w w w . L a w y e r S e r v i c e s . i n



Akhay Tel Communication & Another v/s The State of Assam & Others


Company & Directors' Information:- S TEL PRIVATE LIMITED [Under Liquidation] CIN = U64203HR2007PTC039536

Company & Directors' Information:- E N COMMUNICATION PRIVATE LIMITED [Active] CIN = U92132DL2005PTC143469

Company & Directors' Information:- T C COMMUNICATION PRIVATE LIMITED [Active] CIN = U74999DL2000PTC105354

Company & Directors' Information:- J J COMMUNICATION PRIVATE LIMITED [Active] CIN = U74300WB1997PTC085828

Company & Directors' Information:- P. K. COMMUNICATION PRIVATE LIMITED [Strike Off] CIN = U92141DL1984PTC017748

Company & Directors' Information:- T I COMMUNICATION PRIVATE LIMITED [Active] CIN = U51109HP2009PTC031079

Company & Directors' Information:- S B M COMMUNICATION PRIVATE LIMITED [Strike Off] CIN = U64201WB2010PTC145582

Company & Directors' Information:- P N COMMUNICATION P. LTD. [Active] CIN = U32204DL2001PTC111327

Company & Directors' Information:- A B AND U COMMUNICATION PRIVATE LIMITED [Strike Off] CIN = U74300MH1997PTC107160

Company & Directors' Information:- I TEL INDIA PRIVATE LIMITED [Strike Off] CIN = U64200DL2009PTC188220

Company & Directors' Information:- K AND D COMMUNICATION LIMITED [Active] CIN = U64120GJ1997PLC031879

Company & Directors' Information:- P & G COMMUNICATION PRIVATE LIMITED [Active] CIN = U74140MH2013PTC251505

Company & Directors' Information:- P J COMMUNICATION PRIVATE LIMITED [Active] CIN = U72900DL2000PTC105416

Company & Directors' Information:- M K COMMUNICATION PVT LTD [Strike Off] CIN = U72900HP2006PTC030292

Company & Directors' Information:- H V COMMUNICATION PRIVATE LIMITED [Active] CIN = U52602DL2009PTC193309

Company & Directors' Information:- A AND A COMMUNICATION PRIVATE LIMITED [Strike Off] CIN = U92132DL2001PTC110975

Company & Directors' Information:- G V TEL PRIVATE LIMITED [Active] CIN = U74900DL2013PTC252986

Company & Directors' Information:- B. M. COMMUNICATION PRIVATE LIMITED [Strike Off] CIN = U64100DL2012PTC244419

Company & Directors' Information:- H. K. COMMUNICATION PRIVATE LIMITED [Active] CIN = U64100DL2013PTC255831

Company & Directors' Information:- B R COMMUNICATION PRIVATE LIMITED [Active] CIN = U64203DL2002PTC114477

Company & Directors' Information:- N S N COMMUNICATION PRIVATE LIMITED [Strike Off] CIN = U64100KA2014PTC073757

Company & Directors' Information:- D-TEL LIMITED [Strike Off] CIN = U00323MP1995PLC009589

Company & Directors' Information:- N A COMMUNICATION PRIVATE LIMITED [Strike Off] CIN = U74120DL2008PTC182901

Company & Directors' Information:- G & D COMMUNICATION PRIVATE LIMITED [Strike Off] CIN = U64200MP2007PTC019633

    Case No. WP(C) 7005 of 2018

    Decided On, 31 January 2019

    At, High Court of Gauhati

    By, THE HONOURABLE MR. JUSTICE KALYAN RAI SURANA

    For the Petitioner: M. Choudhury, Advocate. For the Respondents: R.K.D. Choudhury (SR. GA, Assam).



Judgment Text

1. Heard Mr. M. Choudhury, learned senior counsel assisted by Mr. M. Mahanta, learned counsel for the petitioner, Mr. R. Borpatragohain, the learned Advocate General, assisted by Mr. R.K.D. Choudhury, Senior Govt. Advocate and Mr. R.P. Kakoti, learned Senior Counsel assisted Mr. S. Sutradhar, Advocate.

