JUDGMENT M. Katju, J.
1. Contracts awarded by the Government or some statutory body or an instrumentality of the State are often worth crores of rupees. It is, therefore, absolutely essential that there should be transparency in grant of such contracts so as to avoid public criticism.
2. In the present case, the challenge is to the grant of the contract in question by the respondent No. 1 Bharat Sanchar Nigam Ltd. (in short B.S.N.L) to the respondent No. 6 and for quashing the impugned letter dated 13.1.2003, Annexure-12 to the writ petition.
3. Heard learned counsels for the parties.
4. The respondent No. 1 is a Government of India undertaking which is engaged in providing telecommunication facilities all over the country and it is an instrumentality of the State under Article 12 of the Constitution. The respondent No. 1 decided to start cellular telephonic service in west U. P. including district Badaun and decided to appoint distributors and dealers in this connection. For this purpose, the respondent corporation issued a public advertisement on 15.7.2002, inviting tenders from eligible persons for appointment as dealer/distributor of cellular service in different districts including district Badaun. The eligibility conditions are specified in the advertisement, photocopy of which is Annexure-1 to the writ petition.
5. It is alleged in paragraph 6 of the writ petition that the petitioner fulfilled all the eligibility requirements for appointment as distributor in district Badaun. The petitioner submitted technical bid along with necessary documents, viz., experience certificate, turnover certificate, sales tax/income-tax clearance certificate, site plan of proposed space with dimension and location, etc. and demand draft of Rs. 2 lacs. The petitioner also submitted financial bid containing the percentage of commission schedule in separate envelops within the stipulated time. Photocopy of the relevant extracts of the bid are Annexures-2 and 3 to the writ petition.
6. The technical bids of the tenderers were opened in the office of the respondent No. 2, Chief General Manager (Telecommunication), U. P. (West) on 1.8.2002, in presence of the applicants and their representatives who were informed that the technical bids will be evaluated and they will be informed about it in due course. The B.S.N.L. informed the petitioner by letter dated 27.8.2002 that its technical bid for distributorship of cellular mobile service has been accepted and financial bids will be opened on 4.9.2002, in the Conference Hall of respondent No. 2 in presence of applicants or their representatives. True copy of the letter dated 27.8.2002 is Annexure-4 to the writ petition.
7. In paragraph 10 of the writ petition it is stated that the financial bids were opened on 4.9.2002, in presence of the applicants and their representatives. The commission offered by the petitioner firm in the financial bid was 45%, that offered by the respondent No. 6 was 57% and that offered by Sri Dinesh Chand Vaishya was 74.98%. Thus, the petitioner's financial bid was the lowest. It is alleged that the petitioner should have been granted the contract. However, it is alleged in paragraph 12 that the petitioner heard rumours that despite her financial bid being the lowest, the respondent corporation was interested in granting the distributorship in favour of respondent No. 6 although the declaration of the respondent No. 6 in its technical bid about its experience in dealing with fast moving consumer goods, turnover during 2001-2002 and the availability of commercial space was found to be wrong and complaints regarding the said wrong declaration by respondent No. 6 were received in the office of the respondent No. 2.
8. The petitioner, against the alleged arbitrary action and favouritism in favour of the respondent No. 6, submitted a representation to the respondent No. 2 on 18.9.2002 and also sent a representation dated 20.9.2002 to the Minister of Communication, Union of India. The petitioner made another representation dated 23.9.2002 before the respondent No. 2 stating that the contract should be settled in petitioner's favour.
