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IN THE HIGH COURT OF GAUHATI, NAGALAND, MIZORAM AND ARUNACHAL PRADESH
Kaushik Goswami, J.
M/S Rathour Services and Another – Petitioners
Versus
The Union Of India Through The Secretary Ministry Of Railway Rail Bhawan Raisina Road New Delhi And Ors. – Respondents
WP(C)/317/2024
Decided On : 08-04-2024
Heard Mr. A. Chowdhury learned Senior Counsel assisted by Ms. Barnali Chowdhury, learned counsel for the petitioners. Also heard Mr. Tushar Mehta, learned Solicitor General of India assisted by Mr. K. Gogoi, learned CGC and Mr. N. Anix Singh, learned Standing Counsel for the IRCTC.
2. The challenge made in this writ petition is to the Commercial Circular No. 24/2023 dated 14.11.2023, issued by the respondent Railway Board, Ministry of Railway, Government of India, New Delhi whereby paragraph No. 3 of Catering Policy 2017, has been superseded by providing stringent eligibility conditions for awarding of catering contract.
3. The brief facts of the case are that the petitioner No. 1 has been empanelled since the year 2018, as a catering service provider for railway in IRCTC and as on date the petitioner No. 1 is providing on board services in 20 Mail Express Trains of the Indian Railways including Train No. 19305-06 DADN-KYQ Express (Dehradun-Kamrup Express). Over the years the petitioner no. 1 has emerged as a serious player in the catering business of the Indian railways and due to satisfactory delivery of the petitioner no. 1 services, the petitioner no. 1 has reached ‘M-1’ category from ‘M-3’ category and has a turnover of Rs 18 crore in the last financial year and has a net worth of Rs. 1 crore.
4. The respondent No. 2 by issuing the impugned Commercial Circular has directed the Chief Commercial Manager of all zonal railways to form tentative cluster of trains and for setting up of base kitchen to define the cluster with the object of implementing the impugned Circular No. 24/2023. Under the impugned Circular, the respondent no. 2 has inter-alia decided that route wise cluster of trains and base kitchen shall be formed in consultation with the zonal railways and award of contract shall be done for a cluster of trains and base kitchen mapped with the cluster instead of an individual train in existing catering policy. The impugned Circular provides that the cluster of trains and Base Kitchen shall be formed in two groups, namely:-
B) Cluster B- Includes Mail/ Express trains with Pantry Cars and TSV trains (cluster of upto10 pairs of trains). In one cluster of Mail/Exp train with pantry car and TSV trains, if total no. of trains in a cluster is upto5 pairs, then the cluster should contain maximum 01 pair and maximum "50% of the cluster" Mail/Exp with pantry car train pairs. If a cluster contains 6 to 10 pairs of trains then it should have a minimum 02 pairs and maximum "50% of the cluster" Mail/ Exp with pantry train pairs.”
5. In other words, the bidding shall be for all trains in the cluster unlike previously where the bidder put bid for individual trains. Additionally, inter-alia, eligibility criteria has been amended by enhancing the annual turnover requirement of a contractor to Rs.25 Crores for Cluster-A per year, in any of the 3(three) years during the last 6(six) preceding years and to Rs.10 Crores for Cluster-B per year in any of the 3 (three) years during the last 6(six) preceding years and also prohibiting participation by constituting JV/consortium. Aggrieved, by the aforesaid requirements/prohibition, the present writ petition has been filed.
6. Mr. A. Chowdhury, learned Senior Counsel for the petitioner submits that the impugned action of the respondent No. 2 of clustering the trains and consequent requirement of increased eligibility criteria and higher turnover for the bidder seeks to create a monopoly and restrict competition which is a hallmark of a public tender and deny a level playing field and as such the same is in violation
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