Jandial Printing Press and ors Vs. State of Jandk; and ors. - Court Judgment

HIGH COURT OF JAMMU AND KASHMIR AT JAMMU. OWP No. 1231 OF 201.Jandial Printing Press & ors Petitioners State of J&K & Ors. Respondent !Mr. Rakesh Badyal, Advocate ^Mr. W. S. Nargal, Advocate, Mrs. Seema Shekhar, AAG Honble Mr. Justice Muzaffar Hussain Attar, Judge Date:

08. 05.2013 :

: (Oral) Respondent-University in the meeting of Broad Based Advisory Committee held on 2nd July, 2012 in the Office Chamber of the Vice-Chancellor, Jammu, besides taking other decisions, at Item no. 4, resolved for outsourcing of the complete production of the study material to expert agencies through open tender at national level. The Outsourcing of the complete production of study material relates to distance learners from DDE, University of Jammu. The decision for outsourcing of the complete production of study material to expert agencies through open tender at national level was taken for the reasons that doubts were raised about the distribution and developing of study material on time as also about its quality content. The Directorate of Distance Education, University of Jammu issued tender notice whereunder sealed tenders were invited from the eligible, reputed and professional Book publishers/content developer for writing, printing and distributing study material in self learning material format for various programe/courses run by the University of Jammu through Distance Education Mode for a period of three academic years. One of the pre qualification criteria fixed was as under: The annual turnover of the main bidders should not be less than Rs. 15 Crore for the year ended 31.03.2012 The petitioners who are printers and publishers, feeling aggrieved by the aforementioned condition contained in the tender notice, challenged the same in this writ petition, inter alia on the ground that since the value of the annual work per annum is Rs. 80.00 lacs, the condition (supra) prescribed in the tender notice is illegal as it excluded the petitioners for seeking consideration for being allotted work; in the previous years, no such condition was fixed; the condition has been fixed only to exclude the petitioners from the tendering process. The Court on 31st August, 2012 directed that respondents shall not proceed further with the impugned notification till next date. Respondent nos. 2 & 3 have filed reply affidavit. Learned counsel for the petitioners argued in tune with pleadings of the writ petition. Mr. Nargal, learned counsel for the respondent-University submitted that incorrect material was supplied which constrained the competent authority of the University to consider the whole issue and it was resolved to outsource the complete production of the study material to expert agencies through open tender at national level. Learned counsel further submitted that the malafide alleged in the writ petition cannot be looked into by the Court as the person in respect of whom its alleged has not been made party respondent. Learned counsel also submitted that the writ petition is not maintainable as the terms and conditions of the NIT cannot be reviewed by the Court. Learned counsel in this behalf referred to and relied upon the judgment of Honble the Supreme Court in case titled Directorate of Education & ors vs Educomp Datamatics Ltd. & ors Appeal (Civil) 2407411 of 2003 decided on 10.03.2004 and submitted that this petition merits to be dismissed. Learned counsel further submitted that the terms and conditions of the NIT were settled by the Committee headed by the Directorate of Distance Education as its Convenor. The pleading of the petitioners that the annual value of the work is about Rs. 80.00 lacs, is not controverted by the University authority in its reply affidavit. The contention of the learned counsel for the respondents that the annual value of the work would be more than Rs. 80.00 lacs cannot be accepted by the Court as no supporting material is placed on record. Learned counsel further submitted that the annual value of the work may not exceeded Rs. 10 Crore per annum, however, no material is placed on record to substantiate the said contention as well. Be that as it may, the fixing of condition that the annual turnover of the bidders should not be less than Rs. 15 Crore for the year ended 31.03.2012, would not stand to reason of a prudent person. Even if it is assumed as contended by the learned counsel for the respondents that the annual value of the work may be Rs.10 Crore, still there can be no reason for fixing the annual turnover at Rs. 15 Crore. The authority which has fixed the said condition in the NIT, it appears has not applied its mind to the entire conceptus of the case. The condition on the face of it is not reasonable and has no nexus with the object sought to be achieved. In the Directroate of Educations case (supra) amount involved per annum was to the tune of Rs. 100 Crore. The Competent Authority in that case took a decision that firms having turnover of more than Rs. 20 Crore over the last three years would be eligible for participating in the tendering process. In this case, the annual value of work is Rs. 80 lacs, which claim as already stated has not been controverted by the respondents in their reply.Even assuming that the annual value of the work would be Rs. 10 Crore, still respondents could not declare that the annual turnover of the main bidders should not be less than Rs. 15 Crore for the year ended 31.03.2012. On the basis of the judgment of Honble the Supreme Court, the decision of the respondent-University is held to be illegal and arbitrary. Honble the Supreme Court in the same judgment has ruled that terms of tender notice can be reviewed if in the opinion of the Court same are either arbitrary or discriminatory or actuated by malice. The other judgment passed by Honble the Supreme Court in Writ Petition (civil) 41 of 2003 decided on 30th November, 2004, proceeds on its own fact This case is governed by the facts of the Directorate of Education & ors case (supra) and the law laid down therein is to be followed in this case. In the fact situation of this case, the impugned condition in the NIT of fixing eligibility criteria in respect of not less than Rs. 15 Crore is held to be arbitrary and violative of Article 14 of the Constitution of India. For the aforementioned reasons, this petition is disposed of in the following manner. By issuance of writ of certiorari, the impugned condition in the NIT i.e the annual turnover of the main bidders should not be less than Rs. 15 Crore for the year ended 31.03.2012, is quashed. The respondent-University is given liberty to reconsider the issue in light of the observations made in this judgment and take a decision with reasonable promptitute. Interim direction shall stand vacated. (Muzaffar Hussain Attar) Judge Jammu 08.05.2013 Vijay