IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 1382 (MS) of 2009 Bhagwat Singh Rawal …Petitioner Versus Rajeev Gandhi Navodaya Vidhyalaya Gangolihat, Pithoragarh and others …Respondents Mr. Paresh Triphathi, Advocate for the petitioner. Mr. K.P. Upadhyay, learned Addl. Chief Standing Counsel for the State of Uttarakhand/ respondent no. 1 to 4. Mr. Anil K. Joshi, Advocate for respondent no. 5. Dated: October 23, 2009 Hon’ble V.K. Bist, J. Heard learned counsel for the parties. Present writ petition has been filed by the petitioner for following reliefs:- “(i) Issue a writ, order or direction in the nature of certiorari quashing the work order, if any, issued in favour of the respondent no. 5 by the respondent authorities for running the mess of the Institute after summoning the same for the respondents. (ii) Issue a writ, order or direction, in the nature of mandamus commanding the respondents to issue work order to the petitioner for running the mess of the institute as per the advertisement dated 07.07.2009. (iii) Issue a writ, order or direction, in the nature of mandamus commanding the respondents to prevent the respondent no. 5 from running the mess of the institute. (iv) Issue an ad-interim mandamus to the said effect. (v) Issue a writ, order or direction which this Hon’ble Court may deem fit and proper under the circumstances of the case may kindly be passed. (vi) Award the cost of the petition.” 2 Brief facts of the case are that an advertisement was issued by the respondent no. 1 calling for the tenders for various functions in Rajeev Gandhi Navodaya Vidhyalaya Gangolihat, Pithoragarh (hereinafter referred as the ‘Vidyalaya’) including running of Mess in the ‘Vidyalaya’. However, earlier notice was cancelled and subsequently vide notice dated 07.07.2009 published in Daily Newspaper Dainik Jagran on 08.07.2009 the tenders were again invited for six items including running of Mess and as per the notice the tenders were to be submitted by 11 A.M. on 21.07.2009 which was last date and same were to be opened at 12:00 Noon on 21.07.2009. The petitioner submitted the tender within time. On 23.07.2009 tenders were opened at 4:00 P.M. on 20.07.2009. The tender of the petitioner was at the rate of Rs. 52 per student while tender of respondent no. 5 was at the rate of Rs. 70 per students and of one Manoj Pathak was at the rate of Rs. 75 per students. Thus the tender of the petitioner being lowest was accepted. On 24.07.2009 the respondent no. 5 submitted an objection to Sub Divisional Magistrate, Gangolihat against the tender of the petitioner indicating therein that the certificate of registration submitted by the petitioner with Trade Tax Department was upto 2006, therefore, the tender of the petitioner is not valid. On 25.07.2009 the petitioner also submitted before the respondents authorities that the respondent no. 5 does not possess the certificate issued by the Food Department of District Pithoragarh as required while he possess the certificate issued from the Haldwani Nagar Palika, hence, the said certificate is of no consequence as same does not satisfy the condition no. 5 of the tender notice. The Sub Divisional Magistrate, Gangolihat directed for detailed inquiry in the matter. Thereafter the tender committee submitted its inquiry report (note sheet) and observed that the tender given by the petitioner was lowest. It 3 was further mentioned in the note sheet that the registration of the petitioner with Trade Tax Department was upto 2006 only and was not valid. With regard to respondent no. 5 the committee found that he does not have the certificate issued from the Food Department of district Pithoragarh. The Committee further observed that rate submitted by the respondent no. 5 (Rs. 78) was higher than the market rate whereas same should be between 55-60 per student. After submission of the report the respondent no. 5 wrote to the Sub Divisional Magistrate Gangolihat on 04.08.2009 informing him that he is ready to supply food at the rate of Rs. 68 per student. Same day, in pursuance of oral direction issued by the District Magistrate, Pithoragarh an order was passed by the Sub Divisional Magistrate Gangolihat on the letter of respondent no. 5 directing the respondent no. 1 to proceed with the agreement at the rate of Rs. 65/- per student. The respondent no. 1 signed agreement same day i.e. on 04.08.2009 granting work to respondent no. 5 for supply of food at the rate of Rs. 65/- per student. Aggrieved by the order of respondent no. 1, present petition has been filed. Before discussing the argument of the parties, it is relevant to mention that the petitioner got his Trade Tax Certificate renewed by depositing the late fee on 22.07.2009. The Assistant Commissioner Trade Tax, Pithoragarh vide letter No. 117/vfl0dfe0ok0d0fi0@fnukad 29 vxLr 2009 informed the Principal of Rajeev Gandhi Navodaya Vidhyalaya Gangolihat, Pithoragarh about the same. The respondent no. 5 also obtained Food Licence from the Chief Medical Officer, Pithoragarh on 29.08.2009. The main argument of learned counsel for the petitioner is that the Trade Tax Registration Certificate obtained by the petitioner was a permanent certificate bearing no maximum period or any last date of its validity, 