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Judgment
B.S. Patil
In this writ petition, petitioner is calling in question the order dated 13.04.2011 passed by respondent No. 1, whereby the contract awarded In favour of respondent No.2 for the supply and erection CCTV based security systems, is set aside and a direction is issued to respondent No.3 to initiate action to call for fresh tenders.
Facts relevant for the purpose of this case are, that respondent No.3 called for tenders for installing CCTV based security systems at various locations in Bangalore city vide notification dated 11.05.2009. 44 tenderers submitted applications in the prescribed form, out of whom only four were shortlisted. The tenders were farther shortlisted to the petitioner and respondent No.2, It is necessary to notice that M/s. Zicom Ltd., who had participated in the tender process has been later on taken over by respondent No.2 and that is how respondent No.2 presented the appeal before respondent No. 1 - Appellate Authority.
The tender called for, as already stated above, was for CCTV based security systems for the city of Bangalore. The technical bids of the petitioner and that of respondent No.2 were opened and technical evaluation was conducted. Thereafter, the report of the technical committee was placed before the Steering Committee of respondent No.3 comprising of six persons including the Chairman & Managing Director of respondent No.3. The committee also consisted of a technical member by name Mr. Vinod Tiwari and an external expert by name Mr. K.R.Ramakrishna, Professor, Indian Institute of Science, Bangalore.
In its meeting held on 04.10.2010, as is clear from the minutes of the meeting produced at Annexurs-D, the Steering Committee had the opportunity of having the presentation of the detailed techno administrative report of the two shortlisted firms viz., petitioner and respondent No.2. It was noticed that the products of the two firms differed greatly in terms of quality and technical features. The minutes of the meeting produced at Annexure D disclose that quality-wise, petitioner was graded higher than respondent No. 2, in that, petitioner was awarded 83 marks, whereas respondent. No. 2 was awarded 44 marks. On. deliberations, it was decided that top quality in security related equipment, like CCTV was the need of the hour and therefore, the same had to be balanced with cost considerations. Hence, it was decided to proceed with final selection on the basis of judicial mix of technical and commercial evaluations in tune with the tender document. Accordingly, the committee decided that for the purpose of selection 50% weightage should be given for technical evaluation and 50% weightage for commercial evaluation. It was decided in the said meeting that the committee should not proceed only by considering costs on commercial evaluation. It was decided in the said meeting that the committee should proceed not only for initial purchase of equipment, but also the subsequent operation and maintenance of equipments for many years. Thus, the committee decided that the recurring cost of operation and maintenance should also be taken note of by normalization so as to enable effective comparison.
Upon techno commercial evaluation, based on a combined weightage with 50% for technical evaluation and 50% for commercial evaluation, the committee has proceeded to award normalized marks for both technical and commercial evaluation for the purpose of comparison of the tenders of both the petitioner and respondent No.2. The same is appended to the minutes of the meeting dated 04.10.2010 which is produced along with the writ petition at Annexure-D. As can be seen from the same, in respect of technical evaluation, the normalized marks awarded to the petitioner is in the order of 83 out of 100. whereas in respect of respondent No.2, the marks awarded is 53 out of 100.
As regards the commercial evaluation, based on the tenders submitted for main system and DRC (Disaster Recovery Centre) System, the commercial evaluation is made and the marks assigned after normalization disclose that ''respondent. No.2 was awarded 100 marks, whereas petitioner was awarded 79 marks. The total marks awarded after considering both technical and commercial evaluation, to the petitioner and respondent No.2 as can be seen from the techno commercial evaluation made on the basis of normalized marks discloses that the petitioner was awarded 179 marks, whereas respondent No.2 was awarded 153 marks. The details of the exercise done is also forthcoming from the commercial, evaluation summary and as also the technical evaluation of the two shortlisted firms made which is appended in a tabular form to the minutes produced at Annexure-D.
Yet another aspect which is required to be noticed from the minutes of the meeting dated 04.10.2010 is that the committee opined that M/s. Zicom Ltd., had not specified the model number of different equipments in their commercial bid and therefore it was impossible to exercise any kind of quality control checks at the time of procurement and that due to such serious omission, the whole commercial bid submitted was liable to be rejected. Despite the same, the techno commercial evaluation of both shortlisted firms was made and marks were awarded as stated above for the. purpose of preferring their respective claims in order to award the contract.
