NARENDRA NATH TIWARI, J. - (1.) IN both the writ petitions, a common prayer has been made for quashing the 'Notice Inviting Tender' (NIT for short) dated 1.5.2007, whereby tender has been invited for allotment of STD/ISD/PCO/Fax/Internet Booth at Platform No. 1 of Tatanagar Railway Station. It has been stated that earlier NIT was published on 30.7.2003 in the daily newspaper "Hindustan Times', Jamshedpur Edition for allotment of the aforesaid STD/ISD/PCO/Fax/Internet Booth on Platform No. 1 of Tatanagar Railway Station on a license fee -cum -commission basis. One booth at Platform No. 1 was reserved to be allotted to a women. According to the terms of the tender notice, tender was to be submitted in two parts, Packet -A was for technical bid and Packet -B was for price bid. Both the petitioners had participated in the tender and submitted all their required documents as per requirement of NIT. It has been stated that the tender was opened for technical offer on 11.9.2003 by the Tender Committee, but for one or other reason, the respondents did not open the financial bid. After more than two years, the petitioners received letter written by the Senior Divisional Commercial Manager, Chakradharpur calling upon the petitioners to revalidate the earnest money. It was also mentioned in the said letter that the matter relating to tender was pending in the High Court and for that reason, the tender could not be finalized earlier. The petitioners thereafter extended the validity of their offer and also their earnest money by extending the validity of the draft(s). Even after compliance of the same, the respondents did not open the financial bid. The petitioners then moved before this Court in W.P.(C) No. 7318 of 2006 for a direction upon the respondents to open the financial bid. A counter affidavit was filed in the said case. In the said counter affidavit, the respondents, inter alia, stated that they have taken decision to cancel the said tender process and float a fresh tender. The said writ petition is still pending. In the meanwhile, the respondents have floated a fresh tender, which was published on 1.5.2007 in daily newspaper 'Prabhat Khabar', Jamshedpur Edition for allotment of the STD/ISD/PCO/Fax/Internet Booth at Platform No. 1 of Tatanagar Railway Station. It has been stated that the Booth at Platform No. 1 has been reserved for physically handicapped of 'Other Backward Classes' (OBC) category in order to exclude the petitioners from getting the settlement. The petitioners have contended that the fresh tender Is illegal and against the policy of upliftment of women. The Booth, which was reserved for women in the earlier NIT dated 30.7.2003, has now been reserved for physically handicapped of OBC category, which is wholly illegal, arbitrary and malicious.
(2.) COUNTER affidavits have been filed in both the cases opposing the said writ petitions on common ground. It has been stated that as a measure of public amenity, it was decided by the Railway Administration to open six numbers of STD/ISD/PCO/Fax/Internet Booths at Platform Nos. 1,2,3,4 & 5 of Tatanagar Railway Station. It was also decided to allot the said Booths to the interested parties through the open tender process and for that purpose, NIT was published in the newspaper 'Hindustan Times', Jamshedpur Edition dated 30.7.2003 and total number of 53 candidates had applied responding the same. The Tender Committee was constituted to finalize the tender process. 11.9.2003 was the date fixed for opening of the tender and on that day, the tender box was opened and scrutinized by the Tender Committee. After opening the technical bid (Pocket -A), the Tender Committee made their remarks in different columns of the Form. In the meanwhile, a writ petition being W.P.(C) NO. 4463 of 2003 was filed by the then licensee of the Booth at Platform No. 1 - Sri Blpin Kumar Tlwary - challenging the said NIT. In the said writ petition, an interim order was passed on 9.9.2003 giving liberty to the petitioner to submit his tender paper in pursuance of the tender notice dated 30.7.2003 and the respondents were directed not to settle the Booth to any person during the pendency of the said writ petition. The said writ petition was finally disposed of by order dated 21.7.2005 directing as follows: Having regard to the facts and circumstances and taking into consideration the fact that the NIT in question, relates to the settlement of a number of STD/ISD/PCO/Fax/Internet Booths, this Court Is not inclined to interfere with the same. It has been further stated that since the tender process was considerably delayed due to the pendency of the said writ petition [W.P.