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Judgment
Ramesh Ranganathan, CJ
Heard Sri Saurabh Sharma, learned counsel for the appellant-writ petitioner and Sri V.B.S. Negi, learned Senior Counsel appearing on behalf of the
respondent-IIT.
This appeal is preferred against the order passed by the learned Single Judge in WPMS No. 2478 of 2019 dated 27.11.2019. The appellant herein
invoked the jurisdiction of this Court, by way of WPMS No. 2478 of 2019, seeking a writ of mandamus directing the respondents to produce the office
records of the notice inviting tender dated 15.03.2019, including the order/minutes of the Meeting by which the respondents had unilaterally cancelled
the purchase process, of the notice inviting tender dated 15.03.2019, for the purchase of Audio-Video System at LHC-II, IIT Roorkee; a writ of
mandamus directing the respondents to produce the office record of the notice inviting tender dated 7.08.2019, including all the minutes of the meeting
of the Purchase Committee; a writ of certiorari to quash the notification dated 07.08.2019 issued by the second respondent on the approval of the first
respondent; and a writ of mandamus directing the respondents to issue a new notice inviting tender which is in conformity with the CVC Guidelines,
and allows scope for fair competition.
The Indian Institute of Technology, Roorkee invited bids from eligible bidders for installation, of the audio visual system equipment, in its Lecture
Hall complex. A tender notification was initially issued on 22.02.2019 at an estimated value of Rs. 8.8 crores. Since no bids were received pursuant
thereto, the IIT Roorkee could not proceed with procurement of the said equipment. The appellant-writ petitioner is said to have informed IIT Roorkee
that, with a view to broaden the competition, and since it may not be easy for them to receive bids from individual bidders, they should consider inviting
joint-ventures to participate in the bid. Thereafter, IIT Roorkee issued a notice inviting tender on 15.03.2019, revising the estimated value from Rs. 8.8
crores to Rs. 8.5 crores. Two bids were received pursuant thereto, one by the appellant-writ petitioner (a joint-venture), and the other by an individual
bidder.
In terms of the notice inviting tender, the appellant writ petition was the only eligible bidder in the procurement process undertaken pursuant to the
Tender Notification dated 15.03.2019. The IIT, Roorkee cancelled the tender process evidently with a view to ensure greater competition among the
tenderers. A fresh notice inviting tender was issued on 07.08.2019 barring joint-ventures from participating in the tender process. Since the tender
notice dated 07.08.2019 barred, among others, the appellant-writ petitioner joint-venture also, they invoked the jurisdiction of this Court questioning the
validity of the tender notice dated 07.08.2019; and seeking a direction that the tender process, pursuant to the earlier tender notification dated
15.03.2019, be finalised.
Before the learned Single Judge, it was contended, on behalf of the appellant-writ petitioner, that the procurement rules of the IIT did not prohibit
joint ventures from participating in the tender process; the claim of the respondent-IIT, that they had adopted the CPWD Manual which prohibited
joint ventures from participating in the tender process, was not tenable; it is only by an adoption order, approved by the Director IIT, could the CPWD
Manual (which prohibits joint ventures from participating in the bids) have been adopted; and in the absence of any such adoption, the IIT was
obligated to follow its own procurement rules which did not prohibit joint-ventures from participating in the tender process.
The order under appeal discloses that the learned Single Judge found force in the submission of Sri Saurabh Sharma, learned counsel for the
appellant-writ petitioner, that the IIT Roorkee was obligated to follow the procedure established by law, and that had evidently not been followed. The
learned Single Judge observed that, though the IIT Procurement Rules i.e. the Rules for Centralised Purchase, 2018, Store Rules at IIT Roorkee and
the General Financial Rules (GFR) did not permit joint ventures, it did not also prohibit joint ventures from participation; the CPWD Works Manual
(Standard Operating procedures), 2019 had not been formally adopted by the Director, IIT Roorkee; most importantly, Para 12(5) of the 2018 Rules,
and the Store Rules at IIT Roorkee which is the Principal Rules governing the subject, clearly stated that any matter not covered by the rules and
GFR may be referred to the Director; in other words, in case of any ambiguity or where the Rule was silent, the matter had to be referred to the
Director; though the IIT Roorkee could prohibit joint ventures, this prohibition must have the approval of the Director; and this approval of the Director
was not on record. The writ petition was disposed of in the aforesaid terms, and the IIT Roorkee was permitted to proceed with the procurement
process only after having a formal approval of the Director, IIT Roorkee as far as joint ventures were concerned.