2. By this writ petition under Article 226 of the Constitution of India, the case projected by the petitioners is that the State Level Police Recruitment Board, Assam (‘SLPRB’ for short), the respondent No.2 herein had invited online “Request for Proposal” (‘RFP’ for short) for selection of Professional Agency for implementation of Transparent Recruitment Policy (‘TRP’ for short) in connection with Recruitment of various posts in the Assam Police and other Department that may be entrusted by the Govt. to it for the financial year 2018-19. The RFP was a tender of 2 (two) bid system with 3 (three) stages, being (a) Pre-Qualification Bid, (b) Technical Bid, and (c) Commercial Bid. While the petitioner had submitted its bid in collaboration with Aptech Ltd., the respondent No.4, namely, M/s. Amain Tech Consultants Pvt. Ltd. (‘ATCPL’ in short) had submitted its bid in collaboration with the respondent No.5, i.e. Bloom Electronics Pvt. Ltd. (respondent No.5). It is projected that the respondent No.5 did not meet the pre-qualification criteria and automatically the respondent No.4 remained not qualified. But it is alleged that the respondent No.4, in collusion and connivance of the respondent No.5 resorted to fraudulent practice and the bid submitted by respondent No.4 contained forged and fraudulent certificates of credentials, which called for their disqualification. However, despite the representation submitted by the petitioners, the contract was awarded to the respondent No.4 and accordingly, an agreement was executed between the respondent Nos.2 and 4. Hence, the petitioners have prayed for (i) setting aside decision of the State to select the respondent No.4 as professional agency on the basis of fraudulent and forged certificates of credential, (ii) to set aside and quash the Contract Agreement bearing No. SLPRB/Rec/TRP/PA Vol-II/63 dated 20.09.2018 between the respondents No.2 and 4, (iii) to issue mandamus to the respondents No.2 and 4 (sic.) to declare the respondents No. 4 (sic.) and 5 as disqualified bidder for having submitted fraudulent and forged certificates of credential (work experience certificate) obtained fraudulently by the respondent No.5, (iv) for direction to the respondents No. 2 and 4 (sic.) to rescind/ cancel and/or to forbear from giving effect to the respondent No.4; (v) for a direction to the State Respondents No.2 and 4 to re-evaluate the process from the stage of evaluation of Technical Bids of the qualified bidders and/or for any other relief(s).

3. The following pleadings by the respective parties are on record – (i) writ petition by the petitioners, (ii) affidavit- in opposition filed on 20.11.2018 by the respondent No.1, (ii) affidavit- in- opposition filed on 02.11.2018 by the respondent No.3, (iii) affidavitin- reply filed on 15.11.2018 by the petitioner against the Affidavit- in- opposition filed by respondent No.3, (iv) affidavit- in- reply filed on 19.11.2018 by the respondent No.3 against the Affidavit- in- reply filed by the petitioner, (v) affidavit- in- opposition jointly filed by the respondents No.4 and 5 on 14.11.2018, (vi) affidavit- in- reply filed on 22.11.2018 by the petitioner against the Affidavit- in- opposition filed by respondent Nos.4 and 5, (vii) affidavit filed on 23.11.2018 by the respondent No.4, (viii) additional affidavit filed on 03.12.2018 by the respondents No.4 and 5. As the stand of all the respondents is that of denial of all the allegations made against them, the contents of the said pleadings are not reiterated herein.

4. The learned senior counsel for the petitioner has submitted that at all stages in this tendering process, a clear case of connivance was made out amongst the respondent Nos.3 (i.e. the Chairman, SLPRB), 4 and 5. It is submitted that as per Clause- C(II)(a) of the terms and conditions of RFP, amongst others, it was provided that “the bidder/ prime bidder or consortium member in case of a consortium should have been providing recruitment related service for CAPF/ State Police and completed at least 2 (two) projects successfully including one in North East India ”. It was also provided that supporting evidence in the said regard would be a certificate from the “competent authority” listing type of services offered work order for relevant services. It is submitted that as per Clause-4.12.1, it was provided that at the sole discretion of the SLPRB, a bidder could be disqualified at any time during the evaluation of proposal if the bidder had made any misleading or false representations in the forms, statements and attachments submitted in proof of the eligibility requirements. It is also submitted that out of 1000 marks for evaluation of the technical proposals, (a) Bidder profile was allotted 200 marks, (b) relevant past experience was allotted 400 marks, (c) approach and methodology and solution was allotted 300 marks, and (d) adequacy and quality of resources proposed for deployment was allotted 100 marks. It is submitted that as per Clause 4.19.2, upon the successful bidder’s furnishing of performance bank guarantee, SLPRB will notify each successful bidder and return their EMD. It is also submitted that as per Clause 4.21, it was provided that the successful bidder would sign the contract with respondent No.2 within 10 days of the release of notification and submission of “performance bank guarantee” (‘PBG’ for short). By referring to the said clauses of the RFP, it is submitted that the State respondents No. 2 and 3 had deliberately over-looked and/or violated the various terms and/or clauses of the RFP to give unfair advantage to the respondents No.4 and 5 in the bidding process.

