning various issues and seeking clarification in respect of arbitrary ambiguous and contradictory conditions prescribed in the aforesaid tender.
On 29.11.2012, a pre-bid meeting was held wherein the petitioner/respondent no.1 pointed out that the clause relating to BIS standard does not provide the specification of the Bureau of Indian Standard Institute and requested the respondents to clarify the same. Pursuant to such query in the pre-bid meeting, on 7.12.2012 the respondents issued a Corrigendum inter alia providing that 'In page no.5 : Under Clause 3. Technical Doc' (Code No. IS 11536:2007) will be included after 'ISI marked (3rd bullet point)'. On 8.12.2012 a reminder was sent to the respondents requesting to expedite the clarification in respect of various issues raised vide letter dated 26th November, 2012.
On 17.12.2012 by another corrigendum the respondents reverted back to the original condition and the ISI Code number was removed. Last date for submission of tender ws also extended till 9th January, 2013. On 19.12.2012, the bid submission online was initiated at 13 hours and the last date of submission of e-tender online was upto 16 hours on 9th January, 2013. The writ petitioner/respondent no.1 against made representation on 19.12.2012 to the respondents no. 2 and 3 pointing out various inconsistent terms and conditions and requested them to issue necessary clarification in this regard, but no further clarification was issued.
On 27.12.2012 the petitioner/respondent no.1 again submitted representation to the Chief Secretary, State of West Bengal, pointing out inconsistency in the tender conditions and requested him to intervene in the matter. However, nothing was done.
The petitioner/respondent no.1 has raised the question as to whether the conditions laid down in Clause (a) 3. Technical Doc para third and non-prescribing composition of recipe by the respondents in the NIT is reasonable and if not, whether the same requires deletion. It was also submitted that the aforesaid conditions have been incorporated for the benefit of particular suppliers and there was no need to restrict the number of bidders for participating in the bid process and the same was prompted by favouritism and malice.. It was also submitted the restriction that a bidder should have valid certificate issued by the Bureau of India Standard Institute (ISI) IS 11536 : 2007 for manufacturing of ISI marked cereal based food product is not only prohibitive in nature but irrelevant as it related to 'infant milk food' creating unreasonable restriction and as such, is violative of Articles 14, 19(1)(g) and 21 of the Constitution of India.
The petitioners/respondents have raised various grounds questioning the various conditions of the Notice Inviting Tender, e. g., recipe has not been given in the tender documents and has been left open to the prospective bidder to decide at its will. Other safeguards have also not been observed. The guidelines of Central Vigilance Commission, Government of India (CVC) have been violated. Evaluation criteria of the products have not been evolved. Conditions of the tender are bad in law. Other clauses with respect to penalty due to delay etc. were also questioned. Several conditions have been termed to be ambiguous and arbitrary. It is also submitted that the tenderers having manufacturing units in West Bengal and registered with World Food Programme Organisation have been favoured. No clarification regarding Department's intention to favour these manufacturing units has been provided as yet. Such conditions, which have been mentioned in the tender are illegal, vague and arbitrary. In substance, the petitioners/respondents have questioned the entire process of tender, various conditions and did not pray for participation in the process nor submitted the tender even under protest reserving the rights within the time specified in the Notice Inviting Tender.
Without calling for affidavit-in-opposition the Single Bench has directed technical bid to be placed before the Court. The State Government pointed out various deficiencies due to which the petitioners/respondents was to be adjudged ineligible in the technical bid.
The State Government had pointed out that the scrutiny of the technical bid of the petitioner, Biswamber Dayal Ramnibash Gupta, reveals that partnership firm was registered on 5th September, 2012 and therefore, (i) the mandatory condition of clause of fulfilling three years' manufacturing experience in the same area has been found to be absent, (ii) it is also observed no ISI marked was found with the bid, (iii) annual turnover of the petitioners falls below the minimum turnover required for e-tender and (iv) similar litigation was pending in other courts.
