Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2021 Supreme(Guj) 460

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
ASHUTOSH J. SHASTRI, J.
KISHANSINGH CHOUHAN SECURITY AGENCY THROUGH ITS PROPRIETOR KISHANSINGH BAHADURSINGH CHOUHAN - Appellant
Versus
UNION OF INDIA NOTICE TO BE SERVED THROUGH THE DIRECTOR GENERAL OF RESETTLEMENT & others - Respondent
SPECIAL CIVIL APPLICATION NO. 12858 of 2020
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2021
In
SPECIAL CIVIL APPLICATION NO. 12858 of 2020
With
CIVIL APPLICATION (FOR STAY) NO. 2 of 2021
In
SPECIAL CIVIL APPLICATION NO. 12858 of 2020
Decided On : 30-06-2021

Advocates Appeared:
For the Appellant : MR PRABHAKAR UPADYAY
For the Respondent:MR CHIRAYU MEHTA ADVOCATE for MR DEVANG VYAS, MR HARDIK S SONI

Point of Law- Service Matter - Implementation, execution and operation of the impugned order/communication - Courts should give way to the opinion of the experts unless the decision is totally arbitrary or unreasonable

Headnote:
Constitution of India,1950 - Article 226 - Retirement from service - Implementation, execution and operation of impugned order/communication passed by respondent no. 1 - Case of original petitioner is that petitioner is a sole proprietorship concern - Ex-Army Man who retired from Indian Air Force as a Wing Commander - Petitioner applied for empanelment with Director General of Resettlement after retirement from service - Application/request of petitioner came to be accepted and was empanelled with security agency with effect - Central Government, Ministry of Defence formulated a policy, whereby Public Sector Undertakings or the State owned establishments were encouraged to engage the security agencies sponsored by respondent Director General of Resettlement - Ex-servicemen who are interested in providing the security services are empanelled - By virtue of Office Memorandum, guidelines have been framed for functioning of DGR empanelled Ex-servicemen for security service
Finding of Court: Contract is a commercial transaction. Evaluating tenders and awarding contracts are essentially commercial functions - Principles of equity and natural justice stay at a distance - Power of judicial review will not be permitted to be invoked to protect private interest at the cost of public interest, or to decide contractual disputes - Tenderer or contractor with a grievance can always seek damages in a civil court - Attempts by unsuccessful tenderers with imaginary grievances, wounded pride and business rivalry, to make mountains out of molehills of some technical/ procedural violation or some prejudice to self, and persuade courts to interfere by exercising power of judicial review, should be resisted. Such interferences, either interim or final, may hold up public works for years, or delay relief and succour to thousands and millions and may increase the project cost manifold - Court must realise that the authority floating the tender is the best judge of its requirements and, therefore, the courts interference should be minimal. The authority which floats the contract or tender, and has authored tender documents is the best judge as to how the documents have to be interpreted - If two interpretations are possible then the interpretation of the author must be accepted - Courts will only interfere to prevent arbitrariness, irrationality, bias, mala fides or perversity. With this approach in mind we shall deal with the present case - petition being disposed of –
Result - Civil applications stand disposed of – Ordered Accordingly

ORDER :

1. The present proceedings consists of main writ petition as well as two Civil Applications which are filed by the petitioner, are taken up for consideration finally upon a specific request of both the learned advocates and hence, the Court has opened up the hearing.

2. The main writ petition is filed under Article 226 of the Constitution of India, inter alia praying for the following reliefs :-

“18(A) Your Lordships may kindly be pleased to allow the present petition.

(B) Your Lordships may kindly be pleased to issue a writ of mandamus and/or any other appropriate writ, order or direction to quash and set aside the impugned order/communication dated 11.09.2020 passed by respondent no.1 at Annexure-G to the petition.

(C) Pending hearing and final disposal of this petition, Your Lordships may kindly be pleased to stay the implementation, execution and operation of the impugned order/communication dated 11.09.2020 passed by respondent no. 1 at Annexure-G to this petition;

(D) Your Lordships may kindly be pleased to pass such other and further relief which may deem fit in the interest of justice.”

2. Along with this, Civil Application No. 1 of 2020 is filed for seeking interim relief, for staying operation and implementation of the impugned order dated 11.09.2020, but the same is ordered to be heard along with main petition vide order dated 21.01.2021. Thereafter, it appears that another Civil Application for the similar relief is filed in the month of June, 2021 by the very petitioner – applicant for similar relief for interim stay of the impugned order, but it appears that the earlier order dated 21.01.2021 is not attached with this application. However, be that as it may, the learned advocates have contested the main proceedings itself.

3. The case of the original petitioner is that the petitioner is a sole proprietorship concern of Mr. Kishan Singh Chouhan, an Ex-Army Man who retired from Indian Air Force as a Wing Commander. The petitioner applied for empanelment with the DGR i.e. The Director General of Resettlement after retirement from service. An application/request of the petitioner came to be accepted and was empanelled with security agency with effect from 04.12.2018. The Central Government, Ministry of Defence formulated a policy, whereby Public Sector Undertakings or the State owned establishments were encouraged to engage the security agencies sponsored by respondent no. 1 i.e. the Director General of Resettlement. The Ex-servicemen who are interested in providing the security services are empanelled. By virtue of Office Memorandum dated 09.07.2012, guidelines have been framed for functioning of the DGR empanelled Ex-servicemen for security service, which is attached to the petition compilation at Annexure-A and on the basis of such guideline, a contract have been awarded on 02.01.2019 for a period of two years i.e. with effect from the commencement of the contract. Later on, during the passage of time, respondent no. 1 authority served a show cause notice dated 25.08.2020 inter alia seeking explanation from the petitioner as to why action under the provisions of para 26 of Office Memorandum dated 09.07.2012 may not be taken against the petitioner, which show cause notice came to be replied on 31.08.2020, and hearing whereof was given to the petitioner and then after the submission of further reply, along with necessary documents, on 10.09.2020, a request was made to consider the case of the petitioner, but according to the petitioner, respondent no. 1 was pleased to pass an order on 11.09.2020, whereby the security agency of the petitioner is disempanelled from the active list of DGCR Empanaled Security Agencies under para 26(b) of the Office Memorandum as stated above. It is this order, which is made the subject matter of present petition under Article 226 of the Constitution of India.

4. Mr. Prabhakar Upadyay, learned advocate appearing on behalf of the petitioner has vehemently submitted that the order in questi

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