JUDGMENT

T.S. Thakur, J.-Leave granted.

2. These appeals arise out of a common judgment and order dated 17th October, 2011 passed by the High Court of Delhi whereby Writ Petition (C) No.534 of 2011 filed by the respondent has been allowed and the rejection of the tender submitted by it quashed with a mandamus to the appellant- company to take a fresh decision on the subject in the light of the observations made by the High Court.

3. The factual matrix leading to the filing of the writ petition by RDS Project Ltd. (hereinafter referred to as ‘RDS’ for short) has been set out at considerable length in the order passed by the High Court. We do not, therefore, consider it necessary to re-count the same all over again except to the extent the same is absolutely necessary for the disposal of these appeals. Suffice it to say that Government of India has entrusted the task of reviving and restructuring of the Dabhol Project to Gas Authority of India Ltd. (GAIL) and National Thermal Power Corporation (‘NTPC’ for short) both Government of India undertakings who have in turn formed a joint venture company in the name and style of Ratnagiri Gas & Power Pvt. Ltd., the appellant in this appeal, for short referred to as ‘RGPPL’. The appellant-RGPPL is charged with the duty of completing the balance work at LNG Terminal of the Dabhol Power project and of commissioning and operating the same. The appellant has, for that purpose, engaged GAIL as its Engineer who has in turn appointed Engineers India Limited (EIL) as their Primary Project Management Consultant. Scott Wilson a U.K. based entity was also kept in the loop as a backup consultant for marine works.

4. In terms of an international competitive bidding notice, issued by it on 26th June, 2009, EIL invited tenders from eligible parties for completion of, what is called “Breakwater” at LNG Terminal at RGPPL site, Dabhol, Maharashtra. The construction of the breakwater was left incomplete by a previously employed contractor appointed for the purpose on account of the stoppage of the work by the Dabhol Power Company. The earlier contractor had, according to the appellant, constructed only 500 meters of breakwater length leaving the balance of nearly 1800 meters incomplete and a certain length thereof untouched.

5. Apart from stipulating other terms and conditions, Clause 8.1.1.1 of the tender required that Single Bidders responding to the invitation should have experience of successfully completing as a single bidder or “as a lead of a Consortium/Joint Venture”, at least one project of a breakwater in an offshore location with a minimum length of 400 meters. Clause 8.1.1.1 of the Tender document was in the following words: “The bidder shall have experience of having successfully completed, as a single bidder or as a lead of a Consortium/Joint Venture, at least one project of a breakwater in an offshore location (as defined at Clause No.8.1.2.5 below) of minimum length of 400m during the last 20 (twenty) years to be reckoned from the last date of submission of bids. The scope of work of the proposed qualifying project work should comprise of the design, engineering, project management and construction of the breakwater.”

6. In response to the notice inviting tenders, EIL received five tenders from five different entities viz. RDS the respondent in this appeal, M/s ESSAR Construction Ltd., M/s Afcons Infrastructure Ltd., joint venture of M/s Higgard Punj Lloyd Ltd. and joint venture of M/s Hung- Hua/Ranjit Buildcon Ltd.

7. With the tender submitted by it RDS enclosed the requisite documents such as Form-B in which details of specific work experience, on the basis whereof it claimed to be satisfying the Bid Qualification Criteria (‘BQC’ for short), were also given. It also enclosed along with its tender, completion certificate dated 5th April, 2008 issued by Deputy Chief Engineer-IV, Andaman Harbour Works under the Ministry of Shipping, Road Transport and Highway, Government of India certifying