WP/6342/2010 of S.JAI SHANKAR Vs AIR OFFICER COMMANDING AIR on 23 December 2010

ORDER

The challenge made in the present writ petition filed underArticle 226 of the Constitution of India is against the publicationof Tender Notice made by the respondent in the Indian Express Dailyon 20.03.2010 on the ground that the same is illegal, therefore,while praying for issuance of writ of certiorarified mandamus, soughtfor consequential direction to award the contract to the petitionerto run the Regimental Shops as per the finalized Tender Noticepublished in Indian Express on 19.12.2009.

2. In the Tambaram Air Force Station, the 1st respondent was theperson to allot the regimental shops on contract basis and therefore,called for limited tender for every two years. When the 1st

respondent, to run the regimental shops on contract basis for theperiod from 01.04.2008 to 31.03.2010, had made a publication oftender notice in the daily newspaper, Indian Express and Dinamani on18.12.2009, the petitioner after purchasing the tender form at thecost of Rs.100/-, submitted the same for several shops after dulycompleting the said Tender Form by paying the EMD amount as per thetender conditions.

The 1st respondent has also appointed Board of Officercomprising of a Senior Officer as Presiding Officer and anothermember in the rank of Senior Non Commissioned Officer by SRONo.5/2010, dated 08.01.2010 and on the specified date, the Board ofOfficers assembled on 20.01.2010 at 10.00 hrs. and after opening theTender Forms, finalized the same and thereafter, forwarded to the 1strespondent for approval of Cafeteria/Supper Bar (Main Camp), TraineesCafeteria (Main Camp), Fruit Stall/Juice Bar for Trainees and allothers at Shopping Complex (Main Camp), Ice Cream Parlour (MainCamp).

Therefore, the learned counsel appearing for the petitionersubmits that after submitting his Tender Forms, he was waiting for acommunication from the office of the 1st respondent. But, later on,when he approached the office of the 2nd respondent, he was informedthat the previous tender in respect of all the shops were cancelledand re-tender notice was also published in the Indian Express on20.03.2010. Therefore, it was contended by the learned counsel forthe petitioner that the reason stated in the re-tender asunsatisfactory response is not genuine, and thereafter, when he madean attempt to meet the 1st respondent, he was not allowed to do soand on that basis, it was further contended that when his EMD amountpaid by him as per the original tender notice, is still withheld bythe respondents, publishing re-tender notice, even without returningthe EMD amount and without giving any priority for Ex-Servicemen isillegal and malafide, therefore, he argued that when a huge amount ofRs.2,61,323/- deposited by the petitioner as EMD without beingreturned to the petitioner, the action of the respondents in issuingre-tender notice is against the principles of natural justice.

3. Per contra, the learned Additional Solicitor Generalappearing for the respondents contended that none of the biddersqualified for award of contract due to non availability of mandatorydocuments, payment towards monthly rebate and want of income tax andsales tax papers along with tender documents and since the biddersparticipated in the tender process proved to be non qualified foraward of contract, the question of awarding contract to one of theexisting contractor did not arise. Further, at the instance of thewrit petitioner when this writ petition was filed challenging thepublication of tender notice by the respondent in the Indian ExpressDaily on 20.03.2010, this Court, by order dated 01.04.2010, grantedstatus quo to be maintained till 12.04.2010 and subsequently, the said interim order was extended till now. In view of that, therespondents have not made any decision with regard to the award ofcontract and only bids were opened. Further, it was heavilycontended that it is a figment of imagination regarding the closenessof Mr.Surendran and Mr.D.Madan with the 2nd respondent for notawarding contract to the petitioner. Further, he has submitted thatthe present writ petition is not maintainable in challenging the re-tender process as he has not even paid EMD as per the instructionsattached to the Tender Forms.

4. Further, it was urged before this Court that Ex.WO Arumugamand Ex.Sgt.K.Perumal submitted two sets of tender forms and withoutsubmitting original tender forms, they have submitted photo copies oftender forms. Therefore, all the applications were held invalid forthe reasons that they have made only photocopies of the tender formswithout paying Rs.100/- to the SI Office.

5. In his further submission, it was submitted that though thepetitioner tendered for 8 shops and paid requisite EMD therefor, hehad not submitted income tax and sales tax documents as part of theconditions mentioned in the tender notification. Further, his trackrecord in past performances in handling food oriented regimentalshops were not up to the mark and in view of frequent show causenotices issued to him, after the receipt of the show cause notice,the petitioner has also replied to the show cause notice admittinghis lapse and therefore, it was also on record that he was issuedwith warnings on three occasions to improve his services, failingwhich he was also informed that necessary action should be initiatedby letter dated 04.06.2007. But, even in the 2[nd] time also he failedto improve his services, therefore, he was issued with second showcause notice on 10.10.2007. Again, finding no reply, he was warnedby letter dated 31.10.2007 to provide good services to keep thesurroundings both at the supper bar and the extension counter at GISneat and clean, with clear warning that his contract would beterminated. Further, another warning letter dated 11.12.2007 wasissued to the petitioner complaining that on surprise check in supperbar on 18.12.2007 at around 12.30 hrs., some Ex-Servicemen were foundhaving liquor and for which, the petitioner replied, by letter dated28.11.2007, stating that no liquor would be allowed to be servedinside the supper bar. Based on his explanations, by warning letterdated 11.12.2007, the petitioner was again warned to refrain fromengaging in such unauthorized activities, even after that, again hewas informed that his contract would be terminated and he would notbe considered for any contract in future and on the basis of theabove mentioned misconduct of the petitioner, the learned AdditionalSolicitor General for the respondents sought for dismissal of thepresent writ petition.

