JUDGMENT By the Court.—Heard Shri Navin Sinha, learned Senior Counsel assisted by Shri Rakesh Kumar for the petitioners, Shri Govind Saran for the respondent Nos. 1 to 3 and Shri Ashok Kumar Srivastava for the respondent No. 4. 2. By this petition, petitioners have prayed for quashing the order dated 17.4.2009, by which order the North Central Railway has accepted the tender of respondent No. 4 for supplying stacking and loading in to railway wagon/hoppers/K.C. wagon 60000 Cum machine crushed hard stone ballast 65 mm gauge at MNF depot under ADEN/NCR/MZP. 3. Brief facts necessary for deciding the writ petition are : Petitioner No. 1 is a registered partnership firm, registered on 18.8.2008. There are three partners in the firm namely, Vijay Kumar Vaish, son of Ramji Vaish having 40% share , Subhash Chandra Vaish, son of Kapoor Chand Vaish having 20% share and Ramji Vaish, son of Kapoor Chand Vaish having 40% share. Out of the aforesaid three partners, two partners namely Subhash Chandra Vaish and Ramji Vaish are also partners of another firm namely M/s Subhash Stone Product. Divisional Railway Manager, North Central Railway, Allahabad issued an advertisement dated 9.7.2008 inviting tender for the supply of stacking and loading into railway wagon/hoppers/K.C. wagon 60000 Cum machine crushed hard stone ballast 65 mm gauge at MNF depot under ADEN/NCR/MZP for an amount of Rs. 423 Lacs. Petitioners as well as the respondent No. 4 submitted their tenders for the aforesaid work. The rates quoted by the petitioners for the tender was Rs. 911 per Cubic Meter. The respondent No. 4 had quoted the rates of 945 per Cubic Meter which on negotiation was reduced up to 911.70 per cubic meter. The North Central Railway accepted the tender of the respondent No. 4 and a letter dated 17.4.2009 (Annexure-8 to the writ petition) was issued in this regard. The petitioners have come up in this writ petition challenging the decision of the North Central Railway accepting the tender of the respondent No. 4. 4. Counter affidavit and Supplementary Counter Affidavit has been filed by the North Central Railway alongwith which the proceedings of Tender Committee dated 30.3.2009 has been brought on the record which records the reason for not treating the tender of M/s Vijay Stone Product as valid. 4. Counter affidavit and Supplementary Counter Affidavit has been filed by the North Central Railway alongwith which the proceedings of Tender Committee dated 30.3.2009 has been brought on the record which records the reason for not treating the tender of M/s Vijay Stone Product as valid. In the proceedings it was mentioned that the M/s Vijay Stone Product has not supplied any credentials in its name, rather it has submitted credentials of some other firm namely M/s Subhash Stone Product, Sonebhadra of which two partners are the partners in the present firm. Referring to Note No. 13 of the Schedule of Rate and Quantity to the effect that “Credentials in the name of firm applying for the work will only be considered”. The credentials given of another firm are not acceptable. In the counter affidavit, it has been stated that the minimum eligibility as laid down in the Clause 7of tender notice is not fulfilled by the petitioners, hence the tender has not rightly been considered. It is submitted that M/s Vijay Stone Product had not completed one similar single work for a minimum value of 35 per cent of the advertised tender value in the last 3 financial years and further the contract amount during the last 3 financial years of the petitioner is not to the extent of 150 per cent of the advertised tender value. 5. Rejoinder affidavit and supplementary rejoinder affidavit has been filed by the petitioners whereby the petitioners have reiterated that the petitioners are eligible for the experience of its two partners who were also partners in the M/s Subhash Stone Product, cannot be ignored nor the certificates given in the name of M/s Subhash Stone Product regarding single work of more than 35 percent of the tendered amount and further having received the contract amount of more than 150 per cent of the advertised tender value by M/s Subhash Stone Product could not have been ignored. 6. Shri Navin Sinha, learned Senior Counsel for the petitioners challenging the decision of the respondents submitted that the petitioners fulfilled the technical and financial eligibility criteria as laid down in the tender condition. 6. Shri Navin Sinha, learned Senior Counsel for the petitioners challenging the decision of the respondents submitted that the petitioners fulfilled the technical and financial eligibility criteria as laid down in the tender condition. Two of its partners being partners in another firm namely M/s Subhash Stone Product, and having completed the work of more than 35 per cent of the tendered amount in the last 3 financial years and having also received the amount to the extent of 150 per cent of the tendered amount for the last 3 years taking the share of two partners in the M/s Subhash Stone Product, the criteria is fulfilled. It is submitted that the reason given by the Tender Committee that the credentials of M/s Subhash Stone Product, cannot be looked into is fallacious. Reliance has been placed by the learned counsel for the petitioners on the judgment of the Supreme Court in New Horizons Limited and another v. Union of India and others, (1995) 1 SCC 478 . 