DHANPAT PRASAD Vs. STATE OF JHARKHAND

JUDGEMENT

(1.) Heard counsel for the parties. The petitioner has challenged the Memo No. 2974(S)E dated 25th March, 2013 issued by the Engineer-in-Chief (Respondent No. 3) as also the decision of the Departmental Tender Committee dated 23rd March, 2013 (Annexure-7 series) by which a decision has been taken to allot the work of widening and strengthening of Chotki Kharagdiha to Mirzaganj Road Via Dudwatand-Gonditand-Lataki-Chatro for the year 2012-13 in favour of the respondent No. 6.

(2.) The specific ground for challenge to such allotment of work to the respondent No. 6 raised on behalf of the petitioner is based upon the contention that as per the tender document issued on 17th January, 2013, the respondent No. 6 did not have the experience of five years as prescribed in Clause-4.3(C). It is further submitted that the respondent No. 6 is a private limited company which has taken over one J.P. Nirman Projects, a Partnership Firm, under an agreement on 1st August, 2012 and as such, the experience of the company is not for a period of five years. It is further submitted that it cannot also be allowed to take into account the experience of the Partnership Firm for participating in the bid. As such, it did not qualify in the bid in question. It is further submitted that the completion certificate (Annexure-5) dated 6th February, 2009 issued to M/s. J.P. Nirman Projects by ERCON INTERNATIONAL LIMITED showing date of completion of the specified work as on 25th October 2008, cannot be counted as five years till the date of present tender i.e. 17th January, 2013. By reckoning experience from 25th October, 2008, the respondent No. 6 could not claim experience of five years till the date of tender i.e. 17th January, 2013. Further, argument has also been advanced that the private respondent has not come out with specific documents showing that the terms and conditions of take over of the Partnership Firm by the Agreement (Annexure-3) have been completed and necessary share certificates have been issued to the Partnership Firm. Learned counsel for the petitioner has also relied upon a judgment of the Hon'ble Supreme Court in the case of Ramana Dayaram Shetty vs. The International Airport Authority of India and Others, 1979 AIR(SC) 1628 in support of his contention that in matters of award of work under a tender, the administrative authorities have to conform to the terms and conditions laid down under the Advertisement. Those who do not fulfill the criteria prescribed, have to be excluded from the process of tender. In this background, the impugned orders are challenged by the petitioner.

(3.) State and the respondent No. 6 both have filed their respective counter affidavit. The respondent State has justified issuance of the allotment order on the basis that the petitioner is entitled to claim experience of the Partnership Firm i.e. J.P. Nirman Projects. Therefore, it has been taken into account by the State while accepting the bid of the respondent No. 6 which was found to be L-1 in the said tender. The State respondent and the private respondent have relied upon the judgment of the Hon'ble Supreme Court in the case of New Horizons Limited and Another vs. Union of India and Others, 1995 1 SCC 478paragraph-23 thereof to submit that the experience of the Partnership Firm taken over by the respondent No. 6 company can be taken into account for reckoning its experience for the purposes of eligibility to participate in the said tender.