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2012 DIGILAW 21 (CAL)

J. Krishna Kumar v. Fahim Trading Company

2012-01-09

SHUKLA KABIR SINHA, TAPAN KUMAR DUTT

body2012
Judgment : Tapan Kumar Dutt, J. This Court has heard the learned advocates for the respective parties in the aforesaid three appeals. All the aforesaid three appeals arise out of one and the same judgment dated 25th November, 2011, passed by a learned Single Judge of this Court in W.P.No. 1232 of 2011 and all the aforesaid three appeals have been taken up for hearing together. It has already been noted by the learned Single Judge in the judgment under appeal itself that the subject controversy relates to a tender process in respect of a catering contract on board. It will further appear that one M. Mohd. Saleh was a listed contractor under the Administration to cater to various inter-islands boats/ships. The said Mohd. Saleh was doing such catering business in the name of his sole proprietorship firm i.e. M/s Mohd. Saleh. At one point of time, the authority awarded the catering contract in favour of the said Mohd. Saleh in respect of the vessel M.V. Chowra. During the subsistence of such contract, the said Mohd. Saleh wrote a letter dated 3rd August, 2010 to the authority concerned, wherein he stated that due to his domestic/personal/old age and having diabetic problem, he was unable to take care of his business properly and he could not visit/sail, monitor the day-today affairs of the ship due to which he had to incorporate partners in his business to run the business in a smooth way. The said Mohd. Saleh in the said letter requested the authority to consider the prayer and permit him to change the proprietorship firm and the name of such firm. It appears that the authority concerned by a letter dated 26.08.2010, informed the said Mohd. Saleh that the Directorate has no objection on the request made by him, subject to the condition that all contractual obligations of the said Mohd. Saleh’s firm in terms of the contract concerned should be fulfilled by the succeeding company/firm. It appears that the said Mohd. Saleh was allowed to convert the said sole proprietorship firm into a partnership firm and such partnership firm was named as M/s Fahim Trading Company. Saleh’s firm in terms of the contract concerned should be fulfilled by the succeeding company/firm. It appears that the said Mohd. Saleh was allowed to convert the said sole proprietorship firm into a partnership firm and such partnership firm was named as M/s Fahim Trading Company. It appears, subsequently the authority concerned issued a tender notice dated 2nd April, 2011, whereby sealed tenders in two bids system were invited from reputed firms/owners having two years experience in the field of catering for running catering canteen on board the Mainland Island vessels viz. M.V. Swaraj Dweep, M.V. Nancowry, M.V. Nicobar, M.V. Akbar and M.V. Harshavardhana. It was further notified that the period of contract will be for one year from the date of acceptance of tender. In response to such tender notice, the appellants in FMA 013 of 2011 and MAT 046 of 2011 and also the writ petitioner/respondent participated in such tender process and submitted their respective technical and financial bids. It appears that the appellants in FMA 013 of 2011 and MAT 046 of 2011 were declared successful and they were awarded their respective contracts in respect of their respective vessels, but the writ petitioner i.e. said M/s Fahim Trading Company was found to be ineligible and not qualified enough to be awarded the catering contract. The writ petitioner was disqualified on the technical bid itself and its financial bid remains unopened. Challenging such tender process, the writ petitioner filed the aforesaid writ petition being W.P.(AN) No. 1232 of 2011. It appears that by order dated 12th September, 2011, a learned Single Judge of this Court was pleased to observe that, there was no scope to pass any interim order at that stage, as the work order had been issued on 6th September, 2011, and the writ petition was filed on 8th September, 2011. However, the said learned Single Judge was pleased to observe that the work order issued will abide by the result of the writ petition. However, the said learned Single Judge was pleased to observe that the work order issued will abide by the result of the writ petition. The writ petition ultimately came up for hearing and a learned Single Judge of this Court by the aforesaid judgment dated 25th November, 2011 has been pleased to dispose of the writ petition by holding inter-alia, that the selection of the successful tenderers in respect of the tender, where the writ petitioner was disqualified in the technical bid, be set aside and the authority concerned has been directed to consider the financial bid of the writ petitioner along with other eligible tenderers on the basis of their tenders already submitted. His Lordship has been further pleased to hold that, upon consideration, in case the writ petitioner succeeds to get any of the contracts then in that event the writ petitioner should be allowed to perform the same for the balance period and it would be entitled to sue the Administration for compensation for the period in respect of which the writ petitioner would not be in a position to perform. His Lordship was further pleased to observe that, in case, the writ petitioner does not succeed in the financial bid, the existing contractors would continue and so long the tender process was not considered afresh in terms of the direction given by His Lordship, the contractors who have been performing would continue to do so by way of an interim measure. Challenging the aforesaid judgment of the learned Single Judge, M/s Ansar and Company, the respondent no.9 in the writ petition, has filed an appeal being FMA 013 of 2011. It may be noted that the said respondent no.9 has been awarded the contract for running the canteen on board M.V. Swaraj Dweep. The respondent no.8 in the writ petition i.e. Shri J. Krishna Kumar has filed MAT 046 of 2011, challenging the said judgment of the learned Single Judge. It may be noted that the said respondent no.8 has been awarded the contract for running the canteen on board M.V. Nicobar. MAT 049 of 2011 has been filed by the Administration concerned challenging the aforesaid judgment of the learned Single Judge. It may be noted that the said respondent no.8 has been awarded the contract for running the canteen on board M.V. Nicobar. MAT 049 of 2011 has been filed by the Administration concerned challenging the aforesaid judgment of the learned Single Judge. It appears from the judgment under appeal that the learned Single Judge was pleased to rely much upon the case reported at 1995(1) SCC 478 (New Horizons Ltd. and Another –vs- Union of India and Others). Even though the learned Single Judge was pleased to observe in His Lordship’s judgment that the said Mohd. Saleh was admittedly having experience to compete for the tender, it appears that there is a dispute between the parties with regard to the question as to whether or not the said Mohd. Saleh had sufficient experience in running a catering business i.e. running the canteen on board/ship which is plying between Mainland and the Islands. The vessel M.V. Chowra in respect of which the contract was awarded in favour of Mohd. Saleh was a vessel, which was running in between the Islands, and the contract which was awarded in favour of Mohd. Saleh in respect of such vessel was not in respect of any catering service for a vessel which was plying between these Islands and the Mainland. The learned Single Judge was pleased to observe that once the writ petitioner was allowed to continue as a contractor, the authority concerned was not entitled to refuse the writ petitioner such contract when it submitted tender for the future years. The learned Single Judge was pleased to observe that the authority did not make any distinction as to whether the said Mohd. Saleh had the requisite experience for mainland ship. It appears that it was argued before the learned Single Judge on behalf of the present appellant that since the said Mohd. Saleh would not be able to be personally present on board to run the catering business such catering contract should not be awarded in favour of Mohd. Saleh. The learned Single Judge was pleased to observe that the respondent concerned in the writ petition was unable to show any clause in the terms and conditions to the effect that a successful tenderer must be personally present on board while performing the contract. His Lordship was pleased to come to a conclusion that the said Mohd. Saleh. The learned Single Judge was pleased to observe that the respondent concerned in the writ petition was unable to show any clause in the terms and conditions to the effect that a successful tenderer must be personally present on board while performing the contract. His Lordship was pleased to come to a conclusion that the said Mohd. Saleh was having requisite experience and he was entitled to compete for the next tender and he was also allowed by the authority to convert his proprietorship firm into a partnership firm and bring in new partners and thus the writ petitioner was not a stranger to the Administration and it was created with the knowledge and consent of the Administration. His Lordship was further pleased to observe that the writ petitioner performed the rest part of the contract in respect of M.V.Chowra and hence His Lordship did not find any reason as to why the writ petitioner should be denied to participate in the financial bid, if it was otherwise eligible to do the same and the ratio decided in the said M/s New Horizons Ltd’s case would squarely apply in the instant case. His Lordship was further pleased to hold that the authority concerned committed illegality in not allowing M/s Fahim Trading Company (writ petitioner) to participate in the financial bid and the process of selection, by exclusion of the writ petitioner, was improper and