IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.810 of 2010 1. RAILWAY LICENSEDHARI PORTERS SHRAMIK SAHKARI SAMITI, MANGAL BAZAR, P.S.+ DISTRICT KATIHAR THROUGH ITS SECRETARY 2. RAMASHIS RAI S/O LATE SOMAR RAI SECRETARY, RAILWAY LICENSEDHARI PORTERS SHRAMIK SAHYOG SAHKARI SAMITY, MANGAL BAZAR, P.S. + DISTRICT KATIHAR … Petitioners/Appellants Versus 1. THE UNION OF INDIA, THROUGH THE DIVISIONAL RAILWAY MANAGER, NORTH FRONTIER RAILWAY, KATIHAR DIVISION, KATIHAR 2. THE DIVISIONAL RAILWAY MANAGER, NORTH FRONTIER RAILWAY, KATIHAR DIVISION, KATIHAR 3. THE SENIOR DIVISIONAL COMMERCIAL MANAGER, NORTH FRONTIER RAILWAY, KATIHAR DIVISION, KATIHAR 4. THE ASSISTANT COMMERCIAL MANAGER, NORTH FRONTIER RAILWAY KATIHAR DIVISION, KATIHAR 5. MOHINI SIKSHIT SHRAMIK SWABHAMBI SAHAKARI SAMITI LIMITED, HIGH SCHOOL PARA, P.S. + DISTRICT KATIHAR THROUGH ITS SECRETARY 6. THE SECRETARY, MOHINI SIKSHIT SHRAMIK SWABLAMI SAHKARI SAMITI LIMITED, HIGH SCHOOL PARA, KATIHAR … Respondents/Respondents. ----------- 2. 7.5.2010 I.A.No. 4355/2010 For the reasons mentioned in this application as also in the light of the submissions made by the counsel for the appellants as also respondents no. 1 to 4 the delay of 22 days in filing of this appeal is condoned. I.A. is, accordingly, disposed of. L.P.A.No. 810/2010 As we have condoned the delay, we are also 2 inclined to take up this appeal for its final disposal at the stage of admission itself. In this intra-Court appeal the order of the learned Single Judge dated 16.2.2010 in C.W.J.C.No. 2671/2010 has been assailed by the appellants- writ petitioners on various grounds. The relevant facts which need to be noticed for the purposes of appreciating the submission of the learned counsel for the appellants lie in a very narrow compass. The competent authority of North East Frontier Railway had invited tender vide its NIT dated 11.8.2009 for loading and unloading of goods and parcels at Katihar Railway Station for a period of three years from the genuine registered working Labour Co- operative Societies having field of operation of loading and unloading of goods and parcels in the area covering Katihar Railway Station. One of the conditions of NIT was that any tender form not supported with working experience and area and field of operation was liable to be rejected. It appears that the petitioner Society as also respondent no.5 had submitted their offers. Thereafter 3 the work was awarded to respondent no.5 by an order dated 11.11.2009 which was assailed by the petitioners by filing C.W.J.C.No. 2671/2010 primarily on the ground that the rates offered by respondent no.5 were not only abnormally low but also that it was not eligible for being awarded contract as its working experience was not in respect of Katihar Railway Station. The learned Single Judge by the impugned order has found no merit in either of the two grounds raised on behalf of the petitioners and has dismissed the writ petition by holding that: “If the tenderer has quoted a price he has done so with due responsibility and if there is failure on his part to perform the contract then there are consequence which are going to flow. Whether the price quoted by the private respondent is workable or not workable is not for the petitioner to decide. To that extent the respondents are correct because the valuation of the tender and the price quoted therein is not the concern of the petitioner but the parties entering into the contract.” Further the learned Single Judge as with regard to experience of respondent no.5 has held as 4 follows: “The other objection with regard to experience of respondent no.5 in handling the loading and unloading of parcel and goods is concerned annexure-7 is the complete answer where a finding has been communicated to the petitioner by the competent authority that the Labour Cooperative Society i.e. respondent no.5 does have the requisite experience and they are also the registered society located at Katihar. Even the address furnished by the petitioner with regard to respondent nos. 5 and 6 could satisfy their locality.” Mr. Manoj Kumar Singh, learned counsel appearing on behalf of the appellants, has, however, submitted that the learned Single Judge has not appreciated the true and correct requirement of NIT as with regard to experience clause, inasmuch as he is of the view that only such co-operative society which had the working experience of loading and unloading railway parcel, the scope of NIT, at Katihar Railway Station, only were eligible for being considered for allotment of work. In this regard he has submitted that respondent no.5 had no working experience of Katihar Railway 5 Station and as such, the award of contract of the said society of respondent no.5 was in violation of the condition of NIT, an aspect which was not even touched by the learned Single Judge. Per contra, Mr. Anil Singh, learned counsel appearing on behalf of respondents no. 1 to 4 representing the Railways