Judgment 1. IN these two writ petitions, the two petitioners have questioned the propriety and legality of certain terms and conditions of a tender notice dated February 23, 2012 issued by the Durgapur Projects Limited (hereafter D.P.L.) and have prayed for diverse relief. Although reliefs claimed by the two petitioners are at variance but since terms and conditions of a common invitation to tender are under challenge, I propose to dispose of these writ petitions by this common judgment and order. 2. D.P.L. intended to appoint an agent for handling coal for a period of three years. Sealed bids were, accordingly, invited from prospective bidders for liaisioning, supervision and materialisation of quantity and quality control of raw coal rakes (hereafter the subject job). The scope of work included quantity materialisation, quality control, loading supervision, shortage minimisation, assistance for coal sampling at loading point, monitoring and liaisoning with the railways for the movements of coal rakes of indigenous coal from the different collieries of Eastern Coalfields Limited, Mahanadi Coalfields Limited and Bharat Coking Coal Limited to the power station of D.P.L. The prospective bidders were required to submit the required documents in four sealed covers, with Covers-I and II containing documents relating to 'earnest money deposit' and 'qualifying requirements' respectively, Cover-III containing documents relating to 'techno-commercial bid' and Cover-IV containing 'price bid' documents. 3. QUALIFYING requirements were indicated against clause 2 under volume-III of the tender documents titled Techno Commercial Specifications. Clause 2 reads as under : 2. Qualifying Requirements:- i) The bidder should have experience in quantity materialization and quality control, supervision of loading, dispatches, monitoring of movement by railways from loading point till destination of raw coal. The bidder should submit the relevant documents and certificates including Work Order copies supported by successful execution certificate from the controlling Officers of the job in support of the experience. The bidder having no work experience of coal handling through Railways will not be considered. Bids by joint venture/consortium of companies will not be considered. ii) a) The bidder should have executed coal handling job for a minimum quantity of 2.5 (Two and half) Million Metric Tonnes of indigenous raw or washed coal at least for one year within the last five financial years within India by rail. Bids by joint venture/consortium of companies will not be considered. ii) a) The bidder should have executed coal handling job for a minimum quantity of 2.5 (Two and half) Million Metric Tonnes of indigenous raw or washed coal at least for one year within the last five financial years within India by rail. Alternatively the bidder should have executed coal handling job for a minimum quantity of 1.5 (One and half) Million Metric Tonnes of indigenous raw or washed coal at least for three years within the last five financial years within India by rail. The bidder's execution of coal handling job as aforesaid should be from coalfields of CIL subsidiaries on behalf of any Public Sector utility (i.e. Utilities which are State/Central Government Undertakings/Enterprises or which are fully owned by Central or State Government) as their handling agent. b) The bidder should have sufficient work strength/employee strength in the respective fields of work and the party should submit the exhaustive employee list along with their PF account details/documents for last three financial years. c) The bidder should have/should be willing to set up his own full-fledged office equipped with computers (including e-mail facilities), fax and telephone etc, at Kolkata/Durgapur and also communication facilities at Coal fields for day to day communication. d) The bidder should be financially sound and capable of executing high value contracts. As a proof of the financial capability, the bidder should produce a solvency certificate or a letter of commitment for an amount of Rs. 3 (Three) crores or more from a Nationalized Bank/Scheduled Bank/Foreign Bank in India (as per Annexure-VII) valid for minimum 1 (One) year. e) The bidder should submit the photocopies of Income Tax Returns for last three financial years. f) Experience as a sub contractor will not be considered. g) The Party should be capable to keep the validity of offer for at least 180 days from the date of opening of first part of the Tender. h) The party will have to give an undertaking that they have not initiated any legal proceedings against any Govt./Public Sector Undertaking/Public Sector Enterprise relating to handling of coal in West Bengal for a period of Three years (as per Annexure-VI). 4. SUB-clause (h) of clause 2(ii) extracted supra referred to Annexure-VI. Annexure-VI accompanying the tender documents reads as follows: FORMAT OF AFFIDAVIT TO BE SUBMITTED IN PART III OF BID ON RS. 4. SUB-clause (h) of clause 2(ii) extracted supra referred to Annexure-VI. Annexure-VI accompanying the tender documents reads as follows: FORMAT OF AFFIDAVIT TO BE SUBMITTED IN PART III OF BID ON RS. 20 NON JUDICIAL PAPER To The General Manager Durgapur Project Power Station Durgapur Projects Limited Durgapur-713202. Sub: Tender for Job contract for Liaisoning, supervision and materialization of quantity and quality control of raw coal rakes from ECL, MCL and BCCL collieries to DPL Tender No. ................................................................. Dear Sir, We (name of Bidder ...............................................) are an established and reputable Coal Handling Agent having office ................................ Name of Place) and hereby declare and confirm the following:- 1. That we (Name of Bidder) have not been Black listed/Banned by any of the Govt./semi Govt./PSU's or Govt. undertaking Organization for the job of the coal handling agent. 2. That we (Name of the bidder) have executed/completed the Letter of Intent or Order placed on us for coal handling awarded to us as per the stipulations of the contracts by government/semi government/PSU's or government under taking organization. 3. That we (Name of the bidder) have successfully fulfilled all our contractual obligations in all above referred organizations. If at any point of time our above declaration is found the be incorrect, DPL has full rights to terminate the contract and take any action as per the laws of Breach of full rights to terminate the contract and take any action as per the laws of Breach of Contract. Yours faithfully Signature (Authorized Signature).................................. Name of the Bidder:-............................................ Place ........................................................ Date ............................ 5. AKA Logistic Private Limited (hereafter AKA), the petitioner in W.P. 9166(W) of 2012, responded to the tender notice. The documents submitted by it, inter alia, contained an affidavit drawn up in accordance with Annexure-VI. 6. CURIOUSLY, the format of the affidavit to be drawn up in accordance with Annexure-VI did not require the prospective bidder to say on oath that it had not initiated any legal proceeding for a period of three years against any Government/Public Sector Undertaking/Public Sector Enterprise relating to handling of coal in West Bengal. 7. DURING the period of three years preceding issuance of tender notice for the subject work, AKA had instituted a writ petition before this Court against the West Bengal Power Development Corporation. Although the writ petition was admitted, the Court declined interim order. 7. DURING the period of three years preceding issuance of tender notice for the subject work, AKA had instituted a writ petition before this Court against the West Bengal Power Development Corporation. Although the writ petition was admitted, the Court declined interim order. A writ appeal was preferred by AKA, which was disposed of without interfering with the order under challenge. Since interim relief could not be obtained and the contract awarded in favour of the selected bidder was being worked out, AKA decided not to proceed with the writ petition. On its prayer, the writ petition stood dismissed as withdrawn. 8. SINCE the format of Annexure-VI in accordance with which affidavit was required to be drawn up did not require any undertaking to be given, as required by clause 2(ii)(h), representative of M/s. Naresh Kumar and Co. Pvt. Ltd. (hereafter Naresh Kumar), one of the prospective bidders, had raised the issue of addition of "initiation of legal proceedings" in the format of Annexure-VI in the pre-bid meeting held on March 20, 2012 at the conference room of D.P.L. at Durgapur. The clarification/confirmation given by D.P.L. on such point reads "as per Annexure-VI of NIT". This would appear from the affidavit in reply filed by M/s. Nair Coal Services Private Limited (hereafter Nair Coal). The clarifications/confirmations of D.P.L. were attached as an enclosure to a letter dated March 27, 2012 issued by it to Nair Coal. It was also informed to Nair Coal that submission of tender and opening of parts 1 and 2 stood extended up to 1400 hours of April 3, 2012 and 1530 hours of April 3, 2012 respectively. 9. COVERS-I and II submitted by the prospective bidders were duly opened on April 3, 2012. Even on that day, it was not noticed by the officials of D.P.L. that the format of affidavit as shown in Annexure-VI did not require the prospective bidders to give an undertaking in the manner required by clause 2(ii)(h). 10. NEARLY three weeks after opening of Covers- I and II, AKA was informed by letter dated April 26, 2012 that "undertaking in compliance with point no- (h) of QR as mentioned in the NIT has not been submitted along with Part- II of your offer" and, accordingly, request was made to submit the same at the earliest. 11. 10. NEARLY three weeks after opening of Covers- I and II, AKA was informed by letter dated April 26, 2012 that "undertaking in compliance with point no- (h) of QR as mentioned in the NIT has not been submitted along with Part- II of your offer" and, accordingly, request was made to submit the same at the earliest. 11. IMMEDIATELY on the following day, by another letter dated April 27, 2012, AKA was requested to submit the required undertaking within seven days from date. It was further informed that the letter dated April 26, 2012 stands superseded. 