WA 55/2010 BEFORE HON’BLE THE CHIEF JUSTICE (ACTING) THE HON’B LE MR. JUSTICE A.C.UPADHYAY JUDGMENT & ORDER (oral) Ranjan Gogoi, CJ(Acting). 1. Both the appeals are directed against two separate but similar orders da ted 28.1.2010 passed by a learned Single Judge of this Court in proceedings regi stered and numbered as WP(C) Nos.3065 of 2009 and 3302 of 2009. 2. The writ petitions out of which these writ appeals have arisen were inst ituted by the Respondent No.5 (in both the appeals) challenging a NIT dated 25th May, 2009 inviting tenders for trenching and laying of optical fibre cables on two different routes i.e. Guwahati-Hajo-Rampur-Barpeta Town-Barpeta Road and Bar engapara-Mahendragang having 18 and 13 sub-sections respectively. The specific g round of challenge in the writ petitions filed was in respect of requirement of previous experience in the last three years in the BSNL in laying optical fibre cables. According to the writ petitioners in both the cases they have sufficient experience in the line though not in the BSNL. Such experience is in other orga nizations. In the writ petitions filed it was specifically alleged that a cartel have been formed by some contractors who have been allotted similar works in th e past and it is on account of the influence of the said cartel that the require ment of experience in the BSNL has been incorporated as a condition of eligibili ty for participation in the tender process pursuant to the NIT dated 25.5.2009. It may be specifically noticed herein that the persons against whom the allegati ons of formation of a cartel have been made in the writ petitions were not made parties; nor the tenderers who had submitted their tenders pursuant to the NIT d ated 25.5.2009 had been impleaded as respondents in either of the writ petitions . This is despite the fact that the names and particulars of such persons had be en made available to the petitioners on the basis of their applications under th e Right to Information Act. 3. The learned Single Judge hearing the writ petition took into account a s ubmission made by the learned Standing Counsel, BSNL, that upon reconsideration of the matter a proposal for amendment of the clause of three years experience i n the BSNL had been submitted to the higher authority and the same has been appr oved. The trend of the arguments projected before the learned Single Judge seems to have indicated that the BSNL authorities had decided to publish a corrigendu m the necessary consequence of which would be an abandonment of the process init iated by the NIT dated 25th May, 2009 and initiation of a fresh process. The lea rned Single Judge, therefore, by the impugned orders dated 28.1.2010 thought it proper to direct the BSNL to so act. Accordingly directions were issued for canc ellation of the process initiated by the NIT dated 25th May, 2009 and for public ation of a fresh NIT by incorporation of the amendment of the clause with regard to experience in the BSNL. We are told at the Bar that pursuant to the aforesai d order of the learned Single Judge the NIT dated 25.5.2009 has been cancelled a nd a fresh NIT dated 23.2.2010 has been issued pursuant to which tenders have al so been received. In the writ appeals orders have been passed to the effect that the BSNL authorities may process the tenders so received but they will not fina lise the same without leave of the Court. 4. Before us, Sri Y. Doloi, learned Standing Counsel, BSNL, has submitted t hat in the affidavit filed on behalf of the BSNL, in paragraph 13, it was clearl y stated that consideration/ approval of the corrigendum in question is an inter nal matter of the BSNL and publication of the same was considered not necessary as sufficient number of contractors had applied for the tender documents pursuan t to the NIT dated 25th May, 2009. The stand taken by BSNL before us, as noted a bove, therefore, would indicate that the said authority does not go by what was submitted before the learned Single Judge. In such a situation it would become n ecessary to decide the merits of the contentions raised in the writ petitions, n amely, the validity of the eligibility clause of three years experience in the B SNL as stipulated in the NIT dated 25.5.2009. 5. It has also been noted that in the writ petitions filed allegations had been made regarding formation of a cartel by 14 contractors, whose names and par ticulars are mentioned in paragraph 6 of the writ petitions. The details of the persons who had applied pursuant to the NIT, as made available to the writ petit ioners under the provisions of the Right to Information Act, have been incorpora ted in the rejoinder of the petitioners. From the above record it appears that t wo persons had applied for each item of the works advertised and the names of al l such persons are included in the list of 14 persons furnished by the writ peti tioners in para 6 of the writ petitions. In a situation where it has now become necessary to decide the writ petitions on merits and answer the issue with regar d to the validity of the clause pertaining to three years experience in the BSNL , the Court would understand that the persons who had submitted tenders would ha ve a right to contest the proceedings inasmuch as in the event the eligibility c lause is to be interfered with the tender process in which such persons had part icipated will have to be abandoned. 6. We have seriously considered as to whether an effective resolution of th e dispute would be possible at the appellate stage. However, as only two of the aforesaid 14 persons are before us it is our considered view that such resolutio n should not be made to the exclusion of the other persons. 7. In the aforesaid facts and circumstances we are of the view that the jus t and proper order that these writ appeals would call for is to set aside the im pugned order of the learned Single Judge dated 28.1.2010 passed in both the writ petitions and cause a remand of the matter to the learned Single Judge for a de cision on the merits of the issue(s) arising in the writ petitions. The petition ers in the two writ petitions may implead the persons who had taken part in the tender process pursuant to the NIT dated 25.5.2009 by filing an appropriate appl ication before the learned Single Judge. Until the matter is re-decided on merit s, the interim order dated 12.3.2010 passed in MC No.742/2010 in W.A. No.55/2010 and MC No.744 in W.A. No.56/2010, details of which have been noticed earlier, s hall govern the parties. Both the writ appeals stand disposed of in the above terms.