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IN THE HIGH COURT OF MEGHALAYA
Dinesh Maheshwari, Ved Prakash Vaish, JJ.
Smt. Agnes Kharshiing – Appellant
Versus
Union of India – Respondent
PIL No.9 of 2016
Decided On : 16-12-2016
Public Interest Litigation - Tender Notice - [Public Interest Litigation] - [Public Interest Litigation, Tender Notice] - The court discussed the issues relating to a tender notice issued by the Social Welfare Department, Government of Meghalaya for supply of ready to eat food suitable for children, pregnant and nursing mothers. The court examined the deficiencies in the tender notice, including the lack of material particulars, limited participation, and failure to adopt e-procurement process. The court observed that the tender process should be fair, reasonable, transparent, non-capricious, and unbiased, in pursuit of healthy competition and equitable treatment. The court allowed the respondents to withdraw the offending tender notice and to float the tenders afresh, with a nominal cost to be deposited in the account of the Meghalaya State Legal Services Authority.
Fact of the Case:
The petitioner, a social activist, brought forth issues relating to a tender notice issued by the Social Welfare Department, Government of Meghalaya for the supply of ready to eat food suitable for children, pregnant and nursing mothers. The petitioner indicated several shortcomings in the tender notice, questioning the fairness, reasonableness, and transparency of the process sought to be adopted by the respondents.
Finding of the Court:
The court found that the tender notice had deficiencies, including the lack of material particulars, limited participation, and failure to adopt e-procurement process. The court observed that the tender process should be fair, reasonable, transparent, non-capricious, and unbiased, in pursuit of healthy competition and equitable treatment.
Issues: The issues included the deficiencies in the tender notice, limited participation, failure to adopt e-procurement process, and the need for fair, reasonable, and transparent tender process in the public interest.
Ratio Decidendi: The court exercised judicial review on the decision-making process, examining it on the touchstones of reasonableness, rationality, want of arbitrariness, and public interest. The court emphasized that state action must be fair, reasonable, transparent, non-capricious, and unbiased, in pursuit of healthy competition and equitable treatment.
Final Decision: The court allowed the respondents to withdraw the offending tender notice and to float the tenders afresh, with a nominal cost to be deposited in the account of the Meghalaya State Legal Services Authority within thirty days from the date of the judgment.
Dinesh Maheshwari, J.
By way of this petition filed as a Public Interest Litigation, the petitioner, said to be a social activist, has brought forth the issues relating to a tender notice ("NIT") bearing No.M.No.SW/SNP/5/2013/Pt/6564-575 dated 30th November, 2016 as issued by the Social Welfare Department, Government of Meghalaya "for supply of ready to eat micronutrient fortified energy dense food suitable for children (0-6 years), pregnant and nursing mothers to different ICDS projects in the state". The petitioner has indicated several shortcomings in the said NIT, which put serious questions over the fairness, reasonableness and transparency of the process sought to be adopted by the respondents.
2. A copy of this petition was served on the learned Sr.GA on 07.12.2016 and this matter was initially taken up on 13.12.2016, but as prayed for, was adjourned to 14.12.2016. On 14.12.2016, when the learned Sr.GA prayed for yet further time, we adjourned the matter to this date.
3. Today, on the matter being taken up, in the first place, learned Sr.GA submitted that the department, after having examined the matter, has tentatively taken the decision to issue a Corrigendum to rectify the deficiencies indicated by the petitioner, particularly as regards the value of the work in question and its duration. However, after finding that the submissions were still wanting in all the relevant particulars and specifications, we posed the following queries to the learned Sr.GA :
(1) How the bids are to be made and the tenders to be processed when the NIT is lacking in material particulars on : (a) total value of the work; (b) the items to be supplied; and (c) the project/s for which the supplies are to be made ?
(2) When the annual turnover of the prospective bidder is expected to be Rs.10 crores for last four years, which indicates that the contract may be of high valuation, as to why e-procurement process was not resorted to ?
(3) As to why only the persons having experience of supply of food products under the Supplementary Nutrition Programme under the ICDS in the North Eastern States have been allowed to offer their bids; and participation has not been thrown open to all the eligible persons ?
(4) Why the tenders have been invited only from the manufacturers; and the dealers/distributors/suppliers have been kept out of the process ?
(5) As to whether the NIT was published in the newspapers ?
4. After putting the queries aforesaid, we gave yet another opportunity to the learned Sr.GA to respond, this time on affidavit from the concerned officer.
5. In the second call of the matter, learned Sr.GA has shown before us that the NIT in question was indeed published in two local newspapers and one in National newspaper; and has filed an affidavit of the Assistant Director of Social Welfare Department, the relevant contents whereof are as under :-
"1. That I am the Assistant Director of Social Welfare Department, Govt. of Meghalaya, Shillong as such I am conversant with the facts and circumstances of the case and is also competent to swear this Affidavit on behalf of the Respondent No.3.
2. That in connection to the Tender Notice dated 30th November, 2016 for supply of ready to eat micronutrient fortified energy dense food suitable for children (0-6) years, pregnant and nursing mothers to different ICDS projects in the state, I beg to submit that apparently in the said Tender Notice the value of the tender has not been mentioned, in this regard the department intends to provide the tender value as well the period of contract which is proposed to be fixed only 1 year. And the value of the tender is proposed to be fixed at Rs.40 crores.
3. That in view of few shortcomings in the NIT it is respectfully prayed before this Hon'ble Court to allow the Department to withdraw the present Notice Inviting Tender and the Department shall float afresh new tender."
6. Having examined the contents of this affidavit, it is noticed that the value of the work in questi
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