Minutes of the meeting dated 16.1.2013 have also been placed on record where it has been recorded that in compliance of the order passed by this Court off line tender was submitted though tender was invited online. It has been observed that e- procurement system of NIC for the Government of West Bengal, offline bids were not allowed. If offline bids are accepted, there is no provision in the system to include offline bidders in the automated comparison statement generated to determine the lowest bidder after the opening of the financial bid online. It has also been observed that after single offline bid was opened while trying to open online bids, it was found that it could not be opened as security certificate of one digital signature holder is not working and it was resolved to move this Court pointing out the aforesaid aspects. It was also mentioned that the State will loss the central share of assistance to implement the Rajiv Gandhi empowerment of Adolescent Girls Scheme (SABALA) if further delay is caused in tender process thereby delaying procurement as the end of the financial year is knocking at the door. As a consequence, interest of more than six lakhs beneficiaries will be seriously jeopardised and as such, the State Government will be deprived of its legitimate dues. It was further mentioned in the notes that the State Government discharged its service to the adolescent girls who are more than twelve lakhs in number in six districts to prepare themselves for a healthy adult life which will no doubt help to reduce the rate of infant and child deaths. The department has launched a programme on a trial basis for 35 days in six districts having manufactured the above food maintaining nutritional parameter prescribed by the Government of India from the ISI certified manufacturing unit who used to manufacture cereal based food. About 2409 MT. Cereal based Micronutrient Fortified Energy Dense Food has already been manufactured through a ISI manufacturing unit and has already been distributed through 137200 packets on a trial basis in six districts. Lakhs of adolescent girls have consumed without any complaints from any part of the districts since the food was palatable to them. It has been mentioned that the basic principle of this Department for manufacturing of the above rice/wheat based Micronutrient Fortified Energy Dense Food for adolescent girls from ISI certified food manufacturing unit is to strictly maintain as far as possible zero infection in food. The food should be manufactured using ingredients of best quality which shall be free from foreign materials, i.e. dirt, ferrous and non-ferrous extraneous matter and also from bad odour, excessive moisture, insect damage, fungal contamination, to strictly avoid human hands in processing like, handling, cleaning, grinding, extrusion, mixing, packaging etc., all of which are done automatically without touching by any human agency where the risk of infection is zero as far as possible.
It is further mentioned that if the above process is followed to manufacture rice and wheat based fortified Micronutrient Energy Dense Food for adolescent girls, it will ensure quality of the food which adolescent girl can consume safely. Therefore, on the basis of the above principle Women Development and Social Welfare Department had invited e- tender on pilot basis for one year for procuring Micronutrient Fortified Energy Dense Food only from ISI marked cereal based food manufacturing units where quality of food will be ensured without any doubt and adolescent girls will be able to consume safely.
This is basic principle reason why the department has made it mandatory for ISI marked manufacturing unit in the above e-tender for procurement of the above food. It was further submitted that six bidders participated in the tender process online following the e-tender floated by the Government. The details of fulfilling the parameters by various contending parties are noted in a comparative statement annexed with the note on supply e-tender. The detailed bid of the petitioners/respondents is also shown in the statement annexed with the note.
Aggrieved by the impugned order, intra court appeals have been preferred.
