1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE WRIT PETITION NO.4257 OF 2010 WITH CIVIL APPLICATION NO.1404 OF 2010 In WRIT PETITION NO.4257 OF 2010 1. Agni Aero Sports Adventure Academy Private Limited, a company incorporated under the provisions of the Companies Act, 1956 having its registered office at Hangar No.2, Jakkur Aerodrome, 12th K.M. Bellary Road, Bangalore—560 064. 2. Mrs.Sapna Sharma, adult, Indian inhabitant, residing at 99/A, 17B Main Road, Block 5, Koramangala, Bangalore—560 095. : Petitioners V/s. 1. Indian Institute of Tropical Meteorology, an autonomous institute of the Ministry of Earth Sciences set up by the Union of India under the Posts and Telegraphs Act, having its regional office at Dr.Homi Bhaba Road, Pashan, Pune—411 008. 2. Union of India, through the Ministry of Earth Sciences having its headquarters at Mahasagar Bhawan, Block 12, C.G.O. Complex, Lodhi Road, New Delhi—3. 3. Dr.Daniel Rosenfeld 2 though the Program of Atmospheric Sciences Institute of Earth Sciences The Hebrew University of Jerusalem Jerusalem 91904 Israel. : Respondents .... Mr.Ravi Kadam, Senior Advocate, with Mr.S.U.Kamdar, Senior Advocate, i/b. Mr.Mobhit Gadkari & Co., for the petitioners. Mr.G.S.Godbole i/b. Mr.S.M.Railkar for respondent no.1. Mrs.Soma Singh for respondent no.2. .... CORAM : D.D. SINHA AND MRS.MRIDULA BHATKAR,JJ. Date of Reserving ) the Judgement. ) : 17.06.2010. Date of Pronouncing ) the Judgement. ) : 02.07.2010. JUDGEMENT (Per D.D.Sinha,J.) Heard the learned Advocate General appearing for the petitioners, Mr.Godbole appearing for the respondent no.1 and Mrs.Soma Singh appearing for the respondent no.2. 2. Rule, returnable forthwith. The learned counsel for the respective respondents waive service. By consent of the parties, heard finally. 3 3. The following facts have given rise to the filing of the present petition: The tender process in question was initiated by the respondent no.1 for the purpose of availing aviation support for its CAIPEEX-II experiment. CAIPEEX is an acronym for cloud aerosol interaction for precipitation enhancement experiment. The tenders were called for supply, installation and demonstration of three stores/goods/equipments, viz:- (i) Cloud Physics Aircraft (research aircraft). (ii) Cloud seeding aircraft (seeder aircraft); and (iii) Polarimetric radar. 4. It is the case of the petitioners that the bidders were permitted to bid for all three stores or for any of them as per clause 3 of the tender document which reads thus:- “A bidder may bid for any one or more of the items/stores/goods/equipments mentioned in Section V. A separate bid needs to be submitted for each item/store/goods/equipment as per norms given below.” 4 5. The learned Advocate General has submitted that following three tender notices were issued by the respondent no.1. The first tender notice was issued on 12.11.2009. The petitioners were the only bidder who had submitted a bid pursuant to the said tender notice within a stipulated time prescribed in the said tender. M/s.Krishi Consultants submitted their bid after the specified time in contravention of the tender conditions 16.1 and 16.2 of the said tender document and, therefore, the said tender of M/s.Krishi Consultants was liable to be rejected on this sole ground alone. It is contended that the respondent no.1 extended last date of submission of bid (24.12.2009) to 11.1.2010 only to favour M/s.Krishi Consultants by issuing a corrigendum. 6. The learned Advocate General further contended that the second tender notice was issued by the respondent no.1 on 11.1.2010 whereby sealed tenders were invited under two bid system i.e. Technical Bid and Commercial Bid from reputed Indian/foreign manufacturers/authorised distributors/authorized dealers or their authorized Indian Agents for the supply, commissioning and demonstration of stores mentioned in the said tender notice. Pursuant to the said second tender notice, the petitioners and M/s.Krishi Consultants submitted bid for all these stores, whereas, one M/s.ARC submitted bid only for radars. It is the case of the 5 petitioners that during presentation of bids by the respective parties, various discrepancies were noted by its representative. It is submitted that by virtue of clause 5.2 of the tender document, the tender submitted by M/s.Krishi Consultants was ineligible since it was not in conformity with the said clause. Clause 5.2 of the said tender document reads thus:- “The Indian/Foreign Original Equipment Manufacturing companies (or their authorized distributors/dealers/Indian Agents) should have been in the business of supply of the stores/goods/equipments successively for the last three years.” The petitioners also pointed out other disqualifying factors pertaining to the bid submitted by M/s.Krishi Consultants for the 1st respondent. It is the case of the petitioners that the petitioners have also brought these facts to the knowledge of the Hon’ble Minister of Earth Sciences, Government of India. The learned Advocate General has contended that the respondent no.1 to ensure that M/s.Krishi Consultants would continue in the bidding process notwithstanding its technical defects, scrapped the second tender notice and issued another tender notice. 