Judgment:
Prafulla C. Pant, J.
1. By means of this writ petition, moved under Article 226 of Constitution of India, the petitioners have sought writ in the nature of mandamus directing the respondent No. 2 to recall its decision awarding the contract for preparing Smart Card based driving licences and vehicle registration certificates to respondent No. 3, i.e., H.I.L.T.R.O.N., a public sector undertaking, which has entered into contract with respondent No. 4 to get the work done. Further mandamus has been sought directing the respondents No. 1 and 2 to call an open tender bidding for awarding the contract for aforesaid purpose.
2. Heard learned Counsel for the parties and perused the affidavits, counter-affidavits . and rejoinder-affidavits, filed by the parties.
3. Brief facts of the case are that in July, 2000, Ministry of Road, Transport and Highways (for short M.O.R.T.H.), Government of India, felt need to modernize the age old manual system of maintaining State Registers and records in the transport sector in order to prevent malpractices in the various Regional Transport Offices of the country. The Government of India, constituted a committee with members from National Informatic Centre (for short N.I.C.) and Ministry of Road Transport and Highways (M.O.R.T.H.) under the chairmanship of the Secretary, M.O.R.T.H., Government of India (G.O.I.) for laying down the guidelines for application of Smart Card based Vehicle Registration Certificates and Driving Licences. Said committee under the aegis of Ministry of Information and Technology, G.O.I., Smart Card Forum of India (S.C.A.F.I.), and representatives of State Transport Departments submitted its report on 4.1.2001, recommending the use of Smart Card technology in driving licences and registration certificates. Thereafter, guidelines were issued by M.O.R.T.H. on 31.1.2001, indicating that the Smart Card should have a micro processor chip with a capacity of 4 Kilo Bytes (for short-K.B.), leaving it open to the States that they can allow more capacity in view of their requirements. Thereafter Central Motor Vehicles (Third Amendment) Rules, 2002, were passed wherein Rule 2 (s) was inserted defining the expression 'Smart Card'. (Said definition was amended later vide Amendment Rules, 2003 and Amendment Rules, 2004). After the said amendment in the Rules, respondent No. 1 decided to implement the Smart Card scheme for issuance of driving licences and vehicle registration certificates in the State of Uttarakhand. The petitioners have alleged that respondent No. 2 instead of going for open bidding for the work, handed over the work to respondent No. 3-H.I.L.T.R.O.N., a public sector undertaking, in April, 2006. Petitioner No. 1 has stated that in June, 2006, it came to know of the development and also the fact that respondent No. 3-H.I.L.T.R.O.N. and respondent No. 4-Score Information Technologies Ltd. have entered into a memorandum of understanding (for short M.O.U.) for execution of the work on Build, Own, Operate and Transfer (for short B.O.O.T.) basis, for a period of 5 years. Challenging the decision of the State Government and respondent No. 3, it is alleged that the petitioners are deprived of their rights to submit the tenders for execution of the work. It is further alleged by the petitioners that respondent No. 3-H.I.L.T.R.O.N. after getting the contract arbitrarily handed over the work to respondent No. 4 by entering into M.O.U. with it. It is further stated that decision making process on the part of respondents No. 1, 2 and 3, suffers from mala fide and vitiated. Lastly, it is stated that respondents No. 3 and 4, are in collusion and the decision of respondent No. 2 to get the work executed through respondent No. 3 and the decision of respondent No. 3 to get the work executed with the help of respondent No. 4, are illegal. Hence the petition.
4. Respondents have contested the writ petition. In the counter-affidavit filed on behalf of respondents No. 1 and 2, it has been stated that the petitioners have no locus standi to challenge the decision taken by Government of Uttarakhand to get work done through respondent No. 3, who is a service provider to the State in the field of Information and Technology. It is further stated that before taking decision, for getting the work executed through respondent No. 3 on 24.9.2005, presentation was made by respondent No. 3 in the presence of officers of N.I.C. and Transport Department. It is further stated that in said demonstration, two public sector undertakings participated. Another undertaking was U, Dec. respondent No. 3 submitted a detailed project and it was made clear in said project that technical assistance of another company would be taken in execution of the work. Proposal of respondent No. 3 was approved by Government for execution of the work and the contract was awarded to respondent No. 3. It Is further stated that in the State of West Bengal also the scheme was implemented through a Government undertaking-W.E.B.B.LE. It is further stated on behalf of respondents No. 1 and 2 that respondent No. 4 M/s. Score Information Technology is an authorised business partner in the execution of the work and as such, there is nothing illegal about it.
