HON’BLE SRI JUSTICE L.NARASIMHA REDDY WRIT PETITION No.27345 of 2009 ORDER: South Central Railway, the second respondent herein, issued a tender notice, dated 07.05.2009, inviting the tenders for supply and stacking of 50 mm gauge hard and durable machine crushed stone ballast to Railway’s specification at Railway Depot at Hasanparthi Road station in Secunderabad Division and loading the same into Railway hoppers/Traffic ballast wagons by mechanical means. The quantity stipulated was 1,60,000 cubic meters and approximate value thereof is Rs.7,68,00,000/-. The petitioner, seventh respondent herein and certain others submitted their tenders. The seventh respondent emerged as L-1 tenderer and the petitioner as L-2 tenderer. The petitioner raises an objection for acceptance of the tender of the seventh respondent on the ground that the certificate produced by the latter about the analysis of the product is improper and contrary to the stipulation. It is stated that Clause 1.8 of the tender notice mandates that the sample of the ballast must be tested by a laboratory attached to Civil Engineering Department of any Government recognised Engineering College and that such report must not be older than three months before the date of opening of the tender, but, in utter deviation of this, a certificate issued by a Professor, Geology Department of Osmania University filed by the seventh respondent, was treated as valid. The petitioner submits that testing of ballast by a specific agency is an essential condition and the respondents were not at all justified in deviating from the same. The railways, respondents 1 to 5, on the one hand and the seventh respondent on the other hand filed separate counter-affidavits. In the counter-affidavit filed by the seventh respondent it is stated that the analysis of the ballast is required to be made with reference to certain parameters and that the same has been complied with by him. In the counter-affidavit is filed on behalf of respondents 1 to 5, it is stated that the report submitted by the seventh respondent accords with the specification of the tender. It is stated that the petitioner filed a report from an Institute of Technology and Science and not from any Civil Engineering Department. It is also mentioned that the facilities of testing the product are available with the Geology Department of Osmania University and that the certificate issued by the Professor was found to be genuine. It is further stated that the difference between the rates quoted by the petitioner on the one hand and the seventh respondent on the other hand is to a tune of Rs.1,38,24,000/-. The seventh respondent submits that he has complied with the requirements and the petitioner cannot raise any objection for it. Sri J.Prabhakar, learned counsel for the petitioner, submits that there is a definite object underlying Clause 1.8 and that it is an essential condition. He submits that respondents 1 to 5 are not supposed to ignore or relax the essential conditions and the mere fact that the rates quoted by the seventh respondent are economical cannot be the basis to accept his tender. He places reliance upon the judgments rendered by the Supreme Court in W.B.State Electricity Board V. Patel Engineering Co.[1], Kanhaiya Lal Agrawal V. Union of India and others[2] and Sangeeta Singh V. Union of India and others[3]. Sri T.S.Venkatramana, learned Standing Counsel for respondents 1 to 5, and Sri Vemulapalli Prasad Rao, learned counsel for the seventh respondent, on the other hand, submit that Clause 1.8 is incorporated only to ensure that product of specified quality is supplied, and that, apart from the certification made by the laboratory of an university, the railways has its own mechanism to test it. They submit that the petitioner, who is not the lowest tenderer and whose rates are far higher, cannot raise the technical objection. The only point relied on behalf of the petitioner is about compliance with Clause No.1.8 of the tender notice. It is not in dispute that there is a difference between the rates quoted by the petitioner and the seventh respondent. Clause No.1.8 of the tender notice reads as under: - “Tenderers are required to submit the test report in respect of sample of ballast proposed to be supplied, from a laboratory attached to Civil Engineering Department of any Government recognised Engineering College. Such test report should not be older than 3 months before the date of opening of the tender. Name of the Quarry, location and distance by road from quarry to ballast depot are to be indicated. The offer of tenderer who have not submitted the test report or if results do not satisfy the requirement as per specifications, (Para 2.2 of Specification for track ballast enclosed as annexure-A) will not be considered.” On his part, the seventh respondent filed a certificate issued by one Dr.A.P.Siva Kumar, Professor and Head of Department of Geology, Osmania University, dated 16.06.2009. After furnishing the particulars on various parameters such as Aggregate Abrasion, Impaction, Flakiness Index and water absorption, he opined “the homogeneity of the grain size and mineralogical assemblages of the unweathered Granite samples are found to be within the tolerable limits of the specifications and hence, the Rock aggregate is recommended for its utility as Railway Track Ballast and hence this Certification.” Respondents 1 to 5 cross-verified as to whether the certificate was issued by the same person and on finding that the certificate is genuine, they took the same into account. So far as the petitioner is concerned, he submitted a certificate issued by Kakatiya Institute of Technology and Science, Warangal, issued on 17.06.2009. Though respondents 1 to 5 stated that the certificate submitted by the petitioner was not issued by Civil Engineering Department of any Government recognised Engineering College, that question may not be of immediate relevance. The reason is that the petitioner raised objection for the certificate submitted by the seventh respondent. The object underlying Clause 1.8 of the tender notice is that before a tenderer offers his rates, he must enclose the technical details of the product, certified by a special agency. It is not as if that the details furnished in such certificates are final. Stone blast is one of the most important materials purchased by the railways from time to time. The quantities are phenomenal. Respondents 1 to 5 have got its own mechanism to verify the quality of the product. The Hon’ble Supreme Court in the decision relied upon by the learned counsel for the petitioner held that essential conditions stipulated in Government contracts cannot be relaxed. Clause 1.8 of the tender notice can certainly be treated as essential. What becomes necessary is the purport thereof. The area of controversy is as to whether the department of Geology of Osmania University can be equated to the Civil Engineering department of an Engineering College. If one goes by grammatical interpretation, it is only the certificate issued by the Civil Engineering Department of an Engineering College that can be taken into account. However, a person having a basic idea about natural science knows that the department of Geology is better qualified in analysing the structure, strength and other features of stone ballast when compared to the Civil Engineering Department of an Engineering College. It is not even alleged that the department of Geology does not have the laboratory to analyse the various features of the ballast. Therefore, the contention advanced on behalf of the petitioner cannot be accepted. Further, what becomes important and material is the ultimate satisfaction of the agency that has quoted the tender. It has to be guided by several factors such as quality of the material, the rates quoted by different tenderers. Once respondents 1 to 5 are satisfied about the genuinity, reliability and relevancy of the certificate submitted by the seventh respondent, the petitioner cannot be permitted to urge that the tender of the seventh respondent must be rejected on such a hyper technical ground. Hence, the writ petition is dismissed. There shall be no order as to costs. _____________________________ JUSTICE L.NARASIMHA REDDY 29th December 2009 dr [1] (2001) 2 SCC 451 [2] AIR 2002 SC 2766 [3] AIR 2005 SC 4459