ORDER
1. This writ petition was moved on behalf of Messrs. [ENTITY] and another praying for issue of a writ in the nature of mandamus upon the respondents to cancel, rescind and/or with draw the impugned tender notice, being Infra/1M-l/89/Pt.I/2094, dated July 20, 1989 (Annexure 'H') issued by the [ENTITY] respondents Nos. 1 and 2 and the selection of General Security and Information Service, the respondent No. 3 as supplier of security guards and to show cause as to why fresh tenders would not be issued by the respondents Nos. 1 and 2 herein and to act in accordance with law and a Rule was issued by this Court asking the respondents and each one of them to show cause as to why a writ in nature of mandamus should not be issued commanding the respondents from giving any effect to the impugned tender notice being Infra/M-1/89/1780, dated 20-7-89 being Annexure 'H' to the writ petition dated July 20, 1989 and also for cancellation of consequential selection of respondent No. 3 as supplier of "Security Guards" on the basis of the recommendations of the Tender Committee and for other reliefs.
2. This writ petition was admitted by this Court on September 19, 1989 and by dispensing with the requirements of [SECTION] of the Rules an interim order was granted in terms of prayer (d) of the writ petition thereby staying operation of the impugned Tender Notice and/or order for withdrawal of the Security Guard being Annexure 'J' to the writ petition and selection of respondent No. 3 pending the disposal of this application.
3. On September 27, 1989 this matter was mentioned by the learned counsel appearing for respondents Nos. 1 and 2 and upon hearing Mr. [ENTITY], learned counsel appearing for the respondent Corporation and Mr. [ENTITY] for the writ petitioner, this Court had recorded the submissions of the respondent that after termission of the Tender Agreement with the writ petitioner and the private respondent No. 3 having provided Security Guards on the sites with effect from September 1, 1989 there were Security Guards employed by the writ petitioner and the Security Guards appointed by the respondent No. 3 were directed to continue along with the Security Guards employed by the writ petitioner until disposal of the writ petition.
4. On February 15, 1990 this matter fixed at the instance of the learned Advocate for the respondents who had submitted that an application for vacating interim order could not be heard because of non-availability of the Rule file and ultimately the application for vacating interim order was heard by this Court on March 14, 1990 and the said application for vacating interim order was disposed of by directing early hearing of the writ petition.
5. Thereafter the writ petition was heard on March 20 and 21, 1990 in presence of the parties and the judgment was reserved.
6. Mr. [ENTITY], learned Advocate appearing in support of the writ petition, submitted that the respondent Corporation should not have mentioned in the impugned notice dated July 20,1989 the relevant clause, being clause Nos. 3 and 3(1) to the following effect :
"3. The intending parties are requested to quote total rate for each site per guard showing the break-up on the following three items:
i) Site-wise wages per Guard per month (including the wages- for weekly off-day) taking into account the statutory provisions of the State Government as regards minimum wages applicable in respect of the concerned locality."
7. According to Mr. [ENTITY], in spite of knowledge that there was no fixation of wages by the Government of West Bengal for the Security Guards employed in Security Agency, the insertion of the said clause was unreasonable and arbitrary and consequential selection of the respondent No. 3 on the basis of such condition was invalid.
8. Mr. [ENTITY] submits that the respondents Nos. 1 and 2 have acted arbitrarily in view of the fact that as no statutory provision was there covering the field about enforcement of minimum wages, the said respondents should be directed to call fresh tender.
9. It was further contended that the petitioners' quotation being lowest, the Corporation being respondents Nos. 1 and 2 should not have accepted the quotation of the respondent No. 3 and selected the said respondent.
10. The facts of the case in short are as follows:
[ENTITY], the petitioner No. I, carries on the business of supplying trained Security Guards to various industries, companies and Government Organisations since 1983 and the petitioner No. 2 is one of the partners of the said Agency. The respondent, [ENTITY] (hereinafter referred to as the said Corporation) is a State within the meaning of [SECTION] of the [ACT].
11. The petitioner have been supplying the Security Guards to the Head Office and various offices of the said Corporation. From 1985 onwards, the petitioners have deployed their security guards to the Head Office and various site offices of the said Corporation.
12. Earlier, on January 10, 1989 the Corporation issued a tender notice and invited sealed quotation from Security Agency in respect of their Head Office and various site offices and the writ petitioners participated in the said tender and submitted quotation on January 16, 1989. Accordingly, the petitioners quoted the rates by filling in the Tender Form on May 26, 1989 which was marked as Annexure 'F' to the writ petition but without recording any reason the said tender was cancelled by the respondent Corporation.