9. It is alleged in paragraph 13 of the writ petition that the respondent No. 6 did not possess the eligibility criteria for distributorship inasmuch as he did not have the turnover of Rs. 25 lacs in 2001-2002, nor had two years experience in dealing with fast moving consumer goods nor had any available commercial building at his disposal on the date of opening of the tenders and he submitted a wrong declaration to that effect in his technical bid. When this fact was known, several complaints were submitted before the respondent No, 2 against the respondent No. 6 and it was requested that the credentials of respondent No, 6 should be verified from the sales tax and income tax authorities. The respondent corporation by letter dated 21.9.2002, directed complainants Mohd. Tariq and Sunil Kumar to attend the office of the respondent No. 4 along with original complaint and other documents in support of the complaint. Accordingly, the said complainants appeared before the respondent Nos. 2 and 4 personally and submitted the complaint with an affidavit and requisite documents from the competent authority viz., the sales tax department. True copy of the letter of the corporation addressed to Mohd. Tariq and true copy of the complaint submitted by Mohd. Tariq along with affidavit and certificate issued by the sales tax department showing that the turnover of respondent No. 6 during 2001-2002 was nil are respectively Annexures-8 and 8A to the writ petition. The petitioner sent another representation dated 24.12.2002 vide Annexure-10 to the writ petition.
10. However, it is alleged that despite these representations and protests, the respondent corporation arbitrarily and illegally granted distributorship to respondent No. 6 whose financial offer was 57% i.e., 12% higher than the petitioner's offer and he had no available business place either on the date of the tender or even till date. It is alleged that no accommodation was disclosed by the respondent in the technical bid, so much so that the respondent No. 6 requested for change of location of showroom to another place as the place suggested by it was not found suitable by the respondent No. 4. Despite rejection of the request for change of location, the respondent No. 2 allowed further relaxation of one month to enable respondent No. 6 to arrange for a showroom. It is alleged that there is clear favouritism and arbitrariness on the part of the corporation in granting distributorship in favour of the respondent No. 6.
11. In the counter-affidavit filed on behalf of the respondent Nos. 1 to 5, the main stand taken by the corporation as stated in paragraphs 7, 8, 12, 13 and 15 was that 75% weightage was given to financial bid and 25% was given to technical bid. Hence, the tender was decided taking into consideration the weightage of both the technical bid (experience and showroom space) and financial bid. No doubt the petitioner has offered the lowest rate of commission in the financial bid but financial bid alone was not the basis of granting the distributorship. As stated in paragraph 8 of the counter-affidavit, after adding weightage of technical and financial bid the petitioner was ranked at No. 2 and the respondent No. 6 at No. 1. Hence, the contract was awarded to respondent No. 6.
12. It is alleged in the counter-affidavit that the evaluation of the bids was carried out by a High Level Committee consisting of eminent persons as stated in paragraph 8. These persons consisted of two General Managers and one Deputy Manager of B.S.N.L. and two Professors of Institutes of Management. The details of the marks given to the three parties who were considered are given in paragraph 8 of the counter-affidavit.
13. In paragraph 9 of the counter-affidavit it is stated that the respondent No. 6 fulfilled all the conditions in the tender. No doubt complaints were made by Mohd. Tariq and Sunil Kumar but when they were asked to be present in the office of the respondent No. 4 on or before 30.9.2002 along with the original complaint and documents, no one turned up. In paragraph 11 of the counter-affidavit it is stated that the tender evaluation committee consisted of five persons including two Professors of highly reputed institutions of the country apart from the senior officers of B.S.N.L.
14. Regarding change of location of the showroom it is stated in paragraph 12 of the counter-affidavit that the respondent No. 6 requested to allow the change of location to a new place other than that offered by him in the tender document. The new location offered by the respondent No. 6 was not found suitable for the showroom and hence the respondent No. 6 was asked to make his showroom as originally offered in the technical bid. In the letter dated 13.1.2003 the respondent No. 4 simply asked the T.D.M., Badaun, to give one month's time to the distributor, to get his showroom ready. This is as per para 26.2 of the agreement form supplied with the technical bid.
15. A counter-affidavit has also been filed on behalf of the respondent No. 6 and we have perused the same. In paragraph 14 it is stated that the certificate dated 29.1.2002 annexed as Annexure-8A to the writ petition is a forged and fabricated document and that can be verified by the issuing authority. True copy of the certificate dated 29.7.2002 issued by the Trade Tax Officer, Badaun, is Annexure-C.A. 1.
