Debendra Nath Bora vs State of Assam and Others

D.N. Chowdhury, J.—This is an application under Article 226 of the Constitution assailing the order of the Government dated 17.5.1997 approving the tender to the Respondent No. 10 and holding for production of documentary films on AIDS.

14 (fourteen) tenders were submitted and out of that three were rejected and finally 11 tenders were taken up for consideration. The scrutiny committee on assessment also found the Petitioner suitable according to the Petitioner. The entire matter was placed before Minister, Health and considering the experience of Respondent No. 10 he recommended the Petitioner as well as the Respondent No. 5. The matter was assailed before this Court by way of Civil Rule No. 1361/96. By judgment and order dated 16.7.96 disposed of the Civil Rule with the following observations:

... This matter arises out of an advertisement calling tender for production of documentary on AIDS. 14 tenders were submitted and out of it 4 (four) tenders were rejected. The scrutiny committee found that the Petitioner is the best suited person to accept the tender. The matter was placed before the then Hon''ble Minister of Health and the Hon''ble Minister found that the Respondent No. 5 is an experienced person and as such he recommended that either the Petitioner or the Respondent No. 5 may be given the tender. I do not find any infirmity in this order inasmuch as he rightly took into consideration the experience of the person. The records were produced by Smti. K. Yadav, the learned Government Advocate in this respect.

Be that as it may, considering the entire aspects of the matter, I remit back this matter afresh and give the tender to the best candidate. The case of the Respondent No. 5 shall also be considered by the authority as it was factually found that the Respondent No. 5 is an experienced person...

On remand the authorities finally examined the cases of the parties, a committee was constituted with Director, Health Services as Chairman, Additional Director of Health Services and Finance & Accounts Officer and Media Officer Members and State AIDS Programme Officer as member secretary to examine in depth the suitability of the parties and to recommend the acceptable party which would cater the particular need of the Government work. The committee finally considered the matter in its meeting dated 28.3.97 and recommended the Respondent No. 10 for the work. The committee also forwarded four other tenders including tender of the Petitioner for consideration. The Government deliberated upon the subject and eventually approved the tender of the Respondent No. 10.

The legality and validity of the order is assailed in this proceeding. Mr. D. Das, the learned counsel for the Petitioner has submitted that he was one of the bidder and offered tender of Rs. 3,59,216/- which was lower than the Respondent No. 10. Mr. Das also submitted that since he was an eligible tenderer and fulfilled all the requirements the Government ought to have accepted lowest tender and allot the work to him. Mr. Das the learned Counsel particularly emphasised on the note made by the concerned officer before the Principal Secretary in the file being No. HLA. 201/96/50. Mr. Das submitted that Petitioner was the lowest tenderer therefore he was entitled for the consideration.

All the Respondents submitted its affidavit. The State Government submitted its detailed affidavit denying and disputing the allegations. The State Government specifically submitted that all the tenders were lawfully considered and after assessing the respective merits the Respondent No. 10 was selected. The State Government on the other hand submitted that the scrutiny committee and selection committee after examining the case of the Petitioner did not recommend the case of the Petitioner though forwarded for consideration.

The State Government with a view to combat the menace of the dreaded disease conceived the idea of production of a documentary on AIDS, tenders were invited accordingly from the eligible bidders. The State Government considered each and every case and after considering the respective cases found Respondent No. 10 to be suitable. The right of choice from the available parties was entirely within the domain of the Executive authority on judging and assessing the respective merits of the parties. The concerned authorities fairly, candidly and in unbias and objective manner considered the respective cases and reached at a decision which cannot be labelled as extravagant or unlawful within the area of lawful exercise of power, views more than one may emerge. "The very concept of administrative discretion", said Lord Diplock in Secretary of Education etc. v. Tameside Metropolitan Borough Council reported in (1977) AC 1014 "involves a right to choose between more than one possible course of action upon which there is room for reasonable people to hold differing opinions as to which is to be preferred." Here the authority is authorised by law to exercise its discretion and make at its preference. A right person is to be chosen from the tenderer. The right of choice was that of the Government and the Government on a fair consideration of the respective merits of the case arrived at a decision and opted for one among them no legal infirmity as such is discernible in the above exercise. In adopting the procedure of selection and in picking up one from him the authority did not adhere to any unfair procedure requiring judicial review. The authority invited the tender and considered the respective merits and thereafter found the Respondent No. 10 to be the most eligible persons. The authority is no doubt concerned about the price factor but above all quantity of the production of the documentary on AIDS to cater to the needs of the authority is of prime importance.

I am fully in agreement with the submission of Mr. D. Das that the discretion must be exercised lawfully and fairly. A person entrusted with a discretion, he or she must address its mind to those matters which are relevant and overlook those which are irrelevant or extraneous. Hence the authority is needed to adhere to the accepted norms and principles of fair play in action. "Not every reasonable exercise of judgment is right and not every mistaken exercise of judgment is unreasonable" recalled Lord Hailsham L.C.

On overall consideration of all aspects of the matter, I am not in favour of exercising the extra ordinary jurisdiction of power conferred by Article 226 of the Constitution of India. For the reason indicated I therefore dismiss the petition. Interim order thus stands vacated. No costs.

Rule is discharged.