JUDGMENT Markandeya Katju, C.J.
1. This writ petition has been filed with the following prayers:-
I) That the respondent be directed to open the ?Packet-B? containing financial bids submitted by the petitioner for the trains 1015-1016 and 2137-2138 Along with other bidders and any deviation on the part of the IRCTC be declared void and non est;
II) That the action of the IRCTC in not declaring the petitioner technically qualified for the trains 1015-1016 and 2137-2138 being arbitrary, unreasonable and uncalled for, be declared unconstitutional and void;
III) That the respondent IRCTC be restrained from acting/doing anything prejudicial to the interest of the petitioner;
IV) Pass such other order or orders as may deem fit and proper in accordance with law.
2. The petitioner is a partnership firm which carries on business of mobile or static catering in the Railway and other Government or public/private undertaking in the name and style of M/s Poorvanchal Caterers having its head office at Gorakhpur and branch offices at New Delhi and other places. The petitioner has prayed for a direction prohibiting the respondent, Indian Railway Catering and Tourism Corporation Limited (IRCTC) from proceeding with the opening of the financial bids, for operation and management of catering and onboard services on Train Nos. 1015-1016 and 2137-2138 without inviting the petitioner who has also submitted its financial bids meaning thereby that the petitioner has been declared technically not eligible whereas for two other trains of the same tender the petitioner had been invited to participate in the opening of financial bids on 28.11.2005.
3. The IRCTC had advertised in the newspapers on 12.9.2005 and invited bids in sealed covers for operation and management of catering and onboard services on as many as twenty three trains. A copy of the advertisement dated 12.9.2005 is Annexure P-1 to the writ petition.
4. The petitioner claiming to be a reputed catering contractor and having extensive experience of catering with the railways responded to the invitation and submitted its bids for as many as eight trains as referred to in paragraph 4(ii) of the writ petition.
5. It may be mentioned that the Ministry of Railways through the Railway Board had circulated a commercial circular 8/2005, popularly known as catering policy, by which in the matter of tendering system the two packet bid system was directed to be stringently followed.
6. Clause 14.2 of the catering policy is as follows:- 14.2 Catering licenses of major catering units will be awarded through open tender under a two-packet system. Tenders will be invited by giving suitable notification in national and local newspapers. Packet-A will contain technical offer and Packet-B will contain the financial bid. Each catering unit will be treated as separate unit and will have a separate license. Stalls/trolleys will be allotted separately and will not be attached with Refreshment Rooms/stalls etc. Award of license in case of major units will be done by IRCTC and will be coordinated at the level of Chief Commercial Manager of the concerned zonal railway.?
7. The petitioner had submitted its bids for eight trains in the prescribed form Along with supporting documents.
8. Packet-A containing technical bids for all the 23 trains was opened at 12:15 hours on 21.10.2005. After evaluation and assessment as per the catering policy the eligible bidders were informed about the date and time of opening of the financial bids. The petitioner too was informed by letter dated 18.11.2005 from the respondent that the Packet-B containing financial bids of bidders, being found technically eligible, for train Nos. 8405-8406 and 4005-4006 was scheduled for opening on 28.11.2005. However, no such communication was issued to the petitioner in respect of Train Nos. 1015-16 and 2137-38.
9. It is alleged in Paragraph 4(vii) of the writ petition that the Railway Board had approved a proposal on the request of the IRCTC that one technical evaluation will suffice and hold good for other trains of the same tender. The said proposal dated 30.3.2005 reads as follows:- ?IRCTC should frame its own policy. As regards technical evaluation is concerned, if it is for different trains in one tender, then one such evaluation should hold good for other trains within the same tender?.
10. It is alleged by the petitioner that the said proposal approved by the Railway Board signifies the anxiety to maintain a uniform and balanced approach in the matter of technical evaluation and all the more to avoid duplicity in the matter of technical eligibility apart from avoiding unnecessary delays in the matter of technical evaluation. It is alleged that as a result of this letter once the petitioner has been found to be technically qualified with respect to two trains of the present tender i.e Train Nos. 8405-8406 and 4005-4006, he automatically becomes technically qualified for the entire lot , i.e. the remaining six trains for which he bid including Train Nos. 1005-1006, and 2137- 2138. Hence, It is alleged that Packet-B containing financial bids for Train Nos. 1015-1016, and 2137-2138 submitted by the petitioner should also have been opened at 12:00 hours on 28.11.2005 Along with other bidders who had been found technically eligible. However, the petitioner has not been informed about the opening of the financial bids for these two trains and this non- communication about these two trains in respect of opening of financial bids amounts to discrimination and non-application of mind.