(C) No. 4463 of 2003] and also for other reason, the Railway Administration decided to cancel the earlier tender process and to call for a fresh tender. As the period of license to Sri Bipin Kumar Tiwary was to expire on 27.4.2007, the cancellation of the earlier tender process was fully justified and reasonable. Since the STD Booth at Platform No. 1 was being run by physically handicapped person and the contractual period is going to expire in the month of July, 2007, according to the policy decision, Commercial Circular no. 24, the same cannot be reserved for women in view of Clause -5.4. The said Clause 5.4 has been quoted as follows: In the event of vacancy on account of expiry of contracts or termination of contracts etc. the booth will be allotted to persons belonging to the same category for which the vacancy has arisen. The respondents stated that in compliance of the policy decision and the guidelines, decision was taken for distribution of the Railway Booths to the persons belonging to different categories. The allocation of Booths at various Stations was done by means of draw of lots conducted by three members of the Screening Committee. The sole purpose to keep the booth at Platform No. 1 of Tatanagar Railway Station reserved for physically handicapped person is to provide relief and rehabilitation to them, who are in need of assistance for their survival. There is reservation for women to the extent 25% and In view of the number of Booths available, two Booths are to be reserved for women, one belonging to Scheduled Caste and another belonging to General Category. STD Booth at Platform No. 1 of Rajgangpur and Chaibasa Station has been reserved for women (Scheduled Caste) and women (General) respectively. That allocation has been done by the Screening Committee of three Railway Officers. The allegation of any discrimination of malafide is wholly baseless and the claim of the petitioners is wholly without merit. Mr. P.K. Prasad, learned Counsel appearing on behalf of the petitioner in W.P.(C) no. 2687 of 2007 and Mr. Rajiv Ranjan, learned Counsel appearing on behalf of the petitioner in W.P.(C) no. 2948 of 2007 strenuously argued that the reservation has not been given in accordance with Clause -5.3 of the aforesaid circular No. 24 and the respondents have clubbed all the classes of station, which is against the terms of Clause -5.3 of the said policy decision. The allocation of Booths on different stations by draw of lots is also contrary to the provision of the said policy decision. Learned Counsel referred to and relied on a decision in the case of Virender S. Hooda and Ors. V/s. State of Haryana and Anr. reported in and submitted that if there is any circular, the same has to be followed by the authorities. Learned Counsel submitted that while clubbing the stations in one category, the respondents have treated unequals as equal, which is discriminatory and irrational. Learned Counsel also relied on a decision of the Supreme Court in the case of 'Prem Chand Somchand Shah and Anr. V/s. Union of India and Anr. reported in.
(3.) MR . Mahesh Tiwary, learned Counsel appealing on behalf of the Railways in W.P.(C) No. 2687 of 2007 and Dr. S.N. Pathak, learned Counsel appearing on behalf of the Railways in W.P.(C) No. 2948 of 2007, on the other hand, submitted that the writ petitions filed by the petitioners are wholly without basis and the same are intended to delay the tender process. Learned Counsel submitted that the Booth at Platform No. 1 of Tatanagar Railway Station, was allotted to and at present is being run by Sri Bipin Kumar Tiwary, who is physically handicapped person. Both the petitioners are women and are not claiming reservation as physically handicapped. According to Clause -5.4 of the policy decision, contained in Commercial Circular No. 24, in the event of vacancy on account of expiry of contracts or termination of contracts etc., the booth has to be allotted to a person belonging to the same category for which the vacancy has arisen. According to the respondents, the vacancy has to arise on expiry of the contractual period of said Sri Bipin Kumar Tiwary, who is a physically handicapped person and, as such, the said Booth has been reserved for physically handicapped person. The petitioners, who are not physically handicapped, cannot claim any right and complain discrimination. The petitioners were the applicants against earlier tender notice, which has already been cancelled. Since the Booth is to be allotted after the expiry of the contract of the physically handicapped person, the same has to be allotted to the person of the same category.;