5. The learned senior counsel for the petitioners has referred to the documents annexed as Annexure-4 series to this writ petition to project that previously the petitioner No.1 was awarded with the work relating to the recruitment to (a) Arms Branch of Constables of Assam Police, (b) Recruitment of 346 posts of sub- inspector (UB) including 62 posts of Special branch in Assam Police and 27 posts of Assistant Jailors in Prison Department, (c) Test for recruitment of 1416 posts of AB Constables in Dhubri, Barpeta and Nagaon District using RIFD, and (d) race test using RIFD technology for recruitment to AB Constables in Dhubri, Nagaon and Barpeta District, which they had successfully completed and in this regard, the learned senior counsel for the petitioners has referred to successful completion certificate annexed to the writ petition. In the said context, it is submitted that although the contract work was done by the petitioners, the respondent No.3 had issued 4 (four) separate “experience/ performance certificate” dated 18.04.2018 in favour of “ATC in collaboration with M/s. Bloom Electronics Private Limited”, which had surfaced in the bid submitted by the respondent No.4, wherein reference was given to 19, 5, 2, and 3 separate purchase orders out of which the petitioner had successfully completed 17, 5, 1 and 3 works respectively. It is further submitted that notwithstanding that some of the goods and services contained therein were procured from the respondent No.5, i.e. Bloom Electronics Pvt. Ltd., but there is nothing on record to show that the said respondent No.5 was acting as a collaborator to such supply orders. It is submitted that in none of the works in respect of which the said 4 (four) certificates were issued, the work was procured by showing the respondent No.5 as a collaborator or a joint- venture (JV for short) partner. Therefore, it is submitted that as the said works were awarded to the petitioner No.1 and not to the respondent No.5, the issuance of experience certificate by the respondent No.3 in favour of respondent No.5 was enough to establish conspiracy between the respondent No.3, 4 and 5 as the respondent No.5 was merely a vendor and/or supplier of goods and services to the petitioners.

6. It is also submitted that in furtherance of the connivance amongst the respondents No.3 to 5, the respondents No.2 and 3 had neither opened the tenders in the presence of the bidders, nor did they take power point presentation of the respondents No.4 and 5 in the presence of the petitioner on 01.08.2018 at 11.00 hours as required by the letter dated 24.07.2018 issued by the Asst. Inspector General of Police. It is submitted that as the respondent No.3 was aware that the respondent No.4 was using forged and/or fabricated document, being the 4 (four) separate “experience/ performance certificate” dated 18.04.2018 issued by him, the respondents No.2, 3, 4 and 5 had conveniently avoided the presentation by the respondent No.4 in the presence of the petitioners. It is submitted that due to various anomalies in the tender process, the petitioners had submitted their representation dated 30.07.2018 to revoke/ cancel the 4 (four) separate “experience/ performance certificate” dated 18.04.2018. It is submitted that after the petitioners had highlighted this fact in this writ petition, the respondent no.3 had taken a stand in his affidavit- in- opposition as follows – “The experience certificates taken into account during scrutiny of pre-qualification criteria are the certificates issued to M/s. Bloom Electronics Pvt. Ltd. by ATC and signed by Dipak Baid and that the experience certificates issued to ATC in collaboration with M/s. Bloom Electronics Pvt. Ltd. by SLPRB were not taken into consideration during scrutiny of pre-qualification criteria ”. Accordingly, it is submitted that with those experience certificates being excluded, the respondent No.4 could not have been declared to be a qualified bidder even in JV with the respondent No.5 and moreover, it vindicated the stand of the petitioners that respondent No.5 was neither the collaborator nor the JV associate of the petitioner in respect of works for which certificate was issued by the respondent No.3.

7. It is submitted that without making any effort to address the objection raised by the petitioners, the respondent No.2 and 3 had filed a caveat on 05.08.2018, being Caveat No. 875/2018 and followed by filing of another caveat on 24.09.2018, being Caveat No. 1085/2018. It is further submitted that the same set of advocates who had filed Caveat No. 1085/18 for the State Respondents No.2 and 3 had also filed a separate caveat for the respondent No.4 on 21.09.2018, being Caveat No. 1100/2018, and that from these two caveat, the petitioners got information about the result of the RFP and about awarding of the contract dated 20.08.2018 in favour of the respondent No.4.

