IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THURSDAY, THE TWENTY FIFTH DAY OF SEPTEMBER TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE B.SESHASAYANA REDDY WRIT PETITION NO : 18622 of 2008 Between: Cdr. C.V. Rajeswara Rao ( Retd., ), DGR Regn. No. 1307, Door No. 9-80, Maruti Nagar, Ramanayyapeta, Kakinada - 533 005. ..... PETITIONER AND 1 The Union of India, rep. by its Secretary, Ministry of Road, Transport & Highways, Central Secretairat Buildings, New Delhi. 2 National Highway Authority of India, rep. by its Project Director (Ministry of Shipping ) Road, Transoprt & Highways) PIU, (GQ), NHAI Enclave, Km2/8, NG5, Hanumathawaka, VISAKHAPATNAM - 530 040. 3 Directorate General of Resettlement, Ministry of Defence, West Block - 4, R.K.Puram, New Delhi9 - 110066. 4 Col:, Annam Rama Rao ( Retd.,), DGR Regn. No.TP-6046, H.No. 33-82, Plot No.114, Officers Colony, Rama Krishna Puram, Secunderabad - 500 056. 5 Wg.Cdr.Alan Shaiza ( Retd.,), DGR Regn.No. 8849, 304, Skylark Sapphire Nest, Jagadish Nagar, BANGALORE - 560 075. 6 Maj. P.P.Rao ( Retd.,), DGR Regn.No.TP-6047, Flat No. 104, Venkata Saui Avenue, Suryanagar Colony, Old Alwar, SECUNDERABAD - 500 010. 7 Maj. R.Khanna ( Retd.,), DGR Regn.No..8968, 531, Vikas Kunj, Vikas Puri, NEW DELHI - 110 018. 8 Cap. Ravi Kant ( Retd.,), DGR Regn.No. TP-6019, Plot No. 21, H.No. 33-71/3/2, S.V.Officers Colony, R.K.Puram SECUNDERABAD - 500 056. 9 Lt.Col. Raja Sekhar ( Retd.,), DGR Regn.No. 1584, 88/A, Sri Devi Kalyan Estates, J.J.Nagar, SECUNDERABAD - 500 087 10 Lt.Col.A.S.Bist (Retd.,), DGR Regn.No. 8934, 110, Gyan Shakti Apartments, Plot No. 7, Sector - 6, Dwarka, New Delhi - 110075. 11 Lt.Col. G.Chandra Sekhar ( Retd.,), DGR REgn.No. 8691, #37, Om Sai Ganapathi, Govt. School Road, Freedom Fighter Colony Extn., Near Mount School, Laggere, BANGALORE - 560 058. 12 Lt. Col. Bhupinder Singh ( Retd., ), DGR Regn. No. 1632, Dr. No. 303, First Block, Muzadady Building, Opp. Maha Nagar Bank, Mehandipatnam. HYDERABAD - 500 008. 13 Col. P.N.Shinghal ( Retd.,), DGR Regn. No. 8868, Plot No. 8, Tirumala Enclave, Trimulgherry, SECUNDERABAD - 500 015. 14 Cdr. Afzal Khan (Retd.,) DGR Regn. No.TP-6028, Flat No.A-201, Defence Officers Flats, Opposite VUDA park, Visakhapatnam-530017. 15 Lt. Col. Kapil Dutt (Retd.,) DGR Regn. No.7764, 104 Bhagya Sai Apartment, Near IBP Centuren Club, Visakhapatnam. 16 Lt. Col. D.N. Rao (Retd.,) DGR Regn. No.7814, H.No.5-7-113/43, Swar Nandhira Housing Project, Phase-I, J.J. Nagar, Secunderabad-500 087. 17 Wg. Cdr. Sanjeev Saxena (Retd.,) DGR Regn. No.8931 B-132 (GF), Swasthya Vihar, Vikas Marg, New Delhi - 110018 18 Lt. Col. Anath Waran (Retd.,), DGR Regn. No.TP-6020 9-5-1/A/47, One More Nagar, Ibrahimbagh, Hyderabad- 500 031. 19 Maj. Puppala Venkata Rao (Retd.,) DGR Regn. No.1837 D.No.50-94-15, Santipuram, Akkayyapalem, Visakhapatnam- 530016. .....RESPONDENT(S) Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Aﬃdavit ﬁled herein the High Court will be pleased to issue an appropriate writ, order or direction more particularly in the nature of writ of mandamus declaring the action initiated by the 2nd respondent vide its letter No.NHAI/12760/PIU-VSP/VTP/2008/4116 dated 15- 07-2008 in regard to selection of ex-servicemen for the purpose of collecting User Fee at Vempadu User Free Plaza at Km 795.498 (Tuni - Anakapalli Section from 741.255 to Km 830.525 Old Chainage from Km 272/00 to Km 358/00) as illegal and arbitrary, violating Article 14 and 19 of the Constitution and consequently set aside the same and pass Counsel for the Petitioner: MR.S.CHAKRAPANI Counsel for the Respondent No.: MR.S.S.VARMA (ADDL CGSC) The Court made the following : O R D E R: This Writ Petition has been ﬁled by Cdr.C.V.Rajeswara Rao(Retd) assailing the action initiated by National Highway Authority of India represented by its Project Director (Ministry of Shipping, Road, Transport and Highways)-2 nd respondent with regard to selection of ex-servicemen for the purpose of collecting User Fee at Vempadu User Fee Plaza at Km 795.498 (Tuni – Anakapalli Section from 741.255 to Km 830.525 Old Chainage from Km 272/00 to Km 358/00. The writ affidavit averments, in brief, are : The petitioner retired from Indian Navy on 31.12.1997 at the rank of Commander. After discharge from Indian Navy, he engaged himself in the business of providing security services in the name and style of Mastiﬀ Security Services which is registered with the 3rd respondent-Directorate General of Resettlement, Ministry of Defence, New Delhi with registration No.2112/SA/Empanelment/Emp.No.1307, dated 12.6.2003. National Highway Authority of India selects ex-servicemen sponsored by 3rd respondent for the purpose of collecting fee from the users of National Highways. The 2nd respondent issued circular detailing the procedure for selection of ex-servicemen for entrusting the job of fee collection from the users of fee plaza. The 2nd respondent addressed a letter dated 15.7.2008 to ex- servicemen