7. Shri Navin Sinha, learned Senior Counsel for the petitioners submitted that the plea of the respondents in the counter affidavit that the petitioners did not fulfil the minimum eligibility criteria, they have not completed the single work of 35 per cent of the tendered amount nor having received the contract amount of the 50 per cent cannot be considered nor the respondents can improve their case by giving additional reasons in the counter affidavit. He submits that the only reason given by the Tender Committee for not accepting the tender of the petitioners was that the credentials of M/s Subhash Stone Product cannot be looked into. It is submitted that the petitioners tender being lower was liable to be accepted and error has been committed by the respondents. 8. Shri Govind Saran, learned counsel appearing for the respondents submits that the experience of work submitted by M/s Subhash Stone Product were not liable to be considered by virtue of Note 13 of Schedule of Rates and Quantities. The petitioners having not submitted any work experience in the name of their firm they were not eligible. Shri Govind Saran further submits that in any view of the matter the petitioners did not fulfil the financial and technical eligibility as provided in the tender notice, they are not entitled to any relief. The petitioners having not submitted any work experience in the name of their firm they were not eligible. Shri Govind Saran further submits that in any view of the matter the petitioners did not fulfil the financial and technical eligibility as provided in the tender notice, they are not entitled to any relief. It is submitted that the condition as laid down in Note 13 and all other conditions of tenders having been accepted by the petitioners by signing the tender form they are bound by their undertaking to follow all the conditions that they cannot be allowed to say that experience of M/s Subhash Stone Product be looked into. It is submitted by Shri Govind Saran that according to the conditions of the tender, acceptance and rejection of a tender is in the discretion of the authority which cannot be interfered with in this writ petition. 9. We have considered the submissions of the learned counsel for the parties and have perused the record. 10. Before we proceed to consider the various submissions, it is relevant to note the relevant conditions of tender. Para 4.0 deals with the Minimum Eligibility Criteria. Paras 4.0, 4.1 and 4.2 are quoted below : “4.0. MINIMUM ELIGIBILITY CRITERIA 4.1. The Tenderer must satisfy the Minimum Eligibility Criteria as described below for adjudging the validity/consideration of his offer (for works costing more than Rs.10 lacs). Cut off date for the same will be date of opening of tender. 4.2. The Tenderer must submit their credentials in support of establishing the Minimum Eligibility Criteria as described under item No. 4.1 above otherwise his/their offer shall be considered invalid. Certificates from private individuals from whom such works are executed/should not be accepted.” 11. According to the above condition, tenderer must have physically completed one similar single work for a minimum value of 35 per cent of the advertised tender value of work and should have received the contract amount to the extent of at least 150 per cent of advertised tender value of work. The petitioners’ case is that two of the partners namely Subhash Chand Vaish and Ramji Vaish are also partners of M/s Subhash Stone Product having 20 per cent share each in the said partnership firm. It is submitted that the M/s Subhash Stone Product had completed similar work for an amount of Rs. The petitioners’ case is that two of the partners namely Subhash Chand Vaish and Ramji Vaish are also partners of M/s Subhash Stone Product having 20 per cent share each in the said partnership firm. It is submitted that the M/s Subhash Stone Product had completed similar work for an amount of Rs. 3,75,14,635 in which the share of two partners being 40 per cent taking the experience of only Subhash Chand Vaish and Ramji Vaish the eligibility criteria is fulfilled. The issue which has emerged for consideration is as to whether evaluating the tender submitted by the petitioners the eligibility as per para 4.1 as quoted above has to be looked into of M/s Vijay Stone Product only or the experience gained by two of its partners as partners of another firm M/s Subhash Stone Product is also to be considered. 12. Shri Govind Saran in support of his submission stated that the work should have been completed by the tenderer firm alone and the experience of its partners in another firm are not relevant as mentioned in Condition No. 13 of Schedule, Rates and Quantities. Note 13 is quoted below : “Credentials in the name of firm applying for the work will only be considered”. 