Page No.# 1/ vs The Union Of India And 3 Ors
2024 Latest Caselaw 8385 Gua

Gauhati High Court

Page No.# 1/ vs The Union Of India And 3 Ors on 18 November, 2024

Author: Devashis Baruah

Bench: Devashis Baruah

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GAHC010220002024




                                                          2024:GAU-AS:11239

                      THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                         Case No. : WP(C)/5334/2024

         THARU AND SONS
         A PARTNERSHIP FIRM HAVING ITS REGISTERED OFFICE AT 2ND FLOOR,
         KALAMASSERY SERVICE CO-OPERATIVE BANK BUILDING,
         NORTH KALAMASSERY NEAR METRO PILLER NO. 250,
         P.O.- KALAMESSERY, DISTRICT- ERNAKULAM, KERALA- 683104,
         REPRESENTED BY ITS MANAGING PARTNER MR. ANTONY THARU,
         SON OF MR. THARU A TARACKA, AGED ABOUT 51 YEARS,
         RESIDENT OF KALAMESSERY, NEAR METRO PILLER NO. 250,
         P.O.- KALAMASSERY, DISTRICT- ERNAKULAM, KERALA- 683104.



         VERSUS

         THE UNION OF INDIA AND 3 ORS
         REPRESENTED BY THE SECRETARY,
         MINISTRY OF RAILWAY, RAILWAY BOARD,
         RAIL BHAWAN, NEW DELHI- 110001.

         2:THE GENERAL MANAGER
          N.F. RAILWAY
          MALIGAON
          GUWAHATI- 781011.

         3:THE PRINCIPAL CHIEF ENGINEER (MECHANICAL)
          N.F. RAILWAY
          MALIGAON
          GUWAHATI- 781011.

         4:THE SENIOR DIVISIONAL ELECTRICAL ENGINEER
          GUWAHATI
          N.F. RAILWAY
          MALIGAON
          GUWAHATI- 781011
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     Advocate for the petitioner(s): Mr. KN Choudhury, Senior Advocate
                                    Mr. N Gautam



     Advocate for the respondent(s): Mr. B Chakravarty

CGC

Date of hearing & judgment : 18.11.2024

BEFORE HONOURABLE MR. JUSTICE DEVASHIS BARUAH

JUDGMENT & ORDER(ORAL)

Heard Mr. KN Choudhury, the learned senior counsel assisted by Mr. N Gautam, the learned counsel appearing on behalf of the petitioners. Also heard Mr. B Chakravarty, the learned CGC appearing on behalf of the Union of India.

2. The petitioners have approached this Court challenging the term of the Notice Inviting Tender (NIT) bearing E-Tender No.EL/GH/965 dated 01.10.2024 pertaining to outsourcing job of ACCEA (AC Coach Electrical Attendant) for escorting of LHB & SG AC Coaches of primary Maintenance Depot at GHY & KYQ Page No.# 3/10

for a period of 4 years.

3. The impugned term of the NIT which has been assailed relates to the minimum eligibility criteria mentioned in Clause 9 A of the Important Notes for Intending Tenderer(s). The said clause being relevant is reproduced hereinunder:

9. (A) Minimum Eligibility Criteria: Work Experience (Technical criteria): - The bidder should have satisfactorily completed in the last three previous financial years and the current financial year up-to the date of opening of the tender, one similar single service contract - for a minimum of 35% of advertised value of the bid.

Completed service contract includes on-going service contract subject to payment of bills amounting to at least 35% of the advertised value of the bid.

** similar service Contract means:

"Escorting contract for Roof Mounted AC package unit for LHB variant AC coaches by the Approved Vendors included in the list of Approved Vendors issued by RDSO for manufacture and supply of electrical items" or "Maintenance contract for Roof Mounted AC package unit for LHB variant AC coaches by the Approved Vendors included in the list of Approved Vendors issued by RDSO for manufacture and supply of electrical items"

Or "Manufacture and supply for Roof Mounted AC package unit for LHB variant AC coaches by the Approved Vendors included in the list of Approved Vendors issued by RDSO for manufacture and supply of electrical items"

4. The grievance of the petitioners herein is that while defining the term Page No.# 4/10

'similar service contracts' the respondent authorities had narrowed down the competition, inasmuch as, only whose approved vendors included in the list of Approved Vendors issued by RSDO for manufacture and supply of electrical items could participate. In that regard, the learned senior counsel, Mr. KN Choudhury for the petitioner submitted that there is a Railway Board Circular dated 17.01.2019, whereby the Railway Board had made certain suggestions on account of the impact of pricing in the maintenance contract of RMPU's which ought to have been followed by the respondent Railway. He, therefore, submits that the impugned term of the tender was contrary to the suggestions made by the Railway Board.