illegal. The learned advocate appearing on behalf of the respondent no.9 in the writ petition submitted that the case reported at 1995(1) SCC 478 is distinguishable as the facts and circumstances involved in the said reports were quite different from the facts and circumstances of the present case. He submitted that the said Mohd. Saleh expressed his inability by writing the said letter dated 3rd August, 2010, as already indicated above. He has submitted that the writ petitioner M/s Fahim Trading Company has three partners namely, M. Mohd. Saleh, Mr. Adil Arif and Mr. Areez Azeem and there is nothing on record to show that the said Mr. Adil Arif and Mr. Areez Azeem have any experience with regard to any catering business at all. He has submitted that in view of the admitted position that the said Mohd. Saleh, Mr. Adil Arif and Mr. Areez Azeem and there is nothing on record to show that the said Mr. Adil Arif and Mr. Areez Azeem have any experience with regard to any catering business at all. He has submitted that in view of the admitted position that the said Mohd. Saleh is unable to take care of his business and is also unable to even monitor the day-to-day affairs of the ship, the question of awarding any catering contract in favour of the writ petitioner does not arise, particularly, in view of the fact that other two partners of the writ petitioner firm do not possess any experience whatsoever with regard to any catering business -- at least, there is nothing on record to prove such experience. The said learned advocate referred to the decision in the said New Horizons Ltd’s case (Supra) and submitted that the said reports cannot be of any assistance to the writ petitioner in the present case. It appears from the said reports that the subject matter of controversy in the said reports was in respect of a tender process connected with printing and publishing of a telephone directory as the contract for printing and publishing the telephone directory is normally awarded by inviting tenders and selecting the best offer from amongst the tenders, which are so received. In the said reports, the printing and publishing of the telephone directory for Hyderabad was involved. Five persons including M/s New Horizons Ltd and M/s M&N Publications Ltd (which was respondent no.4 before the Hon’ble Court) submitted the tenders and the offers were considered by the Tender Evaluation Committee. The offer of said M/s M&N Publications Ltd was accepted but the offer of M/s New Horizons Ltd was rejected. Five persons including M/s New Horizons Ltd and M/s M&N Publications Ltd (which was respondent no.4 before the Hon’ble Court) submitted the tenders and the offers were considered by the Tender Evaluation Committee. The offer of said M/s M&N Publications Ltd was accepted but the offer of M/s New Horizons Ltd was rejected. The M/Section New Horizons Ltd had filed a writ petition for quashing of the award of contract in favour of the said M/s M&N Publications Ltd for printing, binding and supply of telephone directory of Hyderabad and also for issuance of writ in the nature of mandamus for accepting the tender offer of the said M/s New Horizons Ltd. It appears that the respondent authorities in their affidavit had disclosed the reasons for non8 consideration of the offer of M/s New Horizons Ltd which was not considered because the New Horizons Ltd did not submit any evidence to show that they have undertaken compiling, printing and supply of telephone directories for large telephone systems with the capacity of more than 50,000 lines. It appears that the said M/s New Horizons Ltd had mentioned in their tender offer that the said M/s New Horizons Ltd 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 share are held by Mr. Aroon Purie, TPI, LMI, WML and other companies in the same group and 40% of shares are held by IIPL and that such joint venture was approved by the Government of India and has been in operation. It further appears that it was mentioned in the said tender offer that the said M/s New Horizons Ltd was established as an information and database management company with expertise in database processing, publishing, sales/marketing and the dissemination of related information and the said New Horizons Ltd has access to the benefit of the complete resources and strength of its parent/owning companies, each of which is a recognized market leader. In paragraph 25 of the said reports, the Hon’ble Court considered the status of the said M/s New Horizons Ltd and found that the said M/s New Horizons Ltd has 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 own 40% shares. The Hon’ble Court was pleased to observe 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 organization 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. The Hon’ble Court was pleased to note that all the constituents of M/s New Horizons Ltd have thus contributed to the resources of the M/s New Horizons Ltd and this shows that the M/s New Horizons Ltd is an association of companies jointly