8. Questioning the manner in which the contract was awarded, by referring to “tender summary report” downloaded from the website of https:// assamtenders. gov.in (Annexure-21 to the writ petition), the learned senior counsel for the petitioner has submitted that (i) the technical bid opening summary was uploaded on 24.08.2018 at 3.26 pm., (ii) the technical evaluation summary details were uploaded on 24.08.2018 at 3.46 pm., (iii) finance bid opening summary was uploaded on 20.09.2018 at 6.16 pm., and (iv) finance evaluation summary details were uploaded on 20.09.2018. However, there was some sort of undisclosed communication between the respondents No.3 and 4, owing to which they had entered into Contract Agreement bearing No. SLPRB/Rec/TRP/PA/Vol-II/63 dated 20.09.2018. It is submitted that as per the postal receipt of Caveat No. 1085/2018, the notice of the said caveat was posted to the petitioner No.1 vide postal receipt dated 20.09.2018 at 18.36 hours and further by referring to composite score of the bidders (Annexure-20 to the writ petition), it is submitted that the said score card contained a digital certificate that it was digitally signed on 20.09.2018 at 18.42 hours. It is submitted that if the successful bidder was notified on 20.09.2018 at 6.16 pm (18.16 hours), it was not possible for the respondent No.4 to procure a PBG towards 10% bid value on 20.09.2018 and therefore, it is submitted that the petitioners had reasons to believe that the contract agreement was executed between the respondents No.3 and 4 without the respondent No.4 having submitted the requisite PBG, which was in violation of clause 4.19.1 of the RFP. Accordingly, it is submitted that before the notification about selection of successful bidder was deliberately withheld from public domain to enable the respondents No.3 and 4 to enter into a contract agreement without the petitioners knowing it, which according to the learned senior counsel for the petitioners indicate existence of connivance between them, for which the contract agreement was first signed on 20.09.2018 and then the tender details were uploaded in website. By referring to the statements made in paragraph 16 of the affidavit- in- reply filed by the respondent No.3 against the affidavit- in- reply filed by the petitioner against the affidavit- in- opposition filed by the respondent No.3, it is submitted that the respondent No.3 had disclosed therein for the first time that the respondent No.4 had deposited PBG on 04.10.2018 and not on 20.09.2018, which is in total violation of Clause 4.21 read with Clause 4.19 and 4.20 of the RFP. In this regard, it is submitted that it is provided in Clause 4.19.2 of RFP that upon successful bidder’s furnishing of PBG, SLPRB will notify each unsuccessful bidder and return their EMD and that as per Clause 4.20.1, it is provided that a successful bidder will furnish PBG within 15 days from the notification of award and that as per Clause 4.21 of RFP, it is provided that the successful bidder will sign the Contract with SLPRB within 10 days of the release of notification and submission of PBG. Hence, it is submitted that without submission of PBG, the execution of Contract Agreement by the respondent Nos. 2 and 3 with the respondent No.4 on 20.09.2018 was an act of connivance, illegal, mala fide and in violation of the Clause 4.21 of RFP. Moreover, it is also submitted that assuming that the disclose made by the respondent No.3 was correct, the submission of PBG on 04.10.2018 was on 16th day, i.e. 1 day beyond the prescribed period of 15 days as provided under Clause 4.20.1 of RFP, calculated from 18.09.2018, the date of notification of award.

9. It is also submitted that one Pranjal Baruah, who was associated with the petitioners had started respondent No.4 firm. He had manufactured Agreements and/or Memorandum of Understanding with the respondent No.5, one of which is dated 16.02.2015 (Annexure-A to Affidavit- in- opposition filed by Respondent No. 3) so as to create an impression that respondent No.5 was a collaborator of the petitioners and in this connection, it is submitted that the forged/ fabricated experience/ performance certificates dated 18.04.2018 (Annexure-11 series to writ petition) would show that all the purchase orders were prior to 16.02.2015, as such, by no stretch of imagination the respondent No.5 can be said to be a collaborator of the petitioners. Moreover, it is submitted that as per the RFP, an “experience/ performance certificate” issued to a purported subsequently engaged “collaborator” could not be considered. It is also submitted that the respondents No.2 and 3 have relied on letter dated 11.12.2017 by the Commissioner, Panchayat & Rural Development, Assam regarding authorization for engagement of service provider for on-line payment service for collection of application fees, and in this regard, it is submitted that the said work is the subject matter of W.P.(C) No. 4274/2018, pending before this Court and, as such, the said work cannot be said to be successfully completed by the respondent No.5. Further by referring to the reply submitted by respondent No.2 and 3 to the Secretary to the Govt. of Assam, Home & Political Deptt. (Annexure-7 of the affidavit- in- opposition filed by respondent No.2), the said authorities have justified reliance on certificate issued by petitioner No.1 firm to respondent No.5, which according to the learned senior counsel for the petitioners is contrary to the stand taken by the respondent No.3 in his affidavit- inopposition. By relying on Clause-3(II)(a) of Pre-qualification criteria contained in RFP, it was submitted that a consortium member was required to produce supporting evidence in form of “Letter from competent authority listing type of services offered work order for relevant services”, for which the purported certificate issued by the petitioner No.1 firm under the signature of Pranjal Baruah, who is one of Directors of respondent No.4 Company, cannot qualify for being a letter from competent authority. Moreover, it is submitted that the admitted case of all the respondents is that Pranjal Baruah was working as one of the partners of Petitioner No.1 firm, as such, the experience certificates, issued by would go to establish works successfully completed by the petitioners and not by the respondents No.4 and 5.