5. In the counter-affidavit filed on behalf of respondent No. 3, it has been stated that since the petitioners do not possess Smart Card Operating System for Transport Applications (for short S.C.O.S.T.A.) certificate issued by N.I.C. as such, they have no locus standi to challenge the contract, as they do not fulfil the essential qualifications for Smart Card Based Projects. It is further stated by the answering respondent No. 3 that H.I.L.T.R.O.N. is nominated as service provider to the State Government vide G.O. dated 27.12.2003 (Copy Annexure C.A.-2 to the counter-affidavit, filed by answering respondent). It is further stated that by said G.O. dated 27.12.2003, the Government has instructed H.I.L.T.R.O.N. and authorized it to ensure implementation of the E-Governance projects with the assistance of technical expert partner. Before the decision was taken by the State Government to get the work executed through H.I.L.T.R.O.N., the H.I.L.T.R.O.N. entered into agreement with Score (respondent No. 4) and only thereafter the project was submitted to respondent No. 2 for issuance of Smart Card Based Vehicle Registration Certificate, Driving Licences, Learning Driving Licences and Drivers Badges, issued by State Transport Authority. Copy of said agreement dated 28.3.2006, is annexed as Annexure C.A.-4 to the counter-affidavit filed by answering respondent No. 3. It is further stated by this respondent in its counter-affidavit that initially H.I.L.T.R.O.N. submitted a proposal with cost of one Smart Card would be Rs. 193 excluding the additional taxes but when respondent No. 1 communicated that cost of the Smart Card should not exceed Rs. 200, a revised proposal was submitted at Rs. 199 (including all taxes) per Smart Card. In para-26 of their counter-affidavit, it has been stated by respondent No. 3 that their technical expert partner- Score Information Technologies Ltd. (respondent No. 4), possesses S.C.O.S.T.A. Compliance Certificate issued by N.I.C, apart from other expertise in the matter.
6. Respondent No. 4 has filed its separate counter-affidavit, and this respondent has also raised objection as to the locus of the petitioners. It is stated on behalf of respondent No. . 4 in their counter-affidavit that the petitioners do not possess S.C.O.S.T.A. certificate. It is further stated that the answering respondent has already furnished a bank guarantee amounting Rs. 50,00,000 and has incurred expenditure, and at this stage, the writ petition suffers from laches. It is further stated by the answering respondent that it is not necessary for the State Government to go for open bidding in each and every case. In this connection, it is stated that Smart Card Projects involve security consideration and there is nothing illegal in getting the execution work done through respondent No. 3 with the assistance of respondent No. 4. It is stated that respondent No. 4 has expertise in the field of Smart Card Based Solutions. It has two dedicated Research and Development (R&D;) teams to ensure the quality of work. Lastly, it is stated that petitioners have no right to participate or to submit the tenders, as it is a matter of policy of State Government to get the work of such projects done through State owned companies.
7. In the rejoinder-affidavits filed on behalf of the petitioners, the petitioners have reiterated the averments made in the writ petition.
8. Before further discussions, this Court thinks it just and proper to firstly mention what 'Smart Card' means and who are the persons, entitled to execute the work relating to Smart Cards, as on behalf of the respondents, objection has been raised as to the maintainability of the writ petition on the ground that the petitioners have no locus in the matter. As mentioned in Clause (s) of Rule 2 of Central Motor Vehicles Rules, 1989, as amended vide notification dated 10.8.2004, issued by Ministry of Road Transport and Highways (M.O.R.T.H.) Government of India, expression 'Smart Card' means:
a device capable of storing data and executing commands which is a microprocessor chip mounted on a plastic card and the dimensions of the card and chip are specified in the International Organization for Standardization (I.S.O.)/International Electro Technical Commission (I.E.C.).
Specifications of Hand Held Terminals ... Specifications of Dye Sublimation Printer ... as may be amended from time to time, and shall be as per the specifications specified in Annexure-XI.
Explanation. - For the purposes of this clause, microprocessor chip shall have non-volatile rewritable memory capacity of minimum 4 Kilo Byte consisting of application data, file headers, security definitions, and a maximum of 350 bytes for Operating System Interfacing, as specified by the Ministry of Road Transport and Highways from time to time for Driving Licence and Registration Certificate applications.
Annexure-XI inserted vide notification dated 10.8.2004, by M.O.R.T.H. requires Smart Card Operating State Transport Applications (S.C.O.S.T.A.) Certificate.
9. Admittedly none of the petitioners are holders of S.C.O.S.T.A. certificate issued by N.I.C., while respondent No. 4, i.e., S.C.O.R.E. Information Technology Ltd. possesses said certificate, copy of which is annexed with counter-affidavit filed on behalf of respondent No. 4 as Annexure R2 to their counter-affidavit. As such, this Court finds substance in the objection raised on behalf of the respondents that the petitioners have no locus in the matter, as they do not fulfil the minimum qualification for getting executed the work in question.