Mr. Sakti Nath Mukherjee, learned Senior Counsel appearing on behalf of the appellants in M.A.T. 231 of 2013, submitted that the Single Bench has ignored and overlooked the parameters of interference in the tender matters. The conditions subject to which the tenders have been invited are not ordinarily open to judicial review. The decision making process is open to judicial review and not the terms and conditions subject to which the tenders have been invited. It is also submitted that the petitioners did not submit the tender. It was open to the petitioners to submit the tender in case the petitioner wanted to participate in the process. But such step was not resorted to by the petitioners. He was only interested in questioning the terms and conditions and quashment of the entire process. He did not submit the tender in e-form but submitted the tender in physical form on 16th January, 2013 after the last date was over and after the interim order was passed by this Court on 15th January, 2013. It was not open to the Single Bench to permit filing of the tender after last date is over as that would be discriminatory vis-Ã -vis the other persons who might be situated in the same condition and have not submitted their tenders due to certain conditions mentioned in the Notice Inviting Tender. The Single Bench has also ignoredand overlooked that ISI certification was necessary with respect to the manufacturing process not with respect to the product. The distinction was completely lost sight of and the facts mentioned in the notes submitted with respect of SABLA have not been taken into consideration. Affidavit-in-opposition has not been called for and by way of interim relief, a relief has been granted to the petitioners which was not even prayed for in the writ petition. Further it was pointed out that turn over with respect of Macrosoft was also illegally taken into consideration. The turnover of Macrosoft should not be taken into consideration as Macrosoft is not dealing with the product in question on which tender was invited. With respect to the production capacity also, the decision of the Single Bench is not appropriate. The Court has also ignored the public interest involved and the certification of ISI which was necessitated to ensure that food of better quality be supplied to the adolescent girls of ensuring that they are properly fed and not subjected to various incapacities. Private interest has been given precedence and has been permitted to prevail over public interest. Such kind of final relief could not have been granted that too without finally hearing the matter. The Court cannot modify the terms and conditions of the tender invited and permit a particular person to submit tender on such changed conditions, - particularly when, participation in the process had not been prayed by the petitioner and as such, terms and conditions of the tender cannot be changed for this purpose. The learned counsel has placed reliance on the decision of the Hon'bel Supreme Court in the case reported in the case of Glodyne Technoserve Ltd. -vs- State of M. P. reported in (2011) 5 SCC 103. He has also relied upon a decision of the Hon'ble Supreme Court in the case of Monohar Lal -vs- Ugrasen and Others reported in (2010) 11 S.C.C. 557. Mr. Talukdar, learned counsel appearing on behalf of the State/Appellant in A. S. T. 38 of 2013, besides supporting the submissions raised by Mr. Mukherjee, learned Senior Counsel, has submitted that on fact also the Single Bench has not rendered a correct decision. On the question of eligibility, decision rendered is not correct with respect to production capacity, turn over and valid certificate for running the factory as well as on other aspects. Factual findings recorded are incorrect. Final relief could not have been granted by way of interim measure. Adolescent girls are going suffer a lot. Interim order which has been passed by the Single Bench granting participation of the petitioner no.1 could not have been allowed in the facts and circumstances of the case. No terms and conditions subject to which the tenders were invited could have been subjected to the adjudication at the interlocutory stage. Nothing would be left to be decided in case the impugned order is complied with. Direction had been issued to grant contract in the manner suggested by the Court. The learned counsel has relied on decisions of the Hon'ble Supreme Court in the case of Tata Cellular -vs- Union of India reported in (1994) 6 S.C.C. 651 and in the case of Larsen and Toubro Limited & Anr. -vs- Union of India and Others. reported in (2011) 5 SCC 430. In the case of Larsen and Toubro Limited & Anr. (Supra), the Apex Court has referred the decision of Ramana Dayaram Shetty -vs- International Airport Authority of India reported in (1979) 3 SCC 489. The Apex Court has laid down that where tenders are invited for grant of government contract, the standard of eligibility laid down in the notice for tenders could not be changed arbitrarily as that would be hit by the provisions of Article 14 of the Constitution. It is also trite law as held by the Apex Court in the case of Monarch Infrastructure (P) Ltd. -vs- Commissioner, Ulhasnagar Municipal Corporation and Ors. reported in (2000) 5 SCC 287 that rules of the game cannot be changed once players have entered into the arena. The order of the Single Bench was changed the rules when process of tender was already over. Such interference even if permissible at the time of final stage, could not have been made by the interim order. Mr. Datta, learned counsel appearing with Ms. Sumita Shaw, for the