12. IT was only upon receipt of the aforesaid letter dated April 27, 2012 that AKA presented its writ petition before this Court on April 30, 2012 questioning the legality and propriety of the order dated April 27, 2012 and for a declaration that clause 2(ii)(h) of the qualifying requirements of the notice inviting tender for the subject work is ultra vires Articles 14, 19(1) (g) and 21 of the Constitution of India. 13. THE writ petition of AKA was moved on May 4, 2012. Since it was the last day for submission of undertaking in terms of clause 2(ii)(h), an order was made permitting AKA to submit an undertaking to the effect that no proceeding initiated by it before any court of law is pending as on that day and that proceeding which was initiated before this Court in the writ jurisdiction has since been withdrawn and if such undertaking were submitted, D.P.L. was directed to consider its offer on merits. It was made clear that in the event AKA were found successful, work order in its favour shall not be issued. However, D.P.L. would be free to issue work order if AKA were not successful. 14. IN compliance with the aforesaid order, AKA submitted an undertaking. In due course of time, Cover-III submitted by the prospective bidders was opened. It was at that stage that the other prospective bidders became aware of institution of W.P. 9166(W) of 2012 by AKA in this Court. 15. M/s. Indian Coal Agency (hereafter Indian Coal) and Karam Chand Thapar and Bros. (Coal Sales) Ltd. (hereafter Karam Chand) preferred separate writ appeals before this Court challenging the order dated May 4, 2012 together with applications for leave to appeal. 15. M/s. Indian Coal Agency (hereafter Indian Coal) and Karam Chand Thapar and Bros. (Coal Sales) Ltd. (hereafter Karam Chand) preferred separate writ appeals before this Court challenging the order dated May 4, 2012 together with applications for leave to appeal. The Court of Appeal disposed of the writ appeals on June 5, 2012 by directing impleadment of Indian Coal and Karam Chand as additional respondents in the writ petition of AKA and restraining D.P.L. from opening the price bids without obtaining the leave of the Writ Court. All points were left open to be urged in course of final hearing of W.P.9166(W) of 2012. 16. A day before the writ appeals were disposed by the Court of Appeal, Nair Coal presented W.P. 14410(W) of 2012, praying for quashing of the entire process of tender for the subject work primarily on the ground that the terms and conditions of the invitation to tender had been designed to favour AKA. It alleged that although the scope of work included 'shortage minimisation', the same was deliberately excluded in the 'work description' and also in the 'qualifying requirements' to accommodate AKA who lacks experience in relation to 'shortage minimisation'. 17. THE writ petitions have been heard on affidavits. Two points arise for decision on the writ petition of AKA, viz. (i) is clause 2(ii)(h) valid in the eye of law? And, (ii) if the answer to the above point is in the negative, whether AKA is entitled to any relief having regard to its participation in the process of tender (remaining present at the opening of Covers-I and II and approaching the Court only after the letter dated April 27, 2012 was issued? 18. ORDINARILY, courts of law are loath to entertain challenges to terms of an invitation to tender as they are in the realm of contract. However, in exceptional cases, if it appears to the court that the terms of an invitation to tender are tainted with malice to favour a particular bidder or is so grossly arbitrary that no person of ordinary prudence acting reasonably and in accordance with the relevant law would have reached or it is against public interest, and the challenge has been thrown at an appropriate stage, it is the duty of the court to interfere to set right the wrong. 19. 19. THERE can be no two opinions that power of the High Courts to judicially review legislative actions, and administrative and quasi judicial decisions of bodies comprehended within the meaning of Article 12 of the Constitution, is a basic feature of the Constitution. Ouster of the power of judicial review is not readily inferred. The bursting docket of the High Court bears ample testimony of the ordinary man's grievances against Article 12 authorities, although quite a few are found to be misconceived in the long run. Nevertheless, ubi jus ibi remedium is the basic principle of jurisprudence. The law wills that in every case where a man suffers a legal wrong, he must have a forum for seeking remedy in the form of justice. Insofar as the Constitutional Courts are concerned, it is their duty to preserve and protect the rights of the wronged and extend help to the extent permissible to enforce the rights, rather than rendering them otiose. Rightly so, access to justice has been recognised as a human right. 20. THE propriety and legality of clause 2(ii)(h) has to be judged bearing in mind the aforesaid principles. 