JUDGMENT

AFTAB ALAM, J.

Leave granted in both the matters.

2. These two appeals, taken together for the sake of convenience, question the validity of two different clauses in the eligibility criteria in a Notice Inviting Tenders (NIT), issued by the respondent-Orissa Mining Corporation Limited (hereinafter referred to as the Corporation). The appellants in the two appeals make a grievance that the two clauses were designed to exclude them from consideration. They first went to the High Court of Orissa challenging the validity of the clauses and the rejection of their respective tenders on that basis. M/s. S.S. & Company challenged the validity of Clause 8(i) of the NIT in W.P.(C) No.7001/2007, (giving rise to SLP (C) No.12003/2007). M/s.Faridabad Gurgaon Minerals challenged Clause 8(vii) of the NIT in W.P. (C) No.7002/2007, (giving rise to SLP (C) No.12008/2007). A Division Bench of the High Court by separate judgments, dated July 12, 2007 dismissed both the writ petitions. The judgments of the High Court are brought in appeal before this Court.

3. The appellants in each of the two appeals are proprietorship firms owned and controlled by a father and son duo and the controversy in the two cases relates to the grant of contract for raising, calibration and transport of iron ores at Daitari Iron Ore Mines of the respondent-Corporation.

4. The Corporation issued NIT No.16 on November 11, 2004 for grant of contract for raising, calibration and transport of iron ore at Daitari mines for a three year period. Here, it may be noted that in NIT 16 sub-clauses (i) and (vi) of Clause 8 relating to eligibility criteria were as follows:-

8. The eligibility criteria of the tenderers shall be as follows:-

Only such tenderers who fulfil the following eligibility criteria shall participate in the tender:-

(i) The agency must have successfully executed similar work (as mentioned in NIT/raising work(s) of ore/minerals) for a minimum amount of 30% in case of a single work or 50% in case of two works of the value of work shown in column No.5 of NIT in any one financial year during the last three years including 2003-04.

(vi) Any agency who is already executing similar and identical work in any mine will not be allowed to take up the second work in the same mine and such agency will not be allowed to participate in the tender. However, if the work of the said agency is due to end within six months of the date of issue of this NIT and there is no possibility that the work tendered for and the existing work in hand will operate concurrently, this restriction will not be applicable to the concerned agency.

(The above quoted clauses in their amended form are now the subject matter of controversy).

5. In response to NIT 16, dated November 11, 2004, M/s. Faridabad Gurgaon Minerals (FGM) was the successful bidder and by letter, dated January 29, 2005 issued by the Corporation it was awarded the work initially for a period of one year for a quantity of 12.00 lakh MT. on rates as indicated in that letter. In that letter, it was further stipulated that the awarded might be considered for extension for second and third year working subject to satisfactory performance in the preceding year(s) based on the terms and conditions mentioned in the tender schedule. The first year period of the contract commenced from February 25, 2005 and came to end on February 24, 2006. The parties are also in agreement that the contract was extended for the second year, i.e., upto February 24, 2007 but as regards the third year, the two sides are in serious dispute. The Corporation takes the stand that the appellant was given work for the third year as well and the work period would come to end on February 24, 2008. The appellant FGM, however, maintains that its work in Daitari Mines under NIT 16 came to end on June 30, 2007.

6. Even while the contract awarded to FGM under NIT 16 was subsisting, the Corporation issued NIT No.65 on July 7, 2006 for grant of another similar con