Full Judgment Text
THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 01.11.2013
+ W.P.(C) 5179/2013 & CM No.11646/2013
JINDAL STEEL & POWER LIMITED & ANR. ....Petitioners
versus
RAIL VIKAS NIGAM LTD. ....Respondent
AND
+ W.P.(C) 5181/2013 & CM No.11649/2013
JINDAL STEEL & POWER LIMITED & ANR. ....Petitioners
versus
RAIL VIKAS NIGAM LTD. ....Respondent
Advocates who appeared in this case:
For the Petitioners : Mr Sandeep Sethi, Sr. Adv. with Mr Rajat
Jariwal, Ms Snehal Kakrania & Ms Anisha
Somal.
For the Respondents : Mr Parag Tripathi, Sr. Adv. with Mr Anil Seth
& Mr Arunabh.
CORAM:-
HON’BLE MR JUSTICE BADAR DURREZ AHMED
HON’BLE MR JUSTICE VIBHU BAKHRU
WP(C) Nos.5179/2013 & 5181/2013 Page 1 of 19
JUDGMENT
VIBHU BAKHRU, J
1. The Petitioners have filed the present writ petitions challenging
clauses 6.2.2 (Technical Experience) and 6.2.3 (Production Capacity) of the
two invitations to tender issued on 02.07.2013 as being arbitrary, unlawful
and violative of Articles 14 and 19 of the Constitution of India. In W.P.(C)
No.5179/2013, the petitioner has challenged the aforesaid clauses of the
Invitation of Bid No: RVNL/Rail Procurement/2 of 2013 and in W.P.(C)
No.5181/2013 similar clauses of Invitation of Bid No: RVNL/Rail
Procurement/1 of 2013 have been challenged. As both the writ petitions
involve a challenge to similar clauses of the Invitations to tender, on similar
grounds, the same have been taken up together. In order to consider the
controversy involved in the present writ petitions, the facts as are relevant
to W.P.(C) No.5181/2013 are being referred herein.
2. The respondent company is a Central Public Sector Undertaking and
was incorporated on 24.01.2003 with the object to implement rail
infrastructure projects. The respondent has undertaken several railroad
projects in different regions of India, which include the following projects:
"Hospet-Tinaighat Doubling
Daund-Gulbarga Doubling
Titlagarh-Raipur Doubling
Sambalpur-Titlagarh Doubling"
WP(C) Nos.5179/2013 & 5181/2013 Page 2 of 19
3. The Government of India has received loans from the Asian
Development Bank (hereinafter referred to as the „ADB‟) for investment in
the railway sector. A part of the funds available from ADB are to be
deployed for execution of the aforementioned projects. The respondent had
issued the aforementioned invitations to bid for procuring rails for
execution of the various projects in India which were being funded by the
loan received from ADB towards cost of the Railway Sector Investment
Programme.
4. Admittedly, the respondent as well as the Indian Railways procures
rails directly from Steel Authority of India Limited (hereinafter referred to
as the „SAIL‟) in respect of all their requirements other than those funded
from the financial assistance made available by ADB. The allotment orders
are made by the Railway Board pursuant to a Memorandum of
Understanding signed between Ministry of Railways and SAIL for all the
purchases made for the Indian Railways. However, in respect of projects
which are implemented from the funds of ADB, the rails are procured by
inviting competitive bids from all eligible entities worldwide, as per the
guidelines issued by ADB. In the present case, the invitations to tender
which are subject matter of the writ petitions are for procurement of rails
for the projects which are being implemented from the funds made
available by ADB.
5. On 02.07.2013, the respondent issued “Invitation of Bid No:
RVNL/Rail Procurement/l of 2013” inviting bids for manufacture and
supply of 106600 MT of UIC 60kg/m rails (Grade 880, Class A)
conforming to Indian Railway Specifications IRS-T-12-2009 for various
WP(C) Nos.5179/2013 & 5181/2013 Page 3 of 19
railroad projects in different regions of India. The said “Invitation of Bid
No: RVNL/Rail Procurement/l of 2013” is hereinafter referred to as the Bid
Document.