undertaking commercial enterprises wherein they will all contribute assets and will share risks and have a community of interest. The Hon’ble Court in paragraph 26 of the said reports was pleased to hold that once it is held that M/s New Horizons Ltd is a joint venture, 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. In such factual background, the Hon’ble court in paragraph 23 of the said reports was pleased to observe inter-alia that the requirement regarding experience cannot be construed to mean that the said experience should be of the tenderer in his name only and it is possible to visualize the 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. The Hon’ble Court was pleased to observe that this does not mean that the earlier experience of one of the partners of the firm cannot be taken into consideration. The Hon’ble Court was pleased to observe that this does not mean that the earlier experience of one of the partners of the firm cannot be taken into consideration. The Hon’ble Court was pleased to further observe that, similarly, a company incorporated under the Companies Act having past experience may undergo reorganization 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 reorganized company and in such circumstances, it could not be the purport of the requirement about the experience that the experience of the company which has merged into the reorganized 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 reorganized company, which does not have experience in its name. It, thus, appears that the facts and circumstances involved in the said reports were different from the facts and circumstances of the present case. In the said reports, the constituents of M/s New Horizons Ltd appeared to have the necessary expertise in the field concerned. In the present case apart from Mohd. Saleh, there is nothing on record to show that the other two partners of the writ petitioner have any sufficient experience with regard to catering business particularly on board/ship. Mohd. Saleh has expressed his difficulties in his letter dated 3rd August, 2010, wherein, he has clearly stated that he cannot even monitor the day-to-day affairs of the ship. Thus, it appears that the facts and circumstances of the present case are distinguishable from the facts and circumstances involved in the said reports. Learned advocate, Mr. Ajit Prasad also relied upon the decision reported at (2006) 11 SCC 548 , in support of his submission that since public interest is involved in the catering service on board/ship plying between these Islands and the Mainland and the authority concerned has already taken decision purely on such public interest, the writ court should ordinarily exercise judicial restraint. The learned advocate appearing on behalf of the respondent no.8 in the writ petition/appellant referred to the aforesaid letter dated 3rd August, 2010, written by Mohd. Saleh, and stressed on the fact that the said Mohd. The learned advocate appearing on behalf of the respondent no.8 in the writ petition/appellant referred to the aforesaid letter dated 3rd August, 2010, written by Mohd. Saleh, and stressed on the fact that the said Mohd. Saleh is not in a position even to monitor the day today affairs of the ship and as such the question of awarding the contract in favour of the writ petitioner does not arise. The said learned advocate submitted that the said Mohd. Saleh was awarded contract to do the catering job in respect of a vessel (M.V.Chowra), which was plying only in between the Islands and the said Mohd. Saleh had no experience at all to deal with the service of catering on board/ship which plies between the Islands and the Mainland and the authority concerned considered such fact regarding the said Mohd. Saleh’s inability to undertake the job of catering on a ship. The said learned advocate submitted that the learned Single Judge did not fully appreciate the submissions made on behalf of the Administration and the stand taken by the Administration in the writ proceeding was erroneously recorded that “Infact, Mr. Mandal appearing for the Administration did not contend so” in the judgment under appeal. The said learned advocate referred to paragraph 5 of the affidavit-in-opposition, which was filed on behalf of the Administration, wherein, the Administration stated that Mohd. Saleh was doing catering business on board inter-island vessel and as per record, Mohd. Saleh has never undertaken any canteen contract in Mainland-Island vessel. Thus, the experience of Mohd. Saleh was also challenged by the Administration in so far as Mainland-Islands vessel is concerned. In reply to such statement in the affidavit-in-opposition, the writ petitioner in paragraph 5 of its affidavit-in-reply, simply made a bare denial without bringing on record its experience, if any, on any Mainland-Islands vessel. The said learned advocate for the respondent no.8/appellant submitted, by referring to paragraph 13 of the writ petition that the writ petitioner itself admitted that the