writ petitioners/respondents, has submitted that the petitioners have come to the Court challenging the various conditions, which could not have been imposed. The conditions are discriminatory and large number of persons have been deprived by the conditions so imposed from participating in the e-tender process. Conditions subject to which tenders were invited rendered the entire process irrelevant and it cannot be said that level of playing field has been granted to all the players. ISI certification has been provided in paragraph bullet point number 3 of clause 3 of Section A of the tender process with respect to the project. He has submitted that there is no certification issued vis-Ã -vis the product by the Bureau of Indian Standard for which NIT has been invited and no clarification was provided in that regard. Thus, the condition was impossible to be complied with and, hence, impermissible. He has further submitted that for manufacturing process also no such certification is provided by the Bureau of Indian Standard. Thus, insisting for even certification of manufacturing process for the kind of product for which tenders have been invited is illegal and arbitrary. It has deprived a large number of persons from submitting tenders. The learned counsel further submitted that the decision rendered by the Single Bench with respect to the turn over of Macrosoft was taken in the light of the decision of the Hon'ble Supreme Court in New Horizons Ltd. & Anr. -vs- Union of India & Ors. reported in (1995) 1 SCC 478. The learned counsel further submitted that with respect to capacity of production certificate issued by Rajasthan Pollution Control Board is sufficient. Thus the point of disqualification with respect to the technical bid as submitted by the Respondent State has rightly been overruled by the Single Bench. It was further submitted that factory licence is also in the name of one of the partners and the partner is doing business in the factory and as such, petitioner complied with the conditions of the tender. Hence, it could not be said that the petitioner was not eligible in the technical bid. The decision of the Single Bench overruling objections to the technical bid raised by the State is appropriate and no case for interference is made out. It is also submitted that the State Government has given contract as interim measure to the Co-operative Society to supply the food to adolescent girls. Thus the public interest is not going to suffer as money is not going to waste. The learned counsel has further submitted that either the entire tender process be stayed or no interference be made in the impugned order. He has also taken us through various conditions which according to the petitioners/respondents are not correct and are illegal and arbitrary. Thus the learned counsel has submitted that it is a case where the relief as prayed for should have been ordered by the Single Bench. In the facts and circumstances of the case, the order passed by the Single Bench is appropriate and no case for interference is made out. After hearing the learned counsel for the parties, we are of the considered opinion that in the instant case kind of order which has been passed by the Single Bench ought not to have passed by way of interim measure. At the outset, we clarify that we are dealing with the matter so far as it relates to decide the reliefs granted at the interim stage. We make it clear that we are not deciding the case on merits; any observation made by us shall not influence the ultimate decision to be rendered by the Single Bench in the case on merits at the final stage upon exchange of affidavits.
It is trite law that the terms and conditions subject to which the tenders have been invited are not open to judicial scrutiny. The parameters of interference in such matters have been laid down vividly by the Hon'ble Supreme Court in the case of Tata Cellular (supra). The Apex Court has laid down that judicial review is concerned with reviewing not the merits of the decision in respect of which judicial review is sought, but the decision-making process itself. Thus it is different from the appeal. When hearing an appeal the Court is concerned with the merits of the decision under appeal. Since the power of judicial review is not an appeal from the decision, the Court cannot substitute its own decision. Apart from the fact that the court is hardly equipped to do so, it would not be desirable either. Where the selection or rejection is arbitrary, certainly the Court would interfere. It is not the function of a judge to act as a superboard, or with the zeal of a pedantic school master substituting its judgment for that of the administrator. The Apex Court in Tata Cellular's case (supra) has further laid down that duty of the Court is thus to confine itself to the question of legality. Its concern should be - (1) whether a decision-making authority exceeded its power, (2) committed an error of law, (3) committed a breach of the rules of natural justice, (4) reached a decision which no reasonable tribunal would have reached, or (5) abused its powers. Therefore, it is not for the Court to determine whether a particular policy or particular decision taken in the fulfilment of that policy is fair. It is only concerned with the manner in which those decisions have been taken. Shortly, the grounds upon which an administrative action is subject to control by judicial review can be classified as under :
(i) Illegality: This means the decision-maker must understand correctly the law that regulates his decision- making power and must given effect to it.