In the subsequent meeting held on 12.11.2010, the committee consisting of six members met to decide and deliberate the matter. Taking note of the technical and commercial evaluation made, the committee found that Zicom''s cost was much lower than the cost of the petitioner. However, the financial bid of Zicom was found to be defective as it had not specified the model number of different equipments and hence it was not possible to exercise any kind of quality control checks at the time of procurement, due to which the bid of Zicom was liable to be rejected. Inspite of the same, for the purpose of comparing technical evaluation and commercial evaluation and to arrive at the total evaluation based on normalized marks, the Committee proceeded to consider the matter and came to the conclusion that, the petitioner was the lowest bidder and therefore it should be invited for negotiation.
It is also necessary to notice from the minutes of the meeting held on 12.11.2010 of the Steering Committee produced at Annexure-E, that the technical member informed to the committee that in respect of tenders of Haryana police and that of Delhi, the selection was done with 70% marks earmarked for technical evaluation and 30% for commercial evaluation. It was in this, background that the committee decided to award the contract to the petitioner, Keeping in mind the quality and the fact that they emerged as lowest bidders in the process of evaluation of both technical and commercial evaluations. However, the committee decided to have vigorous negotiation with the lowest bidder keeping in mind the cost factor.
This was followed by negotiation that took place in the meeting held on 22.11.2010 in the presence of the members of the Steeling Committee. As is clear from the minutes of this meeting produced at Annexure-F, intense negotiations took place, whereupon the petitioner agreed to give total concession of Rs.4.5 Crores. The Committee noted that the overall system consisted of two parts, Basic System and DRC System. It also noticed that all the items of basic system were essential and not curtailable, whereas the DRC system although desirable could be deferred to phase 2. Thus, the decision to place orders with the petitioner only for the basic system was taken in the meeting held on 22.11.2010. Thereafter, an agreement was entered into with the petitioner on 07.12.2010, copy of which is produced, at Annexure-G.
Aggrieved by the award of contract in favour of the petitioner, respondent No.2 approached this Court by filing W.P.No.40534/2010. The said writ petition was withdrawn on 16.12.2010 with liberty to file an appeal before the Appellate Authority and also with an observation that it was open to respondent. No.2. herein to ask for the relevant records before the concerned authority and if such a prayer is made, the relevant records shall be furnished to respondent No. 2 herein so as to enable it to submit them before the Appellate Authority. Thereafter, an appeal was preferred before respondent No. 1 and on consideration of the various contentions urged by respondent No.2 herein and the objections raised by the petitioner and as also of respondent No. 3 herein - procuring authority, the Appellate Authority has passed the impugned order allowing the appeal and canceling the contract awarded in favour of the petitioner. Aggrieved by the same, the present writ petition is filed.
Mr. Aditya Sondhi, learned Counsel for the petitioner has contended that the impugned order suffers from apparent illegality and manifest error, in as. much as having come to the conclusion that the technical evaluation made by the expert committee cannot be re-examined by sitting in judgment over the evaluation, the Appellate Authority has erroneously proceeded on the basis of the alleged ambiguity in the technical specifications, without in any manner referring or stating as to what were those ambiguities. According to him, there were no such ambiguities in the technical specifications nor was it the grievance made by respondent No. 2 in that regard at any stage of the proceedings. His further contention in that, had there been any such ambiguity, the same could have been challenged by respondent No.2.
His next contention is, respondent No.1 not being a technical person, was only required to examine the illegality, if any, committee in the process of award of tender with reference to the provisions contained under the Karnataka Transparency in Public Procurements Act, 1999 and the Rules framed thereunder, whereas the Appellate Authority has exceeded its jurisdiction in recording findings which were beyond the scope of the appeal presented before it. Emphasizing on the public importance of the project which had taken considerable time and the importance given to the technical specifications and the quality of the product of the petitioner, he has contended that the evaluation made by the technical experts could not have been interfered with by the appellate authority, merely on the ground that the tender papers submitted by the petitioner did not bear signature on each of the pages. He points that as per Rule 19 of the Karnataka Transparency in Public Procurements Rules, 2000, the stipulated procedure has been followed and the signatures of the tenderers present has been obtained on the minutes of the tender which tantamounts to full and complete compliance of the procedure prescribed and even if the petitioner had omitted to put his signature on some of the pages of the commercial bid, the same will not go to the root of the case and will not in any manner vitiate the decision taken by the Steering Committee. He further points out in this connection that this has not in any manner prejudiced the case of respondent No.2. He also claims, by referring to Annexure-J produced along with the writ petition that the last page of the minutes drawn by the committee to which the signatures or the petitioner, respondent No.2 and some of the members of the committee that the nature of the commercial bid and the amount for which both the petitioner and respondent No.2 had submitted the bids has been clearly reflected. Therefore, the contends that the finding recorded, by the Appellate Authority that the signatures of the parties were not taken on the commercial bids is of no consequence and cannot invalidate the contract, awarded, as there is no violation of the procedure prescribed under the Rules.