21. CLAUSE 2(ii)(h) requires an undertaking from a prospective bidder that it has not initiated litigation. One who has initiated litigation cannot say to the contrary and, therefore, the required undertaking from it cannot be had. 22. IF a prospective bidder has in the past initiated frivolous proceedings one after the other which met dismissal and thereby resulted in unnecessary harassment for D.P.L., it is understandable if D.P.L. is not inclined to enter into a relationship with such a party that drags it to the court at the drop of a hat without possibility of success. Undertaking of the nature sought for, in such circumstances, could be justified. It would also be open to D.P.L. to merely seek information from the prospective bidders as to whether any legal proceedings have been initiated by them, without such initiation being considered decisive for participation in the process. 23. HERE, however, in view of clause 2(ii)(h) and the request contained in the letter dated April 27, 2012, mere initiation of proceedings by a prospective bidder before a court (without caring for its ultimate result) has to be considered as a decisive factor for declaring a prospective bidder, who has approached court, ineligible by imposing a threshold bar. 23. HERE, however, in view of clause 2(ii)(h) and the request contained in the letter dated April 27, 2012, mere initiation of proceedings by a prospective bidder before a court (without caring for its ultimate result) has to be considered as a decisive factor for declaring a prospective bidder, who has approached court, ineligible by imposing a threshold bar. A prospective bidder who might have initiated legal proceedings and is waiting for its outcome would stand debarred, no matter whether his contentions have merit. Since one cannot predict the outcome of the legal proceedings that have been initiated, the possibility of the prospective bidder who has approached the court succeeding in the litigation initiated by it cannot be ruled out. Even such a litigant, who may ultimately be found to have invoked the court's jurisdiction successfully, would be considered ineligible at the threshold and barred from entering the zone of consideration. From experience, it is noticed that non-grant of interim relief in certain cases, specially contractual matters, renders the proceedings infructuous and the aggrieved applicant either chooses not to waste time, energy and money and prays for withdrawal of the same. Such litigation cannot be categorised as vexatious and frivolous. It is also not rare where the Writ Court's interpretation of a statutory provision or a contractual term results in dismissal of the petition without any comment on the conduct of the petitioner. There might even be proceedings before a Court of Writ where, notwithstanding a finding that there has been procedural aberration, relief is declined on the ground that grant of relief in any form would affect public interest. These are some illustrative cases where a party who has taken recourse to legal remedies, by reason of clause 2(ii)(h), would lose the opportunity to participate in the tender. Preventing prospective bidders, who might have approached a court for preservation, protection and enforcement of their rights from being allowed to take further part in the tender process, is an affront to the judicial process by which the courts strive to secure justice to the wronged. In my considered view, a prospective bidder cannot be worse off for approaching the court of law and denied a level playing field. 24. MR. Chatterjee, learned senior advocate appearing for Indian Coal, did not contradict the submissions of Mr. In my considered view, a prospective bidder cannot be worse off for approaching the court of law and denied a level playing field. 24. MR. Chatterjee, learned senior advocate appearing for Indian Coal, did not contradict the submissions of Mr. Mukherjee, learned senior advocate for AKA that undertaking of the nature sought for vide clause 2(ii)(h) is unenforceable in law but hastened to submit that if the Court were to hold it unconstitutional, the process that has commenced ought to be aborted and D.P.L. directed to issue fresh tender notice to enable wider participation. 25. SUBMISSION of Mr. Panja, learned advocate for D.P.L., that having regard to the onerous duty D.P.L. has to discharge by generating electricity and supplying it to millions in the State and, therefore, would require selection of one who has no previous history of indulging in litigation is hardly a ground to close the door on such party's face, until and unless there is ample proof that it has indulged in fancy litigation resulting in possibility of affectation of D.P.L.'s interest adversely. In such a situation, the antecedents of the prospective bidder may be considered as a condition of eligibility, but mere initiation of litigation cannot be validly placed as a threshold bar. There can be no threshold consideration and rejection of a bid on the ground that the bidder had initiated proceedings in a court of law. The fundamental right of a party to move the Supreme Court (under Article 32) or constitutional right to invoke the writ jurisdiction of the High Court or the right guaranteed by the Code of Civil Procedure to institute civil proceedings, if exercised, cannot operate as a disqualification to participate in a tender process. It would indeed amount to a mockery of the justice delivery system if a party were to be penalised for approaching a court of law, which stands as the sentinel of justice to maintain the rule of law. 26. SINCE D.P.L. views and considers initiation of legal proceedings by a prospective bidder in accordance with law as a disqualifying factor for participation in the invitation to tender for the subject work, the same is grossly arbitrary and contrary to constitutional principles. Clause 2(ii)(h) is thus declared unconstitutional. 