10. Opposing this writ petition, the learned Advocate General for the State has submitted that as per record, the Hon’ble Supreme Court of India is monitoring the filling up of vacant posts of police personnel in the Country by way of direct recruitment and promotion vide W.P.(C) No. 183/2013 – Manish Kumar Vs. Union of India . Accordingly on 04.08.2017, the State had submitted a road map before the Apex Court, wherein an undertaking was given to fill up the vacancies of police personnel in different ranks/ cadre by way of direct recruitment by setting out deadlines, which was included as a part of the order dated 04.08.2017 passed in the said W.P.(C) No. 183/2013 and annexed as Annexure-1 to the Affidavit- in- opposition filed on 20.11.2018 by respondent No.1 and in the said context, it is submitted that being bound by the time-lines as provided in their undertaking, the authorities had to take urgent steps for filling up vacancies in the police force and the first step in this regard was the selection and appointment of a “professional agency” and upon such appointment, further continuous recruitment process would start. Moreover, it is submitted that by letter dated 18.09.2018, the requisite approval was issued by the Government for selection of respondent No.4 as the professional agency, and that the said communication was received by the SLPRB on 20.09.2018 and communicated to the respondent No.4, as such, it is submitted that the submission of PBG on 04.10.2018 was within the time prescribed in the RFP. It is submitted that by showing cause, the respondent No.4 had made a request for deferring the power- point presentation, which was accepted by the competent authority and, as such, this cannot be viewed as there was connivance between the respondents No.3 and 4 or as if the respondent No.4 was favoured in any manner because the entire process was video-graphed, and could be shown to this Court. It is submitted that the tendering authority was most competent to decide which certificate can be accepted for pre-qualification of bidders and, as such, when the respondent No.3 was aware that respondent No.5 was a collaborator of the petitioner, the said fact cannot be a reason to unsettle the tendering process. Hence, it is earnestly submitted that this Court ought not to interfere with the decision as the petitioners have not been able to show that the decision making process was vitiated in any manner. It is also submitted that the stand taken by the respondents No.2 and 3 was that the service provided by the respondent No.5 to the petitioner qualified them in terms of Clause 3(II)(a) of RFP, notwithstanding that the respondent No.3 had taken a stand in his reply that the experience/ performance certificate dated 18.04.2018 was not considered.

11. The learned senior counsel for the respondents No.4 and 5 has submitted that in respect of various work orders for which the “experience/ performance certificate” dated 18.04.2018 were issued by respondent No.3 authority, not only in respect of the said works there were agreements/ MoU between the petitioner and the respondent No.5, but in furtherance of the work executed jointly, the drafts towards EM/SD were submitted by the respondent No.5, for which reliance is placed on the documents annexed to the affidavit- inopposition filed by the respondents No.4 and 5 and the affidavit filed by the respondent No.4. It is submitted that the petitioner has suppressed material facts that Sri Pranjal Baruah, who is one of the Directors of respondent No.4 was a partners of the petitioner firm and that he was the signatory in various correspondence done on behalf of the petitioner No.1 in connection with most of the contract works executed by the petitioners, for which the petitioners had not challenged his competency to represent the petitioner No.1 firm in various agreements and MoU between the petitioners and the respondent No.5. Hence, it is submitted that the experience certificates issued by the petitioner No.1 firm in favour of respondent No.5 under the signature of the said Sri Pranjal Baruah and/or by the respondent No.3 cannot be just brushed aside as being forged or fraudulent as alleged. By referring to various supply orders given by the petitioner No.1 firm to the respondent No.5, it is submitted that all supply orders were back to back orders, as such, none of the certificates given by the respondent No.3 could be held to be fraudulent and forged, as the said authority was aware of the identity of the supplier. Moreover, by referring to Clause 3(II)(a) of the RFP, relating to pre-qualification criteria, it is submitted that for showing similar assignments, supporting evidence that was required to be submitted was a “Letter from competent authority listing type of services offered Work Order for relevant services” and, as such, the certificate issued by the respondent No.1 under the signature of Pranjal Baruah cannot be disowned by the petitioners as there are sufficient documents on record to show that Pranjal Baruah was one of the partners of the petitioner No.1 firm and that the works were actually executed and/or supplied by the respondent No.5.

12. In response to the accusation that the respondents No.2 and 3 had adjourned the power point presentation of the respondent No.4 as a part of fraudulent connivance so as to prevent the petitioners from getting knowledge of the documents submitted by the respondent No.4 and to prevent them to object to the said presentation, it was submitted that the respondent No.4 had made a request for some accommodation by showing good and sufficient cause, which was conceded to by the competent authorities and, as such, the grievance of the petitioners on this count was misplaced. Hence, the learned senior counsel for the respondents No.4 and 5 had prayed for dismissal of this writ petition.

13. Perused the pleadings indicated herein before together with voluminous documents on record. The points highlighted by the petitioners can be narrowed down into four broad questions, viz., (i) whether the documents appended to the RFP by the respondents No.4 and 5 were fraudulently used by them, as some of the works were done by the petitioner No.1 firm? (ii) whether the respondent No.3 could not have accepted the Petitioner No.1 to be the “competent authority” within the meaning of Clause 3(II)(a) of RFP? (iii) whether the awarding of contract to the respondent No.4 and 5 on the basis of deferred power point presentation had vitiated the decision of awarding the contract in question to the respondents No.4 and 5? (iv) whether the contract agreement between the respondents No.4 and 5 and the respondent No.2 is vitiated?