(ii) Irrationality, namely, Wednesbury unreasonableness. It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at. The decision is such that no authority properly directing itself on the relevant law and acting reasonably could have reached it.
(iii) Procedural impropriety.
Principle of Wednesbury unreasonableness has to be applied to the facts of the case. It is further laid down that two other facets of irrationality may be mentioned. It is open to the court to review the decision-maker's evaluation of the facts. The court will intervene where the facts taken as a whole could not logically warrant conclusion of the decision-maker. It is only in the case of overwhelming and weight of facts the court can interfere and not otherwise. The decision would be regarded as unreasonable if it is impartial and unequal in its operation as between different classes. The Apex Court has further laid down that modern trend points to judicial restraint in administrative action. The court does not sit as a court of appeal but merely reviews the manner in which the decision was made. The court does not have expertise to correct the administrative decision. If a review of the administrative decision is permitted it will be substituting its own decision without the necessary expertise which itself may be fallible. The terms of invitation to tender cannot be open to judicial scrutiny because the invitation to tender is in the realm of contract. The tender or award be contract is reached by process of negotiation through several tiers. Apart from the fact that the Government must have freedom of contract. In other words, a fair play in the joints is a necessary concomitant for an administrative body functioning in an administrative sphere or quasi-administrative sphere. The decision must not only be tested by the application of Wednesbury principle of reasonableness, but must be free from arbitrariness not affected by bias or actuated by mala fides. Quashing decision may impose heavy administrative burden on the administration and lead to increase an unbudgeted expenditure. The Apex Court has summed up the conclusion thus :
(1) The modern trend points to judicial restraint in administrative action.
(2) The court does not sit as a court of appeal but merely reviews the manner in which the decision was made. (3) The court does not have the expertise to correct the administrative decision. If a review of the administrative decision is permitted it will be substituting its own decision, without the necessary expertise which itself may be fallible. (4) The terms of the invitation to tender cannot be open to judicial scrutiny because the invitation to tender is in the realm of contract. Normally speaking, the decision to accept the tender or award the contract is reached by process of negotiations through several tiers. More often than not, such decisions are made qualitatively by experts. (5) The Government must have freedom of contract. In other words, a fair play in the joints is a necessary concomitant for an administrative body functioning in an administrative sphere or quasi-administrative sphere. However, the decision must not only be tested by the application of Wednesbury principle of reasonableness (including its other facts pointed out above) but must be free from arbitrariness not affected by bias or actuated by mala fides. (6) Quashing decisions may impose heavy administrative burden on the administration and lead to increased an unbudgeted expenditure.
Considering the aforesaid principle when we enter into the gamut of the facts of the instant case, we find that Single Bench has interfered with the essential condition subject to invitation of tender from ISI manufacturing process to have ISI certification. Earlier the condition which was mentioned was modified and particularly ISI certification was mentioned with respect to the product. Mistake was realised on the representation being made by the petitioner/respondent no.1 and then corrigendum was issued to meet the condition with reference to the process of ISI certification, the tenderers must have ISI certification with respect to process of manufacture. It is apparent from the corrigendum issued that what was meaning of condition. Apart from that, it is apparent, condition has been added for a cogent purpose by the State Government in order to ensure that the food manufacturing unit maintains as far as possible zero infection in food. The food should be manufactured with using ingredients of best quality which should be free from foreign materials, i.e. dirt, ferrous and non- ferrous extraneous matter and also from bad odour, excessive moisture etc. as pointed out and mentioned hereinabove in