13. Thereafter, another tender notice was issued and cancelled and ultimately the impugned tender notice was issued on July 20, 1989 which was marked as Annexure 'H' to the writ petition.
14. Mr. [ENTITY] after placing the aforesaid facts from the writ petition submitted that in view of the communication of the [ENTITY]puty Secretary, [ENTITY]partment of Labour dated June 28/ 30, 1989 there was no necessity for insertion of such clause as admittedly the [ENTITY]puty Secretary had informed the respondent Corporation that there was no fixation of rate of wages in that employment and, as such, by reason of insertion of such clause, the petitioners having participated in the tender were misdirected to quote their rates taking into account the statutory provision of the State Government with regard to minimum wages of the Security Guards.
15. According to the petitioners, before issuance of the impugned tender notice dated July 20, 1989 the respondent Corporation came to learn that there was no statutory provision issued by the State Government with regard to minimum wages of the Security Guards and, as such, the tender notice dated July 20, 1989 was illegal, unreasonable, arbitrary and mala fide.
16. Further, according to the petitioners, their quotation being lowest, the Corporation was duty bound to accept the said lowest rate as quoted in the tender instead of settling the tender with the private respondent No. 3.
17. In this context, Mr. [ENTITY] has placed reliance on a judgment in the case of [ENTITY] v. District Magistrate, Murshidabad , wherein [ENTITY], J. (as he then was) held that the tenderer had a genuine grievance against the order of the Tender Committee accepting the tender of another contractor at a higher rate than that of the petitioner in his tender and was entitled to maintain the writ petition. In the said judgment in para 13, the Hon'ble Judge laying the law relating to entering into contract with the Government or Public Undertaking under [SECTION] of the [ACT] observed, as follows (at page 25 of AIR) .-
"Thus the State can carry on this executive function of either by making a law or without making a law. The exercise of this executive power is subject to [SECTION] of the [ACT] and as such [SECTION] of the [ACT] is applicable to the exercise of such powers. So, in the matter of public contract equal opportunities are to be given to the citizens who apply and they cannot be discriminated against in the matter of giving their offer of such contracts and of having the same considered. In other words, there cannot be any discrimination at the threshold or at the time of entry in the field of consideration of persons with whom contracts will be made by the Government. The decisions in [PRECEDENT], [PRECEDENT], and , [PRECEDENT] were referred to. Therefore, I hold that the petitioner having genuine grievance against the impugned order dated 30-4-81 accepting the tender of respondent No. 6 at rate much higher than that offered by him in his tender is 'an aggrieved person' and competent to maintain the instant writ petition and this preliminary objection raised on behalf of respondent No. 1 having no merits is rejected."
18. Mr. [ENTITY], learned counsel appearing for the respondent-Corporation submitted the following facts from the affidavit-in-opposition affirmed on behalf of the Corporation:
19. In the affidavit affirmed by Sri [ENTITY], the Secretary of the Corporation, the following relevant facts have been stated :
a) The writ petition is not maintainable at the instance of one of the partners only as the petitioner No. 2 had no right to challenge the same.
b)The writ petition for enforcement of contractual obligation and/or agreement is not maintainable.
c)The respondent-Corporation earlier received quotation from some security agencies and the said applications were found to be not perfect and, as such, fresh quotation was invited by cancelling the said tender. The deponent admitted that while examining, the tender including the tender of the petitioner No. 1, the matter was taken up with the State Finance [ENTITY]partment as also the State Labour [ENTITY]partment to ascertain the actual rates of minimum wages for Security Guards. Although no reply was received from the said departments, it was ascertained from the Labour [ENTITY]partment that there was actually no prescribed rate of wages for security and it came to the notice of the respondent No. 1 that there were prescribed rates for "unskilled workmen" engaged for maintenance of construction of roads or building operations as per directives of the Labour Commissioner, West Bengal and that the said rates were being allowed to the Security Guards by some of the Government undertakings.
20. In course of examination of the matter with reference to the rates furnished by the parties, it was seen that taking into account all the rates indicated for different site offices the rate quoted by the General Security & Information Services the respondent No. 3 was the lowest and the total rate also satisfied the minimum wages for unskilled workmen and the rate quoted by the petitioner No. 1 was not the lowest. When the matter was in the process of finalisation, the relevant files of the respondent No. 1 could not be traced for a few days and even after a thorough search when the file could not be found or traced it was decided that an F.I.R. would be lodged. Thereafter, surprisingly the file was traced from the corner of a lavatory of the office premises but the relevant rate quoted by the petitioners could not be found out in the files.
had to call for a fresh quotation which was the only course open for which no grievances should be made by the petitioners.