13. A plain reading of the aforesaid condition indicates that the credentials of the firm which has submitted a tender alone has to be looked into. However, to meet this contention Shri Navin Sinha, counsel for the petitioners contends that the partners which constitute the petitioners’ firm their experience gained as partners of M/s Subhash Stone Product which is a firm belonging in the same field is also relevant and cannot be ignored. He has placed reliance on the judgment of the Supreme Court in New Horizons (supra). The facts in the case of New Horizons (supra) are different and are to be looked into in detail for appreciating the submissions of the parties. In New Horizons (supra) an advertisement was issued by the Department of telecommunication by inviting tenders for compiling, printing and supply of telephone directories to the large telephone systems with the capacity of more than 50,000 lines. The tenderer should substantiate this with documentary proof. He should also furnish credentials in this field. New Horizons Ltd and another submitted their tenders. The tenderer should substantiate this with documentary proof. He should also furnish credentials in this field. New Horizons Ltd and another submitted their tenders. The offer of New Horizons Ltd and another was not considered because they did not submit any evidence to show that they have in their name undertaken compiling, printing and supply of telephone directories. Writ petition was filed by the New Horizons Ltd in the High Court. High Court dismissed the writ petition holding that the experience of Joint holders cannot be the experience of the Company. The High Court held that it was not a joint venture. New Horizons Ltd filed SLP in the Supreme Court which was allowed by the Supreme Court. Following was laid down in para 23 of the said judgment : “23. Even if it be assumed that the requirement regarding experience as set out in the advertisement dated 22-4-1993 inviting tenders is a condition about eligibility for consideration of the tender, though we find no basis for the same, the said requirement regarding experience cannot be construed to mean that the said experience should be of the tenderer in his name only. It is possible to visualise a situation where a person having past experience has entered into a partnership and the tender has been submitted in the name of the partnership firm which may not have any past experience in its own name. That does not mean that the earlier experience of one of the partners of the firm cannot be taken into consideration. Similarly, a company incorporated under the Companies Act having past experience may undergo reorganisation as a result of merger or amalgamation with another company which may have no such past experience and the tender is submitted in the name of the reorganised company. It could not be the purport of the requirement about experience that the experience of the company which has merged into the reorganised company cannot be taken into consideration because the tender has not been submitted in its name and has been submitted in the name of the reorganised company which does not have experience in its name. Conversely there may be a split in a company and persons looking after a particular field of the business of the company form a new company after leaving it. Conversely there may be a split in a company and persons looking after a particular field of the business of the company form a new company after leaving it. The new company, though having persons with experience in the field, has no experience in its name while the original company having experience in its name lacks persons with experience. The requirement regarding experience does not mean that the offer of the original company must be considered because it has experience in its name though it does not have experienced persons with it and ignore the offer of the new company because it does not have experience in its name though it has persons having experience in the field. While considering the requirement regarding experience it has to be borne in mind that the said requirement is contained in a document inviting offers for a commercial transaction. The terms and conditions of such a document have to be construed from the standpoint of a prudent businessman. When a businessman enters into a contract whereunder some work is to be performed he seeks to assure himself about the credentials of the person who is to be entrusted with the performance of the work. Such credentials are to be examined from a commercial point of view which means that if the contract is to be entered with a company he will look into the background of the company and the persons who are in control of the same and their capacity to execute the work. He would go not by the name of the company but by the persons behind the company.” 