11. The petitioner sent a legal notice to the respondents vide Annexure P-4 to the writ petition calling upon them not to proceed with the opening of the financial bids for the trains concerned unless the Packet B submitted by the petitioner for Train Nos.1015-16 and 2137-38 was also opened. The petitioner has alleged that once having been found to be technically qualified for one or more trains of the same tender, the petitioner automatically becomes technically eligible for the other trains of the same tender for which it has submitted its bids.
12. It is alleged that the conduct of the respondent is not fair and is discriminatory and arbitrary. The petitioner has alleged that it should have been informed/invited as regards the opening of the financial bids in respect of Train Nos. 1015-1016, and 2137-2138, but that was not done. Hence, the petitioner has prayed that the respondents be directed to open the financial bids submitted by the petitioner in respect of Train Nos. 1005-1006, and 2137- 2138.
13. A counter affidavit was filed by the IRCTC and we have perused the same. It has been submitted in paragraph 1 of the preliminary submissions in the counter affidavit that though the circular of the Railway Board states that one technical evaluation should hold good for other trains within the same tender, it does not prevent the tender committee from applying its mind to the facts of each case and to satisfy itself about the substantial compliance of requirements of tender and the completeness of the bid document. It is stated that the two trains, i.e Train Nos. 4005-4006 and 8405-8406 for which the petitioners have been held as eligible in the technical bid is due to the fact that they were existing licensees. The catering policy 2005 vide Clause 14.4 provides for a concession to existing licensees that they would be eligible to participate in a tender against a unit held by them even if they do not fulfill the prescribed turnover criteria for the said catering unit, provided the existing licensee has rendered satisfactory services for the last five years. A true copy of the catering policy 2005 is Annexure R-1 to the writ petition.
14. It is stated that for the other six trains apart from Train Nos. 8405-8406 and 4005-4006 for which the petitioners had applied, the petitioners are not the existing contractors therein. Hence, they were required to fulfilll all technical requirements and submit all relevant documents asked for in the tender documents. A true copy of the tender documents submitted by the petitioners in respect of Train Nos. 1015-1016 and 2137-2138 is Annexure R-2 to the writ petition.
15. It is stated in the counter affidavit that one of the conditions as per the tender document is that the applicant is required to submit a break up of his turnover in Annexure A-2 provided along with the tender documents. The petitioners did not supply the break up of sales turnover in respect of Train Nos. 1015-1016 and 2137-2138. The minutes of the tender committee in respect of the aforesaid two trains are Annexures R-3 and R-4 to the writ petition. The petitioners in their tender documents had simply stated that they would submit the break up of sales at the final stage of tendering which they failed to do before the tender committee met on 14.11.2005. Hence, in view of the incomplete tender (Packet-A) being submitted by the petitioners, the technical bid of the petitioners was rejected by the IRCTC. It is alleged that in a similar case P.K. Delicacies v. Union of India, Writ Petition No. 108383-40 of 2005 vide Judgment dated 26th July,2005 it has been held by this Court that the authorities concerned have power not to consider a tender which is incomplete and lacking in particulars.
16. In respect of the other four trains, i.e (i) 5011-12, 5089-90, 5091-92, (ii) 3005-06, (iii) 9037-38, 9039-40, (iv) 1019-20, it is submitted that the petitioners submitted the break up of sales turnover on 28.11.2005. Hence, the competent authority decided to take cognizance of the break up of sales turnover submitted by the petitioner on 28.11.2005 in respect of the aforesaid trains and the petitioners have been found to be technically eligible as the break up has been received before the meeting of the tender committee for these trains.
17. A rejoinder affidavit has been filed by the petitioner and we have perused the same.
18.It is stated in paragraph 5 of the rejoinder affidavit that even from the figure quoted as license fee in the profit and loss account of the petitioner which was submitted Along with the document, it is evident that the turn over of the petitioner is more than Rs 5 crores. Moreover, from the deed of partnership annexed to the tender documents and the various documents submitted along with the audited report by the chartered accountant the figure regarding sales turnover of the petitioner is crystal clear and reflects that the sales turnover is more than Rs. 5 crores per annum, and that too solely from the catering business. It is stated that the break up of sales turnover to be furnished in Annexure A-2 has already been furnished/supplied by the petitioner in the tender document which clearly indicate that the turnover of the petitioner is more than Rs. 3 Crores per annum.
19. As regards the decision of this Court in P.K. Delicacies v. Union of India (supra), it is submitted that judgment has no application to the facts of the present case as in that case the writ petitioner had not submitted a document on its letter head which basically is in the form of an undertaking having serious ramification on the bidder concerned and as such is a mandatory condition to be fulfillled. As regards Annexure A-2 , it is neither an undertaking nor contains any such information which is not available anywhere in the tender document. The audited balance sheet for the financial report submitted by the petitioner covers every aspect of the financial dealing of the petitioner and furnishes all the information required. Hence, it is submitted that the objection of the respondents is wholly arbitrary and not tenable.