6 7. The third tender notice issued by the respondent no.1 on 26.2.2010 once again invited bids for the supply, installation and demonstration of stores/goods/equipments mentioned therein. However, the third tender notice did not contain clause 2.5 which was part of the second tender notice. The learned Advocate General has submitted that only three bids were received pursuant to the third tender notice, the bidders were the petitioners, M/s.Krishi Consultants and one Gamaetronics. The bids submitted by Gamaetronics was only for one store i.e. radar. It is the case of the petitioners that the 1st respondent sought clarifications on March 30 and April 8, 2010 which were duly replied by the petitioners by their letters dated 2.4.2010 and 19.4.2010. The petitioners stated that in response to its query, the 1st respondent sent an e-mail on 21.4.2010 intimating the petitioners that they were disqualified from CAIPEEX phase II project. 8. The learned Advocate General has contended that for the purpose of this petition, the relevant tender document is the third tender notice dated 26.2.2010 as well as the relevant tender documents and the petitioners are questioning the propriety and validity of the decision of the respondent no.1 in rejecting the petitioners’ bid dated 22.3.2010. 9. The learned Advocate General has submitted that the respondent 7 no.1 has till the filing of the present petition not furnished any reasons for disqualifying the technical bid of the petitioners. It is only after filing of the present petition that the respondent no.1 has sought to produce minutes of the meeting of the Evaluation Committee held on 5.4.2010, perusal of which reflects that the respondent no.1 has not applied the same yardstick for evaluating the technical bids of the petitioners and M/s.Krishi Consultants. It is contended that the Technical Expert Committee disqualified the tender of the petitioners on five counts. Those are as follows:- “1. Program Manager, Member and Member- Convener briefed the committee that the grace gas analyzers projected by M/s.AASAA are the same which were used during CAIPEEX Phase-I. The experiences of the scientists were that the instruments did not work to the satisfaction and due to which there was loss of valuable trace gas data. Hence, the Committee is of the opinion that the same problem of recording inaccurate trace gas data will persist in this phase also if same instruments are used. Also, M/s.AASAA’s clarification for corrective measures for proper performance of such equipment were not found satisfactory by the committee. 8 2. The aircraft proposed by M/s.AASAA is a Piper Cheyenne similar to that used during CAIPEEX Phase-I. In the present tender, there are additional instruments viz. SF6-gas tractor analyzer and radiation along with their power supply units. IITM’s last year’s experience was that there was very little space for scientists to carry out the work in the aircraft. These additional instruments will reduce space available inside, increase the weight and thereby reduce the range of the aircraft. Additionally, this may impact on the total crew carrying capacity of the aircraft. So aircraft offered may not be suitable for the proposed work envisaged for CAIPEEX Phase-II. 3. The sensitivity of the SF6 tracer required is in ppt range while M/s.AASAA have quoted with ppb range, which is 1000 times less sensitive than the technical requirement of the tender. 4. The quoted salt seeder aircraft do not have the capability to carry 500kg of salt as required by IITM. 5. Under the Specific Terms and Conditions the 9 following requirements are to be met as per the tender: (i) The Bidder must provide the cloud microphysics information from satellites and (ii) The Bidder must install and train IITM scientists at IITM in simulation of cloud dynamics, microphysics and seeding impacts using the latest state-of-art cloud model.” The Technical Expert Committee in view of the above points disqualified the bid of the petitioners by observing thus:- “M/s.AASAA’s bid does not contain any information about the above two points. When clarification was sought, it was told that it will be provided. But while going through the CV’s of the scientific team proposed by M/s.AASAA, there is no mention about the team’s experience on these particular issues and there are no relevant publications. Considering all the above technical deficiencies in the bid submitted by M/s.AASAA, committee is of the opinion that M/s.AASAA is not technically qualified and therefore 10 recommends the rejection of the bid.” 10. The learned Advocate General further contended that the 1st respondent had sought clarification vide its letter dated 30.3.2010 from the petitioners as to whether space would be available in the aircraft for scientists after adding research instruments. The said query was answered by the petitioners in the affirmative by its letter dated 2.4.2010 which was duly received by the 1st respondent on 5.4.2010. However, the 1st respondent, for reasons best known to it, did not consider the petitioners’ clarification to the queries raised during the meeting of 5.4.2010. It is submitted that the Technical Committee Member/Convenor Mr.Maheskumar was one of the Scientists who received training in Israel and who had sent the letter for clarification did not deliberately place the clarifications received from the petitioners before the Committee with ulterior motives. 