entire process of converting the sole proprietorship firm into a partnership firm with the consent of Administration was adopted in order to continue and complete the contract in respect of the said vessel, M.V.Chowra. The said learned advocate for the respondent no.8/appellant submitted, by referring to paragraph 13 of the writ petition that the writ petitioner itself admitted that the entire process of converting the sole proprietorship firm into a partnership firm with the consent of Administration was adopted in order to continue and complete the contract in respect of the said vessel, M.V.Chowra. The said learned advocate submitted that some of the bidders including the appellant in FMA 013 of 2011 and MAT 046 of 2011 had raised objection with regard to the alleged experience of the writ petitioner, as it has been stated in paragraph 20 of the writ petition. The said learned advocate referred to the proceeding of the Tender Committee held on 11.08.2011 and submitted that the Administration had taken into consideration the relevant factors and came to the conclusion that the writ petitioner is not eligible. The said learned advocate referred to a letter dated 16.08.2011, written by Mohd. Saleh as a partner of the writ petitioner, to the Chairman of the Tender Committee wherefrom it appears that the said Mohd. Saleh was having a contract of running canteen in the Inter-island vessel M.V.Chowra at the relevant point of time. The said learned advocate submitted that it is curious to note as would appear from paragraph 20 of the writ petition that Mohd. Saleh came to know about the internal proceedings of the authority concerned. The said learned advocate submitted that even if one relies upon M/s New Horizons Ltd’s case (supra) then in that event, the entire tender process has to be cancelled and a fresh tender notice has to be published but it cannot be done in the way it has been directed in the judgment under appeal. The said learned advocate referred to paragraph 9 of the decision reported at 2003(2) SCC 349 , wherein it appears that the Hon’ble Court was pleased to observe that “Once a person is qualified, experienced and efficient, it is difficult to understand how he could be discriminated against only for the reason that he has chosen to act alone in the professional career and has not been able to form a partnership firm. The efficiency, as pointed out by the High Court, springs from the personal experience, proficiency and personal capacities. The efficiency, as pointed out by the High Court, springs from the personal experience, proficiency and personal capacities. It is, therefore, not possible to link these characteristics and professional acumen to a person or persons in a firm alone.” The learned advocate cited another decision reported at 1994(6) SCC 651 and referred to paragraph 70 of the said reports as quoted below:- “70. It cannot be denied that the principles of judicial review would apply to the exercise of contractual powers by Government bodies in order to prevent arbitrariness or favoritism. However, it must be clearly stated that there are inherent limitations in exercise of that power of judicial review. Government is the guardian of the finances of the State. It is expected to protect the financial interest of the State. The right to refuse the lowest or any other tender is always available to the government. But, the principles laid down in Article 14 of the Constitution have to be kept in view while accepting or refusing a tender. There can be no question of infringement of Article 14 if the Government tries to get the best person or the best quotation. The right to choose cannot be considered to be an arbitrary power. Of course, if the said power is exercised for any collateral purpose the exercise of that power will be struck down.” The learned advocate appearing for the appellant in MAT 049 of 2011 also referred to the said letter dated 03.08.2010 written by the said Mohd. Saleh and submitted that the said Mohd. Saleh has expressed inability to even monitor day today affairs of the ship and taking every relevant factor into consideration, Administration found that the writ petitioner has failed in its technical bid and, therefore, the question of opening the writ petitioner’s financial bid did not arise. The learned advocate referred to the award letters in favour of the respondent nos. 8 and 9 and submitted that the contract is for the same period in respect of the said respondents. The said learned advocate submitted that since the writ petitioner has failed in its technical bid, the question of awarding any contract in favour of the writ petitioner does not arise. 