A condition of experience in a tender is not violative of Article 14 of the Constitution of India if it is neither discriminatory nor arbitrary.

A. P. Misra, J. - Heard learned counsel for the parties.

2. The petitioner by means of this writ petition has sought for quashing the express telegram dated 6th March, 1993 for limited tender as per list annexure-I to the petition issued by respondents and further directing respondents to advertise the tender notice at large, not confining it to existing handing contractors to contract with respondent company.

3. The ground of challenge by the petitioners is that the condition as specified in the said impugned tender is discriminatory in the nature which excludes other material handlers to favour the contractors already handling the iron and steel of SAIL. Further contention is that the similar condition was imposed by the respondents inviting the said tender and was challenged by the petitioner by means of filing earlier writ petition (Writ Petition No. 29337 of 1992) in which the interim order was passed in favour of the petitioner and thereafter on the basis of the undertaking given by the respondents the said tender was withdrawn. After withdrawing the said tender the present tender was invited specifying the same conditions which is in fact to give favour to those contractors who are working with SAIL, and, therefore, the said tender is not sustainable in view of the aforesaid back-grounds. Earlier the tender was invited by the respondent (SAIL) on 30th July, 1992 and the same was challenged in the aforesaid writ petition. It is not necessary for us to go through the order passed in the earlier writ petition.

4. According to petitioners they are contractors having handled the iron and steel at SAIL Stock Yard, Naini to the tune of 70,000 tons in one year. After aforesaid express telegram the petitioners approached the respondent through letter dated 11-3-1993 but the Branch Manager refused to receive the same as the petitioner's names were not in the list of the persons who are already working in the different Stock Yard of SAIL. In April, 1992, tender notice for appointment of handling contractor at Allahabad was issued with condition that the experience of handling of steel materials of at least 28,000 MT during any of the last five financial years should be there. When the petitioners challenged by means of the aforesaid writ petition, an interim order was obtained, but respondent-company postponed the tender indefinitely without assigning any reason. This was published on 30-8-1992, Annexure-Vll to the petition. Thereafter, in that writ respondents moved an application and also gave an undertaking to cancel the tender on which the petition was dismissed on 31-1-1993 as infructuous. Thereafter the impugned express telegram dated 6-3-1993, Annexure-1 to the petition which in term is a limited tender permitting participants only as per list was invited. This also provided the condition to have experience of handling of stock materials of 28,000 MT during any of the last five financial years.

5. The main ground of challenge is that the impugned tender's condition is violative of Art. 14 which is discriminatory excluded the petitioners from being considered thus illegal. The petitioners admittedly have not handled such work since 1985 but assert their experience of handling the stock materials. Next repudiating respondent's stand it was urged that respondent (SAIL) is 'State' within the meaning of Art. 12 of the Constitution of India. We would first dispose of the later question first. SAIL is a successor of Hindustan Steel Ltd., Hon'ble Supreme Court while considering the case of Hindustan Steel Ltd. in Workmen of Hindustan Steel Ltd. v. Hindus Steel Ltd. (1984 Supp. SCC 554), held that company to be 'State' within the meaning of Art. 12 of the Constitution. This view is endorsed in Central Inland Water Transport Corporation Ltd. v. Brojo Nath Ganguli (1986 (3) SCC 156 = AIR 1986 SC 1571), in Bihar State Harijan Kalyan Parishad v. Union of India (1985 (2) SCC 644 = AIR 1985 SC 983), and in Sterling Computers Ltd.