27. HAVING thus answered the first point, it would be my endeavour to ascertain whether AKA approached the Court of Writ at the appropriate stage or not. 28. Clause 2(ii)(h) is thus declared unconstitutional. 27. HAVING thus answered the first point, it would be my endeavour to ascertain whether AKA approached the Court of Writ at the appropriate stage or not. 28. IT has not been disputed before me that all but one bidder did not submit undertaking as required by clause 2(ii)(h). The reason is not far to seek. The undertaking was required to be given "as per Annexure-VI" but Annexure-VI, containing the format of affidavit, referred to some other points. AKA and the others, except one, read and understood the terms of the invitation to tender as one that does not require any undertaking of the nature specified in clause 2(ii)(h). Not approaching the Court immediately after noticing clause 2(ii)(h) is not considered fatal. 29. THE prospective bidders were entitled to raise queries in a pre-bid meeting to be organised by D.P.L. One of the bidders i.e. Naresh Kumar, in the pre- bid meeting held on March 20, 2012 pointed out the defect in the format of affidavit, yet, the clarification/confirmation that was issued by D.P.L. to the prospective bidders was to stick to Annexure-VI. There appears to be no plausible reason as to why the objection of Naresh Kumar was not heeded, and the prospective bidders were reminded to adhere to Annexure- VI. I quite agree with Mr. Mukherjee that in view thereof, clause 2(ii)(h) exhausted itself in Annexure-VI. Significantly, Cover-III required to be filed by a prospective bidder, inter alia, ought to have contained signed copy of the minutes of the pre-bid meeting. It would be reasonable for a person of ordinary prudence, in the given set of facts, to presume that the officers of D.P.L. were abreast of the illegality that clause 2(ii)(h) suffers from and hence did not insist on its compliance. Since there was no insistence from the side of D.P.L. to give undertaking in terms of clause 2(ii)(h) and the prospective bidders were not placed under any legal obligation to give such undertaking, AKA did not have reason to feel aggrieved. Question of approaching the Writ Court, even after the pre-bid meeting was held and filing of Covers-I and II, did not arise. The moment clause 2(ii)(h) was sought to be enforced throwing AKA out of the race, it was entitled to challenge such clause. Question of approaching the Writ Court, even after the pre-bid meeting was held and filing of Covers-I and II, did not arise. The moment clause 2(ii)(h) was sought to be enforced throwing AKA out of the race, it was entitled to challenge such clause. It is only too obvious that after the letters dated April 26 and 27, 2012 were issued, AKA felt affected by reason of enforcement of clause 2(ii)(h) and approached the Writ Court immediately thereafter. 30. MR. Deb, learned senior advocate representing Karam Chand, invited the attention of the Court to certain conditions in the tender notice whereby D.P.L. reserved unto itself the power to seek "additional documents in support of the documents already furnished in the bid as per requirement" and that all the bidders were required to submit "undertaking regarding acceptance of all the terms and conditions of the tender in letter head signed by the authorized signatory". According to Mr. Deb, in view of the first of the said two conditions, AKA ought to have been alive to the situation right from the day it picked up the tender documents that D.P.L. may call upon it to give the undertaking as specified in clause 2(ii)(h) and in such eventuality, it ran the risk of being considered ineligible to participate in the tender. That apart, having agreed to accept all the terms and conditions of the tender, it could not have resiled and lay challenge to clause 2(ii)(h). 31. THE contention raised by Mr. Deb does not appear to me to be sound enough to hold that AKA has not approached the Court at the appropriate stage. Even after the deliberations in the pre-bid meeting held on March 20, 2012, the requirement to give undertaking in terms of clause 2(ii)(h) did not surface. There was no certainty and one may not have perceived that even after submitting the copy of the minutes of the pre-bid meeting, duly signed, there could be insistence to comply with clause 2(ii)(h). If the undertaking had never been sought for, AKA may not have considered it necessary to voice its grievance. It was only at the stage when the required undertaking was asked to be submitted by D.P.L. in exercise of its power to seek additional documents that such requirement formed the immediate cause for AKA to approach Court. If the undertaking had never been sought for, AKA may not have considered it necessary to voice its grievance. It was only at the stage when the required undertaking was asked to be submitted by D.P.L. in exercise of its power to seek additional documents that such requirement formed the immediate cause for AKA to approach Court. That apart, acceptance of all terms and conditions of the tender by AKA can never be held to operate to its detriment for the simple reason that AKA agreed to and did submit an affidavit drawn in terms of Annexure-VI but it was not imperative for it at the stage Covers-I and II were filed to give an undertaking 'as per Annexure- VI' that it had not initiated previous litigation. On facts and in the circumstances, a prospective bidder must be held bound by such notified terms and conditions, which are unambiguous and not by those which are thought of subsequently and compliance insisted upon thereafter. 