IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE TWELFTH DAY OF AUGUST TWO THOUSAND AND EIGHT PRESENT THE HON'BLE SRI JUSTICE B.SESHASAYANA REDDY WRIT PETITION NO : 15075 of 2008 Between: SABRE-Informix, rep by its Proprietor, P.V.Surinder, S/o. P.V.T.Naidu, Office at Flat No.38 & 39, Ground Floor, Minerva Complex,Sarojini Devi road, Secunderabad. ..... PETITIONER AND 1 The Government of Andhra Pradesh, rep by its Principle Secretary, School Education, Secretariat Buildings, Hyderbad. 2 The Director of School Education, Saifabad, Andhra Pradesh, Hdyerabad. 3 The Director, State Counsel of Education, Research and Training (SCERT), Opp: E-Gate of L.B.Stadium, Andhra Pradesh, Hyderabad. 4 Orange Bytes Systems Pvt., Ltd., Rep by its Director, Satish, Fathers name not known, Office at III Floor, Willigton Plaza, Adjacent to Club View Hotel, Picket Road, Secunderabad. .....RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Aﬃdavit ﬁled herein the High Court will be pleased to issue an appropriate order or direction more particularly one in the nature of Writ of Mandamus declaring the G.O.MS.NO.80 School education (Prog- I) Department, dated 13.06.2008 issued by the 1st respondent through which the 2nd respondent is directed to place order with the 4th respondent to procure software from Microsoft Corporation (India) Pvt., Ltd., at the rate of Rs.44,000- (forty four thousand only) per of the 5000 High Schools Computer Education Programme as arbitrary, illegal, colorable exercise of power, contrary to the scheme formulated in G.O.Ms.No.45 school Education (Prog-I) Department, dated 21.01.2008 and voilative of fundamental rights guaranteed to the petitioner under Article 14 and 19 of the constitution of India and consequently set aside the same. Counsel for the Petitioner: MR.V.R.REDDY KOVVURI Counsel for the Respondent No.: GP FOR SCHOOL EDUCATION The Court made the following : ORDER This writ petition has been ﬁled by SABRE-Informix represented by its Proprietor P.V.Surinder assailing the action of the respondent Nos.1 to 3 in placing the order with respondent No.4 with regard to procuring Software from Microsoft Corporation (India) Private Limited at the rate of Rs.44,000/- per School + local taxes extra for 5000 High Schools for implementation of the 5000 High Schools Computer Education Programme as arbitrary and illegal. The State Council for Education Research & Training (SCERT) called for tenders for supply of Computer Hardware and Software and connected accessories and provisions of Information Technology Services in 5000 Government High Schools in the State of Andhra Pradesh on Build Own Operate and Transfer (BOOT) basis. Subsequent to issuance of the tender notiﬁcation, a pre bid meeting was held on 6.12.2007. Pursuant to the pre bid meeting, a Revised Tender Document came to be issued on 31.12.2007. As per the Revised Tender Document, Software was de-linked with Hardware and it is speciﬁcally stated in the Tender Document that Software like operating system, Oﬃce suits, Anti virus will be provided by the Director, SCERT, A.P., Hyderabad to the selected bidders and it is the responsibility of the bidder to install the Software in each and every machine. The Tender Evaluation Committee evaluated the tenders and thereafter the Tender Approval Committee accepted the tenders with regard to the Government allotted Hubs to the agencies mentioned in GO Ms No.73 with regard to Software. Tender Approval Committee decided to go for Micro Software. Certain correspondence came to be entered with Micro Software. The Micro Software in turn directed the Director SCERT, AP., Hyderabad to contact M/s. Orange Bytes Systems Private Limited-4th respondent, who is one of the partners in the country. After negotiations with 4th respondent, supply of Micro Software came to be entrusted to 4th respondent as a felicitator to procure Software from Micro Software. The action of the respondent Nos.1 to 3 in procuring Micro Software through 4th respondent is under challenge in this writ petition. It is stated in the aﬃdavit ﬁled in support of the writ petition that Linux Software is much cheaper and friendly user when compared to Micro Software and therefore, the action of the respondents in going for Micro Software is illegal and arbitrary. For better understanding of the grievance of the petitioner, I may refer paragraph 8 of the aﬃdavit ﬁled in support of the writ petition and it is thus: “I