JUDGMENT 1. Heard counsel for the parties. 2. The petitioner has challenged the Memo No. 2974 (S) E dated 25th March 2013 issued by the Engineer-in-Chief (Respondent No. 3) as also the decision of the Departmental Tender Committee dated 23rd March 2013 (Annexure-7 series) by which a decision has been taken to allot the work of “widening and strengthening of Chotki Kharagdiha to Mirzaganj Road Via Dudwatand-Gonditand-Lataki- Chatro for the year 2012-13 in favour of the respondent no. 6. 3. The specific ground for challenge to such allotment of work to the respondent no. 6 raised on behalf of the petitioner is based upon the contention that as per the tender document issued on 17th January 2013, the respondent no. 6 did not have the experience of five years as prescribed in Clause-4.3(C). It is further submitted that the respondent no. 6 is a private limited company which has taken over one J.P. Nirman Projects, a Partnership Firm, under an agreement on 01st August 2012 and as such, the experience of the company is not for a period of five years. It is further submitted that it cannot also be allowed to take into account the experience of the Partnership Firm for participating in the bid. As such, it did not qualify in the bid in question. It is further submitted that the completion certificate (Annexure-5) dated 06th February 2009 issued to M/s J.P. Nirman Projects by ERCON INTERNATIONAL LIMITED showing date of completion of the specified work as on 25th October 2008, cannot be counted as five years till the date of present tender i.e. 17th January 2013. By reckoning experience from 25th October 2008, the respondent no. 6 could not claim experience of five years till the date of tender i.e. 17th January 2013. Further argument has also been advanced that the private respondent has not come out with specific documents showing that the terms and conditions of take over of the Partnership Firm by the Agreement (Annexure-3) have been completed and necessary share certificates have been issued to the Partnership Firm. Further argument has also been advanced that the private respondent has not come out with specific documents showing that the terms and conditions of take over of the Partnership Firm by the Agreement (Annexure-3) have been completed and necessary share certificates have been issued to the Partnership Firm. Learned counsel for the petitioner has also relied upon a judgment of the Hon'ble Supreme in the case of Ramana Dayaram Shetty v. The International Airport Authority of India and others reported in AIR 1979 Supreme Court 1628 in support of his contention that in matters of award of work under a tender, the administrative authorities have to conform to the terms and conditions laid down under the Advertisement. Those who do not fulfill the criteria prescribed, have to be excluded from the process of tender. In this background, the impugned orders are challenged by the petitioner. 4. State and the respondent no. 6 both have filed their respective counter affidavit. The respondent State has justified issuance of the allotment order on the basis that the petitioner is entitled to claim experience of the Partnership Firm i.e. J.P. Nirman Projects. Therefore, it has been taken into account by the State while accepting the bid of the respondent no. 6 which was found to be L-1 in the said tender. The State respondent and the private respondent have relied upon the judgment of the Hon'ble Supreme Court in the case of New Horizons Limited and Another v. Union of India and others reported in (1995) 1 SCC 478 paragraph-23 thereof to submit that the experience of the Partnership Firm taken over by the respondent no. 6 company can be taken into account for reckoning its experience for the purposes of eligibility to participate in the said tender. 5. Counsel for the respondent no. 6 has also submitted that the other terms and conditions of the tender such as Clause-4.5 which are mandatory conditions, had already been fulfilled by the respondent no. 6. He further submits that the completion certificate (Annexure-5) is also evidence of the experience of J.P. Nirman Projects, a Partnership Firm taken over by the respondent no. 6 as the same is for a period of more than five years since the projects had started in the year 2007 itself. The period for execution of the work under the said project cannot be discounted for taking into account the experience. 6 as the same is for a period of more than five years since the projects had started in the year 2007 itself. The period for execution of the work under the said project cannot be discounted for taking into account the experience. Other documents have also been annexed to the counter affidavit to show its experience for more than five years. However, the petitioner have strongly contested that these documents were never produced before the Tender Committee to take the decision. 6. I have learned counsel for the parties and gone through the relevant materials on record. The respondent no. 6 has participated in the tender issued for “widening and strengthening of Chotki Kharagdiha to Mirzaganj Road Via Dudwatand-Gonditand- Lataki-Chatro” on 17th January 2013. Much reliance have been placed on Clause 4.3(C) of the tender documents which reads as under: “4.3* If the Employer has not undertaken prequalification of potential bidders, all bidders shall include the following information and documents with their bids in Section 2: (C) Experience in works of a similar nature and size for each of the last five years, and details of works underway or contractually committed; and clients who may be contacted for further information on these contracts;” 7. Perusal of the Annexure-3 shows that the respondent no. 6 had entered into an agreement of taking over Partnership Firm of J.P. Nirman Projects vide Agreement dated 01st August 2012. 