N.K. Kapoor, J.
1. The petitioners have challenged the decision of the Punjab Electricity Board-respondent No. 1 dated 18.2.1993 (Annexure P-6) on the ground that same is in violation of Purchase Regulations, 1981, and also in violation of Article 14 of the Constitution of India as well as violative of principle and law applicable to such decisions. Petitioners consequently sought quashing of Annexure P-6 with the further prayer that respondent No. 1-Board be directed to place order/orders on the company/companies and parties strictly on merits as detailed in Annexure P-2 to P-4.
2. Brief facts leading to filing of the present writ petition are as under :-
Respondent No. 1-Board floated Tender Enquiry bearing No. Q-3359 for the purchase of Distribution Transformers of capacities 25 KVA, 63 KVA, 100 KVA and 200 KVA (Annexure P-1). In pursuance to the Tender notice, petitioners as well as respondents 2 to 21 submitted their Tenders offering different quantities and different rates. After the expiry of the date of receipt of Tenders, the Purchase Committee opened the sealed Tenders of the parties and drew up a merit-list and submitted the same to the Full Board in the form of Memorandum Annexures P-2 to P-4, which deals with the transformers of 63 KVA, 100KVA and 200 KVA, respectively. Thereafter, Central Purchase Organisation sent another supplementary Memorandum No. 13/Q-3359/PO-V dated 16.2.1993 (Annexure P-8) for circumstances. The State Electricity Board keeping in view the Memorandum (Annexures P-2 to P-4) and supplementary Memorandum (Annexure P-8) examined the matter especially in the context of supplementary Memorandum, whereby the Central Purchase Committee suggested that a counter-offer be made to the parties to deliver the transformers at the revised equated rates as offered by the M/s Technical Associates (I) Ltd; Sangrur and M/s T.A. Transformers Ltd., Lucknow. The Electricity Board considered the suggestion of the Committee and finally drew up the merit-list stipulating the quantity to each one of the parties as well as the equated rates. Pursuant to the decision of the Board (Annexure P-6), the Purchase Committee informed the intending parties by telegram as well as by registered post. Copy sent to one of the company in this regard is Annexure P-7. Vide this communication, the parties were requested to convey their acceptance by 7.5.1993, failing which it was to be considered as refusal on their part.
3. This action of the respondent-Board has been challenged by the petitioners on the ground that same is against the Purchase Regulations, contrary to well established principle with regard to tenders and otherwise malafide and violative of Article 14 of the Constitution of India.
4. Pursuant to the notice of motion issued by this Court to respondent No. 1, appearance has been put in and a detailed reply has been filed. Respondent No. 1-Board admitting the factual aspects of the case has, however, challenged the locus standi of the petitioners and otherwise maintainability of the present writ petition on a number of grounds. By way of preliminary objections, it has been urged that the Central Purchase Committee of the Punjab State Electricity Board considered at length the offers made from the points of warranty, delivery, technical suitability, past performance and capacity to manufacture and thereafter made recommendation to the competent authority, i.e. the Full Board of the PSEB, for consideration. Since in the instant case, the Board needed a continuous supply of transformers during a fixed period that it decided to make counter offer to the various tendering parties for their consideration and acceptance. It is further averred that in the instant case counter offers were made to all the petitioners and other parties arrayed as respondents without any discrimination. The plea of the petitioners when examined in the context of the facts as narrated does not give any cause to the petitioners to assail the same on the ground of discrimination and terming the same to be violative of Article 14 of the Constitution of India. Accordingly, the Board asserted that the interim direction issued by this Court staying operation of the impugned order to the extent of fifty percent has created hurdle in discharging its duties and otherwise is a cause of suffering to the public at large, who are suffering for non-supply of the electricity at this crucial juncture and thus prayed that same may be vacated.
5. The first submission of the learned counsel for the petitioner, Mr. M. S. Khaira, Senior Advocate, is that the decision (Annexure P-6) is contrary to the Purchase Regulations, 1981. Elaborating, the counsel contended that the parties having submitted the tenders well within the stipulated period were entitled to supply the quantity so offered, as detailed in the tenders and neither the Purchase Committee nor the Electricity Board had any authority to vary the quantity or its price. At best the Board could re-invite the tenders and that too in terms of Regulation No. 18 only. Since in the instant case, the counter-offer so made does not satisfy the stipulation as contained in Regulation No. 18, the acceptance of the same by the Board is per se contrary to the Purchase Regulations.