11. It is submitted that it is the case of the petitioners that the petitioners had offered Trace Gas Analyzers produced by the manufactures M/s.ESA from France as well as from the manufacturers API from the U.S.A. which is evident from the tender bid. However, the 1st respondent deliberately disqualified the petitioners on the ground that the ESA gas analyzers were used in Phase I of CAIPEEX and they 11 allegedly found to be inaccurate. It is further submitted that M/s.Krishi Consultants had offered API Trace Gas Analyzers in tender II and the said offer was considered by the 1st respondent and the bid submitted by M/s.Krishi Consultants was held to be a qualified bid. The learned Advocate General, therefore, contended that the said action of the 1st respondent indicates complete non-application of mind on the part of the respondent no.1 in this regard. 12. The learned counsel for the petitioners has submitted that even after 5.4.2010, another query was sent by the 1st respondent to the petitioners by their letter dated 8.4.2010. However, the 1st respondent deliberately did not consider the clarifications provided by the petitioners and acted in an arbitrary and unreasonable manner. 13. It is contended that the petitioners had provided a brief C.V. of Scientists offered by them in accordance with the condition prescribed in the said tender. However, one of the grounds of rejection of the petitioners’ bid by the respondent no.1 was that there is no elaborate information in the C.V., viz., scientific team’s experience in respect of particular issues set out therein. 14. It is contended that the respondent no.1 has placed reliance upon 12 purported dissatisfaction in respect of equipment offered by the petitioners in CAIPEEX-II which, as per the respondent no.1, are the same as used in CAIPEEX phase I project and its performance was found to be unsatisfactory. The learned Advocate General has submitted that the respondent no.1 has constantly portrayed that CAIPEEX phase I was a successful project. The respondent no.1 has, in fact, by its letter dated 30.10.2010 addressed to Capt. Arvind Sharma, founder Director of the petitioner-company, acknowledged that CAIPEEX phase I programme had been successfully completed by fulfilling all its objectives which nullifies the stand taken by the 1st respondent in this regard. 15. It is contended that in accordance with tender condition no. 11.3(a) and (d), the petitioners had offered a detailed description of the proposed SF6 tracer, including its make, configuration and model. It is submitted that M/s.Krishi Consultants have not even specified what type or model of SF6 tracer it is offering for CAIPEEX phase II. The petitioners state that the respondent no.1 has, therefore, not even whispered about the technical compliance of M/s.Krishi Consultants in order to favour them. 16. It is further submitted that as regards disqualification in respect 13 of carrying capacity pertaining to “salts” is concerned, the tender document provides that the “aircraft should also spray ....................... and should be equipped with a system for storing and spraying about 500 kgs. ..............” It is, therefore, contended that the tender document itself prescribes that the capacity should be near about 500 kgs. and the capacity of the aircraft offered by the petitioners was almost 450 kgs., which comes very close to the requirement of the respondent no.1. Hence, the respondent no.1 should not have disqualified the petitioners upon a purported condition which, in fact, did not feature in the tender document. 17. It is the case of the petitioners that the 1st respondent has falsely contended that there is no information in the petitioners’ bid document about the specific terms and conditions set out therein. Counsel for the petitioners has submitted that in the letter dated 2.4.2010 sent by the petitioners, a specific undertaking was given by the petitioners’ accepting certain terms and conditions pertaining to microphysics information on satellites and training for the 1st respondent’s Scientists. 