IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY, THE TWENTY FIRST DAY OF DECEMBER TWO THOUSAND AND ELEVEN PRESENT THE HON'BLE SRI JUSTICE VILAS V. AFZULPURKAR WRIT PETITION No.14546 of 2011 BETWEEN Uni Ads Limited, Hyderabad. ... PETITIONER AND South Central Railway, Secunderabad and four others. ...RESPONDENTS Counsel for the Petitioner: MR. N. SUBBA RAO Counsel for the Respondents: MR. C.V. RAJEEV REDDY MRS. C. VINITHA REDDY MR. V.V. ANIL KUMAR The Court made the following: ORDER: Petitioner, who is an unsuccessful tenderer, has questioned the action of respondents 1 to 3 in opening the price bid of the fourth respondent on 17.05.2011 for award of contract and seeks consequential declaration to declare that the fourth respondent is not eligible and the petitioner has fulfilled all the terms and conditions of the tender. 2. Mr. N. Subba Rao, learned counsel for the petitioner and Mr. C.V. Rajeev Reddy, learned standing counsel for respondents 1 to 3, have submitted that the contract in question relates to painting and advertisements on the exterior coaches of Train No.7036/7035 Telangana Express for a period of three years and ultimately the fourth respondent was awarded contract on 01.07.2011 and he has since been working the said contract. Mr. V.V. Anil Kumar, learned counsel, who appears for the fourth respondent, however, has not filed any separate counter affidavit. 3. This Court while admitting the writ petition on 31.05.2011 has further observed that any award of work to the fourth respondent shall be subject to the result of the writ petition. 4. The facts and the question raised by the learned counsel for the petitioner may be stated thus: A tender notification dated 25.02.2011 resulted in responses from four participants out of which the petitioner and the fourth respondent alone remained in the ultimate fray. The requisite condition of tender under clause 6 reads as follows: 6. The firms should have sound financial capacity and submit the turnover details for the last three years duly supported by documentary evidence.” It is the specific case of the petitioner that the fourth respondent does not fulfill the aforesaid requirement inasmuch as he has merely submitted experience credentials but has not submitted turnover and registration details. Petitioner, therefore, submits that the condition stipulated, as above, being mandatory, the consideration of price bid of the fourth respondent itself is contrary to the term and conditions of the tender and consequently, the petitioner being the only tenderer, who fulfills all the requirements, ought to have been considered and awarded the contract. 5. Learned standing counsel for respondents 1 to 3, who has filed a counter affidavit, places reliance on para 5 of the counter affidavit, which states, in this regard, as follows: “5.…The firm M/s. Rohini Ads, have submitted the experience credentials, but not submitted turn over details and registration details. As M/s. Rohini Ads, is the existing contractor who is paying approximate amount of Rs.24 lakhs per annum on various contracts given by this division. Hence, it is considered that the turn over of the firm will be more than the amount being paid to Railways…” It is evident from the averments above that the fourth respondent is the existing contractor with the respondent – railways and keeping in view the amount he is paying to the railways per annum has financial credibility as it is within the knowledge of respondents 1 to 3. They have, therefore, considered the fourth respondent eligible and in any case, not disqualified on the ground of financial criteria required to be fulfilled. The respondent – railways, therefore, only dispensed with the rigour of producing documentary evidence in support of the financial credibility of the fourth respondent in view of the fact that the railways themselves were expressly aware of the said criteria, as the fourth respondent was existing contractor with the railways. 6. Para 7 of the counter affidavit explains that on relative comparison of the offers of the petitioner and the fourth respondent, the offer of the fourth respondent was found to be financially more competitive and in the interest of revenue of the Government and after the said relative assessment, the contract has been awarded to the fourth respondent and as stated above, he has since been working the said contract for the last about six months. In the circumstances, the on going work by the fourth respondent, is otherwise in public interest, ought not to be disrupted at this stage. 7. Since jurisdiction under Article 226 of the Constitution of India is discretionary, I am not inclined to upset the award of the contract to the fourth respondent by the respondent-railways. Even assuming that the petitioner has made out a ground, interference within the discretion under Article 226 of the Constitution of India is not warranted, hence, declined. However, if the petitioner feels that consideration of the fourth respondent’s offer by the respondent – railways was unjustified or illegal, it is open for the petitioner to approach the competent civil Court and seek appropriate relief as the damages, as he deems fit and if he is so advised. Subject to the liberty above, the writ petition is dismissed. There shall be no order as to costs. _____________________ VILAS V. AFZULPURKAR, J December 21, 2011 DSK