By consent, the writ petition is taken up for final disposal.
2.The above writ petition has been filed for a issue of Writ of Certiorarified Mandamus, to call for the records relating to the order of the second respondent in proceedings Na.Ka.No.702425/03KV.Va.1, dated 18.04.2006 and quash the same and direct the second respondent to allow the petitioner to participate in the tender proceedings for supply of item pumps and pars.
3.The petitioner has stated that it is a partnership firm engaged in manufacturing of hand pumps and products and they are registered as small scale industries before the District Industries Centre, Tiruchirappalli. The product manufactured by the petitioner is certified by the Bureau of Indian Standards and they are in possession of a valid licence. The petitioner has been recognised by the National Small Scale Industries Corporation Limited and included in the list of suppliers and they have been supplying hand pumps to the said Corporation from 16.09.2008. The petitioner also stated that they have been certified by an organisation and they have confirmed to the standard prescribed in ISO 9001-08 for the period 14.01.2009 to 31.01.2012.
4.The petitioner would further submit that the second respondent had issued a proceeding dated 18.04.2006 directing all the District Collectors, Assistant Directors of Panchayats in all Districts and Assistant Executive Engineer/Power Pump Maintenance Officer in all Districts to call for tenders for the supply of hand pumps only for such of those industries having 4 to 5 years experience in the field. The petitioner would further submit that the insistence of the prior experience is not required since the Industries Department of Government of Tamil Nadu is accepting tenders from the small scale industries which are manufacturing quality products without insisting upon such prior experience. Therefore, two limbs of the Government cannot have different yardsticks for supply of very same product. The petitioner would place reliance upon a Government Order in G.O.Ms.No.84, Rural Development Department, dated 05.05.1998 and contend that the Government has approved the purchase of hand pumps from local market from the contractors by calling for tenders and by another G.O.Ms.No.195, Finance Department, dated 04.05.1998, the Government has only insisted upon purchase preference to be granted to small scale industries while effecting purchase.
5.The grievance of the petitioner is that by virtue of the impugned proceedings dated 18.04.2006 their right to participate in the tender has been affected. The petitioner would further contend that the impugned order is against the G.O.Ms.No.195 dated 04.05.1998 and G.O.Ms.No.84 dated 05.05.1998. On these grounds, the petitioner seeks an order for quashing the proceeding dated 18.04.2006 which is impugned in this writ petition.
6.The second respondent has filed counter affidavit inter alia contending that the writ petition is not maintainable and that it is misconceived since the Government orders relied on by the petitioner did not direct the executive authorities to desist from prescribing other conditions in the interest of public. The second respondent would further contend that it does not call for tender for finalising the rate contract of the water supply materials for hand pumps and power pumps. Once, the rate contract is finalised by the District Purchase Committee headed by the District Collectors concerned, the Village Panchayats can purchase the water supply materials at the rate contract fixed. It is in the public interest that best quality materials from the experienced manufacturers are approved by the District Purchase Committee. Such materials should be long lasting, durable and of high quality. Even in common purchase, materials manufactured by experienced suppliers are preferred to the materials manufactured by the newcomers. This is a case where materials for essential water supply systems are purchased for the benefit of rural public by the village panchayats. Hence, in the interest of public, the then Director of Rural Development has issued instructions in his letter Rc.No.702425/03/W.S., dated 18.04.2006, which is impugned in the writ petition.
7.The second respondent would further contend that the executive instructions issued are in public interest and they are not contrary to the Government orders. The second respondent would further contend that the third respondent as the tender inviting authority in exercise of his powers under Tamil Nadu Transparency in Tenders Act, 1998 is vested with sufficient powers to stipulate conditions in the notification by invoking Rule 32 of the Rules framed under the Act.
8.The second respondent would also contend that the condition is imposed only to ascertain creditability and reliability of the company's previous experience, previous orders and supplying capacity etc., The second respondent would also contend that this Court in a judgment reported in AIR 2003 NOC 493 (Madras), (A.Gopal Vs.Airport Authority of India) has upheld the conditions imposed in respect of tenders called for by the Airport Authority of India and that the Court cannot interfere with such conditions.
9.The third respondent filed a separate counter affidavit, while reiterating the contentions raised by the second respondent, would contend that the public interest is para-amount and the intending tenderer are estopped to make any vague attempt in questioning the tender conditions rather than making them eligible to participate in the tender.
10.Heard Mr.S.Muthukrishnan, learned counsel for the petitioner and Mr.Pala.Ramasamy, learned Special Government Pleader appearing for the respondents and perused the materials available on record.
11.Learned counsel for the petitioner would contend that the petitioner had applied under the provisions of the Right to Information Act by submitting a petition on 16.02.2008 seeking for certain information from the Government. In response to such request, the Information Officer by proceedings dated 09.05.2008 informed the petitioner that in respect of supply of materials manufactured by tiny and small scale industries by participating in tenders, no prior experience is mandatorily required. Therefore, learned counsel would contend that the Government having clarified, the respondents 2 and 3 cannot act contrary to the said clarification. Learned counsel for the petitioner would further contend that this condition is not being uniformly applied by all the District Collectors in the State and only selectively applied. Further, though the impugned communication was issued on 18.04.2006, in the previous tenders, the same has not been applied. On this ground, the learned counsel for the petitioner prayed for allowing the writ petition.
