IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.927 of 2008 ---------- Rajiv Kumar son of Sri Rameshwar Prasad Singh, resident of Sihma, P.S. Matihani, District – Begusarai ………….. Petitioner/Appellant Versus 1. The State Of Bihar through District Magistrate, Darbhanga, 2. The District Magistrate, Darbhanga 3. The District Supply Officer, Darbhanga 4. The Sub Divisional Officer, Sadar Darbhanga 5. Bihar State Food & Civil Supply Corporation Ltd, Sone Bhawan, 5th Floor, Bir Chand Patel Path, Patna – 800001 6. The Managing Director, Bihar State Food & Civil Supply Corporation Ltd, Sone Bhawan, 5th Floor, Bir Chand Patel Path, Patna – 800001 7. The District Manager, Bihar State Food & Civil Supply Corporation Ltd, Darbhanga 8. Chairman-cum- District Magistrate, District Transport Committee, Bihar State Food & Civil Supply Corporation Ltd., Darbhanga 9. Sunil Kumar Singh, Son of Sri Ram Parikshan Singh, Resident of Village – Mabbi, P.S. Sadar Mabbi O.P., District – Darbhanga …………… Respondents-Respondents ----------- For the Appellant: Mr. Y.V. Giri, Senior Advocate Mr. Sanjeet Kumar, Advocate For the Respondent nos. 1 to 4 : Mr. P.K. Verma, AAG XI Mr. Tej Bahadur Roy, J.C. to AAG XI For the Corporation : Mr. R.S. Pradhan, Senior Advocate Mr. A.N. Rai, Advocate ----------- P R E S E N T Hon'ble the Chief Justice & Hon'ble Mr. Justice Kishore K. Mandal ----------- Dated, the 26th November, 2008. Bihar Food & Civil Supply Corporation Limited ( for - 2 - short, ‘Corporation’) issued tender notice dated 19th May, 2008 for appointment of Transporting and Handling Agent for the revenue district of Darbhanga for the year 2008-09. The last date for submission of tender was 30th May, 2008. The tender notice stipulated certain details/documents as essential details/ documents. A bank guarantee of Rs.5,00000/- (Rupees five lacs) in favour of the District Manager of the Corporation with the tender was also one of the essential conditions. Pursuant to the aforesaid tender notice, few bids were submitted, inter alia, by the present appellant – Rajiv Kumar and present respondent no. 9 – Sunil Kumar Singh. The District Transport Committee, Darbhanga held its meeting for consideration of the tenders on 16th June, 2008. Although some irregularity was found in the submission of the bank guarantee by Sunil Kumar Singh but the District Transport Committee found that the said irregularity was cured and, accordingly, it recommended to the Managing Director of the Corporation that Sunil Kumar Singh be appointed as Transporting- cum- Handling Agent for the revenue district of Darbhanga for the years 2008-09. The Managing Director initially agreed with the view of the District Transport Committee for award of contract to Sunil Kumar Singh but later on he withdrew the approval. In so far as Rajiv Kumar (present appellant) is concerned, his bid came to be rejected on diverse grounds viz., that he was accused in few criminal cases; that his work during the period 2007-08 was unsatisfactory and that he and his brother are transporting agents of the Corporation for different - 3 - districts in Bihar. 2. Rajiv Kumar as well as Sunil Kumar Singh both approached this Court by filing separate writ petitions. Rajiv kumar in his writ petition being C.W.J.C. No. 12375 of 2008 prayed for quashing the communication dated 18th June, 2008 whereby the recommendation was made by the Managing Director of the Corporation for appointment of Sunil Kumar Singh as Transporting and Handling Agent. He also prayed for direction to the Corporation to appoint him Transporting and Handling Agent for the revenue district Darbhanga for the years 2008-09. 3. Sunil Kumar Singh, in the writ petition being C.W.J.C. No. 14779 of 2008 challenged the order dated 21st August, 2008 issued by the Managing Director of the Corporation whereby his appointment as Transporting and Handling Agent for the district Darbhanga for the financial year 2008-09 was cancelled and an order to invite the fresh tender came to be issued on 22nd August, 2008. 4. It transpires that pursuant to the decision taken by the Corporation on 22nd August, 2008 for issuance of re-tender, the process for re-tender was initiated by the Corporation by issuance of notice dated 4th September, 2008. An interlocutory application was filed by Rajiv Kumar on 7th September, 2008 in his writ petition, praying therein that the tender notice dated 4th September, 2008 be stayed. Although the Single Judge by his order dated 15th September, 2008 restrained the Corporation from proceeding with the re-tender process - 4 - vide notice dated 4th September, 2008 in respect of Darbhanga district, but it transpires that neither leave was granted for amendment in the writ petition by making additional prayer in this regard nor the petitioner seems to have pursued for leave of the court for amendment in the writ petition. 