The denial of security clearance was justified under Clause 2.1.12(a) of the Request for Proposal, and the absence of a specific list of eligible or ineligible countries did not exempt the appellants from seeking security clearance.

ORDER

1. This appeal has been filed challenging the judgment dated 04.02.2022 passed by the learned Single Judge of this Court in WP(C) 13160 of 2021, inter alia rejecting the challenge of the petitioners/appellants to the communication dated 18.11.2021 whereby the respondent no. 1 informed the appellants that its security clearance in terms of Clause 2.1.12(a) of the Request for Proposal for construction of four laning of Part of Ramban to Banihal Section of NH-1A (Now NH-44), from Ch.154+210 to Ch.158+650 (North Bound) and from Ch.155+940 to Ch.160+282 (South Bound) including Construction of Twin Tube Tunnels (Package-I) in the UT of Jammu & Kashmir on EPC Mode (hereinafter referred to as the RFP) has been denied by the Competent Authority.

2. The impugned order further directs the respondent no. 1 to forward the proposal for grant of the security clearance to respondent no. 3 for consideration by the respondent no. 2, and a further direction to the respondent no. 2 to take a decision on such request within a period of three weeks. The impugned order clarifies that, in case, the security clearance to respondent no. 3 is declined for any reason whatsoever, the respondent no. 1 will be free to proceed further as per the terms of RFP to award the contract to the next bidder, subject to its meeting the criteria under Clause 2.1.12(a) of the RFP, if applicable.

3. The above-mentioned writ petition was filed by the petitioners/appellants seeking the following reliefs:

(i) Issue a writ of mandamus/certiorari or a writ in the nature of mandamus/certiorari or any other writ, order or direction quashing and setting aside the impugned communication dated 18.11.2021 and actions of the Respondents 1 and 2, disqualifying it from further participation in the tender process and award of contract to JMC-AGE JV, for the construction of construction of four laning of part of Ramban to Banihal Section of NH-1A (now NH-44), from CH.154+2.0 to CH.158+675 (North Bound) and from CH.155+940 to CH.l60+282 (South Bound) including construction of Twin Tube Tunnel (Package-1) in the Union Territory of Jammu & Kashmir by EPC Mode;

(ii) Issue a writ of mandamus or a writ in the nature of mandamus or any other writ, order or direction directing the Respondents to award the contract to JMC-AGE JV, pursuant to the tender issued and bid submitted by JMC-AGE JV, for the consumption of four laning of part of Ramban to Banihal Section of NH-1A (now NH-44), from CH.154+2.0 to CH.158+675 (North Bound) and from CH.155+940 to CH.160+282 (South Bound) including construction of Twin Tube Tunnel (Package-1) in the Union Territory of Jammu & Kashmir by EPC Mode;

4. It was the case of the appellants that the appellant no. 2 is a Joint Venture (in short, JV), of which the lead member, holding 74% participation share, is an Indian company, that is, appellant no. 1. The minority participation partner with the remaining 26% share is a Turkish company, M/s Age Insaat Ve Ticaret Anonim Sirketi (hereinafter referred to as the M/s Age).

5. The said JV was declared as technically qualified in the RFP and, thereafter, was declared as a L-1 bidder in the financial bids.

6. At that stage, the respondent no. 1 issued the impugned communication dated 18.11.2021, informing the petitioners/appellants that their security clearance was denied by the Competent Authority.

7. It is the case of the appellants that in terms of Clause 2.1.12(a) of the RFP, since the JV had an Indian partner holding more than 50% share therein, Clause 2.1.12(a) of the RFP was not attracted. It was further contended that the respondent no. 1 had adopted a pick and choose policy for obtaining security clearance, inasmuch, as, for the respondent no. 3, which also had a Ukrainian JV partner, respondent no. 1 did not obtain security clearance and proceeded to issue a Letter of Acceptance in its favour.

8. As noted hereinabove, the learned Single Judge has rejected the submission of the appellants that Clause 2.1.12(a) o