the notes of SABLA e-tender. ISI certification has been insisted in processing like handling, cleaning, grinding, extrusion, mixing, packaging etc, all of which is done automatically without touching by any human agency where the risk of infection is zero as far as possible to meet the quality of food for adolescent girls so that they can consume safely. The condition has been imposed to ensure the quality of food. In our opinion, the Single Bench is erred in law in appreciating the condition. It is with respect to the process of manufacturing and not with respect to the product as apparent from the corrigendum issued by the State Government. Apart from that prima facie it was not open to the Single Bench to interfere with the aforesaid condition which prima facie appears to be wholesome for the aforesaid purpose. It is also apparent that various complaints have been coming from various authorities that proper food is not supplied under such welfare schemes and substandard food is being supplied. Allegations have come before us that after consuming such substandard food which is being supplied, children have suffered from ailments like diarrhoea etc., and such complaints are galore. Thus, the condition which has been imposed in order to ensure quality of the food supplied for adolescent girls through proper manufacturing process of BIS standard cannot be prima facie termed as arbitrary, prohibitive or irrational. Such scheme which has been framed is to ensure that girls who belong to age group of 11 to 18 years are properly looked after. The project has been prepared by the Government of India and the significant stress on quality food cannot be ignored and overlooked. Such condition which has been imposed is wholesome and prima facie cannot be interfered while making judicial review. In case such a condition is required to be set aside, then the Single Bench could have done it only at the time of final hearing and not by way of interim order as has been done in the instant case. In case the condition that ISI certification with respect to manufacturing process goes, there shall be several other incumbents who might have applied, as submitted by Mr. Datta, learned counsel appearing on behalf of the petitioners/respondents, that prohibitive condition has been imposed and condition has been designed in such a manner so as to oust most of the players in the field, i.e. from participation in the process of tender cannot be accepted in the light of supervening public interest of supplying quality food through ISI certified manufacturing process to adolescent girls. We are unable to accept the submissions raised by Mr. Datta that ISI certification was required with respect to the product. We have no hesitation to reject the aforesaid submission considering the corrigendum in the backdrop of the representation made by the petitioners/respondents on which the State Government had acted. The participation of the petitioners/respondents de hors the aforesaid condition was wholly unwarranted. Apart from the participation of the petitioners/respondents by setting the aforesaid condition subject to which the tender was invited, the petitioners/respondents had not even prayed for participation in the tender process in the writ application itself. Once he has not prayed for relief, such relief should not be granted.
235) this Court considered the issue as to whether relief not asked for by a party could be granted and that too without having proper pleadings. The Court held as under: (AIR p.240, para 22) "22..... It is well settled that the decision of a case cannot be based on grounds outside the pleadings of the parties and it is the case pleaded that has to be found. Without an amendment of the plaint, the court was not entitled to grant the relief not asked for and no prayer was ever made to amend the plaint so as to incorporate it it an alternative case." A similar view has been reiterated by this Court in Krishna Priya Ganguly v. University of Lucknow and Om Prakash v. Ram Kumar observing that a party cannot be granted a relief which is not claimed. Dealing with the same issue, this Court in Bharat Amratlal Kothari v. Dosukhan Samadkhan Sindhi held: (SCC p.246, para 30) "30. .... Though the court has very wide discretion in granting relief, the court, however, cannot, ignoring and keeping aside the norms and principles governing grant of relief, grant a relief not even prayed for by the petitioner." In view of the above, law on the issue can be summarised that the court cannot grant a relief which has not been specifically payed by the parties. The instant case requires to be examined in the light of the aforesaid certain legal propositions."
