R.R.PRASAD, J. - (1.) : 1. Jawaharlal Nehru National Urban Renewal Mission ('JnNURM) programme was launched under the Ministry of Urban Development, Government of India to undertake reforms and facilitate investments in the urban sector of identified cities. When Dhanbad was selected as one of the cities eligible for availing financial assistance under the JnNURM programme, Dhanbad Municipal Corporation (DMC) appointed M/s. WAPCOS Limited to prepare Detailed Project Report (DPR) for establishing integrated Solid Waste Management System (ISWM) by availing grant under JnNURM. On the basis of DPR report, an estimated cost of approximately 55 crores was approved by JnNURM for developing ISWM facilities in Dhanbad. With the objective of developing the said project under a Public Private Partnership (PPP) framework, DMC took a decision to appoint private developer who shall be responsible for collection, transportation, processing and disposal of Solid Waste Management (SWN) and reclamation/ alternative use of existing dump sites and for that purpose to design, develop, part -finance, construct, operate and maintain the ISWM facilities. To ensure the ISWM Project being developed in accordance with the Municipal Solid Waste (Management and Handling) Rules, 2000 , M/s. Tetra Tech India Limited (respondent no.5) was appointed as Transaction Advisor -cum -Project Management Consultant to assist DMC in implementation of integrated Solid Waste Management System through selection of developer and construction supervision during its implementation, through a private developer under a Public Private Partnership (PPP) framework, who is to be selected through competitive bid process. In that pursuit, for selection of private developer, a notice inviting request for qualification was issued on 17.8.2010. The said document contained criteria for evaluation of the marks under clause 3.0 whereas clause 3.2 lays down the methodology for calculating the applicants competence. Clause 3.2.1.1 does stipulate that any bidder who achieves a score of 60 marks would be deemed to have qualified to meet technical experience criteria. On issuance of request for qualification (RFQ), the petitioner, a company registered under the Companies Act, engaged in the field of Waste Management under Public Private Partnership Scheme with various Government submitted its RFQ along with others. Altogether eight including the petitioner as well as respondent no.6 were declared qualified at the stage of request for qualification. On being declared pre -qualified, they were asked to submit their technical presentations and financial bids. Thereupon, five pre -qualified companies including the petitioners and respondent no.6 submitted their technical presentation and financial bids which were opened on 3.1.2011. The petitioner was declared to be successful bidder. On the next day, respondents 3 to 5 by acting against the terms and conditions of the request for qualification declared the respondent no.6 to be successful bidder which was objected by the petitioner but when nothing was done, the petitioner filed a writ application bearing W.P.(C) No.275 of 2011. In the said writ application, an affidavit was filed by the Secretary, Ministry of Urban Development, Government of Jharkhand (respondent no.2) admitting therein that there were several serious irregularities in the process of finalization of successful bidder. It was further stated that on account of that Dhanbad Municipal Corporation, respondent no.4 has been directed to issue a fresh tender. Pursuant to that decision when a letter dated 25.3.2011 was issued cancelling the entire tender, respondent no.6 also filed a writ application, vide W.P. (C) No.2015 of 2011.
(2.) BOTH the writ applications were heard together and his Lordship declined to interfere in the matter as the petitioners of both the cases had never been debarred from participating in second tender. On 7.5.2011, Dhanbad Municipal Corporation, respondent no.4 again issued a notice inviting request for qualification. It is the case of the petitioner that on purchasing the said document, it was found that different criterias have been fixed for evaluation of applicants competence. In other words, methodology of calculating the technical capacity of applicant got changed. Therefore, the petitioners raised objection before the Dhanbad Municipal Corporation, respondent no.4 over the new criterias fixed for evaluation of applicant's competence. Said objections were also raised in pre -bid conference held on 19.5.2011. After deliberation, the respondents amended certain clauses but according to the petitioners, they did not change or amend the scoring pattern. However, the petitioners submitted their applications relating to request for qualification along with four others including respondents 6 and 7. Out of which, only respondents 6 and 7 were declared pre -qualified as the petitioners are said to have failed to achieve threshold marks of 70. On being declared disqualified, the petitioners have filed this writ application wherein prayer has been made to quash the notice inviting request for qualification (RFQ) dated 7.5.2011 issued by the respondent no.4 for implementation of the integrated Solid Waste Management System in Dhanbad Municipal corporation and then to direct the respondent to come out with a fresh RFQ with the terms and conditions for pre -qualification similar to the terms and conditions which had been stipulated in noticing inviting request for qualification dated 17.8.2010. Mr. P.K. Sinha, learned Senior Counsel appearing for the petitioners submitted that earlier when the petitioners had submitted their applications, pursuant to RFQ dated 17.8.2010, the petitioners had been declared successful as the company secured more than threshold mark which had been fixed at 60 but the authority when issued second RFQ, it came with new scoring pattern whereupon the petitioners could not secure threshold mark fixed for evaluation of applicant's competence but that scoring pattern had been fixed in order to favour respondents 6 and 7 only whereas change in methodology for calculation marks had no reasonable nexus with the object tobe achieved and hence, RFQ issued subsequently is fit to be set aside.
(3.) LEARNED counsel further submitted that on account of fixation of such methodology for calculation of the point only two competitors, respondents 6 and 7 pre qualified and out of them, respondent no.7, as per the terms and conditions of RFQ, would not be qualified for participating in the bid process as the agreement relating to integrated solid waste management system for Biharsharif Municipal Corporation has been terminated and thereby only respondent no.6 would be in the fray, as a result of which,there would be absolutely no competition and as such it will have telling effect on the public exchequer and therefore, second RFQ which was issued to favour respondent no.6 is not only tainted with mala fide but will have great adverse impact on public interest and hence, it is fit to be set aside in view of the decision rendered in a case of Jagdish Mandal vs.State of Orissa and others [(2007) 14 SCC 517] .;