IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.13948 of 2009 1. MANOJ KUMAR S/O LATE BHASO SINGH MOH- JAI PRAKASH NAGAR, WARD NO. 22, P.O. & P.S. TOWN & DISTT. KHAGARIA Versus 1. BIHAR STATE FOOD & CIVIL SUPPLIES CORPORATION LTD. SONE BHAVAN, 5TH FLOOR, BIR CHAND PATEL PATH, PATNA - 800 001 2. THE MANAGING DIRECTOR, BIHAR STATE FOOD AND CIVIL SUPPLIES CORPORATION LTD. SONE BHAVAN, 5TH FLOOR, BIR CHAND PATEL PATH, PATNA - 800 001 3. THE CHIEF OF PROCUREMENT BIHAR STATE FOOD AND CIVIL SUPPLIES CORPORATION LTD., KHAGARIA 4. THE DISTRICT MANAGER BIHAR STATE FOOD AND CIVIL SUPPLIES CORPORATION LTD., KHAGARIA 5. THE CHAIRMAN-CUM-DISTRICT MAGISTRATE, DISTRICT TRANSPORT COMMITTEE BIHAR STATE FOOD AND CIVIL SUPPLIES CORPORATION LTD., KHAGARIA 6. PAWAN KUMAR S/O SRI RAMESHWAR PRASAD SINGH VILL- SIHMA, P.S. MATIHANI, DISTT. BEGUSARAI 7. DEEPAK KUMAR S/O SRI RAMESHWAR PRASAD SINGH VILL- SIHMA, P.S. MATIHANI, DISTT. BEGUSARAI 8. STATE OF BIHAR THROUGH THE DISTRICT MAGISTRATE, KHAGARIA. ----------- For the Petitioner :- Mr. Basant Kumar Chaudhary, Sr. Advocate & Mr. Shivendra Kishroe. For the Respondent Corporation :- Mr. R. S. Pradhan, Sr. Advocate & Mr. A. N. Rai. For the State :- Mrs. Babita Kumari, A.C. to S. C. I. For Respondent nos. 6 & 7:- Mr. Rama Kant Sharma, Sr. Advocate &Mr. Sanjeet Kumar. ------ 4 11/02/2010 Petitioner wants quashing of letter no. 7891 dated - 2 - 4.9.2009 (Annexure-1 to the writ application) by virtue of which a contract for transportation of foodgrains has come to be awarded in favour of respondent no. 6 and respondent no. 7 being the next lowest successful bidder has been put in the panel. This according to the petitioner requires interference for the reasons urged at the Bar. There was a notice inviting tender issued by the Bihar State Food and Civil Supplies Corporation Ltd. (shortly the Corporation) for transportation of goods from various godowns located in the district of Khagaria. In the first round of bid the petitioner turned out to be the only successful bidder because the private respondents stood disqualified due to pendency of criminal cases against them. Such a disqualification became a subject matter of challenge in CWJC Nos. 13263 of 2008 and 13319 of 2008. The challenge by the two private respondents in the said writ application was that mere pendency of criminal case would not debar them from participation in the tender or engaging in trade and commerce because the fundamental right conferred upon them under Article 19(1)(g) of the Constitution cannot be taken away without a statute. The private respondents - 3 - succeeded before the High Court. The matter went back for re-consideration before the Corporation. The matter, therefore, was looked into by the Corporation and examined in the light of the High Court order afresh. The net effect of the decision of the High Court was that even the private respondents came within the zone of consideration and were allowed to participate on the basis of their initial tender. From the review and appraisal of the financial bids Pawan Kumar was found to be the lowest bidder and Deepak Kumar, the next lowest bidder. Pawan Kumar has now been awarded the contract and agreement has been executed for about a year. Deepak Kumar is in the panel as a stand-by. The petitioner, therefore, has now challenged the said decision as contained in Annexure-1 on the ground that the initial tender was invited in the year 2008-09 and now it is a stale invitation and a fresh notice inviting tenders should be issued. The other submission is that there are recommendations in favour of the present petitioner as well by the District Transport Committee. If the recommendation was there in his favour it should have weighted with the final authorities at the Headquarters while finalising the tender. - 4 - Keeping him out from zone of consideration and non award of work upon him is in breach of the said recommendation. The other submission is that there are provisions for allotting work in favour of more than one person. If this discretion vested with the Corporation is allowed to be exercised, then even the petitioner would be given some part of the assignment to do the work. The stand of the respondent Corporation is that once the private respondents came into the zone of consideration based on the intervention of the High Court, a comparative analysis of the financial bid was made and dependent upon the price quoted by the tenderers tender work has been awarded. The recommendation of the District Transport Committee is only a recommendation but final decision has to be taken in due interest of the Corporation keeping the least out-lay in terms of price for transportation of the foodgrains. Learned Senior Counsel representing the private respondents has filed a very detailed counter affidavit and has supported the decision taken in his favour. His submission is that the stand of the petitioner that the notice inviting tender - 5 - has become stale and a fresh tender is to be called is misplaced because the advertisement says that the tender will be for a period of one year from the date the agreement is executed. No doubt, there was litigation which delayed finalisation of the tender but that by itself does not give a right to the petitioner to demand issuance of a fresh notice inviting tenders. It is only a ploy to defeat the right which has accrued in favour of the private respondents. This submission of the private respondents finds favour with the Court because the tender is to operate only for a period of one year from the date of execution of agreement. Other aspect which must be noticed is that the recommendation of the District Transport Committee is only a recommendation and they are not the final authority to decide it. If the final authority taking the decision has not acted in arbitrary manner and has awarded the tender in favour of the private respondent, who was the lowest bidder, then they have done no wrong in this regard. However, the fact which has emerged from the pleadings in the writ application is that the award of contract is operational and it is going to end on 4.9.2010. If that be so, it will further cause - 6 - administrative problem if any direction or interference is made by the Court at this stage; more so when no case of arbitrariness or breach of law has been established by the petitioner in award of annexure-1. This writ application has no merit. It is dismissed accordingly. AMIN (Ajay Kumar Tripathi, J.)