He further urges that, the process of normalization of the marks while weighing the same for technical and commercial evaluation is not urged as a ground in the appeal memo and nothing is made out to show as to how the said process has prejudiced respondent No.2. In the absence of the same, it is urged that the Appellate Authority was in grave error in canceling the contract awarded.
Learned Counsel for the petitioner is. critical of the approach of the Appellate Authority in. making certain general observations with regard to the process of determining the specifications for evaluation, of tenders and stating that evaluation of tenders was gone through in a mechanical manner when the system involved was sensitive issue. He contends that the'' exercise undertaken by the. Appellate Authority in commenting about the process adopted and the technical specifications provided is outside the scope of appeal and the Appellate Authority was required to confine the consideration of the grievance of respondent No.2 based on the grounds urged in the appeal memo and not by embarking upon the matter as a public interest dispute. With regard to the nature of scrutiny that the Appellate Authority is required to make and the scope of the powers of the Appellate Authority, learned Counsel has placed reliance on the following judgments:
(i) Siemens Public Communication Networks Private Limited & Another vs Union of India & Others - (2008) 16 SCC 215; and
(ii) Tata Cellular Vs. Union of India, .
Mr. Shashikiran Shetty, learned Counsel appearing for respondent No.2 has supported the order passed by the Appellate Authority and has strenuously canvassed that respondent No.2 had filed an application for amendment of the appeal memo and also the relief sought before the Appellate Authority, wherein he had pointed out that though certain important documents were sought for from the tender accepting authority, those documents were not furnished to respondent No.2, which has prejudically affected it in prosecuting the remedy both before the Appellate Authority and before this Court. He also points out that the observation made by the Steering Committee in its minutes stating that respondent. No.2 did not conform to the specifications as they had only specified the make, and not the model is wrong According to him, respondent No.2 had in fact specified all the details in consonance with, the tender requirement. He further contends that respondent No.2 had rich experience in the field as it had suppliea similar instruments to the Bangalore police earlier and also in different places. He invites the attention of the court to the work done certificate issued by the Assistant Commissioner of Police which is produced along with the statement of objections. He also points out that the observation made in the minutes of the meeting of the steering committee stating that respondent No. 2 had failed to complete some of the work assigned to it at Chandigarh is based on a document: that was obtained in great hurry only for the purpose of excluding the claim made by respondent No.2. He submits that the comparative analysis made by the committee and assigning normalized marks and the methodology was not contemplated by the authority as per the notification issued calling for tenders. He has further contended that the contract has been awarded for a joint venture of the petitioner with one M/s. Orad Ltd., which is illegal. Placing reliance on the judgment of the Apex Court in the case of Syed Yakoob Vs. K.S. Radhakrishnan and Others, He contends that this Court in exercise of the writ jurisdiction cannot examine the sufficiency of evidence based on which the Appellate Authority recorded its finding and even if another view is possible based on the material produced, this Court will not in exercise of the writ jurisdiction upset the findings recorded by the Appellate Court. He has placed reliance on the judgment in the ease of Ashok Kumar and Others Vs. Sita Ram, to contend that the findings of fact ought not to be interfered with by this Court in exercise of writ jurisdiction unless the court is satisfied that the finding is vitiated by manifest error of law and is perverse.
Learned Counsel appearing for respondent Nos. 3 & 4 has made available the records and has contended that, the respondent No.2 contrary to the required specification of mentioning the model numbers has only mentioned the make while submitting the commercial bid. He has urged that the grievance made by respondent No.2. regarding non-communication of the rejection of the bid of the respondent No.2 is untenable in law as no such legal requirement is envisaged u/s 13 of the Act to communicate the rejection. Drawing the attention, of the Court to the minutes of the meeting held on 04.10.2010 vide Annexure-D, he contends that six officers including an expert from outside had participated in the meeting of the Steering Committee for evolving the methodology and also to take up detailed techno administrative evaluation of the two shortlisted firms.