5. The Single Judge heard both the petitions together and disposed of them vide order dated 17th October, 2008. In so far as writ petition filed by Rajiv Kumar is concerned, the Single Judge noticed the reasons assigned by the District Transport Committee in disqualifying him for the award of the contract but did not find merit in any of these reasons. The Single Judge, however, did not grant any relief to Rajiv kumar. 6. As regards the writ petition filed by Sunil Kumar Singh, the Single judge observed that as a matter of fact, he did furnish a bank guarantee along with the tender but the said bank guarantee was not in the correct format. Sunil Kumar Singh, later on, substituted the bank guarantee earlier furnished by him by a fresh bank guarantee in proper format. The lapse on the part of Sunil Kumar Singh in not furnishing bank guarantee in proper format was treated by the District Transport Committee as a mere technical irregularity. The Single Judge further noticed that the Managing Director first approved the recommendation made by the District Transport Committee and withdrew his approval but that was done without notice to Sunil Kumar Singh. Having recorded that, the Single Judge did not pass any positive - 5 - order in favour of Sunil Kumar Singh either. The Single Judge observed that since re-tender process has started, both the petitioners may participate in the said re-tender process. However, when it was brought to the notice of the Single Judge that none of the petitioners have participated in the re-tender process pursuant to tender notice dated 4th September, 2008 as they had challenged the earlier decision taken by the Corporation by filing writ petitions, a statement was made by the senior counsel for the Corporation that fresh tender notice would be issued by the Corporation. In this backdrop, Single Judge permitted Rajiv Kumar as well as Sunil Kumar Singh to participate in the fresh tender process. The District Transport Committee was directed to evaluate fresh individual tenders in accordance with law and make recommendations accordingly. 7. Mr. Y.V. Giri, the senior counsel for the appellant (Rajiv Kumar) contended that the three grounds on which the District Transport Committee held the appellant disqualified, have not found favour with the Single Judge and the Single Judge having held that the consideration of the District Transport Committee in so far as the appellant was concerned, was vitiated, the contract for Transporting and Handling Agent for Darbhanga ought to be awarded to the appellant. He would, thus, submit that there is no justification in granting liberty to the Corporation to issue tender afresh. 8. Mr. R.S. Pradhan, senior counsel for the Corporation informed us that pursuant to the order of the Single Judge dated 17th - 6 - October, 2008, a fresh tender notice has been issued on 17th November, 2008 for appointment of Transporting and Handling Agent for Darbhanga district and the process is on. He, thus, submitted that no interference is called for in the impugned order. 9. The question is: whether in view of the finding of the Single Judge that decision of the District Transport Committee to disqualify the appellant is vitiated, the appellant is entitled to the award of contract for appointment as Transporting and Handling Agent ? and what is the effect of issuance of fresh tender notice by the Corporation on 17th November, 2008. 10. The rate quoted by the appellant as well as Sunil Kumar Singh in their respective bid documents is exactly identical. Sunil Kumar Singh quoted his rate thus: FOR COMMODITIES TRANSPORT RATE (Per Qtls. Per K.M.) Only 1 – Where total distance does not exceed 10 K.M. (Minimum Rs.450/- per truck load of atleast 9 M.T. is guaranteed on the Minimum Transport rates fixed by the Corporation). 97 Pasia MG- 1100 2 – Where total distance does not exceed 20 K.M. (Minimum Rs.550/- per truck load of atleast 9 M.T. is guaranteed on the Minimum Transport rates fixed by the Corporation). 91 Pasia MG- 1300 3 – Where total distance does not exceed 50 K.M. (Minimum Rs.980/- per truck load of atleast 9 M.T. is guaranteed on the Minimum Transport rates fixed by the Corporation). 57 Pasia MG- 1500 4 – Where total distance does not exceed 100 K.M. (Minimum Rs.1550/- per truck load of atleast 9 M.T. is guaranteed on the Minimum 47 Pasia MG- 2500 - 7 - Transport rates fixed by the Corporation). 5 – Where total distance is above 100 K.M. (Minimum Rs.1950/- per truck load of atleast 9 M.T. guaranteed on the Minimum Transport rates fixed by the Corporation). 