14. It is seen that as per Clause- C(II)(a) of the terms and conditions of RFP, it was provided that “the bidder/ prime bidder or consortium member in case of a consortium should have been providing recruitment related service for CAPF/ State Police and completed at least 2 (two) projects successfully including one in North East India. It was also provided that supporting evidence in the said regard would be a certificate from the “competent authority” listing type of services offered work order for relevant services. In light of the said clause, this Court is unable to accept that the petitioner No.1 could be termed as a “competent authority” so as to issue completion certificate to respondent No.5 for supplies made and/or services provided by them, notwithstanding that the orders given to them were back-to-back supply orders by the petitioner No.1. In this connection, it is also seen that documents available on record prima facie reveals at the relevant time there appears to be a purported partnership relationship between the petitioners and the said Pranjal Baruah, who had not only entered into supply agreement with the respondent No.5, but also issued them completion certificates. Nonetheless, prima facie, the petitioner No.1 does not fall within the scope or campus of “competent authority” in terms of Clause 3(II)(a) of RFP. Moreover, it is seen that the stand of the respondent No.3 in para-4 of his affidavit-in- opposition is that “... though the experience certificates were submitted by M/s. Amain Tech Consultants Pvt. Limited, the same were not taken into consideration for awarding marks as per the reports of the Chairman, Technical Evaluation Committee vide Letter No. Rec. Rally/ Tech./Cumm/ 2018/08 dated 04.09.2018.” However, in the letter No. SLPRB/REC/TRP/PA/Vol-II/121 dated 29.09.2018, by respondent No.3 to the Secretary to the Govt. of Assam, Home & Political Department (Annexure-7 to the affidavit- in- opposition filed by respondent No.3), the respondent No.3 had justified reliance on the experience certificate issued by petitioner No.1 firm to respondent No.5, which appears to be contradictory because if the authorities had not relied on such experience certificate, there was no necessity for the respondent No.3 to justify about the reliability of such experience certificates. Thus, the stand taken by the respondent No.3 in letter dated 29.09.2018 appears to be inconsistent with the stand taken in his affidavit- in- opposition. Nonetheless, as the respondent No.3 has accepted in his affidavitin- opposition that the experience certificates submitted by the respondents No.4 and 5 were not considered while awarding marks during technical evaluation, the sufficiency or correctness or otherwise or whether the petitioner No.1 was a competent authority in respect of the said “experience certificates” relating to questions No. (i) and (ii) as formulated herein before are not required to be gone into. However, the attention of this Court was not drawn to any explanation by the respondents No.1, 2 and 3 that when the documents accompanying the bid of the respondents No.4 and 5 were accompanied by unacceptable documents, why clause 4.12.1 was not invoked for disqualification of the respondents No.4 and 5 in light of acceptance of objection by the petitioners vide letter dated 30.07.2018 against the acceptance of document submitted by the respondents No.4 and 5. Moreover, it is observed that although the respondent No.3 had taken a stand that the experience certificates submitted by the respondents No.4 and 5 were not considered while awarding marks during technical evaluation, yet, records reveal that the respondent No.3 has taken immense pain to explain about the reliability of the documents accompanying the bid of the respondent No.4 for the reasons best known to the said authority.

15. With regard to the question as to whether the awarding of contract to the respondent No.4 and 5 on the basis of deferred power point presentation had vitiated the decision of awarding the contract in question to the respondents No.4 and 5. In this regard, it is noteworthy that the power point presentation was in respect of “Approach & Methodology and e-Recruitment Solution”, which is contained in clause 11.6 of RFP under the heading of Form-C of Proposal Formats. As per entry made in Sl. No. 7 of the RFP Data Sheet, the date of presentation and opening of commercial bids was to be notified later. However, the copy of the said clause 7 and 11.6 of RFP has not been annexed to this writ petition and, as such, in the absence of material particulars, this Court is unable to hold that the respondents No.2 and 3 had no power to defer power point presentation for respondent No.4 and consequently, this Court is unable to hold that the tender evaluation process is vitiated by the deferment of the power point presentation in respect of the respondent No.4.

16. The last question to be decided is whether the contract agreement between the respondents No.4 and 5 and the respondent No.2 is vitiated. In this regard, it is seen that the Govt. of Assam through the Secretary, Home Department had conveyed its approval for engaging the respondent No.4 for conducting recruitment of various posts in Assam Police and other department entrusted by the Govt. to the State Level Police Recruitment Board, Assam during 2018-19. As per clause 4.19, it is provided that there would be a notification of award of contract. The relevant clause 4.19., 4.20., 4.20.1. and 4.21 of the RFP are extracted below:

4.19. Notification of Award of Contract.

4.19.1. SLPRB will notify the successful bidder in writing that its proposal has been accepted. The notification of award will constitute the formation of the contract after submission of performance bank guarantee by the successful bidder.

4.19.2. Upon the successful bidder’s furnishing of Performance Bank Guarantee, SLPRB will notify each unsuccessful bidder and return their EMD. 4.20. Performance Bank Guarantee (PBG)

4.20.1. The successful bidder will furnish Performance Bank Guarantee within 15 days from the notification of award, for a value equivalent to 10% of the total cost. [The total cost will be determined by multiplying the weighted average unit cost quoted with 50,000 (assuming 50,000 valid admit cards will be issued)].