Upon careful consideration of the entire materials on record, the point that arises for consideration is.
whether the Appellate Authority has committed any illegality that warrants interference by this Court in exercise of the writ jurisdiction?
As can be seen from the impugned order passed by the Appellate Authority, a finding is recorded holding that the decision taken by the experts viz., the Technical Committee having as one of its members a Professor in the Indian Institute of Science - one of the most premiere institutions of science and higher learning in the entire country, the evaluation made by the Technical Committee could not be interfered with". The Appellate Authority has also found that, there was no bias or mala fides urged against the members of the Technical Evaluation Committee and that there was no arbitrary exercise of power. Therefore, it would not like to sit in judgment over the evaluation made by the technical Evaluation Committee.
However, while considering the issue pertaining to the commercial bid of the parties, it has referred to the commercial bid that, consists of three parts viz., equipment costs, bandwidth costs and annual maintenance costs and makes reference to the fact that the bid of respondent No.2 was with regard to wired connectivity while that of the petitioner pertained to wireless connectivity with purchase of a separate equipment costing about Rs.9.23 Crores. The Appellate Authority has come to the conclusion that respondent No.3 failed to finalize in unambiguous terms on the technology aspect; and in addition they had also not: clearly mentioned about the terms of payment to the tenderers, the result of which had been that the two tenderers of different technologies having differing streams of payment fell for comparison and to a great extent this approach resulted in confusion and rendered the process of comparison between the two tenders very problematic. Furthermore, in the opinion of the Appellate Authority, the methodology of comparison of the two commercial bids on the basis of reducing to net present value or normalization or assigning salvage value should have been made clear before opening of the tender. It is also commented by the Appellate Authority that the commercial bid of respondent No.2 did not bear the signature of the representative of the appellant (writ petitioner), whereas the commercial bid of the appellant bore the signature of the representative of respondent No.2 which was a material and important defect. It is also pointed out that without informing the parties about the method of calculation, i.e., normalization method and salvage cost, the tender accepting committee has gone about making calculations for the purpose of comparison, of the two bids. The Appellate Authority has concluded by stating that the best course of action was to crystallize in unambiguous terms the technical specification of the system to be put in place and then go in for tenders from the intending suppliers so as to make the tenders amenable to easy and unambiguous comparison in a transparent manner and therefore, the tender inviting authority had to re-do the exercise of finalizing the specification and then call for tenders.
It is clear from the above observations of the Appellate Authority that in its conclusion the terms of the technical specification of the system to be put in place as notified in the tender notification were ambiguous and therefore not amenable to easy and unambiguous comparison and hence respondent No.3 herein had to re-examine the technical specifications and then call for tenders afresh in such a way as to give no scope for ambiguity both on technical and commercial aspects.
As rightly contended by the learned Counsel for the petitioner, the question regarding the technical specifications of the products required to be supplied and the service required to be rendered by the tenderers was not the subject matter of the appeal, The Appellate Authority does not have the technical expertise to come to the conclusion that the technical specification notified in the terms and conditions of the tender were ambiguous and required clarity. If there was any confusion in the terms and conditions, the participants would have got them clarified or they would have challenged such ambiguous terms'' of the technical specifications. In the absence of any such grievance made, the Appellate Authority has travelled beyond the scope of its authority In holding that there was ambiguity in the terms of the technical specification and therefore, fresh tender was required to be called by specifying clear and unambiguous technical specifications.
It is also necessary to notice here that the objectives of the project undertaken for the purpose of securing installation of a robust and effective surveillance system in Bangalore; city through, CC TV system for monitoring sensitive locations and junctions from security point of view emphasizes Live monitoring of activities keeping in view (i) the security, crime prevention and detection; (ii) to record the movements of vehicles and public at specific locations for future planning/actions; (iii) to'' create a central command and control centre; (iv) immediate incident detection and effective management of police response; (v) support and integration with the existing systems; and (vi) identification of disaster/emergencies and response thereon. The scope of the work, the functional requirement, the terms and conditions, the general instructions to the firms and more particularly the evaluation of the bids are mentioned in the tender conditions and instructions. Clause-II(A) which contains INSTRUCTIONS TO FIRM, provides beneath Clause 1.5 as under:
1.5 ''firm'' shall not be permitted to alter or modify their bids after expiry of the deadline for receipt of bids.