8 and 9 and submitted that the contract is for the same period in respect of the said respondents. The said learned advocate submitted that since the writ petitioner has failed in its technical bid, the question of awarding any contract in favour of the writ petitioner does not arise. The learned advocate appearing on behalf of the writ petitioner/respondent in MAT 049of 2011 and FMA 013 of 2011 submitted that all the technical bids were opened and the financial bid of the appellant were also opened but the writ petitioner’s financial bid was not opened. The said learned advocate submitted that the learned Single Judge has been pleased to find that there is no clause in the terms and conditions to the effect that the successful tenderer must be personally present on board while performing the contract. He referred to the tender notice dated 2nd April, 2011 and submitted that there is no such clause in the said tender notice that the tenderer is required to have any experience on a Mainland/Island vessel. According to the said learned advocate, the tender notice provides that it is only necessary that the tenderer should have a minimum two years experience as catering contractor or owner/proprietor/manager of registered hotel, canteen, restaurant or in the field of catering service. He has further referred to the agreement dated 28th October, 2011 between the Administration and the respondent no.9 and drew the attention of this Court to page 355 of the paper book, wherein a provision has been made for nomination by the contractor and the said learned advocate submitted that such provision indicates that in the event of death of the contractor, his nominee would be expected to discharge all the obligations and liabilities of the contractor under the contract even though such nominee may not have the requisite experience. The said learned advocate further submitted that the appellant cannot be said to be aggrieved person and they are estopped from challenging the order passed by the learned Single Judge. He also submitted that the interim order dated 12.09.2011 also indicates that the contract which has been awarded in favour of the respondent nos. 8 and 9 in the writ petition will abide by the result of the writ petition. He also submitted that the interim order dated 12.09.2011 also indicates that the contract which has been awarded in favour of the respondent nos. 8 and 9 in the writ petition will abide by the result of the writ petition. The said learned advocate referred to the award letter dated 06.09.2011 and referred to the last line of the said letter, wherein it has been stated that “the award of the above tender however, is subjected to any Rule/decision passed by the competent Court of law.” The question whether there is any clause in the tender notice to the effect that the personal presence of the tenderer would be required or not for the purpose of running the canteen on board the vessel concerned is immaterial in the present case. There is no dispute that Mohd. Saleh has experience of running a canteen on board a ship/vessel plying between Islands but the problem in the present case is that the said Mohd. Saleh has expressed his inability to take care of his business properly and cannot even monitor the day today affairs of the ship for which he had to bring in partners for his business. There is nothing on record to show that such partners have any experience at all in canteen business. The assistance of Mohd. Saleh cannot be counted as he has clearly stated that he cannot monitor the day-to-day affairs of the ship. Thus, the fact remains that the writ petitioner, without the assistance of Mohd. Saleh, has no experience at all in running a canteen on board/ship. It may be that the personal presence of a tenderer on board/ship may not be necessary but his expertise and his monitoring the activities in the running of the canteen on board/ship would be essential. Thus, even if the argument of the learned advocate for the writ petitioner/respondent in the said appeal that a tenderer need not have experience in running a canteen in a vessel is accepted for the sake of argument, then also it does not help the writ petitioner as it appears from the facts of the instant case that in the absence of any assistance from Mohd. Saleh, even by way of monitoring, the writ petitioner is without any experience at all. Thus, the argument made by said learned advocate on the eligibility clause mentioned in the tender notice cannot stand. Saleh, even by way of monitoring, the writ petitioner is without any experience at all. Thus, the argument made by said learned advocate on the eligibility clause mentioned in the tender notice cannot stand. The submission made by the said learned advocate in respect of the said nomination clause is without any substance as it appears that the said nomination clause is mainly for the purpose of indicating the person who shall receive any dues in case any contingency arises. It may be argued that discharging of all remaining obligations and liabilities under the contract by the nominee can be treated to be a condition for receiving the dues by the nominee in case any contingency arises but by no stretch of imagination, it can be argued that such nomination clause indicates that the tenderer need not have any qualification and/or experience at all. The argument made on the point of