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TMI Blog2011 (2) TMI 1530X X X X Extracts X X X X X X X X Extracts X X X X ..... ed on the same day in the office of the respondent No.5, but the respondent No.5 after opening did not prepare any comparative statement (CS). However, from the office of the respondent No.5 the writ petitioner firm gathered the information that his bid to the extent of ₹ 3,12,012/- was found to be the highest in the process. Be that as it may, the petitioner's firm did not receive any communication in the intervening period till 04.07.2011 from the date of opening of the tender. On 04.07.2011 the Divisional Railway Manager, Lumding, by letter under No.C/442/SLR-VPU/Leasing/10-17 dated 04.07.2011 (Annexure-2 to the writ petition) communicated that the tender has been discharged but no reason whatsoever was assigned in the said letter desperately. The petitioner's firm requested for disclosure of information why the tender was discharged so unceremoniously when the petitioner's firm was found to be the highest bidder. Ultimately by a letter dated 22.07.2011 the Public Information Officer, N.F. Railway HQ under No.NFR/RTI Cell/2011/2015 dated 25.07.2011 (Annexure-5 to the writ petition), informed the writ petitioner firm that the information as sought for be only tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner failed to make any case which warrants adjudication of this Court. The railway respondents produced the records relating to the tender in question and it appears from the note of CCM dated 18.05.2011 as under: Para 99 of the proposed agreement appears to be in variance with the para 20 of the Amendment to Freight Marketing Circular No.12 of 2006, issued on 09.02.2010. The Board circular insists that in case of violation of this provision, the lease contract will be cancelled. But the agreement provides, "in addition to this, his registration may also be cancelled depending upon the seriousness of the offence and if excess weight is detected to have been loaded in the leased Brake Van, the leaseholder shall be penalized". This need be checked whether the agreement has been properly vetted by Finance and legal branch of the division and/or the headquarters. It also further appears from the records that the tabulation sheet was prepared and in the said the petitioner's firm was found highest bidder in the said tender process. WP(C) No.4668/2011 6. The writ petitioner firm is a registered leaseholder with the railway respondents. In response to the tender notice No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be attached along with such tender. The penal clause as mandated for operation of the lease in question having not been incorporated with, the tender was decided to be discharged. The discharge of the tender was final and fresh tender process was being contemplated. They have also resorted to the clause 9 of the tender notification under No.CM/SLR/VPU/TSK/09 dated 12.07.2011, where it has been provided that the railway administration reserves the right to cancel/withdraw any train from bidding even in last minute without assigning any reason whatsoever. Since the procedural lapses had been noticed, the railway respondents were within the authority to discharge the same and no prejudice has been caused to the writ petitioner firm giving rise to a cause of action in filing the writ petition. From the records as presented related to the tender process, it is found that some complaints were received by the railway respondents that some of the aspiring tenderers were resisted from participation in the tender process. But for the discharge, only non-incorporation of the penal clause (as executed in CCM's note dated 18.05.2011 herein above) was alone considered. 8. The common que ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... embers of a public service who are entitled to just and reasonable treatment by reason of protections conferred upon them by Articles 14 and 16 of the Constitution, which are available to them throughout their service, it was incumbent on the Selection Committee to have stated reasons in a manner which would disclose how the record of each officer superseded stood in relation to records of others who were to be preferred, particularly as this is practically the only remaining visible safeguard against possible injustice and arbitrariness, in making selections. If that had been done, facts on service records of officers considered by the Selection Committee would have been correlated to the conclusions reached. Reasons are the links between the materials on which certain conclusions are based and the actual conclusions. They disclose how the mind is applied to the subject matter for a decision whether it is purely administrative or quasi-judicial. They should reveal a rational nexus between the facts considered and the conclusions reached. Only in this way can opinions or decisions recorded be shown to be manifestly just and reasonable. 12. Another larger bench decision in Mohinder ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ands with reference to his offer. What this court said in State of U.P. V. Raj Narain may be usefully recalled here: "In a government of responsibility like ours, where all the agents of the public must be responsible for their conduct, there can be but few secrets. The people of this country have a right to know every public act, everything that is done in a public way, by their public functionaries. They are entitled to know the particulars of every public transaction in all its bearing. The right to know, which is derived from the concept of freedom of speech, though not absolute, is a factor which should make one wary, when secrecy is claimed for transactions which can, at any rate, have no repercussion on public security. To cover with veil of secrecy, the common routine business, is not in the interest of the public." 10. In recent times, judicial review of administrative action has become expansive and is becoming wider day by day. The traditional limitations have been vanishing and the sphere of judicial scrutiny is being expanded. State activity too is becoming fast pervasive. As the State has descended into the commercial field and giant public sector undertakings hav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een disclosed in the affidavit-in-opposition referred the note in the relevant files and as such those decisions as regard to the absence of reasons in public action cannot be stated to have any bearing in the factual matrix of the writ petitions. As such the writ petitions are liable to be dismissed. 17. In Union of India & ors. Vs. Dinesh Engineering Corporation & anr. as reported in (2001)8 SCC 491, the Apex Court in paragraph 15 held that coming to the second question involved in these appeals, namely, the rejection of the tender of the writ petitioner, it was argued on behalf of the appellants that the Railways under clause 16 of the Guidelines was entitled to reject any tender offer without assigning any reasons and it also has the power to accept or not to accept the lowest offer. In paragraph 16 of the said report it has been laid down that "………a public authority even in contractual matters should not have unfettered discretion and in contracts having commercial element even though some extra discretion is to be conceded in such authorities, they are bound to follow the norms recognized by courts while dealing with public property. This requirement is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Such exposition no doubt has severely prejudiced the writ petitioner, if those are not acted upon for purpose of settlement of the tender. On aggregate consideration of the fact and law as stated, this Court is strongly persuaded to interfere with the decision of discharging the tender. As such the decision contained in the communication dated 04.07.2011 (Annexure-2 of WP(C) No.4489/2011) and letter dated 29.08.2011 (Annexure-P10 of WP(C) No.4668/2011) is set aside. But it is made clear that if the highest bidders i.e. the writ petitioners' firms undertake to accept the non-incorporated clause (as executed in the CCM's note dated 18.05.2011), which could not be made part of the tender, the railway respondents shall consider their highest bid for acceptance. If the writ petitioners are ready to undertake that they would abide by the said non-incorporated clause, they shall furnish an undertaking in writing to the tendering authority within a period of 7(seven) days from this day and the tendering authority i.e. the railway respondents shall determine the tender within 15 days from the date of receipt of the said undertaking. 21. With the above observations and directions ..... X X X X Extracts X X X X X X X X Extracts X X X X
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