14. Relying on the said judgment, it has been submitted by Shri Navin Sinha, learned counsel for the petitioners that the experience of partners of the petitioners’ firm gained while working in another firm M/s Subhash Stone Ltd. cannot be ignored. In the case of New Horizons (supra), it is relevant to note that the New Horizons has claimed it to be a joint venture company. It is useful to quote the facts mentioned in para 6 of the judgment which is to the following effect : “6. In the case of New Horizons (supra), it is relevant to note that the New Horizons has claimed it to be a joint venture company. It is useful to quote the facts mentioned in para 6 of the judgment which is to the following effect : “6. ...It was stated that the offer of NHL was not considered because the appellants did not submit any evidence to show that they have in their name undertaken compiling, printing and supply of telephone directories for large telephone systems with the capacity of more than 50,000 lines. In this regard, it may be mentioned that in their tender offer NHL had mentioned that : (i) NHL is a joint venture company established by Thomson Press (India) Limited (TPI), Living Media (India) Limited (LMI), World Media Limited (WML) and Integrated Information Pvt. Ltd, (IIPL), a wholly-owned subsidiary of Singapore Telecom wherein 60% of shares are held by Mr Aroon Purie, TPI, LMI, WML and other companies in the same group and 40% of shares are held by IIPL; (ii) The joint venture has received approval of the Government of India and is currently in operation; (iii) NHL has been established as an information and database management company with expertise in database processing, publishing, sales/marketing and the dissemination of related information; and (iv) In addition to its projected strength, NHL has access to the benefit of the complete resources and strength of its parent/owning companies, each of which is a recognized market leader. An overview of each of the parent companies, namely, TPI, LMI, WML and IIPL was also given in the tender offer.” 15. One most important factor which distinguishes the case of New Horizons (supra) with the present case is that in the said case a joint venture company was also entitled to give a tender and in the said background the Supreme Court held that the experience of its constituents of joint venture cannot be ignored. Following was laid down in paragraphs 25 and 26 of the said judgment : “25. As noticed earlier, in its tender NHL had stated that it is a joint venture company established by TPI, LMI and WML and IIPL wherein TPI, LMI and WML and other companies in the same group as well as Mr Aroon Purie own 60% shares and IIPL owns 40% shares. As noticed earlier, in its tender NHL had stated that it is a joint venture company established by TPI, LMI and WML and IIPL wherein TPI, LMI and WML and other companies in the same group as well as Mr Aroon Purie own 60% shares and IIPL owns 40% shares. It was also stated that the joint venture has received approval of the Government of India and is currently in operation and that the promoter will increase their capital/contribution to commensurate with the project need and that the company has been established as an information and database management company with expertise in database processing, publishing, sales/marketing and the dissemination of related information. In the tender it is also stated that as a joint venture in the true sense of the phrase, the company will have access to expertise in database management, sales and publishing of its parent group companies. It would thus appear that the Indian group of companies (TPI, LMI and WML) and the Singapore-based company (IIPL) have pooled together their resources in the sense that TPI, LMI and WML have made available their equipment and Organisation at various places in the country while IIPL has made available its wide experience in the field as well as the expertise of its managerial staff. All the constituents of NHL have thus contributed to the resources of the Company (NHL). This shows that NHL is an association of companies jointly undertaking a commercial enterprise wherein they will all contribute assets and will share risks and have a community of interest. We are, therefore, of the view that NHL has been constituted as a joint venture by the group of Indian companies and IIPL, the Singapore-based company and it would not be correct to say that IIPL which has a substantial stake in the success of the venture, having 40% of shareholding, is a mere shareholder in NHL. 26.Once it is held that NHL is a joint venture, as claimed by it in the tender, the experience of its various constituents namely, TPI, LMI and WML as well as IIPL had to be taken into consideration if the Tender Evaluation Committee had adopted the approach of a prudent businessman.” 16. In the instant case, it has to be specifically noted that joint venture was expressly excluded from filling tender. In the instant case, it has to be specifically noted that joint venture was expressly excluded from filling tender. Clause 9 of the Tender Notice dated 9.7.2008 is to the following effect : “9. APPLICABILITY OF Jvs/CONSORTIUM/MOUs: Jvs/CONSORTIUM/MOUs shall not be considered.” 