estoppel by the said learned advocate is also without any substance. Merely because the aforesaid sentence has been written in the award letter, as noted above, it does not mean that the contractor is estopped from filing an appeal against a judgment which might have gone against him in a writ proceeding. The right of appeal is a statutory right and the question of estoppel in the present case does not arise at all as the respondent nos 8 and 9 have contested the writ petition and have challenged the judgment under appeal. The said learned advocate cited a decision reported at 1999-AIR(SC)-0-393 and referred to paragraph 15 of the said reports, wherein it has been observed that where the decision-making process has been structured and the tender conditions set out the requirements, the Court is entitled to examine whether these requirements have been considered. There cannot be any dispute with regard to such principle of law but the said reports cannot be of any assistance to the writ petitioner in the present case. There cannot be any dispute with regard to such principle of law but the said reports cannot be of any assistance to the writ petitioner in the present case. The said learned advocate referred to another decision reported at (1979)0 AIR (SC) 1628 and referred to paragraph 35 of the said reports and submitted that the appellants are not entitled to make any prayer in the writ petition filed by the writ petitioner and that the writ petitioner has fully satisfied the criteria required for being awarded with the contract concerned and the writ petitioner has come to Court without any delay and the writ petitioner stands a chance to get the contract if the financial bid of the writ petitioner is considered as directed in the judgment under appeal instead of causing a fresh tender. In the present case, the question of respondent nos. 8 and 9 making any prayer in the writ petitioner’s writ petition does not arise at all. The learned advocate appearing on behalf of the writ petitioner/respondent in MAT 046 of 2011 submitted that the Administration has changed its stand in the present appeal and it is not permissible for the Administration to change its stand. According to the said learned advocate, the Administration took the stand that the writ petitioner does not have the requisite experience in its firm name in course of the writ proceeding before the learned Single Judge but before this appellate court, the Administration is relying upon the fact that Mohd. Saleh has expressed his inability to run the canteen business. It appears from the proceeding of the tender committee, as already noted above, that the Administration considered the fact that the said Mohd.Saleh is not in a position, financially and physically, to handle the contract. In paragraph 5 of the affidavit-in-opposition of the respondent authorities to the writ petition it was stated, as already noted above, that Mohd. Saleh has never undertaken any canteen contract in Mainland-Island vessel. It will further appear from the paragraph 4 of the affidavit-in- opposition of the respondent authorities to the writ petition that the respondent authorities took into consideration the fact that Mohd. Saleh by a letter dated 03.08.2010 intimated that due to his domestic/personal/old age, he will not be able to take care of his business. In any event, there cannot be any dispute, in view of the letter written by Mohd. Saleh by a letter dated 03.08.2010 intimated that due to his domestic/personal/old age, he will not be able to take care of his business. In any event, there cannot be any dispute, in view of the letter written by Mohd. Saleh himself, that he will not be able to monitor day today activities of the canteen on board/ship. Therefore, the argument with regard to the change of stand by the Administration is not tenable. The said learned advocate submitted that the respondent no.8 in the writ petition nowhere stated that Mohd. Saleh was incapable to perform the contract on physical and/or financial ground. Such statement by the said respondent no.8 is not required in view of the fact that Mohd. Saleh himself has admitted his inability as already discussed above. The said learned advocate further submitted, by referring to the said letter dated 03.08.2010 written by Mohd. Saleh, that such letter does not indicate that Mohd. Saleh intends to discontinue his business. As it has already been noted above, that since Mohd. Saleh expressed his inability in even monitoring the day-to-day activities of the business no prudent man can come to the conclusion that he will be able to run the business in a proper manner. The said learned advocate referred to the copy of partnership deed starting at page 57 of the paper book and also the addendum starting at page 74 of the paper book and submitted that the said documents would show that the partnership was formed not only for the purpose of completing the contract regarding the vessel M.V.Chowra. It is not necessary to go into the said question in