5. Pursuant to the filing of the instant writ petition, this Court had directed the respondents to bring on record their stand by filing affidavit and had also directed the NF Railway in the meantime to continue with the tender process till the stage of opening of the technical bid vide the order dated 23.10.2024.

6. The records reveal that a counter affidavit has been filed by the respondents, wherein it was mentioned that the said communication on the basis of which the petitioner had based the case was only recommendatory in nature. In addition to that, it was brought on record that on 07.02.2017, the Railway Board had approved for existing RMPU's, RSDO approved source of RMPU manufacture to be recommended for awarding the AMC. In addition to that, it was mentioned that on 08.04.2019 itself, the North East Frontier Railway had directed incorporation of the definition of 'similar nature of works' which is also seen in Clause 9A of the tender in question. Further to that, reference was Page No.# 5/10

also made to the communication/guidelines dated 16.01.2023 issued by the Railway Board which stipulated that while assessing the parameters for awarding the contracts, the person or the firm to whom the award of the contract would be made has to have the technical knowhow, in order that there is no problems in the maintenance of the LHB and SGHC coaches.

7. I have heard the learned senior counsels appearing on behalf of the petitioners as well as the learned counsel appearing on behalf of the respondents and given my anxious consideration.

8. Railways in India were introduced in the year 1853. To enforce standardization and coordination amongst various railway systems, the Indian Railway Conference Association (IRCA) had set up in the year 1903, the Central Standards Office (CSO). Post independence, with the increase in the country's industrial and economic activity and the consequent increase in the demand of rail transportation, a new organisation called the Railway Testing and Research Centre (RTRC) was set up in the year 1952. Both these organisations i.e. Central Standard Office (CSO) and the Railway Testing and Research Centre (RTRC) were integrated into a single unit i.e. the Railway Design and Standards Organisation (RDSO) in the year 1957 under the Ministry of Railways. It is also relevant to take note of that RDSO is India's sole R & D Organisation for Railways. Its functions include providing Technical Advice; Developing New Designs; to develop Standards for materials and products used by Indian Railways; conduct tests upon Railway equipments and materials; inspect electrical and safety items; conduct technical investigations; provides statutory clearances, etc. The RDSO also approves the vendors lists and updates the same from time to time.

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9. The above aspects have been taken into consideration, inasmuch as, the respondent Railways while defining the term 'Similar Service Contract' have specifically insisted the Approved Vendors included in the list of Approved Vendors issued by RDSO for manufacture and supply of electrical items. It is also seen from the materials on record that Railway Board had opined that the maintenance of the RMPU's should remain with the approved source of RMPU's as they are well conversant with the design and maintenance requirements. It is also mentioned in the recommendation that the requisite maintenance quality by other agencies is not possible and they are not well conversant with the maintenance practices and working requirements of a very high duty cycle including enroute maintenance.

10. It is also seen from the affidavit filed by the respondents why RDSO approved vendors have been specifically insisted. The statements in the said affidavit, and, more particularly, the relevant portion of paragraph 20 is quoted hereinbelow:

"20.........the representation was put up to PCME for his kind consideration. PCME after due consideration of the representation had given the following reasoned order as appear in the e-file. It has been stated therein that the ACCEA is a semiskilled staff who is to be engaged for operation & upkeep of AC equipment in coaches during run. This service along with other maintenance of AC units on NFR is being done through OEM contracts and a conscious decision has been taken already during the past to remain with OEM.

