IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.12056 of 2009 MANKESHWAR TEWARY CHIEF EXECUTIVE OFFICER, NARKATIAGANJ CLEANING AND PUBLIC WELFARE, SELF DEPENDENT COOPERATIVE SOCIETY LTD. SON OF LATE JAIGOVIND TEWARY RESIDENT OF VILLAGE PANDEY TOLA, P.S. SIKARPUR, DISTRICT WEST CHAMPARAN. Versus 1. THE UNION OF INDIA THROUGH CHAIRMAN, RAILWAY BOARD, RAIL BHAWAN, NEW DELHI. 2. GENERAL MANAGER, E.C. RAILWAY, HAJIPUR, DISTRICT VAISHALI 3. DIVISIONAL RAIL MANAGER (COMMERCIAL) E.C. RAILWAY, SAMASTIPUR, DISTRICT SAMASTIPUR. 4. SENIOR DIVISIONAL COMMERCIAL MANAGER, E.C. RAILWAY, SAMASTIPUR. 5. THE ASSISTANT COMMERCIAL MANAGER, E.C. RAILWAY, SAMASTIPUR. ----------- 6 21/04/2010 Petitioner wants quashing of the order dated 5.8.2009 passed by the Divisional Rail Manager (Commercial) which is annexure-5 to the writ application. By virtue of the said decision the tender which came to be finalized pursuant to the notice inviting tender contained in Annexure-1 stood cancelled after going through the exercise. This decision has been termed by the petitioner to be arbitrary, motivated and not bonafide. A notice inviting tender was issued on 21.6.2008 which was published in the local news paper Hindustan on 28.6.2008. The terms and conditions of notice inviting tender - 2 - for construction of Deluxe Toilet and its upkeep for various railway stations were indicated therein. Petitioner was one of the registered institution under the Co-operative Societies Act which bid and responded to the said notice inviting tender. Final date for submission of tender was fixed as 6.8.2008 and 6.8.2008 was the date for examining the technical bid of the tenderers. Technical bid was opened, analysed but the financial bid was not opened for many a months for reason best known to the respondents. After much delay the financial bid of the petitioner and others was opened only on 25.6.2009. It is contention of the petitioner that his financial bid was highest amongst all the tenderers but despite the said fact, no final award of tender in favour of the petitioner was made. He was surprised to receive communication dated 5.8.2009 (annexure-5) which he has decided to challenge in the present writ application. Learned counsel for the petitioner has even indicated that there was a very strong contender to the said bid which is known as Sulabh International and since they failed in their effort to corner the contract, the tender itself stood cancelled on intervention at some level in this regard. - 3 - A counter affidavit came to be filed by the respondent railway authorities where they have denied any wrong doing in the decision. Their contention was that after exercise was carried out, the railway authorities realized that the notice inviting tender was in breach of the Circular issued by the Railway Board which is Policy Circular No. 46 dated 7.6.2006. Court was not satisfied with the explanation or the stand taken in the counter affidavit since it was a bald kind of statement without any supporting material with regard to such a stand. It is in light of the above that the Court directed the respondents to file a fresh affidavit and bring on record the so called Circular. A supplementary counter affidavit has now been filed in which Circular dated 7.6.2006 has been annexed. A statement has been made now that it is this policy or circular which has been breached. Some extracts with regard to expression of interest has been made in the supplementary counter affidavit and in paragraphs 5 and 6 it is stated that the railways ought to have fixed reserve price before calling for a financial bid dependent upon the category of Stations amenities etc. Another aspect pointed out in paragraph 6 of - 4 - the supplementary counter affidavit is that no expression of interest was called and the notice inviting tender was invited in two packet system. This was considered to be breach and, therefore, the cancellation. Circular as already noted above is dated 7.6.2006. Notice inviting tender was issued on 21.06.2008. Policy decision brought on record is a kind of guideline. It is not the case that the settlement or maintenance of deluxe toilet was to be done on one to one arrangement. A proper public notice had been issued inviting tender and after protracted kind of examination of the price, the petitioner’s bid was found to be the highest. There are many un-explained areas for such belated decision making and Court does get an impression that there was something stalling the final decision at every stage of contract. Obviously the petitioner’s success had not gone down well and an innovative stand has been taken for cancellation of the tender in question. Even otherwise the so called breaches if at all pointed out in the counter affidavit of the respondents is not of the kind which goes to the fairness or openness of the process of the notice inviting tender. There is no statement or - 5 - allegation that the process was not gone through in a fair and open manner by the local authorities. If the entire exercise has been carried out and the petitioner proved himself to be highest bidder, then innovations for defeating his claim cannot be allowed. Petitioner has made out a case for interference. Annexure-5 is hereby quashed and the writ application is allowed. Let the respondents proceed in the matter and take a final decision within a reasonable time frame. AMIN (Ajay Kumar Tripathi, J.)