IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.8965 of 2010 1. RABINDRA YADAV S/O LATE RAJA RAM YADAV R/O VILL KANDHWARA, P.S.SIWAN(M), DISTT- SIWAN. 2. MANOJ KUMAR S/O SRI LAL BABU PRASAD R/O VILL LAKHRAON, P.S.SIWAN(M), DISTT-SIWAN. Versus 1. THE STATE OF BIHAR THROUGH ITS FOOD AND CIVIL SUPPLIES DEPARTMENT PATNA 2. BIHAR STATE FOOD AND CIVIL SUPPLIES CORPORATION LTD. THROUGH ITS MANAGING DIRECTOR SONE BHAWAN, 5TH FLOOR, BIRCHAND PATEL PATH, PATNA 3. MANAGING DIRECTOR, BIHAR STATE FOOD AND CIVIL SUPPLIES CORPORATION LTD SONE BHAWAN, 5TH FLOOR, BIRCHAND PATEL PATH, PATNA 4. CHIEF OF PROCUREMENT , HEADQUARTER, BIHAR STATE FOOD AND CIVIL SUPPLIES CORPORATION LTD SONE BHAWAN, 5TH FLOOR, BIRCHAND PATEL PATH, PATNA 5. DISTRICT MANAGER, BIHAR STATE FOOD AND SUPPLIES CORPORATION LTD. SIWAN 6. DISTRICT MAGISTRATE -CUM-CHAIRMAN, DISTRICT TRANSPORTAION COMMITTEE SIWAN 7. SUBHASH CHANDRA SHARMA S/O NOT KNOWN THROUGH DISTRICT MANAGER , BIHAR STATE FOOD AND SUPPLIES CORPORATION, SIWAN 8. PAMOD KUMAR PANDEY S/O NOT KNOWN THROUGH THE DISTRICT MANAGER, BIHAR STATE FOOD AND SUPPLIES CORPORATION , SIWAN ---------- For the petitioner: Mr. Bishnu Kant Dubey, Advocate For Resp. Corpn.: M/s. R.S.Pradhan, Sr. Advocate and A.N.Rai, Advocate For Resp. Nos. 7 and 8: Mr. Nityanand Mishra For the State: Miss Pallavi Thakur, AC to GA-7. ----------- 5. 26.10.2010 Heard learned counsel for the petitioner, learned counsel for the respondent-Bihar State Food and Civil Supplies 2 Corporation Ltd. and learned counsel for respondent Nos. 7 and 8. The petitioners seek quashing of the letter no. 4333 dated 10.5.2010 issued by the Chief of Procurement, Headquarter, Bihar State Food and Civil Supplies Corporation Ltd. informing the District Manager, Bihar State Food and Civil Supplies Corporation, Siwan regarding the approval of appointment of respondent nos. 7 and 8 for one year as Transporting-cum-Handling agent and also for quashing of the office order contained in letter no. 591 dated 11.5.2010 issued under the signature of the District Manager, Siwan by which he has entered into an agreement with the respondent no. 8, Pramod Kumar Pandey and issued work order in his favour. The brief facts of the case are that the petitioner no. 1 was working as Transporting-cum-Handling agent in the respondent-Corporation in Siwan district in the financial years 2008-09 and 2009-10 along with another such agent and even after the period of contract came to an end the same was extended until a fresh tender could be finalized for which certificates dated 17.7.2009 and 5.3.2010 of satisfactory performance of work were also issued by the District Manager of the respondent-Corporation. The petitioner no. 2 is stated to 3 have been looking after the work of the petitioner no. 1. Subsequently, a tender was floated for the appointment of Transporting-cum-Handling agent for the year 2010-11 for which as many as seven persons including the two petitioners filed their tenders. The District Transport Committee, Siwan sent its recommendation which was considered by the Headquarters Transport Committee at its meeting dated 15.4.2010 in which it was found that as many as 5 out of seven tenderers had quoted the same rates. Among the five tenderers, the names of respondent nos. 7 and 8 were placed at Sl. Nos. 1 and 3 whereas the names of petitioner nos. 1 and 2 were placed at Sl. Nos. 4 and 5 and one Munna Kumar Prasad, whose name was placed at Sl. No. 2, was found to have had no previous experience. The Headquarters Transport Committee recommended the names of respondent nos. 7 and 8 to be appointed for one year as Transporting-cum- Handling agent and the two petitioners were directed to be placed under the reserve panel. Pursuant to the said recommendation, by the impugned letter dated 10.5.2010 (Annexure-5), the Chief of Procurement, Headquarters of the Corporation informed the In- charge District Manager, Bihar State Food and Civil Supplies Corporation, Siwan about the appointment of respondent nos. 7 4 and 8 as Transporting-cum-Handling agents for the district and the placing of the two petitioners in the reserve panel on the terms and conditions mentioned in the said letter. Aggrieved by the same the petitioners have approached this Court. Learned counsel for the petitioners submits that the action of the authorities is wholly arbitrary and unreasonable as nothing is to be found either in the letter of recommendation and the order of appointment to show as to why preference has been given to respondent nos. 7 and 8 while making the appointment as Transporting-cum- Handling agent when the petitioner nos. 1 and 2 stood on exactly same footing as them. It is submitted that there is nothing in the said orders to show that any specific reason was found for appointing the respondent nos. 7 and 8 instead of the petitioners except the fact that in the chart prepared for consideration of the tenders, the names of respondent nos. 7 and 8 was placed at Sl. Nos. 1 and 3 whereas that of the petitioners at Sl. Nos. 4 and 5, the placement at