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Judgment
A.S. Bopanna, J—The petitioner is before this Court assailing the order dated 12.02.2015 impugned at Annexure-M to the petition. The petitioner is also seeking that a direction be issued to declare that the petitioner is entitled to execute the works under the contract dated 02.01.2013 for a period of three years with a further extension of two years in terms of the condition of the tender issued by the first respondent.
The petitioner had responded to the notification as at Annexure-A to the petition for establishing Mass Transformer Repair Centre for carrying out mass repairs as indicated therein. The fact that the petitioner was the successful bidder in respect of the work which is the subject matter of the instant petition is not in dispute.
The case of the petitioner is that though the work was initially entrusted for a period of one year, the same was to be extended which would initially be for a period of three years and thereafter on further extension for two more years. The total period in any event would be for a period of five years. The contract in that regard was also entered into and the work had been performed by the petitioner. On completion of the initial period of one year, the respondents by the official memorandum dated 05.12.2013 had extended the contract for a period of one year from 11.12.2013 to 10.12.2014. The said period was however reduced by the Board through the amendment dated 06.02.2014. The petitioner claiming to be aggrieved by the same had filed an appeal before the Appellate Authority in Appeal No. EN:39EEB: 2014-07-21. The Appellate Authority had set aside the order dated 21.07.2014 restricting the contract for six months due to which the petitioner was permitted to continue the same for a period of one year.
The further extension thereafter is the issue which arises for consideration herein. Since the request made by the petitioner had not been considered, the petitioner was before this Court in W.P. No. 56814/2014. This Court by the order dated 18.12.2014 had disposed of the petition with a direction to the respondents to consider the request made by the petitioner through their representation and pass orders thereon in an expeditious manner. It is pursuant to such direction issued by this Court, the order dated 12.02.2015 is passed whereby the request of the petitioner has not been considered favorably and the representation of the petitioner has been rejected. The said order is impugned at Annexure-M to the petition.
The respondents have filed the objection statement seeking to sustain their action. Apart from contending that the initial contract itself provided only for one year, it is also contended that the failure rate in carrying out the work was also a consideration made to come to the conclusion that the extension cannot be granted to the petitioner. The petitioner in that view has filed the rejoinder to point out that the failure rate with regard to the carrying out of the work as contended is not justified and it is also brought out to indicate that the other contractors who have been allotted similar work though have performed badly as compared to the petitioner, they have been granted the extension and therefore, such discrimination cannot be accepted.
Heard the learned senior counsel for the petitioner and the learned counsel for the respondents and perused the petition papers.
Though a contention is urged on behalf of the respondents that the contract is only for a period of one year as provided in the tender notification and also the letter of intent dated 11.12.2010, a perusal of the same would indicate that the extension is to be considered in any event against the initial period of one year. The amendment (Annexure-B) indicates the validity of Rate contract for a period of 3 years and if found necessary, further extension of 2 more years at the discretion of BESCOM. It is not in dispute that the contract of the petitioner has been extended for a period of one year, thereafter up to 10.12.2014. In that light, if the initial period is taken, the period of three years has not yet lapsed. The question is also as to whether subsequent to that period, further extension is required. While taking note of the contentions in this regard, what would also become relevant is that in respect of the similar nature of work, certain other contractors have been assigned the work and their contract has been continued beyond the initial period indicated and also after the initial extension that had been made.
If that be the position, the question would be as to whether the petitioner could be discriminated upon. On that aspect, the learned senior counsel for the petitioner has relied on the decision of the Hon''ble Supreme Court in the case of M/s. Jain Exports Pvt. Ltd. and another Vs. Union of India and others, AIR 1991 SC 1721 : (2000) 120 ELT 34 : (1992) 1 SCALE 7 : (1991) 1 SCALE 51 . On the legal aspect, there can be no dispute whatsoever that if the contractors are similarly placed, there can be no discrimination whatsoever.
Insofar as first aspect, since the contract in respect of other contractors who are undertaking similar work had been extended, the denial of similar benefit to the petitioner would not be justified if they are similarly situated. The only other question that would arise to come to the conclusion as to whether the petitioner could be considered as similarly placed as that of those contractors or as to whether the petitioner is better placed than them as contended by the learned senior counsel.
It would be appropriate to take note of the contentions relating to the performance of the petitioner as against the performance of the said contractors. Since, such contention has been urged in the objection statement of the respondents, it has been replied to by the rejoinder statement of the petitioner. In fact the petitioner along with the writ petition itself had produced the performance certificate at Annexure-Q series to point out that the failure rate in rural areas relating to the petitioner was only to the extent of 3.77%, 3.36% and 3.76% respectively. If in that light the statement which has been produced along with the rejoinder to indicate the failure rate of other contractor as at Annexure-W is perused, the failure rate in similar areas is 9%, 5.86%, 7.20% and 5.71% respectively. If in that light a comparison is made, the failure rate of the petitioner is lesser than similar contractors who have been given the extension of the work for the said period. In addition, a reference to the document produced by the respondents themselves at Annexure-R1 wherein the failure rate has been indicated though for the subsequent period, a higher rate of failure in respect of the petitioner has been indicated therein, but the same relates to the rural areas and in the respect of other urban areas the failure rate is 0%. Even in the respect of the rural areas, the failure rate as has been indicated in Annexure-W relating to another contractor and that of the petitioner does not vary much.
If that be the position, the consideration that has been made by the respondents at present through the order at Annexure-M on the ground that the extension of the period for which the work had been granted under the contract was only for a period of one year and therefore the extension cannot be considered would not be justified.
Hence, the communication impugned at Annexure-M dated 12.02.2015 stands quashed. The respondents are directed take note of the observations made herein relating to the manner in which the contract had been extended in respect of the similarly placed contractors and thereafter take a fresh decision with regard to the extension of the contract that is sought for by the petitioner. Until such decision is taken, the work being performed by the petitioner in view of the interim order granted by this Court shall be continued to be performed without any hindrance.
The petition is accordingly disposed of.