WP/27345/2009 of T.Madhava Rao Vs The Union of India., rep.by its Secretary, Ministry of on 29 December 2009

ORDER:

South Central Railway, the second respondentherein, issued a tender notice, dated 07.05.2009, invitingthe tenders for supply and stacking of 50 mm gauge hardand durable machine crushed stone ballast to Railway’sspecification at Railway Depot at Hasanparthi Roadstation in Secunderabad Division and loading the sameinto Railway hoppers/Traffic ballast wagons bymechanical means.

The quantity stipulated was 1,60,000 cubic metersand approximate value thereof is Rs.7,68,00,000/-. Thepetitioner, seventh respondent herein and certain otherssubmitted their tenders. The seventh respondentemerged as L-1 tenderer and the petitioner as L-2tenderer. The petitioner raises an objection foracceptance of the tender of the seventh respondent onthe ground that the certificate produced by the latter aboutthe analysis of the product is improper and contrary to thestipulation. It is stated that Clause 1.8 of the tender noticemandates that the sample of the ballast must be tested by a laboratory attached to Civil Engineering Department ofany Government recognised Engineering College and thatsuch report must not be older than three months beforethe date of opening of the tender, but, in utter deviation ofthis, a certificate issued by a Professor, GeologyDepartment of Osmania University filed by the seventhrespondent, was treated as valid. The petitioner submitsthat testing of ballast by a specific agency is an essentialcondition and the respondents were not at all justified indeviating from the same.

The railways, respondents 1 to 5, on the one hand and the seventh respondent on the other hand filedseparate counter-affidavits.

In the counter-affidavit filed by the seventh respondent it is stated that the analysis of the ballast isrequired to be made with reference to certain parametersand that the same has been complied with by him.

In the counter-affidavit is filed on behalf of respondents 1 to 5, it is stated that the report submitted bythe seventh respondent accords with the specification ofthe tender. It is stated that the petitioner filed a report froman Institute of Technology and Science and not from anyCivil Engineering Department. It is also mentioned thatthe facilities of testing the product are available with theGeology Department of Osmania University and that the certificate issued by the Professor was found to begenuine. It is further stated that the difference between therates quoted by the petitioner on the one hand and theseventh respondent on the other hand is to a tune ofRs.1,38,24,000/-.

The seventh respondent submits that he hascomplied with the requirements and the petitioner cannotraise any objection for it.

Sri J.Prabhakar, learned counsel for the petitioner,submits that there is a definite object underlying Clause1.8 and that it is an essential condition. He submits thatrespondents 1 to 5 are not supposed to ignore or relax theessential conditions and the mere fact that the ratesquoted by the seventh respondent are economical cannotbe the basis to accept his tender. He places relianceupon the judgments rendered by the Supreme Court inW.B.State Electricity Board V. Patel Engineering Co.[[1]],Kanhaiya Lal Agrawal V. Union of India and others[[2]]and.Sangeeta Singh V. Union of India and others[[3]]

Sri T.S.Venkatramana, learned Standing Counsel forrespondents 1 to 5, and Sri Vemulapalli Prasad Rao,learned counsel for the seventh respondent, on the otherhand, submit that Clause 1.8 is incorporated only toensure that product of specified quality is supplied, andthat, apart from the certification made by the laboratory ofan university, the railways has its own mechanism to testit. They submit that the petitioner, who is not the lowesttenderer and whose rates are far higher, cannot raise the technical objection.

The only point relied on behalf of the petitioner isabout compliance with Clause No.1.8 of the tender notice. It is not in dispute that there is a difference between therates quoted by the petitioner and the seventhrespondent.

Clause No.1.8 of the tender notice reads as under: -“Tenderers are required to submit the test reportin respect of sample of ballast proposed to besupplied, from a laboratory attached to CivilEngineering Department of any Governmentrecognised Engineering College. Such test reportshould not be older than 3 months before the dateof opening of the tender. Name of the Quarry,location and distance by road from quarry toballast depot are to be indicated. The offer oftenderer who have not submitted the test report orif results do not satisfy the requirement as perspecifications, (Para 2.2 of Specification for trackballast enclosed as annexure-A) will not beconsidered.”

On his part, the seventh respondent filed a certificateissued by one Dr.A.P.Siva Kumar, Professor and Head ofDepartment of Geology, Osmania University, dated16.06.2009. After furnishing the particulars on variousparameters such as Aggregate Abrasion, Impaction,Flakiness Index and water absorption, he opined “thehomogeneity of the grain size and mineralogicalassemblages of the unweathered Granite samples arefound to be within the tolerable limits of the specifications and hence, the Rock aggregate is recommended for itsutility as Railway Track Ballast and hence thisCertification.”

Respondents 1 to 5 cross-verified as to whether thecertificate was issued by the same person and on findingthat the certificate is genuine, they took the same intoaccount. So far as the petitioner is concerned, hesubmitted a certificate issued by Kakatiya Institute ofTechnology and Science, Warangal, issued on17.06.2009. Though respondents 1 to 5 stated that thecertificate submitted by the petitioner was not issued byCivil Engineering Department of any Governmentrecognised Engineering College,that question may not beof immediate relevance. The reason is that the petitionerraised objection for the certificate submitted by theseventh respondent.

The object underlying Clause 1.8 of the tender notice is that before a tenderer offers his rates, he mustenclose the technical details of the product, certified by aspecial agency. It is not as if that the details furnished insuch certificates are final. Stone blast is one of the mostimportant materials purchased by the railways from time totime. The quantities are phenomenal. Respondents 1 to 5have got its own mechanism to verify the quality of theproduct. The Hon’ble Supreme Court in the decisionrelied upon by the learned counsel for the petitioner heldthat essential conditions stipulated in Governmentcontracts cannot be relaxed. Clause 1.8 of the tender notice can certainly be treated as essential. Whatbecomes necessary is the purport thereof.

The area of controversy is as to whether thedepartment of Geology of Osmania University can beequated to the Civil Engineering department of anEngineering College.

If one goes by grammatical interpretation, it is onlythe certificate issued by the Civil Engineering Departmentof an Engineering College that can be taken into account.However, a person having a basic idea about naturalscience knows that the department of Geology is betterqualified in analysing the structure, strength and otherfeatures of stone ballast when compared to the CivilEngineering Department of an Engineering College. It isnot even alleged that the department of Geology does nothave the laboratory to analyse the various features of theballast. Therefore, the contention advanced on behalf ofthe petitioner cannot be accepted. Further, what becomesimportant and material is the ultimate satisfaction of theagency that has quoted the tender. It has to be guided byseveral factors such as quality of the material, the ratesquoted by different tenderers. Once respondents 1 to 5are satisfied about the genuinity, reliability and relevancyof the certificate submitted by the seventh respondent, thepetitioner cannot be permitted to urge that the tender ofthe seventh respondent must be rejected on such a hypertechnical ground.

Hence, the writ petition is dismissed. There shall be no order as to costs.

29[th] December 2009dr

[1](2001) 2 SCC 451[2]AIR 2002 SC 2766[3]AIR 2005 SC 4459

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JUSTICE L.NARASIMHA REDDY