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Since it is only in the case of GHY that ACCEA is not bundled with the maintenance work of AC, this representation has been caused. There are the following aspects of the matter which are to be kept in view:

a. The OEM has to take responsibility for working of the plant and it has to be full. Therefore all resources, skill and time has to be OEMs otherwise there will be ALIBI for malperformance which cannot be accepted .

b. The Maintenance of AC is required to be under the same policy for the entire railway. There is no reason why the policy should be different for GHY.

c. The board's guidelines for relaxing the eligibility is only a suggestion and hence not binding. Therefore that or a relaxation given by any other railway cannot be a ground for changing our policy.

d. By keeping all maintenance with OEM, there will be an expectation of some extra cost, but the strict pinpointing of any malperformance whenever and wherever happens will always be there. The consequent recovery of penalties along with the added value arising from better quality of service/performance of AC will more than adequately cover for the extra cost.

Keeping in view the foregoing there is no need to change any pre- qualification/eligibility criteria and similar nature work criteria. In view of the above it can be concluded that the decision to have "RDSO approved vendor" as part of the eligibility criteria is not an arbitrary decision but a well-considered decision. Further, as the Board has given the authority to the PCMEs of the respective Zonal Railways, it implies that different railways can have different eligibility criteria."

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11. The above aspects clearly shows the justification on the part of the respondent Railways in insistence upon RDSO approved vendors.

12. The issue involved in the present writ petition is as to whether this Court should exercise its power of judicial review in respect to the definition i.e. 'similar service contracts'. The law in this regard is well settled by the Supreme Court in the case of Afcons Infrastructure Ltd Vs. Nagpur Metro Rail Corporation Ltd. & Anr, reported in (2016) 16 SCC 818 and more particularly in paragraph 15 of the said judgment. The said paragraph being relevant is reproduced hereinunder:

"15. We may add that the owner or the employer of a project, having authored the tender documents, is the best person to understand and appreciate its requirements and interpret its documents. The constitutional Courts must defer to this understanding and appreciation of the tender documents, unless there is mala fide or perversity in the understanding or appreciation or in the application of the terms of the tender conditions. It is possible that the owner or employer of a project may give an interpretation to the tender documents that is not acceptable to the constitutional Courts but that by itself is not a reason for interfering with the interpretation given."

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13. From a perusal of the above-quoted paragraph, it would be seen that the owner or the employer of a project having authored the tender documents is the best person to understand and interpret the documents. An injunction has also been imposed upon the Constitutional Courts to the effect that the Constitutional Courts must defer to this understanding and appreciation of the tender documents, unless there is a mala fide or perversity in the understanding or appreciation or in the application of the terms of the tender documents. In addition to that, the Supreme Court in the case of M/S Galaxy Transport Agencies, Contractors, Traders, Transports and Suppliers Vs. M/S New J.K. Roadways, Fleet Owners and Transport Contractors and Ors., reported in (2021) 16 SCC 808 had also observed in the same lines. This Court also finds it apt herein to mention that the respondent Railways are in know of their requirement for the contract in question and as such have imposed the said conditions. The justification given by the Railway Board in their recommendation made on 07.02.2017 and the same supplemented in paragraph 20 of the affidavit-in-opposition as quoted above shows that the respondent authorities for justifiable reasons have incorporated the requirement of RDSO approved vendors.

14. This Court also during the course of hearing had enquired with the learned counsels appearing on behalf of the parties as to whether the petitioners submitted their tender pursuant to the order(s) being passed by this Court. Mr. KN Choudhury, the learned Senior Counsel with all fairness submitted that the petitioners did not submit their tender, taking into account the observation(s) so made by this Court on 23.10.2024.

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15. Be that as it may, this Court also enquired with Mr. B Chakravarty, the learned CGC as to how many tenderers had submitted bids pursuant to the NIT and out of the various tenderers, how many were RDSO approved. To that, the learned CGC submitted that 6 tenderers had submitted bid and out of them, three were RDSO approved. In addition to that, the learned CGC submitted that there are already 11 enlisted contractors, who are RDSO approved.

16. Taking into account the above aspect and the reasons so assigned for insistence upon RDSO approved vendors, this Court is of the opinion that this is not a fit case for exercise of judicial review, as there is no element of perversity, mala fide as well as arbitrariness involved in the insistence upon RDSO approved vendors.

17. Accordingly, the writ petition being devoid of any merit stands dismissed.

18. Interim order passed earlier stands vacated.

JUDGE

Comparing Assistant