IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD MONDAY, THE TWENTY SECOND DAY OF DECEMBER TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE D.S.R.VARMA and THE HON'BLE MR JUSTICE G.CHANDRAIAH WRIT APPEAL NO : 1615 of 2008 (Writ Appeal under Clause 15 of the Letters Patent against the Order dated 25/09/2008 in WP NO : 18622 OF 2008 on the file of the High Court.) Between: Cdr. C.V. Rajeswara Rao ( Retd., ), DGR Regn. No. 1307, Door No. 9-80, Maruti Nagar, Ramanayyapeta, Kakinada - 533 005. ..... APPELLANT 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) Counsel for the Appellant:MR.S.V.R.SUBRAHMANYAM Counsel for the Respondent No.: MR.S.S.VARMA (ADDL CGSC) The Court made the following : THE HON’BLE SRI JUSTICE D.S.R.VARMA AND THE HON’BLE SRI JUSTICE G.CHANDRAIAH Writ Appeal No.1615 of 2008 Oral Judgment: (per D.S.R.Varma, J.) Heard Sri P.Venu Gopal, learned Counsel, representing Sri S.V.R.Subrahmanyam, learned Counsel appearing for appellant; Sri S.S.Varma, learned Standing Counsel for National Highway Authority of India for respondents 1 and 2; Sri A.Rajasekhara Reddy, learned Assistant Solicitor General for respondent No.3; and Sri V.Vinod Kumar, learned Counsel appearing for respondent No.4, since respondents 5 to 19 are shown as pro forma parties, vide cause title. 2. This writ appeal is directed against the order, dated 25-9-2008, passed by a learned single Judge of this Court in dismissing W.P.No.18622 of 2008. 3. The unsuccessful writ petitioner is the appellant before us. 4. The prayer sought for in the writ petition is -- a writ of mandamus be issued declaring the action initiated by respondent No.2 vide its letter No.NHAI/12760/PIU-VSP/VTP/2008/4116, dated 15-7-2008, in 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) as illegal and arbitrary. 5. The facts appear to be as under: It appears that there are certain Plazas, called Toll Plazas. The procedure to manage the said Toll Plazas can be granted in favour of the ex-servicemen also. Insofar as the procedure for selection of ex-servicemen, Circular No.NHAI/COMMERCIAL OPERATIONS/88, dated 15-6-2007, has been issued by the General Manager (CO), National Highways Authority of India, New Delhi. Clause 3(a) of the said Circular deals with the commencement of selection procedure of ex-servicemen/agencies at least 120 days prior to likely day of commencement of fee collection at the stretch. Clause 3(b) deals with the procedure to be adopted in case of replacement of an existing agency due to its unsatisfactory performance. Clause 3(c) deals with Project Director will seek sponsorship to 5 to 7 ex-servicemen from Director General Resettlement (DGR) by providing name of the selection, location of fee plaza, likely day of commencement of fee collection/engagement of the agency, requirement of man power etc. at Director (Self Employment), Directorate General of Resettlement (DGR), Ministry of Defence, Government of India, RK Puram, West Block-IV, New Delhi, under intimation to Head Office. 6. It is the contention of learned Counsel appearing for the appellant that there is a deviation by respondent No.2 in calling for tenders through proceedings No.NHAI/12760/PIU-VSP/VTP/ 2008/ 4116, dated 15-7-2008. It is the averment of the learned Counsel that only 17 persons were called for participation in the fresh tender, which according to him, is violative of the Circular, dated 15-6-2007. 7. It is not in dispute that some agencies were sought to be replaced by another agency for various reasons. In such a contingency, Clause 3(b) of the Circular, dated 15-6-2007, has to be adopted, because it is the said provision, which deals with replacement of the existing agency. 8. It is the contention of the learned Counsel appearing for appellant that the procedure under Clause 3(a) of the Circular ought to have been adopted. 9. But, from a bare reading of the two provisions i.e., Clause 3(a) on one hand and Clause 3(b) of the said Circular on the other, it is clear that Clause 3(a) deals with the commencement of selection procedure of ex-servicemen/agencies at least 120 days prior to likely day of commencement of fee collection at the stretch and Clause 3(b) is applicable for selection procedure in case of replacement of an existing agency due to its unsatisfactory performance. 10. The present case is that a fresh agent has to be appointed in place of the original appointee for other reasons. Therefore, in such a case, the procedure as postulated under Clause 3(b) of the Circular, dated 15-6-2007, alone has to be applied. Accordingly, the selections have been made by inviting tenders from the people through proceedings dated 15-7-2008. 11. Furthermore, it is to be noted that in response to the said notification, the appellant had also participated in the said proceedings and having failed in the same, resorted to file the present writ petition. 12. The learned Judge pointed out in the impugned order that apart from other grounds, having conceded to the procedure adopted by respondents 1 to 3, particularly respondent No.2, it is not open for the appellant to challenge the procedure, on the ground that the procedure prescribed in the Circular, dated 15-6-2007, had been violated or deviated. 13. In fact, as already pointed out, there is no violation or any deviation whatsoever, while adopting the procedure, inasmuch as, the said procedure is in relation to the replacement of the existing agency. 14. Therefore, as pointed out by the learned single Judge in the impugned order that the appellant having participated in the proceedings and having been failed in the same, now he cannot agitate the same issue before this Court. In other words, had he succeeded in the said process, he would not have filed the present writ petition, which amounts to blowing hot and cold. 15. That apart, as already pointed out, the procedure adopted by respondent No.2 has been strictly in consonance with the procedure prescribed in a particular contingency i.e., the process of replacement of an existing agency due to its unsatisfactory performance. Therefore, we do not find any deviation or violation in order to declare the same as illegal. 16. For the foregoing, agreeing with the impugned order of the learned single Judge, we find no merit in the writ appeal. 17. In the result, the writ appeal is dismissed, at the stage of admission, confirming the impugned order of the learned single Judge. ____________________ JUSTICE D.S.R.VARMA ____________________ JUSTICE G.CHANDRAIAH 22nd December, 2008. Ak ........REGISTRAR To 1. 2.2 CD copies Form-NIC-OGS/WA {KSRANI}