6. As per sub-clause 6.2.2.1 (Manufacturing Experience) under Section
3 (Evaluation and Qualification Criteria) of the Bid Document , a bidder
must have supplied a minimum of 1,60,000 MT (1.5Q) UIC 60 kg/m rails
(conforming to the level of hydrogen content given in clause 21 of IRS T-
12-2009) from April 2006 to March 2011 to passenger carrying railway
systems in operation. As per clause 6.2.3 (Production Capacity) under
Section 3 (Evaluation and Qualification Criteria) of the Bid Document, a
bidder must have supplied a minimum of 1,06,000 MT (1.5Q/T) of UIC 60
kg/m rails to any of the railway systems in operation in each year during the
last three years. The relevant clauses of the Bid Document are extracted
hereunder:-
" 6.2.2 Technical Experience
6.2.2.1 Manufacturing Experienc e
The manufacturer should have the experience of production
of UIC 60 kg/m rails for at least last seven years and should
have supplied a minimum of 1,60,000 MT (1.5Q) UIC 60
kg/m rails (conforming to the level of hydrogen content
given in clause 21 of IRS T-12-2009) from April 2006 to
March 2011 to passenger carrying railway systems in
operation. These rails should be in use for more than two
years and performance found satisfactory.
xxxx xxxx xxxx xxxx
6.2.3 Production Capacity
WP(C) Nos.5179/2013 & 5181/2013 Page 4 of 19
A minimum of 1,06,000 MT (1.5Q/T) of UIC 60 kg/m rails
per annum should have been supplied by the manufacturer to
any of the railway systems in operation in each year during
the last three years."
7. The petitioner being aggrieved by clauses 6.2.2.1 & 6.2.3 of the Bid
Document (hereinafter referred to as the „impugned clauses‟) made a
representation to the respondent pointing out that there were only two
companies in India which could manufacture and supply UIC 60 kg/m rails
to the respondent, namely, the petitioner and SAIL. The Research Designs
and Standards Organisation had also approved the facilities of the petitioner
as well those of SAIL. However, the petitioner would not be eligible to
participate in the bids invited by the respondent on account of the
“Evaluation and Qualification criteria” which required extensive past
experience. And the same was impossible on account of the policy followed
by the Indian Railways of acquiring rails directly from SAIL without
inviting any offers from other manufacturers. The petitioner also asserted
that it had a production capacity of 0.75 million tonnes per annum and that
the rails manufactured by the petitioner were qualitatively better than the
ones supplied by SAIL. Similar representations were also made by the
petitioner to the Railway Board. The petitioner followed its earlier
representation by another representation dated 03.08.2003 wherein it
reiterated its grievance with respect to the impugned clauses. However, the
grievance voiced by the petitioner was not addressed by the respondent.
On the contrary, the respondent sent a letter dated 06.08.2013 whereby it
was, inter alia, asserted that the respondent considered it essential that the
rails should be manufactured and supplied by an entity which had prior
experience of supplying rails under similar conditions.
WP(C) Nos.5179/2013 & 5181/2013 Page 5 of 19
8. The petitioner being aggrieved with the impugned clauses has
preferred the present writ petitions. On 19.08.2013, this Court passed a
common interim order in C.M 11649/2013 (in W.P.(C) No.5181/2013) and
in C.M No. 11646/2013 (in W.P.(C) No.5179/2013), whereby the
respondent was directed to consider the petitioner's bids without insisting
upon compliance with the said impugned clauses and the result of the bid
was directed to be kept in a sealed cover.
9. It was contented by the petitioners that the impugned clauses are
arbitrary, unlawful and violative of Articles 14 and 19 of the Constitution
of India. It has been further submitted that the impugned clauses are in
contravention of the international best practices. The petitioners have cited
instances of various international tenders where the bidders were required
to only meet with the prescribed manufacturing standards and prior supply
experience has not been insisted upon. It was submitted that once any
bidder complies with all standards of production and manufacturing
requirements, the concerned bidder should be considered eligible to bid in
the tender, as it is the quality of the rails which ensures the overall safety of
passengers and human life commuting by railway and the past experience
would be irrelevant.
10. It was further contended that the impugned clauses impose onerous
and inequitable conditions. Even though the petitioner is technically as
well as otherwise competent to bid and participate in the tender process
and supply the material if eventually awarded the tender, the petitioner is
unable to qualify as a bidder on account of the past experience criteria.
The conditions imposed by the impugned clauses are contrary to the
WP(C) Nos.5179/2013 & 5181/2013 Page 6 of 19
principle of free and fair competition as the same, in effect, prevents broad
participation of the bidders and consequently has the effect of practically
ousting all the genuine bidders and indigenous bidders, like the Petitioner
No. 1 herein, from participating in the tender.
