JUDGMENT:

Dr. ARIJIT PASAYAT, J.

1. Leave granted.

2. These appeals involved identical issues. While two appeals are against the judgment of the Himachal Pradesh High Court, the other two are against the judgments of the Punjab and Haryana High Court.

3. The controversy lies in a very narrow compass. Writ petitions were filed by the respondents in each case questioning correctness of a stipulation in the "Notice Inviting Tender" (in short NIT) containing a disqualification clause which disentitled an intending tenderer to submit tender whose near relative is working in any of the units of the appellant-BSNL. According to the writ-petitioners such a prohibition was impermissible. It was submitted that if the ultimate intention was to ensure that a person working in the unit will not be able to influence the decision-making process in respect of the tender, the same is irrelevant if the person concerned is holding a post of Class III or Class IV. The Himachal Pradesh High Court referred to an earlier order passed by a Division Bench of the High Court in Narinder Kumar v. Union of India and Anr. (C.W.P. No.33 of 1995), where a similar stipulation was struck down. Accordingly, the High Court held that the stand of the respondents in the writ petition with reference to the communication issued by the Bharat Sanchar Nigam Limited bearing no.151-08/2002 O&M/38 dated 11.9.2002 cannot be sustained. It was observed that Rule 4 of Government of Indias CCS (Conduct) Rules, 1964 had no relevance. Accordingly, the writ petition was allowed by order dated 24.5.2003 in Civil Writ Petition no.122/2003. The said decision was followed in Civil Writ Petition no.269(M/B) of 2003 by order dated 13.8.2003. The Punjab and Haryana High Court has expressed a similar view in Civil Writ Petition no.12799 of 2003 by order dated 4.11.2003 and Civil Writ Petition no.18439 of 2003 by order dated 9.1.2004.

4. The appellants stand is that the stipulation is essentially a policy decision that too in a contractual matter and the High Court should not have interfered.

5. Respondents submitted that in view of the irrationality, the High Court in each case was justified in its view.

6. It appears that the Delhi High Court had occasion to deal with a similar issued in S.N. Engineering Works v. Mahanagar Telephone Nigam Ltd. 1996(37) DRJ446. The conditions which were under consideration of the Delhi High Court were clauses (J) and (K) of NIT providing as follows:

"(J) The contractor shall not be permitted to tender for works in MTNL (responsible for award and execution of contracts) in which his near relative is posted as JAO/AAO/AO or an officer in any capacity between the grades of S.E. and A.E. both inclusive. He shall also intimate the names of the persons, who are working with him in any capacity or are subsequently employed by him, and who are near relatives to any officer in MTNL. Any breach of this condition by the Contractor would render him liable to be removed from the approved list of contractors of this department. (K) The contractor shall give a list of MTNL employees related to him." 9.2 Every tender has to be accompanied by a declaration to be signed by the contractor in the following proforma which has a footnote defining the term "near-relative":- APPENDIX-V(DECLARATION) APPENDIX-V I/WE hereby declare that none of my/our relatives are employed in any capacity in any of the units of M.T.N.L./D.O.T. I/We shall also intimate the names of persons who are working with us in any capacity or are subsequently employed by us and who are near relatives to any officer in the M.T.N.L./D.O.T. I/We am/are aware that any breach of this condition would result in immediate termination of contract/cancellation of the existing contract/cancellation of the existing contract/contracts and also forfeiting of my/our security deposit held by Mtnl, Delhi. NOTE: "The term near relatives means wife/husband/parents and grand parents/children/ grant children brothers/ sister