including the petitioner inviting quotations for the collection of user fee for the four lane reach of NH-5 in respect of Vempadu User Fee at Km 795.498 of Tuni – Anakapalli section from 741.255 to Km 830.525 Old Chainage from Km 272/00 to Km 358/00. The term of the agency presently engaged expired on 15.7.2008. As per the Circular dated 15.6.2007 the 2nd respondent ought to have started the selection procedure 120 days prior to the likely date of commencement of the fee collection at the stretch i.e. 15.3.2008. Inviting quotations from 17 ex-servicemen is contrary to the circular dated 15.6.2007. Considering the candidature of several persons without restricting to 5 to 7 in respect of each plaza is illegal in the teeth of mandatory instructions of DGR. Merger of all groups and considering all the cases for all the toll plazas without speciﬁc sponsoring as to each toll plaza is not in tune with the circular dated 15.6.2007. Deviations from the guidelines in the circular dated 15.6.2007 and adopting pick and choose method amount to arbitrary action on the part of 2nd respondent. The entire process of selection initiated by 2nd respondent is in contravention of the guidelines issued in circular dated 15.6.2007. Therefore, a writ of mandamus has been sought for declaring the action initiated by 2nd respondent vide its letter dated 15.7.2008 with regard to selection of ex-servicemen for the purpose of collecting user fee at Vempadu is illegal and arbitrary and violative of Articles 14 and 19 of the Constitution of India. When the writ petition came up for admission, learned Standing Counsel appearing for National Highways Authority of India received notice on behalf of 2nd respondent and sought time for ﬁling counter. An interim order came to be passed on the even date in WPMP.No.24233 of 2008, which reads as follows: “ There shall not be entrustment of the work pursuant to the letter No.NHAI/12760/PIU-VSP/VTP/2008/4116, dated 15-7-2008 for a period of two weeks.” The interim order came to be extended from time to time. 4th respondent entered appearance through a counsel. 2nd and 4th respondents ﬁled their counter aﬃdavits. 2 nd respondent moved WVMP.No.2887 of 2008 with a prayer to vacate the interim order dated 28-8-2008. It is stated in the counter aﬃdavit of 2 nd respondent that as per Circular dated 15.6.2007, the period of 120 days is for the first commencement of fee collection at the stretch i.e. starting of toll but not in the case of changing of agency as to existing toll plaza. The period of 120 days as mentioned in the circular is for the convenience of the concerned Project Director for initiation of steps to start the toll plaza. Quotations were called for from more than 5 to 7 persons wherein the writ petitioner was one of the members participated in the tender process. The writ petitioner has not raised any queries about calling quotations from 17 members instead of 5 to 7 members as contended in the writ aﬃdavit. The petitioner having participated in the entire tender process and after completion of the process, he cannot be permitted to question the process of tender. A Committee comprising of three Project Directors of adjoining States and a person from Finance Division has taken interview of all the six persons who submitted quotations and after evaluation found 4th respondent more suitable and the work came to be awarded to him. The decision of awarding work is not unilateral but by the selection committee duly constituted by the 2nd respondent. 4th respondent ﬁled counter aﬃdavit contending that he has been declared as a successful bidder pursuant to the bids opened on 20.8.2008 and the Project Director communicated the same to him vide letter dated 21.8.2008. It is further stated in the counter aﬃdavit that the petitioner participated in the selection process without any objections whatsoever with regard to the bid procedure and therefore he was estopped from questioning the award of work to the 4th respondent. When the vacate stay petition came up for considering, with the consent of learned counsel appearing for the parties, the writ petition itself is taken up for final disposal. Heard learned counsel appearing for the petitioner, learned Standing Counsel appearing for 2nd respondent and Sri.D.Prakash Reddy, learned Senior Counsel appearing for 4th respondent. Learned counsel appearing for the petitioner submits that the petitioner calls in question the very process of selection by 2nd respondent and not the selection of agency for Vempadu Toll Plaza. In elaborating his arguments he contends that inviting quotations from 17 ex-servicemen is contrary to the circular instructions issued by 2nd respondent. What he means to say is quotations are to be called for only from 5 to 7 ex-servicemen sponsored by DGR. A further submission has been made that selection process must commence 120 days prior to the likely day of commencement of fee collection at the plaza and since