11. It is contended on behalf of the petitioner that the impugned clauses
have been inserted for the purpose of excluding the petitioner from
participating in the tender and with the ulterior object of ensuring that only
SAIL is able to participate in the tender. It is contended that the bid
documents have been tailor-made to favour SAIL for the purpose of
procuring rails. The inclusion of the impugned clauses in the bid document
is contended to be mala fide and thus, violative of Article 14 of the
Constitution of India.
12. It was stated that the Indian Railways has only permitted the
petitioner company to supply rails to private sidings. It is contended that
there is no difference in technical specification of rails required for private
sidings and those for passenger rails, therefore, the petitioner is technically
competent to manufacture and supply rails to be used in passenger rail
systems. The specification for rails being sourced for private sidings and
that used in passenger railroads being the same, the requirement of safety is
met by the petitioner company. The petitioner has also relied upon the
opinion dated 15.08.2013 given by Mr Sharat Chandra Gupta (Retd.
Commissioner of Railway Safety & Railway Technical Consultant), to the
same effect.
WP(C) Nos.5179/2013 & 5181/2013 Page 7 of 19
13. The petitioner had relied upon the decision of the Supreme Court in
Rashbihari Panda Etc. v. State of Orissa : (1969) 1 SCC 414, in support of
his contention that the conditions imposed by the impugned clauses of the
Bid Document seek to arbitrarily exclude other entities involved in the
trade and such restricted invitations would fall foul of Article 14 of the
Constitution of India as being discriminatory, arbitrary and unreasonable
and also violative of Article 19(1)(g) of the Constitution of India. The
petitioners also relied upon the decision of a Division Bench of this Court
in Gharda Chemicals Ltd. v. Central Warehousing Corporation : 2005
(118) DLT 159 wherein this Court had held that the pre-qualification
condition of manufacturing experience as required in that case was
irrational and arbitrary and had no nexus with the stated object of ensuring
quality and consistency of supplies. It is contended that in the present case
also the condition of experience would have no nexus with the object of
ensuring sufficient quality supplies of rails to the respondent.
14. The respondent has contended that the tender conditions with regard
to past experience are not arbitrary or unreasonable. It is submitted that the
said tender conditions have been included based on the Standard Bidding
Document (hereinafter referred to as the „SBD‟) provided by ADB. ADB
has issued a Users‟ Guide for procurement of goods which contains the
SBD for procurement of goods and related services. As the procurement of
rails under the Bid Document is to be financed partly from the loan made
available by ADB, the respondent was obliged to follow a transparent
tendering process and was also required to issue the invitations to tender in
conformity with the SBD as provided by ADB. Insistence of past
WP(C) Nos.5179/2013 & 5181/2013 Page 8 of 19
experience as a qualification criterion is well accepted. The eligibility
criterion of past experience has also been adopted by the respondent for the
past several years. It is submitted by the respondent that the policy to
include past experience criteria is to ensure that the bidding is restricted to
entities that have the capacity to perform the contract in question. And
insisting that only bidders who are experienced and have proven credentials
participate in the tender ensures that only bidders who have the required
capacity to perform are considered for awarding the contract. The learned
counsel for the respondent has also drawn our attention to Para (xv) of the
counter affidavit filed by the respondent which contains a table indicating
the justification for including clauses of the eligibility and qualification
criteria in the Bid Document including the impugned clauses.
15. The learned counsel for the respondent has placed reliance on the
decision of the Supreme Court in the case of Tata Cellular v. Union of
India : (1994) 6 SCC 651 , in support of his contention that a Government
has complete freedom to contract and unless its decision is arbitrary,
affected by bias or completely unreasonable, the Courts would not interfere
with the same. The learned counsel has also placed reliance on a decision
of the Supreme Court in the case of Michigan Rubber (India) Ltd. v. State
of Karnataka & Ors. : (2012) 8 SCC 216 , in support of his contention that
Courts would not interfere in the matter of formulating conditions of a
tender document unless the same are found to be malicious and a misuse of
the statutory powers.
16. We have heard counsel for the parties at length.
WP(C) Nos.5179/2013 & 5181/2013 Page 9 of 19
17. The terms of invitation to tender are in the realm of contracts.
Indisputably, the respondent has the freedom to decide, as with whom and
on what terms it should enter into a contract. No citizen has a fundamental
right to enter into a contract with the state. It is now well settled that the
terms of invitation to tender would not be amenable to judicial review
unless the same have been actuated by malafides or are arbitrary and are
such that no reasonable person could possibly accept the same as relevant
for the purposes for which the conditions are imposed.
