M/s Ajay Kumar v. The Indian Railways

of the Tender Committee dated 16.09.2008 as Annexure-D to their first counter affidavit. This discloses the reason. In the counter affidavit and in the said impugned decision of the Tender Committee, it is clearly noted that the petitioner had been favoured with different contracts of similar nature for various periods starting from 2004 upto January 2008 and as apparently no fresh tenders were being finalized, the work was being extended from time to time by the Railways on ad hoc basis. This is an important piece of information to test the conclusion arrived at by the Tender Committee. Just below the said statistics, in the decision itself, the reason is noted : … … … The convener member has certified that this work (Group 1, 2, 4 & 5 above) has not been successfully completed and the work is still in progress and further extension processed upto 13.12.2008. Hence, M/s Ajay Kumar does not fulfill the eligibility criteria No 3 i e non-fulfillment of completion of similar nature of work of 35% of advertised tender value (i e 52.47 lacs). 3 Reading the aforesaid decision, which is the only ground for disentitling the petitioner, it would be seen that the petitioner’s tender has been rejected on the sole ground that he has not successfully “completed” similar works and the works are still “in progress” as a consequence of extension being granted. There was another tenderer who has not even submitted earnest money. He was, thus, ineligible for consideration. It, thus, appears that as none of the two tenderers were found eligible, the tender was discharged and decision taken to readvertise. It is this decision to disqualify petitioner that is now under challenge. Having heard the parties, in my view, the stand of the Tender Committee cannot be sustained either in fact or in law. In my view, no reasonable man can come to the conclusion to which the Tender Committee has come upon reading the terms of tender and applying it to the facts of the case. The decision is vitiated in fact and in law. The reason is that if we refer to the eligibility clause, as referred to above, being Clause 2 (iii) of the tender notice, there is an expression used therein “pleaded in last three financial years”. The learned counsel for the Railways wants me to read it as completed with concluded contract. He submits that it means that there should not be any subsisting contract. He points out, with reference to Annexure-D where the facts are noted by the Tender Committee, that though the original contracts with the petitioner were for three years and all of which had to end in January, 2008 in absence of any other tender being finalized, Railways having extended the period, the contract could not 4 be said to have been completed. In my view, this is putting the whole thing upside down to reach unintended results. A simple reading of the clause would show that the expression completed is nothing but to mean executed. If the interpretation given by the Railways is to be accepted, it would lead to most absurd results which are exemplified in the present case itself. Firstly, petitioner had completed the contract period of all contracts. Thus, contracts were completed. There is no dispute with regard to quantum because the quantum of work executed by petitioner is far in excess of the minimum requirement. It is the Railway, for want of alternative, kept extending petitioner’s contract period and for that, the petitioner is now being sought to be disqualified. It is putting the cart before horse. For failure of Railways to give fresh contracts, the old contract is being extended and for Railways such a default, petitioner is to be penalised. In my view, there cannot be a more absurd situation. Secondly, no noting appears from the tender notice that a subsisting contractor is disqualified. If what interpretation Railways is seeking to give is accepted then the consequence would be that an existing contractor, even though he has served for a period longer than three years, would not be entitled to participate because his contract period is not completed, again an absurdity. Thus, on conscious consideration of the facts above, it is held that the finding of the Tender Committee that the petitioner was ineligible is perverse and cannot be sustained. The decision of the Tender Committee to that effect is, thus, quashed. The consequence would be that the Tender Committee would now proceed to deal with the matter in accordance with law treating the petitioner to be eligible. 5 The writ petition is, thus, allowed with the aforesaid observation and direction. M.E.H./ (Navaniti Prasad Singh)