6. Heard the learned counsel appearing on either side andperused the materials available on record.

7. In the Tambaram Air Force Station, several regimental shopsbelonging to the 1[st] respondent are being given on contract basis byproperly allotting on the basis of the open tender process for everytwo years. The petitioner was also awarded on contract basis to runSupper Bar within the camp area by the respondents upto 31.03.2008.For the period from 01.04.2008 to 31.03.2010, the petitioner was notthe highest bidder and therefore, the contract for the said periodwas given to another highest bidder. But, he was also running cycleshop from 01.04.2008 to 31.03.2010. When the 1[st] respondent made apublication of Tender Notice in the daily Newspaper, Indian Expressand Dinamani on 18.12.2009 to run the shops for the period from01.04.2008 to 31.03.2010, the petitioner, after purchasing the TenderForms, submitted for various shops by depositing a sum ofRs.2,68,323/- as EMD. Thereafter, the Board of Officers assembled on20.01.2010 at 10.00 hrs. and after opening the tender forms, theBoard of Officers finalized the same and thereafter, forwarded thesame to the 1[st] respondent, recommending for Cafeteria/Supper Bar(Main Camp), Fruit Stall/Juice Bar for Trainees and all others atShopping Complex(Main Camp), Trainees Cafeteria (Main camp) and IceCream Parlour (Main Camp). When he was waiting for communication,his offer for highest bidder was cancelled and re-tender waspublished in the Indian Express on 20.03.2010 is under challenge.

8. When the petitioner had applied for 8 shops, for being an Ex-Serviceman with previous experience for running the Supper Bar, theBoard of Officers recommended the petitioner's bid as being thehighest one among others. Ignoring this, re-tender notice waspublished in Indian Express on 20.03.2010 without disclosing anytender conditions with respect to the payment of EMD and otherpriority to be given to the Ex-Servicemen. In the meanwhile, priorto the re-tender, when the petitioner approached the office of the 2[nd]respondent, it was replied to the petitioner that he had tendered for8 shops and paid the requisite EMD and on scrutiny of his documents,it was found that he had not submitted income tax and sales taxdocuments, besides his past performances in handling the foodoriented regimental shops and his tract records were not up to themark and therefore, he was issued with show cause notices on severaloccasions to improve the quality as well as hygienic conditions inthe shops and bars and only in view of warnings issued to thepetitioner on various occasions, he was not considered as a suitablecontractor for food related ventures. Though, his arguments appearsto be attractive one, when the respondents issued the impugned re-tender, no tender conditions have been mentioned in the re-tendernotice. In the event of publication of re-tender notice in theIndian Express Daily on 20.03.2010, if any other new person with moreexperience in running the above mentioned shops wants to participate,he would not be in a position to apply, as nobody could be able tofind out what are the conditions for such re-tender, because the re-tender notice does not indicate what are the experience thecontractor has to possess and how much is the EMD. Therefore, the re-tender notice having not mentioned the requisite qualification forthe tenderer in order to apply for the tender, the same is liable tobe set aside. Further, the contract given to Mr.Selvam was assailedon the ground that Mr.Selvam did not participate in the tenderprocess, however, he has been allotted without following any existingprocedures. These specific allegations have not been replied by therespondents in their counter filed before this Court.

9. Therefore, the action of the respondents in publishing there-tender notification without properly informing the terms andconditions to the bidders is to be held as invalid, for the reasonthat the respondents in the re-tender notice have mentioned to refera three months old advertisement inviting tenderers for regimentalshops on 19.12.2009, by such advertisement, the respondents cannotexpect the interested bidders to come forward for purchasing threemonths old newspaper dated 19.12.2009. Indeed, it is quiteimpossible to get the same also. Therefore, the impugned action ofthe respondents in going for publishing the re-tender notificationdated 20.03.2010, without disclosing the terms and conditions for re-tendering, suffers for want of transparency in the dealings of theshops of the respondents and accordingly, this court is inclined toset aside the impugned re-tender notice.

10. However, the petitioner has asked for a prayer to award thecontract to run the regimental shops as per the finalized tenderpublished in the Indian Express on 19.12.2009 on the recommendationsof the Board of Officers. Since the respondents have also repeatedlygiven show cause notices followed by the severe warnings, this Court,sitting under Article 226, does not incline to grant the second partof the prayer in his favour. However, the respondents are directedto hold fresh tender in accordance with law. It is needless tomention that the respondent shall return the petitioner's EMD lyingwith them forthwith to the petitioner. In view of the earlier orderpassed by this court maintaining the status quo, in respect of there-tender, this court for the reasons mentioned above, is inclined toconfirm the interim order and as a result, the impugned publicationof tender notice published by the respondent in the Indian Express on20.03.2010 is hereby quashed as illegal.

11. For the reasons stated above, the present writ petition ispartly allowed. No Costs. Consequently, connected miscellaneouspetitions are closed.Sd/Asst.Registrar /true copy/

rkm

Sub Asst.Registrar

To

1. Air Officer Commanding, Air Force Station Tambaram, Chennai - 46. Air Force Station Tambaram, Chennai - 46.

2. Chief Administrative Officer, Air Force Station Tambaram, Chennai - 46. Air Force Station Tambaram, Chennai - 46.

1 cc To Mr.T.Sundaranathan, Advocate, SR.91674/10

1 cc To Mr.M.Devendran,

Senior Panel Counselfor Central Government Advocate, SR.91643/10

W.P.No.6342/2010

kgk(co)pmk.11.1.2011