view of the fact that the appeals can be disposed of on a more pertinent point as to whether the said Mohd.Saleh is competent to render any assistance in the work of canteen on board the ship which would be expected to ply between the Islands and the Mainland. The submission made by the said learned advocate that there is no necessity to go into the factual matrix of the M/s New Horizons Ltd’s case is also unacceptable. The submission made by the said learned advocate that since the Administration had permitted the said Mohd. Saleh to convert the sole proprietorship firm into a partnership firm, the Administration cannot disqualify the said partnership firm, is also unacceptable in view of the fact that Mohd. The submission made by the said learned advocate that since the Administration had permitted the said Mohd. Saleh to convert the sole proprietorship firm into a partnership firm, the Administration cannot disqualify the said partnership firm, is also unacceptable in view of the fact that Mohd. Saleh being the constituent of such partnership would be unable to even monitor the day-to-day activities of the canteen. The argument made by the learned advocate for the writ petitioner/respondent in MAT 049 of 2011 and FMA 013 of 2011 that the writ petitioner stands a chance to get the contract and the financial bid of the writ petitioner should be considered as directed in the judgment under appeal is not tenable. In view of the discussions made above, this Court finds that the writ petitioner does not have the necessary qualification for being awarded the contract in question. This Court is of the view that the learned Single Judge erred in applying the case of M/s New Horizons Ltd (supra) to the facts and circumstances of the present case in view of the discussions already made above. It further appears that the learned Single Judge has erroneously proceeded on the basis that Mohd. Saleh was admittedly having experience to compete for the tender. It appears from record that Mohd. Saleh’s alleged experience was objected to and was under challenge by the respondent/appellants in two of the present three appeals. The learned Single Judge was pleased to proceed on the basis that once the writ petitioner was allowed to continue as a contractor, the authority was not entitled to refuse the contract in favour of the writ petitioner but it appears that the learned Single Judge did not take into consideration the fact that Mohd. Saleh has expressed his inability to even monitor the day-to-day affairs of the ship which necessarily means the working of the canteen of the ship in the context of the present dispute. Thus, even if it is assumed for the sake of argument that Mohd. Saleh had the requisite experience, the said Mohd. Saleh has expressed his inability to utilize such experience in practical terms. The learned Single Judge was pleased to observe that the respondents in the writ petition were unable to show any clause in the terms and conditions to the effect that the successful tenderer must be personally present on board while performing the contract. Saleh has expressed his inability to utilize such experience in practical terms. The learned Single Judge was pleased to observe that the respondents in the writ petition were unable to show any clause in the terms and conditions to the effect that the successful tenderer must be personally present on board while performing the contract. In the present case, even if Mohd.Saleh’s personal presence on board/ship is not required under the terms and conditions, matter cannot improve for the writ petitioner as Mohd. Saleh has already expressed his inability to even monitor the catering business. This Court of the view that the Administration had every reason to disqualify the writ petitioner from being awarded with the contract in question and the authority concerned did not commit any illegality in not allowing the writ petitioner to participate in the financial bid. It is also not proper to consider the financial bid of the writ petitioner along with other eligible tenderers on the basis of the tenders already submitted as the financial bids of respondent nos. 8 and 9 of the writ petition have already been opened and the same is known to the writ petitioner. In view of the discussions made above, all the three aforesaid appeals are disposed of by setting aside the judgment under appeal. The writ petition stands dismissed. There will be, however, no order as to costs. Urgent certified Xerox copy of this judgment, if applied for by the parties, shall be given to the parties as expeditiously as possible on compliance of all necessary formalities. (Tapan Kumar Dutt, J.) I agree (Shukla Kabir Sinha, J.) (Later) 09.01.2012 After the aforesaid judgment is delivered, the learned advocates for the appellants submit that CAN No. 210 of 2011, being an application for stay, has not been disposed of as yet. In view of the judgment delivered, as aforesaid, the said application being CAN No. 210 of 2011 also stands disposed of.