As the petitioner had in fact not participated in the entire process and did not submit the tender till 9th January 2013 which was the last date of submitting e-tender, did not make any prayer to permit it to participate in the tender process subject to which the tenders have been invited, relief of permitting interim participation after the date of submitting the tender was over that too in the physical form whereas the tender was invited in e-form, could not have been granted by way of interim measure. Affidavit-in-opposition ought to have been called for in such case and such case should have been decided at the earliest as public interest was involved. In case interference was required, public interest could not be ignored and by virtue of the interim order which has been passed, the entire process has stood, in our considered opinion, vitiated. The participation of the incumbent is not in terms of the tender and could have been ordered by way of interim order and his financial bid could not have been directed by the Single Bench to be opened nor it could be direction that in case the financial bid of the petitioners/respondents was lowest, no contract be awarded without leave of Court. Thus, virtually the writ petition has been decided by way of interim order without calling for affidavit-in-opposition. In such a matter, normally interim stay should not be granted except in exceptional circumstances. Such exceptional circumstances were not available in the instant case. In our considered opinion, the decision of the Single Judge in respect of the validity of the aforesaid condition, subject to which the tenders were invited itself, cannot be said to be proper. We need not enter into the other aspects with respect to annual turn over, certificate of having requisite production capacity, factory license and experience of three years and various other aspects raised by the learned counsel as adverted to by the Single Bench. Suffice it to observe with respect to the process of manufacture that Macrosoft whose turn over has been taken into consideration is a company dealing in shares, securities and other investments as apparent from the certificate of Chartered Accountants with regard to the assessment year 2012-13. It has been submitted by the learned counsel appearing on behalf of the State, that the said document had been filed by the petitioner/respondent no.1 with the technical bid.
Thus, prima facie it appears, without meaning to finlly decide such question, when a company is dealing with shares, securities and investment its turnover for the assessment year 2011-12 could not have been taken into consideration with respect to the kind of product for which the tender was invited. No doubt it was submitted by Mr. Datta, learned counsel that it is with respect to the financial capacity that the turn over has to be assessed and hence such turn over may be of other businesses also. However, this question is not so simple and has to be gone into at the time of final decision whether the turn over of different business can be considered particularly when the stand of the State Government is that turn over with respect to the particular product is insisted so as to ensure that the tenderer has sufficient business and its product is having sufficient circulation and same is also one of the parameters relating to quality and acceptance of the product by the public at large. Thus turn over of the kind of goods for which the tender was invited may be a parameter to be taken into consideration though it was not rightly disputed that turn over of consortium can also be taken into consideration while considering the total turn over. It was also submitted that in the terms and conditions subject to which the tender has been invited, at one place it has been mentioned the annual turn over has to be considered and at another place it was mentioned that average of the annual turn over of three years has to be taken into consideration. Thus, even if turn over is less in one year could not have been a ground to reject the tender, average of the turn over of three years has to be taken into consideration.
In our opinion, whether the turn over of Macrosoft could have been included was not a question which could be decided without calling for the affidavit-in-opposition from the parties considering their stands. Thus the decision by way of interim stage on the aforesaid aspect cannot be said to appropriate. The aforesaid aspect is also to be gone into at the time of final decision.
It was also submitted by Mr. Datta, learned counsel appearing on behalf of the petitioners/respondents that recipe was not provided in the tender. Thus it was a vague condition. In case the condition was vague and tender could not have been submitted there could not have been any interim order in the nature which has been passed by the Single Bench in the facts of the instant case. The tenders have been submitted under the order of the Court. Thus it is also a question to be gone into whether the entire process is to be considered to be vitiated with reference to the aforesaid condition. It could not have been gone into at interim stage and that too by way of interim order as it may affect other players in the field.
With respect to the production capacity, certificate of Rajasthan Pollution Control Board has been relied upon. In such cases where respondents to be held to be suitable to participate in the process of tender, final decision is required to be rendered. This condition subject to which technical bid has been disqualified should not normally be the subject matter of interim order. This aspect has to be considered after the entire facts are pleaded and documents are before the Court. Thus, decision cited by the Single Bench on this aspect cannot be said to be sustainable. Even if the parties have acquiesced, it ought not to have been decided by way of interim order; it should be decided at the time of final hearing.
We place it on record that the learned counsel appearing on behalf of the State, has submitted that capacity mentioned in the Certificate of Rajasthan Pollution Control Board is not acceptable to them. However, such stand has to be taken before the Single Bench by way of appropriate pleading in the affidavit-in-opposition and then only it can be properly adjudicated.