18. The learned counsel for the petitioners has submitted that the respondent no.1 has absolutely no reasons to hold that the various equipments and its feasibility or otherwise offered by M/s.Krishi 14 Consultants were concerning with the terms and conditions of the tender documents nor the yardstick which is applied insofar as the bid of the petitioners, the same yardstick was not applied in case of M/s.Krishi Consultants which is evident from the minutes of the meeting of the Technical Committee held on 5.4.2010. It is contended that the petitioners have imposed utmost trust on the members of the Evaluation Committee and expected them to apply their mind objectively and in a fair manner, they were expected to consider and compare the bids submitted by the respective parties by applying the same yardstick and on the basis of the same principles. It is further contended that the respondent no.1 has neither disclosed any reasons for approving the bid of M/s.Krishi Consultants in the commercial round nor has stated as to why and what conditions were relaxed so as to approve the bids of M/s.Krishi Consultants when as per their own minutes, the C-Band Doppler of M/s.Krishi Consultants was clearly lacking the requisite specification. The learned Advocate General has contended that the Supreme Court in the judgement in the case of W.B. State Electricity Board v. Patel Engineering Co. Ltd. & Ors., reported in (2001) 2 SCC 451, has held that an international/global competitive bidding postulates keen competition and high efficiency and, therefore, it warrants equal application of all terms and conditions to all the bidders. It is submitted that in the present case, ex facie there has been a discrimination in the evaluation of the bids 15 of the petitioners as against M/s.Krishi Consultants in spite of the petitioners being technically better qualified for the purposes of the present project. 19. The learned Advocate General has submitted that there is stark variation in the reasons for technical disqualification shown by the Committee for the same equipments offered by the petitioners, which indicates that there was a complete non-application of mind on the part of the Committee as well as total disregard shown by the Committee to the documents submitted by the petitioners for consideration. The Technical Committee has shown subjective approach towards the evaluation of technical bids rather than objective technical analysis. 20. The learned Advocate General has submitted that the following serious fall-outs of M/s.Krishi Consultants’ bid has been conveniently overlooked by the respondent no.1 clearly with an oblique motive to favour M/s.Krishi Consultants, viz:- (i) The petitioners state that flight certification is an essential condition of the said tender document. (ii) The petitioners are supplying aircraft that have the necessary restricted category certification whereas M/s.Krishi Consultants has not obtained the restricted category 16 certification and is offering a standard category aircraft. A standard category aircraft is used for carrying passengers whereas a seeder aircraft is modified to meet cloud seeding requirements. It is submitted that modifying a standard category aircraft into an aircraft for weather control/cloud seeding purposes is a tedious and time-consuming process and will take considerable time for M/s.Krishi Consultants to modify the standard aircrafts offered by it. It is submitted that this aspect has not been denied by the 1st respondent nor was it contested during the hearing before us. 21. The learned Advocate General further contended that the respondent no.1 sought to place reliance upon “Swamy’s General Financial Rules” which purportedly lays down norms and/or prescribed conditions which the respondent no.1 has sought to apply. The stand of the respondent no.1 that the second tender notice was scrapped and fresh bids were invited under which the petitioners stand disqualified was in view of Swamy’s General Financial Rules on which the respondent no.1 has placed reliance. Hence, the dissatisfaction in respect of the bid of the petitioners expressed by the Committee was on vague and frivolous grounds and with the sole purpose to favour M/s.Krishi Consultants. Hence, the said action on the part of the respondent no.1 is wholly 17 arbitrary, illegal and unsustainable in law. It is submitted that the bid of the petitioners is only qualified bid and the the dissatisfaction expressed by the Expert Committee was solely with a view to eliminate competition and to favour M/s.Krishi Consultants. 22. The learned Advocate General has submitted that specifications for C-Band Doppler Radar/C-Band Doppler Polarimetric radar required to be supplied by the bidders mentioned in the tender document read thus:- “Technical specifications of a suitable radar described below should be given at the time of bidding. This specification outlines the minimum technical requirements for the supply of one stationary weather radar systems as remote sensors for meteorological purposes including full Doppler and polarimetric capabilities.” It is, therefore, contended that for “store C”, supply of a polarimetric radar is an essential minimum requirement. The petitioners offered to supply the said radar whereas M/s.Krishi Consultants had offered a C- Band Doppler Radar (non-polarimetric). (This fact is admitted by the respondent no.1 in the additional affidavit-in-sur-rejoinder filed on 18 record). It does not even meet the minimum technical requirement of `store C’ polarimetric radar. 