TaxTMI 
TaxTMI 
2020 (4) TMI 630
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....for submission of tender document was fixed as 05.11.2019. The Petitioner who is a partnership Firm has challenged the eligibility criteria as mentioned in Clause-2.1 of the tender notification on various grounds. 3. The submission of learned counsel for the Petitioner is that Respondent-CSMCL has earlier floated tenders, which were cancelled for one or the other reason and again under the same condition i.e. eligibility criteria, present tender notification bearing No.CSMC/Tender/2019-20/2E has been floated. Experience clause as mentioned in Clause 2.1 is framed in a manner to extend the benefit to the Chartered Accountants Firms already engaged previously with Respondent-CSMCL. The action of Respondent-CSMCL is violative to Articles 14 and 19 of the Constitution of India and cancellation of earlier tenders is deliberate attempt and foul play to achieve hidden objects. The eligibility criteria prescribed in the tender notification is violative to the directions issued by the Central Vigilance Commission. It is further pointed that the tender notification, in which, the Petitioner became successful was cancelled and thereafter, insertion of clause in eligibility criteria i.e. C....
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....ification through the State Agency i.e. 'Chhattisgarh Samvad'. The submission of learned counsel for the Petitioner that the eligibility criteria so framed by the Respondent-CSMCL to benefit Chartered Accountants/Chartered Accountants Firms who were engaged in preceding year for internal audit is not correct, because out of five zones, in three zones, new Chartered Accountants Firms participated in tender proceedings and one of the Firms is outside of the State of Chhattisgarh. Learned counsel for Respondent-CSMCL lastly submits that action on the part of Respondent-CSMCL is fair, transparent and Petitioner's allegation is vague and prays for dismissal of the writ petition. 5. We have heard learned counsel appearing for the parties and perused the documents annexed along with the record of writ petition. 6. For better understanding the grievance of the Petitioner, it would be appropriate to extract Clause 2.1 of the tender notification, which reads as under : "2.1 The firm of Chartered Accountants who have experience of audit for at least 2 years in last 3 financial years, of Government Organization/Govt. PSU in Liquor business are only eligible to apply as Interna....
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....the tender is floated by them. 10. The Hon'ble Supreme Court in the matter of Global Energy Ltd. and another v. Adani Exports Ltd. and others reported in (2005) 4 SCC 435 has held that the terms of the invitation to tender are not open to judicial scrutiny and the Courts cannot whittle down the terms of the tender as they are in the realm of contract unless they are wholly arbitrary, discriminatory or actuated by malice. 11. Further, the Hon'ble Supreme Court in the matter of Master Marine Services (P) Ltd. v. Metcalfe & Hodgkinson (P) Ltd. and another reported in (2005) 6 SCC 138, has held as under:- "12. After an exhaustive consideration of a large number of decisions and standard books on administrative law, the Court enunciated the principle that the modern trend points to judicial restraint in administrative action. The Court does not sit as a Court of appeal but merely reviews the manner in which the decision was made. The Court does not have the expertise to correct the administrative decision. If a review of the administrative decision is permitted it will be substituting its own decision, without the necessary expertise, which itself may be fallible. The Govern....
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....ght into effect by the Legislature in the year 2017 known as "Central Goods and Services Tax Act, 2017", therefore, they have taken the period of two years experience within last three years. The explanation/reason assigned by the Respondent-CSMCL for insertion of Clause 2.1 in the tender notification does not appear to be arbitrary and unreasonable because it is the employer who has to get his work done from a professional and if for any of the reason, loss is caused, then the sufferer will be the employer only. It is for this reason, Respondent-CSMCL/employer should have free to insert eligibility criteria and other conditions in the tender notification for getting best results and output by the persons/Firms engaged by it. 16. So far as the argument raised by learned counsel for the Petitioner that action on the part of the Respondents is arbitrary and therefore the entire proceeding is liable to be interdicted by issuing appropriate writ, as prayed for, is concerned, action on the part of the employer/authority floating tender is to be assessed only on the ground whether the decision making process of the concerned authority is proper or suffers from some infirmity. Hon'bl....