22. Mr. [ENTITY], learned Advocate appearing for the respondent No. 3, has adopted the submission, of Mr. [ENTITY] and reiterated that the quotation of the petitioner No. 1 was not the lowest and, accordingly, the rate quoted by the respondent No. 3 was accepted.
23. On the basis of the aforesaid pleadings, this Court has to decide the following points in the instant writ petition:
a) Whether the writ petition is maintainable in the writ jurisdiction challenging, inter alia, the notice inviting fresh tender which was issued for the third time by the respondent Corporation?
b) Whether the respondents are justified in inserting the relevant clause, being clause 3(1) of the notice inviting tender and thereby misled the writ petitioner?
c) Whether the writ petitioner having participated in the tender is entitled to challenge the same as the tender has not been given to the writ petitioner?
d) Whether the respondents acted arbitrarily in accepting the highest quoted rate by the respondent No. 3 in the facts of the present case?
24. Let us now consider the aforesaid points on the basis of the pleadings adduced by the parties herein.
25. Issues (a) and (b) being analogous may be simultaneously taken up for consideration.
26. In my view, issue (a) should be answered in the affirmative as the writ petition is directed against the notice inviting tender which incorporated a clause, being clause 3(i), as quoted above, which was nonexistent and, as such, the writ petition is maintainable for challenging the said tender notice. Further, in my view, as the State Government has not extended the provision of minimum wages for Security Guards, which was disclosed in the instant writ petition, such insertion of a clause was unreasonable and, accordingly, the tender notice containing such non-existent material can be moved in the instant writ petition.
27. As regards issues (b) and (c), in my view, the writ petitioner is not normally entitled to challenge a tender notice after participating therein but the rate quoted by the writ petitioner not having been accepted the petitioner is entitled to challenge. In the facts of the present case, since there is insertion of such unreasonable clause containing clause 3(i), by reason of mere participation in the said tender, the writ petitioner cannot be precluded from challenging the said tender notice as unreasonable.
28. As regards issue (d), no materials have been placed before this Court that the rate quoted by the respondent No. 3 was the lowest and, as such, this Court has to take adverse presumption and the writ petition is entitled to succeed in view of the decision reported in the case of [ENTITY] (supra).
29. In answering issue (d), I am of the view that the respondent No. 1 being a statutory Corporation has acted arbitrarily in putting such clause being clause 3(i) which misdirected the petitioner undoubtedly in quoting rates. It further appears from the pleadings that the rate quoted by the respondent No. 3 was higher than the rate quoted by the petitioner.
30. Before parties, this Court has the prima facie evidence to record the rate quoted by the petitioner and the respondent No. 3 as set out hereunder:
Serial Nos.
Locations Rates quoted by the petitioner Rs.
Head Office 447/-
535/13p.
2. Kalyani Site Office 447/-
513/15p.
3. Kharagpur Site Office 583/-
539/15p.
4. Uluberia Site Office 524/-
539/ 15p.
5. Salt Lake Site Office 447/-
535/13p.
6. Bishnupur Site Office 473/-
525/35p.
7. Ramnagar Site Office 473/-
523/51p.
8. Malda Site Office 473/-
525/35p.
9. Coochbehar Site Office 473/-
523/51p.
10. Falta-I Site Office 460/-
523/51p.
11. Falta Division II Site Office 460/-
523/51p.
31. From such table, it appears that save and except Kharagpur Site Office in all the rest site offices the rates quoted by the petitioner were admittedly the lowest as no contrary evidence had been adduced by the respondent Corporation.
32. In the result, the writ petition is entitled to succeed and the selection made in favour of the respondent No, 3 is liable to be set aside by issue of appropriate writ in the nature of Certiorari.
33. Since the respondent No. 3 has already deployed security guards after termination of the earlier agreement with the petitioner, as recorded by my order dated September 29, 1989 until fresh tender is called by the respondent Corporation, the existing arrangement would continue in order to avoid complications.
34. The respondent Corporation will be at liberty to call for fresh tender and thereby invite applications from intending candidates and the respondents will be entitled to call for fresh tender without inserting such clause being clause 3(i) and in accordance with law and will be entitled to ask for applications from all candidates including the petitioner and the private respondent being the respondent No. 3 afresh and settle the tender in favour of any appropriate patty and in accordance with law.
35. Until such fresh tender is finalised, the existing arrangement would continue on an ad hoc basis.
36. The writ petition is allowed in part to the extent indicated above.
37. There will be no order no to costs.
38. Let a plain copy of the operative part of this order be given to the learned Advocates for the parties.
39. Order accordingly.