10. Mr. M, C. Pande, learned Counsel for the petitioners submitted that H.I.L.T.R.O.N. (respondent No. 3) to whom the work is given by the State Government also does not possess S.C.O.S.T.A. certificate, issued by N.I.C. as such, there is no impediment in the locus standi in the petition in filing the writ petition and seeking relief claimed therein. On behalf of the petitioners, it is further submitted that the respondents No. 1 to 3, should have invited the tenders before giving contract of work, through open bidding. By not doing so, the respondents have acted in an unfair and arbitrary manner, as such, the action on the part of respondents No. 1 to 3, is violative of Article 14 of Constitution of India.
11. Attention of this Court is particularly drawn to case of Tata Cellular v. Union of India (1994) 6 SCC 651, in which the Apex Court has held that the decision making process of the State can be challenged relating to Government Contracts 'though merits of the decision are not reviewable'. In the case of Ram and Shyam Company v. State of Haryana MANU/SC/0017/1985 : AIR 1985 SC 1147, it has been held that there should be fair play in action on the part of the State. In Faish Chaudhary v. Director General Doordarshan and Ors. MANU/SC/0154/1988 : (1989) 1 SCC 89, it has been held that nothing should be done by the Government in the matters of granting contract, which gives impression of favoritism or nepotism. Having gone through said case laws and considering the facts and circumstances of the case, this Court is of the view that in the present case, the aforesaid case laws are of little help to the petitioners. For the reason, in the present case, respondents No. 1 and 2 have given work in question to respondent No. 3-H.I.L.T.R.O.N., a public sector undertaking of the State. As such, the petitioners, who are private companies, cannot be equated with the public sector undertakings of the State. In the circumstances, there is no question of unfairness, as against the petitioners, as there is no level playing field between the petitioners and a State owned public sector undertaking.
12. On behalf of the petitioners, it is contended that assuming for a moment that the State Government could have taken a policy decision to give the work in question to public sector undertaking in that case, the H.I.L.T.R.O.N. should have invited tenders through open bidding and their partnership with respondent No. 4 smells rat. Having considered the statements of learned Counsel for the parties, this Court is of the view that had the petitioners possessed S.C.O.S.T.A. certificate, issued by N.I.C., it could have been argued that respondent No. 4 was favoured as against the petitioners unfairly. But since the petitioners do not possess S.C.O.S.T.A. certificate, issued by N.I.C., they cannot claim parity with respondent No. 4-Score Information Technologies Ltd., who are assisting with respondent No. 3 in executing the work.
13. Perusal of Government Order No. 176/IT/Hill/2003. dated 27.12.2003 (copy Annexure C.A.-2 to the counter-affidavit, filed on behalf of respondent No. 3), issued by Government of Uttarakhand, shows that respondent No. 3 is appointed as service provider to the State Government in the field of Information Technology and Telecommunications. Para-2 of said G.O. further clarifies that H.I.L.T.R.O.N. would discharge its functions in E-Governance projects with the help of N.I.C. or appropriate technical expertise/partners. It is under this G.O., the respondent No. 3 has entered into M.O.U. with respondent No. 4 in executing the work in question. As such, this Court does not find any illegality in taking assistance of respondent No. 4 by respondent No. 3 in execution of the work. There appears no discrimination as against the petitioners for unlike respondent No. 4, they are not S.C.O.S.T.A. certificate holders.
14. Lastly, it is submitted on behalf of the petitioners that they are ready to perform the same work at the rate of Rs. 170 per Smart Card, as against the rate of Rs. 199 per Smart Card, submitted by respondent No. 3. In reply to this, learned Counsel for the respondents submitted that the offer made by the petitioners in their affidavits is excluding the tax. And if the taxes are included, the amount of offer given by the petitioners would go beyond Rs. 200 and even on that ground the petitioners have no case. However, this Court is of the view that since the Government has taken a policy decision to get the work done through State owned public sector undertaking, which in turn has taken assistance of competent S.C.O.S.T.A. certificate holder (respondent No. 4) for execution of the work, the petitioners offer even if lower to that of respondent No. 3, cannot be a ground to quash the Government's decision or to issue mandamus to them to recall the decision. It is pertinent to mention here that the assistance taken by respondent No. 3 of respondent No. 4 is of B.O.O.T. (Build, Owned, Operate and Transfer) basis and as per the M.O.U. between the two for a particular period after assisting and training the employees of H.I.L.T.R.O.N., rest of the work is to be done by respondent No. 3 itself.
15. For the reasons, as discussed above, this Court finds that there is no illegality on the part of respondents No. 1 and 2 in getting the work done of Smart Card based Driving Licences, Vehicle Registration Certificates etc. through respondent No. 3 with assistance of respondent No. 4. Accordingly, the writ petition is liable to be dismissed. The same is dismissed. No order as to costs.