16. We have also perused the rejoinder-affidavit.
17. In our opinion, there is no merit in this petition. As can be seen from the counter-affidavit of the Corporation, a High Power Committee consisting of three senior officers of B.S.N.L. and two Professors of the Management evaluated the bids. No doubt the financial bid of the petitioner was the lowest, but the distributorship of Badaun district was not granted on the basis of financial bid alone but on the basis of both technical and financial bids. It is mentioned in paragraphs 8, 13 and 15 of the counter-affidavit of the Corporation as to how the evaluation was done, and it is not proper for this Court to interfere with the same. It may be mentioned that this Court has limited scope of interference in administrative matters vide Tata Cellular v. Union of India, AIR 1996 SC 11. It is open to the administrative authorities to frame any objective criteria for grant of the distributorship, and it is not for this Court to sit in appeal over the decision of the administrative authorities.
18. This Court should maintain judicial restraint in such matters and should not interfere unless it is a clear case of arbitrariness and favouritism. We cannot agree that there were arbitrariness and favouritism in this case. There were objective criteria for grant of the distributorship and there was a High Power Committee consisting of five persons to evaluate the bid.
19. As is evident from the counter-affidavit of the Corporation, it was not the financial bid which alone was taken into consideration by the High Power Committee but it was both the financial as well as the technical bid which was considered and on that basis the evaluation was done. It would not be proper for this Court to sit in appeal over the decision of the High Power Committee in making evaluation of the bid or in fixing the criteria for selection.
20. It must be remembered that certain matters are by their nature such as best be left to experts in the matter. This Court does not have the technical and administrative expertise in this respect.
21. In the words of Chief Justice Neely :
"I have very few illusions about my own limitations as a Judge. I am not an accountant, electrical engineer, financer, banker, stockbroker or system management analyst. It is the height of folly to expect Judges intelligently to review a 5,000 pages record addressing the intricacies of public utility operation. It is not the function of a Judge to act as a super board, or with the zeal of a pedantic school master substituting its judgment for that of the administrator."
22. As held in Tata Cellular v. Union of India (supra), judicial review of administrative decisions is against the decision making process and not against the merits of the decision. In the same decision, it was also held that the modern trend points to judicial restraint in administrative action and the Court does not sit as a court of appeal over administrative decisions as it does not have the expertise in this connection. The Government must have freedom of contract and a fair play in the joints is a necessary concomitant for an administrative body functioning in an administrative sphere. No doubt the decision can be tested by the application of Wednesbury principle of reasonableness and should be free from arbitrariness, bias or mala fide but otherwise this Court should not interfere with such decisions. This decision was followed by a Division Bench decision of this Court in P.K. Misra v. Indian Oil Corporation Ltd. and Ors., 2002 (4) AWC 3221.
23. In Federation of Railway Officers Association v. Union of India, 2003 (4) SCC 289, the Supreme Court held that matters relating to policy and requiring technical expertise should be left for the decision to those qualified to address the issue and the Court should not interfere unless the decision is arbitrary or irrational.
24. In State of Punjab v. Ram Lubhaya Bagga, 1998 (2) AWC 2.86 (SC) (NOC) : 1998 (4) SCC 117, the Supreme Court held that the wisdom of policy framed by the administration cannot be judiciously scrutinized by the Court.
25. In the present case, a High Power Committee consisting of eminent persons has fixed the objective criteria for evaluation of bids and has done the evaluation itself. The members of the committee are all senior persons who are experts in the field. As stated above, this Court cannot sit in appeal over this decision.
26. As regards the allegation in the petition that the respondent No. 6 did not have the eligibility requirement, these facts have been denied in the counter-affidavit of respondent No. 6 and hence this Court under Article 226 cannot go in these factual controversies. Annexure-C.A. 1 is the certificate of the Trade Tax Officer, Badaun, who has stated that the respondent No. 6 was registered with it. It is alleged by the respondent No. 6 that the petitioner submitted a forged document.
27. Thus, there is no force in this petition and it is dismissed. The interim order is vacated.