8. J.P. Nirman Projects, a Partnership Firm, was managed by two individuals namely Jagdish Jhunjhunwala and Raj Kishore Yadav. Annexure-5 enclosed is a completion certificate issued by IRCON INTERNATIONAL LIMITED showing the completion date of the work alloted to J.P. Nirman Projects as 25th October 2008 for the execution of widening & strengthening of Road / Repair of Minor Bridges/ Slab Culvert between Km 0.000 to 42.00 in section-1 of UPSRP-01 of Katra- Bilhaur Road Project. 9. The completion certificate admittedly has been issued on 6th February 2009, however, the date of issuance of completion certificate cannot be taken to reckon the experience of a person like the Partnership Firm J.P. Nirman Projects. The period of execution of the said project cannot be discounted for the purposes of calculating the experience of the Firm or the Company concerned. The period of execution of the said project cannot be discounted for the purposes of calculating the experience of the Firm or the Company concerned. Certificate is issued only upon completion of the work, therefore, the date on which certificate of experience is issued is not the date from which the period of experience is to be reckoned. Similar analogy can be taken from other experience certificate in case of other bodies in respect of services other professionals like lawyers, doctors, etc. If certificate is issued that the person has been in practice for ten years, it does not mean that the experience is to be reckoned from the date of issuance of certificate but the experience is to be reckoned from the date one has started practice. In such circumstances, reliance upon Annexure-5 by the private respondent to reckon its experience for more than five years, as per the terms and conditions of Clause 4.3(C), cannot be faulted. In such circumstances, reliance placed by the respondent no. 6 in the judgment of the Hon'ble Supreme Court in the case of New Horizons Limited and Another (Supra) is worth to be quoted. “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. 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. 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. While keeping in view the past experience he would also take note of the present state of affairs and the equipment and resources at the disposal of the company. He would go not by the name of the company but by the persons behind the company. While keeping in view the past experience he would also take note of the present state of affairs and the equipment and resources at the disposal of the company. The same has to be the approach of the authorities while considering a tender received in response to the advertisement issued on 22-4-1993. This would require that first the terms of the offer must be examined and if they are found satisfactory the next step would be to consider the credentials of the tenderer and his ability to perform the work to be entrusted. For judging the credentials past experience will have to be considered along with the present state of equipment and resources available with the tenderer. Past experience may not be of much help if the machinery and equipment is outdated. Conversely lack of experience may be made good by improved technology and better equipment. The advertisement dated 22-4-1993 when read with the notice for inviting tenders dated 26-4-1993 does not preclude adoption of this course of action. If the Tender Evaluation Committee had adopted this approach and had examined the tender of NHL in this perspective it would have found that NHL, being a joint venture, has access to the benefit of the resources and strength of its parent/owning companies as well as to the experience in database management, sales and publishing of its parent group companies because after reorganisation of the Company in 1992 60% of the share capital of NHL is owned by Indian group of companies namely, TPI, LMI, WML, etc. and Mr Aroon Purie and 40% of the share capital is owned by IIPL a wholly-owned subsidiary of Singapore Telecom which was established in 1967 and is having long experience in publishing the Singapore telephone directory with yellow pages and other directories. Moreover in the tender it was specifically stated that IIPL will be providing its unique integrated directory management system along with the expertise of its managers and that the managers will be actively involved in the project both out of Singapore and resident in India.” 10. Moreover in the tender it was specifically stated that IIPL will be providing its unique integrated directory management system along with the expertise of its managers and that the managers will be actively involved in the project both out of Singapore and resident in India.” 10. The ratio of the aforesaid judgment rendered by the Hon'ble Supreme Court, as borne out from the opinion quoted herein above, therefore leaves no doubt that such requirement regarding experience could not only be construed to mean that such experience could be of the tenderer in his name only. If the respondent no. 6 has entered into an arrangement with a Partnership Firm by taking it over, and the tender has been submitted in the name of the company now, the experience gathered by the Partnership Firm cannot be discounted to disentitle the respondent no. 6 company from participating in the tender under Clause-4.3(C) of the tender document. 11. In the aforesaid facts and circumstances of the case, it appears that the action of the respondent State in alloting the work to the respondent no. 6 cannot be said to suffer from violation of any terms and conditions of the tender documents. The respondent State cannot be held to be acting in derogation of the principle laid down by the Hon'ble Supreme Court in the case of Ramana Dayaram Shetty (Supra), as relied upon by the petitioner. Therefore, the judgment does not come to the aid of the petitioner. The writ petition is without any merit and is accordingly dismissed. The interim order dated 01st May 2013 also stands vacated.