submit that the petitioner is denied the right to participate in the process of awarding contract for Software for implementing the said scheme by the 1st respondent by by- passing the Tender process as has been envisaged in G.O.Ms.no.45. If the respondent Nos.2 & 3 were permitted to follow the procedure envisaged in GOMs.No.45, the petitioner would have got an opportunity to submit its Tender to provide its Software at economical rate i.e., for 12 crores for 5 years as against the Rs.22,00,000/- plus additional cost for procuring of anti virus which is cost about Rs.15,00,00,000/- awarded in favour of the 4th respondent and would have saved a sum of Rs.25,00,00,000/- crores of the public exchequer. Even now the petitioner is ready and willing to provide its Software through its parent company for 12 crores would be saved. It is necessary to point out here that the Software of the petitioner which is being provided through its parent Company is hassles free and comparatively more cheaper to the Software being provided through the Parent Company of the 4th respondent. In view of the same most of the Governmental Organizations including the Hon’ble Supreme Court of India are using “Linux Software” taking into the cost factor and date security reason. For implementation the said scheme the neighbouring states are using “Linux Software”. Evidencing the same the cover stories and letters of eminent personalities are ﬁled herewith collectively marked as P5 and the same may be read as part of this aﬃdavit. If the tenders were called for giving opportunity to the petitioner and also the other agencies like the petitioner and the respondent No.4, the 1st respondent would have saved the public exchequer of a sum of Rs.25,00,00,000/- crores. Viewing from any angle the action of the 1st respondent in usurping the duty cast upon the respondent Nos.2 & 3 and awarding the contract in favour of the 5th respondent is highly illegal. Hence, the petitioner is constrained to invoke the extraordinary jurisdiction of this Hon’ble Court under Article 226 of the Constitution of India.” When the writ petition came up for admission, learned Government Pleader for School Education received notice on behalf of respondents 1 to 3. Respondent Nos.1 and 2 ﬁled counter-aﬃdavit. Dr.C.B.S.Venkata Ramana has sworn to the counter-affidavit. It is stated in the counter-aﬃdavit that the Tender Approval Committee in the meeting held on 15.04.2008 opined that the department has certain speciﬁc objectives to provide the students use friendly software. Having gone through the merits of MS products, Tender Approval Committee decided to purchase MS products for the beneﬁt of students. It is also stated that National Level Boards are exposing the students to application tools on Microsoft technologies. States who have adopted Linux based applications are Madhya Pradesh, Assam & Tamil Nadu (Star Oﬃce only). Desktop and Servers are being used on Microsoft platform. States like Uttranchal, Goa, Gujarat, Andhra Pradesh, Karnataka, Haryana, West Bengal-300 schools, UP Sarv Shiksha Abhiyaan, Himachal Pradesh, Delhi Government Schools, Maharashtra Bombay Municipal schools, etc have implemented Miscrosoft technologies in their schools. The petitioner ﬁled reply aﬃdavit wherein it is stated that the 4th respondent is not qualiﬁed to participate in the tender process as per the eligibility criteria prescribed in the Tender Notice dated 11.11.2007. When the writ petition came up for admission and hearing, with the consent of learned counsel for both the parties, the writ petition is taken up for final disposal. Heard the learned counsel appearing for the petitioner and the learned Government Pleader for School Education appearing for R1 to R3. Learned counsel appearing for the petitioner submits that the action taken by the respondent Nos.1 to 3 to go for Micro Software instead of Linux Software is arbitrary. A further submission has been made that de-linking of Software from the tender process is impressible and therefore, the work entrusted to the 4th respondent with regard to procurement by Micro Software is liable to be set aside. He would also contend that Linux Software is cheaper and friendly user and the petitioner is prepared to supply the required Software at the cost of 12 crores. In support of his contention, reliance has been placed on the decisions of Supreme Court in Master Marine Services (P) Ltd vs Metcalfe & Hodgkinson (P) Ltd and another[1] and New Horizons Limited and another vs., Union of India and others[2]. Learned Government Pleader for School Education appearing for the respondent Nos.1 to 3 submits that petitioner has not at all responded to the tender notiﬁcation issued by the second respondent on 11.11.2007 and therefore, he cannot be permitted to contend that the work entrusted to the 4th respondent for procurement of Micro Software is arbitrary and illegal. A further submission has been made by the learned Government Pleader that Tender Evaluation Committee and Tender Approval Committee examined the matter in detail and proceeded to go for Micro Software and it is not for the petitioner to suggest as to which software the respondents 1 to 3 have to adopt in implementation of the programme. Learned Government Pleader took me to the correspondence made with Miscro Software. For better appreciation, I may refer the letter emanating from Miscro Soft which reads as hereunder. “Kindly refer above mentioned subject and your letter dated 18.3.2008. I take this opportunity to thank you for the conﬁdence reposed in Microsoft and the support your esteemed organization is extending to the usage of them. We would also like to assure you that we shall make all possible endeavors to help in the successful implementation of this project. Microsoft Corporation is a world wide policy do not bid or participate or take direct produce orders from the customers. You may place orders for the Microsoft range of products on M/s.Orange bytes Pvt Ltd who is one of our partners in the country. M/s.Orangebytes Pvt Ltd shall deal with your department commercially independent of Microsoft. “ It is trite that if an action on the part of the State is violation of the equality clause contained in Article 226 of the Constitution of India, a writ petition would be maintainable even in the contractual ﬁeld. A distinction indisputably must be made between a matter which is at the threshold of the contract and a breach of contract; whereas in the former the courts scrutiny would be more intrusive, in the latter the Court may not ordinarily exercise it s discretionary jurisdiction of judicial review, unless it is found to be violative of Article 14 of the Constitution. While exercising contractual powers also, the Government bodies may be subjected to judicial review in order to prevent arbitrariness or favoritism on its part. Indisputably, inherent limitation exist but it would not be correct to opine that under no circumstances a writ will lies only because it involves a contractual matter. The ﬁrst and foremost aspect which is required to be kept in view in this writ petition is that the petitioner has not responded to the tender notice dated 11.11.2007. Of course, there is an explanation from the petitioner that tender notice is in respect of three items of work and therefore, he has not participated in the tender. Be that as it may, the petitioner has not placed on record any proof to show that he is prepared to supply Linux Software for 12 crores. There being no proof of it, it is not permissible for the petitioner to contend that he is prepared to supply Software for 12 Crores for which the respondents 1 and 2 entrusted the work to the 4th respondent to procure Software to the respondents at cost of 25 + 12 crores. The petitioner having not responded to the tender notice, in my considered view, cannot be permitted to question the procurement of Micro Software by the respondents 1 to 3 through 4th respondent. The Tender Approval Committee and Tender Evaluation Committee however considered the material on record and decided to de-link the supply of Software from the tender. They directly entered into correspondence with Microsoft and Micro soft advised the second respondent to contact 4th respondent which is one of partners in India. In view of the advise given by the Microsoft, the respondents 1 to 3 entered into correspondence with the 4th respondent and placed an order for Microsoft. It is not for the Court to decide as which two Softwares i.e., Micro Soft Ware or Linux Software is most suitable to the project which is required to be undertaken by the Government. Therefore, the writ petition is devoid of merits and is liable to be dismissed. Accordingly, the writ petition is dismissed at the admission stage. __________ 12-08-2008 rkk [1] (2005) 6 Supreme Court Cases 138 [2] (1995) 1 Supreme Court Cases 478