6. If we assume that Regulation No. 21 empowers the competent authority to hold negotiations with the parties affecting prices/specifications of the items to be supplied, even in that case it is incumbent upon such a competent authority to pass a specific order giving reasons. Elaborating, the counsel urged that in the instant case, the Board has not adhered to these Regulations. Accordingly, Annexure P-6 is liable to be quashed and petitioners are entitled to supply the quantity of various category of transformers offered by them pursuant to the notice inviting tenders on the price so offered by them since they have quoted minimum prices. In support of his above contention, learned counsel relied upon Ramana Dayaram Shetty v. The International Airport Authority of India, AIR 1979 S.C. 1628, Shri Harminder Singh Arora v. Union of India, AIR 1986 S.C. 1527 and Prestress India Corporation v. U.P. State Electricity Board, AIR 1988 S.C. 2035. Replying, Mr. M.L. Sarin, learned counsel for the respondent No. 1, has challenged the various submissions made by the petitioners on facts as well as on law. Justifying the method suggested by the Central Purchase Committee for offering counter-rates to the parties, who had submitted their tenders, counsel made reference to the supplementary Memorandum (Annexure P-8), wherein the reasons which promoted the Committee to take this recourse has been highlighted. It has been noticed by the Central Purchase Committee that validity of the tenders has been extended from time to time and it is during the extended period that M/s Technical Associates (I) Ltd., Sangrur and M/s T. A. Transformers Ltd., Lucknow, chose to reduce the prices of the transformers as offered by them in their tenders. Similarly, M/s Shiv Shakti Electrical, Pathankot, while extending the validity of their offer submitted an undertaking regarding order preference and requested that their offer may be considered with order preference. This matter was considered by the Central Purchase Committee in its meeting held on 11.2.1993, wherein it was decided as under :-
'While extending the validity of their offers M/s Technical Associates (I) Ltd., Sangrur and M/s T.A. Transformers Ltd, Lucknow had reduced their rates and the revised equated rates are lessor than the equated rates of M/s Alfa Transformers Pvt. Ltd., Bhubneswar whose rates have been recommended to be offered as counter rates in the proposal under consideration of the Board. It is recommended that the lower revised equated rates of M/s Technical Associates (I) Ltd., Sangrur, i.e. Rs. 37895/- be offered as counter rates to all the firms who have already been recommended for placement of order against this tender enquiry under consideration.
The undertaking regarding order preference submitted by M/s Shiv Shakti Electricals, Pathankot, while extending their validity is not recommended to be considered as the order preference and required to be submitted on the day of opening of tenders.
The above recommendations may be considered by the Board along with Memorandum No. 11/Q-3359/PO-V dated 5.2.1993.'
7. Referring to the Purchase Regulations, the counsel urged that Regulation No. 21 specifically empowers the competent authority to hold negotiations even after opening of the tenders affecting the price or specifications with regard to the items to be supplied. Counsel further urged that it is wrong to suggest that the Purchase Committee gave counter-offer to the parties. This contention of the petitioners is contrary to Annexure P-6 passed by the Full Board.
8. Having heard the learned counsel for the parties and on pursuing the relevant material, referred to by them, we are of the view that the present writ petition is devoid of any merit. The main grievance of the petitioners is that the Punjab State Electricity Board's decision to make a counter offer is contrary to the provisions contained in Purchase Regulations, 1981. On perusal of the various Regulations referred to during the course of arguments, we find no merit in this contention of the learned counsel. Detailed method of sub-mitting the tender, its acceptance and opening are dealt with in Regulations Nos. 13 to 20 of the Purchase Regulations, 1981. Regulation No 18 envisages re-invitation of tenders and Regulation 20 deals with negotiations, which read as under:-
' 18. Re-invitation of tenders
Tenders may be re-invited by the Contracting/Purchasing Agency after approval by the Competent Authority in the event of:-
(a) Any subsequent change necessitated in technical specification.
(b) Inadequacy of number of tenders.
(c) Pronounced changes in market trends, when it is felt that the rates of tenders received are too high.
(e) Any other compelling reasons to be recorded in writing.
20. Acceptance of tenders
(i) Acceptance of tenders shall be accorded by the Competent Authority in writing in noting sheets in the case file or in the minutes books, if the Competent Authority is the Board/Whole-time-Members.
(ii) In emergent cases the Competent Authority may authorise advance action to be taken by the Purchasing Agency in anticipation of receipt of formal decision.
