Order
1. In April 1999, tenders were called for “from parties with proven credentials in the field of organising tourism-related expositions” by the Ministry of Tourism, Government of India to organise the India International Travel Expo & Mart (IITEM) for the years 2000, 2001 and 2002. There were 12 tenderers who had applied. Out of the 12 tenderers, four were shortlisted. The Selection Committee found that all the four tenderers appeared to be equal including experience and other factors. The Committee was of the view that the main criterion for assigning the tender to the most suitable party should be the guarantee of “upfront payment” to the Ministry of Tourism. It also appears that M/s Tafcon, the appellant before us, guaranteed the highest upfront payment of Rs 45 lakhs for the three-year period as against Rs 39 lakhs of another concern. As far as the writ petitioner (who is Respondent 3 before us) was concerned, it had offered Rs 7.50 lakhs by way of upfront payment. The Selection Committee, therefore, recommended the appellant to be called as the “highest bidder” for deciding the mode of “upfront payment” and “firming up the number of buyers for 2000-02”.
2. The recommendations of the Committee were considered by the Union of India. On 15-12-1999, the appellant's offer was accepted by the Union of India and an agreement was entered into. In the meanwhile, in November 1999 Respondent 3 filed a writ petition before the High Court for a writ of mandamus against the Union of India to consider Respondent 3 for endorsement/approval for “Travel and Tourism Fair, 2000” being organised on the basis of the tender notice and for issuance of further writ for setting aside the bid dated 22-4-1999 settled in favour of M/s Tafcon and to quash the appointment of M/s Tafcon as the “Event Manager”.
3. The learned Single Judge dismissed the writ petition by his order dated 17-1-2000. Pursuant to the agreement entered into between the Union of India and the appellant, the appellant held IITEM between 22-1-2000 and 24-1-2000.
4. In the meanwhile, Respondent 3 impugned the decision of the learned Single Judge dismissing its writ petition by way of an appeal. The appeal was allowed by the Division Bench which set aside the appointment of the appellant as the “Event Manager” and directed the issue of fresh tenders for holding IITEM for the years 2001-02.
5. Two separate special leave petitions were filed from the decision of the Division Bench — one by the appellant M/s Tafcon Projects (I) Pvt. Ltd. (CA No. 2507 of 2001) and the second by the Union of India (CA No. 4064 of 2001). On 3-3-2001 leave was granted in CA No. 2507 of 2001. Notice was directed to be issued on the prayer for interim relief and the operation of the High Court's order was stayed in the meanwhile. This ad interim stay was confirmed on 3-9-2001. Similar orders were passed in CA No. 4064 of 2001.
6. Contempt proceedings had been initiated by Respondent 3 before the High Court against the appellants in both the appeals, inter alia, on the ground that they had continued to advertise IITEM as being held by M/s Tafcon despite the High Court's order setting aside the appointment of M/s Tafcon as the “Event Manager”. We are told by learned counsel appearing on behalf of Respondent 3 that the contempt proceedings have since been dismissed on the ground that the matter was pending before this Court.
7. Respondent 3 also moved an application before this Court being IA No. 2 of 2003 seeking an order to the effect that the appeals preferred from the decision of the Division Bench have become infructuous as the three years mentioned in the tender notice had already expired. Directions were given for filing of affidavits. Today the IA was taken up for hearing. It is not in dispute that IITEM for this year is due to be held tomorrow. We were, therefore, of the view that no useful purpose would be served in keeping the appeals pending since the only issue is whether M/s Tafcon should be permitted to hold IITEM this year or not.
8. We find from the decision of the Division Bench of the High Court that there were primarily three grounds on which the High Court had allowed Respondent 3's appeal and set aside the appointment of M/s Tafcon as the “Event Manager” i.e:
1. That the Secretary, Ministry of Tourism had not taken any final decision with regard to the appointment of M/s Tafcon as the “Event Manager”.
