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2017 DIGILAW 368 (ALL)

Shyama Shyam Service Centre Thru. Radhey Shyam Kathuria v. State of U. P. Thru. Prin. Secy. Transport Civil Sectt.

2017-01-30

DEVENDRA KUMAR UPADHYAYA, DILIP B.BHOSALE

body2017
JUDGMENT Heard Mr. Shishir Jain, learned counsel for the petitioners and Mr. Ratnesh Chandra, learned counsel for the respondents 2 and 3. The petitioners, in the instant writ petition under Article 226 of the Constitution of India, seek the following reliefs: i) issue a writ of certiorari or a writ, order or direction in the nature of certiorari quashing the impugned tender notice number 62 MT/2017-66 MT-2006 dated 04.01.2017, contained as Annexure Number 1 to this writ petition; ii) issue a writ of mandamus or a writ, order or direction in the nature of mandamus commanding the opposite party numbers 2 and 3 not to proceed in furtherance of the tender notice number 62 MT/2017-66 MT-2006 dated 04.01.2017 and not to open the technical and financial bids of the tenderers and not to finalise the tender; iii) issue a writ of mandamus or a writ, order or direction in the nature of mandamus commanding the opposite party numbers 2 and 3 to issue fresh tender notice for awarding contract for periodical maintenance, overhauling of assemblies body work on Tata/Leyland CNG buses with labour, lubricants and spare parts cost at Noida Region prescribing the same technical pre-qualification condition as prescribed in the tender notice dated 09.08.2016 and tender notice dated 14.10.2016, contained in Annexure Numbers 5 and 6 respectively to the writ petition and also prescribing suitable condition in regard to financial turnover and solvency status of the tenderer; “ Counsel for the petitioners, at the outset, invited our attention to the condition prescribed in the earlier tender notice which reads thus: “The service provider should have minimum of 3 years experience of repair and maintenance of 300 or more STU?s or Govt. Undertaking CNG buses.” On the basis of the condition prescribed in the impugned tender notice, he submitted that there was no rationale in relaxing the condition that was stipulated earlier and the respondents, by relaxing the condition, have not ensured the capacity of the persons who are going to participate in the tender process. Then, in support of his contention, he placed reliance on the judgment of the Supreme Court in Michigan Rubber (India) Limited. vs. State of Karnataka and Ors, (2012) 8 SCC 216 . Then, in support of his contention, he placed reliance on the judgment of the Supreme Court in Michigan Rubber (India) Limited. vs. State of Karnataka and Ors, (2012) 8 SCC 216 . We have perused the condition prescribed in the earlier tender notice as also in the tender notice, impugned in the present writ petition and on plain reading thereof, we do not find anything irrationale as contended by counsel for the petitioners. Even in the impugned tender notice, the respondents, it seems, have taken all care to see that the parties should have capacity to undertake the work of maintenance/overhauling of assemblies and body work at their premises and that those who have minimum one year experience of repair and maintenance of CNG Buses of any STU’s or Govt. Undertaking on the date of publication of tender, are allowed to participate in the tender process. Merely because the period of experience is reduced from three years to one year and non mentioning of the number of Buses would not mean that the decision of the respondents is irrationale. In any case, the petitioners are not ousted from participating in the tender process by change of the condition for inviting tenders. We also record that the petitioners are existing contractors, and by virtue of an interim order, until the new contractor is appointed, they are entitled to continue to maintain plying of the buses of the respondents. Till today, they have not even participated in the tender process in response to the impugned tender notice. Keeping that in view and considering the reasons stated above, we find no merit in the petition. The petition is, accordingly, dismissed.