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Judgment
Ali Mohammad Magrey, J
Since, both these appeals are directed against common Judgment dated 28th of October, 2021 passed by the learned Single Judge in WP(C) No. 1421/2021; CM No. 4828/2021, therefore, same were heard together and are being decided by this common Judgment hereunder.
The material facts leading to the filing of these appeals, briefly stated and as come to the fore from the pleadings on record, are that vide e-tender notice No. DGSS/RC/GA/19 of 2020 dated 1st of September, 2020, the official Respondents invited e-bids for appointment of Government Auctioneer in relation to conducting of auction of Government properties for the year 2020-21 for Jammu as well as Kashmir Division on the terms and conditions prescribed in the tender notice. After culmination of the aforesaid tendering process, it appears that the official Respondents, vide Order No. DGSS/36 of 2021 dated 5th of July, 2021 appointed M/S F. S. Enterprises (L-
1) as Government Auctioneer for Kashmir Division. Thereafter, a Writ Petition, being WP(C) No. 1421/2021, was filed by a firm, namely, M/S A. Khan Trading Company/ Writ Petitioner/ Appellant in LPA No.147/2021, who had also participated in the aforesaid tendering process; thereby assailing the appointment of said M/S F. S. Enterprises as a Government Auctioneer made in terms Order dated 5th of July, 2021 on the ground that the said firm did not meet the eligibility criteria prescribed in the tender notice qua having experience certificate of at least two years in the business of auctioning. The learned Single Judge, vide Judgment dated 28th of October, 2021, disposed of the Writ Petition with the following direction(s):
"...
10/- In view of the above, my answer to the question is in the "Negative". The petition deserves to be allowed to the extent of first and second prayer only, consequently, impugned order and communication deserve to be quashed and directions need to be issued to the official respondents to issue fresh tenders after carefully formulating terms and conditions which are not only clear and unambiguous but also promote healthy and wider competition.
11/- It is so ordered."
It is this Judgment passed by the learned Single Judge that has been assailed in the two appeals before us by both, the Writ Petitioner insofar as it directed issuance of fresh tenders on the subject (LPA No.147/2021); as well as by the said firm F. S. Enterprises (LPA No. 148/2021) seeking setting aside of the Judgment in its entirety and consequent dismissal of the Petition filed by the Writ Petitioner.
We heard learned Counsel for the parties, perused the pleadings on record and have considered the matter.
Perusal of the impugned Judgment makes it axiomatic that the learned Single Judge has, on the basis of the pleadings on record and upon hearing the parties, decided the Writ Petition after framing the question 'as to whether the certificate of experience of at least two years in the business of auctioning submitted by the private Respondent meets the eligibility requirements of e-tender notice issued by the official Respondents'. While answering the aforesaid question in the negative, the Writ Court was of the view that the decision of the official Respondents to award contract to the private Respondent-F. S. Enterprises is arbitrary, irrational and smacks of bias/ mala fide and, therefore, cannot sustain in the eyes of law.
Clauses 6(f) and 7 of the tender notice issued by the Official Respondents clearly provided that the participating bidders shall have experience certificate of at least two years in the business of conducting auction of any Government Office/ Semi-Government Organization/ Military Establishment/ Public Enterprise. In the case of the said F. S. Enterprises, the experience certificate submitted by the said firm was, as rightly pointed out by the learned Single Judge, suspicious and issued by a private entity, namely, proprietor for 'M/S Hem Raj Bali & Sons', 136-Mast Garh, Jammu. The tender notice had specifically prescribed requirement of experience certificate of at least two years in auctioning of goods of Government/ Semi-Government, Military Establishment or Public enterprise and, as such, the certificate submitted by the said F. S. Enterprises clearly does not come within the ambit and scope of the aforesaid requirement, more specifically so when the said certificate itself had become shrouded in the mist of grave suspicion. In these circumstances, the official Respondents could not have taken into consideration the aforesaid certificate relied upon by the said F.S. Enterprises.
True it is that the legal position governing the matters of Government contracts envisages that, ordinarily, the soundness of the decision taken by the tender issuing authority ought not to be questioned, but the decision-making process can certainly be subject to judicial review. The soundness of the decision can be questioned, firstly, if the decision made is so arbitrary and irrational that the Court can say that the decision is such that no responsible authority acting reasonably and in accordance with relevant law could have reached or; second, if the process adopted or decision made by the authority is malafide or intended to favour someone or; third, if the public interest is affected. In the instant case, when the said firm F.S. Enterprises did not meet all the terms and conditions prescribed in the tender notice inasmuch as it did not furnish the requisite experience certificate in the business of conducting auction of any Government Office/ Semi-Government organization/ Military establishment/ Public enterprise, in such eventuality, the decision of the official Respondents to appoint the said firm as Government Auctioneer clearly falls within the scope of such action where they have acted in a manner in which no responsible authority acting reasonably and in accordance with the relevant law would have acted. In that view of the matter, the Judgment passed by the learned Single Judge is in tune with the mandate of law governing the field and has been passed keeping in view the peculiar facts and circumstances of the case. The finding of the learned Single Judge that with the said F. S. Enterprises out of the race because of ineligibility, the Writ Petitioner/ Appellant in LPA No. 147/2021 remains the sole and lone tenderer with huge difference in his quotation in relation to the one quoted by the said F. S. Enterprises, therefore, it shall not be advisable to grant him the contract, also, is not only based on law, but also in keeping with the public interest involved in the matter.
In the above background, we do not find any illegality or perversity in the impugned Judgment passed by the learned Single Judge. Consequently, both these appeals fail and are, accordingly, dismissed, along with connected CMs therewith. This shall also, accordingly, discharge the two connected Caveats, being Caveat Nos. 1714/2021 and 1724/2021.
Registry to place a copy of this Judgement on each file.