18. Thus, the only controversy that needs to be addressed in the present
case is whether the impugned clauses are so patently unreasonable and
arbitrary, in the sense that no reasonable person could consider the same
germane and relevant for the purposes of procurement of rails which is the
subject matter of the invitations to tender. It would also be necessary to
consider whether the impugned clauses have been included with the object
to tailor-make the bid documents so as to favour only SAIL and exclude all
other bidders.
19. Undisputedly, the procurement of rails which is the subject matter of
the invitations to tender is funded by the financial assistance received from
ADB and thus, the respondent has to follow the bidding procedure as
prescribed by ADB. The ADB has published a User Guide for procurement
of goods which contains the Standard Bidding Document (hereinafter
referred to as SBD). The introduction to the said Users Guide indicates that
the SBD have been drafted to:-
WP(C) Nos.5179/2013 & 5181/2013 Page 10 of 19
“(a) simplify the Purchaser‟s preparation of a specific
bidding document (BD) for Procurement of Goods and
Related Services;
(b) reduce the Bidders‟ bidding time and effort;
(c) facilitate and simplify the Purchaser‟s evaluation and
comparison of bids and Contract award; and
(d) minimize the ADB‟s time required for the prior review
of the BD.”
As per the SBD, a bidder has to possess the qualifications which are
considered necessary to indicate his capacity to fulfill the obligation under
the contract.
20. The SBD as provided by ADB expressly provides that the
qualifications regarding critical aspects of financial, technical, production,
procurement, shipping, installation & other capabilities of the bidder which
are necessary to perform the contract may need to be examined. The SBD
also indicates the criteria that may be used to specify the critical
qualifications of a bidder. The relevant extract from the SBD is quoted
below:-
“The following criteria may be used individually or in
combination to establish one or several critical qualifications of
the Bidder :
Size of Operation
Average annual turnover (converted into US Dollors) defined
as the total payments received by the Bidder for contracts
completed or under execution over the last three years.
WP(C) Nos.5179/2013 & 5181/2013 Page 11 of 19
Contractual Experience
Number of contracts successfully completed as main supplier
within the last three years. Value, nature, and complexity of
these contracts should be comparable to the contract to be let.
Technical Experience
Goods offered have been in production for at least [ number ]
years and a minimum of [ number ] units of similar capacity
have been sold and have been in operation satisfactorily for at
least [ number ] years.
Production Capacity
Minimum supply and/or production capacity required to assure
that the Bidder is capable of supplying the type, size, and
quantity of the Goods required.
Financial Position
Soundness of the Bidder‟s financial position showing long-
term profitability demonstrated through audited annual
financial statements (balance sheet, income statement) for the
last three years.
Cashflow Capacity
Availability of or access to liquid assets, lines of credit, and
other finances sufficient to meet any possible cash flow
requirement which may arise during the execution of the
contract. This should in appropriate cases also take into
account the Bidder‟s commitments for other contracts.
Litigation History
All pending claims, arbitrations, or other litigation shall
represent in total not more than [percent] of the Bidder‟s net
worth.”
WP(C) Nos.5179/2013 & 5181/2013 Page 12 of 19
21. It is apparent that the impugned clauses with regard to the past
experience have been included in the Bid Document in conformity with the
requirements of the SBD. The respondent has contended that the impugned
clauses have been included to ensure that the manufacturers who bid for the
contract have the requisite capacity and experience of supplying the
specific section of rails for passenger carrying railway systems. Clause
6.2.2.1 has been inserted to ensure that the bidders have supplied rails of
the desired quality which have performed over a period of time. The
condition as imposed under clause 6.2.3 of the bid document has been
rd
considered necessary as it is assumed that only 2/3 of the production
capacity would be devoted for supplying rails under the contract and the
rd
balance 1/3 capacity would be utilised by the manufacturer for meeting his
other commitments. It has been contended on behalf of the respondent that
the contract would entail a supply @ 10740 MT per annum and taking the
rd
said supply as 2/3 of the capacity of a manufacturer, it has been
considered apposite to ensure that the manufacturer who bids for the
contract has a minimum capacity for producing 16000 MT of rails per
annum. According to the respondent, the evidence of this capacity is
required to be established by the track record of supplies made by the
manufacturer over the past three years.