4 hence the same was valid for all times to come unless cancelled or rescinded by the department but this vital aspect of the matter has been given a complete go-bye by the respondents authorities. He further submitted that in any case petitioner’s renewal was done on 22.07.2009 and respondents acted illegally by not accepting the tender of the petitioner. He further submitted that the items no. 20 of the tender notice provides that all tenders which do not fulfill the conditions of the tender notice will be cancelled and in view of the fact that the respondent no. 5 did not satisfy the mandatory requirement of condition no. 5 of tender notice as he was not having the certificate issued by the District Food Department, Pithoragarh mandated under the tender notice, hence was disqualified. The respondents authorities acted illegally in given him contract. Mr. Anil Kumar Joshi, learned counsel for the respondent no. 5 submitted before the Court that the petitioner got Trade Tax Certificate renewed on 22.07.2009 and thus was not having valid Trade Tax Certificate at the time of submission of tender form, therefore, his tender was rightly not acceptable by the respondents authorities. He further submitted that the respondent no. 5 was found catering licence issued by the District Nagar Health Officer, Haldwani which is a valid licence and it is wrong to say that respondent no. 5 did not fulfill the condition no. 5 of the tender notice. Mr. K.P. Upadhyay, learned Addl. Chief Standing Counsel for the State of Uttarakhand/respondents no. 1 to 4 submitted that since the petitioner was not having valid Trade Tax Licence as such he was not given work contract. He further submitted that the respondent no. 5 is having a certificate issued by the City Health Officer, Haldwani, District Nainital which he had submitted alongwith an affidavit in which he undertook to submit Food Certificate of 5 the Food Department of Pithoragarh. He further submitted that the respondent no. 5 has now obtained Food Licence/Certificate from the Chief Medical Officer, Pithoragarh from 29.08.2009 and there is no illegality in granting contract to the respondent no. 5. For proper appreciation of the issue involved in the petition, the relevant portion of terms and conditions of tender notice are required to be considered and the same are quoted below:- “1. ……………….. 2. ……………….. 3. ……………….. 4. vkiwfrZdrkZ us viuk iath;u vk;dj o O;kikj dj foHkkx esa djk;k gksA vkiwfrZdrkZ dks vk;dj foHkkx Hkkjr ljdkj ds fu;ekuqlkj lsok dj@lzksr ij vk;dj (T.D.S.) tek djuk gksxk fdUgh dkj.kksa ls lsok dj tek u djus dh fLFkfr esa dk;kZy; ds }kjk mDr dVkSrh dj nh tk;sxhA 5. vkiwfrZdrkZ ds ikl ftyk [kk| foHkkx ds }kjk iznRr Hkkstu fuekZ.k@dsVfjax bR;kfn dk izek.k i= 6. to 23 …………….. 24. fufonkdrkZ dks fdlh Hkh izdkj dh 'krZ j[kus dk vf/kdkj ugh gksxk fdUgh Hkh 'krZ fufonkvks ij fopkj ugha fd;k tk;sxkA 30. os lHkh fufonk;s tks mijksDr 'krksZ dks iw.kZ ugha djrh gks fujLr dj nh tk;sxh” It is not disputed that at the time of submission of application for tender the petitioner as well as respondent no. 5 were not fulfilling the required conditions of the tender notice. The petitioner was not having the valid licence issued by the Trade Tax Department whereas the respondent no. 5 was not having the certificate issued by the Food Department of District Pithoragarh. Inspite of the fact that the respondent no. 5 was not fulfilling the condition no. 5 of the tender notice, the respondents authorities granted the contract hurriedly and direction was issued by the District Magistrate, 6 Pithoragarh to the Sub Divisional Magistrate, Gangolihat on 04.08.2009 telephonically. The Sub Divisional Magistrate, Gangolihat also passed order same day for giving contract to the respondent no. 5 and the Principal of the ‘Vidyalaya’ also executed agreement with respondent no. 5 same day. The respondent nos. 1 to 4 in their counter affidavit justified their action by saying that the respondent no. 5 has obtained the Food Licence/Certificate from the Chief Medical Officer, Pithoragarh on 29.08.2009, the date subsequent to the date when contract was given to respondent no. 5. The contract was given to the respondent no. 5 at the rate of Rs. 65 per student ignoring report of the committee, which said that rate should be between Rs. 55-60 per student. Thus the action of the respondent nos. 1 to 4 in granting contract to the respondent no. 5 appears to be biased and deserves to be set aside. If rate quoted by the respondent no. 5 (Rs. 70/- per student) was higher, the respondent no. 1 should not have given him contract. Any other offer from respondent no. 5 should not have been accepted without inviting fresh tender. In the present case the respondent no. 1 acted illegally by taking fresh offer from respondent no. 5 alone. In view of the aforesaid discussion the writ petition is allowed, work order-dated 04.08.2009 given by the respondent no. 1 in favour of the respondent no. 5 is quashed with all consequences. The respondent no. 1 is directed to invite fresh tenders and finalize the same within a period of one month from today. The respondent no. 1 is permitted to continue present arrangement till 25.11.2009. No order as to costs. (V.K. Bist, J.) VKG 23.10.2009