23. The learned Advocate General has submitted that the action of the respondent no.1 in rejecting the petitioners’ bid at the technical stage was actuated by mala fides contrary to the conduct expected by an autonomous institution of the Government. It is further contended that the respondent no.1 has stated in its sur-rejoinder that the respondent no.1 was not satisfied with the consortium issue of M/s.Krishi Consultants at the time of the second bid. However, it is evident from exh.IV annexed to the sur-rejoinder submitted by the respondent no.1 that the third bid also comprised of the same consortium i.e. M/s.Krishi Consultants (Krishi Consultants, Hoysala builders, WWC) but the same has now been qualified by the Technical Expert Committee by going out of their way to create a single vendor situation so as to favour M/s.Krishi Consultants even at the cost of compromising a project of national interest. It is submitted that the petitioners are more than adequately qualified and have incurred the disqualification solely because the respondent no.1 is desirous of eliminating all competition in awarding the tender to M/s.Krishi Consultants, the only other bidder for all three stores. The learned Advocate General, therefore, most respectfully submitted that this Court be pleased to issue an appropriate writ, order or direction by 19 exercising the powers under Article 226 of the Constitution to the respondent no.1 to declare the petitioners’ bid at exh.`Q’ for store-A – Cloud Physics Aircraft and sore-B – Cloud Seeding Aircraft as technically qualified and accept the same. 24. The learned Advocate General has submitted that the petitioners have raised the following issues before this Court:- (i) The petition filed by the petitioners is bad for non-joinder of M/s.Krishi Consultants. (ii)The CAIPEEX-II is a time bound programme and this petition will cause delay in the implementation of the said project. (iii)The decision by the Evaluation Committee is a technical decision and the same cannot be substituted by the decision of this Court. 25. In response to the above contentions, the learned Advocate General has submitted that so far as the issue of non-joinder is concerned, the bid is at the stage of opening of technical bids and the same does not vest any inherent right for M/s.Krishi Consultants to be awarded the tender. The commercial bid is yet to be opened and only after the same is opened, the decision of awarding tender can be taken. Thus, at the stage of evaluation of a technical bid of the respective parties, M/s.Krishi Consultants is neither a necessary nor proper party to the present petition. 20 It is further contended that the petitioners have not made any allegation of mala fide against M/s.Krishi Consultants and thus M/s.Krishi Consultants is neither a necessary nor a proper party to the present proceedings. In order to substantiate the said contention, reliance is placed on the law declared by the apex Court in the case of The General Manager, South Central Railway, Secunderabad and Anr. v. A.V.R. Siddhantti & Ors., reported in (1974) 4 SCC 335. 26. As regards the issue of CAIPEEX-II being time bound programme, it is contended that the respondent no.1 has in its own advertisement displayed on website, stated that the proposed experiment is said to be carried out in three phases. The present tender being phase II, viz., precipitation enhancement experiment to be carried out by artificially seeding the clouds in the year 2010-11. Clause 22.3 of the third Global Tender provides:- “Goods/equipments shall be delivered during July 10 and August 10 and is extendable upto September 2010.” It is, therefore, contended that this clause clearly demonstrates that time was never a strict consideration for the present project and thus nullifies 21 the submission of the respondent no.1 that the present petition seeks to delay the implementation of CAIPEEX phase II. 27. As regards the issue of substitution of the view of the Evaluation Committee by this Court, it is contended by the learned counsel for the petitioners that it is the decision making process rather than the decision itself which is under scrutiny of this Court. The petitioners seek to challenge the arbitrary action of the 1st respondent based on wrong decision making process which was also unfair, improper and has resulted in disqualification of the technical bid of the petitioners. The learned Advocate General, therefore, submitted that this Court is vested with jurisdiction to entertain the present petition under Article 226 of the Constitution. 28. Mr.Godbole, the learned counsel for the respondent no.1, has submitted that the main grievance of the petitioners is that the respondent no.1 has allegedly shown bias in favour of M/s.Krishi Consultants while accepting its technical bid. The entire petition is full of allegations of mala fides and favouritism without there being any foundation. In the body of the petition, there are various allegations made against the respondent no.1 as also against M/s.Krishi Consultants, but M/s.Krishi Consultants is not joined as a party-respondent, though it is a necessary 22 party to the petition. 29. Counsel for the respondent no.1 has