12.Learned Special Government Pleader appearing for the respondents at the outset would submit that the prayer in the writ petition is not maintainable, since the impugned proceedings dated 18.04.2006 is an interdepartmental communication and the petitioner cannot seek for quashing the same. Secondly, the learned Special Government Pleader would submit that the information obtained under the Right to Information Act in proceedings dated 09.05.2008 more particularly Clause-8 therein cannot be an embargo for the respondents to impose the condition while inviting the tenders. He would further contend that it is purely a commercial transaction and the purchasing body is entitled to stipulate conditions and the present condition has been stipulated in public interest.
13.The learned Special Government Pleader would also rely upon Rule 32 of the Tamil Nadu Transparency in Tenders Rules, 2000 and contend that the tender inviting authority is competent to impose such conditions and prayed for dismissal of the writ petition.
14.Before proceeding into the facts of the case, it is useful to refer to the powers of the Tender Inviting Authority as contemplated under Rule 32 of the Tamil Nadu Transparency in Tenders Rules, 2000, for the purpose of this case, which reads as follows:
"32.Pre-qualification procedure-1)The Tender Inviting Authority shall, for reasons to be recorded in writing, provide for pre-qualification of tenderers on the basis of,-
(a)experience and past performance in the execution of similar contracts;
(b)capabilities of the tenderer with respect to personnel, equipment and construction or manufacturing facilities;
(c)financial status and capacity.
(2)Only the bids of pre-qualified bidders shall be considered for evaluation".
15.In terms of Rule 32, the Tender Inviting Authority namely, the third respondent herein is entitled to stipulate conditions regarding the capabilities of the tenderers with respect to the personnel, equipment and construction or manufacturing facilities. Therefore, the objection raised by the petitioner cannot be sustained in view of the fact that the Tender Inviting Authority is statutorily empowered to impose conditions while effecting purchase. It cannot be disputed that the supply of material to the Government by a private party is purely a commercial transaction. Like any other private purchaser, the Government is also empowered to impose stringent condition for supply of materials so that the interest of the general public is safeguarded. These conditions are purely within the realm of a private contract field and this Court cannot embark on an adjudication as to whether, there is any justification for such fixation/norms. It is best left to the authorities to come to a conclusion.
16.Further, it is to be noted that the Government orders in G.O.Ms.No.195 dated 04.05.1998 and G.O.Ms.No.84 dated 05.05.1998 do not place any restriction on the Tender Inviting Authority or requisitioning body for imposing any condition. G.O.Ms.No.195, dated 04.05.1998 only makes provision for giving preference to small scale industries in the matter of purchase and G.O.Ms.No.84, dated 05.05.1998 relates to the procedure to be followed in such purchase. Therefore, the contention of the learned counsel for the petitioner that the impugned proceedings is contrary to the Government order is not tenable.
17.Learned counsel for the petitioner raised yet another contention by relying upon Section 22(3) of the Act and contend that unless such notification/order is placed on the table of the Legislative Assembly it cannot have an effect of law. In my view, this provision is not applicable since the notification is not one issued under the Tamil Nadu Transparency in Tenders Act, 1998. The insistance of the prior experience is a discretion conferred on the Tender Inviting Authority in terms of Rule 32 of the said Rules. Therefore, the provision of Section 22(3) have no application.
18.In a decision reported in 1995 (1) SCC 478 (New Horizons Limited and another Vs. Union of India and others) the Hon'ble Supreme Court while holding that in exercise of its various functions the State is governed by the mandate of
Article 14 of the Constitution of India which excludes arbitrariness in State action and requires the State to act fairly and reasonably and recognised that certain measure of free play in the joints is necessary for an administrative body functioning in an administrative sphere. In my view, the conditions which have been imposed are on account of experience gained by the department which is an administrative act and this Court cannot step into such jurisdiction of the authority while invoking the jurisdiction under
Article 226 of the Constitution of India, especially when it has not been satisfactorily established that there is no arbitrariness on the part of the respondents to impose such a condition and that no reasonable man could come to the conclusion that such condition is unfair or unreasonable.
19.The Hon'ble Supreme Court has time and again cautioned about the exercise of jurisdiction of this Court in such matters. In Tata Cellular Vs. Union of India reported in 1994 (6) SCC 651, the Hon'ble Supreme Court held that there are inherent limitations in the exercise of that power of judicial review and the modern trend points to judicial restraint and the Court cannot sit as a Court of appeal but merely reviews the matter in which the decision was made and the Court does not have the expertise to correct the administrative decision.
20.For the aforesaid reasons, I find no reason to interfere with the order impugned in this writ petition. Hence, the writ petition is dismissed. No costs. Consequently, M.P.(MD)Nos.1 and 2 of 2009 are closed.
sms To
1.Govt. of Tamil Nadu Represented by its Secretary, Rural Development Department, Fort St.George, Chennai
2.The Commissioner, Rural Developments Panchayat Raj, Panagal Building, Saidapet, Chennai - 15.
3.The District Collector, Tiruchirappalli, Tiruchirappalli District.