IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Special Appeal No. 194 of 2008 Union of India and others. ……..Appellants. Versus M/s Ravindra Kumar Gupta & Company and another. …Respondents. Mr. Pradeep Joshi, Advocate for the appellants. Mr. Navneet Kaushik, Advocate for the respondents. Coram: Hon’ble J.S. Khehar, C.J. Hon’ble Sudhanshu Dhulia, J. J.S. Khehar, C.J, (Oral) 1. It is not a matter of dispute that the appellants did not allow enlistment to the respondents on account of the alleged unsatisfactory performance in execution of work under CA No. CEB/DDN/04 of 1993-94 Provision Kendriya Vidhyalaya, Type-A at Raiwala. When the issue of denying enlistment was assailed by the respondents before this Court by filing Writ Petition (MS) No. 159 of 2007, this Court arrived at the conclusion that there was no unsatisfactory performance in the execution of work under CA No. CEB/DDN/04 of 1993-94 Provision Kendriya Vidyalaya Type-A at Raiwala. Accordingly, order dated 14.2.2006 refusing the renewal of the enlistment to the respondents for the cyclic period 2006-2010 was set aside by this Court vide its order dated 28.7.2008 while disposing of Writ Petition (M/S) No. 1591 of 2007. 2. Through the instant Special Appeal, the appellants have assailed the order passed by this Court on 28.7.2008, whereby Writ Petition (M/S) No. 1591 of 2007 was allowed. 3. The solitary contention of the learned counsel for the appellants is that the appellants have to take into consideration the past work rendered by the respondents 2 including their unsatisfactory performance, while arriving at a conclusion, whether or not enlistment is to be renewed. It is, therefore, the solitary contention of the learned counsel for the appellants that the determination rendered by the learned Single Judge directing the appellants to reconsider the claim of the respondents by ignoring unsatisfactory performance in the execution of work in CA No. CEB/DDN/04 of 1993-94 Provision Kendriya Vidhyalaya Type-A at Raiwala was not in consonance with law. 4. During the course of hearing, we enquired from the learned counsel for the appellants, whether the performance of the respondents under any work other than the work in CA No. CEB/DDN/04 of 1993-94 Provision Kendriya Vidhyalaya Type –A at Raiwala was unsatisfactory. In response to the instant query, learned counsel for the appellants acknowledged that the only unsatisfactory performance at the hands of the respondents was in respect of the work in question and in respect of no other work. 5. It is on the basis of the aforesaid acknowledged factual position that we will venture to determine the merit of the claim raised by the learned counsel for the appellant. It needs to be noticed that the learned Single Judge recorded the following factual position in the impugned judgment dated 28.7.2008:- “It is thus obvious that the renewal of enlistment of the petitioner’s firm for the cyclic period 2006-2010 has been refused on the ground of poor performance on the work for provision of Kendriya Vidyalaya at Raiwala under CA No. CEB/DDN/04 of 93-94, while the third respondent himself had revoked the suspension order after expiry of one year period and on the ground that no further disciplinary case was pending against the petitioners’ firm vide Annexure-8. It is also pertinent to mention here that from a bare perusal of the 3 order dated 30-4-2008 of the District Judge Dehradun in Arbitration Case No. 12 of 2004, Union of India Vs. M/s Ravindra Kumar Gupta, which was passed after the case had been remanded in appeal by the High Court on 22-6-2007, it comes out that the Arbitrator has held that the design was faulty and the petitioner was also awarded compensation for the delay in carrying out the work.” It is not a matter of dispute that the aforesaid observations were in respect of a work, which the appellants consider had been unsatisfactorily performed/executed at the hands of the respondents. After the execution of the work under reference, the respondents raised Arbitration Proceedings. During the course of the aforesaid Arbitration proceedings, it came to be determined that the fault lay with the appellants, inasmuch as, the design furnished by them to the respondents for execution was defective. Accordingly, the respondents were awarded compensation by the Arbitrator. It is, therefore, clear that the alleged unsatisfactory performance at the hands of the respondents was actually based on the defective design furnished by the appellants. In sum and substance, therefore, the respondents could not be held to have rendered any unsatisfactory performance in the execution of work under C.A. No. CEB/DDN/04 of 1993- 94 Provision Kendriya Vidhyalaya Type-A at Raiwala. Having arrived at the aforesaid conclusion, we are satisfied that the learned Single Judge was fully justified in directing the appellants to reconsider the claim of the respondents for renewal of enlistment without taking into consideration the alleged unsatisfactory performance in execution of work under C.A. No. CEB/DDN/04 of 1993- 94 Provision Kendriya Vidhyalaya Type-A. 4 6. For the reasons recorded hereinabove, we find no merit in the instant Special Appeal and the same is accordingly hereby dismissed. Rathour (Sudhanshu Dhulia, J.) (J.S. Khehar, C.J.) 23.4.2010