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Judgment
The instant writ petition has been filed challenging the decision dt. 29th August, 2018, wherein the bid of the petitioner has been rejected during
technical evalution, as bid of the petitioner, being technically non-responsive.
The respondent-Rajcomp Info Services Ltd. invited bids for Supply, Installation and Maintenance of Radio Frequency (RF) Links and outdoor Wi-Fi
Access Point across the State of Rajasthan under RajNet Project Phase-II.
The petitioner-company claims itself to be a public sector enterprise under the control of Department of Telecommunication, Ministry of
Communications, Government of India. The petitionercompany is said to be set up in 1978.
It has been pleaded in the writ petition that the petitionercompany had fulfilled all the eligibility conditions and in arbitrary manner, the respondents
have declared the bid of the petitionercompany as technically non-responsive.
This Court had issued notices of the writ petition on 5th September, 2018. The respondents have filed reply to the writ petition and have raised the
preliminary objection about the maintainability of the writ petition, in view of alternative remedy available under the Rajasthan Transparency in Public
Procurement Act, 2012.
Learned counsel for the respondents-Mr. R.P. Singh, Sr. Adv. has submitted that the petitioner-company has wrongly approached this Court by filing
the instant writ petition as the forum of filing appeal, itself was provided in the bid document. Counsel for the respondents has submitted that in the bid
document it was provided that the First Appellate Authority can decide the First Appeal and Principal Secretary, IT&C, Government of Rajasthan
was prescribed as the First Appellate Authority.Â
Counsel submitted that the Second Appeal is also provided before the Second Appellate Authority and Secretary (Budget), Finance Department,
Government of Rajasthan is the Second Appellate Authority. Counsel submitted that this Court in catena of cases has taken a view that writ petition
is not the appropriate forum/remedy, where the dispute can be raised with respect to rejection of the bid in the tender process.
Counsel submitted that even the provision of granting stay or passing interim order, is also provided under Section 38 of the Act of 2012, where
appeals are to be filed.
Learned counsel for the petitioner submitted that the writ petition is the appropriate forum which has been invoked by the petitioner and this Court
under Article 226 of the Constitution of India can exercise its discretion against arbitrary action of the respondents. Counsel further submitted that
the availability of alternative, efficacious remedy is not a bar for doing substantial justice. Counsel submitted that the remedy of not entertaining the
writ petition is a self-imposed restriction followed by Court but it is not mandated by any of the provisions of the Constitution of India.
I have heard the submissions made by learned counsel for the parties and perused the material on record.
This Court prima-facie is of the opinion that the petitioner has remedy to approach the Appellate Authority by way of filing of the appeal. The
perusal of bid document shows that First Appellate Authority has been prescribed as Principal Secretary, IT&C, Government of Rajasthan.
Counsel for the petitioner informed this Court that the procuring entity in the instant case is Managing Director, who has issued the tender and at
present Chairman-cum-Managing Director is not working and it is the Principal Secretary, who is working as Chairman-cum-Managing Director.Â
Counsel submitted that if the procuring entity and the Appellate Authority is the same, no purpose would be served to go back to the Appellate
Authority.
This Court asked learned counsel for the respondents, as whether the First Appellate Authority is the same authority, who has been prescribed as
Principal Secretary IT&C, Government of Rajasthan and the same incumbent who occupying the post of Managing Director. Mr. R.P. Singh-learned
counsel for the respondents submitted that at present the same person, who had issued the tender is working as the Appellate Authority i.e. the
Principal Secretary IT&C, Government of Rajasthan.
This Court finds that if the petitioner is asked to go to the Appellate Authority, the same authority who issued the tender, he cannot decide the appeal
of the petitioner. The Rule of natural justice and fair play also requires that the Appellate Authority has to be the Higher Authority than the
procuring entity. This Court, finds that the respondents have prescribed the Second Appellate Authority i.e. the Secretary (Budget), Finance
Department, Government of Rajasthan.
Mr. R.P. Singh Sr. Adv., on instructions submitted that petitioner is free to file First Appeal before the Secretary (Budget) Finance Department,
Government of Rajasthan and since the Second Appellate Authority would be the First Appellate Authority in the peculiar circumstances of this case,
the remedy of filing First Appeal has to be availed by the petitioner & then to file Second Appeal, if need arises.
This Court, finds that the Second Appellate Authority has to be higher than the Authority, who will decide the First Appeal. This Court asked learned
counsel for the respondents to suggest the Second Appellate Authority, who can decide the appeal of the petitioner in case, he feels aggrieved from
the order of the First Appellate Authority.
Mr. R.P. Singh, Sr. Adv., on instructions from the Officers, who are present in Court, submitted that petitioner would be free to file Second Appeal
before the Additional Chief Secretary (Finance), who is Higher than the Second Appellate Authority in the Hierarchy, who has to act as First
Appellate Forum in this case.
Learned counsel for the petitioner-Mr. A.K. Sharma, Sr. Adv. submitted that the respondents are proceeding with the bids and making the process
final and as such the interim protection may be granted to them.
This Court, deems it proper to permit the petitioner to file the Appeal before the Secretary (Budget) Finance Department, Government of Rajasthan
and same will be treated as First Appeal. The appeal may be filed on 1st October, 2018. The Appellate Authority is directed to decide the appeal
expeditiously but in no case later than 5 days. Petitioner is further directed to file Stay application along with the appeal and the Appellate Authority
shall decide the stay application of the petitioner within two days i.e. on 3rd October, 2018.
This Court deems it proper, to restrain the respondents to proceed further in the matter till 3rd October, 2018, when the Stay application of the
petitioner will be decided by the Appellate Authority.
It is also made clear that in case any party feels aggrieved against order of the First Appellate Authority, they would be at liberty to avail option of
filing Second Appeal before the Additional Chief Secretary (Finance), Government of Rajasthan.
Accordingly, the present writ petition stands disposed of, in the above terms.