32. IMMEDIATELY before close of hearing, Mr. Mitra, learned senior advocate for Nair Coal, contended that undertaking as specified in clause 2(ii)(h) was required to be given 'as per' and not 'in terms of' Annexure-VI, meaning thereby that the contents of the affidavit were to conform to clause 2(ii)(h) but the format of affidavit would be the one shown in Annexure-VI. 33. THIS contention has also failed to impress me. According to Black's Law Dictionary, Sixth Edition, 'as per' is not capable of literal translation, but is commonly understood to mean 'in accordance with' or 'in accordance with the terms of'. An affidavit of undertaking was thus required in accordance with the terms of Annexure-VI. I have found myself unable to agree with Mr. Mitra that 'as per' and 'in terms of', as submitted by him, makes any difference. 34. THAT apart, if in fact an undertaking of the nature specified in clause 2(ii)(h) was required to be given by a prospective bidder by drawing up a separate affidavit in accordance with the format of affidavit shown in Annexure-VI, it defies reason as to why Nair Coal did not submit such undertaking initially and did so only on May 9, 2012 after the letter bearing no. DGM(P)/PP/86 dated April 27, 2012 was issued by D.P.L. The very fact that Nair Coal read the tender terms and conditions in the same manner as AKA did [separate undertaking of the nature specified in clause 2(ii)(h) is not required since not shown in Annexure-VI], it ought not to raise a finger and contend to the contrary. 35. I, therefore, hold that AKA approached the Court at an appropriate stage and relief cannot be declined to it on the ground urged by Mr. Panja, Mr. Deb and Mr. Mitra. 36. INSOFAR as the writ petition of Nair Coal is concerned, I have no hesitation to hold that the same is misconceived. If indeed the terms and conditions of the tender were designed to favour AKA, it would not have approached the Court first. That apart, Nair Coal was free to raise objection at the pre- bid meeting if it considered aggrieved by alleged deliberate exclusion of 'shortage minimisation' in the 'work description' and also in the 'qualifying requirements'. However, no objection was raised. Even in its representation addressed to the Hon'ble Minister of Power, Govt. of West Bengal dated May 16, 2012, favouritism was not alleged. Nair Coal alleged that since AKA had not submitted undertaking in terms of clause 2(ii)(h), its bid ought to have been rejected straightaway. The writ petition filed by Nair Coal is a product of after-thought. If AKA had not filed its writ petition, dismissal of the writ petition of Nair Coal would obviously follow on the above ground. However, in view of the order I propose to pass on the writ petition of AKA, I refrain from dismissing it. 37. THE tender notice dated February 23, 2012 stands quashed. All proceedings in pursuance thereof shall be of no effect. D.P.L. shall be at liberty to invite fresh tenders. The notice inviting tender shall not contain the offending clause [clause 2(ii)(h)]. However, the prospective bidders may be required to submit undertaking in the format of affidavit drawn in terms of Annexure-VI. D.P.L. may consider the desirability of including 'shortage minimisation' in the 'work description' and also in the 'qualifying requirements', since it was included in the scope of work. 38. However, the prospective bidders may be required to submit undertaking in the format of affidavit drawn in terms of Annexure-VI. D.P.L. may consider the desirability of including 'shortage minimisation' in the 'work description' and also in the 'qualifying requirements', since it was included in the scope of work. 38. IF D.P.L. finds itself in dire straits in view of quashing of the tender notice, the Chairman and Managing Director of D.P.L., in his discretion and for reasons to be recorded in writing, shall be entitled to appoint an agent for handling coal on ad-hoc basis for the subject work. Such arrangement shall not exceed four months from date. Within the said period, issuance of fresh tender notice and selection of handling agent must be completed without fail. The ad-hoc appointee shall not be entitled to any equity, if it responds to the tender notice to be issued in terms of this order. 39. WITH the aforesaid directions, the writ petitions stand disposed of. There shall be no order for costs. 40. PHOTOCOPY of this judgment and order, duly countersigned by the Assistant Court Officer, shall be retained with the records of W.P.11410(W) of 2012. Urgent Photostat certified copy of this judgment and order, if applied for, shall be furnished to the applicant at an early date.