22. Given the aforesaid explanations, in our view, the petitioners have
been unable to establish that the conditions imposed by the impugned
clauses are completely irrelevant or not germane to the object of procuring
quality supplies by the respondent. It is not for the Courts to supplant their
own views for that of the concerned agency of the state. The scope of
WP(C) Nos.5179/2013 & 5181/2013 Page 13 of 19
judicial review is limited to examine whether the decisions of the
administrative authorities are arbitrary and unreasonable so as to fail the
test of reasonableness as explained by Lord Greene M.R. in Associated
Provincial Picture Houses, Limited v. Wednesbury Corporation : (1948) 1
K.B. 223. The question that has to be asked is whether the decision of the
concerned authority (in this case the respondent) is so unreasonable that no
reasonable person could possibly arrive at such a decision. In our view, the
decision of the respondent to include a past experience criteria in the Bid
Document does not fall foul of this test of reasonableness. We are, thus,
unable to hold that the condition of past experience is completely alien to or
has no nexus with the object of procuring quality supplies.
23. We are also unable to accept the contention that the inclusion of the
impugned clauses in the Bid Documents is mala fide and is motivated to
ensure that only SAIL is qualified to submit bids pursuant to the invitations
to tender floated by the respondent. Although, it is quite possible that given
the past experience criteria, no other bidder from India qualifies to submit
the tender, however, that cannot by itself lead to the conclusion that the
impugned clauses have been included only for the purpose of tailor-making
the Bid Documents to serve the interest of SAIL and exclude the petitioner
company. The past experience criteria cannot be considered as an irrelevant
criteria and the respondent has provided cogent justification for the same.
In addition, the SBD provided by ADB also requires that suitable
qualification criteria be included in the invitations to bid. The respondent
has been able to sufficiently explain the reasons for including the impugned
clauses. There is no material which can indicate that the inclusion of the
WP(C) Nos.5179/2013 & 5181/2013 Page 14 of 19
impugned clauses is mala fide and only for the purposes of favouring SAIL.
It is also relevant to observe that the bids invited by the respondent are open
to bidders from 67 different countries and thus, it is not possible for us to
come to a conclusion that the impugned clauses have been designed only
for the purposes of excluding the petitioner company. In the case of
Association of Registration Plates v. Union of India : (2005) 1 SCC 679,
the Supreme Court considered the case concerning tenders for awarding a
contract for ensuring supply of high security registration plates for motor
vehicles. In that case , it was contended that the conditions of the tender
document resulted in exclusion of all indigenous manufacturers and only
those persons who had collaboration with foreign entities could possibly
qualify for submitting tenders. It was, thus, contended by the petitioners
therein that the tender conditions violated Article 19(1)(g) of Constitution
of India. Rejecting the said contention, the Supreme Court held as under:-
“ 38. In the matter of formulating conditions of a tender
document and awarding a contract of the nature of ensuring
supply of high security registration plates, greater latitude is
required to be conceded to the State authorities. Unless the
action of tendering authority is found to be malicious and a
misuse of its statutory powers, tender conditions are
unassailable. On intensive examination of tender conditions,
we do not find that they violate the equality clause under
Article 14 or encroach on fundamental rights of the class of
intending tenderers under Article 19 of the Constitution. On
the basis of the submissions made on behalf of the Union and
the State authorities and the justification shown for the terms
of the impugned tender conditions, we do not find that the
clauses requiring experience in the field of supplying
registration plates in foreign countries and the quantum of
business turnover are intended only to keep indigenous
manufacturers out of the field. It is explained that on the date
WP(C) Nos.5179/2013 & 5181/2013 Page 15 of 19
of formulation of scheme in Rule 50 and issuance of
guidelines thereunder by Central Government, there were not
many indigenous manufacturers in India with technical and
financial capability to undertake the job of supply of such
high dimension, on a long-term basis and in a manner to
ensure safety and security which is the prime object to be
achieved by the introduction of new sophisticated registration
plates.
39. The notice inviting tender is open to response by all
and even if one single manufacture is ultimately selected for a
region or State, it cannot be said that the State has created a
monopoly of business in favour of a private party. Rule 50
permits the RTOs concerned themselves to implement the
policy or to get it implemented through a selected approved
manufacturer.