(iii) In case of proprietory/patent items, the rates shall be accepted subject to the Supplier/Contractor certifying that the rates applicable are/would be same as for all Government/Semi Government Departments.
(iv) The Competent Authority may distribute the quantities to be produced on more than one firm recording reasons thereof.'
9. A bare of Regulation No. 18 does envisage calling for fresh tenders or to say make counter offers by the contracting/purchasing agencies with the approval by the competent authority. Even Regulation No. 21 gives ample powers to the competent authority to hold negotiations with the parties, who had submitted tenders even after opening of the same.
10. In view of these provisions and also keeping in view that even after submitting the tenders, no right as such accrues to the party, who has submitted a tender till it is accepted and an order is placed for supply of the articles/goods, the course adopted by the purchasing agency in the facts of the present case is perfectly just. Since the purchasing agency had powers of re-inviting of tenders, it, instead of resorting to this, chose to make a counter-offer to the parties who had submitted their tenders in pursuance to tender notice (Annexure P-1). No discrimination per se has been pointed out by the learned counsel for the petitioners. The respondent-Board keeping in view the recommendation of the Central Purchase Committee offered various quantity of transformers to the companies keeping in view their capacity to supply at the revised equated rates. It is in these circumstances that a fresh merit-list was drawn by the respondent-Board mentioning the names of the parties, the quantity of transformers offered and the equated rates specified. Emphasis has been laid by the learned counsel for the petitioners to the method employed by the respondent-Board while making this counter-offer. According to the counsel such a course was unknown to law. Counsel was, however, unable to substantiate this submission by referring to any statutory provision or any judicial pronouncement in this regard. Even if we take that such an action is not in exact conformity to Purchase Regulation No. 18, yet the same cannot be termed as unjust on facts and circumstances of the present case. As highlighted by the learned counsel for the respondents, the Punjab State Electricity Board was in dire need of the transformers in large number and that, too, within a short time as transformers were needed to meet the urgent supply of the electricity to the farmers for their kharif crop and also to make up the deficiency of the transformers, which, too was on account of persistent litigation by the present petitioners, thus hindering the smooth working of the Board.
11. The fact that the petitioners earlier too filed writ petitions challenging the recommendations made by the Central Purchase Committee, which were decided on 23.9.1992, has been mentioned in ground No. 8 of the writ petition. The matter finally came up before the apex Court and was decided on 16.4.1993. Reference to the earlier writ petitions and decision of the apex Court has no other relevance except that the same supports the contention of the respondent that purchase order could not be placed on the parties in view of the pendency of the litigation, thereby resulting in a considerable shortfall in the existing number of the transformers with the Board. Thus, in the totality of the circumstances, the method resorted to by the Board can be termed as perfectly just. None of the parties, i.e. the petitioners or the private respondents, have been discriminated. Orders have been placed upon the parties keeping in view their capability to supply the transformers, their past performance, delivery period etc. The judgments cited by the learned counsel for the petitioners AIR 1979 SC 1628 (supra) and AIR 1986 SC 1527 (supra) have, in fact, no applicability to the facts of the present case whereas the judgment AIR 1988 S.C. 2035 (supra) is a decision on its own facts. In Ramana Dayaram Shetty's case (supra) the Court held that the respondents could not accept tenders of persons who did not fulfil the requisite qualifications. There can hardly be any dispute with regard to this proposition of law. Similarly, in Shri Harminder Singh Arora's case (supra), the respondents chose to accept the tender of a Government Milk Scheme, which offer was not in conformity with the tender notice. In these circumstances, the Court held that acceptance of the tender was illegal. In the last cited case, the apex Court reversed the decision of the High Court and ordered the concerned authority to place order upon the petitioners in full as per tender notice. As per narration of facts, tender of one party was accepted, but subsequently for no just reason the order was slashed to 1/2. In these circumstances, the Court directed the respondents to place full order upon the party, whose tender had been accepted.
12. In the instant case, the petitioners are some of the parties, whose tenders were found to be in order. Besides, the petitioners there are other twenty parties-arrayed as respondents-whose tenders were also found to be in order. Keeping in view the supplementary Memorandum (Annexure P-8), the Board thought it appropriate to make a counter-offer to all the parties so as to obviate any further delay of the transformers; which action cannot either be termed as discriminatory or violative of Purchase Regulations 1981. Resultantly, this writ petition is devoid of any substance and the same is accordingly dismissed. No costs.