47 Pasia MG- 3500 11. The rate quoted by the appellant is thus: Distance Slab Appellant’s Rate 0-10 Km. 97 P. M.G. 1100/- 0-20 Km. 91P. M.G. 1300/- 0-50 Km. 57P. M.G. 1500/- 0-100 Km. 47 P. M.G. 2500/- Above 100 Km. 47P. M.G. 3500/- 12. The same rate having been quoted by two bidders, the Corporation has to choose one because only one bidder could be appointed as Transporting and Handling Agent by the Corporation. In so far as Sunil Kumar Singh is concerned, although the contention of the appellant has been that essential condition of furnishing bank guarantee was not fulfilled by him, the fact of the matter is otherwise in as much as Sunil Kumar Singh did furnish bank guarantee along with the tender documents. The said bank guarantee was, however, not in proper format. The deficiency was made up by Sunil Kumar Singh by furnishing bank guarantee in proper format. Apparently, the view of the District Transport Committee that non-furnishing of bank guarantee in proper format was a mere irregularity, cannot be said to be legally - 8 - unjustified. As a matter of fact, it was in this backdrop that the Managing Director accepted the view of the District Transport Committee and granted his approval. Subsequently, the Managing Director of the Corporation, for the reasons best known to him, withdrew the approval which has been found to be legally not sustainable by the Single Judge with which, we agree. However, Sunil kumar Singh has not been granted any relief by the Single Judge, yet Sunil Kumar Singh is not aggrieved by the order of the Single Judge as he has not filed any appeal. Sunil Kumar Singh, having not filed any appeal from the impugned order, can be safely assumed to have accepted the order of the Single Judge. The order of the Single Judge, qua Sunil Kumar Singh, having become final, the only course open to the Corporation is to issue fresh tender which they have, in fact, issued on 17th November, 2008. If the contention of the appellant is accepted, it would tantamount to inconsistent order which we are afraid has to be avoided. Moreover where there are two rival bidders having given same offer and are aggrieved by the decision of the consideration of their respective bids and some merit has been found by the Single Judge in the contention of both the bidders in challenging the action of the Corporation, the best course that the Corporation can follow is to have fresh tender process and that is exactly what the Corporation has decided to do. Letters Patent Appeal, therefore, has no merit. 13. It is important to notice that the interest of the appellant has been adequately safeguarded by the Single Judge in permitting him to participate in the fresh tender process. At this stage, - 9 - senior counsel for the appellant submits that time for giving bid under the fresh tender notice dated 17th November, 2008 has already expired. Mr. Y.V. Giri would submit that the appellant did not take any steps in submitting fresh bid in view of pendency of the present appeal. He urged that earnest money deposited by the appellant with the earlier tender may be treated as earnest money with the bid that the appellant may furnish under the tender notice dated 17th November, 2008. He also submitted that the Corporation may be directed to supply tender papers to the appellant by 11 A.M. tomorrow i.e. 27th November, 2008 to enable the appellant to submit his bid tomorrow itself. 14. In the light of the submission made by the senior counsel for the appellant, and agreed to by the senior counsel for the Corporation, we pass the following order: (i) The District Manager, Bihar State Food & Civil Supplies Corporation, Darbhanga shall supply tender papers to the appellant tomorrow i.e. 27th November, 2008 by 11 A.M. pursuant to the tender notice dated 17th November, 2008. (ii) The appellant shall give his bids as per tender notice dated 17th November, 2008 tomorrow itself i.e. on 27th November, 2008 by 4.30 P.M. (iii) The earnest money deposited by the appellant with his bid pursuant to tender notice dated 19th May, 2008 shall be treated as earnest money deposited with the fresh bid pursuant to tender notice dated 17th November, 2008. (iv) By way of interim arrangement, it is clarified that for - 10 - consideration of the appellant’s bid, the bank guarantee furnished by him along with the bid pursuant to the tender notice dated 19th May, 2008 shall be treated as sufficient compliance of the requirement of furnishing bank guarantee along with the bid. However, the appellant will have to furnish fresh bank guarantee pursuant to the tender notice dated 17th November, 2008 within seven days from submission of bid. Upon furnishing fresh bank guarantee, the earlier bank guarantee furnished by the appellant with the bid pursuant to tender notice dated 19th May, 2008 shall be returned. We order accordingly. R.M. Lodha, CJ Kishore K. Mandal, J. Anil/