THE HON'BLE SRI JUSTICE A.V.SESHA SAI
WRIT PETITION No.12420 OF 2021
ORDER:
Heard Sri Narasimha Rao Gudiseva, learned counsel for the petitioners, and Smt.K.Aruna, learned Standing Counsel for Railways, appearing for the respondents, apart from perusing the entire material available on record.
2. In the present Writ Petition, challenge is to the Tender Notices bearing Nos.GNT/Catering/1/37/2021, dated 07.06.2021, issued by the respondent authorities. First petitioner herein is concerned with the tender in respect of platform-I of Markapur Road-D Railway Station and second petitioner is concerned with platform-I of Cumbum Railway Station.
3. According to the petitioners, they are the existing contractors and their licencees came to an end on 23.04.2020. The sum and substance of the case of the petitioners in the present Writ Petition is that, contrary to the Catering Policy, 2010, respondent authorities are proceeding with the process of inviting tenders without renewing the existing licences of the petitioners herein. It is the further case of the petitioners herein that, on 06.12.2019, petitioners herein submitted their applications for grant of renewal under Clause-17 of the Catering Policy, 2010.
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4. Learned counsel for the petitioners would contend that the impugned action of undertaking the process of tenders in respect of the subject contracts is in contravention of not only the Catering Policy, 2010 but also the judgment of the composite High Court in W.P.No.14577 of 2013 & Batch, dated 16.08.2013, and the judgment of the Hon'ble Apex Court in Civil Appeal Nos.618-620 of 2016.
5. On instructions, it is strenuously contended by the learned Standing Counsel that having regard to the language of Clause-17 of the Catering Policy, 2010, petitioners herein are not entitled to any renewal. It is also the submission of the learned Standing Counsel that during the period of contract of the first petitioner, as many as nine times, he was penalised and in respect of the second petitioner, on six occasions he was penalised.
6. On hearing the said submissions, it is contended by the learned counsel for the petitioners that without being preceded by the existence of any record or opportunity, such action was resorted to.
7. It is also brought to the notice of this Court by the learned Standing Counsel that the renewal applications of the petitioners herein were rejected on 03.05.2021 and, in view of the closure of the business premises of the petitioners herein, the orders were pasted on the doors.
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8. In this context, it may be appropriate to refer to Clause-17 of the Catering Policy, 2010, which reads as under:
17.RENEWAL Renewal will not be a matter of right. The licencee must apply for renewal minimum 6 (six) months in advance before the expiry of the contract. Renewal will be based on the following: 17.1 Satisfactory performance of the licencee during the tenure of the contract. An imposition of fine/warnings on more than 5 occasions will result in rejection of the application for renewal. 17.2 Payment of all dues/ arrears - No Dues Certificate from the concerned authority, must be attached along with the application for renewal. 17.3 The applicant must submit the documents afresh along with the renewal application regarding the details mentioned in para 14.2.1.1, 14.2.1.2 and 14.2.1.3 and in case of GMUs relevant documents as mentioned in the Standard Bid Documents will be required to be submitted afresh along with the above mentioned documents.
17.4 The Annual Confidential Reports (ACRs) on catering performance will be modified in accordance with this policy. The detailed instructions on ACRs will be issued by the Railway Board. ACRs maintained by the Railways for the Licencee seeking renewal shall be scruitinised by the Competent Authority granting renewal. Based on the ACRs for the period of tenure the marks will be allotted to the licencee. A minimum cut off criteria based on the grading of the ACRs for grant of renewal must be notified by the zonal railways in advance.
17.5 The licence fee shall be revised and reassessed at the time of each renewal subject to a minimum increase of 10% of the existing licence fee".
9. It is very much evident from a reading of the above Clause that any individual, who intends to have his licence period renewed, is required to make an application in the said AVSS,J 4 W.P.No.12420 of 2021 direction within six months in advance before the expiry of the contract. In the instant case, admittedly, the contract period came to an end in the month of April, 2020 but the petitioners herein submitted their applications for grant of renewal on 06.12.2020. It is also required to be noted that, as per Clause 17.1 of the Catering Policy, 2010, there is a prohibition on renewal in the event of there being fine/warnings on more than five occasions. In the instant case, it is brought to the notice of this Court, as mentioned supra, by the learned Standing Counsel that such imposition was made by the respondents herein for nine times in respect of the first petitioner and six times in respect of the second petitioner. The contention as regards the validity of such imposition is not the subject matter of the present Writ Petition, as such, the same cannot be gone into.
10. Coming to the judgment, sought to be pressed into service by the learned counsel for the petitioners, a reading of the same makes it very much manifest that in the said judgment the composite High Court, while dealing with the Catering Policy, 2010, dealt with the aspects of renewal and entitlement of the existing licencees under the relevant Clauses enumerated therein and held that the petitioners therein would be entitled for consideration for renewal but the Court did not deal with the aspect, touching Clause-17, which deals with the time limit and the imposition of fine/warnings. When the existing licencees want to avail the benefits of the scheme/policy they need to AVSS,J 5 W.P.No.12420 of 2021 adhere to/satisfy the relevant Clauses and they cannot ask the Court to dispense with certain Clauses while intending to seek advantage of the other Clauses. It is also required to be noted that, in the considered opinion of this Court, the judgments on which the learned counsel for the petitioners places reliance would not render any assistance to the case of the petitioners having regard to the facts and circumstances of the case.
11. In view of the above, this Court does not find any valid reason to interdict the respondents herein from proceeding further with the tender process.
12. Accordingly, Writ Petition stands dismissed. However, it is open for the petitioners herein to assail the Board's decision, if any, in accordance with law, if they are so advised. There shall be no order as to costs.
Miscellaneous petitions, if any, pending in this Writ Petition, shall stand closed.
_________________ A.V.SESHA SAI, J 05th July, 2021.
Note:
Furnish C.C. of the order within two days.
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