2. No final decision had been taken by the Minister in this connection.
3. that Rule 3 of the Transaction of Business Rules, 1961 which are framed under Article 77 of the Constitution specifically provided for all businesses to be transacted only according to the general or special directions of the Minister-in-Charge and that there was no order placed on record to show that the Minister had issued any direction to the Secretary permitting him to take a decision with regard to the appointment of an “Event Manager”.
9. We will assume for the purpose of this judgment that Rule 3 of the Transaction of Business Rules, 1961 has been correctly interpreted by the High Court. But we are of the view that the High Court has factually erred in holding that no final decision had been taken in the matter by the Secretary and by the Minister. The records which have been referred to in great detail by the High Court show that the matter was placed before the Secretary at least thrice. In the first case the Committee's recommendation together with the opinion of the Director, Tourism and his request for approving the recommendation of the Committee was placed before the Secretary who put his signature on the file without any comment. On the second occasion the Director General (Tourism) placed the file before the Secretary with the concurrence of the Internal Finance and “following due codal formalities” with the proposal that the “Event Manager” should be allotted the work as valuable time was being lost and less than six months were left for the event. On this occasion the Secretary said, “ ‘Yes’, may go ahead at A without any financial commitment at this stage.” The third occasion was when the Additional Director General (Tourism) came up with the matter before the Secretary stating that only five months were left for the event and that immediate action was required to formally appoint the Event Manager for IITEM, 2000. On this occasion, the Secretary said that the details had already been placed before the Minister. In addition, the Secretary said:
“Any further delay may put the preparations in great difficulty. As such, the party may be allowed to go ahead as proposed, in making the preliminary arrangements in anticipation of formal approval by Minister (CA&T).”
10. On the same date, the Secretary also noted that the party which had been recommended, namely, M/s Tafcon, had been allowed to go ahead with the arrangements and that the Minister (CA&T) may kindly approve the action taken.
11. In these circumstances, the first finding of the High Court was factually incorrect.
12. It appears also from the records as noted by the High Court, that the file had been pending with the Minister for some time and despite expressions of urgency, the Minister did not sign the file since he was busy with “elections and other important matters”. What the High Court has overlooked is that the relevant file was again placed before the Minister on 30-8-1999 by JS&FA with a note which stated that Tafcon had been appointed as the “Event Manager” for three years. This was signed by the Minister with the endorsement “file returned”.
13. The High Court deduced from this signature of the Minister that no approval was in fact granted by him to the appointment of M/s Tafcon either expressly or impliedly. We are unable to agree. Where the Minister has signed the various notes put up before him seeking his approval, his signature, without more, must mean that he has approved the steps taken by the Department.
14. Both the factual grounds on which the High Court had rested its decision being found erroneous by this Court, the impugned decision must be set aside.
15. Learned counsel for the respondent has also sought to argue that he had misunderstood the clause of the tender insofar as which said: “The selected agency shall place a net profit of over 10% at the disposal of the Ministry of Tourism, to be utilised for development of tourism.” According to Respondent 3 the clause required that all profit over 10% was to be placed at the disposal of the Ministry of Tourism. It is submitted that based on this misconstruction his client had offered Rs 2.50 lakhs per year for the three-year period.
16. We need express no view on this matter because in any event Respondent 3's offer of an upfront payment of Rs 2.50 lakhs per year, which was much lower than that offered by the appellant M/s Tafcon. Therefore, whichever meaning is accepted, ultimately M/s Tafcon's offer was much better than that of Respondent 3 and its selection cannot be faulted. Besides Respondent 3 had bid pursuant to the tender notice and participated in the proceedings before the Selection Committee. It cannot now take advantage of any alleged vagueness in the tender notice.
17. One further aspect needs clarification, that is, the period of tender notice. It appears from the official records which were noted by the High Court that the event was a three-year one. The mentioning of the actual years did not limit the period. That is also how the offers of the tenderers were assessed and scrutinised. In any event Respondent 3 having effectively stopped the operation of the three-year period by reason of the writ proceedings before the Division Bench of the High Court, the appellant must not be denied the benefit which it would otherwise have got had the writ petition not been filed. The appeals are, accordingly, allowed. The decision of the High Court is set aside. IA No. 2 of 2003 is dismissed.