the process has not been commenced 120 days prior to the commencement of toll plaza, the action initiated by 2nd respondent vide its letter dated 15.7.2008 is to be declared as illegal and arbitrary. In support of his submissions, reliance has been placed on the decisions of Supreme Court in TATA CELLULAR VS. UNION OF INDIA[1] and T.C.I SEAWAYS LTD.VS. FOOD CORPORATION OF INDIA[2] Learned Standing Counsel appearing for 2nd respondent submits that the petitioner having submitted his tender pursuant to the notiﬁcation dated 15.7.2008 and having become the unsuccessful in getting the work cannot be permitted to contend the process initiated by 2nd respondent through letter dated 15.7.2008 as illegal and arbitrary. He would further contend that the selection committee considered the candidature of the petitioner, 4th respondent and other tenderers who responded to the circular dated 15.7.2008 and found 4th respondent is more suitable having secured 71.25 percent points. He placed before me the ﬁle relating to assessment of the candidates made by the committee comprising four members. As per the assessment, the petitioner stood at 4th place having secured 64.00 and whereas R4 stood at first place having secured 71.25 percent points. Sri.D.Prakash Reddy, learned Senior Counsel appearing for 4th respondent submits that 120 days period prescribed in Circular dated 15.6.2007 pertains to new plazas and not to the existing plazas. He would also contend that 2nd respondent invited quotations from 17 ex-servicemen including the petitioner and R4 and therefore he cannot have any grievance as to the procedure adopted by 2nd respondent. Learned Senior Counsel would submit that R4 stands in a better position since his name ﬁnds place in the letter dated 7.7.2008 addressed by 2nd respondent to the Project Director, national Highways Authority of India, Project Implementation Unit (GQ), Visakhapatnam. Indisputably the petitioner responded to the circular dated 15.7.2008 and submitted his quotation. A selection committee comprising of four members evaluated the tenders submitted by six ex-servicemen including the petitioner and 4th respondent and rated 4th respondent at rank No.1 and petitioner at rank No.4. Nothing is stated in the writ aﬃdavit attributing malaﬁdes to the selection committee. Learned counsel appearing for the petitioner strenuously contended that the procedure initiated by the 2nd respondent for selection of agency for collection of user fees at the speciﬁed toll plaza is not in accordance with the circular dated 15.6.2007. Since the petitioner responded to the notiﬁcation dated 15.7.2008, he cannot be permitted to contend that the notiﬁcation dated 15.7.2008 is not in tune with the circular dated 15.6.2007. Even otherwise quotations have been called for from 17 ex- servicemen including the petitioner and 4th respondent and thereafter selection committee has been constituted. Learned counsel for the petitioner tries to point out that the selection process has been commenced in a haphazard manner without getting the list of sponsored candidates from 3rd respondent. His contention can be negatived by referring to the letter No.NHAI/12760/PIU-VSP/NTP&VTP/2008/4087, dated 7.7.2008. Para 2 of the letter reads as under: “ 2. In obedience to the directions given by your good self vide Ref: 1.1 & 1.2 we have requested the Director, DGR, New Delhi for sponsoring the Names of Ex-servicemen Agencies vide Ref:1.3 & 1.4. 2.1 The undersigned contacted Col.Gill, DGR, New Delhi for expediting the process of sponsoring the names of Ex-servicemen agencies. In turn, he has informed that they are not going to send the names of Ex-servicemen agencies for which they have already informed NHAI HQ, New Delhi. 2.2 When the undersigned has contacted your good self, directions were given as follows: (i) for Vempadu User Fee Plaza, names of DGR sponsored Ex- servicemen Agencies can be obtained from Project Director, PIU, Rajahmundry, for which we have already requested Project Director, PIU-Rajahmundry and (ii) for Nathavalasa, the same persons can be called whose names were sponsored earlier for Nathavalasa and the process may be done as per guidelines.” It is explicit from the text of the above letter that under what circumstances 2nd respondent is made to call for quotations from 17 ex-servicemen. Therefore, the contention of learned counsel appearing for the petitioner that notiﬁcation dated 15.7.2008 came to be issued without calling the list of ex- servicemen from the 3rd respondent has no substance. In the result, this Writ Petition is devoid of merit and it is hereby dismissed. No costs. Interim order dated 28.8.2008 stands vacated. 25th September, 2008. (B.Seshasayana Reddy,J) tnb ..... REGISTRAR // TRUE COPY // SECTION OFFICER To 1.2CCs to 2.2CD copies Form-NIC-OGS/WP{KSRANI} THE HONOURABLE SRI JUSTICE B.SESHASAYANA REDDY WRIT PETITION NO.18622 OF 2008 25T H SEPTEMBER 2008 [1] AIR 1996 SC 11 [2] 2002(6) ALT 760