17. The tender notice thus specifically excluded Joint Ventures/ CONSORTIUM/MOUs from submitting tender. In that context, Note 13 which provided that “Credentials in the name of firm applying for the work will only be considered” becomes very relevant. The tender specifically contains a condition that credentials which are in the name of firm applying for the work are relevant. Thus, experience in the name of another firm has been expressly excluded. The conditions given in the tender notice have to be given its full play when Condition No. 13 specifically provided that “Credentials in the name of firm applying for the work will only be considered” which tender conditions have been duly acknowledged and signed by the petitioners they cannot be heard in saying that for the work experience the work performed by another firm M/s Subhash Stone Ltd. be looked into and considered cannot be accepted. In the case of New Horizon (supra) there was no such condition as in the present case is Condition No. 13, thus the case of New Horizon (supra) was on its own fact and in the background of that case where joint venture was permitted to participate in the tender the experience of all its constituents was considered. Thus, the case of joint venture is clearly distinguishable and does not help the petitioners in the present case. Shri Navin Sinha has also relied on the Railway Board’s letter dated 2.9.2008. Para 16.1 of the Note which is to the following effect is quoted below: “NOTE : Value of a completed work done by a Member in an earlier partnership firm or a JV firm shall be reckoned only to the extent of the concerned member’s share in that partnership firm/JV firm for the purpose of satisfying his compliance of the above mentioned technical eligibility criteria in the tender under consideration.” 18. The above Note which has been relied on by the petitioners counsel is in the context of Joint Venture Firm. The heading of the circular clearly mentions that “Guidelines for participation of Joint Venture Firms in Works Tenders”. The above Note which has been relied on by the petitioners counsel is in the context of Joint Venture Firm. The heading of the circular clearly mentions that “Guidelines for participation of Joint Venture Firms in Works Tenders”. The petitioners have already brought on record a Railway Board’s Circular dated 2.9.2008 which provides that guidelines are being issued for incorporating suitable clauses in works tenders of value more than Rs. 5 Crores. The Railway Board’s Circular dated 2.9.2008 is quoted below : “Board vide letter referred above had issued instructions to the Railways that adequate clauses may be incorporated in major tenders to facilitate participation of Joint Venture Firms in works tenders. Since different zonal Railways adopt different procedures/clauses in this regard. Board have been considering for some time to issue guidelines in the matter to bring in uniformity in the procedure. Accordingly, in consultation with Ministry of Law and Justice, guidelines are issued herewith (annexure enclosed) for incorporating suitable clauses in works tenders of value more than Rs. 5.0 crore (Rupees five crore) each to facilitate participation of JV Firms.” 19. Thus, the Note as quoted above is relevant for Joint Venture with regard to work tender of value of more than 5 Crores which is not applicable in the present case, where the value of the work is 4.23 crores only. The Railway Board’s Circular dated 2.9.2008 as quoted above read with the Guidelines indicates that in a Joint Venture value of a completed work done by the member in an earlier partnership firm shall be reckoned only to the concerned member share and not for partnership firm, Thus, the Railway Board’s Circular dated 2.9.2008 specifically contains a condition to be incorporated in the tender notice, whereas in the present case, no such condition has been incorporated, rather a condition to the contrary has been included i.e.”Credentials in the name of firm applying for the work will only be considered”. 20. In view of the foregoing discussions, we are of the view that the value of the work which was submitted by the petitioners of M/s Subhash Stone Product was not relevant for considering the technical and financial eligibility of the petitioners and no error has been committed by the Tender Committee in not treating the petitioners tender as valid. 20. In view of the foregoing discussions, we are of the view that the value of the work which was submitted by the petitioners of M/s Subhash Stone Product was not relevant for considering the technical and financial eligibility of the petitioners and no error has been committed by the Tender Committee in not treating the petitioners tender as valid. Petitioners did not fulfilled the eligibility as per the tender condition and thus was rightly not taken into consideration. We do not find any error in the decision of the North Central Railway in accepting the tender of the respondent No. 4. Petitioners are not entitled to any relief. 21. The writ petition lacks merit and is accordingly dismissed. ————