WP(C)/1325/2017 of OPEN NATIONAL SOCIAL SERVICE TRIPURA Vs UNION OF INDIA AND ORS on 21 December 2017

1. The Union of India, represented by the Secretary, Ministry of Telecommunication & Board Casting, New Delhi represented by the Secretary, Ministry of Telecommunication & Board Casting, New Delhi

2. Bharat Sanchar Nigam Ltd., a Govt. of India Enterprise, office of the General Manager B. S. N. L., Tripura SSA, Agartala, represented by the General Manager a Govt. of India Enterprise, office of the General Manager B. S. N. L., Tripura SSA, Agartala, represented by the General Manager

3. Asst. General Manager (P & A), office of the G. M. T. D., BSNL, Agartala, 799001 office of the G. M. T. D., BSNL, Agartala, 799001

4. Visual Securas and InfoTech Limited, of Abhoynagar, Agartala, Tripura West, Nabin Thakur Lane Extension, Abhoynagar, 799005, represented by Sri Nilkanta Sinha, Authorized Signatory & Chief Executive Officer of Abhoynagar, Agartala, Tripura West, Nabin Thakur Lane Extension, Abhoynagar, 799005, represented by Sri Nilkanta Sinha, Authorized Signatory & Chief Executive Officer BEFORETHE HON9BLE MR. JUSTICE 8. TALAPATRI

For the petitioner

: Mr. Somik Deb, AdvocateMr. D. Datta, Advocate: Mr. H. Deb, ASG.Mr. B. Majumder, CGC)

For the respondents No. 1-3

For the respondent No. 4 : Mr. P. Majumder, Advocate|

Date ofhearing & delivery

ofjudgment and order

: 91.19.2017)> NO

Whether fit for reporting |

…....Respondents

JudgmentandUrder (Ural)

Heard Mr. Somik Deb, and Mr. D. Datta, learned counselappearing for the petitioner as well as Mr. H. Deb, learned ASG and Mr.B. Majumder, learned CGC appearing for the respondents No. 1, 2 and 3°whereas Mr. P. Majumder, learned counsel appearing for the respondentNo. 4.

[2|By means of this writ petition, the petitioner who Is aservice provider in respect of sweeping, cleaning, carriage of garbageand management has challenged the work-order issued in favour of therespondent No.4. In response to the Notice Inviting Tender (NIT in)short), issued by the respondent No. 2, the petitioner had filed his rate in|order to get the work order for execution of the worke called HouseKeeping and carriage of garbage of D.S. Bhavan, Kaman Chowmuhani &CSC North Gate, Agartala tor two years from the date of determination|ot the contract..

[3|The petitioner has madea serious allegation that the privaterespondent No. 4, who has been tavoured with the order, does not havethe experience to succeed in the technical bid. For this purpose, therelevant clause in the E-Tender dated 24.08.2017 (Annexure-C to thewrit petition) has been referred and hence 1s extracted hereunder:

“5A list of documents to be attached with the technical bid.

(i) The reputed firms/contractors should have the following|documents. Original copy of experience certificate for}satisfactory execution of House Keeping and Carriage ofGarbage services in Central / State Govt. / PSU / BSNL /|MTNL/DOT entity worth at least 30% of estimated cost)during the last three financial years 1.e. 2014-15, 2015-16 and|9016-17.

Note: The experience certificate for House Keeping and|Carriage of Garbage Services should be signed by an officer|not below the rank of the Divisional Engineer level or|equivalent.In.BSNL/MINL/DOT/ Central/StateGovt./JPSU.”

[ 4:According to the petitioner, the respondent No. 4 does nothave any experience in the carriage of garbage etc. The petitioner byway of the notice dated 16.10.2017 (Annexure-E to the writ petition)

had pointed out the said deficiency of the respondent No. 4 in terms ofClause-5A-(I). But despite that, the work order has been Issued 1n favour|of the respondent No. 4.

Conclusion

[5|Mr. Somik Deb, learned counsel appearing for the petitioner.has made reference to Pare-3 of the reply tiled by the respondents No. 1,2 and 3, where they have contended that Clause-5A, as quoted above, is”not the solitary determining factor to finalize the tender.

[6|Mr. Deb, learned counsel appearing for the petitioner hassubmitted on the basis of the said statement that the respondents No. 1,2 and 3 have stated that Clause-5A is not the solitary determining factor,meaning the requirement of Clause-5A has been relaxed for therespondent No. 4. Krom the other side, Mr. Deb, learned ASG appearing”for the respondents No. 1, 2 and 3 had placed his submission on)20.12.2017 and Mr. Majumder, learned CGC have submitted today that.no averment has been made by the respondents No. 1, 2 and 3 to theeffect that Clause-5A has been relaxed or it has been declared as the non-essential clause.

[7|Mr. Majumder, learned CGC appearing for the respondentsNo. 1, 2 and 3 has further submitted that trom reading of the entire reply|it would appear that purport and meaning of the said statement,appeared in Para-3 of the reply filed by the respondent No. 3, are that,Clause-5A is not the only clause based on which the tender 1s)determined, there other determining factors to be satistied to be successful in the technical bid. After a comparative assessment of therates, the best provider 1s selected by the respondents No. 1, 2 and 3from the successful in the technical bid..

[8|Mr. Deb, learned ASG has raised the question ofmaintainability of the writ petition by contending that the petitionerdoes not have the qualification, even to compete the bidding processinasmuch as the petitioner lacks in the qualification as required by)Clause-5A of the NII. According to Mr. Deb, learned ASG, thepetitioner did not execute any work worth of 30% of the estimated cost1.e. 20,00000/- per year.

[9|80% ot that estimated cost comes around 6.66 lakhs. From|the documents, it transpires that the petitioner had executed work torRs. 4,47,792/- under the respondent No. 1 and the petitioner has’processed those documents for consideration. It 1s on the face of therecord evinces that it 1s far below the required worth 1e. 6.66 lakhs. |

[10]Mr. Somik Deb, learned counsel has laboured hard tor thepetitioner to convince this Court that the petitioner has that worth butthis Court is not satisfied that the petitioner has that worth. Whensomeone approaches this Court tor certiorari, the first and for most thingthat would be required that he must demonstrate before the Court at thevery threshold that he has the eligibility of the fitness to have theconsideration vis-a-vis the reliefs prayed. As this Court 1s of the opinionthat the petitioner does not conform to the required qualification to be considered as fit or to succeed in the technical bid, he cannot maintain|this writ petition. Accordingly, the same 1s dismissed.

f11]Before parting, lot of apprehension have been expressed by the learned counsel appearing for the petitioner that some relaxations orsome undue considerations are being made by the BSNL in determining|the contract. It 1s directed that the BSNL shall strictly adhere to theconditions as laid down in the E-Jender, under reference for|determining the tender. [ft it 1s not settled as yet an appropriate order 1nterms of this order shall be passed and uploaded in the website so that:the every concerned person can see how the decision has been taken.

Having observed thus, this writ petition stands dismissed.|‘There shall be no order as to costs. Interim order, if any, stands vacated.

JUDGE

A.ahosh