serial numbers during the preparation of the said chart being purely a fortuitous matter having nothing to do with the merits of the tender. Learned counsel for the respondent-Corporation submits that the authorities have acted in the matter according 5 to the serial numbers of the tenderers and there being no other procedure laid down for the appointment of Transporting-cum- Handling agent they have acted in a reasonable and fair manner. Learned counsel also refers to certain allegations made against the petitioner no. 1 regarding the performance of his work for which he refers to a few letters which are on the record. Learned counsel for respondent nos. 7 and 8 also submits that some complaints have been made against the petitioner no. 1 while he was functioning as Transporting-cum- Handling agent and thus he has rightly not been awarded with the contract. Learned counsel for the petitioners counters that on the basis of the complaint no action has been taken by the authorities blacklisting the petitioners or debarring them from applying in future for Transporting-cum-Handling agent and thus any such complaint which may have been made in the course of their functioning can have no relevance in denying them the fresh contract. Learned counsel also refers to the certificates given by the District Manager of the respondent- Corporation in which it has been clearly stated that since 23.12.2008 the petitioner no.1 has completed his work in a 6 commendable manner and the entire amount of food grains have been lifted by him and in view of the fact that the said certificates dated 17.7.2009 and 5.3.2010 are of a late period than the complaint, nothing could be held against the petitioner No.1 as subsequent to the said complaint, he had not only been awarded fresh contract but also his contract has been extended further. On a consideration of the entire facts and circumstances of the case, this Court does not find any reason assigned for not considering the petitioners and giving preference to the respondent nos. 7 and 8 for the appointment of Transporting-cum-Handling agent. The only reason stated is that they were placed higher in the list of tenderers which was sent to the Headquarters Transport Committee. According to me, such reason is no reason in the eye of law. It is evident that in the case of tenderers at Sl. No. 2, namely, Munna Kumar Prasad, it was found that he does not stand on the same footing as he has no experience and thus his candidature has been excluded from consideration by assigning specific reason. So far as the petitioners are concerned, nothing was found against them and as a matter of fact, they were even recommended to be kept in the reserve panel. Thus, the submissions made on 7 behalf of respondent nos. 7 and 8 solely regarding the complaints against the petitioner no. 1, can be of no consequence as the same has not been considered as having any validity in the matter by the Headquarters Transportation Committee and the only reason why the petitioners have not been appointed is the fortuitous circumstance that their names appear at Sl. Nos. 4 and 5. In my view, the procedure adopted in the matter is arbitrary and whimsical and if permitted will enable the respondent-authorities to select the tenderers in whimsical manner by placing those whom they want to select higher on a list although they stand on an equal footing otherwise. It had been found by the authorities that four tenderers qualified and stood on equal footing and therefore if out of them two were to be selected then the only reasonable course of action open to them was to select them by draw of lots. The same having not been done in the present matter, the selection and appointment of respondent nos. 7 and 8 as the Transporting-cum-Handling agent is vitiated, being violative of Article 14 of the Constitution, as the petitioners have not been treated and given equal opportunity as the respondent nos. 7 and 8. In the above circumstances, the writ application is 8 allowed. The letter dated 10.5.2010 of the Chief of Procurement, Headquarters, Bihar State Food and Civil Supplies Corporation Limited and the office order dated 11.5.2010 issued by the District Manager, Bihar State Food and Civil Supplies Corporation, Siwan are accordingly quashed and the authorities of the respondent-Corporation are directed to take a fresh decision in the matter after a draw of lots among the four candidates who were found qualified, namely, the two petitioners and the respondent nos. 7 and 8. Let the draw of lots be held in transparent manner in the presence of the four parties which shall be held on 15th November, 2010. Since the order has been passed in the presence of learned counsels for the petitioners and respondent nos. 7 and 8, no notice is required to be issued to them and the parties shall present themselves personally or through their representatives before the Managing Director of the respondent-Corporation or his authorized representative on the aforesaid date at 10.30 A.M. S.Pandey ( Ramesh Kumar Datta, J.)