20. Shri Jayant Bhushan, learned counsel for the petitioner submitted that sub- clause (iii) of Clause 14.4 of the catering policy provides that ?the applicant should have a minimum annual turnover in catering/hospitality and FandB services related business of Rs.3 Crores per annum for mobile catering on mail/express trains other than Rajdhani/Shatabdi Express trains?. The tenders in question were submitted for mail/express trains other than Rajdhani/Shatabdi trains and thus the turnover criterion was Rs. 3 crores in the previous year. Shri Bhushan submitted that the tender documents submitted by the petitioner clearly showed that the petitioner?s turnover in the relevant year in the catering business was over Rs. 5 crores, what to say of Rs. 3 crores.
21. Shri Jayant Bhushan submitted that previously the tender documents did not require giving of break up of turnover. However, in some cases IRCTC found that the turnover of the applicant was not in the catering/hospitality and FandB services related business. Hence, for ensuring that the required turnover was in the aforementioned field/business the break up of turn over was required to be submitted along with the tender. Hence, the policy remains the same requiring a turnover of Rs. 3 crores in the relevant field.
22. We are of the opinion that the submission of Shri Jayant Bhushan is correct. The minutes of the tender committee by which the petitioner?s bid has was rejected shows that in discussing the case of the petitioner, the tender committee observed that the petitioner ?is managing 8401-02 Express Train since 1994 and has an annual turnover of Rs. 5.04 crore (2004-05) in catering/hospitality and FandB services related business?. However, in the very same paragraph the committee observes that since the break up of sales was not submitted, the petitioner was not eligible for qualifying the technical bid.
23. We are of the opinion that this decision of the committee is clearly arbitrary and untenable. When the committee has found that the petitioner has an annual turnover of Rs. 5.04 crores in the previous year in the catering/hospitality and FandB services related business, we do not see how the petitioner?s bid could be rejected on the ground that he did not give the break up of sales. The very purpose of the requirement to give break up of sales turnover is to see whether the applicant fulfills the qualifying criterion of having a turnover of Rs. 3 crores in the catering/hospitality and FandB services related business. Since the tender committee found that the petitioner has an annual turnover of Rs. 5.04 crores in the catering/hospitality and FandB services related business, it was in our opinion wholly arbitrary to reject the petitioner?s bid merely because the break up of the sales turnover was not submitted.
24. The tender documents submitted by the petitioner clearly showed that its turnover in the relevant business i.e. catering/hospitality and FandB services related business was more than the required Rs. 3 crores. The profit and loss account submitted by the petitioner duly audited by chartered accountant showed that the turnover was Rs. 5.04 crores. The license fee paid to the Railways was Rs. 49,93,901/-. The license fee is at least 12% of the turnover. Hence, the license fee of Rs. 49,93,901/- shows a minimum turnover of approximately Rs. 4.8 crores which is much more than Rs. 3 crores. Page 170 of the paperbook which is also part of the tender document shows that the nature of business of the petitioner was catering business only and there was no change in the nature of business or profession. Thus, there was no question of any part of the turn over being related to any other business. Page 199 of the paperbook which is also part of the tender document submitted by the petitioner also shows the trains and the food plazas/refreshment rooms that the petitioner was currently operating. These details clearly show that the petitioner was exclusively doing business of catering/hospitality and FandB services related business.
25. As regards the decision of this Court in P.K. Delicacies (supra), in that case it was found that the petitioner had not given the declaration form stating that in case of non acceptance of the award by the tenderer or non fulfilllment of the tender conditions the earnest money deposited would be forfeited and he may be barred from further participation in future tenders for one year. The High Court held that this was an important part of the tender document and non submission of the same was not a mere empty formality.
26. However, in our opinion, the aforesaid decision is clearly distinguishable. In the present case, the tender committee has come to the conclusion that the turnover of the petitioner was more than Rs. 3 crores in the relevant field. Hence, in our opinion, the requirement of filing of break up of turnover was really of no consequence, as the very object of that requirement was to ensure that the tenderer had a turnover of at least Rs. 3 crores in the relevant field, which the petitioner had established by its documents submitted along with the tender form and as accepted by the tender committee. Hence, the mere non filing of the break up of the turnover was, in our opinion, irrelevant.
27. For the reasons given above, the writ petition is allowed and the prayers in the writ petition are granted. An interim order was passed by this Court on 29.11.2005. We direct that the respondents 1 and 2 shall open Packet-B containing the financial bids submitted by the petitioner for Train Nos. 1015- 1016 and 2137-2138 and consider the bids of the petitioner along with others for the aforesaid trains.