40. Selecting one manufacturer through a process of
open competition is not creation of any monopoly, as
contended, in violation of Article 19 (1)(g) of the Constitution
read with Clause (6) of the said Article. As is sought to be
pointed out, the implementation involves large network of
operations of highly sophisticated materials. The
manufacturer has to have embossing stations within the
premises of the RTO. He has to maintain the data of each
plate which he would be getting from his main unit. It has to
be cross-checked by the RTO data. There has to be a server in
the RTO's office which is linked with all RTOs' in each State
and thereon linked to the whole nation. Maintenance of the
record by one and supervision over its activity would be
simpler for the State if there is one manufacturer instead of
multi-manufacturers as suppliers. The actual operation of the
scheme through the RTOs in their premises would get
complicated and confused if multi-manufacturers are
involved. That would also seriously impair the high security
concept in affixation of new plates on the vehicles. If there is
a single manufacturer he can be forced to go and serve rural
areas with thin vehicular population and less volume of
WP(C) Nos.5179/2013 & 5181/2013 Page 16 of 19
business. Multi-manufacturers might concentrate only on
urban areas with higher vehicular population.
xxxx xxxx xxxx xxxx xxxx
43. Certain preconditions or qualifications for tenders
have to be laid down to ensure that the contractor has the
capacity and the resources to successfully execute the work.
Article 14 of the Constitution prohibits the government from
arbitrarily choosing a contractor at its will and pleasure. It has
to act reasonably, fairly and in public interest in awarding
contract. At the same time, no person can claim a fundamental
right to carry on business with the Government. All that he
can claim is that in competing for the contract, he should not
be unfairly treated and discriminated, to the detriment of
public interest. Undisputedly, the legal position which has
been firmly established from various decisions of this Court,
cited at the Bar (supra) is that government contracts are highly
valuable assets and the court should be prepared to enforce
standards of fairness on the government in its dealings with
tenderers and contractors.
44. The grievance that the terms of notice inviting tender
in the present case virtually create a monopoly in favour of
parties having foreign collaborations, is without substance.
Selection of a competent contractor for assigning job of
supply of a sophisticated article through an open-tender
procedure, is not an act of creating monopoly, as is sought to
be suggested on behalf of the petitioners. What has been
argued is that the terms of the notices inviting tenders
deliberately exclude domestic manufacturers and new
entrepreneurs in the field. In the absence of any indication
from the record that the terms and conditions were tailor-
made to promote parties with foreign collaborations and to
exclude indigenous manufacturers, judicial interference is
uncalled for.”
24. In our view, the aforesaid decision in the case of Association of
Registration Plates (supra) is clearly applicable to the facts of the present
WP(C) Nos.5179/2013 & 5181/2013 Page 17 of 19
case. In this case too, we are unable to hold that the impugned clauses
imposing conditions with regard to qualification of bidders are tailor-made
to suit SAIL. Since, we are unable to accept that the decision of respondent
is actuated by any mala fides or is unreasonable, in our view, no
interference with the tender process is warranted.
25. The decision of the Supreme Court in the case of Rashbihari Panda
(supra) would be inapplicable in the facts of the present case. In that case,
the State Government had acquired a monopoly in respect of Kendu leaves
by virtue of the Orissa Kendu (Control of Trade) Act, 1961. The
Government of Orissa made schemes for sale of Kendu leaves which
ensured that only the purchasers who had carried out the obligations in the
previous year would be entitled to enter into the contracts for Kendu leaves.
The Supreme Court held that exclusion of persons interested in the trade,
who were not licensees in the previous year, was ex facie arbitrary and did
not further the purpose of preventing exploitation of plucker and growers
of Kendu leaves. The classification of contractors was found to be
unreasonable and bearing no nexus with the object sought to be achieved. It
is on this basis that the Supreme Court struck down the schemes framed by
the State Government of Orissa. In the case of Gharda Chemicals Ltd.
(supra) also the court came to the conclusion that the tender condition did
not bear any rational nexus with the object of ensuring quality and
consistency of supplies. In the present case, we are unable to accept that the
inclusion of the impugned clauses does not bear a direct relationship with
the object of securing supply of the requisite quantity and quality of rails
WP(C) Nos.5179/2013 & 5181/2013 Page 18 of 19
and therefore, we cannot hold that the impugned clauses violate article 14
or article 19(1)(g) of the Constitution of India.
26. Accordingly, we dismiss the present petitions. The interim
applications also stand dismissed. We direct that the bids submitted by the
petitioner, which are kept in the sealed cover pursuant to the interim order
dated 19.03.2009, be returned to the petitioner company.
27. The parties are left to bear their own costs.
VIBHU BAKHRU, J
BADAR DURREZ AHMED, J
NOVEMBER 01, 2013
RK
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