has submitted that the appellants- writ petitioners have no more impression about working experience certificate which nowhere envisaged that such working experience must be confined to loading and unloading operations of parcels at Katihar Railway Station only. In our considered opinion the submission of the learned counsel for the respondents merits acceptance, inasmuch as in the NIT all that was said with regard to working experience was as follows: “ … … … Open tender in sealed cover are invited for loading and unloading of Goods and Parcels at Katihar Railway Station for 3 (three) years from Genuine (Registered) working Labour Co-operative Societies having field of operation of loading and unloading of Goods and Parcels in the area covering Katihar Railway Station.” 6 The plain and simple meaning of the aforesaid clause of the NIT would mean that a registered working labour Co-operative society which had its field of operation of loading and unloading of goods and parcels in the area covering Katihar Railway Station was eligible for being considered for award of contract. The same cannot be read to mean that a registered labour Co- operative which had only earlier done the working of loading and unloading at Katihar Railway Station alone could qualify for grant of tender. As a matter of fact if this restricted meaning of the aforesaid quoted clause of the NIT is accepted the same itself would encourage monopoly for a Co-operative society which had earlier been allotted the work at Katihar Railway Station. The clause “having field of operation of loading and unloading of goods and parcels in the area covering Railway Station” being clearly referable to a genuine registered working labour Co-operative societies. It would necessarily mean the area in which the Co- operative society was registered or was eligible to work. Such meaning of clause in fact would be inconsonance with the spirit of NIT where the best offers from the 7 competing societies have to be scanned in the interest of the railway administration by comparing and accepting the lower bid/ rates. There is no doubt that respondent no.5 Society is registered at Katihar having his registered office at High School, Para in Katihar Town. This aspect of the matter in fact is also confirmed from the letter of the Assistant Registrar of Self Supporting Co-operative Society, Katihar vide letter No. 402 dated 12.9.2009 which had issued the clearance and no objection certificate in favour of the Society, respondent no.5. Thus, moment this becomes an admitted fact that respondent no.5 is a Society registered at Katihar and has its area of operation at Katihar, the terms and conditions of the NIT gets automatically fulfilled. As with regard to working experience the appellants have themselves enclosed the order of the North Frontier Railway showing that it was awarded work on 5.9.2003 of handling contract of goods and parcels at New Jalpaiguri Railway Station which continued for a period of more than three years as would be evidenced from the Subsidiary Agreement dated 18.5.2006 extending the 8 scope of contract. It has to be noted that even New Jalpaiguri Railway Station is within the North Frontier Railway of Katihar and therefore, it cannot be said that the working experience of the same Katihar division in which both Katihar Railway Station and New Jalpaiguri Railway Station are functioning could not have been accepted as valid working certificate for the purposes of NIT in question. Viewed from this angle the solitary attack of the appellants- writ petitioners as against the award of contract to respondent no.5 seems to be devoid of any merit. The scope of judicial review under Article 226 of the Constitution of India as with regard to award of contract by the Government/ Governmental agencies is very limited, inasmuch as this Court is not supposed to sit in appeal on the commercially viable decisions of the authority and scan them on merits. All that this Court can do is to only examine the decision making process to find out as to whether there was any arbitrariness and thus, violation of Article 14 of the Constitution in award of such contract. The attack of the appellants- writ petitoners 9 that such contract should have been given to them because they were the earlier Handling Agents at Katihar Railway Station does not impress this Court, inasmuch as when their rates were found to be much higher than that of respondent no.5 Railway Administration was well within its right to award such contract to respondent no.5 which had not only been eligible in terms of the requirement under the NIT but had also submitted its rates lower than the appellants- writ petitioners. That being so, we do not find any error in the order of the learned Single Judge and consequently, this appeal being devoid of any merit must be and is hereby dismissed. There would be, however, no order as to costs. (Dipak Misra,C.J.) (Mihir Kumar Jha,J.) Surendra/