4.21. Signing of Contract.

17. The successful bidder will sign the Contract with SLPRB within 10 days of the release of notification and submission of PBG. After signing of the Contract, no variation in or modification of the term of the Contract shall be made except by mutual written amendment signed by both the parties (i.e. SLPRB & BIDDER)

18. From the conjoint reading of above it appears that in no uncertain words it is mentioned in the RFB that the successful bidder shall provide PBG within 15 days from the date of notification of contract and that as per clause 4.19.1, the date of service of notification of award to the successful bidder shall be construed to be the date of notification of award of contract to the successful bidder. The learned Advocate General for the State as well as the learned Senior Counsel for the respondents No.4 and 5 have not been able to show any pleading on record disclosing the date when the notification of award of contract was served on the respondent No.4. Therefore, as the State respondents as well as the respondents No.4 and 5 have heavily relied on the letter No. HMA 369/2013/Pt-IV/90 dated 18.09.2018, by which the Govt. of Assam through the Secretary, Home Department had conveyed its approval for engaging the respondent No.4 for conducting recruitment, in the absence of any evidence to the contrary, the date of notification would be 18.09.2018. No material has been brought on record that the date of notification would be the date on which notification is actually served on the respondent no.4. Moreover, in para-26 of the affidavitin- opposition filed by the respondents No.4 and 5, they have categorically admitted that on 18.09.2018, the notification of award of contract was sent to the respondent No.4. It is further seen that in the affidavit- in- reply by the respondent No.3 against the affidavit- inreply filed by the petitioner against the affidavit- in- opposition filed by the respondent No.3 that the PBG was deposited by the respondent No.4 on 04.10.2018, which appears to be the 16th day after excluding 18.09.2018 i.e. the date of notification of award of contract, which is not in consonance with clause 4.21 read with Clause 4.19 and 4.20 of the RFP, as it was submitted beyond the prescribed 15 days from the date of award of contract. However, it appears that a intentional, deliberate and false statement has been made by the Respondent No.3 before this Court through his said affidavit in reply filed on 19.11.2018 because from the record produced by the learned Advocate General, it is seen that vide Letter No. BEPL/SLPRB/2018-002 dated 05.10.2018, Bloom Electronics (Pvt.) Ltd. (Respondent No.5 had submitted PBG No. 0016BGR0009119 dated 04.10.2018 for Rs.20,00,000/- (Rupees Twenty lakh only), which contains a clear and unambiguous signature under the rubber stamp of Office of the Chairman, State level Police Recruitment ... (illegible), dated 05.10.2018. A photocopy of the said letter provided by the learned Advocate General, Assam is kept as a part of record. Therefore, it appears that an attempt has been made by the respondent No.3 to mislead this Court in order to project that PBG was submitted by respondent No.4 on 04.10.2018, when PBG was actually provided by respondent No.5 on 05.10.2018, i.e. 17th day excluding 18.09.2018. Thus, the connivance between the respondents No.3 on one hand and respondents No.4 and 5 on the other hand is evident and writ large on the face of record. Although the learned Advocate General for the State had tried to convince this Court that the notification of award of contract was served on the respondent No.4 on 20.09.2018, but in the absence of any proof of service on record, this Court is unable to over-look the statement made by the respondent No.3 that notification of award of contract was made on 18.09.2018. Therefore, it appears that in this case, the authorities had not adhered to the clause 4.21 of the RFP, which prescribes that the contract would be signed within 10 days from the date of release of notification and submission of PBG, as such, it was required that the PBG be submitted prior to the signing of the contract. In this case the contract agreement was signed on 20.09.2018 and later on, the respondent No.5 had submitted PBG on behalf of respondent No.4.

19. It is seen that in the case of Air India Ltd. Vs. Cochin International Airport Ltd & ors., (2000) 2 SCC 617, it has been held, inter-alia, that only the decision making process and not the decision was amenable to judicial review and that it was open to the authorities not to accept a particular offer on a particular basis and it is also submitted that as per the ratio of the said case, it held therein that in a commercial transaction offer complex nature a lot of balancing work has to be done while weighing all the relevant factors and all the final decision has to be taken after taking an over-all view of the transaction and, as such, it is submitted that it was open to the respondents to choose its own method to arrive at a decision and the State can chose its method to arrive at a decision. It has been further held that even when some defect is found in the decision making process, the Court must exercise its discretionary power under Article 226 with great caution and should exercise it only in furtherance of public interest and not merely on the making out of a legal point and that the Court should always keep the larger public interest in mind in order to decide whether its intervention is called for or not and only when it comes to a conclusion that overwhelming public interest requires interference, the Court should interfere. Keeping the said broad principles in mind, it is seen that in this particular tender process, (i) the respondent No.3, i.e. the Chairman, State Level Police Recruitment Board had issued the now disputed “experience certificate” in favour of the respondents No.4 and 5, (ii) the said documents form a part of tender documents submitted by the respondents No.4 and 5, (iii) on objections being filed by the petitioner, the respondent No.3 in his affidavit- in- opposition had taken a categorical stand that the said experience certificates were not considered by the authorities while evaluating the tender submitted by the respondents No.4 and 5, but in the letter dated 29.09.2018 referred herein before, the respondent No.3 had justified on the reliability of the said experience certificate, (iv) despite objections by the petitioner on the documents submitted by the respondents No.4, the respondent No.3 had permitted the respondent No.4 to make their presentation in the absence of the petitioner, (v) the Govt. order accepting the proposal for selection of the respondent No.4 was issued on 18.09.2018, (vi) before the selection of respondent No.4 was uploaded in the web-site of the respondent No.3, not only caveat was filed, but the contract agreement was executed between the respondent No.3 and 4, (v) admittedly, on the date when contract agreement was signed on 20.09.2018, the PBG was not submitted, which is not in consonance with the terms of the NIT, (vi) contrary to statement made in affidavit- in- reply filed on 22.11.2018, to the effect that PBG was submitted on 04.10.2018, records produced by the learned Advocate General reveals that PBG was actually submitted by the respondent No.5 vide their forwarding letter dated 05.10.2018, and (vii) on and from 18.09.2018, the date when notification of award of contract was issued, the PBG was submitted on 05.10.2018, i.e. the 17th day after excluding 18.09.2018, which again is not in consonance with the terms of the NIT. These, in the opinion of this Court, cannot be brushed aside as being minor defects in the awarding of contract work in this case and, as such, when the paramount intention of the government to award the contract work in question is to promote transparency, the same is found to be deficient when it has come to selection of the professional agency for implementation of Transparent Recruitment Policy, which is not found to be in public interest. It is seen that while on one hand the respondent No.3 had taken much pain to justify t