Coming to the question with respect to the registration of partnership firm, the partnership firm of the petitioner no.1 appears to have been registered on 5th September, 2012. However, it was submitted by Mr. Datta that only one new partner was inducted. Earlier there was a partnership firm which was doing the same business and was registered in the year 2002, but original partnership deed of 2002 was not placed on record. Thus, this question could not have been effectively adjudicated in the absence of entire documents. Thus, in our considered opinion, by way of interim relief, the aforesaid aspect ought not to have decided by the Single Bench.
It was also submitted that since the State had permitted 5% processing loss after submission of bids by the tenderers on 9th January, 2013, it was appropriate for the Single Bench to allow participation of the petitioners/respondents subject to giving benefit of the aforesaid condition. In our considered opinion, when tender was not submitted by the petitioners/respondents within the specified date, normally it is not to be ordered by the Court that the petitioners will submit the tender in a different form than the form in which e-tenders have been invited. Here, in the instant case, the tender in the physical form was permitted to be submitted. That was not appropriate in our opinion considering the particular relief as prayed for in the petition. Even if the Government has specified 5% processing loss, the same could not have been a ground to permit participation by the incumbent who has not submitted the tender. It is also to be considered whether such conditions can be clarified after the tender is submitted or it is necessary to specify them in the NIT itself. But in no case, in our opinion, the specification of 5% processing loss could have given an entitlement to the petitioners/respondents to submit the tender beyond the tender date and that too in another form in which tender was not invited.
The Single Bench has virtually set out the terms and conditions of the tender by the interim order itself which is prima facie, in our opinion, is quite impermissible as that may palpably violateArticle 14 of the Constitution of India, with respect to other players who have submitted the tenders as well as those who have not submitted the tenders but were similarly situated with the petitioners/respondents. It has been observed by the Apex Court in Monarch Infrastructure (P) Ltd. -vs- Commissioner, Ulhasnagar Municipal Corporation and Others reported in (2000) 5 SCC 287 that if a term of the tender was deleted after the players entered into the arena it was like changing the rules of the game after it had begun and, therefore, if the Government or the Municipal Corporation was free to alter the conditions fresh process of tender was the only alternative permissible. Thus, in the instant case rules of game have been changed by the interim order itself which could not have been done and even if rules of game are changed in respect of a party, the deprivation of chance of participation of others cannot be ruled out. Thus, the impugned order cannot be said to be sustainable. We set aside the order passed by the Single Bench dated 1st February, 2013. As sequel it follows that the financial bid of the petitioner no.1/respondent no.1 cannot be considered. We, however, keep all questions open for decision by the Single Bench at the final stage.
Apart from that, in our opinion, the petitioner no.1/respondent no.1 having failed to submit the tender could not have participated in the process of tender.
Thus, both the appeals are allowed. Consequently, the applications are also disposed of.
It is open to the State Government and other authorities to proceed with the tender process considering the e-tenders which was submitted and to take final decision and to give contract also. That would be, in our considered opinion, considering the interest of the adolescent girls to get appropriate food by the appropriate manufacturer having ISI certification for manufacturing process which ensures quality food and rules out infection etc. and to ensure appropriate process of manufacturer as enumerated in the note submitted by the State Government. The public interest has to prevail in such matter and not private interest. We have no hesitation in setting aside the impugned order.
Resultantly the appeals are allowed. The interim orders dated 15th January, 2013 and 1st February, 2013. The action taken by the State shall be subject to the final outcome of the writ petition. We request the Single Bench to decide the writ petition as far as possible within six weeks after obtaining affidavit-in-opposition from the respective parties.
The parties shall bear their own costs.
Mr. Datta, learned counsel appearing on behalf of the petitioners/respondents, has prayed for stay of the order. Considering the public interest and also the fact that financial year is coming into an end, the contract has to be granted for utilising the money within the time bound framed, we are not inclined to grant stay.
(Joymalya Bagchi, J.) (Arun Mishra, Chief Justice)