Due weightage shall be given to the Technical Bid (System Design/Architecture., quality of equipments, addon features etc) as well as Commercial Bid. Hence, price is not the sole criteria for evaluation. Due weightage shall also be given to factors like imparting training and knowledge transfer to Karnataka State Police, on site project management plans, availability of manufacturing units/Service Centers etc., within the country. The presentation, product demonstration, reputation & experience of the Lead Member/consortium partners/JV Partners/OEMs etc., shall also get due weightage in the overall technical assessment. KSPHC''s assessment shall be final in this regard and such assessment shall not be open for discussion etc.
Clause 1.7 provides that, ''the KSPHC (respondent No.3 -Tender Procuring Authority), after deciding the best solution and system, at its sole discretion may decide to negotiate with the firm whose solution has been found to be the most suitable on technical and commercial parameters..........
Clause 8 of the Instructions reads as under:
Evaluation of the Bids
The Technical Bids will be opened first and evaluated for compliance with KSPHC/user department''s requirements. The ''firm'' who qualifies in the evaluation will be graded in order of-merit and financial evaluation of their bids shall commence thereafter. On the basis of technical and financial assessment and evaluation, all the offers shall be put in an order of overall suitability. This shall be the sole discretion of KSPHC and it shall not be open for discussion.
At the end of Clause 8 it is clearly stated that if the firm for any reason entertains any doubt about the meaning of anything contained in the invitation to tender or other details, the firm shall seek clarification from the Chief Project Coordinator of respondent No.3 before the last date of submission of his tender and that, such clarification given together with all details on which the clarification had been sought would be copied to all firms.
It is therefore clear from the above that the technical parameters are to the requirement of the procuring authority keeping in mind the nature and significance of the project and they have been made known to the tenderers with a clear instruction that any doubt about the meaning of anything contained in the invitation shall be got clarified from the Chief Project Coordinator. It is not the ease of respondent No.2 that it had entertained any such doubt regarding the technical specification and had therefore sought, some clarification which was not met by the Tender Procuring Authority. On the other hand, it has participated in the tender process without any objection in this regard at any point of time. Therefore, the Appellate Authority committed an apparent error in entering into a realm which was totally outside the scope of the appeal before him.
In so far as the findings recorded about the method of assigning normalized marks, it is clear from the minutes of the meeting of the Steering Committee held on 04.10.2010 produced at Annexure-D that a detailed techno-administrative report had been submitted by the Chief Project Coordinator and the External Technical Expert. The Committee took note of the fact that the report given was a detailed one and gave point by point evaluation based on reasons and facts thereby grading the two firms. It has to be clearly noticed here that the committee noted that the products of the two firms greatly differed in terms of quality and technical features. As per the expert''s report, the quality of the petitioner was numbered as Quality No. 1 assigning 83 marks, ''whereas that of respondent No.2 was numbered as Quality No.2 assigning 44 marks. Emphasis was laid on the top quality having regard to the security related equipments like CCTV. The committee further decided to do the final selection on the basis of judicial mix of technical and commercial evaluations by assigning 50% weightage to technical evaluation and 50% for commercial evaluation. As the commercial tender not only dealt with initial purchase of equipments but also the subsequent: operation and maintenance of the same for many years, it was decided that the two costs should be normalized so as to enable comparison. This decision to normalize the two costs has been taken in the meeting held on 04.10.2010 which is prior to the date on which the commercial bids of the two shortlisted firms are opened on 06.10.2010. No fault can be found in the methodology adopted by the Steering Committee in this process. The Appellate Authority has erroneously found that the adoption of such methodology ought to have been notified well in advance. In fact, it has proceeded on the wrong assumption that the method was not adopted prior to the opening of the lenders.
Moreover, how the decision of normalization, has prejudiced respondent No.2 is not dealt with by the Appellate Authority. On the basis of the marks allotted based on the process of normalization, it is seen that for technical evaluation respondent No.2 is awarded 53 marks, whereas petitioner is awarded 100 marks. Similarly, as regards commercial evaluation, respondent No.2 is awarded 100 marks, whereas petitioner is awarded 79 marks. The total marks awarded both in techno-commercial evaluation to respondent No.2 is 153 as against 179 awarded to the petitioner.