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he documents including experience certificate presented by the respondent No.4 in their tender but on the other hand, the same authority has also taken a stand in the affidavit- in- opposition that the experience certificate was not considered for evaluating the tenders submitted by the tenderers/bidders. Thus, the tender process is vitiated for the reasons as indicated herein before. 20. There is one more aspect which is required to be considered herein. It is seen that the petitioners had not disclosed that Sri Pranjal Baruah, who was the Director of respondent No.4 was one of the partners of the petitioner No.1 firm and that the said person had been representing the petitioners in previous works executed by the petitioner, for which various agreements were executed between the petitioner No.1 firm and the respondent No.5. Therefore, having issued work orders and procured goods and services from the respondent No.5, the petitioners cannot be permitted to dispute their own writing by which successful completion certificate was issued by the petitioner No.1 under the signature of the said Sri Pranjal Baruah. Nonetheless, as indicated herein before, prima facie, the petitioner No.1 does not fall within the scope or campus of “competent authority” in terms of Clause 3(II)(a) of RFP. Therefore, when the stand of the respondent No.3 is that the experience certificates issued in favour of respondents No.4 and 5 were not considered, the petitioners have not suffered any prejudice on the documents on their behalf being signed and issued by the said Sri Pranjal Baruah. 21. The learned Advocate General of the State had submitted that the recruitment process to fill up the vacant posts in the Assam Police was being monitored by the Supreme Court of India and was being done in a time bound manner. In this connection, it is seen that merely because the State had given an undertaking as well as a time-line before the Hon’ble Apex Court, that in itself cannot justify non- adherence to the terms and conditions of the NIT. 22. Thus, on a overall view of the entire matter, this Court is of the considered opinion that the petitioner has been able to demonstrate that the selection process is vitiated in this case in hand and accordingly, (i) the selection of the respondent No.4 as “Professional Agency for implementation of transparent recruitment policy” in connection with recruitment of various parts in Assam Police and other Department of the Govt. of Assam during financial year 2018-19, (ii) the notification of award of contract vide Memo No. SLPRB/Rec/TRP/PA/VIL-II/58 dated 18.09.2018 issued by the Chairman, State Level Police Recruitment Board, Assam in favour of the respondent No.4, (iii) and the Contract Agreement bearing No. SLPRB/Rec/TRP/PA/VIL-II/63 signed on 20.09.2018 between the Chairman, State Level Police Recruitment Board are all set aside and quashed. Consequently, it would be open for the State Level Police Recruitment Board to carry out the NIT process afresh. 23. This writ petition stands allowed with directions as provided above. 24. Having noticed that the Chairman State Level Police Recruitment Board (Respondent No.3) has made intentional, deliberate and false statement in his affidavit-inreply filed on 22.11.2018 against the affidavit-in-reply of the petitioners against affidavit-inopposition filed by the respondent No.3 relating so submission of PGB by respondent No.5 on 05.10.2018, as morefully indicated in the foregoing paragraphs, this Court is of the considered opinion that as this writ petition has been allowed, instead of wasting precious time of this Court on the matter, the said conduct of the respondent No.3 be brought to the notice of the Chief Secretary of the State of Assam with a direction to depute an officer to conduct an enquiry in the role of the respondent No.3 in the matter of the present recruitment process done under the respondent No.3 and to bring such enquiry to its logical conclusion. Hence, the Registry is directed to serve a copy of this order to the Chief Secretary to the Govt. of Assam so as to enable him to do the needful in terms of the directions contained herein. 25. The records produced by the learned Advocate General is returned.
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