While fairly stating that the learned Single Judge was justified in his conclusion that it is only on the approval of the Director, that the CPWD
Manual can be adopted, Sri Saurabh Sharma, learned counsel for the appellant-writ petitioner, would submit that the learned Single Judge had erred in
permitting IIT, Roorkee to proceed with the tender process, initiated pursuant to the tender notification dated 07.08.2019, on a formal approval being
given by the Director, IIT Roorkee to the adoption of the CPWD Manual; approval of the Director, IIT Roorkee would not apply retrospectively from
a date anterior to the date on which the notice inviting tender was issued on 07.08.2019; even if the Director IIT intended to grant approval, for
adoption of the CPWD Manual, he could only do so after cancelling the tender notification dated 07.08.2019; and, after passing an order of adoption,
fresh tenders ought to have been invited by issuing a fresh notice inviting tenders.
Sri V.B.S. Negi, learned Senior Counsel appearing on behalf of the respondent-IIT, would submit that, in terms of the order passed by the learned
Single Judge, the Director, IIT Roorkee has passed a formal order of approval whereby the CPWD Manual has been adopted; and since, on adoption
of the CPWD Manual, joint ventures are barred, the respondent IIT was justified in proceeding with the tender process, initiated pursuant to the tender
notice dated 07.08.2019, since it barred joint-ventures from participating in the tender process.
In so far as the contention, urged on behalf of the appellant-writ petitioner, that a fresh tender notification should have been issued, after approval
by the Director of the CPWD Manual, and the procurement process could not be undertaken pursuant to the earlier tender notification dated
07.08.2019, is concerned, it must be borne in mind that it is only a person aggrieved thereby who is entitled to invoke the jurisdiction of this Court
seeking its interference. Once it is accepted that the Director, IIT has the power to adopt the CPWD Manual, and has accorded approval, albeit in
terms of the directions issued by the learned Single Judge in the order under appeal, issuance of a fresh tender notification would hardly make a
difference to the appellant-writ petitioner as, on the CPWD Manual being adopted, such a fresh tender notification would also bar joint ventures from
participation. Consequently, the appellant-writ petitioner joint-venture would also be disentitled from participating in the tenders invited pursuant to such
a fresh tender notification. As the appellant-writ petitioner would not be entitled to participate in the tender process, even if a fresh tender notification
is issued, this Court cannot be called upon by the appellant-writ petitioner to issue a futile writ, as issuance of such a writ would be of no avail in so far
as they are concerned.
We are satisfied, therefore, that the learned Single Judge was not in error in holding that, while the tender process could proceed, it should only be
after the Director, IIT, Roorkee gives his formal approval to the adoption of the CPWD Manual. That having been done, the respondents IIT was
justified in proceeding with the tender process. A feeble attempt is made by Sri Saurabh Sharma, learned counsel for the appellant-writ petitioner, to
submit that the entire tender exercise is vitiated by malice. There is no specific plea in this regard, in the Writ Petition, with respect to the tender notice
dated 7.08.2019. As has been rightly held by the learned Single Judge, the allegations of malice and favouritism are bereft of specific particulars or
any prima facie evidence. Such a plea of malice or bias necessitates rejection.
The scope for interference, in an intra-court appeal, is extremely limited. Save case where the order under appeal suffers from a patent illegality,
no interference is called for. We are satisfied that the order under appeal does not suffer from any such infirmity. The Special appeal fails and is,
accordingly, dismissed. However, in the circumstances, without costs.
Sri V.B.S. Negi, learned Senior Counsel, undertakes to hand over a copy of the proceedings of the Director, IIT, Roorkee, adopting the CPWD
Manual, to Sri Saurabh Sharma, learned counsel for the appellant-writ petitioner, to enable them, if so choose, to question its validity in appropriate
legal proceedings.