In so far as the salvage value for wireless transmission equipments considered at 1/3rd value at the total cost accruing at the close of 10th year, it is necessary to notice that the petitioner has come forward to provide wireless connectivity, whereas respondent No.2 offered to provide wired connectivity. Therefore, it was noticed that the products of the two firms differed greatly in terms of quality and technical features. Keeping in mind this diversity, the salvage value for wireless transmission equipment has been considered at 1/3rd value at the total cost accruing at the cost of 10th year. (15 years upgraded equipment life) as can be seen from the note appended to the Techno-commercial. evaluation.
Similarly, I do not find any force in the contention of the learned Counsel for respondent No. 2 that the action of the committee in excluding the cost of site visit and training stated by the petitioner at Rs.47 lakh from computation was illegal on the ground that respondent No.2 had not included in their commercial bid cost of site visit and cost of training. The argument canvassed stating that while respondent No.2 was not charging for site visit and training, whereas petitioner was charging Rs.47 lakh and therefore, the same ought not to have been excluded, even if accepted, the same will not make any difference in the ultimate analysis as respondent No.2 is given 100 marks in so far as commercial evaluation is concerned. This exclusion also does not alter respondent No.2''s position in the grading or allocation of marks.
More importantly, the committee has noted that respondent No. 2 failed to specify the model number of different equipments in their commercial bid which was a serious defect in its bid, in as much as it would be impossible to exercise quality control checks at the time of procurement in the absence of specification of the model number of different equipments. Considerable argument was advanced on this aspect of the matter by the learned Counsel for respondent No. 2 contending that model numbers were indeed mentioned. But, on perusal of the commercial bids of both parties from the original records, it is clear that with regard to important instruments such as outdoor/cameras fixed cameras, weather proof remote pole mount enclosures, illuminators, the commercial bid of respondent No.2 does not contain the model number. Therefore, it cannot be said that the committee committed illegality in-making a note that the commercial bid of respondent No.2, in the absence of model numbers furnished made it impossible to exercise quality control checks while procuring the products. The Appellate Authority, in my considered view, seriously erred in observing that if that were to be the defect, the bid ought to have been rejected and having not rejected the bid of respondent No.2, and proceeded to compare the commercial bid of both the tenderers, it could not have made such observation.
The scope of the appellate power vested with respondent No. 1 is to find out whether the action of the committee in selecting the petitioner for award of contract is vitiated, on account of arbitrary, unreasonable or mala fide exercise of power or clue to any other illegalities committed. The findings recorded in the impugned order do not disclose any such illegalities committed by the committee.
Even as regards the absence of signatures of both the parties on the commercial bids of the petitioner, having found that there was no deliberate attempt. on the part of respondent No. 1 or mala fide intention, the conclusion reached holding that the procedure of getting She signature of both the contending parties on both the tenders had not been followed and therefore the defect was an important and material defect is untenable and is not supported by any legal requirement prescribed in the Act and the Rules or in the tender conditions for obtaining such signatures. In any event, as rightly contended by the learned Counsel for the petitioner, in the first and the last page of the commercial bid of the petitioner, the signatures of both parties and the officers concerned are found and therefore, the Appellate Authority was not right and justified in cancelling the order passed by respondent No.3 accepting the bid of the petitioner.
It has to be also noticed that respondent No.3 haying put in serious effort for the last nearly l1/2 years in preparing the ground work for procuring the top class, technically well suited CCTV installation for surveillance in Bangalore city, had succeeded in selecting a firm after subjecting it to rigorous technical evaluation and hard bargaining. In fact, the process of bargaining undertaken by the committee to reduce the price is forthcoming from the minutes of the meeting dated 22.11.2010 which is produced at Annexure-F. The impugned order now passed unjustifiably delay the whole project, which is regarded as very important and urgent from the security perspective.
Reliance placed by the learned Counsel for respondent No.2 on various judgments regarding the scope of the power of the Appellate Authority and the limited jurisdiction of judicial review of such decision by referring to the judgments in the case of Syed Yakoob Vs. K.S. Radhakrishnan and Others, and in the case of Ashok Kumar and Others Vs. Sita Ram, , will not come to the help of respondent. No.2 as the facts of the present: case in view of my findings recorded above are totally different. The facts involved in the each of the cases relied upon by respondent No.2 and the law laid down therein are totally different and have no application to the questions considered in the present case. Therefore, it is unnecessary to refer to each one of them.
In the result, the writ petition is allowed. The impugned order passed by the Appellate Authority is set aside. No costs.